Law Times

November 21, 2011

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/54017

Contents of this Issue

Navigation

Page 12 of 15

LAW TIMES • NOVEMBER 21, 2011 FOCUS PAGE 13 relation to activities occurring on their lands is gaining increased recognition in legislation and case law. At the same time, the impor- tance of treaty rights in relation to lands taken up by the Crown for other purposes also received a boost from the recent victory of the Grassy Narrows First Nation against the provincial govern- ment's permitting activities. Increasingly, aboriginal in- Grassy Narrows victory strengthens band rights T BY JUDY VAN RHIJN For Law Times he duty of developers and governments to con- sult with First Nations in an enduring obligation for the right of use for fi shing and hunt- ing. fl uence is extending to any place where First Nations have a direct interest. Juli Abouchar, a partner at Willms & Shier Environmental Lawyers LLP, has seen her aboriginal law practice expand signifi cantly in the last fi ve years as a result and she sees this as a continuing trend. "We've come a long way since the rejection of the Mack- enzie Valley pipeline," she says. "Th at sounded a wake-up call. "Now a lot of factors are pushing towards more aborigi- nal involvement in the develop- ment process and the projects themselves. First Nations have more capacity to engage in the economy and to develop their own projects. Governments are requiring more proponents to consult and engage with them. Companies are engaging more and more from a sense of cor- porate social responsibility and because they see benefi ts from engaging with local First Na- tions. Th ere is an expectation that when projects come into First Nations territory, they will have a sustainable benefi t." Jason Annibale, an aborigi- nal law practitioner at McMil- lan LLP, agrees. "I think the trilogy of Haida Nation v. B.C., Taku River v. B.C., and Miki- sew Cree First Nation v. Canada from the Supreme Court in 2004 and 2005 have really put in place a structure in which aboriginals can move within a modern framework and get accommodation, jobs, money, and a voice. With that comes a discussion and cases that further refi ne the duty to consult and the principle of reconciliation." Abouchar defi nitely sees more people stepping up to the plate on the duty to consult. "Th e duty to consult rests on the Crown, but they can delegate procedural matters to others, such as mu- nicipalities and proponents. So a permitting authority may be re- quired to consult, too." Another area gaining more attention is treaty rights, particu- larly since the recent decision in the 11-year saga of Keewatin v. Minister of Natural Resources, a case in which the Grassy Nar- rows First Nation protested against clear-cut logging on its traditional lands. "Th is case was not so much on the duty to con- sult but on the interpretation of the treaty," says Abouchar. "Even though the land has been surren- dered through the treaty, there is 'Th e court looked at the au- thority of the provincial govern- ment to take up land for forestry and mining and give permits to people on treaty land. Th e treaty specifi cally says that the government of the Dominion of Canada is the body that has the power, so the court found that the province couldn't grant those licences that would have a nega- tive impact on hunting and fi sh- ing without also getting federal government approval." Th e three parties have now sought leave to appeal at the Su- preme Court. "Th e Grassy Narrows case is about the federal and provincial division of power," says Annibale. "Where the federal government has committed itself, has carved out explicit rights and obliga- tions, the provincial government can't interfere without federal per- mission. I believe this principle will have further consequences." Abouchar believes the deci- sion has already had an impact. "Th ere are people issuing per- mits and licences all over the place. Because treaties are his- toric, there is a tendency not to know how to deal with them in a modern context. Th ere are other treaties with similar pro- visions that allow First Nations to hunt and fi sh on land out- side the reserves. It could have far-reaching eff ects on how permits are issued in Ontario." A notable exception to the growing sensibility towards the need for wider consulta- tion occurred recently when the Canadian Boreal Initiative, a group that spearheaded the Canadian boreal forest agree- ment between 21 forestry com- panies and nine environmental organizations, failed to include First Nations. Th e group has since acknowledged this as a "grievous error" and is working to correct the oversight. Generally, aboriginal law practitioners are seeing greater 'We've come a long way since the rejection of the Mackenzie Valley pipeline,' says Juli Abouchar. recognition of aboriginal rights. Th e Green Energy Act, for ex- ample, is providing opportuni- ties for First Nations to develop renewable energy projects by encouraging them to partner with generators of power from clean sources such as wind, so- lar, and hydro. will "Th ings are taking a very positive step forward towards the goal of reconciliation," says Annibale. "Th ere is an aborigi- nal consultation guide in draft form regarding the preparation of a renewable energy applica- tion. Th is assist business and the bands in dealing with each other to put in place the structure from the trilogy cases." Th e Far North Act is a more controversial issue at the legis- lature. It identifi es economic opportunities and sets aside lands as being off limits for development. "Industry is con- cerned because the economy relies on mining to such an extent," says Abouchar. "First Nations are concerned because decisions are being made for them about how much growth and benefi t they might be able to get from development on their land. Some communities are developing the commu- nity land-use plans under the act but other communities are struggling with it." YOUR ONE-STOP RESOURCE FOR INTERPRETING ONTARIO'S NEW ENVIRONMENTAL TOXICS LEGISLATION NEW PUBLICATION ANNOTATED GUIDE TO THE ONTARIO TOXICS REDUCTION ACT JOSEPH F. CASTRILLI Provide the best possible advice to your clients by interpreting the new Ontario Toxics Reduction Act, 2009 correctly. This new publication, the first to focus exclusively on the Act, is an essential resource for all legal practitioners who need to keep informed about this key piece of provincial legislation. You will receive the most up-to-date information, including expert commentary on the Act with references to related Ontario and Federal legislation. Annotated Guide to the Ontario Toxics Reduction Act is divided into three parts and includes: • Detailed overview of the key aspects of the Act and regulations • Discussion of the constitutional and jurisdictional aspects of the Act • Commentary explaining each section of the Toxics Reduction Act, 2009 with cross-references to Canadian Environmental Protection Act, 1999 and other key statutes • Commentary explaining key sections of O.Reg. 455/09, the general regulation promulgated under the Act • Full text of the Toxics Reduction Act, 2009 and O. Reg. 455/09, and selected sections of other legislation referenced in the text Help your clients comply with this new environmental legislation with Annotated Guide to the Ontario Toxics Reduction Act. ORDER # 804523-63835 $175 1 volume looseleaf supplemented book July 2011 1-2 supplements per year Supplements invoiced separately 978-0-88804-523-2 AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.canadalawbook.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® www.lawtimesnews.com

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - November 21, 2011