The rapidly evolving legal landscape for Aboriginal consultation and involvement in mining and other resource development projects in Canada is likely to see a number of significant changes in 2017. In addition to three anticipated Supreme Court of Canada decisions on the duty to consult, 2017 will likely bring legislative and policy changes to the nature and extent of expected Aboriginal involvement in the assessment, permitting and monitoring of resource development projects that require federal approval. Also expect changes to federal and certain provincial Aboriginal consultation policies, as well as the implementation of the Extractive Sector Transparency Measures Act for payments to Aboriginal groups.
In November 2016, Environment and Climate Change Canada (ECCC) announced that it would be kicking off a process to develop a clean fuel standard (CFS) in support of Canada’s commitment to meet its greenhouse gas (GHG) emissions reduction target of 30% below 2005 levels by 2030. The CFS, which is included as part of the Pan-Canadian Framework on Clean Growth and Climate Change released in December 2016, would require reductions in the carbon footprint of fuels supplied in Canada, based on a lifecycle analysis. On February 24, 2017, ECCC released a discussion paper for consultation on the proposed new CFS. Continue Reading
The Environmental Emergency Regulations (the “Current Regulations”) under the Canadian Environmental Protection Act, 1999 (“CEPA”) aim to enhance the protection of the environment and human health in environmental emergency situations by promoting prevention and ensuring preparedness, response and recovery. They require companies or persons who own or manage specified toxic and hazardous substances at or above the specified thresholds to provide required information on the substance(s), their quantities and to prepare and implement environmental emergency plans. Continue Reading
Two separate court challenges of the federal and provincial environmental assessment approvals for the Site C hydropower project in British Columbia have recently been dismissed by the federal and BC appellate courts. The two appellate courts separately upheld earlier decisions of the BC Supreme Court and the Federal Court which had dismissed applications for judicial review by the Prophet River First Nation and the West Moberly First Nation (the First Nations) of the provincial and federal environmental assessment decisions approving Site C. The First Nations argued that the approvals infringed their treaty rights under Treaty 8 and that there was inadequate consultation and accommodation.
On January 1, 2017, Ontario’s cap-and-trade system came into effect. As we have outlined in previous blog posts, January 1, 2017 is the start of the first four-year compliance period for the cap-and-trade program, which compliance period will end on December 31, 2020. Thereafter, the cap-and-trade program compliance periods will be three-years long, aligning with the compliance periods in the Québec and California cap-and-trade markets. The Government of Ontario has stated its intention to link with the Quebec and California markets in 2018. Continue Reading
The Federal Court of Appeal recently released a significant decision that limits the scope of Crown conduct that may trigger itsduty to consult with Aboriginal peoples and reinforces parliamentary privilege. In Courtoreille v. Canada, released on December 7, 2016, the Federal Court of Appeal concluded that the entire legislative process – from the discussion of policy options to the introduction and passage of legislation – cannot trigger the duty to consult regardless of whether the legislation at issue has the potential to adversely impact asserted or established Aboriginal or treaty rights.
This decision overturned a previous ruling by the Federal Court (2014 FC 1244) which held that the federal government had a duty to consult the Mikisew Cree following the introduction of the contentious Omnibus legislation (Bills C-38 and C-45) in 2012 that made changes to Canada’s environmental assessment regime through CEAA 2012, as well as related environmental legislation including the Fisheries Act, Species at Risk Act, and the Navigable Waters Protection Act (now Navigation Protection Act). This Omnibus legislation sought to streamline certain regulatory processes and reduce the number of projects that were subject to federal environmental assessment. At the Federal Court level, the Mikisew Cree argued that the duty to consult was triggered by the development and introduction of the new legislation because it reduced federal regulatory oversight on works or projects that may affect the Mikisew Cree’s treaty rights to hunt, fish, and trap. The Federal Court found that the Crown did have a duty to consult the Mikisew Cree – but only after the two bills were introduced in Parliament, not before. The scope of the duty was limited to providing notice and a reasonable opportunity to make submissions, and the relief granted by the Federal Court was solely declaratory in nature since the Omnibus Bills had already passed into law
In overturning the Federal Court decision, Justice De Montigny of the Federal Court of Appeal concluded that the legislative actions at issue were immune from judicial review, stating that “[i]f there is one principle that is beyond any doubt, it is that courts will not supervise the legislative process and will provide no relief until a bill has been enacted.” (at para. 59). Even if the actions were not immune from judicial review, Justice De Montigny held that it would be an undue interference with Parliament’s process and sovereignty for the courts to impose a duty to consult in the legislative process. He held that requiring a duty to consult at any stage of the legislative process would be “impractical and cumbersome”, “potentially grind the legislative process to a halt”, and would “fetter ministers and other members of Parliament in their law-making capacity” (at para. 60).
Justice De Montigny noted that this obviously does not prevent governments from consulting with Aboriginal groups on legislation as a matter of good public policy and politics, nor does it prevent Aboriginal groups from advancing their interests through lobbying or submissions to parliamentary committees (at paras. 61-62). Justice De Montigny further acknowledged that consultation and accommodation may be necessary when carrying out statutory regimes, during which time strategic planning decisions may affect Aboriginal rights and interests (at para. 63).
In concurring minority reasons, Justice Pelletier decided the case more narrowly, holding that the duty to consult is not triggered by “legislation of general application whose effects are not specific to particular Aboriginal peoples or to the territories in which they have or claim an interest”. Justice Pelletier’s reasons suggest that this more qualified ruling took into consideration the risk of governments legislating around the duty to consult for a specific undertaking:
Putting the matter another way, the duty to consult would undoubtedly be triggered by the executive’s approval of a project which adversely affected a First Nation’s interest in a given territory. Can it be said that the duty to consult would not be triggered if the same project were approved and set in motion in a special law passed for that purpose? While this is not the case we have to decide, it does highlight the point that the argument that the legislative process is indivisible, from policy development to vice-regal approval, may be problematic in other circumstances.
It remains to be seen whether the Mikisew Cree will seek leave to appeal to the Supreme Court of Canada, which expressly left the issue of whether government conduct for the purposes of the duty to consult includes legislative action “to another day” in Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43. This decision is unlikely to significantly alter the current varying and case-by-case approaches of the federal and provincial governments when it comes to consulting Aboriginal groups regarding legislation. However, it could have had significant implications for the legislative process if the initial ruling was upheld or if the Court of Appeal went further and found that there was a duty to consult prior to the introduction of legislation. It could have also created further regulatory uncertainty and delay for resource development proponents if there was a risk that future legislative reforms to provincial and federal environmental assessment and energy regulation processes (including federal legislative reforms anticipated later this year) could be struck down for a failure to meet the duty to consult.
This decision will likely be seen as a setback for the many Aboriginal groups across the country that have been seeking much greater consultation and collaboration than the status quo approaches to the development of legislation in Canada.
On December 17, 2016, the federal Ministry of Environment and Climate Change Canada (ECCC) announced its intention to address carbon dioxide (CO2) emissions in electricity generation to meet its greenhouse gas reduction commitments made as part of the United Nations Framework Convention on Climate Change (Paris Agreement). The Notice of intent published in the Canada Gazette (Notice) outlines a plan to amend the already-existing Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulation (Coal Regulation) and to develop new regulations to address electricity generation from natural gas (Proposed Natural Gas Regulation). The Proposed Natural Gas Regulation will be enacted under the Canadian Environmental Protection Act, 1999. Continue Reading
As Ontario puts the finishing touches on its cap-and-trade program, which will commence on January 1, 2017, the Ministry of Environment and Climate Change (MOECC) has released its Compliance Offset Credits Regulatory Proposal (the Regulatory Proposal) for a 45-day public comment period that will end on December 30, 2016. Under the cap-and-trade program, capped facilities will be required to either reduce their greenhouse gas (GHG) emissions or meet their compliance obligations through other regulatory tools, including the use of offset credits. As a compliance mechanism, offset credits provide emitters with greater flexibility and potentially lower cost options to meet their compliance obligations. Continue Reading
The Paris Climate Change Agreement came into force on November 4, 2016 and as global efforts get underway to implement the agreement, the Canadian federal government continues to craft its strategy to shift Canada to a low-emissions economy. At the recent United Nations climate change conference (COP 22) in Marrakech, Morocco that was held from November 7 – 18, 2016, the Minister of Environment and Climate Change announced Canada’s Mid-Century Long-Term Low-Greenhouse Gas Development Strategy (the Long-Term GHG Strategy) at COP 22, making Canada one of the first countries to do so. Continue Reading
On October 11, 2016, the Ontario Court of Appeal (“Court”) released its decision in the Wildlands League v. Ontario (Natural Resources and Forestry) case. The decision provides helpful commentary and guidance on the interpretation of the Ontario Endangered Species Act, 2007 (“Act”). The Court dismissed the appeal and recognized that the protection of species at risk and their habitats under the Act is not absolute and occurs in the context of human activities. Continue Reading