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Category Archives: Consultation

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ESTMA Update: Reporting Requirements Apply to Payments to Aboriginal Governments Effective June 1, 2017

Posted in Aboriginal, Consultation, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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In previous posts, from April, 20 2015 and June 2, 2015, we reported on the federal Extractive Sectors Transparency Measures Act (“ESTMA”) and the requirements it imposes on companies to report certain types of payments made to governments. ESTMA requires reporting companies to report payments made to specified “payees” — governments in Canada and foreign states (along with certain… Continue Reading

The Seven Year Itch: The SCC Returns to Address an Unresolved Question regarding the Crown’s Duty to Consult Aboriginal People and the Legislative Process

Posted in Aboriginal, Administrative Law, Constitutional Law, Consultation, Environmental, Project Permitting, Public Law, Regulatory
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On May 18, 2017, the Supreme Court of Canada agreed to hear an appeal in an important case that could further define the nature and extent of the Crown’s duty to consult Aboriginal people, including the previously unresolved question as to whether the Crown’s duty to consult Aboriginal people can be triggered by legislative action…. Continue Reading

Federal Environmental Assessment – What’s Next – A Tiered Approach

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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This is the most recent blog in a series of posts which discuss the proposed recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of the Environmental Assessment Processes (the “Report”),… Continue Reading

Federal Environmental Assessment – What’s Next – Stages of Project Impact Assessment

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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This is the most recent in a series of posts which discuss the proposed recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the “Report”). This entry… Continue Reading

Federal Environmental Assessment – What’s Next – A Single Impact Assessment Authority

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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Over the past week, the Project Law Blog has been discussing the recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the “Report”). We have provided an… Continue Reading

Federal Environmental Assessment – What’s Next? – Proposed New Triggers

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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Last week we summarized the recommendations set out by the Expert Panel established by the Minister of Environment and Climate Change in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the “Report”). One of… Continue Reading

Indigenous Considerations in the Expert Panel Report on Federal Environmental Assessment Processes

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Law, Regulatory, Regulatory Compliance
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Our April 7 post on the report of the Expert Panel reviewing federal environmental assessment processes noted that the report contains recommendations for greater inclusion of Indigenous peoples in federal environmental assessment processes. This post looks in more detail at the report’s key recommendations and commentary on that subject. Overall, the Expert Panel report envisions a… Continue Reading

Federal Environmental Assessment – What’s Next? – Expert Panel Releases Report

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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On April 5, 2017, an Expert Panel established by the Minister of Environment and Climate Change (the “Panel”) released its report, Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the “Report”). Our post of June 26, 2016 discussed… Continue Reading

Federal Government Announces Review of Key Environmental and Regulatory Legislation and Processes

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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On June 20, 2016 the Government of Canada announced its review of several environmental and regulatory processes. The review will focus on three areas: the federal Environmental Assessment process, which was revised in 2012 by the Conservative government, modernization of the National Energy Board, and the federal Fisheries Act and Navigation Protection Act, both of… Continue Reading

“Supreme Court of Canada to hear appeal on Yukon Peel watershed decision”

Posted in Aboriginal, Constitutional Law, Consultation, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory
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Update: On June 9, 2016, the Supreme Court of Canada agreed to hear an appeal from Yukon Court of Appeal’s Peel watershed decision.  Click here to read our earlier blog post on the Court of Appeal’s decision handed down November 4, 2015.

The Daniels Decision: All Aboriginal Peoples, including Métis and non-status Indians, are “Indians” under section 91(24) of the Constitution Act, 1867

Posted in Aboriginal, Constitutional Law, Consultation
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The Supreme Court of Canada has handed down its decision in the Daniels case. The Supreme Court’s decision resolves a question of constitutional responsibility for Aboriginal peoples other than First Nations and Inuit — Canada’s Métis and non-status Indians. Under section 91(24) of the Constitution Act, 1867, the federal Parliament has exclusive legislative authority for… Continue Reading

New Consultation Policy and Guidelines for Métis Settlements in Alberta

Posted in Aboriginal, Constitutional Law, Consultation, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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On April 4, 2016, the Government of Alberta (“GoA”) implemented its first formal consultation process between the government, project proponents, and Métis Settlements with the release of The Government of Alberta’s Guidelines on Consultation with Métis Settlements on Land and Natural Resource Management, 2016 (“Guidelines”) and The Government of Alberta’s Policy on Consultation with Métis… Continue Reading

Government of Canada Proposes Methodology for Estimating Upstream GHG Emissions in Major Project Review

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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Late last week, the Government of Canada released a proposed methodology for estimating upstream GHG emissions from proposed oil and gas projects undergoing federal environmental assessment. This comes on the heels of the Government’s announcement in late January of its new guiding principles for project review, one of which included assessment of “direct and upstream… Continue Reading

BC Supreme Court Revisits Issue of Federal Paramountcy

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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On January 14, the Supreme Court of British Columbia found that the Province had improperly abdicated its decision making authority with respect to the Enbridge Northern Gateway Project by entering into an Equivalency Agreement with the federal government. Furthermore, the Court found that the Province had breached its duty to consult with First Nations by… Continue Reading

Federal Government Releases Guiding Principles for Project Review

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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In a set of press releases issued today (here and here), the Government of Canada announced 5 principles that it says will guide its discretionary decision-making for projects being reviewed in environmental assessment, along with a set of interim measures it says will be implemented in two existing pipeline reviews. While today’s announcements will likely have… Continue Reading

Bulletin 2015-28: The AER Will Be Publishing Participation and Procedural Decisions

Posted in Aboriginal, Administrative Law, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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On September 23, 2015, the Alberta Energy Regulator released Bulletin 2015-28: “Posting of Participation and Procedural Decisions” a significant change in the AER’s practice with respect to the publishing of its decisions. Until now, relatively few AER decisions were directly available on the AER’s website. To date, only five AER decisions from 2015 have been… Continue Reading

“Free, Prior and Informed Consent” to become part of Alberta law?

Posted in Aboriginal, Administrative Law, Constitutional Law, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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On July 7, 2015, Alberta’s Premier Rachel Notley directed her Cabinet Ministers to review their Ministries’ policies, programs and legislation that may require changes based on the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration). Premier Notley tasked her Ministers to “engage directly with Indigenous people to find a… Continue Reading

Bulletin 2015-20: Release of Revised Joint Operating Procedures for First Nations Consultation on Energy Resource Activities

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory
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On June 9, 2015, the Alberta Energy Regulator (“AER”) and the Aboriginal Consultation Office (“ACO”) released revised Joint Operating Procedures for First Nations Consultation on Energy Resources Activities (the “Revised Operating Procedures”).  Bulletin 2015-20, detailing the revisions, was released by the AER on June 10, 2015.  The Revised Operating Procedures explain how the AER and ACO… Continue Reading

Update — Extractive Sector Transparency Measures Act Now in Force

Posted in Aboriginal, Consultation, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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On Monday, June 1, 2015, the federal Minister of Natural Resources, Greg Rickford, announced that the Extractive Sector Transparency Measures Act has come into force. As we discussed in an earlier post, the Act will require companies operating in the extractive natural resources sector (oil and gas, mining) to report certain payments, including royalties, taxes,… Continue Reading

Crown’s Duty to Consult Not Triggered by Subsurface Dispositions

Posted in Aboriginal, Consultation, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance
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Does the granting of subsurface mineral rights trigger the duty to consult with Aboriginal groups? In Saskatchewan, the short answer is “no”. The possibility of impact on Treaty 10 rights from the disposition of subsurface oil sands exploration permits is determined to be “too speculative” by the Saskatchewan Court of Appeal in Buffalo River Dene… Continue Reading

Proof of Aboriginal rights (including title) not required prior to commencing legal action for enforcement

Posted in Aboriginal, Consultation, Mining, Oil & Gas Law, Project Development, Project Permitting
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On April 15, 2015, the BC Court of Appeal issued its decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc, 2015 BCCA 154. The decision is significant because the Court of Appeal found that proof of an existing Aboriginal right (including title) is not required prior to Aboriginal peoples commencing… Continue Reading

The New Federal Extractive Sector Transparency Measures Act and Contractual Payments to Aboriginal Governments

Posted in Aboriginal, Consultation, Mining, Oil & Gas Law, Project Development, Project Permitting, Regulatory, Regulatory Compliance, Uncategorized
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The proposed Extractive Sector Transparency Measures Act has been enacted by Parliament and is now awaiting proclamation. The Government of Canada has stated that it intends to have the Act in force by June, 2015. This post provides a short overview of the legislation and its potential application to contracts between resource developers and Aboriginal… Continue Reading

It’s “Buyer Beware” for Resource Developers When it Comes to Crown Consultation

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting
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The duty to consult is a Crown responsibility. But what happens when the Crown’s consultation is inadequate? Can a company that suffers losses as a result claim compensation from the Crown? A recent decision of the British Columbia Court of Appeal in Moulton Contracting Ltd. v British Columbia, 2015 BCCA 89 indicates that it will… Continue Reading

Court suspends implementation of Mackenzie Valley “Superboard”

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Regulatory
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The Supreme Court of the Northwest Territories has granted an injunction to the Tlicho Government suspending the implementation of the Mackenzie Valley “Superboard” legislation. Creation of the Mackenzie Valley “Superboard” is contemplated in amendments to the Mackenzie Valley Resource Management Act (MVRMA) contained in the Northwest Territories Devolution Act, whose effect would be to collapse… Continue Reading