The Government of Newfoundland and Labrador ("NL") has recently released its "Aboriginal Consultation Policy on Land and Resource Development Decisions" (the "Policy"). A copy of the Policy can be accessed here.
This new Policy is the product of consultations with Aboriginal organizations, industry stakeholders, and the public. The Policy aims to clarify NL's role in the Aboriginal consultation process and sets out NL's expectations of project proponents and Aboriginal organizations in that process. The ultimate goal is to help ensure that resource development decisions minimize or eliminate potentially adverse impacts on asserted Aboriginal rights. The Policy is primarily aimed at land use and resource projects and developments, but it applies broadly to also include wildlife management decisions.
Although the Policy will have application to both recognized and unrecognized Aboriginal rights claims, it will not apply to consultation with either the Labrador Inuit (whose consultation rights are formalized in the Labrador Inuit Land Claims Agreement Act ) or the Labrador Innu (whose consultation rights will be covered by the land claims agreement which has been settled in principle with NL and the Government of Canada).
Practically speaking, the new Aboriginal Consultation Policy will have principal application to those aboriginal groups which have asserted claims in Labrador which have not been recognized or accepted for negotiation by Government. These include claims asserted by NunatuKavut Community Council, the Naskapi Nation of Kawawachikamach, and the Quebec Innu communities of Matimekush-Lac John, Uashat mak Mani-Utenam, Ekuanitshit, Nutakuan, Unamen Shipu and Pakua Shipi (all of which are specifically named in the Policy).
NL expects that land use and resource proponents will benefit from the Policy as it will ensure that potential impacts of development activities are understood and addressed in a timely and transparent fashion.
Some key features of the Policy, which introduces new process and cost burdens which depart from conventional Aboriginal consultation principles and practice, include the following:
- the Policy will in most cases operate to transfer the burden of consultation and accommodation from NL to project proponents – effectively, proponents will be expected "to resolve any outstanding issues between the proponent and Aboriginal organization(s)";
- the Policy will require consultation to be initiated at the earliest stage of a land or resource development activity;
- the Policy will require a proponent and an impacted Aboriginal group to exchange information relevant to the proposed development activities and to the aboriginal rights claimed, and will require meaningful good faith discussions between the parties;
- the Policy will require a proponent to provide "any consultation supports or capacity funding reasonably required by Aboriginal organization(s)" in the consultation process – simply put, this means that a proponent will be required to pay for certain unspecified categories of an Aboriginal group's consultation costs, including the costs associated with the Aboriginal group's position as to the impact of the proponent's proposed activities on the asserted Aboriginal rights;
- the Policy prescribes the expectation that, during the consultation process, a proponent will discuss project-specific opportunities with the impacted Aboriginal group "with the goal of achieving a positive, sustainable and mutually beneficial outcome" – this arguably introduces an expectation of project benefits in any agreement achieved in the consultation process; and
- the Policy also requires a proponent to pay financial consideration in regard to any necessary accommodation of the infringement of Aboriginal rights.
The Policy's emphasis on a proponent-led consultation may prove to be a positive change, as this will likely allow a greater measure of control over the process by the proponent.
However, the Policy's provisions regarding capacity funding, benefits expectations and accommodation compensation introduce unconventional consultation requirements and costs. These provisions effectively formalize elements which have not traditionally been required to form part of the consultation process (although they can, in practice, be matters which are negotiated and form part of an access or other form of agreement achieved in consultation).
New Consultation Guidelines to be Proclaimed
NL is presently preparing Consultation Guidelines which will implement the Policy in a regulatory framework. It is anticipated that the Consultation Guidelines will prescribe the detailed procedures and timelines which will govern the consultation process, including the process leading up to decisions by NL as to land use and resource developments. It is understood that the Guidelines will address consultation respecting specific activities such as mineral exploration, environmental assessment of resource developments and post-environmental assessment permitting.
What this means for you
The Policy has wide-ranging implications. Most significantly, it imposes new procedural and financial obligations on land use and resource proponents. It is anticipated that the Consultation Guidelines will clarify these new obligations. The Consultation Guidelines will themselves involve consultation with land and resource use stakeholders and with a broad range of Aboriginal groups. It is not expected that the Guidelines will be formalized until year-end 2013. This means that there will be some uncertainty in the consultation process until the Consultation Guidelines are settled and published.