Aboriginal Consultation Environmental Assessment And Regulatory Review In Canada

Table of Contents ; Detailed Table of Contents ; Table of Cases, Statutes, Constitutional Provisions and Tribunal Decisions ; Acknowledgements; Prologue; Relationships in the Project Development Process; Defining Aboriginal Rights and Treaty Rights; Fundamental Principles of Environmental Assessment and Regulatory Review; Development of the Law of Aboriginal Consultation by the Supreme Court of Canada; Case Studies Involving Aboriginal Consultation and the National Energy Board of Canada; Concluding Observations; Notes; Bibliography; Index.

Supreme Court of Canada decisions have defined a general framework for the "duty to consult" Aboriginal peoples and accommodate their concerns over natural resource development, but anticipate the details of that framework will be expanded upon in the future. Aboriginal Consultation, Environmental Assessment, and Regulatory Review in Canada offers a paradigm that advances that discussion. It proposes an integrated and robust planning model for natural resource extraction allowing Aboriginal peoples, industry, governments, tribunals, and the Courts to all make contributions to reconciliation in the context of sustainable development and environmental protection. Kirk Lambrecht surveys the law of actual and asserted Aboriginal rights and historical and modern Treaty rights in Canada and discusses the national and international purposes of environmental assessment and regulatory review. He appraises the fundamental principles of Supreme Court of Canada jurisprudence defining aboriginal consultation and accommodation as a constitutional imperative and uses case studies involving the National Energy Board to demonstrate how integrated process has evolved over time. Finally he offers general conclusions on the practical utility, and outstanding challenges, involving an integrated planning paradigm.

Describes the requirements of the British Columbia Environmental Assessment Act, intended to assist project proponents, government agencies, First Nations, and the public in understanding the provincial environmental assessment process. Provides information on the requirements for filing applications for project approval under the Act; the process for reviewing those applications; the project report and its review; concurrent regulatory approvals; the Environmental Assessment Board hearing process; category and other assessments; and project implementation and compliance, including certification, monitoring of effects, evaluation, reporting, and enforcement of the Act. Appendices include: guidelines and references for environmental assessment; advice on achieving effective public participation in the environmental assessment process; government and First Nations perspectives on Aboriginal issues; and texts of the Reviewable Projects Regulation and the Environmental Assessment Act (Bill 29).

Co-management boards, established under comprehensive land claims agreements, have become key players in land-use planning, wildlife management, and environmental regulation across Canada’s North. This book provides a detailed account of the operation and effectiveness of these boards while addressing a central question: Have they been successful in ensuring substantial Indigenous involvement in policies affecting the land and wildlife in their traditional territories? While identifying constraints on the role Northern Indigenous peoples play in board processes, Graham White finds that overall they exercise extensive decision-making influence. These findings are provocative and offer valuable insights into our understanding of the importance of land claims boards and the role they play in the evolution of treaty federalism in Canada.

"[W]hen precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it." Chief Justice Beverley McLachlin, Supreme Court of Canada, Haida Nation v. British Columbia, 2004. Canada's Supreme Court has established a new legal framework requiring governments to consult with Aboriginal peoples when contemplating actions that may affect their rights. The nature of the duty is to be defined by negotiation, best practices, and future court decisions. According to Professor Newman, good consultations are about developing relationships and finding ways of living together in the encounter that history has thrust upon us. Professor Newman examines Supreme Court and lower court decisions, legislation at various levels, policies developed by governments and Aboriginal communities, and consultative round tables that have been held to deal with important questions regarding this duty. He succinctly examines issues such as: when is consultation required; who is to be consulted; what is the nature of a "good" consultation; can consultation be carried out by quasi-judicial agencies and third parties; to what extent does the duty apply in treaty areas; and what duty is owed to Métis and non-status Indians? Professor Newman also examines the evolving duty to consult in international law, similar developments in Australia, and the philosophical underpinnings of the duty.