Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.
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20 LEXPERT MAGAZINE | OCTOBER 2019 recognition of Indigenous rights." Closer to home in BC's mining land- scape there is also attention being paid to a new regulatory framework. The BC Mining Law Reform Network, set up in 2019, "represents nearly 30 local, provincial and national organiza- tions from a wide range of sectors, including citizen and community groups, First Nations, academics, and social justice and environmen- tal organizations." https://reformbcmining.ca James Clinton and R.J. Reid, of McCar- thy Tétrault LLP, provide this overall sum- mary of the Reform Network's concerns and reports so far: BC Mining Law Reform was created in May 2019 to push for certain changes in the BC mining regulatory landscape. ey recently released a series of reports with rec- ommendations that address, in their words, "serious shortcomings in British Columbia's mining regulatory regime." e reports offer 69 recommendations that range from broad policy updates to small changes in current legislation. ey include the adoption of free, prior, and in- formed consent for indigenous communi- ties affected by mining projects and major changes to BC's mineral tenure system. e recommendations place an emphasis on more powerful and active environmental management and a more aggressive regime for government and affected individuals to challenge natural resource companies for environmental damage. THE FOLLOWING ARE NINE SIGNIFICANT RECOMMENDATIONS MADE BY THE GROUP TO REFORM CERTAIN ASPECTS OF MINING LAW AND POLICY: ENVIRONMENTAL ASSESSMENT BC Mining Law Reform recommends that the forthcoming regulations for the new BC Environmental Assessment Act include a requirement for stringent environmental assessments for all mines, for mining explo- ration activities when requested by First Na- tions or local communities, and for all major expansions of existing mines. ey further recommend that the regulations ensure a fair and balanced process that includes am- ple and stable funding for environmental as- sessment participants and full consideration of perpetual-care costs. BC's new Environ- mental Assessment Act is expected to come into force near the end of 2019. MINERAL TENURE BC Mining Law Reform recommends adopting a more discretionary approach to mineral tenures that would require landowner consent for mining activities and ensure conformity with the regional land-use plans of Indigenous and local groups. e network also recommends mandating "no-go zones" to protect all designated Old-Growth Management Areas, Wildlife Habitat Areas, and other sensitive areas. INDIGENOUS GOVERNANCE AND MINING BC Mining Law Reform endorses the con- cept of free, prior, and informed consent from the United Nations Declaration on the Rights of Indigenous Peoples. e network recommends implementation of free, prior, and informed consent of affected Indig- enous communities for all mineral tenure, mining exploration, siting, and other activi- ties, and further recommends establishing "BC Mining Law Reform endorses the concept of free, prior, and informed consent from the United Nations Declaration on the Rights of Indigenous Peoples." CLINTON, JAMES MCCARTHY TÉTRAULT LLP nal title in Canada, over a limited area of land. e potential impact of the decision on mining companies remains unclear, giv- en the very specific facts on which the deci- sion was based. In certain circumstances the Crown owes a duty to consult with the Ab- original peoples and to accommodate them where appropriate, even where Aboriginal rights have not been proven. "e extent of consultation and accom- modation required of the Crown will vary depending on the circumstances. e im- pact of consultation obligations and Ab- original rights with respect to reconnais- sance, exploration and mining operations rights will thus depend on the individual circumstances of a given case. "In May 2016, Canada officially re- moved its objector status to the UN Declaration on the Rights of Indigenous Peoples and announced its intent to adopt and implement the Declaration in accor- dance with the Canadian Constitution. Partly in recognition of the UN Decla- ration on the Rights of Indigenous Peo- ples, the Canadian government recently launched a national engagement with Canada's Aboriginal peoples to help de- velop a Recognition and Implementation of (Indigenous) Rights Framework. is framework, if and when implemented, would help ensure that the starting prem- ise for all federal government action is the