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With the Supreme Court of Canada’s (SCC) recent decision that Canada’s Impact Assessment Act (the IAA) is unconstitutional in part, it is unclear what types of “effects” on Indigenous Peoples – according to the IAA’s definition of “effects within federal jurisdiction” – will be sufficient to ground a federal decision. It is likely that the effect will need to have a non-trivial impact to be valid. This was a key point emphasized during the October Indigenous Law Insights webinar, presented by Sander Duncanson, partner and Co-Chair, Regulatory, Indigenous and Environmental.
The SCC ruled that the definition of effects as “any change” to the health, social or economic conditions of Indigenous Peoples is too broad. The impact would have to be on an entire First Nations reserve, for example. Parliament is likely to amend or reform the IAA following the SCC’s decision.
Sander also discussed the recent Supreme Court of British Columbia (the Court) decision regarding the Gitxaala v. British Columbia (Chief Gold Commissioner) case. The Court ruled that the province had a duty to consult Indigenous groups when registering mineral claims under the Mineral Tenure Act. The case is the first to consider the effects of the province’s Declaration of the Rights of Indigenous Peoples Act (DRIPA), with the Court confirming that DRIPA and the United Nations Declaration on the Rights of Indigenous Peoples should be used as interpretive aids and do not create justiciable rights.
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