Stewart McKelvey

lands outside the recognized land claims areas of the Labrador Inuit and the Labrador Innu (which are discussed below). On April 23, 2013, the Government of Newfoundland and Labrador issued the "Aboriginal Consultation Policy" which formalizes the relevant governmental policy. The Aboriginal Consultation Policy has particular application to the NunatKavut, the Naskapi Nation of Kawawachikamach and a number of Quebec Innu communities which have asserted land claims in Labrador. The aboriginal title and rights claims asserted by these groups have not been accepted for negotiation; however, the Policy  recognizes the rights of such communities to be consulted respecting developments which are proposed for the areas claimed.  Among the key guiding principles of the Aboriginal Consultation Policy are the expectations that consultation will be meaningful and conducted in good faith, will in many cases be effectively delegated to project proponents, and will be timely. Another principle is that the project proponent will be responsible to provide "reasonably-necessary capacity-funding" to allow aboriginal claimants to engage consultation support. The Policy contemplates that the detailed process and timelines governing the formal consultation process will be prescribed in Consultation Guidelines which are presently under development. Comprehensive Land Claims Agreements While the common law duty to consult and, as necessary, accommodate can have implications for business and development in Labrador, the important role of certain aboriginal groups in Labrador has also led to even more significant legal changes, reflected in the negotiation of comprehensive land claims agreements with both the Labrador Inuit and Labrador Innu. Such land claims agreements have an even greater impact on business and development in the affected portions of Labrador and can add an additional layer of regulation to be considered. Presently, there is a concluded land claims agreement between the federal and provincial governments and the Labrador Inuit, known as the Labrador Inuit Land Clams Agreement, which was signed by the parties on December 1, 2005 and given force of law through both provincial and federal enactments. Furthermore, the Labrador Innu are currently in negotiations with the federal and provincial governments towards the completion of their own comprehensive land claims agreement. While this has not yet been completed, the parties have signed an Agreement-in-Principle which provides a helpful overview of what is likely to be included in the final binding agreement. Both the concluded Labrador Inuit Land Claims Agreement and the Labrador Innu Agreement-inPrinciple have several significant features in common, and some guidance can be taken from the Labrador Inuit Land Claims Agreement as to what is ultimately expected to be included in the final Labrador Innu Agreement. In particular, both provide for different levels of aboriginal influence and rights in different designated areas, and each designates affected lands in a similar way. Some of the key categories of lands include the following: • Lands and waters have been designated as forming part of the "Labrador Inuit Settlement Area" or "Labrador Innu Settlement Area" ("LISA"), wherein the Labrador Inuit and Labrador Innu will respectively have an enhanced set of rights as specified in the relevant agreement. In the concluded Labrador Inuit Land Claims Agreement, such rights include the right to be consulted in respect of certain activities in the area, to receive shared royalties on certain subsurface resource, and to require that proponents of a "Major Development" in LISA lands enter into an IBA. • Smaller subsets of Labrador Inuit and Labrador Innu lands have been designated respectively as "Labrador Inuit Lands" or "Labrador Innu Lands" (collectively, "LIL"). In LIL, the Labrador Inuit and Labrador Innu will not only have enhanced rights, but also the jurisdiction to make their own laws on certain subjects. • Under the Labrador Inuit Land Claims Agreement, the Labrador Inuit (via the Nunatsiavut Government) have been granted fee simple to the surface rights in LIL, and their expanded jurisdiction includes the power to make laws respecting land tenure and transfers, and licensing and permitting of certain activities, such as mineral exploration. In LIL, the usual legal process for transferring and acquiring interests in real property will not apply and is replaced by a special regime administered by the Nunatsiavut government. More recently, the Nunatsiavut government has also passed its own Nunatsiavut Environmental Protection Act which impacts on the environmental assessment regime to be navigated in such lands. Moreover, the Labrador Inuit Land Claims Agreement stipulates that an IBA is required in respect of any "Development" in LIL. • Certain other specific areas have been designated as "Economic Development Areas" under the Labrador Inuit Land Claims Agreement or "Economic Major Development Impacts and Benefits Doing Business in Atlantic Canada SUMMER 2013 7

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