Stewart McKelvey

Knowing the lay of the land Aboriginal rights and land claims in Labrador By Colm St. Roch Seviour and Steve Scruton K nown as the Big Land, the Labrador region of Newfoundland and Labrador boasts great potential big business, including a wealth of opportunity and development in the Canadian resource sector. Yet, with this potential comes some unique considerations, ones that are often common to doing business in the north. Those interested in venturing to Labrador to pursue such opportunities should be aware that, like much of the North, Labrador has a rich cultural history. Much of this history is based on the aboriginal roots in the region. In particular, there are several aboriginal groups which have aboriginal title and rights claims in Labrador, including the Labrador Inuit, the Labrador Innu and the Nunatukavut (formerly the Labrador Métis), as well as a number of Québecbased groups asserting claims into western Labrador. In recent years, resource development in Labrador has increasingly involved careful compromise and cooperation with legitimate local aboriginal claimants. This, in turn, has increasingly mandated a special approach to conducting business in the region. Associated with that, there are a variety of special legal and regulatory features to be aware of from a business and development perspective. We have also seen the growth of successful partnerships and co-ventures between Labrador business and aboriginal groups as a result. The Crown Duty to Consult For many years, the courts in Canada have recognized that where a regulatory approval or other government action may adversely impact an asserted 6 SUMMER 2013 Doing Business in Atlantic Canada aboriginal claim, even where that claim is unproven, a "duty to consult" may arise on the part of the government. The precise nature and extent of such consultation will depend on the strength of the asserted aboriginal right and the effect of the contemplated impact or interference. In some cases, it may be necessary to accommodate the relevant aboriginal interest. While the duty to consult is technically a Crown duty, it can have direct and indirect implications for businesses seeking government approval. In practical terms, this can mean that before government approval is given to a particular development or stage in that development, government will first need to consult with the relevant aboriginal groups asserting rights in the region. In the event that accommodation of aboriginal interests is required, the terms or scope of the approval may be modified or limited, and in some cases, it may even be necessary for the proponent of a development to enter into a formal Impact and Benefits Agreement ("IBA") with the aboriginal group in question. An IBA is intended to mitigate the potential negative effects of development for local aboriginal groups. This may be achieved through a variety of requirements for the proponent, such as protection of the environment and heritage sites, requirements for education, training and hiring of aboriginal persons, and even direct financial compensation or resourcesharing with the affected aboriginal groups. Respecting resource development approval in Labrador, the Government of Newfoundland and Labrador has in recent years developed an informal aboriginal rights consultation protocol covering

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