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w w w . C A N A D I A N L a w y e r m a g . c o m A P R I L 2 0 1 8 49 such as this, the proposed legislation states that "at least" two of the five members have to come from the regu- lator. "They have expertise. But this would give them a new role in the assessment process, which is a problem. Their man- date is to promote exploration," says Ginsberg, suggesting this creates a con- flict of interest. Before the legislation was drafted, the federal government appointed an expert panel to engage in consulta- tions and make recommendations. The report was issued last spring and Main- ville says it is disappointing that the fed- eral government is not adopting more of its suggestions. "We had a very good expert panel report. First Nations really engaged with the panel. What it wanted was more robust sustainability measures," says Mainville. In terms of the public interest test, sustainability should not be just one of the factors but there should be a requirement for a net contribution to sustainability, she says. As well, Main- ville believes too much discretion is ultimately left with the federal govern- ment in the assessment process. "First Nations are disappointed. We expected co-decision-making," says Main- ville, in explaining that the assessment framework should be similar to a treaty relationship. "It is about working together. It is not about having a veto. A veto has no place in a treaty relationship. The goal is not to end up in court every time." Aspects of the proposed changes that are still to be decided include the regu- lations for "designated projects" that will be subject to assessment and the criteria that will permit the government agency to temporarily suspend the time deadlines for a report to be completed. One part of the legislation that seems to be receiving praise from all sides is the commitment to more gov- ernment involvement at an early stage. The mandatory early planning process is designed to address potential issues with proposed projects and engage with affected communities and Indigenous groups. The federal government has committed $1 billion over the next five years to the overall implementation of the legislative changes. In the past, there have not been significant government resources com- mitted to the early planning stage, notes Powell. "We haven't seen the Crown willing to do that. The challenge now with the new agency is will it step in and make sure the early planning is adequate? They will need expertise and resources. None of it will matter if you don't have boots on the ground," Powell says. Ginsberg has a similar view about the proposed early planning measures. "Early engagement is a good develop- ment if it is properly funded," he says. As the bill moves through the leg- islative process, all parties say they are hopeful that amendments along the way and the regulations that are drafted will help address their concerns. "We appreciate the federal govern- ment proceeding with it," says Gins- berg. "We want them to get it right." FULL DAY IN-CLASS & LIVE ONLINE ACCESS This annual conference gives executives and Corporate Commercial & Technology lawyers an opportunity to network and learn about the most recent and significant developments in Canadian and international Technology Law - all provided by leading practitioners. To inquire about registrations and group rates contact us at 416-609-5868 | Toll Free: 1-877-298-5868 Email: cpd.centre@thomsonreuters.com Please mention Tech Law Conference in the subject line. 2018 TECHNOLOGY LAW SPRING FORUM MAY 28-29, 2018 CHAIRED BY Donald B. Johnston, Aird & Berlis LLP Natasha Ell Saunders, Vice President, Legal Affairs, TekSavvy Solutions Inc. Vantage Venues 150 King Street West, 16th Floor, Toronto ON, M5H 1J9 REGISTER NOW Save 10% before April 16, 2018 WWW.TECHLAW-CONFERENCE.CA Powered by Untitled-3 1 2018-03-14 10:49 AM

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