Canadian Nuclear
Safety Commission
Commission canadienne
de sûreté nucléaire
INLA Nuclear Inter Jura
Congress Buenos Aires
Argentina
October 20-24 2014
THE CONSTITUTIONAL
DUTY TO CONSULT
ABORIGINAL PEOPLES IN
CANADA
Jacques Lavoie
Senior General Counsel
Canadian Nuclear
Safety Commission
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Canadian Nuclear Safety Commission
Regulatory Agency – Administrative Tribunal
Exclusive Jurisdiction over All Matters Nuclear in Canada
Environment, Health, National Security & International Obligations
Licensing – Compliance and Enforcement
Supported by 850 staff – 7 Regional Offices
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CNSC Offices in Canada
Headquarters in Ottawa
5 offices at nuclear power plants
1 site office at Chalk River
4 regional offices
Staff: ~840+
Total number of licences: 3,300
Calgary Western
Regional Office
Saskatoon Uranium Mills and
Mines Division Regional Office
Gentilly-2
Headquarters (HQ) in Ottawa
5 site offices at power reactors
1 site office at Chalk River
4 regional offices
Chalk River
Bruce A & B
Point Lepreau
HQ
Laval Eastern Regional Office
Darlington
Pickering
Mississauga Southern Regional Office
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CNSC Regulates Facilities and Activities
Nuclear power plants
Uranium mines and mills
Uranium fuel fabricators and
processing
Nuclear substance processing
Industrial and medical applications
of nuclear substances, such as
nuclear medicine and cancer
treatment centers
Research labs and educational
facilities
Export/import of controlled nuclear
substances, equipment and
technology
Waste management facilities
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Uranium Mines and Nuclear Facilities
Uranium City
Whiteshell
Matoush
AECL
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Aboriginal Peoples
Includes First Nations, Inuit, Métis and NonStatus Indians.
Almost 1.5 million, more than 4% of the
Canadian population spread over 600 local
governments and bands.
In addition to the native reserves that were
established by the government for Aboriginal
peoples over the years as a result of treaties
and federal legislation, the creation of the
Nunavut territory in 1993 resulted in the first
major change to Canada's map since 1949.
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S. 35 of the Constitution
Section 35 of the Constitution Act, 1982 recognizes
and affirms the existing aboriginal and treaty rights of
the aboriginal peoples of Canada. Section 35 states:
35. (1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized
and affirmed.
(2) In this Act, "aboriginal peoples of Canada"
includes the Indian, Inuit and Métis peoples of
Canada.
(3) For greater certainty, in subsection (1) "treaty
rights" includes rights that now exist by way of land
claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act,
the aboriginal and treaty rights referred to in
subsection (1) are guaranteed equally to male and
female persons.
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Aboriginal Consultation
•Section 35 of the Canadian Constitution
(1982): duty to consult exist where
aboriginal interests may be adversely
impacted by a decision from the
government.
•Historic and modern Treaties were
concluded but there is a large number of
unresolved land claims.
•Government institutions and agencies
must consult with aboriginal peoples and
provide accommodation.
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Haida, Taku and Mikisew (2004 & 2005)
In Haida, the Court stated that duty to consult is
grounded in the Honour of the Crown and it arises
when the Crown has knowledge, real or
constructive, of the potential existence of the
Aboriginal right or title and contemplates conduct
that might adversely affect it.
Consultation in good faith is required but the duty
does not necessarily give Aboriginal peoples a veto
in regard to the decision to go ahead with the
project.
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S. 52 of the Constitution
Failure to meaningfully consult with
Aboriginal peoples may result in a
governmental decision or legislation to be
quashed by the courts.
Major resource or energy development
project: significant financial implications and
delays.
Environmental assessments and licensing.
Traditional Aboriginal rights and knowledge.
Crown to act honourably and in good faith.
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United Nations Declaration on the Rights
of Indigenous Peoples (UNDRIP)
Parliament has not incorporated the agreement
into its domestic law so the Declaration remains an
aspirational document that does not change
Canada’s existing legal regime. On 12 November
2010, when Canada announced that it had
endorsed the Declaration, it noted that:
Although the Declaration is a non-legally binding
document that does not reflect customary
international law nor change Canadian laws, our
endorsement gives us the opportunity to
reiterate our commitment to continue working
in partnership with Aboriginal peoples in
creating a better Canada.
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The ESPOO Convention
In regard to the Espoo Convention, the
obligation to conduct environmental
assessments has been implemented under
the Canadian Environmental Assessment Act
2012 (CEAA 2012).
The Environment Minister is responsible to
determine which projects require an
environmental assessment (EA) to be
conducted and this is done for projects that
have the potential to cause adverse
environmental effects.
New uranium mining projects and nuclear
facilities would require an EA.
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The Commission and the Duty to Consult
In Carrier Sekani, the Court concluded as follows:
In Paul v. British Columbia (Forest Appeals Commission)
the Supreme Court of Canada decided “there is no
principled basis for distinguishing s. 35 rights from other
constitutional questions.”
In dealing with whether administrative tribunals have the
power to decide constitutional law questions, the Court in
Paul stated
The essential question is whether the empowering
legislation implicitly or explicitly grants to the tribunal the
jurisdiction to interpret or decide any question of law. If it
does, the tribunal will be presumed to have the
concomitant jurisdiction to interpret or decide that
question in light of s. 35 or any other relevant
constitutional provision.
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Thank you!
Thank you for your attention.
Questions?
Jacques.Lavoie@cnsc-ccsn.gc.ca
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