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Indigenous Considerations in the Expert Panel Report on Federal Environmental Assessment Processes

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Law, Regulatory, Regulatory Compliance
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Our April 7 post on the report of the Expert Panel reviewing federal environmental assessment processes noted that the report contains recommendations for greater inclusion of Indigenous peoples in federal environmental assessment processes. This post looks in more detail at the report’s key recommendations and commentary on that subject. Overall, the Expert Panel report envisions a much greater level of direct Indigenous participation in environmental assessment, including at the decision-making level, than is currently the case, as well as significantly enhanced consideration of impacts on Indigenous rights and interests in federal environmental assessments.

Consent

The Expert Panel report envisions Indigenous peoples as being on par with other levels of government in federal environmental assessments. The report refers to the “inherent jurisdiction” of Indigenous groups over their traditional territories, and, consistent with the federal government’s adoption of the United Nations Declaration of Rights of Indigenous Peoples (“UNDRIP”) and its “free, prior, informed consent” (“FPIC”) principle, recommends that Indigenous peoples who are impacted by a project should have the right to withhold consent to the project. The Expert Panel report expects the right to withhold consent to be exercised reasonably, with some form of dispute resolution process available to review the reasonableness of a decision to withhold consent. Where there is a disagreement between Indigenous groups about whether any given Indigenous group is affected by a project, and should therefore have a right to give or withhold consent over the project, the report suggests that the disagreement should be resolved by the Indigenous groups themselves in accordance with their own laws and traditions.

The Expert Panel report does not directly address the consequences of an Indigenous group withholding its consent, in particular whether a project could still proceed if it had otherwise received all necessary federal or provincial approvals. As a result, it is not clear if the Expert Panel is recommending that each Indigenous group should have a veto over projects that affect it.

Indigenous Environmental Assessment Processes

The Expert Panel report notes that some Indigenous groups have legal rights to participate in environmental assessment processes, pursuant to modern land claims agreements, self government agreements, and federal laws. The report suggests that Indigenous groups without modern treaties should, if they wish to do so, be able to establish their own environmental assessment processes, and that federal environmental assessment processes should support Indigenous jurisdiction in that regard.

The Expert Panel report does not address the legal or jurisdictional basis for Indigenous groups establishing their own environmental assessment processes (other than those created under modern land claims agreements). To the extent that this would be enabled by federal environmental assessment laws, the report does not address the federal government’s jurisdiction to provide for the application of Indigenous environmental assessment processes to provincial Crown lands or projects on provincial Crown lands.

Impact on Indigenous Peoples and Lands as Trigger for Federal IA

Under the current Canadian Environmental Assessment Act, 2012, (“CEAA 2012”) when a federal assessment is triggered for a project, the environmental effects that must be considered include the effects of changes in the environment on Indigenous culture and heritage and Indigenous use of lands and resources for traditional purposes. The Expert Panel report recommends that federal environmental assessments should be conducted on projects that have potential impacts on federal interests that are consequential to present and future generations. The report identifies Indigenous peoples and lands as one of those federal interests. Indigenous lands are not limited to federal lands, meaning that impacts on Indigenous peoples or their lands from projects within provinces or on provincial Crown lands could serve to trigger federal environmental assessments. This would greatly expand federal involvement in environmental assessments in provinces beyond current levels.

The Expert Panel report also suggests that, when assessing potential impacts of activities on Aboriginal and treaty rights, asserted rights should be assessed along with established rights. The report does not address how environmental assessment processes should address situations where disputes arise over whether there is a credible basis for the asserted right.

Formal Participation in Project Committees and Review Panels

The Expert Panel report recommends that, for each project subject to the federal environmental assessment process (estimated to be in the hundreds annually), a project committee would be established, along with a separate committee of government experts. The project committee would have representatives of Indigenous groups as well as community organizations, non-governmental organizations, the proponent and members of the public. The project committee, along with the government expert committee, would participate in environmental assessments overseen by the proposed new Impact Assessment Commission. The two committees would review the impact statement for the project to identify for the Impact Assessment Commission topics of consensus and disagreement.

The report also suggests that Indigenous peoples would be represented on any review panel established to make environmental assessment decisions on a project where there are important issues of non-consensus about the project’s impacts and mitigation measures.

Enhanced Participation Would Not Replace Crown’s Duty to Consult and Accommodate

While the Expert Panel report recommends direct participation by Indigenous representatives in environmental assessment structures and decision-making, the report states that this would not replace the need for direct Crown consultation and accommodation discussions with Indigenous groups. The report proposes that the Impact Assessment Commission would be charged with the responsibility of ensuring that the Crown’s consultation and accommodation obligations are met. In this regard, the Expert Panel report distinguishes between impact mitigation measures established through environmental assessment processes and accommodation measures arising from direct Crown consultations with Indigenous groups.

Capacity Funding

The Expert Panel report states that capacity constraints are a barrier to effective Indigenous participation in environmental assessments. The report recommends that a long-term funding program be put in place to allow development of environmental assessment capacity suited to the needs of specific Indigenous groups. This would allow Indigenous groups to use their time and resources efficiently during project environmental assessments, and is needed to create conditions where Indigenous groups are able to exercise the “free, prior, informed consent” contemplated under UNDRIP. The report states that Indigenous groups should be able to define for themselves their respective capacity needs and how to address those needs.

Environmental Assessments and Impact Benefit Agreements

The Expert Panel report notes that Impact Benefit Agreements (“IBAs”) are private contractual arrangements between project proponents and Indigenous groups. The report notes that IBAs have become an important way for Indigenous groups to address project concerns with proponents. However the report suggests that government has a role in ensuring that Indigenous groups have a full appreciation of potential project impacts prior to negotiating an IBA. The report also suggests that enhanced consideration of Indigenous interests in federal environmental assessments would reduce the need for Indigenous groups to rely on those private contractual arrangements to address concerns related to accommodation of their rights and interests. The report does not, however, make any recommendations to the federal government about IBAs or how they should be treated under federal environmental assessment laws.

Indigenous Knowledge

The Expert Panel report recommends that federal environmental assessment legislation require that Indigenous knowledge be integrated into all phases of environmental assessment.  Indigenous groups would determine for themselves how Indigenous knowledge studies should be conducted, and would enter into agreements on how those studies should be integrated into environmental assessments.

Clearly, the Expert Panel report envisions a role for Indigenous participation in planning, conduct and decision-making for, and consideration of Indigenous interests in, federal environmental assessments that far exceeds what occurs today under CEAA 2012.  The Expert Panel acknowledges that implementing recommendations for increased Indigenous participation, along with other recommendations in the report, may add to the costs of federal environmental assessments and may extend timelines. However, the report argues the model it proposes will “meet the test of financial prudence and will effectively balance the different perspectives regarding the time required” for environmental assessments.

As noted in our April 7 post, the federal government is seeking comment on the recommendations in the Expert Panel report prior to May 5, 2017. The federal government will then consider the report and responses to the recommendations this fall, with a view to introducing legislation in 2018.