Canada: Indigenous Considerations In The Expert Panel Report On Federal Environmental Assessment Processes

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.