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
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions