Canada: Indigenous Interests In Focus – Impact Assessment Act Introduces Substantive Measures For A Renewed Relationship With Indigenous Peoples

On February 8, 2018, the federal government introduced Bill C-69, Part 1 of which tables the Impact Assessment Act (IAA), proposed federal legislation to replace Canada's current environmental assessment legislation, the Canadian Environmental Assessment Act, 2012 (CEAA 2012), as we outline here.

An overarching theme of Bill C-69 and the IAA is the federal government's clearly-stated intention to pursue reconciliation and renewed relationships with Indigenous peoples "based on recognition of rights, respect, co-operation and partnership."1 In particular, the IAA sets out to achieve the government's stated commitments towards Indigenous peoples through a number of substantive measures. Broadly, these measures are focused on:

  1. increasing opportunities for Indigenous participation, cooperation and partnership with government in impact assessment processes and decision-making;
  2. enhancing recognition and consideration of Indigenous rights and interests; and
  3. enhancing consultation and engagement opportunities for Indigenous groups.

Increased Indigenous participation, cooperation and partnership opportunities

The IAA introduces several measures that could significantly increase opportunities for Indigenous groups to be actively involved in impact assessments (IAs) and decision-making, depending on how they are implemented. Of particular note is the authority granted to the Minister to enter into agreements or arrangements with Indigenous "jurisdictions" on a broad range of subject matters.2 Such agreements may cover matters including the assessment of designated project effects; the exercise of powers or performance of duties or functions by the Indigenous jurisdiction in relation to impact assessments; coordination, consultation, exchange of information, and the determination of factors to be considered in relation to the effects assessment of designated projects; the joint establishment of review panels and how IAs will be conducted by the review panel; and the joint establishment of committees to carry out regional effects assessments.3 The new Impact Assessment Agency of Canada (Agency) is granted authority to negotiate certain agreements or arrangements on the Minister's behalf.4

The Minister also has the power to substitute an Indigenous jurisdiction's own process for assessing the effects of designated projects for the IA, while the Agency has authority to delegate to Indigenous jurisdictions the carrying out of any part of an IA and the preparation of the IA report. Substituted processes under CEAA 2012 were meant to enable the provinces to undertake reviews in place of the federal government and avoid duplication. CEAA 2012 also allowed for substitution to Indigenous groups that are parties to a modern treaty or separate self-government agreement. The proposed provisions under the IAA would expand the number of situations in which substitution/delegation could occur with Indigenous groups.

While each of these types of agreements and arrangements are discretionary on the part of either the Minister or Agency, if exercised, they give rise to potential opportunities that would significantly shift assessment and decision-making authority from government to Indigenous groups whose rights may be affected by a project. In our view, the true extent to which these measures will have any meaningful impact on the impact assessment regime will largely depend on the government's willingness to implement them in practice, and particularly the degree to which they are willing to enter into such agreements with those Indigenous groups which are not parties to modern treaties and whether they will offer up authority beyond projects on modern treaty or reserve lands.

Enhanced recognition of Indigenous rights, interests and knowledge

The federal government's efforts to enhance recognition and respect for Indigenous rights and interests are represented throughout the IAA. In respect of the carrying out of an IA, the factors that must be taken into account include not only the adverse impacts of the project on Indigenous peoples' s. 35 rights recognized and affirmed in the Constitution Act, 1982, but also more broadly the impact of a project on any Indigenous group. Other Indigenous-related factors that must be considered in an IA include: traditional knowledge, if provided; considerations related to Indigenous cultures; community knowledge; and any assessment of the effects of a project that is conducted by or on behalf of an Indigenous governing body.

Further, in determining whether a project is in the public interest, the Minister or Governor in Council, as applicable, must also consider the impact that the project may have on any Indigenous group, in addition to any adverse impacts on s. 35 rights.

These IA considerations are much broader than those required at common law by the Crown's duty to consult. The subject matter of the duty to consult is restricted to the potential impacts of a Crown decision or action on the constitutionally recognized and affirmed s. 35 rights of Aboriginal peoples of Canada and does not extend to other potential impacts on Indigenous communities or peoples more generally. It is also broader than what is currently required to be considered under CEAA 2012 vis-à-vis impacts to Indigenous groups.

We note, however, that with threshold decisions such as whether to designate a physical activity as a designated project or whether an IA is required for a project, the Minister or Agency, as applicable, need only consider the potential for adverse impacts on s. 35 rights rather than broader impacts on Indigenous peoples generally.5

Enhancing consultation and engagement opportunities for Indigenous groups

The IAA introduces new measures to enhance opportunities for consultation and engagement with Indigenous groups at different stages. Notably, at the new early Planning Phase, the Agency is required to "offer to consult" with any applicable "jurisdiction" and with any Indigenous group that may be affected by a project.6 This signals a shift towards early and increased Crown-Indigenous consultation, whereas the current practice is heavily proponent-driven. The IAA does not expressly address the proponent's role in consultation or indicate the extent to which the proponent will be expected to carry out consultation on behalf of the Crown. These details may be provided in the regulations, guidelines or determined on a case-by-case basis.

To facilitate public and Indigenous participation in IA processes as well as in regional and strategic effects assessments, the IAA requires the Agency to establish a participant funding program.7 Although the IAA refers to "public" participation under the program, we expect this program would extend to Indigenous groups since the federal government has indicated that participant funding programs will be enhanced to support the participation of the public and Indigenous peoples by expanding eligible activities, increasing funding levels, and enhancing the process to reduce administrative delays. Details of the participant funding program, and the degree to which it will vary from the existing participant funding programs at CEAA, the NEB, and CNSC, will likely be set out by regulation.

To increase opportunities for Indigenous participation at a higher-level planning stage, the IAA requires the Agency to establish an Indigenous "Advisory Committee" with the mandate to advise the Agency with respect to Indigenous interests and concerns in respect of assessments under the IAA, and the committee must include Indigenous persons.8 It is unclear if the Advisory Committee will become involved in individual assessments or if its mandate will be at a higher level. The Agency also has an express object to "engage in consultation with the Indigenous peoples of Canada on policy issues related to" the IAA.9

UNDRIP Principles

One of the most notable things about the proposed legislation is what it is missing. There is not a single reference to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) or any requirement for government to seek or obtain free, prior and informed consent (FPIC) by Indigenous peoples in making decisions or granting authorizations under the IAA. While this may be seen as contrary to the federal government's "unqualified support" for UNDRIP, it is consistent with how the federal government has subsequently qualified the way in which it intends to implement UNDRIP and the principles of FPIC. The IAA amendments appear to reflect the previously-stated intentions of the federal government to implement the principles of UNDRIP (and specifically FPIC) by increasing opportunities for Indigenous participation in decision-making ("aiming to secure consent"), rather than by implementing a stricter standard of consent in respect of all decisions affecting Indigenous peoples or rights. Through the agreement, arrangement, substitution and delegation approaches discussed above, however, there is certainly the potential for Indigenous groups to be able to negotiate consent principles into decision-making under the IAA.

Indigenous vs. Aboriginal terminology

In keeping with the federal government's preference for the term "Indigenous" over "Aboriginal", the IAA replaces all references to Aboriginal with Indigenous. "Indigenous peoples of Canada" is defined as having the equivalent meaning as set out by the definition of "aboriginal peoples of Canada" in s. 35(2) of the Constitution Act, 1982. This includes "the Indian, Inuit and Métis peoples of Canada."

Further analysis to come

As with much environmental legislation, the true impact of the proposed IAA, including its effects on Indigenous rights and participation, will only be meaningfully gauged once the regulations and any applicable guidelines are published.

Please continue to check our ERA blog or subscribe to the blog for notifications as we continue to monitor and provide commentary on each of the proposed pieces of environmental legislation making their way through Parliament.

Footnotes

1 Bill C-69, Preamble.

2 IAA, s. 114 (Minister's Powers); "Jurisdiction" is defined broadly under the IAA and includes Indigenous governing bodies as well as any body or co-management body established under a land claim agreement that have powers, duties or functions in relation to an assessment of the environmental effects of a designated project, and Indigenous governing bodies that have entered into an agreement or arrangement with the Minister.

3 IAA, ss. 114, 39(1), 93.

4 IAA, s. 156(2)(d).

5 IAA, ss. 9 and 16(2)(c).

6 IAA, s. 12.

7 IAA, s. 75(1).

8 IAA. S. 158.

9 IAA, s. 155(i).

To view the original article click here

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
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
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