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Reflections on Indigenous jurisdiction and impact assessment

Enbridge hearing, Hartley Bay BC (Photo: Sarah Reid)
August 18, 2017

With an August 28, 2017 deadline for final submissions on its Environmental and Regulatory Reviews Discussion Paper fast approaching, the federal government is poised to make important decisions about legislative reform aimed at revamping four key federal environmental laws.

On July 14, 2017, the Government of Canada also released a set of Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples. These principles set the stage for an evaluation of Canada’s laws, policies and operational practices “to help ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards including the United Nations Declaration on the Rights of Indigenous People, and supporting the implementation of the Truth and Reconciliation Commission’s Calls to Action.”

The principles also appear to recognize the ongoing authority of Indigenous legal orders. For example, the principles state:  “Recognition of the inherent jurisdiction and legal orders of Indigenous nations is therefore the starting point of discussions aimed at interactions between federal, provincial, territorial, and Indigenous jurisdictions and laws” (see Principle 4).

As we have written elsewhere, implementation of the principles is something we’ll be following closely at West Coast Environmental Law.  In our view, ensuring that Indigenous law takes its rightful place in environmental decision-making has the transformative potential to achieve more sustainable outcomes for all. We are looking forward to seeing how the principles announced on July 14 will be given life through a new approach to environmental assessment legislation and in other federal environmental laws currently under review.

We believe that upholding Indigenous jurisdiction and laws is a key aspect of better managing the cumulative effects of multiple forms of human activities and development on important values and rights. Drawing on a multi-year research project of models from around the world, and discussions with Indigenous clients and allies, we have identified some key elements of new federal environmental assessment legislation that could advance this objective. In particular, a new federal Impact Assessment Act (the “Act”) should:

Recognize Indigenous nations as jurisdictions: A new Act should explicitly state that one of its purposes is to facilitate the participation of Indigenous nations as jurisdictions exercising decision-making functions in assessments carried out under the Act. This would affirm Indigenous peoples’ inherent rights as recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Canada’s Constitution. The Act should also clearly define Indigenous nations as jurisdictions in the definitions section of the Act, and recognize their authority to conduct assessments in accordance with substantive and procedural requirements of their own legal traditions. As the Expert Panel appointed to review Canada’s assessment processes notes: “Recognition of and support for Indigenous laws and inherent jurisdiction should be built into IA governance and processes.”

Legislatively enable mechanisms to give effect to Indigenous jurisdiction: Options for doing so, which may not be mutually exclusive, include:

  • Legislatively confirming that projects may not proceed in the absence of approvals or permits required by Indigenous jurisdictions as a matter of their laws and jurisdiction.
  • Legislatively enabling (or continuing) co-governance bodies with at least equal Indigenous and Crown participation, with the responsibility to jointly make decisions about assessing and approving proposed development in particular regions.
  • Legislatively providing that assessments and projects may not proceed in the absence of nation-to-nation agreements with all impacted Indigenous nations at three key stages of an assessment: (1) a “conduct of assessment” agreement before an assessment begins; (2) before making a final assessment decision, in order to jointly determine the outcomes of the assessment including conditions for approval if applicable; and (3) an implementation agreement, concurrently with or following the assessment decision, in order to collaboratively implement the outcomes of the assessment (e.g., where implementation of regional assessment requires further planning or regulatory steps).
  • Alternatively, provide for the option of parallel assessments by Indigenous and other jurisdictions, with provision for negotiation and dispute resolution to reconcile the outcomes from these processes. Legislatively provide that projects may not proceed in the absence of nation-to-nation agreements with all impacted Indigenous nations regarding whether approval, or conditional approval where applicable, should be given.

A new Act should include flexible provisions enabling such co-governance mechanisms to be collaboratively developed between the Crown and Indigenous nations consistent with their own legal traditions, while ensuring that default requirements uphold inherent, Aboriginal, and treaty rights. Taking an approach which recognizes Indigenous jurisdiction and law will mean acknowledging that authoritative decision-makers within each Indigenous legal tradition may vary, that there may be more than one level or type of Indigenous approval required, and ensuring that there is transparency with respect to agreements reached.

Provide for co-governed regional assessments: In addition to project assessments, a new Act should provide for and prioritize regional impact assessments, in a manner aligned with provisions to enable co-governance with Indigenous peoples as described above. Co-governed regional assessments (as well as strategic assessment of policies and plans) can help manage the “big picture” in which developments occur, both by evaluating cumulative effects and by establishing agreed-to management objectives to bind and inform project-level assessments and decisions in the region. In contrast to ad-hoc, proponent-driven project-by-project assessment, regional co-governed assessments represent a proactive approach to assessment and planning that can build a stronger foundation for collaboration between the Crown and Indigenous nations.

In the context of regional assessment, it will be particularly important to establish “conduct of assessment” agreements so that the parties can collaboratively determine factors such as the scope of assessment, the geographic boundaries of the region for assessment, and the values and rights to focus on. Tiering of regional and project assessments should be provided for in the new Act.

Provide for dispute resolution mechanisms: A new Act should include provisions enabling an Indigenous nation (or the Crown) to trigger dispute resolution to address issues that arise during negotiation or implementation of nation-to-nation agreements for assessment, or if certain criteria, processes or principles set out in the Act have not been respected. West Coast has recommended that a new independent tribunal – empowered to ensure both Indigenous and Canadian legal requirements are upheld – perform this function.

However, at minimum (and in any event), the Act should include provisions enabling alternative dispute resolution focused on achieving outcomes that incorporate and reflect the laws of the Indigenous nation involved in addition to Canadian law. Such alternative dispute resolution can help avoid costly litigation, while potentially fostering better understanding between the parties and addressing disputes in a manner more appropriate to the legal tradition of the Indigenous nation.

Ensure adequate funding for Indigenous nations performing governance functions in assessment: A new Act cannot merely enable nation-to-nation agreements and co-governed assessments on paper; it must ensure that Indigenous nations have access to sufficient resources to actually perform the roles contemplated in the Act. For this reason, a new Act should establish a funding program to provide adequate resourcing to Indigenous nations carrying out governance roles and negotiations in connection with an assessment under the Act. This program would be distinct from a participant funding program, which assists the public in intervening in the Crown’s assessment process. Rather, the goal of this funding program would be to resource Indigenous nations that are directly negotiating or undertaking assessment processes and responsibilities, in collaboration with the federal government (and potentially other jurisdictions).

Ensure that impact assessment is directed at achieving substantive goals, including compliance with UNDRIP, not just checking off procedural boxes: West Coast has elsewhere submitted that a new Act should legislatively provide for sustainability as a core objective of assessment, and that this can be achieved in part by establishing a set of principles or criteria that a Crown decision-maker must consider and apply in relation to an assessment outcome. Sustainability includes maintaining ecological values in a way that allows Indigenous peoples to continue to meaningfully exercise their inherent, Aboriginal, and treaty rights (e.g., by requiring that the outcomes of assessment maintain ecological integrity and uphold Canada’s climate commitments).  But it also means that Crown conduct and decisions in assessments must be consistent with the United Nations Declaration on the Rights of Indigenous Peoples, and uphold Aboriginal and treaty rights protected by the Canadian Constitution.

In a report card released shortly after the federal government discussion paper was released, we concluded that the federal government’s proposed approach does not yet “make the grade”. Implementing the principles released on July 14th will be one important step Canada needs to take as it refines it approach to environmental assessment and reform of other key pieces of federal environmental legislation.

Comments and submissions on the federal government’s proposed approach can be made until August 28th.

 

Top photo: Enbridge Northern Gateway Joint Review Panel hearings, Hartley Bay, BC (Photo: Sarah and Michael Reid)

Author: 
Jessica Clogg, Executive Director & Senior Counsel