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Stepping back and stepping forward: Managing for the environmental big picture – Part 2

Kispiox River (Photo: Jessica Clogg)
October 15, 2017

West Coast Environmental Law recently published a report called Paddling Together: Co-Governance Models for Regional Cumulative Effects Management. The report looks at some real-life options and points of inspiration for shifting our focus from reactive project-by-project decision-making to proactive regional management that begins with the needs of ecosystems and human communities, and is based on collaborative governance among Indigenous and Crown jurisdictions.

In Part 1 of our blog series about the report, we identified key problems and what is at stake. Here we discuss solutions proposed in the Paddling Together report, and identify current opportunities for progressive change.

Refocusing on the big picture: Co-governed regional assessment and planning

There is no cure-all for the current challenges BC and Canada face around cumulative effects management: the problem of “death by a thousand cuts,” the sense of public disempowerment and alienation from environmental decision-making, and failures to respect Indigenous rights and jurisdiction. However, both the federal and British Columbia governments have current mandates to reform environmental assessment and planning. This presents a major opportunity to meaningfully contribute to addressing all three issues at once by anchoring environmental assessment and planning in an integrated framework for regional, co-governed cumulative effects management.

What does that mean? Basically, this type of integrated framework would ensure that federal, provincial and Indigenous jurisdictions collaborate to proactively manage cumulative impacts in a particular region by:

  1. Designing and implementing a process to assess cumulative impacts in the region and establish strategic-level direction for the region’s desired future, for example in the form of management objectives and land use, watershed or marine plans;
  2. Assessing, making decisions about and regulating activities in the region in a manner consistent with the strategic-level direction, using a precautionary approach if there is any uncertainty; and
  3. Conducting ongoing monitoring and adaptive management to adjust plans and actions based on the monitoring, in order to ensure the management objectives are met.

The federal Expert Panel for the Review of Environmental Assessment Processes supported the approach of regional assessment in its report, stating:

“With near unanimity, participants said that regional IA [impact assessment] is needed. They indicated that good regional assessments could resolve broader scale issues such as habitat fragmentation, would help start conversations earlier, and would provide context and background information for matters of interest to the community, such as the assessment of cumulative effects in a region.”

The Expert Panel also noted, in the context of Canada’s adoption of UNDRIP, that a key consideration is how to ensure governance structures for assessing and managing cumulative effects build in “[r]ecognition of and support for Indigenous laws and inherent jurisdiction.” The federal government appears to be listening to some of these points, judging by its recent discussion paper addressing environmental assessment reform, which is a precursor to eventual legislative change (although, as West Coast noted in our Report Card on Canada’s Proposal for Strengthening Environmental Laws and Processes, the federal government also has a lot of room for improvement).

Properly implemented, co-governed regional assessment and planning brings together federal, provincial and Indigenous jurisdictions to evaluate existing impacts on the landscape. It engages the public, stakeholders and experts to collaboratively determine the objectives that will guide the region towards its desired future for healthy, prosperous ecosystems and communities. It goes beyond simply considering impacts of development, aiming instead to substantively achieve sustainability goals by ensuring that decision-makers respect established objectives for ecological integrity, socio-cultural and economic well-being.

Criteria for success

From the various case studies considered in our Paddling Together report, an extensive literature review and our legal team’s on-the-ground experience, West Coast has drawn out a number of “criteria for success” that can help set the conditions for effective and respectful co-governed cumulative effects management at the regional level.

1. Criteria for success: Structured collaboration among jurisdictions

The structure for co-governed regional cumulative effects assessment and management:

  • Involves all responsible parties and jurisdictions (including Indigenous nations – see below) in a collaborative process that allows each to discharge its own legal responsibilities to protect and manage lands and waters;
  • Aligns the focus and authority of collaborative governance arrangements with the ecological context (the realities of the lands, waters and living beings at issue) and the cultural context (the realities of Indigenous nations and the communities in the region);
  • Is flexible and responsive to different circumstances – there is no “one size fits all” approach (e.g. a new co-governance body may be created, or multiple existing bodies or institutions may function together);
  • Ensures that process and decision rules “balance” power among participants (e.g. through consensus-based decision-making);
  • Is based on clear agreements among jurisdictions, with a supportive legal and policy framework. This includes criteria, rules and factors to guide assessment and discourage politicized decisions, as well as dispute resolution mechanisms where appropriate.

2. Criteria for success: Upholding Indigenous jurisdiction, law and rights

Co-governed regional cumulative effects assessment and management upholds Indigenous jurisdiction, law and rights, including by reflecting the following:

  • Any agreements and legislation enabling co-governed regional assessment explicitly recognize and give effect to Indigenous jurisdiction and rights;
  • Indigenous law – including legal principles regarding the relationship of humans to the non-human world, procedural requirements and substantive rights and responsibilities – is given equal respect and weight to Western law, and equally shapes the structure and process of co-governance arrangements;
  • A nation-to-nation relationship is a foundation of the co-governed regional assessment, including co-governance arrangements that recognize at least equal decision-making authority for Indigenous governments and the Crown, with dispute resolution mechanisms where appropriate;
  • Power-sharing in co-governance is not undermined by inadequate resourcing of Indigenous governments.

3. Criteria for success: Braiding together scientific and Indigenous knowledge

Co-governed regional cumulative effects assessment and management:

  • Commits in an explicit and transparent way to rely on best available scientific and Indigenous knowledge;
  • Adopts “two-eyed seeing” to give equal weight to Indigenous ways of knowing and Western ways of knowing;
  • Recognizes that incorporation of Indigenous knowledge must be paired with structuring co-governance to uphold Indigenous law and jurisdiction;
  • Separates the process of scientific inquiry and knowledge generation from political decision-making, so that trade-offs are clear;
  • Incorporates updated scientific and Indigenous knowledge over time; and
  • Shares management of, and access to, research and data analysis.

4. Criteria for success: Meaningfully engaging the public and stakeholders

Co-governed regional cumulative effects assessment and management:

  • Provides a variety of opportunities for meaningful, deliberative participation by communities, individuals, stakeholders and experts throughout the process, in a manner linked to and reflected in decision-making;
  • Enhances legitimacy of decisions through strong, transparent communication between decision-makers and communities; and
  • Makes all information, with the exception of sensitive cultural information, easily accessible to the public and available for future use (including in monitoring and adaptive management).

5. Criteria for success: Giving legal effect to decisions and outcomes from co-governance processes

The outcomes from co-governed regional cumulative effects assessment and management have meaningful legal effect on the ground:

  • Strategic-level direction flowing from regional cumulative effects assessment and planning is legally established and applied in a binding, consistent way to project-level assessment and operational decision-making;
  • Co-governance bodies or structures have clear, meaningful decision-making authority (for establishing strategic-level objectives or making operational decisions, or both);
  • Regular monitoring informs adjustment of plans and actions where necessary and provides for ongoing learning and engagement.

6. Criteria for success: Appropriate funding

Co-governed regional cumulative effects assessment and management:

  • Receives ample, stable and apolitical funding;
  • Deploys funding in a manner that seeks to avoid power imbalances among participants;
  • Includes commonly-agreed criteria for prioritizing among uses of limited resources;
  • Establishes funding arrangements flexible enough to address emerging priorities.


Photo: Sarah and Michael Reid

Seizing the opportunity

Existing and projected industrial growth in BC and in many other areas of Canada, coupled with climate change, has resulted in a heightened and growing need to manage the cumulative environmental, social and economic outcomes of developments. This raises not just scientific, but important governance and institutional questions.

Foremost among these questions is how to ensure respect for UNDRIP and Indigenous jurisdiction and rights. Also of great importance is ensuring that the process incorporates and reflects the expertise of non-governmental actors, and provides meaningful space for individuals to share their knowledge and passion about the lands and waters they call home.

It’s rare for both the federal and British Columbia governments to be reforming their environmental assessment and planning regimes at the same time. This is a major opportunity to move beyond the problematic status quo of reactive, project-by-project decision-making, to begin with regional assessments that “zoom out” and engage with the bigger picture of ensuring the health of ecosystems and human communities.

This approach holds great promise, not only for better matching our decisions with the needs of ecosystems and the vision of communities, but also for implementing co-governance that respects UNDRIP and Indigenous jurisdictions, and involving and empowering individuals in the decisions that profoundly shape their environment.

 

Read the report >>

Paddling Together: Co-Governance Models for Regional Cumulative Effects Management

 

 

Author: 
Gavin Smith, Staff Counsel