Author(s): James Munson
Media Outlet: ipolitics
Environmental groups are urging the federal Liberals to take a strong stand on indigenous rights in reforming Canada’s regulatory process for major projects.
Ottawa should “tear down” the existing Canadian Environmental Assessment Act, 2012 (CEAA, 2012) and replace it with legislation that provides for the strongest possible legal defence of indigenous land rights, said Anna Johnston, legal counsel for West Coast Environmental Law, in a news conference on Parliament Hill Tuesday.
“Next-generation environmental assessment must comply with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and it must be based on nation-to-nation relationships,” said Johnston.
“Canada has a duty to secure the free, prior and informed consent (FPIC) of indigenous governments and it has to do more than just tick off consultation boxes,” she said.
An expert panel reviewing CEAA 2012 is expected to provide a recommendations report to Environment Minister Catherine McKenna by March 31, which will be followed by a public comment period.
At the same time, Justice Minister Jody Wilson-Raybould is leading a multi-pronged reform effort targeting laws affecting Indigenous Peoples, including a ministerial working group looking to ‘decolonize’ Canadian laws and an effort to reform indigenous governance across the country.
Indigenous and Northern Affairs Carolyn Bennett is reviewing a report by former ministerial special representative Bryn Gray on the documents federal officials use to enforce the ‘duty to consult and accommodate’, a constitutionally-protected right indigenous people have if their land claim has not been extinguished.
The duty to consult is often the interface guiding the relationship between Ottawa and indigenous governments when a major industrial project like a pipeline or mine is regulated.
Major projects are routinely mired in legal battles over duty to consult. It’s at the centre of ten of the 16 cases before the Federal Court of Appeal over the permit for Kinder Morgan’s Trans Mountain pipeline, for instance.
While Wilson-Raybould has said the Liberals’ reforms will conform with UNDRIP, critics like the NDP want Ottawa to be more direct by codifying the declaration in Canadian law through legislation. While the courts have blocked projects where the duty to consult was not properly executed, there is debate on whether it means the same thing as FPIC, a concept embedded in UNDRIP.
Environmental groups also want the government to provide environmental assessments of the federal budget as part of the reforms now underway, said Stephen Hazell, director of conservation at Nature Canada.
“If it can’t be done before any given budget, at least do it following a budget so that the results of an environmental analysis can be rolled back into subsequent budgets,” said Hazell.
The aim of the environmental assessment process should move from examining the impacts of an individual project toward assessing a project within the larger goal of achieving sustainability, said Hazell.
“It’s not enough anymore to look at whether or not the adverse effects of any given project are significant or not,” said Hazell. “Any new assessment law should focus on assessing sustainability rather than just narrow environmental effects.”