Aboriginal Consultation in Federal Environmental Assessment
The Government of Canada consults with Aboriginal peoples as part of the environmental assessment (EA) process for a variety of reasons, including: statutory and contractual obligations, policy and good governance, and the common law duty to consult.
The Government of Canada takes a "Whole of Government" approach to Aboriginal consultation in the context of EAs to ensure that Aboriginal groups are sufficiently consulted when the Crown (federal government) contemplates action(s) that may adversely impact potential or established Aboriginal or Treaty rights. These rights are recognized and affirmed in Section 35 of the Constitution Act, 1982.
The Canadian Environmental Assessment Act, 2012 provides for EAs by a responsible authority and EAs by a review panel (including by a joint review panel). The Canadian Environmental Assessment Agency (the Agency) conducts most EAs and provides support to review panels.
The Agency acts as the Crown Consultation Coordinator to integrate the Government of Canada's Aboriginal consultation activities into the EA process to the greatest extent possible. This applies to all EAs for which the Agency is the responsible authority, including review panels.
Opportunities for Aboriginal Consultation
As the Crown Consultation Coordinator, the Agency coordinates federal Aboriginal consultation activities and provides Aboriginal groups with an opportunity to comment on:
- Potential environmental effects of the project and how they should be included in the environmental assessment;
- The potential impacts of a project on potential or established Aboriginal or Treaty rights;
- Mitigation measures; and
- Follow-up programs.
Agency Approach to Aboriginal Consultation
As the Crown Consultation Coordinator, the Agency:
- Identifies Aboriginal groups whose potential or established Aboriginal or Treaty rights may be adversely affected by the proposed project;
- Invites identified Aboriginal groups to provide comments in relation to the EA;
- Provides Aboriginal groups with information about the proposed project and the EA process;
- Provides funding to assist eligible Aboriginal groups in preparing for and participating in consultation activities through the Agency's Participant Funding Program;
- Considers the feedback provided by Aboriginal groups during the consultation process, including any concerns or issues raised, prior to any decisions being final; and
- Identifies mitigation and accommodation measures that may be required to address issues raised during the consultation process.
The nature and level of consultation activities undertaken by the Agency will vary on a project-by-project basis and are dependent on the nature of the potential or established Aboriginal or Treaty rights, and the extent and severity of the potential adverse impacts of the proposed project on those rights. A step-by-step approach to federal Aboriginal consultation is articulated in the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, 2011.
An Introduction to Environmental Assessment
An Introduction to Environmental Assessment [PDF - 996 KB]
What is an environmental assessment?
An environmental assessment is a way to find out how a project could affect the environment before the project goes ahead. Generally, environmental assessments are done for large projects that could harm the environment.
An environmental assessment:
- Identifies possible effects the project could have on the environment;
- Identifies measures to avoid or reduce negative effects;
- Predicts whether significant negative environmental effects are still likely to occur;
- Informs environmental assessment decisions by the Minister of Environment; and
- For projects that go ahead, establishes enforceable conditions and ensures that these are met.
Why do an environmental assessment?
An environmental assessment is a planning and decision-making tool that predicts the negative effects a project could have on the environment. It identifies potential ways to avoid or reduce (mitigate) these effects. The Government of Canada uses this information to help decide whether or not the project can go forward.
Who does environmental assessments in Canada?
The federal government and all the provincial governments have laws on environmental assessment. Environmental assessment processes also exist in the territories.
Other governments (municipal, regional, or Aboriginal) may have their own rules for environmental assessment. When possible, the various governments work together.
Who is involved in a federal environmental assessment?
Participation of public & Aboriginal groups
A federal environmental assessment must provide the public and Aboriginal groups with the opportunity to be involved at different times during the environmental assessment. Comments will be taken into account in the assessment.
The federal government must consult with and, where appropriate, accommodate Aboriginal groups when its activities associated with a project could have a negative effect on potential or established Aboriginal or Treaty rights.
Environmental Assessment Key Terms and Examples
Proponent: The proponent is the person, company or government who is planning a project.
An example of a proponent would be a company that wanted to build a gold mine.
Project: A project is something that the proponent wants to build.
A new mine, a dam or a large power plant are examples of the types of projects that would likely need an environmental assessment.
Environmental effects: Environmental effects are changes to the environment that result from a project. This includes effects on fish, aquatic species or migratory birds and their habitats and to water, air and soil health. An adverse (negative) environmental effect is one that is harmful to the environment.
An example of an adverse environmental effect that could occur during a mine project would be a pond containing mine waste that overflows into a nearby stream during heavy rains, contaminating the fish habitat.
Mitigation measures: Mitigation measures are actions that can be done to reduce (mitigate) or avoid the negative effects that a project could have on the environment.
An example of a mitigation measure that could be introduced for the above environmental effect would be constructing a channel to a small secondary pond which could contain the overflow when there is heavy rain.
Working with Aboriginal Groups during a Federal Environmental Assessment: An Example
Step One: A company suggests a project
A company wants to develop a mine in an area where several Aboriginal communities have Aboriginal rights or asserted rights. The mine project would involve the construction of an open pit mine, eight kilometres of access roads and two electrical transmission lines.
Step Two: Consultation with Aboriginal Groups
Although the mine might benefit local Aboriginal communities by creating jobs, the groups still have concerns about how it could affect the environment. During the environmental assessment process, Aboriginal groups are able to share their concerns so that they can be addressed.
Step Three: Finding solutions
By working together, solutions (mitigation measures) are proposed to avoid or reduce the concerns of the Aboriginal groups. The Minister of the Environment sets out mitigation measures and establishes conditions for the company to go forward with the project.
Examples: Concerns of Aboriginal groups and solutions (mitigation measures)
Concern: The access roads to the mine would be too close to important cultural sites.
Solution: The access roads may be moved away from the Aboriginal cultural sites.
Concern: Traffic on the mine access road could cause wildlife to be killed by vehicles.
Solution: A lower speed limit may be put in place on the access roads, and wildlife underpasses may be constructed to help animals move safely under the road.
Concern: The number of fish in nearby lakes and streams could be lowered.
Solution: A plan may be developed to restore or replace any lost fish habitat or fish.
Step Four: Project approvals and construction begins
A report is prepared and submitted to the Minister explaining how the mine could affect the environment. It includes solutions for the concerns brought forward by Aboriginal groups. The Minister decides the project is not likely to harm the environment with the solutions (mitigation measures) put in place.
The company must ensure it gets all necessary approvals before it can begin construction of the mine. These approvals may involve more consultation with Aboriginal groups.
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