Impact Assessment Agency of Canada: Indigenous Advisory Committee Progress and Impact Report

2023

Executive Summary

The Impact Assessment Agency of Canada’s Indigenous Advisory Committee (IAC or the Committee) was established in April 2019 as a new structure under the Impact Assessment Act, 2019, through which First Nations, Inuit, and Métis Peoples provide advice for the development of key policies and guidance to help ensure that the unique rights, interests and perspectives of Indigenous peoples are acknowledged, affirmed and implemented in environmental and impact assessment.

The Committee was formed shortly prior to the coming into force of the new Impact Assessment Act in 2019, when the Canadian Environmental Assessment Act, 2012 was repealed and replaced with the Impact Assessment Act, 2019 (the Act), creating The Impact Assessment Agency of Canada (the Agency).

The Agency is a federal body accountable to the Minister of Environment and Climate Change that delivers high quality impact assessments and contributes to informed decision making on major projects in support of sustainable development.

IAC provides the Agency with non-political advice reflecting the interests and concerns of Indigenous Peoples for the development of key policy and guidance. The Committee also advises on approaches for collaboration and engagement with Indigenous Peoples on policy and guidance products, and regular briefings are provided to the Agency’s Senior Management Committee on the progress of the Committee’s deliverables.

About the Committee

The Committee’s twelve members include First Nations, Inuit, and Métis practitioners at the local, regional and national level. Members serve as knowledgeable individuals in their own right and in their personal capacity and membership is not based on representation of any particular nation, community or organization. The Committee ensures that they are providing a broad and inclusive perspective reflective of the unique rights, interests, priorities and circumstances of the Indigenous Peoples in Canada.

Since 2019, our Committee has provided valuable advice to the Agency on Indigenous Knowledge, the assessment of potential impacts on Indigenous Rights, and collaboration. Other advice we have provided to the Agency includes:

The Committee is intent on seeing tangible impacts that our advice is having on the implementation of the Impact Assessment Act. An example of this is how the Agency has drawn upon the Committee’s guidance on collaboration to improve agreements that the Agency enters into with Indigenous communities. In order to ensure that the unique rights, interests and perspectives of Indigenous peoples are acknowledged, affirmed and implemented in environmental and impact assessment, we must continue to see our advice taken up in the Agency’s policies and guidance.

About this report

This report from the Indigenous Advisory to the Impact Assessment Agency provides a summary of the progress that the Committee has made against the priorities and deliverables they set out jointly with the Agency’s President in the form of mandate letters over the last 5 years. Ultimately, this report outlines the Committee’s major contributions and accomplishments to date in providing advice to the Agency. This is the first report in which the Committee looks back and takes stock of its overall accomplishments and challenges, covering the period from April 2019 through March 2022.

Prior to the formal establishment of the Indigenous Advisory Committee (IAC) under the now recognised 2019 Impact Assessment Act, many prescribed policies were developed without much discussion and engagement of Indigenous people in Canada (first Nation, Metis and Inuit). The creation of the IAC has given us as Indigenous people an important role at the table with senior officials in an open and respectful way. It has allowed for policy change through the input of IAC members. The work we do is a reflection/example that Indigenous people are playing and integral role in Impact Assessments. But much effort is left to be done and this will only be accomplished by sitting together in a respectful way and having those types of conversations-which the IAC enables

Stanley Oliver

Priorities and Accomplishments of the Indigenous Advisory Committee

Building the Foundation:

Early Committee meetings focused on Committee governance including developing a Terms of Reference, determining how the group would work together and the approach for providing advice to the Agency.

The Committee establishes its priorities jointly with the Agency and values consensus-based collective advice. The Committee provides regular updates on its progress and advice to the Agency’s Senior Management. The Agency in turn provides regular updates to members on how their advice is being incorporated into the work of the Agency. Much time and effort has been dedicated to building a strong partnership between the Committee and the Agency, and to ensure that IAC’s advice is having an impact on the Agency policies and processes.

It is all about relationships. Everything is connected - the people, the lands, the animals, the plants, etc. The work between the Agency and the IAC are part this connection, the relationship.

Susan Chiblow

Indigenous Knowledge

IAC produced their first piece of formal advice to the President in the form of Principles to inform the development of the Interdepartmental Indigenous Knowledge Policy Framework in August, 2020. These principles outlined that in developing the Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions that there must be respect for the diverse knowledge systems of Indigenous communities’ that are rooted in culture and individual community contexts. The principles advised that Indigenous communities must be the ones directing how Indigenous Knowledge is included in the impact assessment process, including the protection of confidential Indigenous Knowledge.

IAC partnered with the Agency’s Technical Advisory Committee on Science and Knowledge on this priority, forming a joint-sub-committee to build a connection between the two perspectives. This joint sub-committee on Indigenous Knowledge and Science provided recommendations to the Agency on braiding Indigenous Knowledge and Western science, for the Agency’s advice to proponents regarding the inclusion of Indigenous Knowledge in the early panning phase.

All of IAC’s formal advice on Indigenous Knowledge was incorporated into the Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions, which provides a foundation to support more collaboration among federal officials and Indigenous Peoples when considering Indigenous Knowledge in project reviews and regulatory decisions.

IAC has also presented on their work at the International Association of Impact Assessment in May 2022, sharing their progress and advice with the International impact assessment community.

Assessing Impacts on Rights

In the first year of IAC’s mandate, the Committee provided advice on the Agency’s Interim guidance for assessing the potential Impacts on the Rights of Indigenous Peoples. IAC expanded on this priority in 2021-22 by producing Principles to Guide the Assessment: Impacts to Indigenous Inherent and Treaty Rights for proponents, the Agency, and impact assessment practitioners. The Principles provide advice on working with Indigenous communities during the planning phase of an impact assessment. This piece also considered the tools needed by communities to establish baselines and thresholds, such as cultural impacts and mitigations.

IAC is now working on phase 2 of this work, to produce operational guidance for proponents to assess Impacts on Rights, supported by the Principles developed in the first part of their mandate. IAC’s continued advice on Impacts on Rights supports a robust nation-to-nation, government-to-government, Inuit-Crown relationship between the Agency and Indigenous communities.

The responsibility is to the lands more than the rights to the lands.

Susan Chiblow

Collaboration and Cooperation:

IAC has been working towards co-developing policy and guidance with the Agency to support collaboration and cooperation with Indigenous Peoples. This work began with IAC’s Principles to Inform Collaboration Agreements Between Indigenous Peoples and the Impact Assessment Agency of Canada, in April 2021. These principles were created to inform agreements that are possible now, and to build towards cooperation agreements pursuant to future regulations. These principles were accompanied by supporting research on challenges and opportunities for Indigenous Collaboration in Impact Assessments. The Principles have also proven to be important guideposts for identifying the Agency’s roles and responsibilities in relation to Reconciliation, as they were developed in alignment with the provisions in the UN Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commissions Calls to Action, and the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples.

The Circle of Experts functions as a sub-committee of the Indigenous Advisory Committee. Members of the Circle are First Nations, Métis and Inuit individuals, as well as experts recommended by Indigenous individuals and organizations. The views expressed by each member comes from their own experience and knowledge.

The Circle was established to co-develop a discussion paper with the Agency that outlines the issues and considerations for potential approaches to Indigenous cooperation agreements under the Impact Assessment Act. The discussion paper will be used to open the conversation with Indigenous rights-holders through a national engagement initiative for the development of the proposed Indigenous Cooperation Agreement Regulations and Policy Approach under the Impact Assessment Act.

Following these pieces, IAC worked with the Agency to co-develop a model Collaboration Agreement as a guiding template for developing Collaboration Agreements with Indigenous Peoples. While no two collaboration agreements can be the same, this document provides a guide for the co-development of all Collaboration Agreements. IAC viewed this piece as a “living document” that can be updated as work on Collaboration and Cooperation by IAC continues and as the Agency’s experience with entering into nation-to-nation and government-to-government, based agreements evolves, and the policy landscape shifts.

Our understanding is that the Agency is applying our advice on Collaboration and Cooperation in several ongoing projects, including in the development of project specific consultation agreements and in the ongoing development of the Agency’s approach to Reconciliation. The Committee also worked with the Agency to develop the approach for co-developing Indigenous Cooperation Agreement Regulations.

Looking Ahead

In May 2022, the President and the IAC jointly identified three priorities for the next year of the IAC’s mandate:

  1. Indigenous Knowledge – Advice and input on tools to support practitioners dealing with Indigenous Knowledge;
  2. Assessing Impacts on Rights – Advice to proponents with respect to key deliverables and expectations building on the Principles to Guide the Assessment Impacts to Indigenous Inherent and Treaty Rights for proponents; and,
  3. Emerging Issues – Providing real-time feedback on key emerging issues. This could also include providing feedback on Agency policy documents as needed, or pursuing future joint work with the Technical Advisory Committee on shared interests.

IAC continues to influence the Agency’s ongoing work in pursuit of Reconciliation with Indigenous Peoples through co-development, by providing advice on challenging policy development areas that are important to the members of the Committee and support the Agency’s priority to build longer-term partnerships with Indigenous Peoples.

Challenges

The IAC’s work is challenging and complex and must take into consideration the operational realities of the Impact Assessment Act. The Committee strives to be forward thinking and ambitious with the advice that they provide to the Agency, while also adhering to legislated timelines under the Act.

The Committee aims to ensure that their advice is operational, and meets the needs and expectations of Indigenous Peoples in Canada. The Committee does not replace Nation-to-Nation relationships and advice arising out of Nation-to-Nation agreements should take priority over advice from the Committee.

My first experience of participating in five (BC) environmental assessment processes at the same time was not great. There was not enough time, capacity, and funding to match the level of expertise and engagement required to be truly and effectively involved in a way that led to a well-informed decision.

This experience motivated me to use my voice and technical expertise to advocate for change that results in better inclusion of Indigenous People in the assessments and decision-making of major projects happening in our territories.

I applied to join IAAC’s Indigenous Advisory Committee in 2019 because I saw this as an opportunity to provide advice from an Indigenous Woman’s perspective, and practical experience, to help inform the changes needed. By doing so, I am pleased to see the Agency moving in a positive direction by listening and hearing our advice and making improvements where possible. We still have a lot of work ahead, but change takes time.

Angel Ransom

Progress on Key Policy Priority Areas

The table below summarizes the advice that IAC has made on key policy priority areas for the Agency, and covers the period from 2018 – 2023. It is our vision that the Agency will review this report and respond to the IAC by outlining some of the impacts of our advice in these key areas.

Indigenous Science/Knowledge

Description

Achievements

Key IAC Advice Received

Input on Principles to inform the Interdepartmental Indigenous Knowledge Policy Framework. (2020)

Indigenous Knowledge Tools in Impact Assessment: Advice and input on tools to support practitioners dealing with Indigenous Knowledge (e.g., standards for reviewing Indigenous knowledge in proponent submissions, templates for confidentiality agreements). (2021-22)

Advice and input on tools to support practitioners dealing with Indigenous Knowledge (e.g., feedback on confidentiality templates and advice to the Agency on a co-development process for technical guidance) (22-23)

  • Advice in the form of Principles for the Development of the IK Policy Framework” to inform the Interdepartmental IK Policy Framework
  • Provided advice to be incorporated into the IK Policy Framework
  • Presenting at International Association for Impact Assessment Conference
  • Joint meetings and building relationships with the Technical Advisory Committee
  • Providing input on tools for Indigenous Knowledge in Impact Assessment.
  • Adopt a comprehensive definition of Indigenous Knowledge (IK) that recognizes Indigenous Knowledge Systems as dynamic and continue to evolve over time.
  • Respect for Indigenous knowledge and Indigenous communities’ process and protocols, and the need for more collaboration and partnership between Indigenous groups, governments and proponents.
  • The importance of consent-based processes and of preventing unauthorized disclosure of Indigenous Knowledge
  • Supporting Indigenous Peoples for the collection, management and storage of Indigenous Knowledge and ensuring that Government has the capacity to engage with Indigenous Peoples regarding Indigenous Knowledge.
  • Indigenous Knowledge Policy Framework should be a living document that is subject to regular review and updating based on community feedback.
Assessing the Impacts on Rights of Indigenous Peoples

Description

Achievements

Key IAC Advice Received

Advice on the Agency’s Interim guidance aimed at impact assessment practitioners. For example, tools and adaptable approaches for applying the guidance in various circumstances. (2020)

Assessing Impacts on Rights: Advice to proponents, the Agency and practitioners on working with Indigenous communities during the planning phase. (2021-22)

Advice to proponents with respect to key deliverables and expectations building on your current principles-based work. (22-23)

  • Providing input into the Agency’s interim guidance for Assessing Impacts on Rights
  • Advice in the form of Principles to Guide the Assessment Impacts to Indigenous Inherent Treaty Rights
  • Ongoing development of advice providing operational guidance to proponents in carrying out Assessments on Impacts on Rights.

The assessment of potential impacts to rights must be:

  • Inclusive of all Indigenous rights and interests.
  • Focused on the protection of Indigenous rights and interests.
  • Guided by Indigenous Knowledge systems and Indigenous ways of knowing.
  • Collaborative and create opportunities to foster relationships with Indigenous rights holders.

The assessment of potential impacts to rights must also:

  • Include a recognition of specific Indigenous governance structures.
  • Foster reciprocal understanding of the impacts and options to avoid or mitigate them.
  • Advance and support reconciliation at all stages of the process.
Collaboration and Cooperation with Indigenous Peoples

Description

Achievements

Key IAC Advice Received

Advice on how to put into practice the Agency’s goal of working collaboratively with Indigenous communities by, for example, proposing models for collaboration agreements and other practical tools for applying existing guidance. (2020)

Further Work on Collaboration Agreements: Advice to the Agency on a model Collaboration Agreement approach that integrates IAC’s “Principles to Inform Collaboration Agreements Between Indigenous Nations and the Impact Assessment Agency of Canada.” (2021-22)

  • Advice in the form of Principles to inform Collaboration Agreements Between Indigenous Nations and the IAAC
  • Commissioned research titled “Indigenous Collaboration in Impact Assessment: Challenges and Opportunities”
  • Developed an evergreen Model Collaboration Agreement template to guide the development of Collaboration Agreements
  • Established a sub-committee named “the Circle of Experts” to develop a discussion paper outlining considerations for Indigenous Cooperation Agreement Regulations and Policy Framework

All deliverables were completed on time and shared with Agency’s operational staff conducting Impact Assessments. This advice has incorporated and was informed by the provisions of the UN Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Committee Calls to Action.

The work of the Circle of Experts is ongoing.

Collaboration Agreements should

  • Be an expression of self-determination
  • Be relationship-based
  • Advance the decolonisation of Law and Policy
  • Reflect good process
  • Ensure good decision-making outcomes

The Model Collaboration Agreement should not be a one-size-fits-all, and should be adapted to each community or organizations specific needs and circumstances.

Emerging Issues

Description

Achievements

Key IAC Advice Received

Providing timely advice to respond to emerging issues identified by the Agency as well as on any key emerging issues identified by the Committee. (2021-22)

  • Provided views on Tailored Impact Statement Guidelines (TISG)
  • Ongoing Milestone check-ins on the Circle of Experts on the Indigenous Cooperation Regulations
  • Committee Evaluation: In the process of developing public facing communications piece on progress to date.
  • Provided views on Agency’s Follow-up Framework including post decision engagement with Indigenous communities
  • Provided views on Agency training on Impact Assessment for Proponents and Federal Authorities
  • Importance of engagement timelines and appropriate role of proponents in the assessment of impacts on rights
  • Importance of IAC engagement on draft chapters for the discussion paper.
  • Importance of ensure Committees advice is useful to the Agency.
  • Issue of capacity and the need to provide core funding.
  • More information needed for communities in the pre- planning phase.

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