Crown Consultation with Indigenous Peoples in federal impact assessment
The Government of Canada consults with Indigenous peoples as part of the impact assessment (IA) process for a variety of reasons, including:
- to promote communication, relationship building, cooperation and partnership with Indigenous peoples with respect to impact assessments;
- to meet the Crown’s common-law duty to consult by ensuring respect and protection of the rights of the Indigenous peoples of Canada recognized and affirmed in Section 35 of the Constitution Act, 1982;
- to ensure that impact assessments take into account Indigenous knowledge, cultural considerations and customs along with scientific information and other evidence; and
- to meet statutory and contractual obligations in addition to policy and good governance, which includes working towards securing the free, prior and informed consent of Indigenous peoples for projects that are in the public interest.
The Government of Canada takes a "Whole of Government" approach to Crown consultation in the context of IAs to ensure that Indigenous groups are meaningfully consulted and involved in the assessment of designated projects that may adversely impact Indigenous communities and the exercise of their rights.
For designated projects, the Impact Assessment Act provides for IAs conducted by the Impact Assessment Agency of Canada (the Agency), by an independent review panel, or by other jurisdictions via delegation of any part of an IA or the substitution of another process for the IA. The Impact Assessment Act also provides for the conduct of regional and strategic assessments, and for the assessment of environmental effects of non-designated projects that are on federal lands or that are to be carried out outside Canada. The Agency conducts most IAs and provides support to review panels.
For all IAs, the Agency integrates the Government of Canada’s Crown consultation activities into the IA process to the greatest extent possible, guided by the principle of the Honour of the Crown, and to further the objective of reconciliation with Indigenous peoples. The Agency leads the Government of Canada’s consultation team by coordinating the participation of other federal authorities or lifecycle regulators as appropriate, enabling a ‘one window’ point of contact for Indigenous groups throughout the IA process.
Opportunities for Crown Consultation
The Agency leads and coordinates federal consultation activities throughout all phases of an IA, starting in the planning phase for projects potentially requiring a federal impact assessment, and continuing up to the Government of Canada’s public interest determination for designated projects. Opportunities for meaningful two-way dialogue and collaboration are provided on such topics as:
- Potential environmental, health, social and economic effects of designated projects;
- Potential impacts of a project on Indigenous communities and the exercise of rights;
- Mitigation measures and other forms of accommodation, as appropriate;
- The proposed project’s contribution to sustainability and on Canada’s ability to meet its environmental obligations and climate change commitments; and
- Follow-up programs, should the project be determined to be in the public interest and allowed to proceed.
Agency approach to Crown Consultation
As the federal lead and coordinator for Crown-Indigenous consultations during an IA, the Agency:
- Identifies Indigenous groups whose Aboriginal and/or treaty rights may be adversely affected by the proposed project, as well as any Indigenous jurisdictions that may have responsibilities in relation to a possible IA;
- Provides information on the proposed project and offers to consult with identified Indigenous groups and to coordinate efforts or partner with any Indigenous jurisdictions to prepare for a possible IA;
- Offers funding to assist Indigenous groups in preparing for and meaningfully participating in the IA and Crown consultation activities (see the Agency's Participant Funding Program);
- Encourages participation, input from and collaboration with Indigenous groups throughout the IA;
- Considers feedback provided by Indigenous groups during the consultation process, and responds to concerns or issues raised, prior to decisions being made; and
• Identifies mitigation and other accommodation measures that may be required in order to address issues raised during the IA and associated consultation process.
The Agency will adjust the nature and scope of consultation activities it performs on a project-by-project basis, depending on each project’s potential to adversely affect Indigenous communities and the exercise of rights.
The Agency’s consultation approach follows the principles outlined in the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, 2011, and the Agency is also guided in all of its interactions with Indigenous peoples by the Principles respecting the Government of Canada’s relationship with Indigenous peoples.
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