What We Heard Report

Introduction

This report provides a summary of feedback received during the Indigenous-only comment period on the draft Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions (the Framework). Funding was made available in May 2021 to support Indigenous communities and organizations review of the draft Framework.

Background

In June 2019, the Government of Canada passed legislation that includes the requirement for decision makers to consider any Indigenous Knowledge provided during project reviews and regulatory decisions under the following Acts:

• Impact Assessment Act;
• Canadian Navigable Waters Act;
• Canadian Energy Regulator Act; and
• the fish and fish habitat protection provisions of the Fisheries Act.

These Acts also protect Indigenous Knowledge from unauthorized disclosure when provided in confidence.

Indigenous Peoples have the right to maintain, control, protect and develop their Indigenous Knowledge. When Indigenous Peoples decide to share their Indigenous Knowledge during project reviews and regulatory decisions, it can provide federal departments and agencies with a deeper understanding of potential impacts on Indigenous rights, on the environment, and on the social and economic interests of Indigenous peoples and other Canadians.

The Framework is intended to guide the respectful, consistent, and effective consideration and protection of Indigenous Knowledge under these four Acts.

Development of the Indigenous Knowledge Policy Framework

The Government of Canada has been engaging widely on a principles-based approach to support the consistent application of the Indigenous Knowledge provisions across the four Acts. From February to June 2019, hundreds of individuals and organizations across Canada, including Indigenous organizations, government agencies, and industry organizations participated in engagement sessions or provided written submissions responding to a discussion paper.

In August 2020, the Agency’s Indigenous Advisory Committee penned a document on high-level Principles to inform the development of an Indigenous Knowledge Policy Framework. Building on the feedback received, the four implicated departments - the Impact Assessment Agency of Canada (IAAC), Transport Canada (TC), Fisheries and Oceans Canada (DFO), and the Canada Energy Regulator (CER) - developed a draft Framework.

In May 2021, the draft Framework was shared with Indigenous communities and organization for feedback. The IAAC allotted Policy Dialogue Program funding to support Indigenous communities and organizations review of the Draft Framework. 79 submissions have been provided. A list of submissions can be found in Annex I.

This document summarizes the feedback received during the 2021 engagement phase, how comments received influenced the final version of the Framework, and what comes next.

What We Heard and Revisions to the Framework

Throughout our engagement activities we heard that mandatory consideration of Indigenous Knowledge within project reviews and regulatory decisions represents a positive step forward by the government in fulfilling its commitment to advancing Reconciliation and upholding the rights of Indigenous Peoples. We heard that the Framework provides much-improved guidelines as to how Indigenous Knowledge is to be included and protected in project reviews and regulatory decisions.

However, we also heard that the Framework was too narrow in scope and missing some key information. We heard that some elements of the Framework were confusing, given the varying responsibilities of the departments and agencies to which the Framework applies. In response to these comments, certain sections of the Framework have been updated, as noted below. We worked to balance all the comments received to improve the Framework. We have also done our best to explain why other feedback or priorities as outlined by Indigenous Nations and communities are not included in the Framework.

We thank each of the Indigenous Nations and communities that took the time to provide feedback on the Framework.

General updates and clarification

Feedback on Section 3.0 (Indigenous Knowledge) was generally supportive given the diversity of views around the term Indigenous Knowledge. We updated some of the wording in this section to reflect:

• The importance of the connection between Indigenous peoples and their land.
• How Indigenous Knowledge is transmitted between generations.
• The concepts of ethical space and two-eyed seeing, as these were described as useful approaches to bring together Indigenous Knowledge and western knowledge systems.

In addition to the feedback related to clarifications, views and comments provided may be categorized according to the following broad topics.

United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration)

We heard that the purpose of the Framework should rest in the Government of Canada’s commitment to the implementation of the UN Declaration and should state this outright. We heard that Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act has changed the landscape in which decision-makers must engaged with Indigenous Knowledge. Indigenous Nations and communities indicated that more emphasis should be placed on the principles and relevant articles within the UN Declaration and how they should be implemented in policy development. As a result of this feedback, Section 2.0 (Context) has been expanded to highlight:

• the role the UN Declaration plays in recognizing and protecting Indigenous Knowledge;
• the passing of the United Nations Declaration on the Rights of Indigenous Peoples Act in Canada which ensures that the laws of Canada are consistent with the UN Declaration;
• the relevant articles of the UN Declaration that were raised by Nations and communities that are related to the Framework; and
• the importance and recognition of Free, Prior and Informed Consent (FPIC).

Collaborative Decision-Making

When viewed from the perspective of FPIC, several Nations and communities indicated that the goals of the Framework do not go far enough. We heard that there is an interest in moving beyond the consideration of Indigenous Knowledge in regulatory decision making, towards a collaborative model for decision-making. We received comments noting that Indigenous Peoples would like to be partners in the decision-making process, including in determining the evaluation criteria for project assessment, and drawing their own conclusions on the consideration of Indigenous Knowledge and how it contributes to project reviews and regulatory decisions. The Framework cannot address decision-making authorities, but it aims to improve how indigenous Knowledge is included in those decisions.

These Acts include provisions for the development of collaborative processes and ministerial arrangements with Indigenous peoples. The development of these processes is ongoing. The Framework is just one aspect of the various departmental policies to foster Reconciliation with Indigenous Peoples and meet the Government of Canada’s commitments under the UN Declaration.

Canada’s colonial legacy

We heard that Canada’s history of colonialism should be acknowledged in the Framework. The comments received explained that government policies such as the Indian Act and residential schools aimed to erase Indigenous culture and identity and have been successful at separating Indigenous peoples from their knowledge. We heard that these policies targeted at eroding Indigenous Knowledge have left many Indigenous Nations and communities with a deep mistrust of the regulatory bodies that are now asking them to share their knowledge. As a result, strong policies guiding the collection, re-vitalization and use of Indigenous Knowledge are a step towards re-building that trust. Section 3.0 has been updated to reflect the ongoing impacts of colonialism.

Respect for Indigenous and Treaty rights

We heard that the language around rights was not strong enough and so we’ve clarified and strengthened that language throughout to reflect that federal officials should understand the context in which Indigenous and treaty rights are affirmed and apply it in practice when working with Indigenous Knowledge. The Framework has also been updated throughout to acknowledge the importance of Indigenous rights^Footnote1, including inherent and Treaty rights, in the relationship between Indigenous peoples and the Crown, and that the Framework does not diminish existing Treaty obligations or replace other formal consultation agreements between Canada and Indigenous Nations and communities.

Consideration of Indigenous Knowledge

Capacity Building Related to Indigenous Knowledge

Many submissions indicated that capacity funding must be available and easily accessible. They indicated that in addition to a base level of funding for specific projects, funding should be provided by the Government of Canada on a long-term capacity basis so that Indigenous Knowledge is preserved and enhanced within Nations and communities on an ongoing basis, rather than just a project-specific, one-time grant or contribution agreement. We heard that community leaders, Knowledge Holders and elders have many competing priorities and there are limited resources when it comes to gathering Indigenous Knowledge. We heard that the Framework lacks specificity for the type and amount of support that Indigenous Peoples will receive to share their Indigenous Knowledge and that funding supports should be comparable to what the government would provide to procure other environmental, technical, or expert reports.

While we heard requests that the Framework be updated to include requirements for capacity funding arrangements, a base level of funding cannot be guaranteed through this Framework. Each department and agency administers its own funding program, within its own operational requirements, following rules set by the Government of Canada. Given these complexities, individual departments and agencies determine the scope of their funding programs related to Indigenous Knowledge.

Capacity funding, and the lack of a long-term whole of government funding structure has been an ongoing priority for Indigenous Peoples. Given this clear priority, there is work going on within government to create new funding systems, including funding programs that are better coordinated to minimize engagement fatigue and provide longer-term capacity funding for Indigenous Nations and communities for a variety of initiatives.

Training for Federal Officials

We received feedback that additional training should be required for federal government officials specific to working with Indigenous Knowledge, along with the importance of Indigenous Knowledge under the Acts and cultural competency relating to the diverse interests, priorities and circumstances of First Nations, Métis and Inuit. Principle 5.5 has been updated to reflect the need to support building cultural competency and awareness of federal officials, including training on the following:

• the history, heritage, cultures, perspectives of First Nations, Inuit and Métis, and their relationships with the Crown including Indigenous and treaty rights;
• the UN Declaration;
• working respectfully with Indigenous Peoples;
• understanding the existence and legitimacy of different knowledge systems; and
• the meaningful consideration of Indigenous Knowledge.

We heard one approach to ensure Indigenous Knowledge is considered properly is to hire additional Indigenous People, including Indigenous Knowledge translators. We note that Indigenous employment and recruitment policies are department specific and beyond the scope of this work.

The conclusion section of the Framework has also been updated to underline the importance of adequate resources and training for the implementation of the Framework.

Management and Protection of Indigenous Knowledge

Many comments were supportive of the inclusion of guidelines regarding the rights of Indigenous Peoples to maintain, control, protect and develop their Indigenous Knowledge. As a result:

• Principle 5.1 clarifies that it is up to Indigenous Peoples to decide whether or not to share their knowledge with federal officials.
• Principle 5.2 references the tools developed by Indigenous Peoples and organizations regarding the protection of Indigenous Knowledge, including the First Nations principles of ownership, control, access and possession (OCAP^®) and Inuit Research standards, along with noting that other Indigenous-led protocols for the management and safeguarding of Indigenous Knowledge.
• Principle 5.5 recognizes that Indigenous Nations and communities may require increased capacity over the long-term to support the revitalization, collection, storage, and preservation of Indigenous Knowledge.

Many submissions raised concerns with the sections in the Acts that provide certain exceptions to the requirements for the protection of confidential Indigenous Knowledge. We cannot remove these exceptions from the legislation, but the guidance in Principle 5.4 has been updated with the following expectations:

There were recommendations that other federal government departments should use this Framework as well, so that there is consistency across the federal government and better coordination regarding Indigenous Knowledge policies. While this Framework was drafted to implement new mandatory provisions related to Indigenous Knowledge, we note that the Framework is already a relevant tool for other agencies. For example, the Canadian Nuclear Safety Commission indicated that it uses an approach to working with Indigenous Knowledge that is consistent and informed by this Framework. The principles within the Framework can be used by other departments as a guide for their work with Indigenous Knowledge. We also recognize the important role that Indigenous voices and Indigenous Knowledge play in decision-making across other government departments and acknowledge the need to coordinate within government as much as possible in order to ensure consistency and reduce engagement fatigue.

Some of the comments received suggested that the Framework should be expanded to apply to project proponents. Given the Framework was developed to support the work of federal officials and the role of proponents in project reviews and regulatory decisions differs for each of the departments and agencies, it has not been updated to apply to proponents. That said, the guiding principles can certainly inform the work of proponents, including how they engage and work with Indigenous Peoples and their Indigenous Knowledge.

Implementation of the Framework

Some Nations and communities commented that the scope of the Framework is too broad, without enough detail regarding the inclusion of Indigenous Knowledge. There were concerns that without more specific examples, the implementation of the Framework would lead to levels of subjectivity by federal officials around how Indigenous Knowledge is considered and safeguarded. While flexibility is needed to allow for the different operational realities of the departments and agencies, the Framework will support greater predictability in how Indigenous Knowledge is considered in project reviews and regulatory decisions. The Framework’s Guiding Principles (Section 5.0):

• Guide the work of federal officials applying the Indigenous Knowledge provisions under the Acts.
• Provide a basis for departments and agencies to develop policies and guidance tailored to each department and agency’s specific operational requirements.

Each department and agency’s more tailored documents will reflect the different circumstances and operational realities of project reviews and regulatory decisions and may include specific examples. We would stress that all the feedback that has been provided throughout the engagement process will be used by the departments and agencies to build upon the baseline provided by the Framework itself. Other concerns that are better addressed by more specific operational guidance may include, among other things, the following:

• Timelines for engagement.
• How proponents work with Indigenous Knowledge.
• The availability and applicability of funding programs.
• How to address conflicting information.
• The incorporation of Indigenous Knowledge in the lifecycle of a project (if applicable).
• More specific confidentiality measures, including examples of when disclosure may be necessary.
• Evaluation and continual improvement mechanisms regarding the consideration of Indigenous Knowledge.

Engagement Process on the Framework

We also heard from some Nations and communities that our engagement efforts to develop the Framework were not sufficient considering the importance of Indigenous Knowledge. We heard that the initial engagement workshops were too broad, which resulted in a lack of diversity amongst Indigenous Peoples. Some submissions noted that there was insufficient time and resources to engage community members and Knowledge Holders. We also heard that the process should have been co-created or led by Indigenous Peoples. We acknowledge the amount of work put in by Indigenous Nations and communities to participate in the different rounds of engagement and comment on the Framework. We note that the work to develop this Framework has been ongoing since 2018. From May 2021 to December 2021, we received 79 written submissions representing many Nations and communities across Canada... All the feedback provided has been carefully considered in the development of the Framework. The Government of Canada as a whole continues to work with Indigenous Peoples to learn how to best work with Indigenous Knowledge. This Framework is a first step for the implementation of the specific provisions for these Acts, but there is ongoing work elsewhere on Indigenous Knowledge.

What Comes Next

All the comments received in this round of engagement will continue to be used by federal officials at DFO, TC, IAAC and the CER to inform department and agency-specific guidance on Indigenous Knowledge. The updated principles in the Framework will support the consistent application of Indigenous Knowledge provisions in the Acts, while recognizing regional, cultural, and distinctions-based approaches to Indigenous Knowledge. The Framework provides a foundation to support more collaboration among federal officials and Indigenous Peoples when considering Indigenous Knowledge in project reviews and regulatory decisions.

Annex I

The Impact Assessment Agency of Canada provided Policy Dialogue Program funding support to 79 Nations and communities under stream 3 funding (Engagement with Indigenous Rights holders and organizations). A list of Policy Dialogue submissions received in Fall 2022 can be found below.

Annex 2

Indigenous Nations and communities were invited to share any resources about Indigenous Knowledge. This included any publicly available resources (videos, guides, informational documents, etc.) related to Indigenous Knowledge. The list below is not an exhaustive list, and reflects resources provided by Nations and communities in their written submissions.

Indigenous Knowledge Resources:

Aboriginal Traditional Knowledge and Intellectual Property Rights – Assembly of First Nations

Aboriginal Women and Aboriginal Traditional Knowledge (ATK): Input and Insight on Aboriginal Traditional Knowledge – Native Women’s Association of Canada

Akwé: Kon guidelines – Convention on Biological Diversity Best Practices for Project Planning with Indigenous Traditional Knowledge – Canadian International Development Agency

Deh Cho First Nations Traditional Knowledge Research Protocol Framework for Research, Engagement with First Nations, Métis and Inuit Peoples – University of Manitoba

Guide to Effective Indigenous Involvement in Federal Impact Assessment – First Nations Major Project Coalition

Guidelines for Incorporating Traditional Knowledge in Environmental Impact Assessment – Mackenzie Valley Review Board

Indigenous Knowledge Systems in Environmental Governance in Canada (2021) – Deborah McGregor

Indigenous Policy Framework – City of Calgary

Indigenous Traditional Knowledge Framework – Cumulative Environmental Management Association

Inuit Qaujimajatuqangit – Nunavut Impact Review Board

"Learning Together": Braiding Indigenous and Western Knowledge Systems to Understand Freshwater Mussel Health in the Lower Athabasca Region of Alberta, Canada (2019) – Hopkins, D. et al.

Maliseet Nation TK Protocol – Maliseet Nation Conservation Council Traditional Knowledge Working Group

Mi’kmaq Ecological Knowledge Study Protocol – Assembly of Nova Scotia Mi’kmaq Chiefs

National Inuit Strategy on Research – Inuit Tapiriit Kanatami

New Brunswick Mi’gmaq Indigenous Knowledge Study – Mi’gmaq Sagamaq Mawiomi

Nindokiikayencikewin: To Seek Learning or Knowledges, Indigenous Knowledges & Data Governance Protocols – Indigenous Innovation Initiative

Roundtable on Indigenous Knowledge and Western Science: Summary of Literature – Institute on Governance Sacred Ecology: Traditional Ecological and Resource Management (2008) by Berkes, F.

ScIQ: an invitation and recommendations to combine science and Inuit Qaujimajatuqangit for meaningful engagement of Inuit communities in research and video presentation– Ikaarvik Youth SciQ Summit

Traditional Knowledge Guide for the Inuvialuit Settlement Region Volume I and Volume II – Environmental Studies Research Funds Report No. 153

Traditional Knowledge, Innovations and Practices (Article 8(j)) – Convention on Biological Diversity

Traditional Knowledge Policy and Traditional Knowledge Policy Implementation Framework – Government of Northwest Territories

The First Nations Principles of OCAP® – First Nations Information Governance Centre

The Land is Our Teacher: Reflections and Stories on Working with Aboriginal Knowledge Holders to Manage Parks Canada’s Heritage Places – Parks Canada

Two-Eyed Seeing and other lessons learned within a co-learning journey of bringing together indigenous and mainstream knowledges and ways of knowing (2012) – Bartlett, C., Marshall, M. and Marshall, A.

United Nations Declaration on the Rights of Indigenous Peoples Voices of Understanding: Looking Through the Window – Alberta Energy Regulator

Ways of Knowing: Promising Directions for Métis Research – Métis Nation of Ontario

What is Indigenous Knowledge in Protecting Indigenous Knowledge and Heritage: A Global Challenge (2000) by Battiste, M. and J. Youngblood Henderson.