What We Heard Report
Engagement on the Practitioner’s Guide to Federal Impact Assessments under the Impact Assessment Act

October 2019 and October 2020

Acknowledgements

The Impact Assessment Agency of Canada would like to thank all First Nations, Métis, and Inuit peoples that took the time to provide feedback on the Agency’s Practitioner’s Guide to Federal Impact Assessments under the Impact Assessment Act.

Introduction

This report provides a summary of feedback received on the Impact Assessment Agency of Canada’s (the Agency) policy and guidance materials developed to support the implementation of the Impact Assessment Act. Funding was made available between October 2019 and October 2020 to allow Indigenous communities and organizations to comment on these draft documents included in the “Practitioner’s Guide to Federal Impact Assessments under the Impact Assessment Act.”

1 Who We Heard From

The Agency allotted Policy Dialogue Program funding support to 119 Indigenous communities and organizations. Over 40 submissions have been provided. A list of submissions between can be found in Annex 1.

2 What We Heard

The policy dialogue submissions help ensure that the unique rights, interest and perspectives are reflected in the Agency’s policy and guidance materials.

This report is organized around five key themes from the feedback that we have received:

1. Indigenous Engagement
2. Indigenous Knowledge
3. Capacity Support
4. Impacts on People and Rights
5. Collaboration

2.1 Indigenous Engagement

Indigenous participation is crucial during federal assessment processes. Indigenous communities and organizations provided feedback to highlight and suggest best practices for Indigenous participation and engagement. Meaningful engagement and participation should include reasonable timelines for Indigenous communities and organizations to support the inclusion of IK for proponent requirements and funding to develop internal capacity to document IK and develop individual community protocols. Government officials should also be required to attend training on IK systems to reduce misinterpretation and ensure IK will be understood as intended and applied.

In order for Indigenous engagement, participation and consent to be meaningful, Indigenous communities and organizations are requesting collaboration and discussion with the Agency to ensure all groups are heard. This would include the following groups, women, youth, elders and 2SLGBTQQIA+ and others. This inclusion would facilitate the exchange of knowledge, expertise and diverse dialogue.

In general, Indigenous communities and organizations were supportive of the way reconciliation and the UN Declaration principles were advanced in the policy and guidance documents. However, some groups stated that the new Impact Assessment Act (IAA) does not incorporate or provide clarity around the UN Declaration. We heard through the submissions that clarification is needed to depict the coherence of the legislation with UN Declaration and provide clarity on what free, prior and informed consent means in relation to federal policy. The commitment to implement the UN Declaration should also include additional reference to the specific rights of Indigenous women (e.g. rights to be free from violence, improved socio­economic conditions, and consideration of impacts on Indigenous women in impact assessments).

2.2 Indigenous Knowledge

In general, views expressed were that the inclusion of Indigenous Knowledge (IK) in the Practitioner’s Guide was adequately emphasized. We heard about the importance of protecting Indigenous Knowledge (IK). The creation and adherence to IK protocols / guides and protecting confidential IK, is of vital importance for respecting Indigenous cultures and rights to self-determination.

In order to protect IK, Indigenous communities and organizations state that discussions with knowledge holders on statutory protections and the confidentiality of IK should take place early and throughout the IA process. Indigenous communities and organizations noted that clarification on how consent to share knowledge is achieved will ensure the necessary protections for confidentiality of IK. The Practitioner’s Guide provides broad guidelines for disclosing IK. Feedback emphasized that there is needed clarity on best practices for ownership and control of IK, including the use of IK agreements. Communities and organizations would like the opportunity to develop and use their own policies and guidance for IK, instead of agreements developed by the Crown.

Indigenous communities and organizations share the concern that their involvement in impact assessment and other engagement is meaningfully received and considered by the government. IK must also be considered as relevant for assessing long-term sustainability of projects and cannot be used in a checkbox manner during IA processes. Feedback asked for clarity around meaningful consideration of IK, and the extent that IK can affect decision-making.

2.3 Capacity Support

Feedback indicated that capacity constraints impact a community or organization’s ability to meaningfully participate and be involved in environmental and impact assessments. Indigenous communities and organizations request adequate resources be made available in a timely manner through Participant Funding for all phases of the IA process to best support their ability to engage in the activities necessary for IA/EA processes. Capacity constraints prevent meaningful participation and participating in the IA process should not create a financial burden on Indigenous communities and organizations.

Capacity constraints should not only be considered as financial capacity but should also include organizational capacity to engage. This could include infrastructure (including technology), trained employees, access to legal and technical experts and adequate time provided to engage, given a community or organization’s capacity limitations and potential competing interests that require attention. There is also a disparity between Indigenous communities funding and proponent expenditures on baseline studies.

Indigenous communities and organizations also stated that clear guidance should be provided to proponents for their role in ensuring that adequate capacity funding is provided. In conjunction with clear guidance, clear language should be used to leave little room for proponent interpretation. This can help minimize the risk of discretionary language that may result in shortcuts that limit Indigenous engagement and participation with reference to timeliness and efficiency.

2.4 Impacts on Peoples and Rights

Feedback highlighted that Impacts on Peoples and Rights needs to be recognized as distinct to each Indigenous community and their social, cultural and environmental practices. Additionally, there should be criteria for determining which Indigenous communities and organizations are impacted and considerations of both customary and modern governance processes during collaboration.

These considerations could be attainable by ensuring Indigenous communities and organizations are involved throughout all of the IA stages, including the pre-application stage where scoping, approaches and plans are being developed, and during the assessment of impacts on rights. Indigenous communities and organizations also state the importance of leading their own studies to determine the specific context in which rights exist and are exercised.

2.5 Collaboration

General positive feedback indicated that there was satisfaction with the new Impact Assessment Act and the guidance on collaboration with Indigenous peoples in IA. The feedback indicated that it provides increased opportunities for participation, collaboration and partnerships with the Government of Canada and within the impact assessment process.

Meaningful collaboration was a reoccurring theme throughout the submissions from Indigenous communities and organizations. Indigenous communities and organizations conveyed the importance of co-development and collaborative reviews to ensure meaningful collaboration. Feedback stated that there needs to be clarity in regard to the minimum threshold for collaboration or partnership that must be met for the assessment practitioner to fulfill their responsibility to work with Indigenous communities and organizations.

We heard that there is also a need for clarity regarding how the Agency will balance the participation of multiple Indigenous communities or organizations in an IA process while ensuring each community’s interests, rights, and claims are protected and upheld. Feedback also expressed that co-development for project specific Indigenous Engagement and Partnership Plans will need to ensure that they are community-specific and distinctions-based. Disparate communities have unique governance structures, geographic spread and rights, interests and claims. Feedback suggested IA practitioners should contact the Indigenous communities that they will be collaborating with to discuss the unique community. Government officials that will be engaging with Indigenous communities and organizations should also receive cross-cultural training on western and Indigenous approaches to impact assessment.

Annex I: Summary of Policy Dialogue Submissions