What We Heard Report
Engagement on the Review of Environmental Assessment Processes

2016-2018

Acknowledgements

The Impact Assessment Agency of Canada would like to thank all the First Nations, Métis, and Inuit people who took the time to engage in the review of federal environmental assessment processes on the road to the creation of the Impact Assessment Act.

Introduction

In 2016, the Canadian Government launched a review of federal environmental assessment processes. In 2017, the Expert Panel for the Review of Environmental Assessment Processes published their final report, Building Common Ground – A New Vision for Impact Assessment in Canada. In June 2017, the Government of Canada published a discussion paper open for comments from the public, Environmental and Regulatory Reviews: Proposed Approach.

In February 2018, the then-proposed Impact Assessment Act (IAA) was introduced and was referred to the Standing Committee on Environment and Sustainable Development. The IAA came into force in August 2019.

1 Who We Heard From

This report summarizes the comments from Indigenous nations/communities and organizations received through submissions to the expert panel report, the discussion paper, and the House of Commons standing committee.

2 What We Heard

Comments from the submissions were grouped together by theme – there were five main themes identified from the received comments:

1. reconciliation and relationship building
2. cooperation and collaboration
3. impact assessment jurisdiction and powers
4. capacity building
5. sustainability

2.1 Reconciliation and Relationship Building

We heard about the importance of relationship building with Indigenous communities, ensuring regular and open dialogue with communities within and outside of the assessment process. The federal government and Indigenous communities should work towards a Nation-to-Nation relationship, and jointly establish ways to collaborate, implement jurisdiction and Indigenous laws and how to work with provinces, territories, and proponents. Indigenous communities highlighted the importance of the government of Canada implementing the United Nations Declaration on the Rights of Indigenous Peoples, and emphasized that these commitments must be central to impact assessment processes. A suggested approach to relationship building would be to have government representatives visit and attend community meetings on a regular basis.

Indigenous communities expressed concern over the Crown retaining ultimate decision-making authority – citing it as inconsistent with the recognition of Indigenous jurisdictions and law­making authorities, and questioning the ability of the then-proposed impact assessment reforms to achieve reconciliation.

We also heard that the proposed reforms did not sufficiently demonstrate a clear and formal commitment from the federal government to reconciliation with Indigenous peoples. The federal government should seek to obtain the free, prior, and informed consent from Indigenous peoples using distinct consultation processes, and ensure that Indigenous peoples are truly involved in the decision-making process. To facilitate reconciliation the government of Canada should make sure that meaningful consultation occurs at all stages of the impact assessment process, and that the results of the consultation are used in a meaningful way.

2.2 Cooperation and Collaboration

Meaningful Collaboration

We heard that Indigenous communities support the development of collaborative and shared consent models for all aspects of assessments, not just early engagement, and decision-making regarding the approval or rejection of projects following an assessment. The development of collaboration models must consider the involvement of all generations, including those in the future.

The assessment of the potential impacts on the rights of Indigenous peoples should be a collaborative process undertaken exclusively by the Crown and Indigenous rights-holders, and not an unwanted burden placed on the shoulders of proponents who are not well equipped to conduct this kind of assessment.

Indigenous communities raised concerns about the early planning stage being proponent-led, and wanted to ensure that a legislated planning phase also focus on opportunities for meaningful input and collaboration regarding project design and planning (including the consideration of alternatives), and is not simply an engagement exercise around project plans that have already been concretely developed. Indigenous communities should be made aware of projects with plenty of time before any assessment processes, and must be partners in the design, drafting, and implementation of any legislation and regulations around consultation and environmental management. The current lack of dispute resolution mechanisms was flagged by some Indigenous communities as an issue. Collaboration should continue post-decision, into monitoring and follow up.

Approaches to impact assessment rely too heavily on Western worldviews and do not sufficiently consider Indigenous worldviews and perspectives on environment and socioeconomic issues. Renewing a Nation-to Nation relationship requires that the government listen and learn from Indigenous communities about their worldviews ad cultures.

Meaningful collaboration includes a Nation-to-Nation regulatory environmental assessment appeal process, with Indigenous Nations that oversee decisions at all level of jurisdiction. Any collaboration frameworks must be based in the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Cooperation Agreements

Many Indigenous communities already have their own protocols around community consultation. There should be supports in place for each community to not only define their own processes but also to consistently communicate and apply those protocols. Indigenous communities said that the co-development of frameworks for collaboration with Indigenous peoples on environmental assessments and regulatory processes should be formalized. The fact that a community’s views are not always the same as the decision makers’ should be considered.

Indigenous communities must be able to choose the agreement model that works best within their traditional territories. The creation of broad and flexible mechanism are needed to allow the Government of Canada to enter into agreements with Indigenous communities across the country. Cooperation agreements must recognize Indigenous jurisdiction, laws, practices and governance systems.

More opportunities are needed to bring people together to facilitate participation directly in discussions of governance, jurisdiction, evaluation and planning, including developing collaborative agreements for the conduct and oversight of impact assessments, and decision-making in impact assessments.

Meaningful Engagement and Consultation

The submissions reviewed noted that there have been issues in the past with late consultation, closed minds, passive participation and non-responsiveness from the proponents and governments. Project proponents should be required to consult during early project planning phases, before an application is formally filed. Meaningful engagement and consultation with Indigenous communities requires early and ongoing exchange of information, active and critical exchange of ideas, and engagement within the spaces of the Indigenous communities involved. Consultation must happen on a Nation-to-Nation basis with the goal of acquiring the free, prior and informed consent of Indigenous communities before any decisions are made or actions are taken. Indigenous communities said that proponents must be involved in consultation but it must be led by the Crown. Many Indigenous communities are unwilling to accept funding or begin engagement with proponents because of mistrust – this is why reconciliation and relationship building must be prioritized in a revitalized impact assessment process.

We heard that Indigenous communities feel that the federal government has not adequately worked to determine whether or not consultation was indeed meaningful for the communities involved. They feel that their recommendations, objections, and mitigation requirements have been downplayed or even ignored by developers. The federal government must also ensure that consultation is adequately financed so that Indigenous communities and organizations have the capacity to fully participate in the consultation process and be compensated for the services that they provide.

Simultaneously, governments and proponents must be sensitive to “consultation overload” that many Indigenous communities face – consultation processes should take into account the seasonal cycles ( e.g. hunting season) and availability of Indigenous communities, and respect local traditions. We heard that consultations should be better staggered for meaningful participation and to respect the capacity of each Indigenous community or organization involved in the process.

Timelines

We heard about the importance of timelines as a factor that enables or limits meaningful Indigenous participation and consultation. We heard that often the prescribed timeframe does not provide enough time to adequately address potential impacts. Indigenous communities who may be impacted by a proposed project should be consulted as early as possible – late notification limits the ability of an Indigenous group to prepare and participate meaningfully in the process.

Input noted that provisions setting out legislated timelines that apply to Indigenous participation should be either eliminated or amended to allow Indigenous communities to determine their timelines. We heard that strict timelines undermine the goal of collaboration with Indigenous peoples, they do not adequately allow for the meaningful involvement and consultation of Indigenous peoples in the assessment process. Joint decision-making and meaningful consultation processes will not take the same amount of time for all projects and Indigenous peoples.

We heard from others that fixed timelines are not always appropriate as each project timeline should be determined based on its proposed scope and impact. Processes and timelines need to be flexible enough for issues to be properly studied, assessed and addressed. Legislation should enable Indigenous nations to request exceptions to legislated timelines, such as the “clock stopping mechanism” and triggers for timeline extensions.

2.3 Impact Assessment Jurisdiction and Powers

Jurisdiction

We heard that the use of the term “jurisdiction” excludes Indigenous communities that do not have a land base with an established geographic jurisdiction; this should not lessen their ability to be involved. Indigenous jurisdiction should co-exist with federal jurisdiction, with relationship-building agreements. It should be recognized that jurisdictional boundaries often overlap, and rarely coincide with ecological boundaries.

We heard that the fact that an Indigenous community or organization had not negotiated an agreement that draws down jurisdictions should not in any way lessen that group or community’s ability to be involved in an impact assessment. It must be noted that the same cooperation agreement model will not work for all Indigenous communities it is not a one-size-fits-all situation.

The jurisdiction of Indigenous environmental assessment institutions should be recognized, including community-based structures. Substitution of federal impact assessment processes for Indigenous-led processes should be enabled when they would meet or surpass federal standards. Substitution for First Nation agencies or bodies outside of those identified in the current definition of jurisdiction should also be an option, provided that it meets the requirements of equivalency.

We also heard that credence should be given to the development and application of Indigenous laws and governance to govern project activities in areas of ecological, cultural, or traditional importance. The federal government should approach impact assessments with the recognition that authoritative decision-makers within different Indigenous legal traditions may vary, and that there may be more than one level or type of Indigenous approval required. There must be transparency with regards to any agreements reached.

Decision-making

A fair, transparent, and trustworthy decision-making process includes transparency, accountability, and ready access to information throughout the process. It should be clear about why a decision is being made and how Indigenous interests have been incorporated.

We heard from Indigenous communities and organizations that the Minister retaining ultimate decision-making power leaves too many decisions to ministerial discretion. This mechanism allows for Ministerial approval of projects with significant negative consequences. We heard that Indigenous communities and organizations feel they do not have a meaningful role in final decision-making in their territories or within and around their reserve lands. The public interest determination should not allow for the justification of infringements of Indigenous rights and interests, allowing a narrowing of Indigenous rights when balanced by the state against the benefits for the public interest.

We heard that Indigenous communities should be consulted during the decision-making process rather than simply be notified of a decision once it has been made. For meaningful participation in assessments and regulatory reviews, it is imperative that Indigenous communities participate and be recognized as joint decision makers, and not be solely considered as stakeholders. Indigenous laws, protocols, and decision-making processes should be incorporated into decision-making.

Indigenous-led assessments

We heard that the Crown should initiate an Indigenous-led process to determine the scope, legislative basis, and mechanisms for a fully collaborative assessment process and ensure jurisdictional authority between Indigenous Nations and the Crown to reflect Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples. Although initiated by the Crown, Indigenous-governing bodies must be allowed to develop their own IA processes in accordance with their own laws, traditional practices, and systems of governance. Communities with processes and protocols that are established should be able to develop their own Strategic and Regional Impact Assessments, which must be considered in project assessments.

Joint Review Panels

When a proposed project requires an environmental assessment by both the federal government and a province or another jurisdiction, a joint review panel can be established to avoid duplication. A joint review panel agreement can be negotiated between the federal government and other jurisdictions, and we heard that this provision should include Indigenous communities with jurisdictional rights and interests. Such agreements should include provisions for Indigenous communities to appoint joint panel members.

Cumulative effects

We heard from communities and organizations that cumulative effects are not being adequately assessed or addressed. Each proposed project is considered as a stand-alone project due to the sequential and linear approach to assessing project effects. A holistic and comprehensive approach to regulatory processes should be used to take into account all project impacts, including cumulative effects and those indicated in regional impact assessments. It should be the responsibility of the federal government to identify potential cumulative impacts, in cooperation with Indigenous communities, and inform potential developers of these considerations. We heard that it is only through ongoing discussions, enabled by a jointly agreed upon process, that the appropriate guidance to the planning and management of cumulative effects can be provided.

2.4 Capacity Building

Capacity funding

Capacity funding is one of the most consistently mentioned obstacles for Indigenous communities and organizations to participate meaningfully in the assessment and consultation processes. There is significant and highly developed expertise and capacity to participate in the impact assessment process, but there is often a lack of funding to support participation in the processes. The amount of funding typically received through the participant funding program is inadequate for communities to do a thorough review of applications and supporting documents. Without sufficient and timely funding, many Indigenous communities and organizations are unable to fully participate in these processes, leading to gaps in the assessments. Participant funding should be provided for participation at the earliest stage in the process, so that the burden of costs are not carried by the Indigenous group. Recurrent funding should be granted to the communities so that they can establish and maintain a multidisciplinary team related to impact assessment consultations. Participant funding programs must be well known and easily accessible by communities. As Indigenous, communities continue to take on increased responsibilities in the assessment process; the amount of funding received should reflect the growing amount of work being completed.

Ongoing capacity building

We heard that one way to improve meaningful Indigenous participation and engagement is to provide adequate and continuous funding. It is essential to a fair and balanced consultation process and to ensure a level playing field between Indigenous nations and the Crown.

A funding program should be established to provide long-term support that is responsive to the needs and contexts of diverse Indigenous peoples. There should be realistic levels of sustained investment on a government-to-government basis. Capacity funding for non-project-specific training should be provided. This funding could be used to train community members and staff in order to better understand the assessment process, and ways the community can participate.

In addition to funding, non-financial capacity building, such as training and education, should be provided.

2.5 Sustainability

We heard that sustainability must be an overarching goal of the Act and of impact assessment generally. The ideal framework for project assessment should not be “mitigation of significant effects” but examined rather by its “contribution to sustainability.” To this end, we heard that the planning phase should include sufficient studies that ensure the sustainability of a project.

Indigenous communities and organizations also emphasized recommendations from the Expert Panel, including to honor and operationalize the five pillars of sustainability, with a clear influence and recognition of Indigenous knowledge, rights and interests during all assessment phases and processes; and to create project and government expert committees to identify potential impacts and assess them against sustainability criteria. Cultural sustainability must also be considered, and the lens of seven-generation stewardship should be applied to impact assessments. The goal of sustainability is also in line with the UN Declaration, and is consistent in achieving other biodiversity and climate change targets under international agreements to which Canada is a signatory.