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Policy Context: Assessment of Potential Impacts on the Rights of Indigenous Peoples

Objective

The objective of this policy context is to fulfill the legislated requirements in the Impact Assessment Act (IAA) to assess potential adverse impacts on the rights of Indigenous peoples in a federal impact assessment of designated projects in a manner that fosters reconciliation with Indigenous peoples, meets constitutional obligations, and upholds the honour of the Crown.

Introduction

The IAA requires that potential adverse impacts on the rights of Indigenous peoples be assessed as part of a federal impact assessment of a designated project. The IAA mandates the Government of Canada, the Minister, the Impact Assessment Agency of Canada (the Agency) and federal authorities to exercise their powers in a manner that fosters sustainability, respects the Government’s commitments with respect to the rights of the Indigenous peoples of Canada and applies the precautionary principle.

Indigenous peoples have a special constitutional relationship with the Crown, reflected in section 35 of the Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights, and in the various treaties and protocols reached with Indigenous communities across Canada. The Government of Canada recognizes that reconciliation is a fundamental purpose of section 35, and recognizes that it must uphold the honour of the Crown in all of its dealings with Indigenous peoples.Footnote 1

The rights of Indigenous peoples are reaffirmed internationally in the United Nations Declaration on the Rights of Indigenous Peoples (the UN Declaration). The rights described in the UN Declaration constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples. Several Articles in the UN Declaration relate to the rights of Indigenous peoples in relation to the management of their traditionally owned or otherwise occupied and used lands.Footnote 2 Canada has committed to fully implement the UN Declaration in the Canadian context, and the preamble of the IAA reaffirms this commitment.

The principles described below are provided to guide the approach to assessing potential impacts on the rights of Indigenous peoples, in the context of the IAA, in a manner that accords with this broader context and these commitments, obligations and legal principles.

The Common Law Duty to Consult and the Impact Assessment Act

The Government of Canada has statutory, contractual and common law obligations to consult with Indigenous peoples, in addition to consulting for the purpose of good governance. The common law duty to consult is based on judicial interpretation of the obligations of the Crown in relation section 35 of the Constitution Act, 1982, and stems from the Honour of the Crown and the unique relationship between the Crown and Indigenous peoples. The Crown has a duty to consult, and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or treaty rights.

Federal activities and decisions related to major projects may trigger the common law duty to consult, and since 2006, the Government of Canada has relied, to the extent possible, on the federal environmental assessment process to fulfill the duty to consult and accommodate, as appropriate.

The introduction of the IAA adds a new statutory requirement that potential impacts on the rights of Indigenous peoples be assessed as part of an impact assessment for a designated project.Footnote 3 The statutory obligations of the IAA apply in addition to any other legal obligations that may apply in the context, such as the duty to consult and accommodate and specific treaty commitments.

Using the principles presented in this policy context to inform the assessment process will also assist federal efforts to ensure the government’s duty to consult, and where appropriate accommodate, Indigenous peoples prior to any conduct that may adversely affect their rights is met. This guidance should be applied in conjunction with, and not as a replacement for, existing guidance on the duty to consult and accommodate.

Relevant Statutes and Policy Documents

The following statutes and Government of Canada documents should be referred to when applying this policy context and associated guidance:

Guiding Principles

The following principles are provided to guide the assessment of potential impacts on the rights of Indigenous peoples, when undertaken as part of an impact assessment under IAA:

  1. The assessment of impacts on the rights of Indigenous peoples should be consistent with Government of Canada commitments with respect to recognition, protection, and upholding of the rights of Indigenous peoples.
    • The approach to assessing potential impacts on the rights of Indigenous peoples should be consistent with the recognition of the rights of Indigenous peoples as described in the Principles respecting the Government of Canada's relationship with Indigenous peoples.
    • The impact assessment process is not a process for rights determination.
    • The focus of the assessment is to understand how the exercise of rights may be affected by a designated project, and the assessment should be based on the rights as articulated by the rights-holding Indigenous group.Footnote 4
    • An understanding of the nature, scope and content of a right is often necessary in order to understand how the ability to exercise the right might be affected by a project.
    • The rights of Indigenous peoples that may be considered for the purpose of an impact assessment should be inclusive of all Aboriginal and treaty rights, including Aboriginal title, as presented by the rights-holding Indigenous group.
  2. The assessment of potential impacts on rights is to be conducted in partnership with the affected rights-holding Indigenous group, through their representatives, with the aim of reaching consensus on the content of the assessment.
    • As affirmed in the Principles respecting the Government of Canada's relationship with Indigenous peoples, "the Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources."Footnote 5
    • The Crown, federal authorities and proponents should seek to work collaboratively with a rights-holding Indigenous group on both the process and substance of the assessment through the representative body or collective that represents, and whose legitimacy is recognized by, the rights-holders.
    • While collaborative approaches should be encouraged and supported wherever appropriate, in some cases active collaboration with Indigenous groups may not be possible. At a minimum, the Crown will seek to consult all potentially affected rights-holding Indigenous groups.
    • Consensus on the content and process of the assessment of impacts on rights establishes a common understanding of potential impacts, and can foster the broader aim to secure free, prior, and informed consent. Beginning in the Planning phase of the impact assessment, the Crown will engage with Indigenous groups to establish meaningful consultation and, where possible, collaborative approaches through which the Crown and the Indigenous group can work toward a common understanding of potential impacts on rights and consensus on the assessment.
  3. The methodology for the assessment of impacts on rights should be informed by or, where possible, developed in collaboration with the rights-holding Indigenous group.
    • Collaboration with potentially impacted Indigenous groups on the assessment of impacts on their rights is encouraged whenever possible, and should be facilitated by the Crown to the extent feasible.
    • How rights are characterized in the assessment process, including how the rights are exercised and may be impacted, should be articulated by the Indigenous group.
    • The value or importance of factors that inform a right and how it is exercised will often differ between Indigenous groups. The approach to assessing impacts on a particular right should be based on the perspective and values as identified by the rights-holding Indigenous group.
  4. The assessment of impacts on the rights of Indigenous peoples must be informed by Indigenous knowledge, if provided in relation to the assessment for that purpose.
    • When Indigenous knowledge is provided to inform the assessment of how a designated project may impact the exercise of Indigenous rights, the knowledge must be applied for that purpose.
    • Federal policy and best practices with respect to ownership, control, use and safeguarding of Indigenous knowledge should be followed.
  5. The specific context in which rights exist and may be exercised should be considered at the outset to inform the assessment of potential impacts.
    • The exercise of rights may be affected by contextual factors including current and historical environmental, health, social and economic conditions. Understanding how a proposed project may affect the ability of Indigenous peoples to exercise their rights requires an understanding of the baseline context in which those rights exist and may be practiced.
    • An evaluation of the baseline conditions and context needs to be carried out early on in the assessment process. This preliminary work needs to include whether the present ability of the community to exercise rights has been diminished due to factors such as cumulative adverse effects and historical or current interferences with traditional practices. This early work will inform an evaluation of how resilient the community’s current ability to exercise their rights may be in the context of changing conditions. This will inform the assessment of the potential impact(s) of the proposed project on the community’s ability to exercise their rights.
    • The study of contextual factors and baseline conditions should be undertaken in partnership with the Indigenous group whenever possible. Existing studies of baseline conditions completed by the Indigenous group should be used, when available.
  6. A broad and holistic approach should be taken to understanding the rights of Indigenous peoples and how the ability of the rights-holding Indigenous group to exercise those rights may be impacted by the project.
    • In conjunction with the preceding principles, a broad and holistic approach to understanding how specific Indigenous groups view and understand their rights as well as how they prefer to exercise them should inform the impact assessment.
    • A holistic approach recognizes that the ability to exercise a right is related to the specific context in which the right is exercised, and that the impacts on rights may be interrelated with other impacts from the project.
    • How rights are exercised may be shaped and supported by the range of customs, practices, values, cultural and spiritual beliefs, and traditions of the community, as well as by the conditions of the biophysical environment.
    • The assessment of potential impacts on rights should also include consideration of how the effects of a project could affect title and governance rights, including self-governance and self-determination.
    • A broad and holistic interpretation recognizes that the social, spiritual and/or cultural experience associated with a practice can be integral to how a particular Indigenous group or its members exercise a right. This may require taking into account:
      • importance and value as perceived and experienced by the Indigenous group;
      • preferred ways of continuing customs, traditions and practices; and/or
      • spiritual or cultural connection to a place or practice.
  7. Community-defined thresholds and measures for key indicators, where they exist, should be part of the assessment.
    • In instances where an Indigenous community has defined and established relevant thresholds and measures that inform acceptable impacts on their rights, these should be considered in the assessment. In many cases, community-defined thresholds and measures will take into account many of the context and value-based considerations necessary to inform an assessment of impacts on rights specific to that community.
  8. A combination of quantitative and qualitative methods may be necessary for a comprehensive and meaningful assessment of potential impacts on the rights of Indigenous peoples.
    • Given the interconnectedness of the practice of rights with social, cultural, spiritual, health, economic, and environmental factors, a variety of qualitative and quantitative methods may be required to develop a comprehensive assessment of how the project may impact the exercise of rights. This should include applying an impact pathwaysFootnote 6 approach that allows for evaluation of linkages between: the project component or activity; the effects of the project on the environment and social, economic, cultural, and health conditions; and the direct or indirect impacts on the exercise of Aboriginal and treaty rights.
    • Impact pathways included in the assessment should be incremental to what already exists; be causally linked to the proposed project or activity; and not be hypothetical, such that no reasonable determination could be made as to the extent or magnitude of the potential impact.
    • The rights-holding Indigenous group should be consulted and invited, wherever possible, to partner or lead in the selection and designing of the methods to be used to inform the assessment.
  9. The assessment should be transparent in terms of both process and content, and conducted in a manner that fosters trust and contributes to meaningful consultation.
    • Transparency of process and information are necessary for a fair and credible impact assessment process. Transparency is also fundamental for building trust and for upholding the honour of the Crown, which requires that the Government of Canada act with honour, integrity, good faith and fairness in all of its dealings with Indigenous peoples.
  10. The objective of the assessment of impacts on rights is to work towards mutually agreeable measures to address adverse impacts that would allow for the continued exercise of rights, should the project proceed.
    • When potential adverse impacts are identified in the assessment, all parties should work together to identify possible measures to address the impacts.
    • Dialogue to develop possible measures to address impacts should begin as early as possible in the assessment process. When adverse impacts appear likely, proponents, Indigenous groups, and the Crown are encouraged to start contemplating possible approaches to address impacts, and to revise, update or confirm the proposed measures based on the outcome of the completed assessment of impacts.
    • The Crown will lead discussions with other federal departments and agencies, as well as with provincial or territorial partners, where appropriate, to work towards solutions.
    • Proponents are encouraged to work with Indigenous groups to find project-based measures to address adverse impacts on the exercise of rights.

In Summary

  1. The assessment of impacts on the rights of Indigenous peoples should be consistent with Government of Canada commitments with respect to recognition, protection, and upholding of the rights of Indigenous peoples.
  2. The assessment of potential impacts on rights is to be conducted in partnership with the affected rights-holding Indigenous group, through their representatives, with the aim of reaching consensus on the content of the assessment.
  3. The methodology for the assessment of impacts on rights should be informed by (or where possible, developed in collaboration with) the rights-holding Indigenous group.
  4. The assessment of impacts on the rights of Indigenous peoples must be informed by Indigenous knowledge, if provided in relation to the assessment for that purpose.
  5. The specific context in which rights exist and may be exercised should be considered at the outset to inform the assessment of potential impacts.
  6. A broad and holistic approach should be taken to understanding the rights of Indigenous peoples and how the ability of the rights-holding Indigenous group to exercise those rights may be impacted by the project.
  7. Community-defined thresholds and measures for key indicators, where they exist, should be part of the assessment.
  8. A combination of quantitative and qualitative methods may be necessary for a comprehensive and meaningful assessment of potential impacts on the rights of Indigenous peoples.
  9. The assessment should be transparent in terms of both process and content, and conducted in a manner that fosters trust and contributes to meaningful consultation.
  10. The objective of the assessment of impacts on rights is to work towards mutually agreeable measures to address adverse impacts that would allow for the continued exercise of rights, should the project proceed.

Annex 1: Relevant Legislative Provisions of the Impact Assessment Act

Factors to be taken into account — Designation of Physical Activity

9 (2) Before making the order, the Minister may consider adverse impacts that a physical activity may have on the rights of the Indigenous peoples of Canada — including Indigenous women — recognized and affirmed by section 35 of the Constitution Act, 1982 as well as any relevant assessment referred to in section 92, 93 or 95.

Factors — Agency's Decision [whether an impact assessment of designated project is required]

16 (2) In making its decision, the Agency must take into account the following factors:

… (c) any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;

Factors — impact assessment

22 (1) The impact assessment of a designated project, whether it is conducted by the Agency or a review panel, must take into account the following factors:

… (c) the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;

Referral to review panel — Public interest

36 (2) The Minister's determination regarding whether the referral of the impact assessment of the designated project to a review panel is in the public interest must include a consideration of the following factors:

… (d) any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

Factors — public interest

63 The Minister's determination under paragraph 60(1)‍(a) in respect of a designated project referred to in that subsection, and the Governor in Council's determination under section 62 in respect of a designated project referred to in that subsection, must be based on the report with respect to the impact assessment and a consideration of the following factors:

… (d) the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

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