Interim Guidance: Indigenous Participation in Impact Assessment

This document provides interim guidance to the public, Indigenous communities and organizations, and proponents on the various means by which Indigenous peoples could participate in consultations on the Impact Assessment Act. This document may change as a result of ongoing engagements with Indigenous peoples and policy work on Indigenous participation, collaboration and cooperation. The guide should be treated as preliminary.   

Table of Contents


1. Introduction

The integration of Indigenous participation in impact assessments supports the Government’s commitment to reconciliation by providing tools for effective and meaningful participation with Indigenous peoples during the assessment process.

Reconciliation needs to be at the centre of all aspects of the Government of Canada’s relationship with Indigenous peoples, who have a distinct and special Constitutional relationship with the Crown that extends beyond the general principles and requirements of public participation.

2. Purpose 

The purpose of this interim guidance document is to provide the public, proponents and Indigenous peoples with information on how the Impact Assessment Agency of Canada (the Agency) will engage Indigenous peoples throughout the impact assessment process for designated projects. Participation, collaboration and partnership with Indigenous peoples in impact assessment fall on a spectrum of engagement. The spectrum is detailed in the “Interim Policy Context: Indigenous Participation in Impact Assessment”. The separate interim policy context also sets out the overarching principles that will govern the approach to Indigenous participation in impact assessment.

3. Tools to Support Indigenous Participation in Impact Assessment

Indigenous participation can take many forms and the Impact Assessment Act (the Act) provides tools and flexibility to engage with Indigenous groups. The Agency is undertaking significant policy work on collaboration and partnership, and further guidance on collaboration is also available.

Tools for participation in impact assessment include:

4. Guidance by Phase of the Impact Assessment

This section describes the phases of the impact assessment process and participation opportunities in each phase. Throughout the impact assessment process, the Agency is the Crown Consultation Lead on behalf of the federal government and the one-window for Indigenous groups participating in the impact assessment. As the Lead, the Agency is responsible, beginning in the Planning Phase, for coordinating participation of federal authorities and other jurisdictions in consultations with Indigenous communities and organizations and maintaining the Crown Consultation record. Expert federal authorities and, where appropriate, lifecycle regulators, have a significant role to play in supporting Indigenous participation in impact assessment. They participate in dialogues with Indigenous groups, provide their expertise and knowledge to address concerns raised by Indigenous groups, and identify potential mitigation or accommodation measures. In the case of a designated project regulated by a lifecycle regulator, the lifecycle regulator and the Agency will collaborate in each step of the impact assessment process. The Agency will transfer the Crown Consultation Lead function to the lead federal authority, or lifecycle regulator, once the impact assessment decision has been made. More information on roles and responsibilities can be found in chapter five of this guide.

Example: Early Engagement Pilot Project under CEAA 2012

Two open-pit coal mine projects are being proposed in B.C.’s Elk Valley. If built, the projects would be within the traditional territory of a First Nation. The Agency is working with the First Nation to pilot early engagement funding for these environmental assessments to assist Indigenous groups in advance of the Impact Statement stage. Specifically, this pilot is seeking to support the First Nation’s Council’s involvement in:

  • the development of a formalized consultation agreement with the Agency;
  • identification, early in the process, of Aboriginal rights, title and interests in the Projects’ areas, including preliminary concerns, and potential impacts on Aboriginal rights, title and interests and mitigation and accommodation measures to address those impacts; and
  • development and implementation of communication products about the Project and engagement activities for use with their communities.

4.1 Indigenous Participation in the Planning Phase

When a project is identified as a designated project in the Physical Activities Regulations, it will be subject to the Planning Phase under the Act. The Planning Phase objectives include enabling early discussions and fostering greater collaboration between proponents, Indigenous peoples, stakeholders, the public and the Crown (Government of Canada) from the start. Ideally, early planning will identify the key issues, including potential impacts on Aboriginal and treaty rights, which will be the focus of problem-solving efforts during the subsequent phases of the impact assessment. The time limit of the Planning Phase is 180 days.

Upon the submission of an initial project description by a proponent, the Agency will undertake a review to identify the Indigenous communities that may be impacted by the project. The list of Indigenous communities that the proponent may have identified will help inform this review, as will the participation of communities that express an interest in participating. The Agency will contact Indigenous communities and organizations to notify them that a potential project is being contemplated that may impact their rights or interests, invite them to participate in the Planning Phase, and offer them funding. Indigenous groups who were not originally identified and who express an interest in participating in the impact assessment will be included in the participation activities, as appropriate.

Contributing to the Planning phase will provide Indigenous communities with the opportunity to:

The Agency will prepare a Summary of Issues raised by the public, Indigenous communities and stakeholders. The Summary of Issues will reflect key issues identified through discussions with Indigenous communities and organizations and be developed, to the extent possible, collaboratively in the course of engagement. The proponent will receive the Summary, which will be posted on the Canadian Impact Assessment Registry (the Registry).

During the Planning Phase, the Agency must make a decision about whether an impact assessment is required. This decision will take into consideration the possible adverse impacts the project may have on Aboriginal and treaty rights. If an impact assessment is required, a number of documents must be developed for the end of the Planning Phase including the Indigenous Engagement and Partnership Plan and Tailored Impact Statement Guidelines. A Cooperation Plan must also be developed to align processes where another jurisdiction has an impact assessment responsibility, including an Indigenous jurisdiction.

The Indigenous Engagement and Partnership Plan will be developed collaboratively with potentially impacted Indigenous communities. It would identify how participation and consultation could occur throughout the impact assessment process, including where Indigenous communities are seeking collaboration and ­partnership. The Plan will be posted on the Registry. Community-specific plans or protocols may also be developed to provide further details on engagement in the impact assessment process on issues identified in the Indigenous Engagement Partnership Plan.

Indigenous communities will also be consulted on the Tailored Impact Statement Guidelines, identifying how Indigenous knowledge should be considered and protected in the impact statement, potential impacts from the project, including on rights, and valued components or studies to be undertaken—with or by Indigenous communities or organizations. Indigenous engagement on the guidelines could also inform the process of evaluating the scope of factors to be considered in the impact assessment. The final documents will be posted to the Registry with a notice of the commencement of the impact assessment.

What would be included in an Indigenous Engagement and Partnership Plan?

The Indigenous Engagement and Partnership Plan, developed collaboratively with Indigenous communities, will provide greater clarity and predictability about how and when Indigenous peoples will participate in the impact assessment. At a minimum, the following information would be included:

  • list of Indigenous groups that may be impacted by the project;
  • how Indigenous groups have said they want to be consulted;
  • when the Indigenous groups will have an opportunity to participate, including which groups may collaborate or partner with the Agency on aspects of the assessment; and
  • consultation protocols to be followed for each community, where applicable.

The plan may also include details such as:

  • cultural practices to be followed;
  • expectations for time allotted for review, dialogue and collaboration;
  • language or format of information shared;
  • how Indigenous governments will be kept informed;
  • technical working committees to be formed;
  • specific studies that an Indigenous group may lead or participate in;
  • how various Indigenous groups choose to work together in the assessment; and
  • how Indigenous knowledge will be used and protected.

In the case of a designated project regulated by a lifecycle regulator, the lifecycle regulator will participate in early engagement activities, including identifying the list of Indigenous groups, providing technical expertise and advice for the development of key documents and participating in Indigenous consultation activities.

4.2 Indigenous Participation in the Impact Statement Phase

During the Impact Statement phase, the proponent prepares the Impact Statement. The proponent manages how long it needs to develop the document, but has three years from the issuance of the notice of commencement to provide the Agency with the required information and studies, unless an extension has been granted. The proponent engages with Indigenous communities during this phase to share information about the project, seek their participation in studies and gather knowledge and information, as outlined in the Tailored Impact Statement Guidelines.

Indigenous communities may have relevant Indigenous knowledge to provide to the proponent in the development of the Impact Statement, as well as other information related to environmental, economic, social, gender and cultural impacts. The Impact Statement would also include results of studies conducted by or with Indigenous communities that were identified in the Tailored Impact Statement Guidelines. The Agency will follow provisions and regulations in the Act in order to respect the confidential nature of certain types of Indigenous knowledge. Separate guidance on the consideration and protection of Indigenous knowledge has been developed and made available.

The Agency will continue to engage with Indigenous communities, as required, building on the work conducted in the Planning Phase. Where appropriate, the Agency may continue to collaborate with Indigenous communities to develop consultation plans specific to each community, and an approach to assessing potential impacts on the exercise of Aboriginal and treaty rights.

In this phase, the Agency, and where appropriate a lifecycle regulator, will do a preliminary analysis of information received from Indigenous communities. The Agency will continue to work with Indigenous groups, proponents, and federal authorities to identify potential options to mitigate and/or accommodate impacts.

4.3 Indigenous Participation in the Impact Assessment Phase for Agency-led Assessments

The Agency is responsible for conducting the impact assessment based on the Impact Statement submitted by the proponent. The participation of Indigenous communities and organizations during this phase will occur as set out in the Indigenous Engagement and Partnership Plan. The time limit for the impact assessment phase is 300 days for an assessment by the Agency.

During this phase, the Agency reviews the Impact Statement in consultation with Indigenous communities, expert federal authorities, and other jurisdictions. Consultation with Indigenous communities will include a dialogue on potential mitigation or accommodation measures needed to help address potential impacts on rights.

What does Indigenous participation look like in this phase?

How Indigenous communities participate will vary and depend on their interest, preferred practices for consultation, and the degree to which they may be impacted by the project. The specific activities for each community would be outlined in the Indigenous Engagement and Partnership Plan.

Examples include:

  • submission of written information;
  • virtual meetings;
  • face-to-face meetings in the community;
  • correspondence with the Agency and other federal authorities, as required; and
  • drafting sections of key documents.

The Agency will consider any information provided by Indigenous communities, organizations and others as it develops its Impact Assessment Report. The Report must describe the project’s potential for adverse impacts on Indigenous rights and it must identify a list of proposed conditions that must be met and may be included in a Decision Statement. These proposed conditions may serve to further mitigate or accommodate potential adverse impacts on Aboriginal and treaty rights. The Agency must also document in the Report how Indigenous knowledge provided with respect to the project was considered in the assessment.

The Agency will engage with interested Indigenous communities on the draft Report and proposed conditions to discuss any residual project impacts, taking into account mitigation measures proposed by the proponent and potential accommodation measures. In addition to the Impact Assessment Report, the Agency will develop a Consultation Summary, which will include context for the Minister regarding the adequacy of consultations. The Agency will work with Indigenous communities on the Consultation Summary document, and Indigenous communities may wish to draft sections of the Summary.

Where an Indigenous-led assessment is occurring in parallel or in cooperation with the impact assessment, the Agency will consider the results of the Indigenous-led assessment in the development of its Impact Assessment Report and proposed conditions.

Further opportunities for collaboration in this phase may include co-drafting sections of the Impact Assessment Report, and co-development of mitigation and/or accommodation measures, and approaches where the Crown is working in partnership with communities in conducting the assessment.

4.4 Indigenous Participation in the Impact Assessment Phase for Review Panels

For a project that is assessed by a Review Panel, the panel will prepare the Impact Assessment Report. If, following the Planning Phase, the Minister determines that a Review Panel will conduct an impact assessment, the Agency will consult with Indigenous communities and organizations on draft Terms of Reference for the panel prior to the appointment of the panel. The maximum time line for an impact assessment by Review Panel is 600 days. For integrated panel reviews with lifecycle regulators (the Canadian Nuclear Safety Commission, the Canada Energy Regulator and the Offshore Boards), the timeline would be 300 days, but the Agency could lengthen it to a maximum of 600 days, if needed, for more complex projects.

Example: Indigenous-Led Assessment

During the course of the environmental assessment for the Ajax Copper-Gold Mine in BC, the Stk'emlúpsemc te Secwépemc Nation (SSN) Joint Council carried out its own assessment process for the Project. This assessment process was designed to assess impacts of the Project in a way that respected SSN knowledge and perspectives and facilitated informed decision-making by their communities consistent with their laws, governance, traditions and customs. The SSN’s assessment was provided to the Minister. The Agency engaged deeply with SSN, and made efforts to align the federal environmental assessment with SSN’s assessment process to the extent possible.

In the impact assessment phase, the Review Panel will review the Impact Statement, and then hold a public hearing. Indigenous communities will be invited to provide any information that they may have to the Review Panel as early in the impact assessment phase as possible. Input to the Review Panel could be provided in written, oral or other formats, depending on the Indigenous communities’ preferences and on the direction of the Review Panel.

The Agency will be responsible for leading Crown Consultation during the impact assessment by Review Panel, with support from other federal authorities, to discuss potential mitigation and other accommodation measures with Indigenous communities, as appropriate. Agency-led consultations will continue during the public hearing. However, potentially affected Indigenous communities will be strongly encouraged to participate actively in the public hearing to bring forward their perspectives on the impact assessment information for the Review Panel’s consideration as it carries out its responsibilities in assessing the potential impacts of the project and drafting the Impact Assessment Report.

Where circumstances may allow for an alternative or additional approach, Indigenous communities could also choose to collaborate with the Agency to develop and apply a methodology for assessing potential impacts on Aboriginal and treaty rights.

The Review Panel will prepare its Report containing its conclusions and recommendations following the completion of the public hearing. Recommendations must reflect consideration of the project’s potential impacts on Indigenous peoples and their rights, together with the other factors that must be considered as set out in the proposed Act, or other applicable federal statutes, for projects regulated by lifecycle regulators.

Once the panel submits its Report to the Minister of Environment and Climate Change, the Agency will consult with Indigenous communities and organizations on the Panel Report. Consultations on the Report include whether the panel has accurately explained the nature and scope of Aboriginal and treaty rights, the potential impacts on those rights, and the identification of any outstanding issues that may still require further mitigation or accommodation.

The Agency will also be responsible for preparing a Crown Consultation and Accommodation Report that documents the outcomes of the consultation process. The Agency will share a draft version of the Crown Consultation and Accommodation Report with Indigenous communities for their review and feedback. Collaboration in this phase could include co-drafting relevant sections of the Crown Consultation and Accommodation Report and collaborating on methodology for the assessment of rights (see inset).

Example: Working with Indigenous Communities on Impact on Rights Assessment

During the environmental assessment for the Frontier Oil Sands Mine, the Agency co-developed a methodology for assessing potential impacts on Aboriginal or Treaty rights with the Mikisew Cree First Nation. The authors submitted the methodology to the Review Panel doing the environmental assessment for its consideration. The Government of Canada applied the methodology to a preliminary assessment of potential impacts from the proposed project on Aboriginal and Treaty rights of the Mikisew Cree First Nation, and Athabasca Chipewyan First Nation. The preliminary assessment was provided in a whole-of-government submission to the Joint Review Panel.

The Agency will also develop proposed conditions for possible inclusion in a Decision Statement. These proposed conditions may serve to further mitigate or accommodate potential adverse impacts on Aboriginal and treaty rights. The Agency will invite Indigenous communities to provide comments on the proposed conditions. Upon receiving and incorporating relevant comments on the Crown Consultation and Accommodation Report and proposed conditions, the Agency will submit both to the Minister of Environment and Climate Change for consideration in decision-making.

In the case of an integrated review with a lifecycle regulator, the Review Panel will include proposed conditions in the panel’s report. The proposed conditions will be informed by the Agency, the lifecycle regulator and other federal authorities during the impact assessment process. Indigenous groups will be invited to comment on the proposed conditions.

4.5 Indigenous Participation in the Decision-Making Phase

Indigenous communities will have had an opportunity to inform or, in some cases, co-draft sections of the Consultation Summary or Crown Consultation and Accommodation Report, as outlined below, and to provide views on the adequacy of consultation throughout the impact assessment process.

Example: Changes to Conditions Resulting from Consultation

Murray River Coal Mine:

As a result of consultation, the proponent is required to work with the relevant First Nations on protecting caribou (condition 7.13).

Coté Gold Mine:

If the proponent does not start construction within five years, it must, in consultation with Indigenous communities, determine if there have been any changes to the current use of land and resources for traditional purposes and implement additional mitigation if required (condition 5).

In making a decision on the project, the Minister or the Governor in Council must consider the Impact Assessment Report, or Panel Report, the Consultation Summary or Crown Consultation and Accommodation Report, and any views submitted by Indigenous communities on the adequacy of consultation. The consultation report and views of Indigenous communities will inform the Minister, or the Cabinet, of whether the duty to consult has been met and whether consent was achieved throughout the impact assessment process.

In addition, to inform decision-making, Indigenous communities will have been consulted by the Agency on proposed conditions for the project prior to their submission to decision-makers. Reasons for the decision will be made publicly available and will address how decision-makers considered potential impacts on Indigenous peoples and rights. The public interest determination must consider impacts on Indigenous peoples and their rights as one of five public interest factors included in the Act in addition to the Impact Assessment Report.

4.6 Indigenous Participation in the Follow-up, Monitoring, and Compliance and Enforcement Phase

Under the Act, there will be increased opportunities for Indigenous participation in follow-up and monitoring. Where circumstances warrant, the Agency will establish Environmental Monitoring Committees that would help provide additional confidence in the science and evidence used in follow-up and monitoring programs.

The Agency will work with communities throughout the assessment process to identify and enable increased opportunities for participation in monitoring, including monitoring potential impacts on rights, and efficacy of mitigation and/or accommodation measures.

5. Roles and Responsabilities

The following section sets out the key roles and responsibilities of participants during an impact assessment process under the Impact Assessment Act.

5.1 The Agency (Crown Consultation Lead):

The Role of Federal Authorities

Federal authorities support Crown–Indigenous consultation and participation by providing expertise within their mandate throughout the entire process, as required. The Agency, as the Crown Consultation Lead for projects, will work closely with federal authorities to ensure a whole-of-government approach to consultation, and avoid duplication of effort.

Federal authorities, including expert departments, will provide support and participate in consultations with Indigenous communities, for both Agency-led consultations and for Review Panels as needed. In cases where a project will be regulated by the Canada Energy Regulator, the Canadian Nuclear Safety Commission, or the Offshore Petroleum Boards, the lifecycle regulator would be a key participant in consultations. This will help to ensure a smooth transition to the lifecycle regulator for monitoring and the regulatory compliance phase, should the impact assessment decision allow the project to proceed. The participation of other federal authorities through all stages of the impact assessment is important to ensure the potential impacts on Indigenous peoples and rights are well understood by all parties, and to facilitate earlier identification of possible mitigation or accommodation measures to address adverse impacts.

5.2 Review Panel

5.3 The Proponent

The proponent and Indigenous communities may also discuss the negotiation of third-party, bilateral agreements; while so doing, the proponent would keep in mind its ongoing engagement activities and assessment of potential project impacts.

5.4 Indigenous Communities and Organizations

5.5 Federal Authorities

5.6 Lifecycle Regulators, where applicable

Annex A – Legislated clauses of the Impact Assessment Act that relate to Indigenous Consultation and Participation

Preamble

Whereas the Government of Canada is committed, in the course of exercising its powers and performing its duties and functions in relation to impact, regional and strategic assessments, to ensuring respect for the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, and to fostering reconciliation and working in partnership with them;

Whereas the Government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples;

6 (2) Purpose of the Act

Mandate

The Government of Canada, the Minister, the Agency and federal authorities, in the administration of this Act, must 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.

Section 12: Agency’s Obligation — offer to consult

For the purpose of preparing for a possible impact assessment of a designated project, the Agency must offer to consult with any jurisdiction that has powers, duties or functions in relation to an assessment of the potential effects of the designated project and any Indigenous group that may be affected by the carrying out of the designated project.

Section 14: Agency’s obligation — summary of issues

(1) The Agency must provide the proponent of a designated project with a summary of issues with respect to that project that it considers relevant, including issues that are raised by the public or by any jurisdiction or Indigenous group that is consulted under section 12, and with any information made available to it by a federal authority that the Agency considers appropriate.

Section 18: Notice of commencement

(1) If the Agency decides that an impact assessment of a designated project is required — and the Minister does not approve the substitution of a process under section 31 in respect of the designated project — the Agency must, within 180 days after the day on which it posts a copy of the description of the designated project under subsection 10(2), provide the proponent of that project with

An Impact Assessment by either the Agency or a Review Panel must take into account the following factors:

Section 22: Factors — Impact Assessment

Section 36: Public Interest

(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:

Decision-making

Section 63: Factors — public interest

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:

Impact Assessment Agency of Canada

Section 155: The Agency’s objects are:

Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: