Policy Context: Indigenous Participation in Impact Assessment

Table of Contents

• 1. Introduction
  • 1.1 Purpose
  • 1.2 Statutory Requirements of the Impact Assessment Act for designated projects
• 2. Enabling Indigenous Participation in Impact Assessment
  • 2.1. Crown Consultation
  • 2.2. Spectrum of Engagement
• 3. Tools to Support Indigenous Engagement in Impact Assessment
• 4. Additional Information

1. Introduction

Indigenous peoples have a unique role in the Crown's assessment of the impacts of major projects. The Impact Assessment Act recognizes the special Constitutional relationship between the Crown and Indigenous peoples and the particular perspectives and interests they bring to the process.

Reconciliation needs to be at the centre of all aspects of the Government of Canada’s relationship with Indigenous peoples. The approach of including Indigenous peoples in impact assessment, such as through the early identification of potential impacts of projects on Aboriginal and treaty rights, or the development of Indigenous-led studies, reflects the Government of Canada’s commitment to advancing reconciliation through a renewed, nation-to-nation, Inuit-Crown and government-to-government relationship based on the recognition of rights, respect, cooperation and partnership. Participation of Indigenous peoples in impact assessment aligns with the Government of Canada’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples and supports the Government of Canada’s aims to secure free, prior and informed consent for decisions that affect Indigenous peoples’ rights and interests.

The integration of Crown Consultation into impact assessment also supports these objectives by providing tools and opportunities for the effective and meaningful participation of Indigenous peoples in the assessment of projects that may adversely affect their rights and interests. Crown Consultation goals include maintaining an open two-way dialogue between Crown officials and Indigenous communities on issues of concern in order to pursue solutions and to identify accommodation measures. Through this dialogue, various collaboration and partnership opportunities may be identified during the impact assessment process.

1.1 Purpose

The purpose of this policy context 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 within a spectrum of engagement, further detailed in this document.

A guide on Indigenous Participation in Impact Assessment provides additional detail on how Indigenous peoples may choose to participate throughout each phase of the impact assessment process.

1.2 Statutory Requirements of the Impact Assessment Act for Designated Projects

The Impact Assessment Act includes specific provisions to ensure impact assessments are conducted in a manner that respects the rights of Indigenous peoples, advances inter-jurisdictional cooperation, where applicable, and integrates Indigenous knowledge into the decision-making process. The Agency, federal authorities, and decision-makers are required to exercise their powers in a manner that respects the Government’s commitments with respect to the rights of Indigenous peoples.

Under the Act, the Agency must offer to consult with any Indigenous group that may be affected by the designated project. Consultation approaches throughout the impact assessment process will reflect the nature and potential adversity of impacts on Aboriginal and treaty rights. The Act also requires that impact assessments address impacts on Indigenous peoples, Aboriginal and treaty rights, traditional use of lands and resources, and any considerations related to Indigenous culture. Impacts on Indigenous peoples and rights must be explicitly addressed at key decision points, including the decision on whether to require an impact assessment, and the final public interest determination.

2. Enabling Indigenous Participation in Impact Assessment

The Agency consults with and encourages the participation of Indigenous peoples in the impact assessment of projects for a variety of reasons, including:

• to promote communication, relationship-building, cooperation and partnership with Indigenous peoples with respect to impact assessments;
• to meet the Crown’s common law duty to consult by ensuring respect and protection of the rights of the Indigenous peoples of Canada recognized and affirmed in section 35 of the Constitution Act, 1982;
• to ensure that impact assessments take into account Indigenous knowledge, cultural considerations and customs along with scientific information and other evidence; and
• to meet statutory and contractual obligations in addition to policy and good governance considerations, which includes working towards securing the free, prior and informed consent of Indigenous peoples for projects that are in the public interest.

2.1. Crown Consultation

The Government of Canada takes a "Whole of Government" approach to Crown consultation in the context of impact assessments to ensure that Indigenous groups are meaningfully consulted and involved in the assessment of projects that may adversely impact Indigenous communities and their rights.

For all impact assessments, the Agency integrates the Government of Canada's Crown Consultation activities into the impact assessment process to the greatest extent possible, guided by the principle of the honour of the Crown, and to further the objective of reconciliation with Indigenous peoples. The Agency leads the consultation process and coordinates participation of other federal authorities or lifecycle regulators as appropriate, enabling a “one window” point of contact for Indigenous groups throughout the process. The Agency will be responsible for coordinating Crown consultations from the Planning phase to the issuance of the Decision Statement.

It is anticipated that the role of Indigenous communities will vary for each impact assessment process and for each community participating in that process, depending on factors that may include:

• their interest in participating;
• the type and seriousness of potential impacts or cumulative impacts on the community and rights;
• the nature of the community’s interest in the lands, waters or resources that may be potentially affected (e.g., resident, land-user, traditional territory, Aboriginal title claim, etc.);
• whether it is a jurisdiction as defined in the Act; and
• any agreement that the Minister may enter into with the Indigenous jurisdiction as provided for in section 114 of the proposed Act.

2.2. Spectrum of Engagement

Participation of Indigenous groups in impact assessments should best reflect the context of a given project and the degree of seriousness of potential project impacts on Indigenous communities. As such, achieving effective and meaningful participation of Indigenous peoples in impact assessment requires a flexible and tailored approach. The spectrum of engagement can involve many different forms of Indigenous participation including collaboration and partnership with the Agency.

Participation

Indigenous communities will have the opportunity to participate in the impact assessment process. The Agency will seek that participation early and will engage with potentially impacted communities. Approaches to participation will be developed with communities with the aim of securing consent through processes based on mutual respect and dialogue.

Collaboration

Some communities may wish to collaborate with the Agency in the conduct of aspects of the impact assessment process. The Agency intends to work collaboratively with Indigenous communities to identify any potential impacts on Aboriginal or treaty rights, and to develop appropriate mitigation or other accommodation proposals that, if implemented, could address potential impacts. Collaboration may also include the development of consultation protocols for impact assessment with impacted communities.

How collaboration looks in practice will be further developed in consultation with Indigenous communities and organizations. It may include co-development of project-specific Indigenous Engagement and Partnership Plans and, in certain circumstances, enable Indigenous-led studies to inform the impact assessment or enable Indigenous participation in the co-drafting parts of assessment reports.

Further information on collaboration approaches can be found in the “Guidance: Collaboration with Indigenous Peoples in Impact Assessment”.

Partnership

In some circumstances, the Agency may work in partnership with certain communities in the conduct of the impact assessment. For example, the Agency may work with communities that are defined as Indigenous jurisdictions under the proposed Act. The Agency may also work with Indigenous communities to identify ways they can contribute the results of an assessment conducted under their own Indigenous laws, processes or cultural protocols into the impact assessment process.

3. Tools to Support Indigenous Engagement in Impact Assessment

By developing processes that are inclusive and based on mutual respect and dialogue, Indigenous communities and organizations may be able to enhance their expertise and capacity to actively participate in the impact assessment process. A variety of approaches can be applied to support more effective and meaningful participation in an impact assessment process.

An Indigenous Engagement and Partnership Plan will be developed during the Planning Phase for designated projects requiring an impact assessment under the Act. One Plan will be developed for each impact assessment, outlining at a general level the groups that will participate in the impact assessment objectives and issues identified in the Planning phase, and how they will participate, including, where available, information on proponent-led engagement activities. The Indigenous Engagement and Partnership Plan will inform community-specific engagement plans, where appropriate outlining in more detail how communities will participate to address identified issues. The Plan will be developed collaboratively during the planning phase with Indigenous communities that may be affected by a proposed project. Indigenous communities will have the opportunity to inform the Agency how they would like to participate and how they will work with the Government of Canada during the impact assessment process

The Plan will also indicate where, in certain circumstances, the Agency will work in collaboration or partnership with Indigenous communities. Further guidance will be made available separately on Crown-Indigenous partnership in impact assessments.

The Agency will be flexible in its consultation approach, and will work with Indigenous communities to find opportunities for innovative engagement practices that reflect the needs of communities and respect Indigenous cultures, traditions, customary laws and protocols, while ensuring transparency and fairness for all participants in the assessment. The Agency will be flexible in its work with Indigenous communities to ensure that Indigenous participation is meaningful and that potential adverse impacts on the exercise of Aboriginal or treaty rights are well understood, and accommodated as appropriate.

The Agency or other Government departments may also, where appropriate, work with Indigenous communities to develop consultation protocols and frameworks for collaboration that would be specific to consultation in an impact assessment context. To the extent that existing consultation protocols or agreements are relevant, such as general consultation protocols or modern treaty environmental assessment chapters, the Agency’s intention would be to follow them or build on them. Ideally, consultation protocols and frameworks for collaboration would be in place in advance of the commencement of an impact assessment, as they help provide clear expectations for all parties from the start, and they provide a basis for developing a project-specific Indigenous Engagement and Partnership Plan.

The Agency’s Funding Program will remain an important tool to support Indigenous participation, providing funding for project-specific impact assessments, starting with the Planning Phase and throughout the impact assessment process. The Agency’s Indigenous Capacity Support program will also support greater awareness and education for Indigenous groups on the impact assessment process in advance of a project review.

The Impact Assessment Act provides for the development of Cooperation Agreements with Indigenous Governing Bodies to enable them to exercise powers, duties or functions under the Impact Assessment Act. The Cooperation Agreement is not project-specific and is an important tool that enables Indigenous governments that wish to manage their own assessments to have the jurisdictional powers in Canadian law to conduct those assessments. For Indigenous Governing Bodies that have negotiated a Cooperation Agreement, the Agency would be required to offer to cooperate with them for any project that arises within their jurisdiction—including the possibility of joint panels and substituting an Indigenous-led assessment for an assessment by the Agency. Circumstances that would allow an Indigenous Governing Body to enter into such an agreement with Canada will be defined through regulation, and further guidance will be provided once regulations are in place.

4. Additional Information

The Agency is committed to ensuring that the approach and objectives set out in this framework are implemented to support the Government’s commitment to reconciliation, to meaningful collaboration with the Indigenous peoples, and to the participation of Indigenous peoples in impact assessment processes. The Agency is also committed to developing its Indigenous participation approach to align with the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples and the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult.

A Guide on Indigenous Participation in Impact Assessment under the Impact Assessment Act elaborates on the various roles and responsibilities, and opportunities for participation during an impact assessment. Additional guidance, such as guidance on the consideration and protection of Indigenous knowledge has also been developed.