Challenges to Coordinating EA and Consultation

The Federal and provincial governments have sunk significant resources and effort in and attempt to incorporate the duty to consult within EA processes.

These efforts are meant to provide a platform for Indigenous persons to advance land stewardship concerns via their constitutionally protected duty during the EA process. As a result of these efforts “many industry observers would agree that the new arrangements have greatly improved relations with Indigenous communities, produced valuable business partners, drawn hundreds of Aboriginal workers into the industry, and created a better and more stable environment for business operations” (MacDonald-Laurier Institute, Understanding FPIC: From assertion and assumption on free prior and informed consent to a new model for indigenous engagement on resource development, by Ken S Coates and Blaine Favel (Ottawa: MacDonald-Laurier Institute, April 2016) [Coates and Favel] at 20).

Unfortunately, however, both levels of government have struggled to achieve their goals. Within the federal system, there are significant obstacles within EA processes that hinder meaningful consultation with Indigenous groups. This inhibits the space for Indigenous perspectives to come forward, and does not provide the foundation for sharing views and Indigenous knowledge. The result is an atmosphere of mistrust and frustration among Indigenous communities (EA Expert Panel at 26, 27).

The provincial government faces many of the same challenges. The decision not to consult Indigenous groups before creating the Alberta Consultation Policy, the Alberta Consultation Guidelines, or the Aboriginal Consultation Levy (ACL) severely diminished their collective credibility, and resulted in the ACL’s repeal. Instead of forming an accepted foundation for cooperative consultations, the documents have been “vehemently opposed by almost every band in Alberta” (Calgary Chamber of Commerce, The Consultation Conundrum: Examining Aboriginal Consultation in Alberta, (Calgary) 2014 at 2).

In recognition of its failings, in 2016 the federal government commissioned various Expert Panels charged with examining what exactly is lacking (federally). These efforts led to the EA Expert Report (here) the NEB Expert Report (here), and from those documents, the Government of Canada’s Response – The Environmental and Regulatory Reviews Discussion Paper (Canada, Environmental and Regulatory Reviews: Discussion Paper (Ottawa: Government of Canada, 2017) online: <https://www.canada.ca/content/dam/themes/environment/conservation/environmental-reviews/share-your-views/proposed-approach/discussion-paper-june-2017-eng.pdf> [Discussion Paper]). Together, the Final Reports and the Discussion Paper reveal multifaceted challenges arise with EA processes generally, and troublesome impacts on Indigenous groups.

This Report is focused on how the current approach limits the duty to consult, and in so doing, restricts incorporating Indigenous conceptions of land stewardship into project development. This is broken down into two major groups: (a) restrictions within the current regime; and (b) problems satisfying the UNDRIP. This discussion is followed by recommendations on how these restrictions can be remedied.

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a. Challenges in Current Practice
     1. Triggering the Duty to Consult
     2. Capacity Restraints
     3. Narrow Focus of EAs
     4. Form over Substance
     5. Delegation of Consultation
     6. Questionable Science from Limited Sources

b. Challenges meeting the UNDRIP
     1. Private Negotiations
     2. No Formal Recognition of Indigenous Government/Process
     3. Decision Making Structures

Consultations start too late in the EA process to meaningfully incorporate Indigenous knowledge and perspectives. While the duty of consultation is a stand-alone right, in practice the trigger point for consultation is often the commencement of the EA process. At this stage, the project is already designed and industry is seeking approval. Indigenous concerns are often addressed with a view to mitigate harms raised during consultation, rather than meaningfully incorporating feedback into project design. Indigenous communities have repeatedly expressed the view that they would like to be consulted during project planning, where their input and knowledge can be used more effectively and collaboratively.

Without enough money, personnel, expertise, technology, and resources it is very difficult to engage fully in consultation. Most Indigenous communities face some or all of these capacity limitations that drastically restrict their ability to engage with the duty to consult. This is particularly burdensome in resource heavy areas of the country where Indigenous communities are dealing with multiple parties and projects at the same time (Thomson at 25). Nonetheless, Indigenous communities are expected to engage in consultation, and may lose their right to protest if they fail to engage in consultation efforts.

Capacity concerns within EA are multifaceted and interrelated:

• Financial constraints limit an Indigenous community’s ability to engage with consultation processes. While this has been partially addressed with capacity funding programs, these avenues either do not provide enough funding, or give out money too late in the process to be effective (EA Expert Report at 53).

• Meaningful consultation on environmental issues involves a level of expertise that may or may not exist within a particular Indigenous community, especially in isolated or rural locations. This expertise may not exist within their community. Without adequate funding, they cannot afford to hire experts to engage and meaningfully respond to the EA documents submitted by proponents.

• Personnel restrictions can prevent these communities from sufficiently participating in consultation (Thomson at 25). Without dedicated staff, it can be difficult for communities to keep track of, and meaningfully respond to the number of requests they receive.

• Unrealistically short time lines for review and response (particularly in the federal regime) further burden already overstretched Indigenous communities.

• Indigenous communities with many resources and proposed projects can be overwhelmed by the time, money, and expertise required to participate in negotiations. This has led to participant fatigue and missed participation opportunities.

• Technical, time, and organizational restrictions limit the ability of various Indigenous communities to speak with each other to coordinate their approach to consultations.

• Governments have internal capacity problems and lack personnel possessing an understanding of Indigenous culture, government, and traditions.

While it has mechanisms for taking a wider lens, EAs typically focus on the impact of a specific project on the physical environment. This is at odds with the Indigenous holistic conceptions of land stewardship. Multiple projects considered in isolation over time does not account for cumulative or regional impacts as these projects interact. 

This limit is further complicated by the fact that the duty to consult is forward-looking only - it does not redress past wrongs. This hinders any ability to examine the cumulative impact a project will have on the environment.

The federal Court noted this problem in Brokenhead Ojibway, where it noted “[w]hile the environmental footprint of any one project might appear quite modest, the eventual cumulative impact of development on the rights and traditional interests of Aboriginal peoples can be quite profound”. Many Indigenous leaders have spoken out that the EA system is creating a “death of a thousand cuts” to Indigenous rights, and to the environment as a whole (MacDonald-Laurier Institute, Getting the Big Picture: How regional assessment can pave the way for more Inclusive and Effective Environmental Assessments: #3 in series Aboriginal People and Environmental Stewardship, by Bram Noble (Ottawa: MacDonald-Laurier Institute, June 2017) online: <http://macdonaldlaurier.ca/files/pdf/Noble_Aboriginal%233Study_FinalWeb.pdf> at 8.)

Governments have struggled to move from a formal approach of “checking boxes” to the context specific, meaningful consultation mandated by the Supreme Court of Canada. This has led to expensive, acrimonious and avoidable litigation. The recent Clyde River case exemplifies these failings, and the cost associated with litigating consultation that is plainly inadequate.

Clyde River dealt with offshore seismic testing off Baffin Island. The local Inuit population had treaty rights to harvest marine animals in that area. During community meetings, the proponent’s officials could not answer basic questions on the impact of the seismic testing on the marine population. Months later, answers to these questions were dumped online in a three thousand page document (mostly in English only). The NEB held these consultations were sufficient and that no significant adverse environmental effects would be caused, so it approved the project. The Supreme Court of Canada disagreed – no one in the community could access or read the online document. It explained:

This problem exemplified in Clyde River is two-fold. First, the proponent failed to engage with the local population to meaningfully answer their questions. More disturbingly, the NEB viewed this data-dump as adequate consultation:

This demonstrates that, even in 2017, government agencies still struggle to move away from formal compliance towards meaningful consultation.

The Crown has delegated away many practical aspects of the duty to consult. Increasingly, proponents and administrative agencies are responsible for the conducting consultation within the EA system. While it makes sense from a practical standpoint, it calls into question the ability of the Crown to achieve the reconciliatory goals of consultation.

When given the authority by statute, regulatory bodies in charge of overseeing the EA process are capable of conducting and discharging the Crown’s consultation duties entirely (Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41 (CanLII) [Chippewas] at para 32; Clyde River at para 30). This means that Indigenous communities may go through an entire consultation process without meeting with a Crown representative separate from these bodies.

In addition, the "procedural" aspects of consultation may be delegated to proponents (Haida at para 25). This encompasses nearly all face-to-face practical aspects of consultation.

• Federally, proponents are expected to identify and contact consultation partners, conduct consultations, and adjust their projects based on information received (Canada, Indigenous and Northern Affairs Canada, Consultation Advice for Proponents, (Ottawa: Indigenous and Northern Affairs Canada, 2015) online: <https://www.aadnc-aandc.gc.ca/eng/1430509727738/1430509820338>.)
  

• Provincially, the ACO identifies consultation partners, but the delegation of actual consultation activities is similar to the federal regime. The Crown retains responsibility for substantive elements of consultation, but only engages in direct consultation in limited circumstances (Alberta Consultation Guidelines at 5).

While this delegation makes sense from a practical standpoint, it is difficult to achieve the reconciliatory goals of consultation where one party has delegated all meaningful contact.

Current EA processes do not require the consideration of Indigenous knowledge. Typically, Indigenous knowledge is relegated to an appendix where it is considered in isolation (EA Expert Panel at 33, 34). In other cases, Indigenous knowledge is gathered by consultants with the goal of limiting or restricting rights to accommodation. This approach discourages sharing of knowledge and participation in the EA regime generally.

This problem is compounded by the perception of bias regarding the Western science that dominates EAs.  Proponents bear responsibility for commissioning and creating the environmental impact statements that form the basis of the EA process. Responsible government agencies do not commission their own reports or bring in their own experts. This arrangement raises questions about the quality of EA reports and the use of biased data.  As explained by the EA Expert Panel “Current practice is to delegate many [EA] responsibilities to proponents: they collect the data, conduct studies, analyze results and document findings in an Environmental Impact Statement. This practice has led to a clear perception of bias in the results” (EA Expert Report at 46). 

Private agreements between proponents and impacted Indigenous communities have become increasingly common in Canada. These agreements, often known as Impact and Benefit Agreements (IBAs), are private contracts whereby Indigenous communities agree to support a project in exchange for compensation, training, investments, employment, environmental preservation, programs or any other terms.

Government, industry, and many Indigenous communities support the use of IBAs. However, this increasing reliance raises problems related to community engagement, environmental degradation, and UNDRIPs requirement of free, prior, and informed consent.

• Since IBAs are private in nature, those external to the negotiations have no idea what compromises were made to secure support of a project. Support for a project may require sacrificing some environmental concerns in exchange for investments or economic opportunities. Given the EA system’s reliance on Indigenous participation to raise environmental concerns, without these voices, there is a risk that environmental concerns will be ignored.
  

• IBAs can limit public discourse. If negotiated without community input, these agreements can breed distrust and disagreement within an Indigenous community. This is particularly concerning when an IBA contains a “support clause” which is breached if members of the community publicly question or raise concerns about the project. This has created fissures within Indigenous communities (Protectors of the Land at 14).
  

• IBAs are often completed before the EA process. Signatories may not know what is being compromised when the deal is reached. This raises concerns with the UNDRIP’s obligation regarding free prior and informed consent (Article 32(2)).

The federal EA process does not have a formal mechanism for taking into account various Indigenous approaches and processes. Provincially, the Alberta Consultation Policy explicitly permits proponents to ignore an Indigenous communities’ consultation process (Alberta Consultation Policy at 7).

Indigenous governments and processes are integral to the way they make their decisions and the way in which they present evidence and arguments. Indigenous governmental systems vary from our federal and provincial systems, and also have differences from nation to nation. Failing to understand and incorporate these systems hinders reconciliation efforts. It also creates friction when attempting to undertake meaningful consultation efforts. 

Moreover, the failure to acknowledge internal governing structures and processes stands at odds with Article 27 Of the UNDRIP, which demands that Canada establish a process that “giv[es] due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems” when dealing with the rights of Indigenous peoples and their lands (UNDRIP Article 27).

The federal or provincial EA regimes do not require consent from Indigenous communities before proceeding with development.

Under the federal regime, ultimate decision making is ultimately political. If a proposed project is likely to cause significant adverse environmental effects, the responsible government agency refers the issue to Cabinet, who determines if the project is nonetheless justified. These decisions are often provided without reasons (Adam v Canada (Environment), 2014 FC 1185 at para 81). Provincially, reasons are more common (Craik at 56). However, neither regime allows any process whereby Indigenous consent is required, even where Indigenous title is proven (Tsilhqot’in at para 80).

This process is difficult to reconcile with Article 32(2) of the UNDRIP, which provides:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.