Canada is at a critical juncture in its relationship with Indigenous peoples. Our leaders, judges, and citizens are demanding reconciliation of the Crown’s fractured relationship with Indigenous communities. Yet interested parties have struggled to make meaningful headway, and often end up arguing in Court rather than working together. Resource development is on the front lines of this conflict, and environmental stewardship is a recurring battlefield. Alberta’s environmental wellbeing lies in the balance.
This study explores how to more effectively integrate Indigenous conceptions of land stewardship into development to enhance environmental protection. This necessitates a detailed consideration of the legal duty to consult, environmental assessment processes, and how these systems interact and evolve. In fulfilling this task, this report seeks to build on reform efforts currently underway, and to engage with the dialogue already generated on this issue.
TABLE OF CONTENTS
Part A: Stewards of Land
Part B: Legal Frameworks
Part C: Environmental Assessments and the Duty to Consult
Part D: Coordinating EAs and the Duty to Consult
Part E: Challenges
Part F: Recommendations
After explaining what land stewardship means to Indigenous communities, the report considers the national and international legal structures that support its advancement. In particular, Indigenous communities have harnessed the Crown’s constitutional duty to consult and accommodate their interests in order to advance their land stewardship obligations. This duty is evolving in Canada, and will continue to do so under the guidance of the newly adopted United Nations Declaration on the Rights of Indigenous Persons.
While this approach has had its successes, the duty to consult has limitations that have blunted its impact. On top of internal restrictions, the duty is often intertwined with a broader consultation regime known as environmental assessment. This adds another layer of complexity to an already complicated regime. The result is a web of policies and directives designed to serve all stakeholders through one process. In practice, this structure is functional but clearly flawed. The interaction of these dual regimes has created barriers to the meaningful incorporation of Indigenous concerns into resource development.
There are, however, several ways to work within the present regime to better integrate Indigenous values into the development processes. After reviewing the current processes, this Report makes several recommendations to better integrate Indigenous conceptions of land stewardship into resource development. This includes:
- Earlier and wider engagement with Indigenous communities;
- Increasing stakeholder capacity;
- Adopting a more holistic approach to environmental assessment;
- Ensuring science is uninfluenced by external factors;
- Incorporating Indigenous knowledge and institutions within environmental assessment;
- Embracing the terms set out in the UNDRIP;
- Increasing co-management in planning and oversight as accommodation; and
- Re-examining the role of private agreements.
This report argues that better integration of Indigenous land stewardship within resource development is a win-win for everyone. By removing barriers to participation, government and industry increase certainty while saving time and money by pursuing projects rather than litigating them. By more effectively incorporating Indigenous perspectives into environmental assessments, we not only enhance our environmental protections, we help redefine the relationship Canada has with Indigenous peoples and move towards reconciliation.