In light of the above, this Report makes the following recommendations. These changes will remove hurdles to consultation within EA processes, and allow for more effective integration of Indigenous perspectives.

a. Front-End Engagement

Indigenous communities must be engaged earlier in project design in order to meaningfully incorporate their perspectives. “Experience has shown that engagement with Aboriginal groups early in the planning and design phases of a proposed project can benefit all concerned. Conversely, there have been instances where failure to participate in a process of early engagement with Aboriginal people has led to avoidable project delays and increased costs to proponents” (Protectors of the Land at 19).

Some proponents are already engaged in this front-end engagement, with positive results. For example, Bram Noble cited the Orca Sand and Gravel mine approach as successfully integrating Indigenous views early in a project conceptualization stage. He provides a snapshot of how this early consultation can benefit all parties:

Polaris  [the proponent] approached the ‘Namgis [the Indigenous community]… approximately three years before the EA process commenced and prior to the conceptual design and planning stages of the project, in an effort to develop a working relationship and seek permission to explore on their traditional territory. An exploration and access agreement was subsequently drafted, identifying important traditional use areas and ‘Namgis’ values. The agreement gave the ‘Namgis power to veto the project up to the conceptual design stages of the mining operation and paved the way for the Orca Sand and Gravel Limited Partnership with the ‘Namgis obtaining a 12 percent interest in the project (Natural Resources Canada 2010).

The ‘Namgis were also involved in drafting the terms of reference for the EA, which commenced in 2004, hiring the consultants who would ultimately undertake the project’s technical assessment, and in choosing how they would participate and be engaged throughout the EA process. During the EA, the Orca Sand and Gravel Project Working Group was formed, composed of representatives of federal, provincial, and local government agencies and the First Nation, to identify issues and concerns and provide information in support of the EA process. Aboriginal values were incorporated directly into the project EA (CIER 2009).

MacKay (2012) reports that early relationship building and collaboration between Polaris and the ‘Namgis, long before the conceptual design stages of the project and commencement of the EA process, resulted in the integration of ‘Namgis values in the project design, EA process, and subsequent impact mitigation options. The ‘Namgis provided a letter in 2005 in support of the EA, indicating that it had been adequately consulted and accommodated by the proponent and by the respective provincial and federal governments. The project was approved and commenced operations in 2007.

(Learning to Listen at 12)

 

The Expert Reports and Discussion Paper acknowledge this failing, and recommend building a preliminary planning phase into the EA process. This preliminary phase maintains the clear notice of the existing system regarding the need for consultation. However, it pushes the consultation back into the planning phase of the project, so Indigenous communities can participate and incorporate their knowledge into project design (NEB Expert Report at 54; EA Expert Panel at 18, Discussion Paper at 10, Protectors of the Land at 17).

This Report endorses this recommendation.

b. Increase Stakeholder Capacity

In order to effectively engage in the EA process, Indigenous communities need increased and better targeted investment.  Governments and proponents must do more to build short and long term capacity in Indigenous communities.

First, there needs to be enhanced funding for the EA process itself (EA Expert Report at 39). While programs like the Participant Funding Program already exist, this is not enough. As explained by Bram Noble:

An overwhelming allocation and use of participant funding tends to be the funding of legal support for potentially affected Aboriginal interests to review a proponent’s project impact statement and appear before a formal review panel to defend their claims about a project’s impacts or benefits…[F]ormal participant funding is “often limited to covering travel and participation expenses and remains insufficient to ensure meaningful participation”.

 

(Protectors of the Land at 17).

Funding should be better targeted to build long term capacities (Discussion Paper at 20). This would include the development and administration of EA training programs to build personnel, educational and technical capacity in Indigenous communities (Protectors of the Land at 16). In many Indigenous communities, effective engagement requires a trained and dedicated staff with adequate technical resources. More work should be done to build this expertise and infrastructure within the community. Where this isn’t available, there must be funding opportunities to retain external experts to participate in reviews on their behalf (EA Expert Report at 43).  This increased investment will help ensure, in the long term, that communities have the knowledge and skills to engage in EA processes (Protectors of the Land at 16).

There should also be an effort to enhance effective communication within and among different stakeholders:

  • Bolstering the ability of Indigenous communities to coordinate with one another can help Indigenous groups identify areas of concern and build consensus.
     
  • Building expertise and understanding of Indigenous rights within government and responsible government agencies will enhance the consultation process (Discussion Paper at 20).

c. A Holistic Approach

EA regimes often adopt an isolated perspective – they focus on a single project and its impact on the biophysical environment. While mechanisms exist for adopting a wider lens, they are underutilized. By aligning EA to more accurately reflect its impact on the world around us, we increase the space for integrating Indigenous perspectives to fit within that space.

  • By extending EA beyond the bio-physical environment to consider all impacts (social, economic, cultural or other impacts), it is possible to establish a more holistic and realistic understanding of a project. This approach is more in keeping with the Indigenous interconnected approach to environment and all of humanity (EA Expert Report at 13).
     
  • The project-specific focus of EA is unduly limited and frustrates attempts by Indigenous communities to uphold their land stewardship obligations. By increasing the role for regional and/or cumulative impact assessments, environmental concerns raised by Indigenous communities (and others) can be more effectively addressed. Such an approach will require “a new way of thinking that prioritizes collaborative planning and decision-making with Aboriginal communities over issuing permits for project development” (Protectors of the Land at 21; Getting the Big Picture).

d. Wider Community Engagement

Current consultation practices rely too heavily on elected officials, rather than the wider community. This has led to conflict within communities, particularly where private contracts (IBAs) are signed, or where developments negatively impact some members of the community more than others (Behn). To better harness the knowledge held by that community, wider engagement should be expected to satisfy consultation obligations.

This shift would require buy-in from local community leaders, proponents and government.  An open and transparent process can avoid disagreement and frustration down the road. Ensuring community elders are heard can also increase the quality of Indigenous knowledge gathered from the community.

e. Make Science Independent

To maintain the integrity of the EA system, the science within it must be objective. Perceptions of bias undermine the validity of EAs and undercut the process of reconciliation. There are various ways to ensure that science remains independent in an EA:

  • Have the agencies in charge of overseeing EAs conduct their own Environmental Impact Assessments. The exclusive use of proponent commissioned science raises questions about the quality of EA reports and the use of biased data (EA Expert Report at 45).
     
  • Allow for the independent representation of environmental interests before responsible authorities. It is unfair to place the burden of environmental protection on Indigenous communities and environmental groups. Having independent environmental advocacy would ensure that the science in an EA is rigorously challenged by an objective and fully-funded party dedicated to environmental interests.

    There are several ways this can be achieved. The New Zealand government passed legislation granting legal standing to a sacred river permitting it (through its Maori and government representatives) to launch an action or participate in hearings in a way similar to a minor (Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), 2017/7; Eleanor Ainge Roy, “New Zealand river granted same legal rights as human being” The Guardian (156 March 2017) online: <https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being>. It would also be possible to ensure environmental issues are adequately raised in EA hearings through the appointment of independent environmental advocates before panels.

f. Government Boots on the Ground

While there are sound practical and economic reasons for relying on proponents to conduct consultations, government should not delegate away all meaningful contact with Indigenous communities (NEB Expert Report at 51). This practice has created significant confusion within Indigenous communities, and does not advance reconciliation.

Bram Noble has suggested an alternative approach that calls for government outreach prior to dealing with proponents. He writes:

In any region subject to a potential application for development, and before any particular project is being considered, the responsible government departments or agencies should be the first on the ground, working with local communities to identify needs, opportunities, and to help set expectations about development and EA processes. This should happen before project proponents enter the scene (Protectors of the Land at 19).

 

This approach gives the government and Indigenous communities the opportunity to identify issues that need to be addressed – including those that fall outside the EA process.

g. Embrace the UNDRIP

Currently, there is no process or guidance to reflect the principles of the UNDRIP within existing EA processes. This will change given Canada’s decision to adopt the UNDRIP, either proactively by the government, or reactively through Courts (Coates and Favel at 22). The more reconciliatory proactive approach can be advanced through the following changes.

1. Integration of Indigenous Government, Knowledge, and Processes

Current EA structures do not adequately integrate or apply Indigenous perspectives, knowledge, or institutions into their decision-making structures (NEB Expert Report at 54). As Canada moves towards implementing the UNDRIP, this shortfall must be remedied.

  • Knowledge: States are required to respect Indigenous knowledge (the UNDRIP at Preamble, Article 31).  Currently, it is common for EAs to ignore Indigenous knowledge altogether, or confine it to an isolated appendix. When it is considered, it is often collected by a proponent’s consultants and applied outside its cultural and spiritual context, with the goal of limiting the Indigenous communities’ claims (Coates and Favel).  

    This Report recommends that Indigenous knowledge should be considered “in parallel to western knowledge or science” (EA Expert Report at 33). In order to maintain the integrity of this information, Indigenous communities should have the opportunity and resources to collect their own knowledge, engage in community lead review, and present their information in accordance with their own value systems (Coates and Favel). This also would assist in protecting the confidentiality of this information in accordance with Article 31 of the UNDRIP.
     
  • Institutions: Federal and provincial EA structures should support Indigenous jurisdiction, and must do more to recognize and respect Indigenous institutions and processes (EA Expert Report at 25). Recognition of and support for Indigenous jurisdiction and processes should be built into the EA process. Indigenous communities that wish to undertake their own EAs processes should be able to do so, and the Crown should be involved in negotiating these arrangements. EA processes should be flexible enough to reflect Indigenous traditions, processes and laws (EA Expert Report at 25).

2. Indigenous Voices Must be Part of Substantive Decision Making

Governments and industry should increasingly consider co-management of EA processes and monitoring as a viable option for accommodation. Co-management involves transferring some decision making authority away from government and into an Indigenous community (Canadian Institute of Resources Law, Sharing Land Stewardship in Alberta: The Role of Aboriginal Peoples, by David Laidlaw and Monique M Passelac-Ross (Calgary: Canadian Institute of Resources Law University of Calgary, 2012) online: < https://dspace.ucalgary.ca/bitstream/1880/48941/1/CoManagementOP38w.pdf> [Laidlaw] at 3). This can be a pragmatic way to more effectively incorporate Indigenous values, increase capacity, and move towards reconciliation.

According to Laidlaw, effective co-management requires:

  • A power sharing arrangement that gives local co-managers substantive decision making powers;
  • A vision that is grounded in sustainability and informed by western and Indigenous knowledge
  • An intent to provide socio-economic returns to the Indigenous and local communities and the government

(Laidlaw at 40)

Co-management may not always be a feasible option. There are other ways, however, to ensure that Indigenous voices are a substantive part of decision making and oversight. As suggested by the NEB Expert Panel, “Indigenous communities should be given a greater hand in the EA determination process, and with oversight... There may also be a role for mandating that there be Indigenous representation on EA review panels or commissions” (NEB Expert Report at 24). Indigenous representation on EA panels could builds bridges between all parties, ensure Indigenous perspectives are heard, and build capacity within the EA panel itself to understand and incorporate Indigenous knowledge.

3. Disclose the non-financial details of IBAs

“Consistent with the principles of UNDRIP, Indigenous Peoples have a right to share in the economic benefits from resource development on their traditional territories in accordance with their own needs, laws, cultures and interests” (EA Expert Report at 35). However, while there are many benefits to IBAs, they pose legal, environmental and cultural problems:

  • They are typically signed prior to an EA being completed. This means that decisions can be made in the absence of free, prior and informed consent (Article 32(2)).
  • Support for projects is given based on a number of promises that address certain (and possibly competing) concerns for the community. This may not include adequate environmental protections.
  • IBAs are private. Their details may not be known to members of impacted communities. This can breed distrust and frustration within a community.

In order to remedy these concerns, this Report agrees with the recommendation of Bram Noble and Aniekan Udofia, wherein they state that “the content of those [IBAs] pertaining to impacts and impact management strategies – but not financial details – needs to be transparent and made publicly available to other affected communities, to review panels, and to decision-makers” (Protectors of the Land at 3). This disclosure will help ensure that the scope of an agreement (and assumptions upon which it was made) are understood and can be properly addressed through the EA process. It will also increase stakeholder accountability and encourage open discussion of environmental impacts.

4. Open Decision Making

EA decision-making can be politicized, opaque and removed from impacted communities. This not only undermines the legitimacy of the process, it contradicts Article 32(2)’s guarantee of free, prior and informed consent (FPIC), and Article 27’s guarantees regarding transparency.

a.      FPIC: Article 32(2)

There is considerable ambiguity regarding what “free, prior and informed consent” will look like in Canada. In his 2009 Annual Report to the Human Rights Counsel, the Special Rapporteur on the situation of Human Rights and Fundamental Freedoms of Indigenous People expressed the opinion that FPIC “should not be regarded as according indigenous peoples a general “veto power” over decisions that may affect them, but rather as establishing consent as the objective of consultations with indigenous peoples.” (UN General Assembly Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, 15 July 2009 A/HRC/12/34, online: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G09/145/82/PDF/G0914582.pdf?OpenElement [accessed November 16, 2017] at para 46). This approach sees consent as a goal, rather than a command. While this is more palatable to governments then conferring a Indigenous groups with a veto power, it may not go far enough to truly encompass FPIC. It is, however, a workable first step in aligning EA processes with the UNDRIP.  

The EA Expert Panel and the NEB Expert Panel have arguably been more aggressive than the Special Rapporteur in their recommendations to move towards FPIC. Among other things, the EA Expert Report recommends that Indigenous persons be entitled to “reasonably” withhold consent for projects, and that this reasonableness be assessed by an independent body (EA Expert Report at 29; Coates and Favel at 24).

This report endorses both of these approaches, with the caveat that free, prior and informed consent will evolve and require reassessment as it becomes part of Canadian law.

b. Transparency: Article 27

To increase transparency “[b]road, unstructured discretionary government powers over EAs must be withdrawn in favor of a transparent process with clear, easily understood requirements.” United Chiefs and Councils of Mnidoo Mnising, “Review of Environmental Assessment Processes” online: <http://www.eareview.ca/wp-content/uploads/uploaded_files/UCCMM-Environmental-Assessment-Act-Submission.pdf>.

While governments are unlikely to withdraw entirely from the decision making process, there are avenues to increase transparency while maintaining democratic accountability. For example, the National Energy Board has suggested that politicians make their public interest decision prior to undertaking the EA process (NEB Expert Report at 21). In this way, politicians maintain a say in projects, but they cannot overrule the EAs findings (NEB Expert Report at 22).

Less drastic methods to increase are also possible. To start, requiring Cabinet provide detailed written reasons for all EA decisions would provide a clear understanding to interested parties, and form the basis for an application for judicial revie

Conclusion

The changes outlined above require a shift in structure, perspectives, and power. By removing barriers to Indigenous participation in EAs, the government builds social licence for responsible development, aligns its practice with the spirit of meaningful consultation, and signals its dedication to reconciliation. By more effectively incorporating Indigenous perspectives into environmental assessment, Canadians will not only improve our environment, we help redefine the relationship Canada has with Indigenous peoples.