Appendix A
Additional Case Info on Duty to Consult
1. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73
In Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 the Haida Nation alleged that the provincial government acted improperly in failing to consult it before transferring a tree farm licence from one forestry company to another. They had claimed, but had not proven, Indigenous rights and title to the lands impacted by this transfer. The Province argued that, until the claims were proven, it had no duty to consult with the impacted groups.
The Supreme Court held that the provincial government had acted wrongfully. The provincial and federal governments have a duty to consult Indigenous peoples when it contemplates action that may adversely affect asserted Indigenous rights or title claims. These rights do not have to be proven for the duty to consult to be triggered. As a result of those consultations, there may be a duty to accommodate the Indigenous rights or claims.
The duty to consult is triggered when the Crown has actual or constructive knowledge of a potential Indigenous claim or Indigenous or treaty rights that may be adversely affected by Crown conduct. The nature and extent of the consultation will depend on the asserted claim’s strength and the extent to which the claim right may be adversely affected by the governmental decision or action.
The court set out the following principles in respect of the duty of consultation:
consultation must be proportionate to the degree of infringement that will occur;
there must be flexibility regarding the depth of consultation;
the honour of the Crown requires a meaningful, good faith consultation process;
reconciliation is promoted by imposing obligations on the manner and approach of the government;
the duty to consult rests with the Crown; it is not owed by proponents. However, the Crown may delegate procedural aspects of consultation to proponents.
written reasons will foster reconciliation by showing affected Indigenous peoples that their rights were considered and addressed, and
procedural protections may be required for meaningful consultation.
2. Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 [Clyde River]
In Clyde River, the SCC considered whether the National Energy Board (NEB) had fulfilled the Crown’s duty to consult. It dealt with offshore seismic testing conducted near Baffin Island. The local Inuit population had treaty rights to harvest marine animals in that area. Some consultation efforts, including community meetings, were held with the impacted persons. The NEB determined that adequate consultation had been conducted and that significant adverse environmental effects were not likely. It approved the project and the impacted community filed the action alleging a breach of the duty to consult.
The Court unanimously ruled that, while the NEB is capable of conducting and discharging the Crown’s consultative duties, it had failed to do in this case. The NEB failed to adequately consult impacted communities or assess the impact on treaty and Indigenous rights of the proposed oil and gas exploration project before approving it. The Court based its decision on a consideration of the principles developed in a number of cases. In Tsilhqot’in, the court ruled that the duty to consult must be fulfilled prior to the action that could adversely affect the right. In Carrier Sekani, the court ruled that the legislation empowers regulatory bodies to fulfill the Crown’s duty to consult; that consultation is “concerned with an ethic of ongoing relationships”, and that the goal of consultation is to identify, minimize, and address adverse impacts.
Adequate consultation could include a number of things depending on the individual case and the circumstances. The SCC listed a number of factors that contribute to adequate consultation, but it is not limited to just these factors. In fact, a combination of these factors is most likely needed to achieve adequate consultation. The Government of Canada should always be striving to do the best that they can to fulfill as many factors as possible.
The level and depth of consultation must be decided upon.
A consultative inquiry is to inquire into the impact on the right, and not just on the environmental effects.
The process needs to be adequately explained to the Indigenous group, specifically about who (which regulatory body, government department, etc.) is fulfilling the Crown’s duty to consult.
If deep consultation is required, it may entail an opportunity by the Indigenous group to make submissions for consideration—this may also involve provision of resources to do so.
Opportunity to test the evidence of proponents.
Formal participation in the decision-making process.
Provision of written reasons.
Opportunities for participation and consultation, which include oral hearings and participant funding.
Procedural safeguards while not always necessary, can be important – such as meaningful responses to questions or concerns, translation of documents, availability of documents in print and not just online since that may be inaccessible.
The accommodations are legitimate concessions.
3. Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41
Chippewas was heard and released concurrently with released Clyde River. In this case, however, the Supreme Court held that consultations between the NEB and the Chippewas of the Thames First Nation were adequate to discharge the duty to consult.
In both cases, the SCC ruled that the NEB is capable and allowed to fulfill the Crown's duty to consult Indigenous groups about development projects in their traditional territories, as long as that consultation is robust.
4. Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69
In Mikisew Cree, the Supreme Court ruled that even if the Crown’s duty of consultation lies at the lower end of the spectrum, the Crown must still provide notice and engage directly with the affected Indigenous communities. This engagement includes “the provision of information about the project, addressing what the Crown knew to be the [First Nation group’s] interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown must also solicit and listen carefully to the [First Nation’s] concerns, and attempt to minimize adverse impacts on its treaty rights” (para 64). If the Crown makes unilateral decisions without showing that they intend to substantially address any Indigenous concern, then they have failed to discharge their duty of consultation (paras 64-67).
5. Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 [Little Salmon]
Little Salmon dealt with a decision by the Director of the Agriculture Branch of the Yukon government to issue an agricultural land grant to a private citizen. The Little Salmon/Carmacks First Nation argued that this grant triggered the duty to consult, and that the consultations undertaken were inadequate. The government argued that a modern treaty can been concluded by the parties and any construct of the duty to consult would be confined within its terms. So long as the terms of that agreement were satisfied, no breach of the duty to consult existed.
The Supreme Court confirmed that the duty to consult still applies when a treaty is in place. The duty is external to any treaty or agreement – it cannot be confined within the terms of a treaty, nor can the Crown contract out of its duty of consultation. This duty is a “doctrine that applies independently of the intention of the parties as expressed or implied in the treaty itself”. The objective of reconciliation can only be achieved if consultation is conducted in a way that upholds the honour of the Crown and manages to maintain the important ongoing relationship between the government and Indigenous community.
6. Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto]
In Rio Tinto, the Carrier Sekani Tribal Counsel argued they were owed a duty of consultation when the British Columbia Utilities Commission renewed energy agreements for energy from a particular dam. That dam had originally been constructed in the 1950s without any meaningful consultation. The impacted communities argued that the approval was not in the public interest because no consultation had been undertaken with them, and that the proponent was unfairly benefiting from a historic infringement.
The Supreme Court of Canada held that, notwithstanding the historic infringement, the present approval was not enough to trigger the duty to consult.
This case clarified the Haida explanation on triggering the duty to consult. There are three stages that must exist:
The Crown must have real or constructive knowledge of a potential Indigenous claim or right. While the existence of a potential claim is essential, proof that the claim will succeed is not.
There must be Crown conduct or a Crown decision. It encompasses immediate impact on lands and resources to “strategic, higher level decisions” that may have an impact on Indigenous claims and rights.
There must be a possibility that the Crown conduct may affect the Indigenous claim or right. A causal relationship must be shown between the proposed government conduct or decision and a potential for adverse impacts on pending Indigenous claims or rights.
7. Tsilhqot’in Nation v British Columbia, 2014 SCC 44
In response to proposed logging activities, the Tsilhqot'in Nation launched an action seeking, among other things, a declaration that Aboriginal title existed over a portion of their traditional territory.
The Supreme Court of Canada held that Aboriginal title was established over the disputed territory. Aboriginal title confers many rights of exclusive use and occupation to be held collectively by the Tsilhqot’in people. If the Crown wishes to conduct activities on this land, they must either obtain consent of the Tsilhqot’in people, or justify their infringement under section 35 of the Constitution by satisfying three questions:
Did the government discharge its procedural duty to consult and accommodate;
Were the government's actions backed by a compelling and substantial objective; and
Is the governmental action consistent with the Crown's fiduciary obligation to the group?
Appendix B
Detailed EA Processes
1. FEDERAL EA PROCESS
Federal EAs are administered by the Canadian Environmental Assessment Agency. EAs are most often completed by the Agency, and in such cases, must be completed within 365 days of commencement. The National Energy Board (NEB) and Canadian Nuclear Safety Board (CNSB) also conduct federal EAs for projects that fall within their regulatory authority. Collectively, the Agency, the NEB and the CNSB are referred to as Responsible Authorities under the Canadian Environmental Assessment Act, 2012 (CEAA) s 15.
The process can be summarized into 6 stages:
Determining if an EA is required. A proponent submits a project description to the Agency, and the Agency has 45 days to determine if an EA is needed. This determination is made by reference to a schedule of designated projects that are likely to require an EA. This list includes, for example, projects related to the construction, expansion or abandonment of oil sands facilities; offshore drilling; oil refineries; pipelines; mines, nuclear facilities; pulp mills; pharmaceutical processing; dams; and electrical transmission lines. Regulations Designating Physical Activities, SOR/2012-147 ss. 9,10, 14,15, 17, 20, 34. Projects must reach a threshold in size to trigger the EA requirements.
The Agency may determine that an EA is required even if a proposed project does not fall within this schedule. A summary of the project description is posted online for a 20-day public comment period. These public comments are used to help the Agency determine if an EA is necessary. The Agency also considers the description of the project, the potential for adverse environmental impacts, and other regional studies ((CEAA, ss 13, 14) Canada, Canadian Environmental Assessment Agency, Basics of Environmental Assessment (Government of Canada, 2017) [Basics of EA]).Draft Environmental Impact Statement: If an EA is required, the proponent must prepare a draft Environmental Impact Statement (EIS), which is posted online for public comment. After the public comment period has ended, the Agency issues Environmental Impact Statement Guidelines. The proponent will modify their EIS in accordance with these guidelines (Basics of EA).
(Optional) Referral and Appointment of Review Panel: The Agency has the discretion if it wishes to proceed with the EA via Review Panel. A Review Panel consists of independent experts selected by the Agency to oversee the EA process.
If no Review Panel is appointed, the Agency or other Responsible Authority continues handling the EA. When the Agency handles the EA, it must be completed within 365 days from the Agency’s decision that an EA is necessary (subject to three month extension).
If a Review Panel is appointed, its Terms of Reference (outlining authority and mandate) are set and opened for public comment prior to that appointment. The EA must be completed within 24 months from the Agency’s decision that an EA is necessary (subject to three month extension).
(Basics of EA, CEAA s 38)Participant Funding Period Commences: The Canadian Environmental Assessment Agency administers a Participant Funding Program, which supports individuals, non-profit organizations and Indigenous groups interested in participating in federal environmental assessments. To be eligible for participant funding, the applicant must demonstrate the value they will add by participating in an environmental assessment and meet at least one of the following criteria:
Have a direct, local interest in the project, such as living or owning property in the project area;
Have community knowledge or Indigenous traditional knowledge relevant to the environmental assessment;
Plan to provide expert information relevant to the anticipated environmental effects of the project; and/or
Have an interest in the potential impacts of the project on treaty lands, settlement lands or traditional territories and/or related claims and rights
(CEAA, s 57; Canada, Canadian Environmental Assessment Agency, Participant Funding Application for an Environmental Assessment (Ottawa: Government of Canada, 2017)).
Considering the EIS: The Review Panel/Responsible Authority considers whether or not the proponent’s modified EIS is adequate to present to the public for comment. If inadequate, the proponent is required to provide more information. The EIS will include information on:
environmental effects, including environmental effects caused by accidents and malfunctions, and cumulative environmental effects
significance of those environmental effects
public comments
mitigation measures and follow-up program requirements
purpose of the designated project
alternative means of carrying out the designated project
changes to the project caused by the environment
results of any relevant regional study
any other relevant matter
(Basics of EA)
Public Comment / Public Hearings: Once the EIS is complete, in the case of a Review Panel process, public hearings are held. Where there is no Review Panel, the Responsible Authority posts the modified EIS online for comment.
Report to the Minister: The Review Panel / Responsible Authority drafts a Report based on the EIS. This Report report includes the Agency's conclusions regarding the potential environmental effects of the project, the mitigation measures that were taken into account and the significance of the remaining adverse environmental effects as well as follow-up program requirements. Comments on the Report are solicited, after which it is submitted to the Minister of the Environment.
Minister’s Decision: The Minister decides if the project is likely to cause significant adverse environmental effects. If so, it is referred to the Governor in Council (Cabinet) (CEAA, s 52(2)). Cabinet decides if the likely significant adverse environmental effects are justified in the circumstances (CEAA, s 52(4). Once this is decided, the Minister issues an environmental assessment decision statement with enforceable conditions. This could include mitigation measures and a follow up program (CEAA, s 54).
(Basics of EA)
There are four stages of the process where members of the public are encouraged to participate:
Determination of whether an EA is required
Environmental impact statement guidelines (drafted by the Agency)
Environmental impact statement (drafted by the proponent)
Report to the Minister (Agency or review panel): the public can comment on the draft environmental assessment report. In the case of a Review Panel, this stage is supplemented with public hearings.
(Basics of EA)
In order to participate in the EA process, members of the public must make themselves aware of opportunities for public comment, public funding and the Registry. Public participants do not necessarily get personal notice of a proposed project unless they are following closely with the projects reviewed by the government.
2. PROVINCIAL EA PROCESS
The Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA) governs environmental impact assessments (EIAs) in Alberta. The EPEA’s purpose is to support and promote the protection, enhancement and wise use of the environment (EPEA, s 2). In addition, the Water Act, RSA 2000, c W-3 governs the regulatory process for any proposed projects affecting the conservation and management of water (Water Act, s 2).
Like the federal regime, provincial EIAs are required for certain types of projects that meet a certain threshold. This includes, for example, pulp mills, water reservoirs and dams, power plants, oil sands operations, and refineries that operate within Alberta. Environmental Assessment (Mandatory and Exempted Activities) Regulation, Alta Reg 111/1993.
While EIAs are overseen by the EPEA, they are the responsibility of either:
The Alberta Energy Regulator (AER) - for EIAs related to energy resources activities.
Alberta Environment and Parks - for all other EIAs.
(Alberta Energy Regulator, Environmental Assessments).
The provincial process for environmental assessments can be grouped into 5 steps (Alberta, Alberta Environment and Parks, Alberta’s Environmental Assessment Process (December 2015) (Alberta, Alberta Environment and Parks, 2015) online: <https://open.alberta.ca/dataset/25654f70-8686-407b-b683-0a0521ba50d7/resource/2b4f7770-fd7a-499c-a81d-f0ac2fdee8c3/download/environmentalassessmentprocess-dec2015.pdf> [Provincial EA Process]:
Determining whether an Environmental Impact Assessment is Needed: The Environmental Assessment Director receives notice of a new project and determines if the project is one requiring a mandatory EIA or is exempted from an EIA. If it falls under neither heading, the director has discretionary authority to order an EIA. The Environmental Assessment (Mandatory and Exempted Activities) Regulation lists the mandatory and exempted activities. If an Environmental Impact Assessment report is required for a project, the Indigenous Consultation Office will also become involved (Provincial EA Process, EPEA s 45).
Setting Scope of EIA: If an EIA is required, the proponent will prepare two documents: Terms of Reference, which lays out the information needed for the EIA; and a First Nations Consultation Plan, which directly focuses on the consultation that will take place with potentially impacted Indigenous communities. The proponent will advertise the proposed Terms of Reference to allow for public participation. Once input is received, the Director determines the scope and information required to be included in the EIA Report (Provincial EA Process, EPEA s 48).
Technical Review: The proponent submits a finalized EIA report to the Director. A regulatory review is conducted by either Alberta Environment and Parks or the Alberta Energy Regulator, which involves a multi-disciplinary team of provincial experts. The reviewers determine if there are remaining uncertainties, and if the terms of reference have been satisfied. If they have, the EIA report is submitted to the Director. The director then determines if the EIA is complete and refers it to an applicable board, or to the Minister.
Public Interest: If the matter has been referred to the Minister, he or she decides if the project is in the public interest. If it is not referred to the minister, the public interest determination is made by the appropriate Regulatory Board (Alberta Utilities Commission, Energy Resources Conservation Board or Natural Resources Conservation Board). A public hearing may be part of this determination.
Regulatory Approval: If a project is deemed to be in the public interest, the proponent moves forward with other regulatory approvals from applicable departments. This could include, for example, the Regulatory Board, Alberta Environment, Alberta Sustainable Resource Development and potentially several other government departments
Alberta, Alberta Environment and Parks, Environmental Assessment Programs, Frequently Asked Questions (Updated Feb 2010) (Alberta: Alberta Environment and Parks, 2010) online: https://open.alberta.ca/dataset/e3cecb9a-a323-4761-9e98-e4be8f1dfe11/resource/53be76bc-a0e7-4baf-b5f3-7bc49312ea4b/download/4897712-2010-environmental-assessment-program-frequently-asked-questions-faq-updated-2010-02.pdf> [Alberta EA FAQ].
As with the federal system, public participation is sought at various stages of the approval process. The proponent must advertise notices for public participation throughout the process, whenever it is required. Usually, these notices will appear in several newspapers and at least one Indigenous newspaper when Indigenous consultation is required. The proponent selects the newspaper and the Director gives approval (Alberta EA FAQ).
The public can review the current projects here. There is a list of the current projects, as well as a list of previous Environmental Impact Assessments as well. These can also be viewed in person at the Alberta Government Library in Edmonton as well as through a library catalogue online.
The public usually has 30 days from the time of notice publication to submit any comments, but longer timelines may be specified within the notice. If comments are not submitted within the timeframe provided, the Director may not be able to consider them. As well, the comments must be submitted to the appropriate person. The publication here lists the address in which to submit comments.
Appendix C
Detailed Consultation Frameworks
1. Government of Alberta’s Proponent Guide to First Nations and Métis Settlement Consultation Procedures
(Alberta, The Government of Alberta’s Proponent Guide to First Nations and Métis Settlement Consultation Procedures (Alberta, The Government of Alberta, 2016) online: <https://open.alberta.ca/dataset/40499ce0-dd05-4e7a-b7f5-42a02e71b8ec/resource/c0adf205-ac7d-4901-b825-6f0dfaad6d9d/download/2016-proponent-guide-to-first-nations-and-metis-settlements-consultation-procedures-2016-06-06.pdf, [Alberta Proponent Guide]
The Alberta Proponent Guide provides detailed information to proponents engaged in consultation, including relevant timelines. Under the Alberta Proponent Guide, four different levels of consultation:
Level 1: no consultation required
Level 2A: streamlined consultation
a. Notified Indigenous groups have up to 15 working days to respond to notification
b. If there is no response within 5 days of initial notification, the proponent will follow up with the Indigenous group
c. If there is no response within 10 days, the proponent will follow up a second time
d. Once the 15-day notification has expired and there has been no response, the proponent will provide the Indigenous group with the consultation record and may ask the Indigenous Consultation Office to review it once the Indigenous group has had 5 days to review the record
Level 2B: standard consultation – notified Indigenous groups have up to 15 working days to respond to notification
a. Notified Indigenous groups have up to 15 working days to respond to notification
b. If there is no response within 5 days of initial notification, the proponent will follow up with the Indigenous group
c. If there is no response within 10 days, the proponent will follow up a second time
d. Once the 15-day notification has expired and there has been no response, the proponent will provide the Indigenous group with the consultation record and may ask the Indigenous Consultation Office to review it once the Indigenous group has had 5 days to review the record
Level 3: extensive consultation
a. Notified Indigenous groups have up to 20 working days to respond to notification
b. If there is no response within 10 days, the proponent will follow up with the Indigenous group
c. If there is no response within 15 days, the proponent will follow up a second time
d. If the 20-day notification period has expired without response, the proponent will provide the Indigenous group with the consultation record, and may ask the Indigenous Consultation Office to review it once the Indigenous group has had 10 days to review the record.
These timelines can be extended under the appropriate circumstances.
2. Joint Operating Procedures for First Nations Consultation on Energy Resource Activities.
The Indigenous Consultation Office [ACO] and the Alberta Energy Regulator [AER] often deal with one another, and as such, they have agreed to a set of procedures contained in the Joint Operating Procedures for First Nations Consultation on Energy Resource Activities. (Alberta, Alberta Energy Regulator and the Government of Alberta, Joint Operating Procedures for First Nations Consultation on Energy Resource Activities (Alberta, Alberta Energy Regulator, 2015) online: <https://www.aer.ca/documents/actregs/JointOperatingProcedures.pdf> [Joint Operating Procedures].
Under the Joint Operating Procedures, a potential project falls into one of 4 processes, and depending on the application type, there is a standard requirement of consultation that must be met. The four levels of consultation (Level 1, Level 2A, Level 2B, and Level 3) correspond to those contained in the Alberta Proponent Guide, discussed above.
Appendix D
Oversight Mechanisms
Environmental Assessment Team – Alberta Environment and Parks
The Environmental Assessment Team with Alberta Environment and Parks has an extensive FAQ page, that can be accessed here, and they can be contacted via email: environmental.assessment@gov.ab.ca
Alberta Energy Regulator
https://www.aer.ca/protecting-what-matters/protecting-the-environment/environmental-assessments
The Alberta Energy Regulator is responsible for making decisions on application for any energy related development or activities, and for monitoring compliance of these decisions. Specifically for environmental assessment in Alberta, they are responsible for any kind of energy resource activity, and ensuring that the environmental assessment process follows the appropriate procedures, which includes consultation with Indigenous peoples. They are not responsible for determining the adequacy of Crown consultation (this is done by the Indigenous Consultation Office).
Indigenous Consultation Office
http://Indigenous.alberta.ca/573.cfm
The Indigenous Consultation Office manages the consultation processes in Alberta. It exists under the Minister of Indigenous Relations. They have three primary functions: to provide pre-consultation assessment advice or direction, providing actual advice or direction during the consultation process, and evaluating consultation records and providing an assessment of consultation adequacy.