Indigenous consultation and environmental assessments

Indigenous consultation on environmental assessments that only considers the “significant adverse effects” of a project won’t bring about reconciliation.

n August 2016, the federal government established a panel of four specialists to review how government conducts environmental assessments on proposed projects with significant impact on the environment, such as energy and natural resources developments.

The panel recommended the inclusion of Indigenous peoples in decision-making about the approval of such projects according to Indigenous laws and customs, and the impact on Indigenous and treaty rights. It also underscored the importance of governments adhering to their duty to consult in collaboration with Indigenous governments.

But before substantial environmental assessment reforms can happen, we must confront critical issues that Canadian courts have grappled with: How to determine significant environmental adverse effects, the level of government’s discretionary power in decision-making, and Indigenous consultation versus consent.

First, “significant adverse effects” are the environmental negative impacts that a project might cause. They allow decision-makers to figure out what is acceptable, even before information-gathering and public participation. It’s a contested concept, since laws and policies don’t provide any objective guidance on how to define what significant adverse effect means for each project.

Currently, the federal environment minister makes a decision about the likelihood of a project causing significant adverse effects based on the environmental impact statement submitted by the company behind the project. This raises the question of whether the environment minister’s ultimate decision on a project is actually based on the best information available, or simply a ceremonial, ministerial act.

Determining what’s a significant adverse impact depends on the features of each socio-ecological system and how development might change it.  Environmental regulatory systems still treat ecological impacts as separate from social considerations, but it’s important to recognize that communities are embedded in ecosystems. And while citizens’ participation is essential, it’s unlikely that citizens will be able to influence how decision-makers define significant adverse effects. That’s because public hearings happen after a decision’s been made about the “significance” of an adverse effect. Therefore, decisions about significance do not fully incorporate the interests and perspectives of the communities affected.

As well, current participation and consultation procedures are too restrictive to truly engage Indigenous laws and traditions to help determine the potential adverse effects.

The expert panel’s recommendations, however, do not explicitly recommend equal collaboration between Indigenous communities and governments when determining whether a proposed project will have a significant adverse effect on a jurisdiction. And that assessment needs to be based on the well-being of socio-ecological systems, in alignment with Indigenous laws and traditions. This true integration is only possible when the criteria to define what “significant” means are built in collaboration by means of an environmental assessment process that is co-designed by Indigenous peoples and non-Indigenous governments.

Second, the government has discretionary power to approve a project, even in the presence of significant adverse effects. Environmental assessments, therefore, have little influence over a government’s ability to authorize projects, even those that have substantial adverse effects. The government is not obliged to provide a thorough justification for the approval of projects. Nor is it required to adopt all the review panel’s recommendations. This affects the transparency and accountability of the review process.

This was the case, by the way, in the Site C hydropower project’s assessment, where the Canadian Environmental Assessment Agency (CEAA) did not address all of the joint review panel’s 50 recommendations, even though it greenlighted the project. The CEAA’s statement asserted that significant adverse effects exist, but they are “justifiable under the circumstances,” without explaining that justification. The courts then confirmed the federal and provincial cabinets’ discretionary power in making this decision.

Although decisions about projects like Site C must observe Indigenous rights, they do not necessarily take into account Indigenous laws and traditions. Yet increasing the Indigenous involvement in the assessment process would boost accountability and transparency, while also creating more precise boundaries for government decisions. A policy and regulatory framework that clearly explains how significant adverse effects can possibly be justified would align the government’s decision-making with environmental assessments, and would also build trust with affected communities. That’s especially so if the Crown collaborates with Indigenous governments on how to determine what can be considered justified if communities might experience significant adverse effects caused by an energy or infrastructure project.

Third, consultation with Indigenous peoples does not bring about reconciliation with colonial governments, because it doesn’t require the Crown to resolve land claims. Consultation is restricted to “significant adverse effects” and rights infringements flowing from one specific project, without any consideration of the cumulative effects of historic rights and title breaches.

We saw this with the Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. case, in which the First Nation asserted treaty rights over land. The court refused to address the Crown’s alleged historical breach of the duty to consult, focusing only on the effects of the project at hand.

This was also the case with Site C. The courts ruled that a review panel had no power to address any matter of treaty interpretation. The Prophet River and West Moberly First Nations argued that there was no justification for infringing upon Aboriginal Treaty 8 rights,  particularly on the seizing of land, and that the government failed to adequately consult and accommodate with Indigenous peoples.

The courts ruled that it’s not under the government’s jurisdiction to determine whether the project’s cumulative impacts amounted to an infringement of treaty rights. The Federal Court of Appeal concluded that environmental assessment is an information-gathering process not intended to determine Indigenous or treaty rights, adding that judicial review was not the proper forum to decide whether First Nations’ rights were justifiably infringed.

The unaddressed demands for bigger-picture discussions of treaty infringement and historic breach of rights are frequently in courts, and they signal the need to improve Indigenous consultation.

The UN Declaration on the Rights of Indigenous Peoples calls for much more than mere consultation and delves into the relationship between colonial governments and Indigenous peoples. It requires that the Indigenous communities affected provide free, prior, and informed consent – known as FPIC – for project approval, that Indigenous jurisdictions co-design procedural and substantive rules for decision-making, and that they share decision-making power with the Crown over the approval of projects.

Some scholars argue that FPIC is a nuanced process that establishes a truly collaborative relationship between the state and Indigenous nations and communities, involving the exchange of information, joint analysis and the full integration of Indigenous people into the decision-making process. Although Canadian courts have not so far considered the UN declaration to be binding and enforceable in cases regarding the duty to consult, they have recognized its role in interpreting Canadian laws.

As Canada moves forward to implement the UN Declaration on the Rights of Indigenous Peoples, policy-makers should expect that the document will be used by the courts to help them determine what consent means in practical terms.

Ongoing regulatory reviews of environmental assessment practices need to adopt a co-designed and co-conducted environmental assessment process that is an equal partnership between governments and Indigenous communities. That process must extend all the way from regulatory measures to final decisions. But for these changes to be relevant, there must also be an acknowledgement of how Canada’s courts are grappling with environmental assessment issues, as well as more proactive and concrete changes to laws and policies on environmental governance to ensure a nation-to-nation relationship with Indigenous peoples.