On February 8, 2018, the federal government introduced Bill C-69, Part 1 of which tables the Impact Assessment Act (IAA), proposed federal legislation to replace Canada’s current environmental assessment legislation, the Canadian Environmental Assessment Act, 2012 (CEAA 2012), as we outline here.
An overarching theme of Bill C-69 and the IAA is the federal government’s clearly-stated intention to pursue reconciliation and renewed relationships with Indigenous peoples “based on recognition of rights, respect, co-operation and partnership.” In particular, the IAA sets out to achieve the government’s stated commitments towards Indigenous peoples through a number of substantive measures. Broadly, these measures are focused on:
- increasing opportunities for Indigenous participation, cooperation and partnership with government in impact assessment processes and decision-making;
- enhancing recognition and consideration of Indigenous rights and interests; and
- enhancing consultation and engagement opportunities for Indigenous groups.
Increased Indigenous participation, cooperation and partnership opportunities
The IAA introduces several measures that could significantly increase opportunities for Indigenous groups to be actively involved in impact assessments (IAs) and decision-making, depending on how they are implemented. Of particular note is the authority granted to the Minister to enter into agreements or arrangements with Indigenous “jurisdictions” on a broad range of subject matters. Such agreements may cover matters including the assessment of designated project effects; the exercise of powers or performance of duties or functions by the Indigenous jurisdiction in relation to impact assessments; coordination, consultation, exchange of information, and the determination of factors to be considered in relation to the effects assessment of designated projects; the joint establishment of review panels and how IAs will be conducted by the review panel; and the joint establishment of committees to carry out regional effects assessments. The new Impact Assessment Agency of Canada (Agency) is granted authority to negotiate certain agreements or arrangements on the Minister’s behalf.
The Minister also has the power to substitute an Indigenous jurisdiction’s own process for assessing the effects of designated projects for the IA, while the Agency has authority to delegate to Indigenous jurisdictions the carrying out of any part of an IA and the preparation of the IA report. Substituted processes under CEAA 2012 were meant to enable the provinces to undertake reviews in place of the federal government and avoid duplication. CEAA 2012 also allowed for substitution to Indigenous groups that are parties to a modern treaty or separate self-government agreement. The proposed provisions under the IAA would expand the number of situations in which substitution/delegation could occur with Indigenous groups.
While each of these types of agreements and arrangements are discretionary on the part of either the Minister or Agency, if exercised, they give rise to potential opportunities that would significantly shift assessment and decision-making authority from government to Indigenous groups whose rights may be affected by a project. In our view, the true extent to which these measures will have any meaningful impact on the impact assessment regime will largely depend on the government’s willingness to implement them in practice, and particularly the degree to which they are willing to enter into such agreements with those Indigenous groups which are not parties to modern treaties and whether they will offer up authority beyond projects on modern treaty or reserve lands.
Enhanced recognition of Indigenous rights, interests and knowledge
The federal government’s efforts to enhance recognition and respect for Indigenous rights and interests are represented throughout the IAA. In respect of the carrying out of an IA, the factors that must be taken into account include not only the adverse impacts of the project on Indigenous peoples’ s. 35 rights recognized and affirmed in the Constitution Act, 1982, but also more broadly the impact of a project on any Indigenous group. Other Indigenous-related factors that must be considered in an IA include: traditional knowledge, if provided; considerations related to Indigenous cultures; community knowledge; and any assessment of the effects of a project that is conducted by or on behalf of an Indigenous governing body.
Further, in determining whether a project is in the public interest, the Minister or Governor in Council, as applicable, must also consider the impact that the project may have on any Indigenous group, in addition to any adverse impacts on s. 35 rights.
These IA considerations are much broader than those required at common law by the Crown’s duty to consult. The subject matter of the duty to consult is restricted to the potential impacts of a Crown decision or action on the constitutionally recognized and affirmed s. 35 rights of Aboriginal peoples of Canada and does not extend to other potential impacts on Indigenous communities or peoples more generally. It is also broader than what is currently required to be considered under CEAA 2012 vis-à-vis impacts to Indigenous groups.
We note, however, that with threshold decisions such as whether to designate a physical activity as a designated project or whether an IA is required for a project, the Minister or Agency, as applicable, need only consider the potential for adverse impacts on s. 35 rights rather than broader impacts on Indigenous peoples generally.
Enhancing consultation and engagement opportunities for Indigenous groups
The IAA introduces new measures to enhance opportunities for consultation and engagement with Indigenous groups at different stages. Notably, at the new early Planning Phase, the Agency is required to “offer to consult” with any applicable “jurisdiction” and with any Indigenous group that may be affected by a project. This signals a shift towards early and increased Crown-Indigenous consultation, whereas the current practice is heavily proponent-driven. The IAA does not expressly address the proponent’s role in consultation or indicate the extent to which the proponent will be expected to carry out consultation on behalf of the Crown. These details may be provided in the regulations, guidelines or determined on a case-by-case basis.
To facilitate public and Indigenous participation in IA processes as well as in regional and strategic effects assessments, the IAA requires the Agency to establish a participant funding program. Although the IAA refers to “public” participation under the program, we expect this program would extend to Indigenous groups since the federal government has indicated that participant funding programs will be enhanced to support the participation of the public and Indigenous peoples by expanding eligible activities, increasing funding levels, and enhancing the process to reduce administrative delays. Details of the participant funding program, and the degree to which it will vary from the existing participant funding programs at CEAA, the NEB, and CNSC, will likely be set out by regulation.
To increase opportunities for Indigenous participation at a higher-level planning stage, the IAA requires the Agency to establish an Indigenous “Advisory Committee” with the mandate to advise the Agency with respect to Indigenous interests and concerns in respect of assessments under the IAA, and the committee must include Indigenous persons. It is unclear if the Advisory Committee will become involved in individual assessments or if its mandate will be at a higher level. The Agency also has an express object to “engage in consultation with the Indigenous peoples of Canada on policy issues related to” the IAA.
One of the most notable things about the proposed legislation is what it is missing. There is not a single reference to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) or any requirement for government to seek or obtain free, prior and informed consent (FPIC) by Indigenous peoples in making decisions or granting authorizations under the IAA. While this may be seen as contrary to the federal government’s “unqualified support” for UNDRIP, it is consistent with how the federal government has subsequently qualified the way in which it intends to implement UNDRIP and the principles of FPIC. The IAA amendments appear to reflect the previously-stated intentions of the federal government to implement the principles of UNDRIP (and specifically FPIC) by increasing opportunities for Indigenous participation in decision-making (“aiming to secure consent”), rather than by implementing a stricter standard of consent in respect of all decisions affecting Indigenous peoples or rights. Through the agreement, arrangement, substitution and delegation approaches discussed above, however, there is certainly the potential for Indigenous groups to be able to negotiate consent principles into decision-making under the IAA.
Indigenous vs. Aboriginal terminology
In keeping with the federal government’s preference for the term “Indigenous” over “Aboriginal”, the IAA replaces all references to Aboriginal with Indigenous. “Indigenous peoples of Canada” is defined as having the equivalent meaning as set out by the definition of “aboriginal peoples of Canada” in s. 35(2) of the Constitution Act, 1982. This includes “the Indian, Inuit and Métis peoples of Canada.”
Further analysis to come
As with much environmental legislation, the true impact of the proposed IAA, including its effects on Indigenous rights and participation, will only be meaningfully gauged once the regulations and any applicable guidelines are published.