Chapter 10 Environmental Assessment

Question 1

What are the benefits of Indigenous Engagement?

Answer 1

• improvements in project design;
• new knowledge and understanding about the potential impacts of a project;
• creating innovative and collaborative approaches to mitigate adverse impacts on the environment and communities; and
• increased legitimacy of project undertakings.

Question 2

UNDRIP

Answer 2

United Nations Declaration on the Rights of Indigenous Peoples

An international instrument adopted by the United Nations in 2007 to enshrine the rights that constitute the minimum standards for the survival, dignity, and well-being of Indigenous peoples.
They acknowledges several rights of Indigenous peoples to manage the natural resources on their land.

It is not a formally binding international treaty, it was initially endorsed by 144 nations. Four countries initially voted against UNDRIP, including Canada, the United States, New Zealand, and Australia

Canada issued a statement of support endorsing the UNDRIP principles in 2010 and committed in 2016 to fully implement the declaration

Article 26: “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.” Article 32 notes that governments “shall consult and cooperate in good faith” in order to obtain free, prior, and informed consent from Indigenous peoples prior to the approval of any development project

Question 3

In Canada, Indigenous and treaty rights are _______________________________ requiring that federal, provincial, and territorial governments ________________ when legislative or regulatory actions, such as a project approval, may _______________________ . Even when rights are unproved, governments are _____________ to consult with Indigenous peoples regarding potential impacts to their asserted rights.

Answer 3

entrenched in law under section 35 of the Constitution Act, 1982;
Consult with rights-holders;
Interfere with or infringe upon those rights;
Obligated

Question 4

Under the federal Impact Assessment Act (2019), for example, one of the factors to be considered in EA is ___________________

Answer 4

the impact on the rights of Indigenous peoples

Question 5

One of the purposes of the act is to promote ____________________ and __________________ with Indigenous peoples and to ensure that impact assessment takes into account ___________________.

Answer 5

communication and cooperation;
Indigenous knowledge

Question 6

Consultation with Indigenous peoples must be carried out with the goal of addressing the concerns of the affected Indigenous group, but the extent of consultation is determined on a case-by-case basis according to what factors?

Answer 6

the severity of the potential impact; the extent to which there is an asserted claim or treaty right; the status, merit, or strength of that claim; and whether the Indigenous or treaty right potentially affected is claimed but not yet established

Question 7

Who holds the duty to consult with Indigenous people?

Answer 7

The government

Question 8

A government can and often will, however, download many of the substantive elements of its duty to consult onto who?

Answer 8

Project Proponents

Question 9

Why is consultation duties given to project proponents?

Answer 9

The objective is that project proponents or their consultants can provide comprehensive information to affected communities and capture all aspects of their concerns about the proposed project and in doing so meet the government’s own consultation requirements.

Question 10

Why may this be an issue (consultation duties given to project proponents?)

Answer 10

There can be confusion about the relative roles and responsibilities of government and industry—specifically in terms of a proponent’s actions to build relationships with a community to earn a social licence versus a government’s legal duty to consult. A recent example is a decision by the British Columbia Environmental Appeals Board regarding a challenge by the Fort Nelson First Nation over a water extraction licence issued to Nexen, an upstream oil and gas company, to support hydraulic fracturing in northern British Columbia. The Fort Nelson First Nation claimed that it was not made clear to them that their engagement with the project proponent also constituted the government’s legal duty to consult and that engagement with the proponent certainly did not meet their expectations for engagement with the Crown. The Appeals Board found that the province failed to consult, in good faith, with the Fort Nelson First Nation, noting that meaningful consultation must be based on a clear framework and set of processes. Nexen’s role in meeting the government’s legal obligation to consult was not clearly communicated to the First Nation. The board explained that if government expects a project proponent to play a role in the consultation process, then it must make that role clear to the First Nation. The company’s water extraction licence was retracted.

Question 11

the function and objectives of EA engagement versus the duty to consult

Answer 11

Engagement of Indigenous peoples in EA is one means to find balance among competing values and to facilitate reconciliation between development actions and environmental protection; the duty to consult is about reconciliation of the pre-existence of Indigenous peoples and Indigenous rights with the sovereignty of the Crown (Craik, 2016).

Question 12

What is a social license and why is it important?

Answer 12

Indigenous engagement is also a necessity for project proponents wanting to earn a social license to operate

Social license: The ongoing acceptance of a company or industry’s business practices and operations by communities or the general public.

Question 13

A credible EA process must be based on the best available knowledge. A combination of knowledge sources can provide a more comprehensive understanding of the potential impacts of a proposed undertaking and how best to manage them. Knowledge in the EA process is generally of two forms:

Answer 13

scientific knowledge and Indigenous and local knowledge (ILK).

Question 14

Indigenous and local knowledge

Answer 14

A cumulative body of knowledge, practice, and belief, evolving by adaptive processes and handed down through generations by cultural transmission, about the relationship of living beings (including humans) with one another and with their environment.

encompasses language, systems of classification, resource use practices, social interactions, and rituals, among other things. ILK is thus a way of life for knowledge-holders rather than simply a collection of information that can be codified for use in impact assessment

Comprised of different spatial and temporal scales

often based on observations from the land, personal and community experience, and relationships developed and shared over time at a local scale. It often captures long periods of observation of environmental change

Question 15

Indigenous and Local Knowledge plays an important role in complementing and validating ____________________ and provides an improved understanding of what?

Answer 15

scientific data (e.g., information about fish and wildlife populations, movements, and health);

the implications of change (e.g., interpreting the significance of development impacts and understanding how impacts have accumulated over time

Question 16

bridging knowledge systems

Answer 16

Maintaining the integrity of Indigenous and Western science knowledge systems while creating settings to ensure the two-way exchange of understanding and learning.

Scientific knowledge is often more easily disseminated to different actors than ILK, which is often held by fewer people and may be more context-specific (Huntington, 2013). That said, when scientific knowledge is used in EA to understand baselines or to predict or assess change, it is usually necessary to downscale it to local contexts—such as the project-specific setting—where data are sometimes limited and local dynamics must be interpreted to make the science applicable. Thus, in principle, ILK and science can be complementary, and the consideration of multiple forms of knowledge can contribute to better decision-making

sometimes it conflicts but it can lead to discussion about how to manage resources

Question 17

The Duty to Consult

Answer 17

The duty to consult is a formal, legal obligation for governments to consult with Indigenous peoples.

This legal obligation is separate from, and in addition to, any requirements for public participation and engagement under various federal and provincial EA systems.

A formal, legal obligation in Canada for governments to consult with Indigenous people in cases where Indigenous rights, claims, or titles are known and may be affected by a development or decision, even in cases where those rights, claims, or titles have not yet been proven in court.

Question 18

Indigenous-led impact assessment

Answer 18

Indigenous engagement can also mean a much more substantive role in EA: assuming leadership of the EA process. Indigenous-led impact assessment is defined by Gibson, Hoogeveen, MacDonald, and The Firelight Group (2018) as:

A process that is completed prior to any approvals or consent being provided for a proposed project, which is designed and conducted with meaningful input and an adequate degree of control by Indigenous parties—on their own terms and with their approval. The Indigenous parties are involved in the scoping, data collection, assessment, management planning, and decision-making about a project.

Question 19

Intervenors

Answer 19

Indigenous communities must have the resources to engage their membership during the EA process and engage with the dominant scientific discourse of EA (O’Faircheallaigh, 2007). Unless financial and technical resources are provided, such participation is not likely to occur. Government agencies, and project proponents, sometimes provide Indigenous communities with participant funding to engage in EA
An intervenor is an individual or formal group or interest who formally intervenes or participates as a third party in a legal or public hearing proceeding.
he National Energy Board’s program was intended to support intervenors by offsetting the costs of their participation in a formal project hearing.

Question 20

traditional use studies

Answer 20

Studies that combine community knowledge with ethnographic, archival, and archaeological information to highlight places, land uses, and landscapes and values of cultural, heritage, spiritual, use, or community importance.
To demonstrate the potential for impact on land uses, to review and comment on project applications (e.g., technical design, mitigation measures), and to intervene in regulatory or public hearing processes

Question 21

Duty to Consult and the Haida Case Ruling

Answer 21

In 2004, the Supreme Court of Canada released its decisions in Haida Nation v. British Columbia (Minister of Forests) and Weyerhaeuser. The Haida case involved a judicial review, pursuant to the British Columbia Judicial Review Procedure Act, of the minister’s decision to replace and approve the transfer of a tree farm licence. In 1961, tree farm licences were issued to MacMillan Bloedel, a forest harvesting company, permitting the company to harvest in an area of Haida Gwaii, the Queen Charlotte Islands. The licences were replaced in 1981, 1995, and 2000; the tree farm licence was transferred to Weyerhaeuser in 1999. The Haida challenged these replacements and the transfer, arguing that they were made without the consent of the Haida and over their objections. The Haida’s case was dismissed by the British Columbia Supreme Court, which noted that the law could not presume the existence of Indigenous rights based only on their assertion and concluded that the government had only a “moral duty” to consult. The decision was appealed, and the court of appeal found that the government had fiduciary obligations of good faith to the Haida with respect to their claims to Indigenous title and right and that both the province and Weyerhaeuser were aware of the Haida’s claims to the area covered by the licence. The court concluded that both the Crown and Weyerhaeuser had a legally enforceable duty to consult with the Haida to address their concerns. Weyerhaeuser’s appeal of the decision to the Supreme Court of Canada was allowed, but the government’s appeal was dismissed. The Supreme Court of Canada ruled that the duty to consult rests with government and government must consult and accommodate when there is knowledge of the potential existence of an Indigenous right or title, regardless of whether that right or title has been legally established.

Question 22

When government agencies engage communities early in the pre-EA stages, there is an opportunity for government and communities to __________, such as ____________ that cannot be meaningfully addressed through a project-focused EA. Commencing traditional use studies only when approached by a project proponent, for example, results in participation that is focused more on ___________ than genuine engagement (Noble & Udofia, 2015).

Answer 22

identify any issues associated with development that need to be addressed;

rights-based issues and the completion of traditional use studies

information-gathering