The federal government has proposed reforms to environmental laws that address major issues around the impact of development on Indigenous culture.
The federal government has proposed reforms to environmental laws that address major issues around the impact of development on Indigenous culture.
The proposed Impact Assessment Act, which was introduced in January following 14 months of consultations with the Indigenous community, companies, provinces and territories and environmental groups, is designed to replace the Canadian Environmental Assessment Act.
Its more comprehensive assessments would show how a company’s proposed project could affect the environment, health, society and the economy, as well as how the development would impact Indigenous people over the long term.
Former Ontario premier Bob Rae, a senior partner with Olthuis Kleer Townshend LLP, says the proposed legislation requires that a company wanting to develop property in a First Nations territory conduct an assessment identifying any impacts it might have on the people as well as the land.
But instead of examining the individual impact of just one individual project, the lens would widen to look at the cumulative effect a number of projects would have over a period of time.
“There’s been a tendency in the law up until now to simply look at one single project and say: ‘Is this project likely to have an impact?’ Whereas I think the bigger issue is: ‘Well, if there’s one, aren’t there more likely to be others following?’ And so the real issue is: ‘What is the overall impact of development going to be?’ That’s the big issue,” says Rae.
“I think when you look at where a lot of development is being proposed, it’s often in remote areas where communities do not have road access and where there’s not a lot of deep familiarity with the impact that a mining or forestry [project] could have. That’s the basis for it.”
Cultural heritage needs to be considered when companies conduct environmental assessments, says Julie Abouchar, a Toronto partner at Willms & Shier Environmental Lawyers. That involves including the elders through interviews, incorporating oral histories and getting traditional knowledge by the people impacted by the project and including their feelings of the land.
She says that’s also connected with Indigenous legal order — that is the way First Nations have always thought of the land, their connection with the land and some of that traditional knowledge. That could include hunting, trapping and berry-gathering practices.
“You might also get stories about the spiritual nature of the landscape or the connection of the land with the people,” says Abouchar.
She points to Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), a British Columbia case recently heard by the Supreme Court of Canada in which the Ktunaxa Nation felt disturbed by the impact a proposed ski hill would have on the great bear spirit using the freedom of religion argument. While the First Nation was not successful, the case highlights the importance of intangible impacts. The challenge is to figure out how to assess those intangible impacts, says Abouchar.
Charles Birchall, a Willms & Shier Environmental Lawyers LLP partner based in Ottawa, points out the proposed legislation aims to foster sustainability and promote communication and co-operation with Indigenous people. He believes it aims to ensure and respect Indigenous rights and that the impact assessments take into account Indigenous traditional knowledge and that follow-up programs are included in the planning process.
“The bill is clearly looking to ensure that designated projects, accurately considered, capture the effects of projects on Indigenous peoples,” says Birchall, including cultural impact assessments.
A proponent of a project has to prepare an assessment that looks at the effect of the project on the Indigenous people’s physical and cultural heritage, the use of land and resources for traditional purposes, architectural, archeological, historical and paleontological significance. The assessment must also look at any change to the health, social and economic condition of Indigenous people.
The idea is that by looking at several projects instead of just one individually, the impact of the physical activities could show significant adverse effects on the culture of an Indigenous community.
The bill also contains provisions to ensure the confidentiality of information provided through the sharing of cultural knowledge. Birchall says that could include information such as important fishing areas to ensure that they aren’t overfished.
“What [the proposed legislation] clearly does is underscore the importance of cultural impact assessments, the effects on Indigenous peoples,” he says.
As part of the overall initiative, the Canadian Environmental Assessment Agency will be replaced by the Impact Assessment Agency of Canada to lead all federal reviews of major projects and work with other federal bodies.
The Canadian Environmental Law Association announced that it is generally supportive of certain elements of the proposed impact assessment law. But it identified some shortcomings, including the absence of cross-referencing the United Nations Declaration on the Rights of Indigenous Peoples.
Rae says it stops short of providing the clear guidance that many are seeking. He says it doesn’t go far enough from the perspective of First Nations because it fails to deal directly with the issue of free, prior and informed consent identified in the United Nations Declaration on the Rights of Indigenous Peoples, which describes individual and collective rights of Indigenous peoples around the world.
“It’s a little strange to me that the federal government would announce with a great deal of fanfare that it’s adopting the UN declaration as its benchmark and not put it into the major piece of environmental and impact assessment legislation. I find it, frankly, quite strange,” he says.
“It certainly doesn’t clarify what Indigenous people have been saying for some time is reflecting their concerns about the nature of development.”
The proposed legislation is now before Parliament.
The government is also seeking input on regulations and policy changes to accompany the legislation.
According to the government, there is in excess of $500 billion in major resource projects planned across the country over the next 10 years. The goal of the legislation is to protect the environment and communities while ensuring good projects are built.
