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Back AFN Technical Meetings (Montréal, QC and Vancouver, BC)

The Expert Panel (the Panel) for the review of environmental assessment (EA) processes participated in technical meetings hosted by the Assembly of First Nations (AFN) on January 9, 2017, in Montréal and on January 16, 2017, in Vancouver. The meetings were facilitated discussions between First Nations’ EA technicians and the Panel. Both engagement sessions included representatives of AFN member First Nations from across Canada and were open to all Indigenous groups and individuals, the general public and the media.

The following summary presents the comments and input received at both Montréal and Vancouver in-person engagement sessions. The summary is intended to present the views of participants, and not the views of the Panel itself. The summary is structured based on four themes chosen by participants: rights and title, jurisdiction, capacity and Indigenous knowledge.

The Panel wishes to thank all those who participated for sharing their expertise and experience at these sessions.

OVERARCHING MESSAGES

The Panel was encouraged to make bold and brave recommendations to the government - about people, the environment, and culture - so that future EA can engage Indigenous peoples in collaborative planning and decision-making. The Panel was further encouraged to leave the door open for future collaboration and consultation with Indigenous peoples.

Participants expressed their concerns about various constraints related to First Nations’ participation in the EA review process, in particular, the short timelines associated with the review, the inadequacy of participant funding, and the timing of funding. The Panel also heard that it would have been preferable for engagement sessions to be held in Indigenous communities.

Participants drew attention to the governments’ commitment to nation-to-nation relationships, with EA identified as an important arena in which to put this commitment into action. Participants reminded the Panel of how the Canadian Environmental Assessment Act, 2012 (CEAA 2012) came into effect and expressed caution against repeating the previous process. The Panel was told that this process created damage to the rights of Indigenous peoples and occurred without adequate consultation with those impacted. The Panel heard that First Nations need to be involved in the development of any new legislation that can impact their rights. The Panel also heard that any new legislation developed without First Nations’ involvement will not uphold the Crown’s constitutional obligations or commitments to reconciliation and nation-to-nation relationships. It was recommended that engagement with and participation of Indigenous Peoples should not end with this Panel’s report. In order to fulfill the commitments to building nation-to-nation relations and upholding the duty to consult, First Nations including knowledge keepers, Elders and communities, need to be adequately consulted and engaged in the development of any new legislation.

RIGHTS AND TITLE

With respect to Aboriginal rights and title, participants suggested that First Nations need to define themselves, based on their own knowledge, laws, rights, languages, customs and protocols. Through this process, First Nations can also define their own rights. Participants indicated that EA processes that do not acknowledge this fundamental premise cannot work.

The Panel heard that one of the main limitations of current EA process is the inability to assess the potential effects of a proposed project on Aboriginal rights and title. Participants explained that if respect and recognition for Aboriginal rights and title were part of EA processes many contentious issues would be addressed and the assessment of projects could proceed in a more effective and efficient manner, with increased certainty for all parties. The Panel heard that First Nations are not anti-development as long as the environment and their rights are respected and they are sharing in the benefits of sustainable economic growth within their traditional territories. The Panel also heard that the EA should look at all potential impacts, including impacts to Aboriginal and treaty rights.

JURISDICTION

Participants expressed that First Nations are self-determining, sovereign and have their own laws and traditions, which need to be incorporated into EA. The Panel heard about the importance of Indigenous sovereignty over traditional lands and territories and the importance of equitable and just discussion with governments and proponents to develop a better relationship for resource sharing. Participants pointed out the need for a legislative framework that defines and includes the exercise of Indigenous jurisdiction, and moves beyond the duty to consult and accommodate. Participants explained that this framework must be flexible enough to allow for Indigenous groups exercising decision making authority to do so in keeping with their own responsibilities, laws, and jurisdictions. Further, First Nations decision making processes and expressions of Indigenous laws must be considered equal and legitimate parallel processes. Participants identified the need for emerging government to government processes that are planned and clearly defined. Participants presented the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the starting point for setting higher standards for respecting First Nations’ jurisdiction, including the capacity to carry out environmental assessments and decision making. The Panel was reminded that Canada’s legal commitment to the UNDRIP is serious and that the honour of the Crown is at stake. They indicated that going forward, the EA legislative framework can and should meaningfully incorporate UNDRIP and the principle of free, prior and informed consent (FPIC). The Panel heard that principles of UNDRIP such as FPIC can be reconciled with the Crown’s duty to consult and accommodate as FPIC is simply a higher standard. Participants indicated that consent would reduce the conflict and issues that cause projects to be delayed in protest and court challenges.

Participants pointed out that the Auditor General of Canada has recognized that development projects are proceeding through EA review processes more efficiently and with higher approval where consent has been obtained (e.g. in modern treaty areas).

Participants also drew the connections between the exercise of jurisdiction, as well as the effective protection of rights, and meaningful participation in EA throughout all phases. Many participants identified the need for First Nations’ involvement early in the project planning process and in the development and undertaking of EA studies and methodologies. Participants indicated that decision making processes must be respectful at all times, accommodating diversity and minimizing conflict. Participants also stated that compliance and enforcement should be acknowledged within First Nations’ scope and jurisdiction. The Panel heard that First Nations need to be involved in monitoring and follow-up to ensure conditions are respected. Participants identified that regional and strategic EA are important tools that should be used to incorporate holistic views and understand cumulative effects. Overall, with respect to being part of EA processes, participants reinforced the need to embark on a new path together, in dialogue and partnership.

Participants noted that issues of overlapping Aboriginal rights and title claims as they relate to First Nations’ jurisdictions and EAs are important to understand and to address; however, participants emphasized that they hold mechanisms to address matters of overlap within their own laws and that the government should respect these mechanisms rather than apply a paternalistic approach to coordination.

CAPACITY

The Panel heard about various constraints related to participation in EA processes including the short timelines for the review of technical and scientific documents, the inadequacy of participant funding, and the timing of funding. The Panel heard that institutional capacity building to support First Nations’ rights as stewards of the environment and participation in EA processes is critical and should be ongoing, rather than attached to specific projects. Participants noted the need for capacity building and funding for legacy planning and on-going engagement in follow-up and monitoring. It was recommended that Canada commit to develop more environmental departments within First Nations, with ongoing funding, to enable First Nations to rebuild practices and knowledge systems on the land.

The Panel heard that the current EA process is a drain on existing capacity. First Nations often face difficult choices about where to focus the limited resources available to communities. It was noted that in order to provide meaningful input into EA review, Indigenous people need to participate through their own processes and this is often not within established timelines.

The link was also made between capacity and informed consent. The Panel was told that capacity is required to support First Nations to be able to provide consent; because of their stewardship role and strong connection to the land and the creator, communities will not give consent unless they are able to make an informed decision. Participants identified that in some cases communities need more time to develop the social capacity to fully benefit from projects. This capacity is required to ensure that they can negotiate Impact and Benefits Agreements (IBA) that support their capacity to participate in EAs, by assessing if the funding is sustainable, and assessing the full socio-economic benefits to determine if the community is ready to accept a particular IBA. Participants proposed that funding should be based on values of equity, with funding from proponents tied to the value of the resources being exploited and funding from government sufficient to support the duty to consult and capacity broadly.

INDIGENOUS KNOWLEDGE

Under the topic of Indigenous knowledge, the Panel heard that there are many terms used, including traditional knowledge and traditional ecological knowledge, that have not been provided or defined by Indigenous groups themselves. The term Indigenous knowledge was suggested because it focuses on the broader system and does not suggest it is limited to the past. Participants explained that rather than considering Indigenous knowledge in isolation, it should be considered as a values system to manage resources. Participants spoke to the importance of honouring ancestors and making sure Indigenous knowledge is expressed in EAs. It was explained that Indigenous knowledge connected to the land requires protocols and processes that are respectful to multiple ways of understanding the world. In this spirit, Indigenous knowledge and western science ought to be considered together and given equal weight, rather than folding Indigenous knowledge into western science in a way that only makes sense to a western worldview. Participants encouraged all parties involved in EAs to humble themselves in front of one another so that all involved can grow, learn, and improve. Participants also identified the need for the government to increase its capacity to receive Indigenous knowledge and its capacity to engage with First Nations.

Participants emphasized the importance of Indigenous knowledge in the EA process, and identified challenges in current EA to the meaningful sharing and consideration of this knowledge. Participants explained that the CEAA 2012 is limiting in that it does not take a holistic approach and does not adequately consider both Indigenous knowledge and cumulative impacts. The Panel also heard concerns that traditional land use information is often utilized in court by proponents and government to narrow rights. The Panel heard about Indigenous knowledge systems such as the Unama’ki Institute of Natural Resources approach known as two-eyed seeing. This approach incorporates both western science and Indigenous knowledge. The Panel also heard about the Treaty and Aboriginal Rights Research Centre established in Nova Scotia which provided funding to allow communities to gather Indigenous knowledge, talk to knowledge holders in a respectful way, and establish a database. The Panel was told to look at this Centre as a model for working with Indigenous knowledge.

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