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." 1 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. 2 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. 3 The new Impact Assessment Agency of Canada (Agency) is granted authority to negotiate certain agreements or arrangements on the Minister’s behalf. 4
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 […]
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