Industry NewsfeedCourtesy of McCarthy Tetrault. View original article here.
On August 28, 2019, Canada’s new federal environmental legislation under Bill C-69 (including the Impact Assessment Act (IAA), Canadian Energy Regulator Act (CERA), and Canadian Navigable Waters Act (CNWA)) and Bill C-68 (amendments to the Fisheries Act and other Acts in consequence) came into force. These new statutes and legislative amendments introduce enhanced Indigenous consultation requirements for mining, pipeline, and other projects that require federal impact assessments and certain federal regulatory approvals and permits. McCarthy Tétrault’s update on the new IAA (including key transitional provisions) and associated Regulations is available here.
Bill C-69 Amendments
In February 2018, we wrote an overview of the Indigenous-related aspects and implications of the proposed IAA. The House of Commons’ proposed amendments to Bill C-69 were subsequently reviewed by the Senate Committee on Energy, the Environment and Natural Resources. Of the Senate’s 188 proposed amendments, the House of Commons accepted 62 amendments fully and 37 with modifications. Bill C-69, as amended, received Royal Assent on June 21, 2019.
In broad strokes, the overall scope and approach with regard to the Indigenous aspects of the now-in force IAA (as well as CERA and CNWA) have remained substantially similar since First Reading. The new Indigenous-related aspects of the IAA and other Acts generally focus on new measures designed to:
- increase opportunities for Indigenous participation, cooperation and partnership with government in impact assessment processes and decision-making;
- enhance recognition and consideration of Indigenous rights and interests; and
- enhance consultation and engagement opportunities for Indigenous groups.
As part of this, the IAA and CERA expands the scope of what must be considered vis-à-vis Indigenous interests in decisions or recommendations under these statutes. The decision-maker will be required to consider any impacts on Indigenous peoples and their asserted and established Aboriginal or treaty rights. This goes beyond the common law requirements of the duty to consult, which is limited to the consideration of impacts on section 35 rights and does not consider impacts on Indigenous peoples generally.
The federal government summarized the House of Commons’ proposed Indigenous-related amendments to Bill C-69 in a summary document; these proposals were largely adopted by the Senate and embodied in the final version of the Bill. Below are some notable Indigenous-related amendments made to Bill C-69 (and particularly to the IAA) since First Reading in the House of Commons in 2018.
Express reference to UNDRIP
No reference was made to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the initial draft of Bill C-69. This absence was notable given that the federal government had previously committed to implementing UNDRIP. UNDRIP contains a number of provisions relating to seeking the free, prior, and informed consent (FPIC) of Indigenous groups in various situations, including the approval of projects affecting their lands or territories. UNDRIP is now referred to in the preambles of the IAA and CERA (which state, “Whereas the Government of Canada is committed to implementing” UNDRIP) but there are no requirements for Indigenous consent in either statute except for reiterating pre-existing consent requirements for the use of reserve land and certain treaty lands in CERA. The IAA and CERA now also expressly mandate government authorities to exercise their powers in a manner that respects the Government of Canada’s commitments with respect to the rights of Indigenous peoples. It is unclear how this mandate provision will be interpreted and we anticipate that both provisions could become the subject of future litigation. (These references have not been added to the CNWA).
Bill C-69 generally reflects the federal government’s apparent intentions to implement the principles of UNDRIP and specifically the concept of FPIC of Indigenous groups in decision-making. The federal government is doing so 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. The wording of certain FPIC provisions and the manner in which UNDRIP has been implemented outside of Canada provides support for Canada’s position. The federal government’s approach aims to strike a balance between competing interests, including where certain affected Indigenous groups support a project and others oppose it. However, there continues to be heightened expectations of consent and confusion in this area. This is due in part to earlier statements by the federal government about their “unqualified support” for UNDRIP which they have in fact qualified through further statements and actions, including Bill C-69.
The various agreement, arrangement, substitution and delegation approaches set out in the IAA give rise to the potential for Indigenous groups to negotiate consent principles into decision-making processes. These types of agreements and arrangements are discretionary on the part of either the Minister or the Impact Assessment Agency (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 such 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 Indigenous groups that are not parties to modern treaties, and whether government will offer up authority beyond projects on modern treaty or reserve lands.
Consideration and Protection of Indigenous Knowledge
“Indigenous knowledge” has replaced references to the “traditional knowledge of the Indigenous peoples of Canada” in each Act in Bill C-69. Indigenous knowledge is defined broadly as “the Indigenous knowledge of the Indigenous peoples of Canada. The federal government has indicated that this change in terminology is to clarify that Indigenous knowledge is intended to include the evolving knowledge of Indigenous peoples and is not limited to “traditional knowledge”.
New measures have also been added to ensure transparency in the consideration of Indigenous knowledge. For example, the IAA includes various new reporting requirements on the Agency, review panel, or jurisdiction for a substituted process to expressly describe how Indigenous knowledge was considered and applied in their assessment and decision-making processes.
There are also new measures to ensure the protection of confidentiality of Indigenous knowledge. For example, under the IAA, CERA and CNWA, prior to disclosing Indigenous knowledge for purposes of procedural fairness and natural justice, the Minister, Agency, committee, review panel, or Regulator, as applicable, must consult with the provider of Indigenous knowledge about the scope of proposed disclosure and potential conditions of disclosure.
This still leaves many unanswered questions about how Indigenous knowledge will be considered in project reviews and how to address the challenges that have arisen in the past with the collection and incorporation of Indigenous knowledge into project reviews. With respect to next steps for the implementation of the Indigenous knowledge provisions under Bills C-69 and C-68, the federal government has announced that “federal organizations will work in partnership with Indigenous peoples to promote a common understanding for the consideration and protection of Indigenous knowledge in project reviews and regulatory decisions through the development of an Indigenous Knowledge Policy Framework and other procedures and guidance.” Further information regarding the development of the Indigenous Knowledge Policy Framework is available here.
Additional Consultation and Cooperation Requirements
The final version of Bill C-69 contains amendments to ensure additional consideration of Indigenous interests in certain decision-making. For example, under the IAA, in deciding whether an impact assessment of a designated project is required, the Agency must take into account a range of factors, including comments received within the specified time period from any jurisdiction or Indigenous group that is consulted. Moreover, if the Agency decides that an impact assessment of a designated project is required, it must provide the proponent with certain documents, including tailored guidelines regarding information or studies required from the proponent and “plans for cooperation with other jurisdictions, for engagement and partnership with Indigenous peoples, for public participation and for the issuance of permits.” It remains to be seen how detailed and prescriptive this information will be.
Indigenous Representation on Advisory Councils
Under the IAA, the Minister must establish an advisory council to advise him or her on issues related to the implementation of the impact assessment and regional and strategic assessment regimes set out under the Act. Amendments were made to ensure a distinction-based approach to Indigenous membership on advisory councils, such that the interests of First Nations, Métis and Inuit peoples are all represented. Membership on this council must include at least one person representing interests of each of First Nations, Inuit and Métis. Similarly, membership on the committee to advise the Agency regarding the interests and concerns of Indigenous peoples in relation to assessments to be conducted under the Act must also include at least one person representing interests of each of First Nations, Inuit, and Métis.
Similarly, under CERA, the establishment of an Indigenous advisory committee by the Regulator is now mandatory, for the purpose of enhancing the involvement of Indigenous peoples and organizations in respect of pipelines, power lines, offshore renewable energy projects and abandoned projects. Membership on the advisory committee must also include at least one person representing the interests of each of First Nations, Inuit and Métis.
References to Indigenous Women
Express requirements for consideration of the rights of Indigenous women have been added to two sections of the IAA. Before making an order to designate a physical activity that is not prescribed by regulations, the Minister may consider adverse impacts of the physical activity on the rights of Indigenous peoples – including Indigenous women. As well, when conducting a regional assessment or committee assessment of a federal policy, plan or program relevant to conducting impact assessments, the Agency or committee must take into account Indigenous knowledge provided with respect to the assessment – including the knowledge of Indigenous women.
Indigenous Capacity Support Program
Separate from Bill C-69, the federal government recently announced a new Indigenous Capacity Support Program as part of its efforts to improve and facilitate Indigenous participation in the new IA process. The program aims to assist Indigenous peoples, communities and organizations develop skills to better participate in impact assessments. The government’s Public Notice states that “[t]his funding, provided outside the context of specific project reviews, is intended to support better informed and more meaningful engagement and leadership of Indigenous peoples in consultations on project assessments, regional and strategic initiatives, and policy development.”
All Indigenous organizations, groups and communities are eligible, including: Indigenous groups or collectives coordinating more than one Indigenous group; and incorporated or registered Indigenous non-profit organizations, such as a band council, association, co-operative or institution. The nature and type of activities that are considered eligible (to a maximum funding allocation of $300,000) include: developing or supporting organizational capacity to participate in or undertake, as well as deliver information, data and studies on behalf of Indigenous communities or organizations mandated to support the implementation of environmental assessments; and outreach activities to strengthen awareness of environmental assessment issues; and design and delivery of workshops, training programs, or materials for Indigenous peoples for related activities.
Bill C-68 Amendments
In February 2018, we also wrote an overview of the Indigenous-related aspects of the initial draft of Bill C-68 and its proposed amendments to the Fisheries Act. In furtherance of the federal government’s reconciliation efforts with Indigenous peoples, the Fisheries Act amendments provide opportunities to increase and strengthen the role of Indigenous groups in decision-making under the Act, which includes the potential for an increased role in project reviews, monitoring and policy development.
Following the introduction of Bill C-68, there were a number of Indigenous-related amendments including:
- The definition of Indigenous, in relation to a fishery, has been amended to mean: “that fish is harvested by an Indigenous organization or any of its members pursuant to the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 or for any purposes set out in any rights implementation measures as agreed to by the Crown and Indigenous peoples.” The earlier definition referred to the use of fish as food for social or ceremonial purposes, or for purposes set out in a land claims agreement. Although nuanced, the new definition seems to potentially broaden the scope of what could constitute an Indigenous fishery under the Act.
- The Act introduces new measures to maintain and rebuild major fish stocks prescribed by regulations, which could affect Indigenous fisheries.
- The Rights of Indigenous peoples of Canada are now positively recognized under the Act, which “is to be construed as upholding” section 35 rights, and not as abrogating or derogating from them. As well, any agreement entered into by the Minister with an Indigenous governing body to further the purposes of the Act, must now expressly “respect the rights recognized and affirmed by section 35.”
- As with Bill C-69, references to the traditional knowledge of Indigenous peoples of Canada have been changed to Indigenous knowledge. As well, before disclosing Indigenous knowledge for the purposes of procedural fairness and natural justice, the Minister must consult with the provider of the Indigenous knowledge about the scope and potential conditions of disclosure.
We will continue to monitor and provide commentary on the new legislation and associated regulations, and as any implementation guidelines that are released.
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