On February 8, 2018, the Government of Canada introduced Bill C-69 to reform the federal environmental impact assessment process, replace the National Energy Board and amend the Navigation Protection Act. Two days earlier, Bill C-68 proposed amendments to the Fisheries Act. The proposed legislation provides the most significant illustration to date of how the federal government intends to meet its commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
BACKGROUND
The draft legislation fulfills a key promise of the federal government and follows an extended period of review and public consultation initiated in 2016. This process resulted in recommended changes to the Canadian Environmental Assessment Act, 2012 (to be repealed and replaced by the Impact Assessment Act); the National Energy Board Act (to be repealed and replaced by the Canadian Energy Regulator Act), the Fisheries Act and the Navigation Protection Act (renamed the Canadian Navigable Waters Act), among others. The government's stated goal was to restore lost protections and modernize environmental safeguards. For a more detailed summary of the non-Indigenous aspects of the proposed changes, see our February 2018 Blakes Bulletin: Federal Government Overhauls Canadian Environmental Legislation.
SUMMARY OF INDIGENOUS PARTICIPATION AND PROTECTIONS
The proposed legislation contains extensive new provisions relating to the participation of Indigenous groups in federal regulatory processes and the protection of aboriginal and treaty rights.
Indigenous Peoples and Governing Bodies
Each act adopts the terminology of "Indigenous" peoples, consistent with the practice of the federal government since its election in 2015. The term, however, is assigned the same meaning as "aboriginal" peoples in section 35 of the Constitution Act, 1982 (Section 35), resolving the question of whether the government intended to convey a different legal meaning by the term.
The role of Indigenous governing bodies — those acting on behalf of Indigenous groups, councils or people that hold rights recognized and affirmed by Section 35 — has been elevated under the legislation. Indigenous governing bodies are now clearly treated as a level of government under the acts. This is achieved by specifically addressing the shared jurisdiction of Indigenous governing bodies under modern treaties and land claim agreements and providing for discretion on the part of the government to enter into agreements to coordinate or delegate aspects of the impact assessment process with Indigenous governing bodies (similar to the practice with provinces and territories). This recognition is also broadly reflected in statements in the legislation about the federal government's desire to create renewed nation-to-nation and government-to-government relationships with Indigenous peoples.
Codification of Existing Aboriginal and Treaty Right Protections
All of the acts also include a general principle affirming the aboriginal and treaty rights of Indigenous peoples under Section 35 and requiring federal decision-makers to consider any adverse effects on those rights as part of the respective regulatory processes. While this is generally a codification of the existing law, in some circumstances the types of interests to be considered have been broadened. For example, in determining whether a designated project is in the "public interest" under the proposed Impact Assessment Act, the decision-maker must consider the impact (both positive and negative) on the Indigenous group and not only the adverse impact on Section 35 rights. This may allow a decision-maker to consider factors such as the positive economic impacts from the proposed activity on Indigenous groups. Potentially, benefits flowing under impact benefit agreements or similar arrangements between proponents and Indigenous groups could form part of the assessment.
The Impact Assessment Act also provides new opportunities for Indigenous peoples to participate in the assessment process, particularly early-on in the process. While in practice these activities are already being carried out by many proponents, codification provides some advantages in clarifying expectations about the regulator's role. For example, the Impact Assessment Act proposes that the new Impact Assessment Agency of Canada must offer to consult Indigenous groups during the planning phase of an assessment and must provide proponents with any relevant information from such consultation. This requirement will be welcomed from both Indigenous groups and proponents that are often critical of the absence of the Crown during early-stage consultations.
Indigenous Traditional Knowledge
The collection and use of Indigenous traditional knowledge to inform government decision-making is referenced widely in each of the acts. In many circumstances, federal decision-makers will now be required to consider traditional knowledge. Additional protections have also been added to ensure that traditional knowledge is kept confidential, a frequent concern raised by Indigenous groups during regulatory processes.
A Seat at the Table
Increased Indigenous participation has also been extended to representation in the agencies tasked with overseeing the new regulatory regimes. This includes the mandatory appointment of Indigenous persons to various positions and the expansion of advisory committees focused on the interests and concerns of Indigenous peoples. As an example, the new Canadian Energy Regulator (that replaces the National Energy Board) must now have at least one director and one commissioner who is an Indigenous person.
COMMENTARY
The proposed reforms represent a significant milestone in the federal government's stated efforts to renew its relationship with Indigenous peoples. The former federal government's introduction of the Canadian Environmental Assessment Act, 2012 and amendments to the Fisheries Act and (then) Navigable Waters Protection Act was a major catalyst behind the Idle No More movement and a continuing general strong dissatisfaction with these regulatory regimes from an Indigenous perspective.
The proposed amendments represent a significant change to the scope and potential participation of Indigenous peoples in federal regulatory processes. Perhaps the most significant aspect, however, is what has been omitted: none of the proposed acts reference the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) or the concept of "free, prior and informed consent" (fpic). The lack of any reference to UNDRIP or fpic is surprising given that it was a major policy commitment of the federal government and a significant component of the expert panel's report on revisions to federal impact assessment. See our April 2017 Blakes Bulletin: Expert Panel's Recommendations to Increase the Number, Cost and Timing of Federal Environmental Assessments. While the government has stated that consultation under the new regimes is with the goal of achieving consent, there is no mention of this in the draft legislation. It's possible that the government felt that references to UNDRIP or fpic were likely to lead to greater litigation risk and uncertainty.
However, there remains significant new discretion on the part of the federal government to include Indigenous peoples in the decision-making process and to delay or refuse decisions lacking consent from Indigenous groups. Moreover, with the stated objective of the federal government to support a private member's bill to legislate implementation of UNDRIP, and rumoured legislation to support the implementation of the "Principles respecting the Government of Canada's relationship with Indigenous peoples" published by Canada's department of justice in 2017 (known as the 10 principles), this is an area that is continuing to develop.
Nevertheless, it is clear at this stage that the federal government has not simply adopted fpic as a legislated standard, but sees impacts on Indigenous interests as one of a number of factors that must be considered in determining whether a particular activity should proceed. While consistent with the legal principle that reconciliation under Section 35 requires a balancing of Indigenous and non-Indigenous interests, we will have to wait and see how the federal government will actually achieve this balance in practice.
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