Canada: Indigenizing Impact Assessments?: New Legislation In Canada & BC

The next iteration of environmental impact assessments has arrived. Canada's Impact Assessment Act¹ (IAA), the federal Physical Activities Regulation, and British Columbia's Environmental Assessment Act² (EAA) make significant changes to how we measure a proposed project's impacts. Both Acts include provisions that provide for Indigenous-led impact assessments. Opportunities for valuing indigenous knowledge on the same level as Western science will depend on the capacity of Indigenous groups to take advantage of the new amendments.

The legislation is very new. Canada's IAA received Royal Assent on June 21, 2019, incorporating 99 of the senate's 188 amendments, and came into force on August 28, 2019. BC's EAA is not yet in force; it received Royal Assent in November 2018, and is scheduled to come into force in late 2019, pending the development of regulations.³

Both the IAA and the EAA contemplate Indigenous-led impact assessments. Specifically, section 31 (1) of the IAA provides discretion for the responsible minister to substitute an Indigenous "jurisdiction" process for the Impact Assessment Agency's impact assessment.⁴ The wording of s. 31 suggests that substitution can only occur for a single Indigenous group's process, raising the question of whether an impact assessment led by multiple Indigenous groups would be permitted. Section 29 of the IAA also allows the Agency to delegate any part of the impact assessment to an Indigenous Jurisdiction. These substitutions and delegations are entirely discretionary. However, if the Minister and the Agency opt not to delegate the impact assessment to an Indigenous group, Indigenous groups may still conduct independent assessments. Where this occurs, the results of these independent Indigenous assessments must be considered as part of the overall assessment of a proposed project.⁵

Similarly, section 41 of the BC EAA empowers the responsible Minister to agree with one or more Indigenous Nations to substitute an Indigenous-led assessment for part or all of BC's impact assessment process. Section 41 (2) (b) contemplates a cooperative assessment. In both Acts, whether a proposed project is approved is still determined solely by the responsible Minister (BC) or Governor in Council (Canada), ⁶ notwithstanding the process undertaken by the Indigenous-led assessment.

There are a number of issues that remain uncertain, particularly the lack of capacity funding for Indigenous groups to conduct their assessment processes and the process by which Indigenous knowledge will be obtained and afforded weight. The BC EAA does not address capacity funding, although this may be established through the upcoming regulations. The EAA enables the assessment agency to level tariffs on the proponent to pay for Indigenous participation, but this is entirely discretionary.⁷ Canada's IAA requires the establishment of a participant funding program, but details for this program have not yet been released through regulation.⁸ Having created theoretical opportunities for Indigenous groups, it is still unclear that the federal and BC governments are willing to provide the requisite capacity funding.

The use to be made of Indigenous knowledge is also uncertain. While both Acts require that Indigenous knowledge be considered, neither Act is clear on exactly how Indigenous knowledge informs the proposed project approval decision.⁹ Furthermore, more work needs to be done to provide a space for Indigenous knowledge that is grounded in oral histories and not conducive to strict assessment timelines. Neither Act provides for a process for obtaining oral history evidence or for completing cultural heritage studies in the proposed project area to inform the decision making process.

Footnote

1 Impact Assessment Act, SC 2019, c 28 "Impact Assessment Act".

2 Environmental Assessment Act, SBC 2018, c 51 "Environmental Assessment Act".

3 Government of British Columbia, Environmental Assessment Revitalization, online: <https://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/environmental-assessments/environmental-assessment-revitalization>.

4 The IAA defines "jurisdiction" broadly, to include Indigenous governing bodies under land claims and federal or provincial Acts, as well as co-management bodies: Impact Assessment Act, s. 2.

5 Impact Assessment Act, s. 22 (1) (q).

6 Impact Assessment Act, s. 62; Environmental Assessment Act, ss. 41 (3) and 29.

7 Environmental Assessment Act, s. 48.

8 Impact Assessment Act, s. 75; the IAA refers to "public" participation funding but, given the federal government's statements, this is likely to include Indigenous participation.

9 Impact Assessment Act, s. 84 (1) (a); Environmental Assessment Act, 2 (2) (b) (i) (C).

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