ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS AGREEMENTS MARCH 21, 2013

Overview Land Claims EA Regimes Grand Council of the Cree (JBNQA) Dene First Nations Agreements (MVRMA) Yukon First Nations Agreement (YESSA) Application of CEAA 2012

Modern Comprehensive Claims

Comprehensive Claims Agreements Modern era of aboriginal claims settlement dates from 1973 Canada policy Comprehensive vs. specific claims Comprehensive claims based on assertion of continuing Aboriginal rights and/or title to lands and natural resources Achieve certainty of land tenure

Comprehensive Claims Agreements Agreements provide rights and benefits (title to some land, rights to other lands, financial benefits, joint management regimes for resources Joint management (co-management) regimes (wildlife, water, land use planning and management, environmental assessment)

James Bay and Northern Quebec Agreement (JBNQA) and EA Canada, Quebec, Cree, Inuit signed JBNQA in 1975 JBNQA paramount over all other laws of general application Established governance framework for social, economic development, environmental protection Environmental assessment process for Cree traditional territory – s. 22,23

James Bay and Northern Quebec Agreement (JBNQA) and EA Cree agreed to construction of La Grande project Separate process for federal or provincial assessment of projects depending on constitutional jurisdiction within which project falls But SCC in Moses decides CEAA EA also required; Fisheries Act authorization required, triggers CEAA EA; Duplication?

Great Whale Project Methylmercury contamination of reservoirs and fish was key unanticipated impact of La Grande project Great Whale proposed in 1986, first major project to be assessed under JBNQA 3,060 MW complex of dams, dikes river diversions located north of La Grande Projected cost: $48 billion Impacted Inuit and Cree lands

Great Whale Project

Reservoirs of 3000 sq km, plus 865 sq km flooded land to existing water bodies Third large hydro project (Nottaway Broadback Rupert) also announced for region south of La Grande Cree concerns: fish, beluga whales, polar bears, threatened freshwater seals, aquatic balance along Hudson Bay coast, ice regimes in rivers and ocean, traplines

Great Whale Project In 1990, before EA started, Hydro-Quebec called for tenders to construct access road Federal government states it has no authority over road construction In 1991, Cree apply for mandamus compelling federal government to comply with federal environmental and social impact assessment and review procedures (ss. 22, 23 of JBNQA)

Great Whale Project Canada/Quebec argue that joint EARP study underway (without Cree), results to JBNQA provincial administrator (thus eliminating federal review under s.22) Federal court said this could happen but only if it did not prejudice Cree rights under JBNQA (which it did) Mandamus ordered, upheld on appeal Cree Regional Authority v. AG Quebec (1991)

Great Whale Project Panel review established with Canada, Quebec, Cree and Inuit representation Scoping hearings held Panel did not complete its work as a result of political events

Great Whale Project Cree campaign to oppose Great Whale River Project wins in 1992 when New York State withdrew from a multi-billion dollar power purchasing agreement Quebec/Hydro-Québec suspend Great Whale Project indefinitely in 1994 Quebec and Cree agree in 2002 on new relationship and on environmental rules for 3 new power stations on Eastmain River, diversion of Rupert River

Environmental Assessment under MVRMA MVRMA enacted in 1998 following completion of land claims agreements with Gwich’in, Sahtu Dene, later Tlicho Dene Mackenzie Valley Environmental Impact Review Board - co-management EA board Seven or more members appointed by Minister, half (excluding chair) nominated by aboriginal groups, four by governments, chair nominated by Board s. 112

Purposes Establish Review Board as main instrument for EA in Mackenzie Valley Ensure environmental impact of developments carefully considered before actions taken Ensure concerns of aboriginal people and general public are taken into account s. 114

Guiding Principles Timely and expeditious Have regard to: –protection of environment from significant adverse impacts of developments –protection of social, cultural and economic well-being of residents and communities –Importance of conservation to well-being and way of life of aboriginal people s. 115

Preliminary Screening Applies to proposed developments requiring permit by Mackenzie Valley Land and Water Board or other regulator s. 124 Quick review of application to determine if project might have significant adverse impacts on environment or be of public concern s. 125 If yes, refer for EA by MVRMB If no, issue permits

Environmental Assessment EA by MVRMB a more thorough study to decide if development likely to have significant adverse impacts on environment, cause public concern s. 126 If yes, MVRMB may recommend Minister issue permit(s), issue permits subject to mitigation measures, or reject s. 128 Alternatively, MVRMB or Minister(s) may order panel review s.129, 130

Environmental Impact Review Review conducted by an independent panel, consisting MVRMB and non- MVRMB Board members Review provides more focused study of issues raised during EA s.132 Review panel issues report with recommendations to federal Minister, responsible Ministers, regulatory agencies for decision s. 136, 137

Application of CEAA 2012 Minister may refer a project to a panel review under CEAA 2012 where in national interest s. 130 Otherwise CEAA 2012 does not apply in Mackenzie Valley s.116 MVRMB did EA of Mackenzie Gas Project prior to Joint Panel Review

Yukon Environmental and Socio- economic Assessment Act Purposes Provide a comprehensive, neutrally conducted assessment process Require consideration of environmental, socio- economic effects before projects undertaken Ensure projects are undertaken in accordance with principles that foster beneficial socio- economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend s. 5

Trends in Aboriginal Claims EA EA regimes co-managed with aboriginal communities Assessing sustainability, nor just environmental effects CEAA 2012 doesn’t apply except for large, transboundary projects in Mackenzie Valley, Yukon and Nunavut CEAA 2012 limited application in northern Quebec, Inuvialuit region of NWT

Application of CEAA 2012 Minister may refer a project to a panel review under CEAA 2012 s. 62 Otherwise CEAA 2012 does not apply in Yukon s. 6

CEAA 2012 Application to Aboriginal Lands/People CEAA 2012 has purpose to promote communication/cooperation with aboriginal peoples with respect to EA s.4.(d) CEA Agency has similarly stated object s. 15.(g) CEAA 2012 applied to virtually all federal decisions relevant to First Nations; CEAA 2012 doesn’t—potential gap in coverage in relationship to Crown consultation?

CEAA 2012 Application to Aboriginal Lands/People Are changes to “environmental effects” definition important? What if designated projects screened out of CEAA 2012 EA process? How will Crown meet its Crown consultation duties? S.19 allows consideration of community/ Aboriginal traditional knowledge in EA