1. Sara Mainville, OKT LLP March 7, 2017
Environmental Assessments in Canada Indigenous Nations, Jurisdiction, and other significant matters to consider
Sara Mainville, OKT LLP March 7, 2017   
PDAC 2017 Toronto, ON

2. Overview
Why Indigenous jurisdiction is the key to reconciliation in Indigenous territories
MIAC Advice to the Expert Panel
Indigenous governance and participatory decision making capacity

3. Indigenous Jurisdiction
Indigenous Nations governed their territories.
Access to limited resources were controlled and there may have been authority(ies) to decide when and where resources were taken.
This continues (but it may have went “underground”) It has been impacted by Indian Act governance. Some communities have integrated this authority with the Chief and Council authority.

4. Jurisdiction and Reconciliation
Royal Proclamation of 1763 – “consent” regarding sale of lands to British Crown – Treaty of Niagara – two row wampum
Treaties in Ontario: sharing of lands and Indigenous perspective of the “limits” of Crown governing authority over treaty lands
Unjust enrichment: with the full treaty benefits not being implemented we are left in a situation of unjust enrichment and how do we remedy?

5. Without Remedy = Self Help
Consultation Protocols– First Nations have worked diligently to articulate their terms as land governors, “let’s work with industry”
Indigenous Laws: Resource benefit sharing and royalty-like fees in some laws “let’s implement the treaty”
Direct action: keep the project at bay until a just process protects our resources.

6. Multi Interest Advisory Committee
Two representatives from each National Indigenous organization (6 in total)
Six representatives from Industry (Mining, Oil/Gas, Forestry, Construction etc.)
Six representatives from Environmental Non Government organizations (ENGOs)
Chaired by CEAA, observed by various agencies
“to inform potential legislative, regulatory, and policy changes” on the matters as requested by the EA Panel.
To provide advice on the potential role for the Committee after the review.

7. Review of the MIAC Advice:
This report does not cover all matters of possible importance, however. We (MIAC) have concentrated on a set of topic areas combining several characteristics. We have addressed areas that have the greatest potential for broadly positive influence on EA design and application and that have potential for responses that would link together well as a coherent package. As well, we have addressed issues that have been specially identified by the Panel in its requests of MIAC, about which we thought we had useful expertise and on which we might be able to reach a significant level of consensus…
Finally, this report recognizes that EA processes represent only one of many tools necessary to address the multitude of issues facing Canadians that may affect many areas of activity, stakeholders and authorities. For example, while EA processes in Canada need to be designed and applied in ways that respect Indigenous rights, they cannot be the only or central means by which those rights are respected and the honour of the Crown is maintained.

8. MIAC’s general advice for EA Reform
• Respect the inherent jurisdiction and Aboriginal and treaty rights of Indigenous peoples (recognizing that EA cannot substitute for proper means of meeting the duty to consult, nor the maintenance of the honour of the Crown);
• Improve the information base for deliberations and decisions (interactive and cumulative effects analysis)
• Foster efficiency in the delivery of effective and fair EA deliberations and decision making (e.g. by encouraging harmonization of EA processes to the highest appropriate standard of design and practice, focusing assessment application and attention on the strategic and project level cases most likely to bring benefits from assessment…)
• Enhance the credibility of deliberations and decision making (e.g., by requiring that processes be transparent, that decisions be justified in light of the purposes of the federal EA law…) and
• Ensure respect for the interests of future generations.

9. Indigenous Engagement v Consultation
Nation to Nation engagement
To maintain and enhance good relations and receive guidance on the scope of any engagement required to develop or improve coordinated EA processes, the proper parties will be identified during Nation to Nation engagement.
Canada’s EA agencies, departments and relevant authorities need to understand how each distinct Indigenous Nation’s government, laws and procedures work. This should occur as far in advance of an EA as possible and continue on an ongoing basis.
Government to Government engagement
To develop coordination at the procedural level between the Indigenous jurisdiction with federal EA and any applicable provincial or territorial EA processes. Cooperation between Crown and Indigenous jurisdictions can create one seamless integrated process that meets the legal and practical needs of all …
Engagement to reach accommodation
When a project is proposed, or when regional or strategic initiatives are proposed, impact and benefit agreements and other potential accommodation, if necessary, should be developed through the negotiated means of consultation and review. …(outside EA)

10. Recognize Indigenous Jurisdiction
Where cooperative arrangements on EA matters have been established in modern treaties, land claims agreements, and/or self-government agreements, they should be fully implemented and respected, and not interfered with by imposing other federal EA legislation or additional processes.
Where cooperative arrangements or Indigenous Nation jurisdiction on EA matters have not yet been established or recognized, the federal government should prioritize meaningful and respectful engagement with Indigenous Nations to reach such arrangements with the intention of achieving agreement in advance of EA needs that may arise.

11. Reflect Nation to Nation
EA processes should shift towards relationship-building rather than conflict-management.
As an interim measure…the federal government should share decision- making with Indigenous governments as a means to achieve free, prior and informed consent and implement the UN Declaration in accordance with the Canadian constitution
The use of Regional/Strategic EA processes can, if done well, assist in reconciliation, improving relationships with Indigenous Nations and their governments and strengthen the protection of aboriginal and treaty rights.
Triggers to initiate SEA/REA should include the request of one or more Indigenous governments to the Minister of Environment and Climate Change (Canada) and/or the Minister of Indigenous and Northern Affairs (Canada).

12. Capacity Funding is Important
Indigenous Nations have been heavily impacted by colonization. The UN Declaration states in the Preamble that the United Nations General Assembly is “[c]oncerned that [I]ndigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.”
Socio-economic conditions are important considerations to EAs involving Indigenous Nations; the full potential of benefits from development have rarely been realized for Indigenous Nations because of the current socio-economic status of Indigenous communities and the burdens they carry after a long colonial relationship with Canada. Benefits will not be achievable in future projects without additional ameliorative and capacity building programs, including support for engagement in the EA itself.

13. Minister’s National Advisory Council on Indigenous Relationships
The Minister should have the benefit of ongoing advice regarding the administration and implementation of federal EA legislation, the conduct of EAs and related activities. Many matters will arise that would benefit from future advice, such as the development of regulations and policies, funding matters, the resolution of difficult issues with regard to particular EAs, and so on.
A national advisory council should be established to provide such advice directly to the Minister.
Similar concept to NACOSAR (National Aboriginal Council on Species at Risk)

14. Sara Mainville smainville@oktlaw.com
Thank You
Sara Mainville