New Impact Assessment Agency may be a Positive Development for Indigenous Nations

Leading up to the 2015 federal election, the Liberal Party of Canada campaigned on a promise to modernize the consultation, regulation and governance of major natural resource developments and energy infrastructure projects. Recognizing that many parties lack confidence in the existing process – including the public, industry, Indigenous peoples and environmental interest groups – they indicated a full review and significant changes would occur if elected.

On February 8, 2018, following an extensive investigation and consultation process, the federal government announced sweeping changes to the existing energy and natural resources regulatory regime – pertaining specifically to major projects "that have potential to pose significant risks to the areas of the environment that fall under federal jurisdiction."

Proposed to better protect the Canadian environment while bringing greater legitimacy and clarity to the project review process, the new legislative framework also intends to expedite assessments and approvals while providing a more prominent voice to affected parties, including Indigenous peoples of Canada.

Proposed Changes

Four major pieces of federal legislation are being replaced or changed. The proposed changes include:

1. Repealing the Canadian Environmental Assessment Act – and replacing with the Impact Assessment Act
2. Repealing the National Energy Board Act to establish the Canadian Energy Regulator under the Canadian Energy Regulator Act
3. Revisions to the Fisheries Act
4. Replacing the Navigation Protection Act with the Canadian Navigable Waters Act

If passed as proposed, the Canadian Environmental Assessment Agency and the National Energy Board will be replaced by the Impact Assessment Agency of Canada and Canadian Energy Regulator respectively. The former will be exclusively responsible for all major project assessments while the latter will be responsible for compliance and conditions throughout the project lifecycle for energy transmission infrastructure, in addition to offshore renewable energy projects and offshore power lines.

These changes are intended to introduce more transparency, clarity and certainty regarding federal impact assessments; demonstrate a greater requirement for environmental, health, social and economic sustainability and protection; result in better coordination across provincial jurisdictions and greater consistency and predictability around the review and approval process.

These changes are also intended to result in earlier and more meaningful involvement of Indigenous peoples with respect to the duty to consult. Specifically, the new Impact Assessment Act includes provisions for an Indigenous panel member, the ability to delegate authorities to Indigenous jurisdictions and any project triggering a federal impact assessment will be required to consider impacts to Aboriginal and treaty rights from the outset.

Changes for Indigenous Nations

Although these changes have yet to be passed as law and thus it remains to be seen how they will operate in practice, Indigenous Nations may have reason to be cautiously optimistic.

The duty to consult can be thought of as a two-step process: first identifying impacts to treaty and Aboriginal rights and then identifying appropriate and responsive mitigation measures to offset those impacts. Under the current framework, it is prohibitively difficult for Indigenous Nations to have meaningful involvement in the project review process, which is often used by the Crown to discharge the duty to consult. Many Nations understand major projects will result in measurable and sometimes unacceptable negative impacts to the exercise of their treaty and Aboriginal rights. However, most, if not all, projects are currently approved with a prediction of acceptable impacts to biophysical or socio-economic components of importance to Indigenous Nations. Further, the identification of impacts to treaty and Aboriginal rights is not explicitly required under the current regulatory framework. Indigenous Nations often bear the burden of proof to show there is an impact on their rights.

These new rules would explicitly require the identification of impacts to treaty and Aboriginal rights for each potentially affected Indigenous Nation. From the outset of any review, the Canadian Impact Assessment Agency would be responsible for identifying any affected Indigenous groups, outline which treaty and Aboriginal rights may be impacted by the proposed project and initiate consultation with those groups. There would also be a mandatory requirement to consider the traditional knowledge of Indigenous groups. The project proponent would be responsible to prove why their proposal does not infringe on Indigenous rights and the role of Indigenous Nations would be to evaluate how effectively the review process involved their interests and concerns.

Most importantly, these changes may initiate a much-needed discussion about a fair accommodation (i.e. compensation) framework for any impacts of a project on the exercise of treaty and Aboriginal rights.

How MNP Can Help

MNP views these changes as a positive step forward in reconciling Aboriginal and treaty rights and toward ensuring these rights are adequately assessed in the federal resource development and approval process. Our team is cautiously optimistic about the increased participant funding available to Indigenous Nations to increase capacity.

With the new legislation expected to take effect in 2019 if passed, we look forward to:

• Supporting Indigenous Nations in discussions about the new project approval process
• Supporting Indigenous communities with advice as they participate in the consultation process
• Reviewing regulatory documents and providing comment
• Conducting land use and traditional knowledge studies
• Providing input into project planning

For more information about these proposed changes, the potential benefits and how MNP can help, contact Germaine Conacher, Partner, Consulting Aboriginal Services, at 403.796.3898 or [email protected] and/or Tracy Campbell, Partner, Consulting, Aboriginal Services, at 403.796.3899 or [email protected]