Over the last decade, federal and provincial governments in Canada have repeatedly approved large-scale resource development projects despite objections from Indigenous communities. Although these developments vary in purpose, scope and scale, and affect different Indigenous nations in distinctive ways, at the heart of these conflicts is the inability of the proponents — and both levels of government — to recognize and respect Indigenous peoples’ legal obligations to their traditional territories.
To date, most Canadian Indigenous groups have not had a meaningful voice in impact assessment. Even more rarely has any Indigenous group been able to exercise consent or decision making on major resource development projects. When Indigenous groups are included in regulatory processes, other parties severely limit their involvement, requesting only baseline traditional knowledge and traditional use information, without any meaningful input into or control over the process or project itself. As a result, Indigenous culture, spirituality, laws and legal processes, rights and title have not been taken into account in the Crown-led and proponent-driven Canadian environmental assessment processes.
Challenging the Approach to Environmental Assessments
In recent years, however, the field of impact assessment has started to gradually shift. Court cases have challenged the environmental assessment approach. Tsilhqot’in Nation v. British Columbia resulted in the requirement that governments and others seeking to use the land, in instances where Aboriginal title is established rather than merely asserted, must obtain the consent of the Aboriginal title holders. Without consent from Aboriginal title holders, a government that wishes to take action on Aboriginal title lands must show that:
- it discharged its procedural duty to consult and accommodate as articulated in Haida Nation v. British Columbia (Minister of Forests);
- its actions were in pursuit of a compelling and substantial objective; and
- the action is consistent with the Crown’s fiduciary obligation to the Aboriginal group.
The Supreme Court clarified that the compelling and substantial objective is to be considered from both the Indigenous perspective and the perspective of the broader public, and must further the goal of reconciliation of Indigenous interests with those of the broader interests of society. It is also noteworthy that the court seemed to suggest that the “inherent limit” now also applies to the Crown. This would imply that even if an infringement might otherwise be justifiable, it will not be permitted if it would undermine the ability of future generations to exercise the title interest. This is significant; it places restrictions on the Crown’s powers to infringe on Aboriginal title. Furthermore, the court also stated that “once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.”
The Tsilhqot’in decision, therefore, provides strong reasoning for government and proponents to meaningfully include Indigenous groups in both the design of the assessment processes and the decisions that flow from these processes. If Indigenous groups are given an opportunity to assess these projects according to their own laws and legal processes, and meaningfully impact the decisions about whether, or how, these projects are permitted to go forward, then arguably they have been meaningfully consulted with and the government’s fiduciary duties have been fulfilled. This is a safeguard that any prudent government, or proponent, should view worthy of investing in.
More recently, the Federal Court of Appeal’s decision on the Trans Mountain pipeline expansion is the latest verdict in a long line of recent court decisions that carve out new legal space for Indigenous title and rights, especially in relation to the duty to consult. In Tsleil-Waututh Nation v. Canada (Attorney General), the Federal Court of Appeal quashed Kinder Morgan’s certificate of public convenience and necessity on two grounds: first, the court held that the National Energy Board’s decision to exclude the increased marine traffic associated with the project from the environmental assessment was unreasonable; and second, Canada did not adequately discharge its constitutionally rooted duty to consult and accommodate affected Indigenous peoples.
In the ruling, Federal Appeals Court Justice Eleanor Dawson wrote that “Canada failed in Phase Three (the final stage) to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged.” This was a win for the Indigenous groups, who had been arguing that their concerns about the pipeline expansion were not being considered. “We went into consultations with the federal government with open hearts and minds, but sadly, the process could best be described as window-dressing,” said Tsleil-Waututh Chief Maureen Thomas. “We had a strong sense that the decision had already been made before we even sat down.”
Along similar lines, in , the Supreme Court of British Columbia found that the provincial government did not fulfill its legal obligation to consult with Indigenous peoples on the Enbridge Northern Gateway pipeline. The Gitga’at and other coastal First Nations successfully argued that the province erred when it handed over decision-making authority for the project to the federal government under a provincial-federal joint review process managed by the federal National Energy Board. It clarified that where action is required on the part of the Crown in right of the provincial or federal government, then the duty to consult and accommodate First Nations is clearly divisible by whichever Crown holds the constitutional authority to act. This means that where environmental jurisdictions overlap, each jurisdiction “must maintain and discharge its duty to consult and accommodate.” In describing the duty owed, the Supreme Court of British Columbia stated:
"[C]onsultation/accommodation…entails early and meaningful dialogue with First nations whenever government has in its power the ability to adversely affect the exercise of Aboriginal rights. Consultation does not mean explaining, however fulsome, however respectfully, what actions the government is going to take that may or may not ameliorate potential adverse effects. Such a means of dealing with an admittedly difficult issue looks very like “we know best and have your best interests at heart”. First Nations, based on past experience, quite rightly are distrustful and even offended at such an approach. In any event, the Supreme Court of Canada has made abundantly clear, this is a paternalistic and now discredited means of attempting to give meaning to s. 35 rights. Consultation, to be meaningful, requires that affected First Nations be consulted as policy choices are developed on how to deal with potential adverse effects of government action or inaction."
Implementing the United Nations Declaration on the Rights of Indigenous Peoples
These cases indicate that there are significant flaws with the consultation processes currently used by governments and industry, and the assessment processes are the major flaw within these processes. As stated by the Union of British Columbia Indian Chiefs Vice-President Chief Bob Chamberlin, “First Nations face consultation processes endlessly and I have yet to see one where meaningful accommodation of Aboriginal rights occurs. It’s quite the opposite.” According to Chamberlin and other Indigenous leaders, the way forward is through full implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The UNDRIP principle of free, prior and informed consent (FPIC) can meaningfully inform the duty to consult and the environmental assessment processes in Canada. The right to participate in decision making, captured in many articles of UNDRIP, is viewed as deriving from the right to self-determination, which is considered the founding principle of Indigenous peoples’ rights and the central guiding principle of UNDRIP. As such, FPIC is required whenever state action pertains to lands that Indigenous people occupy or otherwise use, whether or not they hold title to those lands. The character of the consultation procedure and its object are also determined by the nature of the right or interest(s) at stake for the Indigenous peoples concerned and the anticipated impact of the proposed measure.
UNDRIP establishes that, in general, consultations with Indigenous peoples must be carried out in “good faith…in order to obtain their free, prior and informed consent.” As such, the first step is often to ensure that the consultation procedure itself is a product of consensus. Furthermore, states must ensure that Indigenous peoples have the financial, technical and other assistance they need in order to address the imbalance of power. FPIC also depends on a consultation procedure in which Indigenous peoples’ own institutions of representation and decision making are fully respected.
James Anaya, former UN special rapporteur on the rights of Indigenous peoples, has stated that Indigenous peoples may need to develop or revise their own institutions, through their own decision-making procedures, in order to set up representative structures to facilitate the consultation process. Furthermore, in order for the Indigenous peoples concerned to make free and informed decisions about a potential project, it is necessary that they be provided with full and objective information about all aspects of the project that will affect them, including the impact of the project on their individual lives and the environment. In considering the rights and obligations articulated in UNDRIP, it is clear that Indigenous-led assessment processes could work to ensure that governments and industry are fulfilling their obligations under both Canadian law and international law with respect to the duty to consult.
New Governance Tools
First Nations such as the Squamish Nation and the Tsleil-Waututh Nation are two examples of Coast Salish communities that are attempting to create new governance tools that draw upon and attempt to reconcile Coast Salish and Canadian laws and legal processes, to respond to extractive development within their traditional territories. The Squamish Nation has developed the Squamish Nation Process to assert their rights and title and to protect their traditional lands and waters. Through this process and the Squamish Nation Environmental Assessment Agreement, the Squamish Nation has imposed 13 conditions on Woodfibre LNG Limited (WLNG). On July 24, 2015, WLNG publicly announced that it agreed to meet all 13 conditions that apply to its part of the proposal. On October 14, 2015, Squamish Nation Council voted to approve an environmental assessment agreement for the proposed WLNG facility project and issued an environmental certificate to WLNG. Under the agreement, Squamish Nation has significant decision-making powers specifically related to the choice of cooling technology and the approval of management plans. The agreement is legally binding and includes legal remedies to ensure that WLNG complies with its commitments under the agreement. If WLNG does not meet its commitments, the agreement empowers the Squamish Nation to revoke the environmental certificate, terminate the agreement, or enforce compliance through the dispute resolution process under the agreement, which includes going to court.
Similarly, the Tsleil-Waututh Nation completed and issued its own independent assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal (TMEX). The Tsleil-Waututh have a stewardship policy that is an expression of their inherent jurisdiction and law, which mandates a review of all proposed water, land and resource policies, plans and developments inside what is referred to as their consultation area. Accordingly, assessments are carried out under the stewardship policy in order to provide the nation with the information needed to make informed decisions on whether to consent to a proposal or withhold support. As part of their assessment of the Trans Mountain pipeline project, the Tsleil-Waututh commissioned five expert reports that reviewed the risk, response and consequences of potential oil spills in the Burrard Inlet. The assessment concluded that the TMEX proposal does not represent the best use of Tsleil-Waututh territory and its water, land, air and resources to satisfy the needs of their ancestors — past and future generations. Furthermore, it was concluded that TMEX has the potential to deprive past, current and future generations of the benefits of the water, land, air and resources in the territory. As stated by Leah George-Wilson, a prominent lawyer and Tsleil-Waututh community member, during the National Energy Board’s hearing for the TMEX proposal, “We stand here together as Tsleil-Waututh people and we say ‘no.’…Our obligation is not to oil. Our obligation is to our land, our water, our people, our life, our snəw̓eyəɬ. According to our snəw̓eyəɬ, our law, this project represents a risk that we…are not willing to take.”
Although Indigenous-led assessment processes will not resolve every conflict between Indigenous peoples, government and industry proponents, they do offer a way forward that respects Indigenous laws and legal processes, international law and Canadian common law. They put Indigenous laws and norms at the centre of the process and uphold the right to self-determination of First Nations. This is an important step in acknowledging the legitimacy of an Indigenous group’s overall governance rights and stewardship responsibilities with its territory.
About the artist: Chris Paul is a Coast Salish artist, born near Victoria, British Columbia in 1969 as a member of Tsartlip Nation, and has been immersed in Coast Salish art since childhood. Chris’s pieces often reflect flora, fauna and mythologies associated with his culture and his home on Vancouver Island.