Canada Continues Retreat from Duty to Consult Obligations

By Bruce McIvor

New Environmental Assessment Regulations 

The federal government’s attempts to narrow its legal obligations to consult Aboriginal people continue apace. Canada’s most recent move is to significantly reduce the number of projects requiring a federal environmental assessment (EA) and, therefore, a government decision requiring consultation and accommodation. This latest step towards the federal government’s apparent goal of eviscerating the environmental assessment process is another example of why it is important for First Nations to insist that governments fulfill their consultation obligations whether or not environmental assessments are required.

What it is about

The primary reason a major development project requires a federal environmental assessment is because it is a “designated project” under the Canadian Environmental Assessment Act, 2012. The definition of a designated project is determined by regulations. The federal government has issued new draft regulations redefining designated projects to exclude many projects currently subject to an environmental assessment. The government’s justification is that it wants to restrict EAs to ‘major projects’ with the greatest potential to cause significant environmental effects.

Some projects will be excluded from the EA process under the new regulations by virtue of the increased project size threshold. For example, the threshold for liquefied natural gas storage (LNG) facilities will increase by 10%. Similarly, expansion projects will now only require an EA if the existing project is being expanded by at least 50% of its current size.

Other types of projects, including groundwater extraction projects, heavy oil and oil sands processing facilities, potash mines, pulp and paper mills, and smelters will now be excluded all together, regardless of their size. Many projects First Nations might expect to require an EA will continue to fall outside the scope of the regulations, including diamond mines, offshore drilling, wind power projects, bridges, fish farms, and oil and gas fracking projects.

Why it matters

Environmental assessments have always been an inadequate method for fulfilling the Crown’s duty to consult and accommodate Aboriginal people. The federal government’s narrowing of the range of projects requiring an EA highlights one of the underlying problems. EAs are triggered by a project’s potential to cause significant environmental effects—not a project’s potential effects on Aboriginal title, rights and treaty rights—and it is all too easy for government to avoid consultation on a project by simply reducing the number of projects requiring an EA. While consultation may still occur for specific permits required for a project that does not trigger an EA, it cannot substitute for consultation on the project as a whole.

There is no easy answer to the overarching problem of the Crown using the EA process as a vehicle for consultation and accommodation. Other than challenging the new regulations themselves for having been enacted without proper consultation and accommodation—a very real possibility given the recent decision from the Yukon Court of Appeal in Ross River Dena—First Nations may want to consider focusing on the wide discretion the Minister has to order an EA regardless of whether a project qualifies as a designated project under the regulations.

If a First Nation were to demonstrate that a project that falls below the regulations’ threshold for triggering an EA has the potential to infringe its Aboriginal title, rights or treaty rights, it might have an argument that the Minister’s decision whether or not to exercise his or her discretion to order an EA attracts the duty to consult. In the case of recognized rights, the First Nation might be able to argue that the Minister’s unfettered discretion is in and of itself an infringement of their Aboriginal or treaty rights.

Whether the new regulations are upheld or not by the courts, they stand as a stark reminder to First Nations of the inherent danger in allowing EAs to substitute for a meaningful, First Nation endorsed process, specifically designed to ensure that governments fulfill their constitutional obligations to consult and accommodate.

Download the Draft Regulations

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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