Canada Steps Back from Aboriginal Consultation

By Derek Christ, Tim Howard & Bruce McIvor

B.C.—Canada Agreement on Environmental Assessment Substitution

On March 15th the federal government and British Columbia signed a Memorandum of Understanding (MOU) that will allow B.C.’s environmental assessment (EA) process to substitute for Canada’s EA process either on a case-by-case basis or for an entire class of projects. By also allowing Canada to delegate its duty to consult responsibilities to B.C., the MOU signals the federal government’s intention to further back away from its constitutional obligations to Aboriginal peoples.

What it is about

When natural resource development projects such as mines and hydro developments are proposed the federal and provincial governments seek to fulfill their legal obligations to consult and accommodate Aboriginal people through their separate EA processes.

Under the new Canadian Environmental Assessment Act, 2012 Canada and a province can agree to substitute a provincial EA for a federal EA. The recently signed MOU between Canada and B.C. is based on this provision in the new act.

When an EA substitution occurs in B.C., the provincial Environmental Assessment Office will do the assessment and prepare the final reports. Based on these reports, the federal government will make its own decision on whether a project or activity should be approved. The first projects the new agreement will likely apply to include the Carbon Creek Coal Mine, the Echo Hill Coal Mine, the LNG Canada Export Terminal and the Sukunka Coal Mine.

Importantly for First Nations, Canada’s agreement with B.C. allows Canada to delegate to B.C. the bulk of its duty to consult responsibilities including designing consultation plans, assessing potential impacts to Aboriginal title and rights and treaty rights, and developing mitigation and accommodation measures.

Why it matters

The agreement between Canada and B.C. is another example of the federal government stepping back from its responsibility to protect the environment and ensure sustainable development. The new Canadian Environmental Assessment Act, 2012 severely restricts the number and types of projects requiring a federal EA as well as the scope of issues considered. Under the EA substitution agreement, the federal government continues its retreat from environmental assessments by enabling wholesale delegation of the EA process to B.C.

For First Nations, the agreement narrows the federal role in consultations on projects undergoing a substituted EA. There will be little, if any, space for federal agencies to participate in direct consultation with First Nations. Such a process is contrary to well-established legal principles of consultation and accommodation.

Consultation between government and First Nations requires ongoing dialogue between the government decision-maker and affected Aboriginal people. The decision-maker should listen to concerns raised by First Nations, make changes to the project as required, and when changes requested by a First Nation are not made, explain why not. By isolating the federal government decision-maker from the consultation process, a substituted EA appears likely to frustrate meaningful consultation and accommodation.

Of further concern are Canada’s unilateral changes to its consultation obligations with First Nations. The EA substitution agreement presumes that Canada and a province can redefine how consultation will occur, and with who, without input from Aboriginal people. First Nations have been relegated to the role of accepting a process designed behind closed doors. This approach contradicts Canada’s obligation to involve Aboriginal people in decisions about how they will be consulted.

Finally, Canada and B.C. are contemplating a further agreement on ‘equivalent assessments’, which basically means that not just the EA process, but also Canada’s ultimate decision on a project would be made by B.C., not the federal government. If equivalent assessments include B.C. making the sole decision on whether First Nations have been properly consulted and accommodated, Canada will have completely abdicated its consultation obligations to Aboriginal people.

Download the substitution MOU as a PDF

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