7 Implications of New Environmental Assessment Processes for Indigenous Nations

Looking to understand the implications of new Environmental Assessment processes for Indigenous Nations

Looking both ways: In this post we look at seven implications of new Canadian Environmental Assessments processes for Indigenous Nations.  In a follow-up post we will look at implications for project proponents.

By Don Richardson (Shared Value Solutions Ltd.) and Larry Sault, CEO of Anwaatin - an Indigenous business working with Indigenous communities in linked climate change related Cap and Trade markets that include Ontario, Quebec, Manitoba and California)

 

On January 27, 2016, Minister of Environment and Climate Change, the Honourable Catherine McKenna, and Minister of Natural Resources, the Honourable Jim Carr, announced an interim approach to restore trust in Environmental Assessment.  In this post we look at seven implications of this new approach to Environmental Assessment for Indigenous Nations.  In a follow-up post we will look at implications for project proponents.  We’ve previously written about related topics, including: "Changes Coming to Canada’s Pipeline Review Processes", "Eyeing the Overhaul of Canada’s Environmental Assessment Process", "Indigenous Environmental Monitoring: Why Bother?", "Aboriginal Edge: Confrontation OR Aboriginal and Industry Partnerships", "Archaeology and Indigenous Rights and Interests", "More to the Picture Than Meets the Eye: Neil Young, Michael Porter, the Athabasca Chipewyan First Nation, and Unconventional Oil and Gas", and "Indigenous Knowledge in Environmental Assessments".

Borrowing a page from economist Michael Porter, whose 1991 “Porter Hypothesis” accurately predicts that good environmental regulations create efficiency and encourage innovations that help improve commercial competitiveness, the Ministers seek to

demonstrate to Canadians and to the world that a clean environment and a strong economy go hand in hand. Protecting the environment and growing the economy are not incompatible goals; in fact, our future success demands that we do both.” 

Evidence suggests that the Ministers' adoption of Porter’s ideas makes sense.  The authors of a comprehensive evidence-based assessment of the Porter Hypothesis conclude that by “suggesting that better protection of the environment could lead to “win–win” solutions for the whole of society, Porter has certainly opened the minds of many people, leading to significant environmental and economic improvements”

The Ministers’ announcement includes notification that new Environmental Assessment processes – via legislation and regulation – are being developed, and will be available for review in the near future.  These new Environmental Assessment processes will:

  • Be informed by scientific evidence.
  • More fully engage Indigenous peoples in reviewing and monitoring major resource development projects.
  • Have greater transparency.
  • Include assessment of upstream greenhouse gas emissions

While the necessary legislative and regulatory changes are being created, there are projects already underway.  For those projects, the Government of Canada will apply its discretionary decision-making authorities and use the following principles to guide decisions:

 

1.    No project proponent will be asked to return to the starting line — project reviews will continue within the current legislative framework and in accordance with treaty provisions, under the auspices of relevant responsible authorities and Northern regulatory boards; 

2.    Decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence; 

3.    The views of the public and affected communities will be sought and considered;

4.    Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated; and

5.    Direct and upstream greenhouse gas emissions linked to the projects under review will be assessed.

For two significant pipeline projects currently under review by the National Energy Board (NEB), the Trans Mountain Expansion project and Energy East Pipeline project, there are additional steps that will be applied under the Government of Canada’s discretionary decision-making authorities:

Energy East Pipeline

The Government of Canada will:

  • Undertake deeper consultations with Indigenous peoples potentially affected by the project and provide funding to support these consultations;
  • Help facilitate expanded public input into the National Energy Board review process, including public and community engagement activities. The Minister of Natural Resources intends to recommend the appointment of three temporary members to the National Energy Board; and,
  • Assess the upstream greenhouse gas emissions associated with this project and make this information public.  
This includes an extension to the legislated review time limit by six months (to 21 months in total) and seek an extension to the legislated time limit for the Government’s decision by three months (to six months in total), for an anticipated total of 27 months.   

Trans Mountain Expansion Project 

The Government of Canada will:

  • Undertake deeper consultations with Indigenous peoples and provide funding to support participation in these consultations;
  • Assess the upstream greenhouse gas emissions associated with this project and make this information public; and,
  • Appoint a Ministerial Representative to engage communities, including Indigenous communities potentially affected by the project, to seek their views and report back to the Minister of Natural Resources.
This includes an extension to the legislated time limit for the Government’s decision by four months (to seven months in total), extending the date from August 2016 to December 2016.

 

Seven Implications for Indigenous Peoples

There are significant implications here for Indigenous peoples with respect to both Environmental Assessments and the Government of Canada’s approach to climate change.

In his Mandate Letters to new Ministers, Prime Minister Trudeau wrote:

“No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.”

During an interview with the Aboriginal Peoples Television Network, Minister of Environment and Climate Change Catherine McKenna said that:

“Indigenous People feel the impact of climate change more than anyone else,” and that “Indigenous people will be included in the federal government’s discussions with provinces on climate change and carbon-pricing.”

Summarizing the specific new commitments made on January 27, 2016 for Indigenous peoples made by the Government of Canada:

  • “More fully engage Indigenous peoples in reviewing and monitoring major resource development projects.”
  • Project reviews will continue within the current legislative framework and in accordance with treaty provisions
  • Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated
  • Direct and upstream greenhouse gas emissions linked to the projects under review will be assessed.

In our initial assessment of these announced changes, we see seven key things Indigenous peoples might consider if they decide to become more fully engaged in reviewing and monitoring major resource development projects:

1) Capacity to “fully take part in reviewing and monitoring major resource development projects”. Many Indigenous Nations have developed and maintain the capacity to fully take part in reviewing and monitoring major resource development projects.  However, a great many more have not had the resources to fully take part.  Many Indigenous Nations require the time to build the internal governance systems, and do not have the funding and human resources to, among other things:

  • create the technical teams,
  • develop and internally consult on land-use plans across traditional territories and treaty areas,
  • develop and internally consult on natural resource management plans,
  • develop approaches for comprehensive and on-going traditional knowledge gathering, documentation and assessment, and
  • develop their own approaches, policies and laws with respect to Environmental Assessment.

2) Capacity for meaningful consultation. Meaningful consultation requires capacity and funding for the internal dialogue to inform good decision-making – meetings, workshops, discussions with Elders, youth, hunters and trappers, women’s groups, community staff members, business groups, and others. In the face of often poor socio-economic conditions, poor access to safe drinking water and poor educational and health care services, building capacity for meaningful consultation on other peoples’ projects can take a back seat, despite the serious impacts, and important opportunities, that some projects may bring.

3) Capacity to determine impacts on rights and interests. Determining impacts on rights and interests, and determining appropriate accommodation, requires both the capacity to “fully take part in reviewing and monitoring major resource development projects” and the capacity and funding for internal dialogue. 

4) Balancing proponent-driven Environmental Assessment with Indigenous Nation driven Environmental Assessment.  Environmental Assessments are traditionally driven by proponents.  There are good reasons for this, as the proponent must make strategic and economic decisions that determine the viability of a project.  However, when Environmental Assessments are weighted too heavily on the proponent’s decisions, opportunities for good collaborative decision-making can be lost.  For example, a proponent's need for electrical energy for its unique project needs may take priority over local and regional electricity needs.  Opportunities to enhance regional power infrastructure can be lost in Environmental Assessments that focus too much on only the proponent’s needs.  As well, opportunities for good decision-making in the context of joint stewardship of local and regional natural resources can also be lost.  The changes announced on January 27, 2016 signal the opportunity to move the pendulum to create more balanced decision-making between proponents and Indigenous Nations.

5) Participation in assessing direct and upstream greenhouse gas emissions. Indigenous knowledge is key here.  Regarding upstream greenhouse gas emissions, expect to see increased networking, communication and coalitions among Indigenous nations at both ends of pipeline corridors, and along the pipeline “rights-of-way”.  As the Minister of Environment and Climate Change understands, Indigenous People "feel the impact of climate change more than anyone else.”  With this experience of climate change impacts comes new and evolving Indigenous knowledge of specific local and regional changes related to factors that can have major adverse impacts on major projects undergoing Environmental Assessments, including:

  • Changes to flood patterns and flood volumes, and the resulting spin-off impacts on land and water ecosystems, changes to species migration patterns that intersect with projects (including for species at risk), changes to harvesting and harvesting access that may already be impacted by projects, soil erosion and erosion of watercourse banks that may create dangerous conditions for project structures (e.g. pipeline watercourse crossings), the release of materials. Indigenous land and water users will have first-hand experiences and understandings of these climate related impacts, and ideas about locally appropriate mitigation.
  • Changes to transportation corridors. Changing weather patterns and warming trends can impact the geotechnical structures of roads and railways. Changing weather patterns can also impact seasonal conditions that can change access and availability of roads, waterways, railways, trails and other travel corridors.  These changes can impact project transportation decisions and project economics. Indigenous land and water users will have first-hand experiences and understandings of these climate related impacts, and ideas about locally appropriate mitigation.
  • Water management. With climate change come changes to water availability (too much, too little), temperature changes to surface water systems and related impacts like increased toxic blue-green algae, and changes to water quality such as increased sedimentation due to soil erosion.  These changes can impact project water management decisions and project economics.  Indigenous land and water users will have first-hand experiences and understandings of these climate related impacts, and ideas about locally appropriate mitigation.

6) Socio-economic impact assessment. Assessments of Indigenous socio-economic impacts are often given short-shrift in Environmental Assessments.  With climate change and with the balance of Environmental Assessment decision-making shifting more toward Indigenous Nations, detailed and rigourous socio-economic impact assessments are critical to determining overall health and wellbeing impacts of a project on Indigenous peoples.

7) Partnerships between project proponents and Indigenous Nations and Indigenous businesses. Given the Government of Canada’s clear “Nation-to-Nation” agenda, both Indigenous Nations and project proponents have a good deal to gain from partnerships:

  • Partnerships to collaborate on Environmental Assessments and local/regional environmental monitoring
  • Partnerships to collaborate on achieving positive socio-economic benefits, including from win-win opportunities to leverage project specific infrastructure for local/regional benefits (e.g. water treatment, electricity services, low-carbon natural gas and liquid natural gas energy supplies, transportation infrastructure, flood mitigation, etc.)
  • Partnerships for project ownership and operation – where Indigenous Nations become co-proponents with industry or government partners
  • Partnerships for climate mitigation and the development of local/regional carbon offsets – where Indigenous Nations partner with industry to enhance stewardship of carbon-sinks or enter into partnerships to develop new offset projects like anaerobic digesters to produce biogas from organic waste materials

Ultimately, we see the shift in Environmental Assessment approaches federally creates an environment that will foster another of Michael Porter’s ideas: Shared Value Solutions ® – "Shared Value" is a globally trending management strategy where companies create measurable business value by identifying and addressing social and environmental problems that intersect with their business. Shared Value Solutions create new opportunities for companies, Indigenous Nations, civil society organizations, and governments to leverage the power of market-based competition to address a variety of socio-economic and environmental problems.

 

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About Us - Shared Value Solutions Ltd.:

Businesses and organizations are made up of people. So are communities. Imagine a world where people in industry and government, and people from towns of all sizes, get together to make amazing things happen – things they couldn’t have dreamed up alone. A world where people from corporations get together with people in government or NGOs to explore innovative ways to do business while enhancing the natural and social environment. Join us in Creating Shared Value!

At Shared Value Solutions, we speak your language. And we know that the impossible is possible – with the right people in the circle.

We are an Ontario B Corp and we bring the best engineering, design, environment, architecture and other technical discipline expertise to address your challenges and opportunities: 

  • Strategic Environmental Assessment guidance, coordination and support
  • Collaborative land and resource use planning and management- process design and delivery
  • Traditional Ecological Knowledge Studies & Traditional Knowledge Studies
  • Traditional Land Use Studies (TLUS)/ Traditional Land Use and Occupancy Mapping
  • Certified BEAHR Training for Aboriginal Environmental Monitors
  • Design and delivery of programs promoting/supporting positive behaviour change- environmental stewardship, community-based social marketing, health/environmental health promotion, Aboriginal community energy plan initiatives
  • Contributing human environment considerations to technical assessments and management plans in sectors such as water resources, remediation, land use, mining, oil & gas, linear corridor development, forestry, renewable energy, nuclear waste, contaminated sites, brownfield redevelopment, watershed planning, drought planning, water use planning, waste management and waste diversion
  • Aboriginal and Industry Partnerships working with First Nation, Inuit and Métis communities
  • Value Engineering & Value Analysis: we facilitate project teams to optimize a project by understanding functions, objectives, costs and social, cultural and environmental considerations.

Shared Value Solutions ® is a trademark registered by Shared Value Solutions Ltd.

 

About Anwaatin

Anwaatin is an Indigenous business working with Indigenous communities in linked climate change related Cap and Trade markets that include Ontario, Quebec, Manitoba and California.  Anwaatin focuses on:

  • Territorial climate action,
  • Readiness for emerging Cap and Trade markets,
  • Strengthening biodiversity and resilience in the face of climate change,
  • Partnerships to create Indigenous carbon offsets (AKA Indigenous Offsets) to sell competitively on Cap and Trade markets

Anwaatin is based on this premise:

“Two pathways – fighting climate change and revitalizing treaty relationships – are now coming together. And that’s a good thing for everybody.  When you’re battling climate change, you need warriors.  We are those warriors. Our weapons are not guns. We’re armed with wisdom and love for the natural world. We are Stewardship Warriors.”

~ Larry Sault, President and CEO, AnwaatinKeynote Address to the Opening of the Climate Summit of the Americas, July 2015

 

 

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