Studying a Pipeline Right-of-Way at Halfway River First Nation
“I often say to proponents, ‘providing us the funding to collect our land use now prevents me from using Canada’s money to point out what you did wrong later – and it will be far more expensive for you to collect our Métis knowledge at the last minute. Just do it early!’” - Marci Riel, Senior Director, Energy, Infrastructure and Resource Management, Manitoba Metis Federation
When an Indigenous Nation learns a major development project, such as a mine or transmission line, is proposed in their Traditional Territory, conducting an Indigenous Knowledge study (sometimes called a land use or traditional use study) to see if that project has the potential to affect their rights and interests is often high on the to-do list. Most Nations are familiar with the power these rich and nuanced explorations of past and current land use hold to alter the course of a proposed project. However, if you’ve ever done one of these studies, you know that they take time. Meanwhile, the project’s regulatory process ticks along at a pace that may be out of synch with your efforts.
We often hear from clients who are anxious they’ve missed the opportunity to protect what matters. The truth is, there are ideal times to submit your Indigenous Knowledge study to have the most impact possible in a project’s regulatory and approval process - and impact on your private negotiations with proponents. Welcome to our latest post in our series, Indigenous Knowledge Matters. In this post, we hear from Marci Riel, Senior Director, Energy, Infrastructure and Resource Management, Manitoba Metis Federation, and Roslyn Notseta, Lands Manager at Halfway River First Nation, which is close to Fort St John, British Columbia, to get their take on how best to leverage your Indigenous Knowledge. And read on to find out if it's ever too late!
Talk to anyone with experience in how the regulatory world works and they will tell you that, hands down, your best bet for having your Indigenous Knowledge support your rights and interests is to submit it as early as possible in the process.
Marci Riel is no rookie when it comes to negotiating with the Canadian or provincial government for impacts to the Manitoba Métis Community. For proposed development projects, she is very clear about the role land use studies play in furthering the community’s rights and interests: “Our Métis land use information is the basis for an IBA (impact benefit agreement), a settlement agreement, or accommodations with Canada. The MMF believes that early collection of that information is absolutely critical to our relationship with the Crown and with the proponent.”
If submitted early enough, your community’s Indigenous Knowledge can be incorporated into baseline environmental and socio-cultural studies. What does that mean, exactly? That what matters to you will get studied. For example, if your Indigenous Knowledge data shows that moose are really important to your community, moose, and other species you value, will (or should) be on the list of value components the proponent looks at during the assessment process. Don’t forget, value components is just a fancy way of saying, “what matters.” A wetland, a sacred site, a travel route, or anything else you value can be a value component.
Why is the value component list so important?
Why is this value component list so important? Because what’s on it gets considered in the assessment. If it’s not on the list, it will be much more challenging for you to be heard in the regulatory process and influence the outcome. That’s why getting involved early is so important.
The proponent holds the responsibility to look at the outcome of the studies of those VCs and propose relevant and specific mitigation, management, and monitoring measures to address potential effects of concern to your Nation. Your input to that initial VC list can even affect the ultimate design of the project itself if the proponent and regulator can clearly see what matters to you up front.
Within a regulatory process, the Indigenous Knowledge information with the most impact includes your Nation’s historic and contemporary connections to the land, and information about land and resource use. In other words, the proponent and regulator need to hear how your Nation exercises its rights within the project’s immediate and surrounding areas. This is the “evidence” that can demonstrate how a project’s activities can impact your rights and your ability to practice those rights. This “evidence” becomes the basis for protecting something or negotiating accommodations for impacts that can’t be avoided.
When the MMF hears about a new development project, the team starts by preparing a map to see if there are likely to be impacts to the community. They create the map using what they call their “baseline data.” The baseline data — community knowledge that they’ve gathered over multiple years and through various studies — creates a high-level map that shows where sites of land use overlap with the potential project footprint. This map does not give specifics about what each item on the map actually is.
“Our baseline data is key to the process,” says Marci. “Proponents think our people aren’t using an area, but once we show them the baseline, then they get it. Recently we showed a mining proponent the data we had previously collected for the area surrounding their mine. Then they got it and we’ve been able to negotiate with them to fund a project-specific land use study to understand the impacts from their project.”
Roslyn Notseta, Lands Manager at Halfway River First Nation, agrees. “There is a process we go through when using Traditional Use Study (TUS) data for environmental protection. We start by overlaying our TUS with the proposed project study area. Then we assess camping and hunting areas, water bodies, any significant sites to our community and then we look at the rest of the data too.”
If your community doesn’t have any baseline information to work with, no problem. You can still request to participate in the regulatory process if your community is concerned about impacts to your rights and interests (and this could be your chance to start to build your baseline by securing funding to do an Indigenous Knowledge study).
Particularly for the proponent, it is not acceptable to take information that was gathered for something else and apply it to just any project. Baseline data is a good starting point, but project-specific information must be collected to get a clear picture of potential impacts. In some cases, the MMF has seen environmental protection planning or mitigation measures in an Impact Assessment that are more general to all Indigenous Peoples. Marci argues that unless the data gathered is both project-specific and community-specific, it’s not specific enough to deal with the impacts to each Nation.
This statement holds true for all Indigenous Nations: make sure you gather your own knowledge that is specific to the proposed project site. The next step is to request sufficient funding from the Crown and the proponent to complete more detailed and project-specific maps and gather Oral History to demonstrate your rights and interests in the proposed project area.
There are many sensitive aspects of Indigenous Knowledge held by Indigenous Nations. It often contains details about cultural sites or harvesting sites that are not meant for the public. We don’t recommend submitting sensitive information to regulatory bodies’ online public registries, which are public domain and for anyone to see, including the proponent and the regulator – and it’s not necessary to share it.
The key is to provide enough information about culturally or ecologically sensitive areas and species of cultural importance that need protecting so that the regulator has enough evidence to hold a proponent accountable for addressing the potential impact. The proponent is on the hook to produce a plan to either avoid, minimize or at worse case compensate for any losses a Nation or community rights holder may experience as a result of the project’s construction or operations activities.
Marci asserts that you have to connect the dots for the proponent and the Crown and correlate the project to your rights and interests. “If you expect them to avoid an area, you have to tell them the area is there at least at a high level. If you can demonstrate how a project will affect people’s land-based activities, how their behaviours will change based on that project, you are in a strong place to negotiate,” she says.
Sometimes you might not even know about a project until the regulatory ship has sailed. So, is it too late? No! If you are not able to share your IK by certain key milestones in an environmental assessment process, or if you aren’t comfortable with the process, then it is still useful to share it during the development or even the implementation of a project’s site-specific environmental protection plan.
Roslyn describes Halfway River First Nation’s approach like this: “From the TUS assessment, I start to gather wildlife habitat. We look at where is it and what is in the area. I ask how I can protect wildlife habitat using scientific knowledge to translate to the developer. We discuss with the developer the habitat over different seasons, the health of the forest, and where calving areas are, for example. These are areas we work to protect. In areas where our people camp, we need clean water sources to remain and coverage of trees from the elements and for firewood. The water is the most important part. We strategize with the developer how to protect the water from pollution.”
If a project gets to a later stage in the approvals and your community still hasn’t been able to collect its Indigenous Knowledge to show its rights and interests in the project, don’t worry – at least not too much. It’s still possible to make a request to the proponent and Crown to fund your participation to assess impacts. We would recommend retaining a strong lawyer to support you with this process (let us know if you’re in need, we can recommend one).
Under the Impact Assessment Act, there are now more opportunities for Indigenous participation in follow-up and monitoring for projects than ever before. The Impact Assessment Agency will consult communities about what this participation in monitoring could look like. It may include having community monitors employed. It could include participation on an Environmental Monitoring Committee. These can be two great ways for your community to provide Indigenous Knowledge input to a project over the long term.
“Community monitors can act as the eyes and ears of the nation,” Marci says. “In our case, the monitor is confirming that the Métis-specific mitigations that were negotiated are being done. That only works if the monitor has that IK information.” Marci sees proponents wanting to send a single “traditional monitor” or a small group of monitors out on the land with the expectation that they’ll just know all the IK for the community. “A fulsome land use study can be used to gather sites from a wide range of community members and then the monitors can keep an eye on those sites identified through the study,” she suggests.
If your community isn’t included in a project in a way that you feel is appropriate, say something on the record. For example, if funding is not coming your way to carry out an IK Study, or not enough funding is being provided to carry out a meaningful study, talk to your internal or external negotiators and get help sending a formal request for capacity funding.
We do want to emphasize that, the further along a project is in the regulatory process, the more difficult it can be to integrate IK into the project’s activities. While it’s never too late, the earlier the better!
Welcome to our blog series that explores ways Indigenous Nations have used Indigenous Knowledge Studies (also called Traditional Knowledge or Land Use and Occupancy Studies) to assert jurisdiction, leverage influence in regulatory processes and Impact Benefit Agreement (IBA) negotiations, further stewardship and cultural revitalization efforts, and to build capacity.
This series is a celebration of the extraordinary Nations and visionary leaders we have had the privilege of working with on Indigenous Knowledge studies from coast, to coast, to coast - with some resources and ideas for you to use in your own journeys. We hope you join us for the rest of the ride. And please get in touch if there’s a topic you’d like us to explore.
If you know you need help with any aspect of your study, or are trying to figure out how to get started, do give us a shout. We’d be happy to discuss your options and help you weigh the pros and cons of your approach. We’re a team of social researchers who love to talk about this stuff, so don’t hesitate to get in touch.
We are an Canadian B Corp, and we assist Indigenous communities with support throughout regulatory processes surrounding major development projects like mines, hydroelectric facilities, transmission lines, highway expansions, oil and gas pipelines, natural resource transport applications and nuclear power.
We have deep context and experience behind the recommendations we provide, having worked for our clients on almost every major project in Canada over the last 10 years. For us, it’s all about building long-term relationships with our clients. We want to get to know you and what you want to do so we can help you move your plans forward.