Recommendations for Bill C-69: Remember UNDRIP

"We are concerned with testimony from other parties in the past months that prioritizes economic development and disregards the Government of Canada’s commitment to implementing the UNDRIP, respecting the rights of Indigenous peoples, and fostering reconciliation." - excerpt from SVS's submission to the Senate committee reviewing Bill C-69

From April 8th through April 26th, 2019, the Senate committee reviewing Bill C-69, the new Impact Assessment Act, is holding meetings across Canada to discuss the proposed new Act to replace the Canadian Environmental Assessment Act, 2012 - There is still time to have your say - click here to find out how! 

Our presentation day is scheduled for April 23, 2019 at the Delta Hotel, St. John's, Newfoundland and Labrador. Erin Stapleton, Senior Impact Assessment Specialist will be presenting our submission. The comments we are submitting reflect the opinions of SVS as impact assessment practitioners with the unique privilege of serving First Nation, Métis and Inuit governments. We don't speak on behalf of these Indigenous governing bodies - we are sharing our insights on Bill C-69 from the perspective of serving these clients with respect to numerous federal impact assessment processes.

Recordings and transcripts of the Senate hearings on Bill C-69 are archived here: https://sencanada.ca/en/Committees/enev/MeetingSchedule/42-1?mode=PAST

Below is the full text of our presentation and submission on Bill C-69, Impact Assessment Act and Canadian Energy Regulator Act for the Standing Senate Committee on Energy, the Environment, and Natural Resources. 

SVS's Submission to the Senate Committee 

Media, please check against delivery:

I respectfully acknowledge the territory in which we gather as the ancestral unceded homelands of the Beothuk and the island of Newfoundland as the ancestral unceded homelands of the Mi’kmaq and Beothuk. I would also like to recognize the Inuit of Nunatsiavut and NunatuKavut and the Innu of Nitassinan, and their ancestors, as the original people of Labrador. We strive for respectful partnerships with all the peoples of this province as we search for collective healing and true reconciliation and honour this beautiful land together.

I have been an impact assessment practitioner for 11 years and have worked on federal and provincial environmental assessments for natural resource and energy projects from British Columbia to Newfoundland and Labrador. Shared Value Solutions (SVS) is an environmental consulting firm with a team of 40 staff who work with First Nation, Métis, and Inuit governments across Canada. We assist our clients with impact benefit agreements, negotiation, environmental assessment processes, traditional knowledge studies, land use planning, and environmental monitoring.

Much of our work focuses on supporting our clients as they engage in federal and provincial environmental assessment processes. Over the last 10 years, we have worked for our clients on many of the major development projects in Canada, including mines, hydroelectric facilities, transmission lines, highway expansions, oil and natural gas pipelines, nuclear power facilities, and offshore oil drilling.

We have been following the federal review of environmental and regulatory processes, and have supported our clients in preparing submissions to the Expert Panels on Environmental Assessment and National Energy Board Modernization, and the Canadian Environmental Assessment Agency and Transport Canada. The comments I provide today focus on the proposed Impact Assessment Act and reflect the opinions of SVS as impact assessment practitioners with the unique privilege of serving First Nation, Métis and Inuit governments. I am not speaking to you today on behalf of these Indigenous governing bodies - I am sharing our insights on Bill C-69 from the perspective of serving these clients with respect to numerous federal impact assessment processes.  

SVS believes the proposed Act is a significant improvement over the Canadian Environmental Assessment Act, 2012. Positive changes include:

• The provision in the new Act for cooperation with certain jurisdictions, including Indigenous governing bodies, through the delegation of any part of an impact assessment, the joint establishment of a review panel or the substitution of another process for the impact assessment
• The requirement in the new Act that, when making a decision under the Act, the Minister must consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada
• The mandatory early planning and engagement phase included in the new Act, which includes an Indigenous engagement and participation plan, developed in collaboration with Indigenous peoples, that would outline how the proponent will work with communities throughout the assessment
• The addition of any change occurring in Canada to the health, social or economic conditions of the Indigenous peoples of Canada as an “effect” under the new Act
• The requirement that impact assessment reports describe how Indigenous knowledge was considered

SVS has recommendations for additions to the Act. For example:

• While the preamble to the Act references the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Act does not reference nor define “free, prior and informed consent.” Free, prior and informed consent is a specific right that pertains to Indigenous Peoples and is recognized in the UNDRIP. It allows Indigenous Peoples to give or withhold consent to a project that may affect them or their territories. Furthermore, free, prior and informed consent enables them to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated. The Act needs to make an explicit commitment to free, prior and informed consent as defined by the UNDRIP.
• The Act does not contain any provisions for ensuring that affected Indigenous individuals and communities are empowered to have an influence in decision-making with respect to conditions of approval, follow-up programs, and adaptive management. Further, the Act requires an adaptive management plan only if the Minister considers it appropriate. Post-approval adaptive management planning is the professional norm for significant undertakings, and should be a critical element of federally mandated follow-up programs so that deviations from the assumptions on which the Impact Assessment decision was based are adequately addressed.
• While the list of factors to be considered in impact assessment includes consideration of “the extent to which the designated project contributes to sustainability” [Section 22 (1) (h)], the Act provides no further detail on how to apply this “sustainability lens.” The legislative framework for assessing sustainability should be described in the Act, and should be inclusive of Indigenous perspectives and interests.
• “Culturally-important species” should be added to Section 7 (1) (c). Subsequently, proposed projects with the potential to cause adverse impacts to any culturally-important species should prompt an assessment. Culturally-important species should only be identified by Indigenous communities, and during the collection of Indigenous knowledge data, and should be included because of the connections to section 35 Constitutional rights and cultural heritage.

Remember UNDRIP

We are also concerned with testimony from other parties in the past months that prioritize economic development and disregard the Government of Canada’s commitment to implementing the UNDRIP, respecting the rights of Indigenous peoples, and fostering reconciliation.  

For example, we have heard witnesses from across the country state that the duration of impact assessment must be shorter. As I mentioned above, we believe the mandatory early planning and engagement phase is a critical element of the new Act. While this phase may add up to 180 days to the beginning of the impact assessment process, it is a necessary addition of time to meaningfully engage with Indigenous governments and to build trust between communities and proponents. We believe this required early planning and engagement phase will ultimately create a more efficient process, improve project design, and give proponents greater certainty.

Offshore drilling

We have also heard witnesses state that offshore exploratory drilling should not be subject to impact assessment and that the current Regional Assessment of the Newfoundland and Labrador Offshore Area will adequately assess the potential impacts of these activities. Regional assessment can be an opportunity for early engagement and collection of Indigenous knowledge, and an effective means of addressing concerns regarding cumulative effects. However, based on our experience to date, the Regional Assessment process has been lacking on consultation, particularly around providing adequate participant capacity funding for Indigenous communities to meaningfully engage. Not only should offshore exploratory drilling remain subject to impact assessment, but the sections of the Act addressing Regional and Strategic Assessment must be revised to include requirements around consultation and accommodation of Indigenous peoples who hold established and asserted rights in the area of assessment, and sufficient capacity support for their participation in these processes. 

Thank you for allowing me to share the opinions of SVS as impact assessment practitioners who serve First Nation, Métis and Inuit governments. We will continue to follow the federal review of environmental and regulatory processes, and will be supporting our clients as they engage with the Government of Canada to provide input on the regulations, policies, and guidance that will assist with the implementation of the new legislation. - Erin Stapleton, SVS

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About Us: Shared Value Solutions

We are a 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. 

• Reviews of Environmental Assessments and Environmental Impact Statements

• Indigenous Land Use Studies, Indigenous Knowledge Studies, Indigenous Ecological Knowledge Studies, Community Cultural Values Mapping

• Strategic Regulatory and Environmental Assessment Process Support

• First Nation Environmental Management Planning

• First Nation Land Code communities
• Indigenous Guardian programs
• Impact Benefit Agreements: technical and regulatory support for negotiations
• Indigenous Jurisdiction initiatives: joint management agreements and co-management agreements
• Community-based Indigenous environmental monitoring
• Indigenous Land Use Planning
• Participant funding negotiation and application support
• Multimedia Storytelling