Guidance: Collaboration with Indigenous Peoples in Impact Assessments

Table of Contents

• Introduction
• Purpose
• Context
• Designing a Collaborative Process
• Approaches to Collaboration
• ‘Collaboration Toolbox’ - Impact Assessment Act
• Conclusion
• Annex I: Key provisions of the Impact Assessment Act relating to impact assessments by the Agency

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Introduction

The Government of Canada is committed to advancing reconciliation with Indigenous peoples^{Footnote 1} through a renewed, nation-to-nation, Inuit-Crown, and government-to-government relationship based on the recognition of rights, respect, cooperation and partnership. Collaboration with Indigenous peoples in impact assessment aligns with the Principles respecting the Government of Canada’s relationship with Indigenous peoples and the Government of Canada’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples. It supports the Government of Canada’s aims to secure free, prior, and informed consent for decisions that affect Indigenous peoples’ rights and interests. The Impact Assessment Agency of Canada (the Agency) acts as a representative on behalf of the Government of Canada in pursuing collaboration with Indigenous peoples in the impact assessment process. The Agency will work with other federal departments, provinces, and territories towards the goal of a coordinated approach to collaboration with Indigenous peoples during impact assessments.

The Agency is committed to engaging Indigenous communities^{Footnote 2} meaningfully at all phases of impact assessments by the Agency, from planning through to post-decision and ongoing monitoring. In some circumstances, Indigenous communities may wish to collaborate with the Agency in conducting parts of the assessment, operating in partnership with the Agency, undertaking Indigenous-led assessments, leading portions of the Agency’s assessment through delegation, or substituting an Indigenous jurisdiction’s process for the federal assessment process.

Purpose

This guidance is focused on the potential opportunities for collaboration with Indigenous peoples in impact assessments conducted by the Agency. Future guidance will be available with respect to opportunities for collaborative processes in the context of impact assessments by review panel.

This guidance is intended to supplement the Agency’s guidance on Indigenous participation in impact assessment (refer to sections 3.1 and 3.2 of the Practitioner’s Guide), and is directed at identifying ways in which Indigenous communities and the Agency may collaborate on the conduct of an impact assessment by the Agency, or where the Agency may partner with Indigenous communities that have a primary interest in the territory in which the project is located.

Context

Many Indigenous communities are interested in greater collaboration with the Agency in the conduct of impact assessments by the Agency (for key provisions of the Impact Assessment Act, see Annex 1). There are many ways in which Indigenous communities and the Agency can collaborate throughout the process. The level of collaboration will vary, depending on the group’s needs and interests, and the specifics of each project undergoing an impact assessment. The level of collaboration should also reflect the context of a given project and the degree of seriousness of potential project impacts on the Indigenous community. This guidance provides considerations and approaches for collaboration, including Indigenous-led assessments.

Indigenous communities have indicated interest in undertaking their own studies or assessments and participating in the process of making decisions on designated projects.

Depending on the location, scope, and potential impacts of a project, there may be multiple potentially impacted Indigenous communities participating in the process for impact assessments by the Agency. The Agency acknowledges that each potentially impacted Indigenous community may hold different rights and interests in the area of a project, and therefore may participate in the process in varying ways.

Indigenous communities may also have capacity constraints that could impact their ability and interest in collaborating with the Agency in an impact assessment process. The Agency can work with Indigenous communities to assist in developing capacity over time, while continuing to provide opportunities to participate in federal assessments in ways that are responsive to their interests and needs.

Should the Minister of Environment and Climate Change (the Minister) decide to refer an impact assessment to a review panel, a different suite of collaborative processes may be applicable. For instance, a joint review panel can be established with other jurisdictions that also have responsibilities regarding the assessment of the potential environmental effects of a proposed project.

Designing a Collaborative Process

There are many considerations that should be taken into account in designing a collaborative process with Indigenous communities. Considerations for identifying approaches to work together may include:

Timing — Discussions between the Agency and Indigenous communities to identify the best way to collaborate on an impact assessment should take place as early as possible and build on existing relationships that communities may have with the Agency or other federal departments. Involving Indigenous communities early will help establish relationships, built on the identification of shared values, interests, and an ethical code of respect for diverse and distinct worldviews and perspectives. Setting common goals early may help avoid conflicts later on, given the strength of the pre-existing relationship. The legislated timeline for the Planning phase is a consideration when developing a collaborative approach, as are the timelines for the subsequent phases of the impact assessment process.

Capacity — Indigenous communities will have varying levels of experience in impact assessment, as well as varying financial and human resources available to enable Indigenous-led studies or assessments. Other community pressures and priorities will also influence their ability to collaborate on or lead assessment work in some instances. Sufficient capacity, resources, skillsets and mandates must also be available on the government side of each collaborative partnership, to enable pursuit of each identified opportunity, including for large projects involving many distinct Indigenous communities.

Interest in project area — Some communities may have Aboriginal and/or treaty rights within a particular area that would be impacted by a project, as well as other interests in the area, such as land use or occupation.

Existing agreements — When appropriate, the Agency may work with an Indigenous community in advance of a specific impact assessment to discuss collaborative approaches for future assessments of projects in that community’s territory. Any agreements entered into or in development would help to define collaboration in the context of a specific impact assessment. Other existing agreements between the Government of Canada and an Indigenous community, such as a consultation protocol, may similarly help define collaboration opportunities or requirements in the conduct of a specific impact assessment.

Impact assessment jurisdiction — Some Indigenous communities may have existing authorities in relation to the assessment of projects under regimes such as the First Nations Land Management Act, treaties, or other mechanisms, which could provide the basis for cooperation with federal processes. The Impact Assessment Act (the Act) also enables the Minister to expand these jurisdictions and share federal assessment powers under future regulations.

Number of impacted groups — Some projects will have the potential to impact multiple Indigenous communities, which may affect the form and type of collaboration that is appropriate. For example, it may be the preference of certain Indigenous communities to self-organize as a collective, drawing from traditional governance and Indigenous laws or customs, for the purpose of collaborating efficiently and effectively with the Government of Canada. Inviting Indigenous communities to confer with each other as to how they would like to be represented or participate in a federal impact assessment may assist in identifying an effective approach.

Dispute resolution and decision making — The Agency and Indigenous communities may wish to discuss a process for identifying and resolving disagreements that could arise in the conduct of the impact assessment or during the decision making phase. Existing dispute resolution processes under other mechanisms may be looked to as examples or, where possible, for recourse on certain issues. For example, the British Columbia Environmental Assessment Act provides for dispute resolution in relation to the assessment process. It is important for the Agency to clearly communicate to Indigenous communities any parameters that the Government of Canada must adhere to in respect of ensuring conformity with existing federal laws and regulations.

Outcomes of designing a collaborative process — Once a collaborative approach is established, it could be captured in a document that sets out how the Agency, appropriate federal departments, and the Indigenous community would collaborate, and on which aspects of the assessment. The Indigenous Engagement and Partnership Plan, described below, is the key document proposed for describing collaboration opportunities that will be pursued in the context of a specific impact assessment.

Approaches to Collaboration

Taking into consideration the factors above, a range of opportunities are available to enable collaborative assessments. The Planning phase will provide the opportunity for the Agency and Indigenous communities to discuss the role that various communities may undertake on the assessment, and to come to arrangements with respect to how this will be coordinated. It will be important in the Planning phase to ensure that the documents resulting from this phase take into consideration any potential collaborative activities that Indigenous communities may undertake. Examples of these collaborative activities are explained in further detail below in relation to the phases of a federal impact assessment.

Planning Phase

Multi-party meetings — Organizing multi-party meetings between federal and provincial governments (jointly the “Crown”), proponents and Indigenous communities will require the willingness of each party. Some great successes have been seen in routinely including all parties in the engagement or consultation process. Instead of having bilateral meetings to identify issues, proactive sharing of information and raising of issues with all relevant parties can help clarify where proponents or the Crown should place efforts vis-à-vis identifying project mitigation opportunities, complementary government measures or even a proposed negotiated accommodation process that could evolve as more detailed information is gathered during the assessment about potential project impacts on the exercise of Aboriginal and/or Treaty rights.

Impact Statement Phase

Indigenous-led studies — Indigenous communities may wish to undertake studies of the potential impacts of a project, such as impacts specifically on their territory, rights or community well-being. Such studies would be one way to bring Indigenous knowledge and Indigenous perspectives into the assessment process and give Indigenous communities a voice in an aspect of the assessment process. Examples include traditional land use or community health studies. These studies may be developed for a specific project or have a broader focus that could be applied more generally to projects proposed in the community’s territory.

Proponent/Indigenous joint studies — Studies in which the proponent and Indigenous communities jointly design the terms of the study and share information in conducting the study could provide the proponent with Indigenous knowledge, unique perspectives on a project, and help to build a collaborative relationship between the proponent and Indigenous communities.

Impact Assessment Phase

Indigenous-led assessments — Indigenous communities may wish to undertake their own assessment process of certain projects. This could take many forms, depending on the specific needs and goals of the community. Should an Indigenous community undertake their own assessment of a project, the Agency is committed to working with them in order to understand their process and timelines, recognize and incorporate the results of that assessment into the federal impact assessment, and provide the outcome of the Indigenous-led assessment to the Minister for consideration in the federal decision. Should the Indigenous community wish, the Crown and/or the proponent may also participate in the assessment by providing information about the project and technical expertise on defined topics. Discussions between the Agency and an Indigenous community that wishes to undertake their own assessment should occur prior to or during the Planning phase in order for both parties to learn about each other’s processes, agree on how they will participate in each other’s processes, and on how the results and outcomes will be reflected and incorporated. Some Indigenous communities may already have their own assessment process established, while others may wish to develop one for a specific project. While Indigenous communities leading their own assessment process may choose to coordinate with the federal impact assessment, they may also choose to provide the Agency with the results of their assessment. In such cases, the Agency will work with the community to determine how they would like to see their assessment process and any decisions arising from that process reflected in the federal process.

Co-development of key Agency documents or assessment methodology — Indigenous communities may draft sections of the Tailored Impact Statement Guidelines, the Impact Assessment Report or the Crown Consultation and Accommodation Report, which could provide a complementary analysis of the implications of a project. Similarly, Indigenous communities may choose to collaborate with the Agency to customize the methodology for assessing potential impacts on their rights or in conducting and documenting the assessment of those potential impacts.

Joint Assessment Committee — Indigenous communities may wish to work with the Agency to form a committee to jointly carry out some or all of an assessment process. For example, the Cree Nation Government and the Agency have recently entered into an agreement that would see a Joint Assessment Committee established to carry out the remaining aspects of the assessment processes for lithium mines. The Committee would consist of representatives from the Agency and the Cree Nation Government, and would jointly draft a report summarizing the results of the assessment, the proposed federal conditions, and the recommended conclusions. This example could be used for future discussions around joint assessment processes with Indigenous communities.

Co-development of accommodation measures — The Crown has a duty to consult and, where appropriate, accommodate. Indigenous communities will be offered opportunities to work together with various Crown departments when issues are raised during the impact assessment process that may require accommodation in the event the project proceeds. These discussions should begin early in the process to allow for all parties to understand the issues and work collaboratively to come to mutually satisfactory solutions, whenever possible.

Decision-making Phase

Co-development of conditions — Indigenous communities may wish to collaborate with the Agency in the development of proposed federal conditions that may address a project’s potential impacts on their rights or interests. This could include suggesting specific language or conditions.

Ministerial response — At the end of an assessment process, the results of Indigenous communities’ internal decision making processes may also inform the Minister or Cabinet’s considerations. This could be reflected in the Impact Assessment Report and the Crown Consultation and Accommodation Report, and may be addressed in the reasons for decision issued by the Minister. Where a collaborative process has been undertaken, the Minister may consider providing a direct response to the Indigenous community, reflecting areas of agreement, modification, or divergence in the federal decision. This would align with some modern treaties and land claim agreements, whereby Ministers are required to respond to recommendations from review boards or committees, indicating reasons for accepting, rejecting or modifying recommendations, and providing opportunity for the committees to reply.

Post-decision Phase

Post-Impact Assessment collaboration — Should a designated project be allowed to proceed following the impact assessment decision, Indigenous communities may wish to work with the Agency to discuss the development of monitoring committees, the provision of advice to federal regulators, and the establishment of regular meetings between the Agency and the Indigenous communities.

‘Collaboration Toolbox’ - Impact Assessment Act

The Act provides for a number of tools, either required or enabled, that support opportunities for collaboration.

Indigenous Engagement and Partnership Plan — This document will be developed collaboratively during the Planning phase with the Indigenous communities that may be affected by a designated project.

Tailored Impact Statement Guidelines — One of the key documents to come out of the planning phase is a set of Tailored Impact Statement Guidelines drafted by the Agency for the proponent, outlining the information that the proponent must provide in its Impact Statement. The Agency will work with Indigenous communities when drafting the Tailored Impact Statement Guidelines to identify any additional valued components or studies to be undertaken, and on how Indigenous knowledge should be considered in the Impact Statement.

Delegation — The Agency has the power to delegate the carrying out of any part of an impact assessment and the preparation of a report with respect to the impact assessment to another body. Therefore, if an Indigenous community has the interest and the capacity to undertake part of the impact assessment, the Agency could delegate relevant parts or all of the assessment.

Cooperative review with Indigenous jurisdictions — Where two jurisdictions have the authority to undertake reviews, the Act requires the Agency to offer to cooperate on the assessment. Cooperative review processes will allow for the achievement of the goal of “one project, one assessment”. Cooperative processes could be as simple as the coordination of different jurisdictions’ timelines and the activities they undertake and/or the sharing of documents, or it could be the substitution of another jurisdiction’s review for a federal review.

Timelines — The Act includes authority to set and extend timelines to address matters within the Government’s mandate, for example, to ensure continued alignment with other jurisdictions.

Conclusion

This guidance highlights a range of possibilities for collaborating with Indigenous peoples in impact assessment. As described, there is a diversity of approaches and opportunities that can be explored and discussed by the Agency and Indigenous communities. No one approach is preferable to another; rather, the best approach will be one that is cooperatively developed, flexible, and responsive to the needs and interests of the Indigenous community.

Annex I: Key provisions of the Impact Assessment Act relating to impact assessments by the Agency

• Section 12 – For the purpose of preparing for a possible impact assessment of a designated project, the Agency must offer to consult with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project and any Indigenous group that may be affected by the carrying out of the designated project;
• Subsection 16(2) – the Agency, in deciding whether an impact assessment is required for a project, must consider any comments received from any jurisdiction or Indigenous group that is consulted and must consider any study conducted or plan prepared by a jurisdiction that is provided to the Agency;
• Section 21 – the Agency or the Minister must offer to consult and cooperate with any jurisdiction, as defined in Section 2 of the Act;
• Subsection 22(1) – a federal impact assessment of a project must take into account any assessment of the effects of the designated project conducted by an Indigenous governing body and any study or plan that is conducted or prepared by a jurisdiction or an Indigenous governing body;
• Section 29 – The Agency may delegate to any person, body or jurisdiction referred to in paragraphs (a) to (g) of the definition jurisdiction in section 2 the carrying out of any part of the impact assessment of the designated project and the preparation of the report with respect to the impact assessment of the designated project.
• Section 31(1) – Subject to sections 32 and 33, if the Minister is of the opinion that a process for assessing the effects of designated projects that is followed by a jurisdiction referred to in any of paragraphs (c) to (g) of the definition jurisdiction in section 2, that has powers, duties or functions in relation to an assessment of the effects of a designated project would be an appropriate substitute, the Minister may, on request of the jurisdiction and before the expiry of the time limit referred to in subsection 18(1), or any extension of that time limit, approve the substitution of that process for the impact assessment.
• Section 114 – the Minister may enter into agreements with other jurisdictions including, if authorized by regulations, Indigenous governments not recognized as jurisdictions under the definition of “jurisdiction” in the Act or agreements to authorize Indigenous governments to exercise powers on lands over which those governments do not otherwise have powers.