ENVIRONMENTAL ASSESSMENT AND ABORIGINAL LANDS AND PEOPLES NOVEMBER 5, 2012

Overview Historical Overview of Treaties Modern Treaties (Claims Agreements) Land Claims EA Regimes after JBNQA –Inuvialuit Final Agreement –Dene First Nations Agreements (MVRMA) –Yukon First Nations Agreement (YESSA) Application of CEAA and CEAA 2012

First Nations Treaties

Royal Proclamation of 1763 Friendship treaties Southern Ontario/Robinson treaties Numbered treaties Most purported to surrender aboriginal title Established small land reserves Provided harvesting rights to unoccupied Crown Lands Governance by Indian bands under Indian Act (minor role managing natural resources, environment)

Environmental Assessment and Numbered Treaties S.35 Constitution Act protection of existing aboriginal and treaty rights Treaty 8 protection of harvesting rights on unoccupied Crown lands Constitutional duty to consult and accommodate arises when knowledge, actual or constructive, by Crown of a potential Aboriginal claim or right, contemplated Crown conduct and potential that contemplated conduct may adversely affect Aboriginal right or claim (Haida Nation - Supreme Court)

Environmental Assessment and Numbered Treaties CEAA EAs have been key vehicle for consulting First Nations on contemplated Crown conduct (approval of developments) Athabasca Chipewyan First Nation files constitutional challenge of Jackpine Expansion at Joint Panel (Oct ) ACFN argues breach of Treaty 8 rights, breach of Crown consultation obligations Issue: is Panel appropriate forum to decide on constitutional issues? Panel says no

Environmental Assessment and Numbered Treaties What issues arise with respect to CEAA 2012 with respect to meeting Crown consultation obligations? Does CEAA 2012 ss screening process potentially breach Crown consultation obligations?

Modern Comprehensive Claims

Comprehensive Claims Agreements Modern era of aboriginal claims settlement dates from 1973 Canada policy Comprehensive vs. specific claims Comprehensive claims based on assertion of continuing Aboriginal rights and/or title to lands and natural resources Achieve certainty of land tenure through surrender of title to Crown (recent approaches differ)

Comprehensive Claims Agreements Agreements provide rights and benefits (title to some land, rights to other lands, financial benefits, joint management regimes for resources Joint management (co-management) regimes (wildlife, water, land use planning and management, environmental assessment)

James Bay and Northern Quebec Agreement (JBNQA) and EA Canada, Quebec, Cree, Inuit signed JBNQA in 1975 JBNQA paramount over all other laws of general application Established governance framework for social, economic development, environmental protection Environmental assessment process for Cree traditional territory – s. 22

James Bay and Northern Quebec Agreement (JBNQA) and EA Separate process for federal or provincial assessment of projects depending on constitutional jurisdiction within which project falls But SCC in Moses decides CEAA EA also required; Fisheries Act authorization required, triggers CEAA EA; Duplication? Revisions to Fisheries Act 2012 relevant? Implications CEAA 2012?

Environmental Assessment under MVRMA MVRMA enacted in 1998 following completion of land claims agreements with Gwich’in, Sahtu Dene, later Tlicho Dene Mackenzie Valley Environmental Impact Review Board - co-management EA board Seven or more members appointed by Minister, half (excluding chair) nominated by aboriginal groups, four by governments, chair nominated by Board s. 112

Purposes Establish Review Board as main instrument for EA in Mackenzie Valley Ensure environmental impact of developments carefully considered before actions taken Ensure concerns of aboriginal people and general public are taken into account s. 114

Guiding Principles Timely and expeditious Have regard to: –protection of environment from significant adverse impacts of developments –protection of social, cultural and economic well-being of residents and communities –Importance of conservation to well-being and way of life of aboriginal people s. 115

Preliminary Screening Applies to proposed developments requiring permit by Mackenzie Valley Land and Water Board or other regulator s. 124 Quick review of application to determine if project might have significant adverse impacts on environment or be of public concern s. 125 If yes, refer for EA by MVRMB If no, issue permits

Environmental Assessment EA by MVRMB a more thorough study to decide if development likely to have significant adverse impacts on environment, cause public concern s. 126 If yes, MVRMB may recommend Minister issue permit(s), issue permits subject to mitigation measures, or reject s. 128 Alternatively, MVRMB or Minister(s) may order panel review s.129, 130

Environmental Impact Review Review conducted by an independent panel, consisting MVRMB and non- MVRMB Board members Review provides more focused study of issues raised during EA s.132 Review panel issues report with recommendations to federal Minister, responsible Ministers, regulatory agencies for decision s. 136, 137

Application of CEAA 2012 Minister may refer a project to a panel review under CEAA 2012 where in national interest s. 130 Otherwise CEAA 2012 does not apply in Mackenzie Valley s.116

Yukon Environmental and Socio- economic Assessment Act Purposes Provide a comprehensive, neutrally conducted assessment process Require consideration of environmental, socio- economic effects before projects undertaken Ensure projects are undertaken in accordance with principles that foster beneficial socio- economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend s. 5

Trends in Aboriginal Claims EA EA regimes co-managed with aboriginal communities Assessing sustainability, nor just environmental effects CEAA doesn’t apply except for large, transboundary projects

Application of CEAA 2012 Minister may refer a project to a panel review under CEAA 2012 s. 62 Otherwise CEAA 2012 does not apply in Yukon s. 6

CEAA 2012 Application to Aboriginal Lands/People One purpose of CEAA 2012 to promote communication and with aboriginal peoples with respect to EA s.4.(d) CEA Agency has similarly stated object s. 15.(g) CEAA applied to virtually all federal decisions relevant to First Nations; CEAA 2012 doesn’t—potential gap in Crown consultation coverage?

CEAA 2012 Application to Aboriginal Lands/People CEAA 2012 has purpose to promote communication/cooperation with aboriginal peoples with respect to EA s.4.(d) CEA Agency has similarly stated object s. 15.(g) CEAA 2012 applied to virtually all federal decisions relevant to First Nations; CEAA 2012 doesn’t—potential gap in coverage in relationship to Crown consultation?

CEAA 2012 Application to Aboriginal Lands/People Are changes to “environmental effects” definition important? What if designated projects screened out of CEAA 2012 EA process? How will Crown meet its Crown consultation duties? S.19 allows consideration of community/ Aboriginal traditional knowledge in EA