1. Federal Review of Environmental and Regulatory Processes
Maliseet Nation of New Brunswick
November 2016
Olthuis Kleer Townshend LLP

2. What is it?
The federal government is undertaking a review of environmental and regulatory processes.
The review will focus on the following:
Reviewing federal environmental assessment processes;
Modernizing the National Energy Board (“NEB”); and
Restoring lost protections and introducing modern safeguards to the Fisheries Act and the Navigation Protection Act

3. What does this mean for the Maliseet?
The Canadian Environmental Assessment Agency, Natural Resources Canada, Fisheries and Oceans Canada and Transport Canada are providing funding for Indigenous parties to participate in all components of the review of environmental and regulatory processes.
The reviews of environmental and regulatory processes are an opportunity for the Maliseet to have a say in how federal environmental and regulatory processes can be changed to better respect Maliseet rights, perspectives and jurisdiction.
All 6 Maliseet communities have decided to participate in these reviews together. We have submitted funding applications for all 4 reviews, but only received confirmation that we have received funding for the review of the federal environmental assessment processes and Fisheries Act.
In November we made presentations to the Environmental Assessment Expert Panel on our preliminary and overarching issues and concerns on federal environmental assessment processes. Written submissions for this component of the review are due on December 23rd and will outline our issues and concerns in more detail. As part of our participation in this review and to assist with the written submissions, we are seeking feedback from community members on issues with federal environmental assessment processes and how they can be changed.

4. How will the reviews take place?
Environmental Assessment Expert Panel to review federal environmental assessment processes.
National Energy Board Modernization Expert Panel to review National Energy Board.
Standing Committee on Fisheries and Oceans will review the Fisheries Act.
Standing Committee on Transport, Infrastructure and Communities will review the Navigation Protection Act.
The reviews of the federal environmental assessment processes and the NEB will be undertaken by two separate Independent Expert Panels.
The Panels will engage broadly with Canadians, Indigenous groups and stakeholders.
Those wishing to share their views can do so on-line, by attending one of the many in-person Panel sessions to make a presentation, and by submitting written submissions.
Based on this engagement and the feedback received, the Panels will develop reports and recommendations to the federal government on how to change federal environmental review processes and the NEB.
The reviews of the Fisheries Act will be undertaken by the Standing Committee on Fisheries and Oceans and the review of the Navigation Protection Act will be undertaken by the Standing Committee on Transport, Infrastructure and communities.
Those wishing to share their views can do so on-line, by requesting to appear in front of the Committee as a witness, and by submitting written briefs. Based on their review and feedback received, the Committees will develop reports and recommendations on how to change the Fisheries Act and Navigation Protection Act.
The reviews of the federal environmental assessment processes, Fisheries Act, and the Navigation Protection Act are currently underway.
Panel Sessions for the review of the federal environmental assessment processes are currently ongoing until early December. Written submissions are due on December 23rd. The Panel will submit its report and recommendations in early 2017 for review and response by the federal government.
The Standing Committees have also begun their review of the Fisheries Act and the Navigation Protection Act. Written submissions for both are due on November 30th. The Committees will then submit their reports and recommendations in early 2017 for review and response by the federal government.
The Expert Panel for the NEB review was just announced and the review is expected to begin soon, with Panel hearing sessions to be announced. Written submissions for the review of the NEB will be due on February 17, The Panel will then submit its report and recommendations for review and response by the federal government.

5. What is the Environmental Assessment Expert Panel Reviewing?
The Expert Panel is reviewing federal environmental assessment processes associated with the Canadian Environmental Assessment Agency, 2012 (CEAA 2012)

6. What are Environmental Reviews?
Environmental reviews are processes where panels or individuals, usually appointed by the government, review a project such as an oil pipeline or a mine to decide if it meets environmental criteria and whether it should be allowed to proceed.
In an environmental review, different groups may be able to participate and present evidence to the panel or individual about the potential effects of the project on their rights or interests. Indigenous communities often can, and frequently do, participate in environmental reviews.

7. What is the Canadian Environmental Assessment Act, 2012?
CEAA 2012 is the legislation that lays out the federal environmental assessment process.

8. Why is the Environmental Assessment Expert Panel Undertaking the Review?
In 2012, the federal government introduced legislative changes to federal environmental legislation. The existing Canadian Environmental Assessment Act was replaced by CEAA 2012.
CEAA 2012 destroyed many of Canada`s federal environmental protections.
The goal of the review is to develop new, fair processes that are robust, incorporate scientific evidence, protect our environment, respect the rights of Indigenous peoples, and support economic growth.

9. What are some concerns with the Canadian Environmental Assessment Act, 2012?
CEAA 2012 more narrowly defines environmental impacts. It gives Cabinet discretion on which impacts to review. The result is that there are far fewer environmental assessments and the scope of what is reviewed is usually reduced.
CEAA 2012 imposes stricter and much shorter timelines on environmental assessments.
CEAA 2012 contains very weak consultation obligations.

10. Fisheries Act
Part of the legislative changes in 2012 also included changes to the Fisheries Act.
There is now little to no protection for fish or fish habitat. There are also less protections for Aboriginal fisheries and fishers.
There are reduced funds available for fish science, monitoring and enforcement.
The definition of Aboriginal fishery was changed to “food, social and ceremonial fishery or one recognized in a modern claims agreement”. This means that Aboriginal commercial fishers are not protected by the prohibition on harming fish habitat.
Fewer fish habitat areas are protected. The Fisheries Act was changed so that prohibitions on harmful destruction of fish habitat is restricted to only those species already being commercially harvested by a First Nation. This means that fish which are not currently being harvested are not protected. This also means that areas where there is no commercial fishing happening today, or no current harvesting, will not be protected. For First Nations, this could mean fishing rights are frozen in time.
The Minister was given discretion to exempt many works and activities from the protections under the Fisheries Act and a broader scope of discretion to allow serious harms to fish habitat. These decisions are based on Minster`s wishes, not science or technical analysis.

11. Navigation Protection Act
The 2012 legislative changes also included changes to the Navigation Protection Act.
The changes radically reduced the level of protection of navigation and environmental reviews for most rivers and lakes in Canada.
In determining whether and how to protect navigable waters, the Minister does not need to take into account Indigenous rights, title perspectives or interests.
The Minister is allowed to exempt most rivers and waters from navigation protection under the Navigation Protection Act.
The changes take away the federal assessment triggers (based on navigability) for 99% of Canada`s waterways. Minister of Transport is only required to review the projects that affect the navigability of only 3 oceans, 97 lakes and 62 rivers in the entire country. This is a redirection of the number of protected waterways from 32,000 lakes and 2.25 million rivers across Canada.
The practical effect of the changes is that proponents no longer have to tell the government if they are building anything that interferes with navigation on most of Canada`s lakes and rivers and works affecting the navigability of the 99% of Canadian lakes and rivers will no longer trigger federal environmental assessments.

12. Submissions from the Maliseet Nations
To be most efficient and to focus our review and submissions, we have chosen to focus our review on topics of specific concern to the Maliseet:
Maliseet Jurisdiction in Federal Environmental Review Processes
Cumulative Impacts
UNDRIP and Free, Prior and Informed Consent
Traditional Knowledge
Capacity
Post-Project Monitoring
The Conduct of Environmental Assessments Generally
There are many things wrong with federal environmental assessment processes and a lot of time can be spent detailing all issues and concerns. However, we have limited funding and many of the issues and concerns will be covered by other groups.

13. Jurisdiction
How do you think the jurisdiction of the Maliseet can be best reflected in federal environmental assessment processes?
How can federal environmental assessment processes better incorporate the Maliseet in decision making in environmental assessments (including in planning and review)?
There needs to be more recognition of and harmonization with the jurisdiction of First Nations over their traditional territories and First Nation laws on how proponents, Canada and the province need to respect our land and consult with us. A framework that promotes reconciliation is one that will explicitly allow for jurisdiction to be shared over the protection of lands and waters with Aboriginal Nations.
The agencies and commissions working with the Maliseet under Canada’s environmental assessment processes need to understand how the Maliseet, the decision-maker representing the traditional territory of the Maliseet in New Brunswick under the environmental assessment processes, engages in decision-making that will impact future generations. It is the Maliseet and other First Nations that should hold jurisdiction to consent to projects within our territories which could significantly affect our Aboriginal and treaty rights and our environment.
There is an opportunity under the revised CEAA laws to recognize the laws of First Nations and First Nation decision-making. The revised federal environmental assessment legislation needs to re-direct some of the decision-making authority to Aboriginal Nations.

14. Cumulative Impacts
How can cumulative impacts be better considered in environmental assessment processes?
The Maliseet have experienced considerable loss in our livelihood through exploitation. Lands and resources have been and continue to be “taken up” through settlement, resource extraction such as forestry, fishing and agriculture, environmental degradation, and highly restrictive government regulations. As a result of the cumulative effects of these projects and activities in our Traditional Territory, there are few accessible areas remaining for traditional uses and valued resources, which has caused significant challenges to the Maliseet people, our economy and our culture.
While current federal environmental regulatory processes in practice requires cumulative effects assessments be done, there is definitely room for significant improvement and enhancement of these assessments and their application. This is because while cumulative effects assessments are technically required, federal environmental processes do little to actually obligate cumulative effects assessments be done or at the very least, obligate that they properly take into account the impacts of all types of development in the past, present and future.
Reviews need to look at how the project interacts with and will add to the already existing impacts from already existing projects and activities in the area. Reviews also need to look at how the project fits into the projects currently being developed in the area and how will it fit into future projects developed in the area. There also needs to be regional land use planning that respects Aboriginal jurisdiction, knowledge and values and First Nations. First Nations need to be involved in the developed in both of these.

15. UNDRIP and Consent
How can UNDRIP and Consent be best integrated in the environmental assessment processes?
How should consent be obtained from the Maliseet?
How should consultation with the Maliseet take place?
In May, Canada officially adopted the United Nations Declaration on the Rights of Indigenous Peoples. UNDRIP requires Aboriginal people to be consulted to obtain free, prior and informed consent.
In order to respect the principle of free, prior and informed consent contained in UNDRIP, federal environmental assessment legislation must, for projects that will or could significantly affect the Aboriginal and treaty rights of Aboriginal people and the environments that they depend on, require consent before approval is provided.
Requiring consent before approval is provided means that federal environmental assessment legislation will need to be revised to re-allocate some of the decision-making authority in environmental review processes to First Nations. The federal environmental assessment legislation should be revised so that the Maliseet and other First Nations hold the jurisdiction to consent to projects within our territories which could significantly affect Aboriginal and treaty rights and our environment.
Building in consent to federal environmental review processes will assist in reforming the environmental assessment processes to build credibility and legitimacy with First Nations. It will also ensure that every effort is made to build consensus on the part of all parties concerned.
For the Maliseet, it will ensure that the seriousness of our Aboriginal title is properly recognized and respected in federal environmental assessment processes. It will ensure that history is not repeated and that we have a say in what happens in our traditional territory, in what happens to our Aboriginal and treaty rights and to our lands, waters and resources. It will be one step in restoring our faith in environmental review processes.

16. Traditional Knowledge
How can traditional knowledge be better integrated into environmental assessment processes?

17. Capacity
Do you think that capacity funding provided through environmental assessment processes work?
How can funding be changed to give the Maliseet more capacity?
The existing environmental review processes just do not take into account in any real way the capacity limitation that our Nations, and most Aboriginal nations face in engaging with and responding to projects.
We are facing multiple projects in Maliseet territory and the administrative burdens of just dealing with the basic correspondence, meeting requests, etc. can be challenging.
The Crown has been increasingly relying on regulatory bodies to fulfill its constitutional duty to consult and accommodate. However, it is not providing adequate funding for Aboriginal groups to participate in environmental review processes.
Without adequate funding in environmental review processes, we cannot hire experts to assess the documents that have been prepared by the proponent, gather evidence on areas of traditional use to understand the impact that a project might have on the use of our traditional territory, conduct our own internal consultations with land users, elders and traditional knowledge holders to identify the testimony that will be presented, or prepare our own scientific and legal reports to present to regulatory bodies that will decide whether or not to recommend that projects get approved.
Without adequate funding, consultation cannot be meaningful. Our rights will not be understood nor will it be understood how to minimize the impacts to our rights. Without adequate funding, any consultation carried out through regulatory bodies will be merely an exercise to let us blow off steam, for projects to get rubber stamped and for our rights to continue to be trampled over until we have nothing left.
To that same end, Federal and Provincial governments need to ensure that any delegation of the duty to consult and accommodate to the proponent in an environmental review process is accompanied with adequate capacity funding that will facilitate meaningful consultation and co-development of appropriate accommodations with First Nations.

18. Post-Project Monitoring
How do you think environmental assessment processes can be changed to better involve the Maliseet in post-project monitoring?

19. Conduct of Environmental Assessments
Any further comments on how federal environmental assessments should be conducted?

20. Fisheries Act How have the changes to the Fisheries Act impacted you?
How can the Fisheries Act be changed to restore lost protections of fish and fish habitat and incorporate modern safeguards?
How can the Fisheries Act be changed to better protect Maliseet fishers and fisheries?
How can the Fisheries Act be changed to better protect fish and fish habitat that are important to the Maliseet?

21. Navigation Protection Act
How have the changes to the Navigation Protection Act impacted you?
What criteria do you think should determine navigable waters?
Are more protections needed under the Act?
Are the appropriate activities prohibited in the Act to safeguard navigation?
Which navigable waters do you think the Act should apply to and why (please note that it appears the only waterway protected in NB is the SJ River, but only from the Mactaquac Dam to the Atlantic Ocean)?
How can the Act be changed to better protect waters important to the Maliseet?

22. Further Questions and Comments
If you have further questions or comments, please contact:
NAME OF COORDINATOR AND CONTACT INFORMATION