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How to protect water through the Canadian Environmental Assessment Act – Part 3

This is the third part in a four-part blog series that aims to help people to participate in the Canadian Environmental Assessment Act (CEAA) consultations organized by the federal government and to advocate for better assessment and protection of water.

In part one of this blog series, we gave background information on the Canadian Environmental Assessment Act (CEAA) review process, which is part of the Trudeau government’s commitment to restore and modernize freshwater and environmental protections. In part two we gave same background and talking points that address the CEAA review panel’s first of seven themes, Environmental Assessment in Context.

Public workshops and panel presentations began on September 19. If you are interested in participating in these, please register as soon as possible as spaces can fill up quickly in some locations.

In this blog, we will focus on the second theme, Overarching Indigenous Considerations. (Part 4 will focus on Planning Environmental Assessment)

Overarching Indigenous Considerations

Some Context

The Terms of Reference for this panel state that the Government of Canada fully supports the principles of the United Nations Declaration on the Rights of Indigenous Peoples, with the goal of renewing its relationship with Indigenous people in Canada and moving forward toward reconciliation.

The Harper government’s 2012 budget bills fanned the flames of discontent amongst Indigenous communities. The former Harper government not only washed its hands of protecting lakes and rivers, it also ignored the constitutional duty to consult with First Nations. That fall, four Saskatchewan women started Idle No More, a movement that grew over the winter of 2013 and sparked a massive wave of rallies and actions across the country.

Photo by Lotus Johnson, Wildfire Bakery, Quadra Street, North Park neighbourhood, Victoria BC 

In January 2015, the Mikisew Cree First Nation won its legal challenge against Harper’s C-38 and C-45, which removed federal protection for most of the waterways in the traditional territory of the Mikisew Cree in northern Alberta. Federal Court Justice Roger Hughes ruled that the Harper government should have consulted with First Nations before introducing the omnibus bills C-38 and C-45 two years ago.

In order to implement the UN Declaration of the Rights of Indigenous Peoples, the Trudeau government must consult with Indigenous communities on a nation-to-nation basis and incorporate the obligation to obtain free, prior and consent into the CEAA so that Indigenous treaty and water rights are respected.

For example, the Energy East pipeline runs through many Indigenous communities and threaten their access to clean water. Energy East: A Risk to Our Drinking Water also warns about the impacts a spill from the Energy East pipeline would have on Indigenous peoples. The report states, “Many of the waterways along the Energy East route examined in this paper are on First Nations’ treaty, traditional and unceded land. Waterways continue to play a critical role in subsistence cultures and beyond. These waterways and land are subject to unique rights enshrined under the Canadian Charter of Rights and Freedoms, Treaty Rights and the UN Declaration on the Rights of Indigenous Peoples that must be respected by TransCanada and the federal government. In its pre-application to the National Energy Board (NEB), TransCanada presents an initial list of 155 Aboriginal communities that may be affected by this project.” To abide by UNDRIP and FPIC, each of these communities must give consent.

For more background, read Art Manuel’s article, Tshihqot’in Decision and Indgeinous Self- Determination, here.

Question 1: How can federal environmental assessment processes better reflect and incorporate the multiple ways in which Indigenous Peoples may interact with federal environmental assessment, including as potentially affected rights holders, proponents of development, self-governing regulators, and partners?

Perhaps a comprehensive Social Impact Assessment defining these roles (as well as others, such as “opponents of development”) would be in order.

Question 2: How is the need to address potential impacts to potential and established Aboriginal and treaty rights best incorporated into the federal environmental assessment process?

Assessment points that specifically correspond to treaty rights, such as impact to the ability to hunt and fish and impacts to drinking water, should be developed.

Question 3: What is the best way to reflect the principles of United Nations Declaration on the Rights of Indigenous Peoples, including the principles of Free, Prior and Informed Consent and the right to participate in decision-making in matters that would affect Indigenous rights, in federal environmental assessment processes?

It is important to assess Indigenous communities as a whole – often federal government processes only involves chiefs or band councils. Federal government processes may also favour communities that are agreeable to development.

We must define a legitimate process and measures for obtaining consent, and also define what “free,” “prior” and “informed” mean in concrete terms. Consent must be given from people who are affected by a project – if they live or hunt on the land, drink the water, practice ceremony – they must give consent for that land or water. Someone who is not directly connected to that land or water cannot give consent for them (even if it is a chief).

“Free” must refer to the fact that there would be no direct repercussions/punishments for not consenting (as well as no “bribes” for consenting). This includes federal funding.

“Prior” must refer to a timeframe before approval, and before development of the project has even begun.

“Informed” must refer to a comprehensive process that seeks to educate and answer questions.

Question 4: What role should Indigenous traditional knowledge play in federal environmental assessments and what are some international best practices?

It is important to remember that traditional knowledge is not a commodity to be used to further the goals of development. It has value far beyond informing development projects.

Best practice might include support for developing traditional knowledge outside the environmental assessment framework.

There could be an assessment point that documents traditional knowledge. This information should be woven into other parts of the assessment, including cumulative impacts for topics such as climate change (eg. observing movement of animals north, water levels, drought, zones for finding berries, weather patterns, social structures and health, history).

Question 5: How can the practices and procedures associated with federal environmental assessments, as well as the process itself, support the Government of Canada’s goal of renewing the nation-to-nation relationship with Indigenous Peoples and moving towards reconciliation?

Free, Prior, and Informed Consent must be obtained. here must be a legitimate option to be free, prior, and informed, and not give consent. Indigenous nations have a right to say “no” to projects and the federal government must respect that and listen.

UNDRIP and water

The following sections are sections of the UNDRIP that relate to water:

“Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.” Article 29 – 1

“States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.” Article 29 – 2 

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” Article 32 – 2

This blog was written with Prairies Organizing Assistant Diane Connors. This is part of the Council of Canadians’ Every Lake, Every River campaign. The goal of the campaign is to restore and enhance protections to the 99% of waterways in Canada that were lost in 2012.

Next » Part 4 – Planning Environmental Assessment

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