By Megan Sheline, Brenna Williams, and Fion Lao

We are cautiously optimistic by the introduction and passing of the Trudeau Government’s new Impact Assessment Act (IAA 2019). This bill has made great leaps in establishing the consideration and protection of Indigenous rights and representation. This is a great improvement and departure from the previous environmental assessment act (CEA Act 2012) passed under the Harper administration. While the new Impact Assessment Act has made great steps in the right direction, it is not without its faults. This act falls short in its ability to deliver sufficient information on how meaningful public participation will be guaranteed throughout the entirety of a project, regional and strategic assessment. IAA 2019 should be celebrated for the considerable progress it has made, but we must recognize that there is still space for refinement. 

My contributions include:

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Previously under CEAA 2012, it was simply advised that impact assessments take into consideration the potential adverse effects on Indigenous People, whereas, under the IAA 2019, this is now mandatory. The new Impact Assessment Act includes a specific clause stating that the rights of the Indigenous Peoples must not be infringed upon or degraded by acts carried out. The protection of Indigenous rights extends to their environment and lands, whereas CEAA 2012 made no strict mention of “Indigenous Rights.” Bill C-69 in IAA 2019 states that no project must act in a way that alters the environment with respect to physical and cultural heritage sites, land use for traditional purposes, and structures or buildings of historical, archeological, paleontological, or architectural significance. Although IAA 2019 expressly mandates the government’s commitment to Indigenous Peoples’ rights under Bill C-69, it still remains unclear how this provision is interpreted. This leaves room for potential discrepancies in how it is enacted by the administration.

The Trudeau Government’s new Impact Assessment Act seems to have made a concerted effort to increase the role of Indigenous peoples and knowledge. This is a great advancement from the previous act that only specified that it “may include” Indigenous knowledge. As such, this vague language makes it legally non-binding and ignoring Indigenous knowledge could be used for nefarious intentions. Though CEAA 2012 did acknowledge the need for enhanced Aboriginal consultation, it again was not written in the law as a requirement and leaves little incentive for the inclusion of Aboriginal people if it does not benefit the project proponents. This is why the enactment of IAA 2019 has been so monumental. This new bill allows for increased transparency in the impact assessment processes that occur through new reporting requirements. 

With the passing of IAA 2019, it is now a requirement that the Indigenous Representation on Advisory Councils must include at least one person who represents the interests of each First Nations, Inuit and Metis. This mandatory inclusion extends to the Canadian Energy Regulator, where it is required that one member of both the Board of Directors and Commissioners must be a representative of the Indigenous Peoples. Something quite notable about IAA 2019 is the specific references made to Indigenous women. There are two particular sections that address the importance of including Indigenous in the EIA process. There must be consideration of the potential adverse effects of physical activity on the rights of Indigenous peoples and Indigenous women. This inclusion of specifically addressing Indigenous women is peculiar but also highlights how they are even more disenfranchised than their male counterparts and hence there needs to be sizeable attention given to them. 

In response to IAA 2019, oversight mechanisms have reviewed that the Act has accomplished much in terms of Indigenous consultation and public participation. Law organizations like the Canadian Environmental Law Association and McCarthy Tetrault LLP have acknowledged the increased recognition and consultation of Indigenous peoples, especially with the new “early planning” phase. Nevertheless, while there is an acknowledgement of Indigenous rights and interests, mechanisms of oversight determine that there is still uncertainty and ambiguity in ensuring they are considered in all stages of the process. More specifically, scholars claim that the Act neglects to explain how to balance trade-offs of their public interest determination objectives, two being mitigation measures and Indigenous peoples’ rights.

We suggest that there should be increased transparency in the implementation of such Indigenous rights and the application of knowledge, as well as the resulting trade-offs. The projects themselves should and can be monitored and advised by outside oversight mechanisms, such as environmental “watchdog” groups – e.g. BC Forests Practices Board, in addition to the review boards within the assessment, including the advisory committee with Indigenous representatives.

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