As provincial and territorial governments across Canada continue to respond to the COVID-19 public health crisis, businesses and individuals are looking for rapid economic recovery. Major projects – i.e. large, capital-intensive projects such as mines, hydro-electricity and pipelines – are central to the Canadian economy and form a key component of economic revitalization. These projects take place on Indigenous land and must only be developed with Indigenous Nations’ free, prior and informed consent. However, the push for economic recovery is resulting in efforts to fast-track major projects and bypass environmental and socio-economic oversight, in violation of Indigenous rights. This is particularly clear in the area of Environmental Impact Assessment (EIA).
What is Environmental Impact Assessment?
EIA refers to:
“the process of identifying the future consequences of a current or proposed action. The ‘impact’ is the difference between what would happen with the action and what would happen without it,” (IAIA 2009).
EIAs are designed to identify, predict and mitigate the environmental and socio-economic effects of potential projects before they are authorized to proceed. EIAs are absolutely critical for Indigenous communities because it gives them the opportunity to voice their concerns, identify impacts on their lands and communities and shape the conditions under which the project should operate. Indigenous nations have historically been relegated to the sidelines of the EIA process. However, new EIA legislation and processes in Canada are moving toward a more meaningful role for Indigenous nations regarding consideration of Indigenous rights and recognition of Indigenous jurisdiction.
How is COVID-19 impacting EIA?
The Canadian economy plummeted in March of 2020 as a result of business shut-downs related to COVID-19. Rather than accommodating this unprecedented economic pause, jurisdictions responsible for EIA across Canada have tried to keep major projects rolling or find ways to speed them up. This approach has played out in three major ways, each of which have a detrimental impact on Indigenous communities:
1. Business as Usual: During the initial months of COVID-19 lock-down, various jurisdictions allowed regulatory processes for major projects to proceed rapidly, with little regard for Indigenous communities’ capacity to meaningfully participate. Despite the closure of Indigenous community offices, project referrals kept rolling in, regulatory timelines were unaltered and exploration work continued (such as the Ontario government’s decision to allow remote mine claim staking permitting processes, over the protests of Indigenous nations). While the protests of Indigenous communities resulted in some accommodations such as extended timelines, other measures are being put in place to speed up environmental reviews, such as doubling up process steps that usually occur sequentially.
2. Regulatory Rollback: The EIA process results in legally-binding conditions that a company must adhere to in order to construct and operate their project. Some of these conditions include requirements to monitor the project’s impacts and the effectiveness of its mitigation measures. Various Canadian jurisdictions have suspended some of these requirements (as well as others) in order to provide companies with greater operational free-reign. For example, the Alberta government suspended environmental monitoring requirements for oil sands producers, the Ontario government suspended a section of the Environmental Bill of Rights (since reinstated), and BC, Quebec and Saskatchewan granted leeway for non-compliance with environmental laws.
3. Fast-tracking: Perhaps the most worrisome development is an emerging trend to fast-track major projects with little-to-no scrutiny of environmental and social impacts. For example, Quebec’s Bill 61, would allow the government to expedite environmental reviews for 202 projects and make certain provisions of the Environmental Quality Act inapplicable (the bill received substantial backlash and is still under review). In Ontario, Bill 197 (COVID-19 Economic Recovery Act, 2019) introduces substantial amendments to the province’s Environmental Assessment Act with the goal of reducing assessment time for major projects by up to 50%. Among many of the changes introduced by the Bill, automatic assessment for public sector projects will be replaced by a to-be-determined list of projects designated by Cabinet, class EIAs will be replaced with “streamlined” EIAs, and a mechanism enabling the public to request a full project review will be removed. Other examples of this trend include Alberta’s decision to allow open-pit coal mining in the foothills of the Rockies and advocacy from industry groups and think tanks to accelerate infrastructure projects while streamlining EIA processes.
All of these economic responses to COVID-19 put Indigenous peoples and their lands at greater risk. Moreover, these measures go against Canada’s legal duty to consult and accommodate Indignous nations, as well as the United Nations Declaration on the Rights of Indigenous Peoples (fully endorsed by Canada in 2016) which states:
“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions” (Article 18, UNDRIP) and
“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, UNDRIP).
Environmental impact assessments and Indigenous rights should not be sacrificed for the sake of rapid post COVID-19 economic recovery.
Canadians want the Canadian economy to recover as quickly as possible from the effects of the global pandemic. Indigenous nations also want a rapid recovery from COVID-19. Indeed, the pandemic is causing even greater impacts in vulnerable Indigenous communities, particularly given the history of infectious diseases devastating First Nations, Métis, and Inuit communities as a direct result of colonization. Remote communities face particular challenges as they often have less access to medical equipment and financial resources.
However, business as usual, regulatory roll-back and project fast-tracking will hinder rather than help Indigenous communities. Indigenous nations need time and resources to carefully consider proposed projects that have the potential to impact their rights and territories. This may include undertaking community-based research with elders and citizens to identify values, concerns, knowledge and use – a process that needs to be respectful, appropriate and cannot be rushed.
Whether Indigenous nations choose to assess the project independently or collaboratively with the proponent or Crown, they need accurate information to inform their consent-based decisions and any conditions they may have for allowing a project to proceed.
In an interview with The Narwhal about EIAs being conducted during the pandemic, Firelight Director and Regulatory (EIA) Team Lead, Alistair MacDonald, stated:
“It can take two to three years to conduct an environmental assessment. That’s a heavy commitment for an individual nation. Capacity is very limited, very few nations have the funding capacity or human resources that they could devote a single person to a single environmental assessment. This is not a ‘business as usual’ environment we’re living in, especially for First Nations with multiple responsibilities in governance.”
Moreover, fast-tracking the EIA process does not guarantee that major projects will actually be completed faster and is likely to result in greater costs for government and corporations. In fact, most project delays result from social conflict regarding unaddressed environmental and social concerns which, from a business perspective, is not just time lost and money not being made, but also money being spent on heavy legal costs. One study found that almost half of mining projects in Canada between 2008 and 2012 were delayed and of that 81% of these projects were delayed due to “non-technical” issues such as lack of regard for social and environmental concerns thus resulting in court cases (Sestagalli 2017).
Designing Better EIA and Promoting Economic Reconciliation
Now is not the time to start gutting or bypassing EIA processes. The EIA process is far from perfect, but has made considerable advances over the past 50 years. New federal EIA legislation, new EIA legislation in BC and developments elsewhere in Canada (such as the Yukon’s initiative to improve its EIA process) recognize the essential role of Indigenous nations in the EIA, including the importance of early planning and Indigenous co-management. These processes need to be continuously improved upon to ensure that projects are sustainable, result in real benefits to Indigenous communities and avoid impacts to the environment and Indigenous rights.
One of the most innovative aspects of new Canadian EIA legislation is the ability of Indigenous nations to drive some or all of the process. The Impact Assessment Act, for example, includes mechanisms for delegating some of the impact assessment, or even substituting the entire process, to Indigenous jurisdictions. Indigenous nations are undertaking a greater role in preparing their own studies, writing up reports and co-managing the process. Despite fears raised by some, the meaningful inclusion of Indigenous nations in the EIA process is likely to speed up, rather than slow down project approval and construction. When Indigenous issues and concerns are adequately and appropriately dealt with from the earliest opportunity, proponents will avoid costly and lengthy mid-EIA battles and project design changes, as well as post-EIA legal challenges.
Economic recovery should not be driven by a focus on developing all major projects as quickly as possible, but by a focus on developing the right projects with a view to the future – particularly, those projects that promote sustainability and economic reconciliation with Indigenous nations. There are many examples of “shovel-worthy” projects that could benefit the environment and Indigenous communities, such as orphan well clean-up, Indigenous-led low carbon energy development, infrastructure development in Indigenous communities, and natural infrastructure projects. Whatever the project, it should be developed in partnership with the Indigenous nation on whose land it is situated. Additionally, Indigenous nations should take a leadership role in assessing and approving major projects that occur on their territories. Finally, Indigenous nations should take on a much more active project oversight role through mechanisms such as Indigenous guardian programs.
By developing the right projects, promoting true Indigenous partnership, enhancing Indigenous co-management, and supporting Indigenous leadership and oversight during the EIA process, Canada could seize this moment in history to shape a healthy, prosperous and just future together with Indigenous nations.
The First Nations Major Projects Coalition developed a Major Projects Assessment Standard (MPAS) that outlines Indigenous requirements for EIA of major projects. The MPAS provides 9 principles that must be adhered to during a major project assessment, including:
1. First Nations Rights will be respected, maintained, and promoted.
2. First Nations will be fully engaged in assessment and decision-making for major projects, integrating their laws, norms and values.
3. First Nations stewardship and governance rights and responsibilities will be respected and adhered to throughout the major project life cycle.
4. Ecological values and services will be maintained and if necessary, restored.
5. Impacts to Indigenous culture, socio-economic conditions, health, rights, title and traditional use will be properly assessed and managed to the satisfaction of the affected First Nations.
6. First Nations will have access to adequate resources, information, and time in order to inform their engagement and decision-making processes.
7. The major project assessment scope and process will adhere to agreed upon high quality practices and reflect First Nations values.
8. All projects will be assessed using a focus on total cumulative effects loading and best practice of cumulative effects assessment.
9. Adequate information will be provided to inform consent decisions made through First Nations’ Worldviews.
If Indigenous communities are experiencing regulatory rollback or fast-tracking there are a few things they can do which include:
- Directly contact investors and finance institutions to inform them of the risks the project creates through a fast-tracked process;
- Refer government and industry to the recent Moody’s Investor Services report titled Focus on Indigenous Rights Increasingly Vital for Project Execution;
- Talk to legal counsel and/or write a letter flagging the legal risk of bypassing meaningful engagement and/or consultation;
- Document all communication, concerns, and disputes on paper;
- Engage with other Indigenous groups involved in the same process and seek multi-nation unity in voicing their concerns;
- Seek support from the First Nations Major Projects Coalition’s Environmental Stewardship Technical Team which can provide further advice;
- Contact the Firelight Group for further advice and consultation.