Métis Nation and Environmental Assessment. Métis Nation Special Sitting of the General Assembly March 19, 2017 Vancouver, BC

Transcription

1 Métis Nation and Environmental Assessment Métis Nation Special Sitting of the General Assembly March 19, 2017 Vancouver, BC

2 Federal Environmental Reviews Fish Habitat Protection National Energy Board Environment al Assessment Processes Navigation Protection Act

3 Review of Environmental Assessment Processes

4 What is Environmental Assessment? Environmental assessment ( EA ) is a process to predict environmental effects of proposed initiatives before they are carried out so that negative effects can be avoided or minimized and positive effects maximized or enhanced.

5 Review of EA Processes On June 20, 2016, the Minister of Environment and Climate Change launched the EA review and consultation on draft Terms of Reference for an Expert Panel We are here to act in the best interest of Canadians and restore their trust in environmental assessments. We will do this by working together to protect our environment. That s how we will grow our economy for a clean, sustainable future for Canadians and their families. - Minister McKenna Goal The goal of the review is to ensure that environmental assessment processes are robust, science/fact/ evidence based, protect our environment, respect the rights of Indigenous people, and support economic growth.

6 Expert Panel Doug Johanne Reneé Rod Northey Horswill Gélinas Chair Pelletier

7 CEAA 2012 Phases Planning Determine whether an EA is needed What issues should be studied type of assessment required Conducting Canadian Nuclear Safety Commission (CNSC) National Energy Board (NEB) Canadian Environmental Assessment Agency (CEAA) Decision and Follow Up decision on whether project likely to have significant adverse effect cabinet makes final decision if justified

8 ENVIRONMENTAL ASSESSMENT PROCESS MANAGED BY THE AGENCY Aboriginal consultation is integrated into the EA to the extent possible Government timeline of 365 days* PD Review (10 days) Proponent submits PD Agency accepts PD or Agency requests more information from proponent Project Description EA: Environmental Assessment EIS: Environmental Impact Statement PD: Project Description NOC: Notice of Commencement Determination of EA (up to 45 days) 20-day public comment period on PD Agency determines whether EA is required Agency issues Notice of Determination Agency discusses cooperation with province No EA Proceed with other federal decisions or approvals, if required Yes to EA EA Commencement Agency issues NOC Public comment period on draft EIS Guidelines Minister refers project to Review Panel if warranted (within 60 days of NOC) Agency issues final EIS Guidelines to proponent : Public Participation Opportunity : Deliverable * With possibility of extension Timelines do not include time required by the proponent to provide information May EA by the Agency EIS Guidelines EA by Review Panel Analysis Proponent submits EIS Government reviews EIS public comment period Proponent supplements EIS as needed Analysis Proponent submits EIS Government reviews EIS public comment period Proponent supplements EIS as needed Public comment period on Panel Terms of Reference EA Report Agency prepares draft EA Report Public comment period on draft EA Report Agency finalizes EA Report Review by Panel Minister appoints the Panel Panel reviews EIS to determine sufficiency public comment period if needed Panel holds public hearing Panel submits EA Report to the Minister Government timeline of 24 months* EA Decision Minister determines significance of environmental effects Cabinet decides if significant effects, if any, are justified Minister issues EA Decision Statement with enforceable conditions EIS EA Report EA Decision Statement EIS EA Report EA Decision Minister determines significance of environmental effects Cabinet decides if significant effects, if any, are justified Minister issues EA Decision Statement with enforceable conditions EA Decision Statement Follow-up and Enforcement

9 Duty to Consult Canada consults with Indigenous peoples for many reasons: o o o legal obligations constitutional duty to consult policy and good governance Government of Canada has a legal duty to consult with Indigenous Peoples about potential impacts to their Aboriginal and Treaty Rights from federal decisions, including EA decisions Consultation is claimed to be integrated into the EA process to the extent possible and is coordinated by the Responsible Authority Funding Inadequate for staff, resources, independent studies and research initiatives ($10,5000 for CEAA EAs, $20,000 for Review Panel/Joint Review Panel EAs)

10 Decision Making Responsible Authority Decision Maker: Significance No significant effects Significant effects CNSC CNSC Project proceeds Cabinet decides NEB Cabinet Project proceeds Cabinet decides CEAA Minister of Environment and Climate Change Project proceeds Cabinet decides *Expert Panel Public Workshop Materials

11 Canada s Commitments No relationship is more important to me and to Canada than the one with Indigenous peoples. It is time for a renewed, nation-to-nation relationship with Indigenous peoples based on recognition of rights, respect, cooperation and partnership. Justin Trudeau Prime Minister [Canada is] now a full supporter of the Declaration without qualification. We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution. Carolyn Bennett Minister of INAC

12 MNC Goals The goals of the environmental assessment should include: 1. Ensuring access to and maintenance of those traditional lifestyles and cultural practices of Indigenous peoples understood internationally to embody the unique perspectives of life itself, the core expression of the spiritual, cultural and personal relationship between human societies and the natural world and the languages, traditions and practices which reflect a way of life and a knowledge system that is ultimately sustainable and in keeping with the maintenance of the natural world; 2. Promotion of sustainable development 3. Promotion of respect for human and Indigenous rights and values beyond economic values and ensure inclusion of traditional knowledge in any assessment of environmental impact

13 Multi-Interest Advisory Committee o MNC o Canadian Environmental Network o AFN o West Coast Environmental Law (WCEL), BC o ITK o Mining Watch Canada, ON o Centre québécois du droit de l environnement o Canadian Association of Petroleum Producers (CQDE), QC o Canadian Energy Pipeline Association o Green Action Centre, MB o Canadian Electricity Association o Environmental Coalition of Prince Edward o Canadian Hydropower Association Island (ECO-PEI), PEI o Canadian Nuclear Association o Academia (University of Waterloo) o Mining Association of Canada o Canadian Construction Association o Environment and Climate Change Canada o Fisheries and Oceans Canada o Transport Canada o Natural Resources Canada o Indigenous and Northern Affairs Canada o Health Canada

14 1. Overarching Layers of Engagement Different layers of engagement are essential to achieving the objectives of reconciliation, partnership, respect for Aboriginal and treaty rights, and implementation of the UNDRIP Nation to Nation Government to Government Engagement to reach accommodation Individual engagement

15 2. Federal Education on Métis Governance and Culture All federal (and where applicable provincial/territorial) governments, including their agencies, departments, relevant authorities, commissions, boards and other bodies, need a strong understanding of Indigenous Nations, including familiarity with each distinct Indigenous Nation s government(s), laws and procedures In order for the reconciliation processes contemplated by the Mandate to have meaning and applicability, there must be a common understanding of Métis representation and identity within the meaning of Section 35 and related tenets of existing Canadian law regarding Métis Canada must immediately establish a program(s) to educate federal employees involved with Aboriginalrelated matters about the history of Métis, Métis contributions to Canada, existing federal initiatives relating to Métis, Métis culture and traditions and Canadian law relating to Métis and their Section 35 rights

16 3. Negotiated Agreements Respected Where cooperative arrangements on EA matters have been established in modern treaties, land claims agreements, and/or self-government agreements, they should be fully implemented and respected, and not interfered with by imposing other federal EA legislation or additional processes

17 4. Government Prioritize Agreement prior to EA needs Where cooperative arrangements or Indigenous Nation jurisdiction on EA matters have not yet been established or recognized, the federal government should prioritize meaningful and respectful engagement with Indigenous Nations to reach such arrangements with the intention of achieving agreement in advance of EA needs that may arise. Engagement should occur through each Indigenous Nation s distinct governance structure, including through National Representatives of Indigenous Governments and Organizations where appropriate.

18 5. Canada partnership for protection of heritage sites and land use planning The federal government should partner with and support Indigenous Nations, coordinating with provinces/ territories as applicable, to assist Indigenous Nations in filling gaps in the protection of Indigenous heritage sites and in land use planning.

19 6. Proponent Relationships Following federal government leadership, proponents should be encouraged to create and continue to cultivate relationships with Indigenous governments well before EAs are scheduled

20 7. EA processes as relationship building EA processes should shift towards relationship-building rather than conflict-management

21 8. Shared decision-making As an interim measure for Indigenous Nations that have not fully implemented their EA jurisdiction or their jurisdiction is not yet recognized, the federal government should share decision-making with Indigenous governments as a means to achieve free, prior and informed consent and implement the Declaration in accordance with the Canadian constitution

22 9. Regional/Strategic EAs and Indigenous triggers The use of Regional/Strategic EA processes can, if done well, assist in reconciliation, improving relationships with Indigenous Nations and their governments and strengthen the protection of aboriginal and treaty rights. Triggers to initiate SEA/REA should include the request of one or more Indigenous governments to the Minister of Environment and Climate Change (Canada) and/or the Minister of Indigenous and Northern Affairs (Canada).

23 10. Consultation Consultation and accommodation will not likely be fulfilled by an EA alone.

24 11. Capacity Capacity, including appropriate capacity funding, is essential to enable meaningful consultation and Indigenous participation in EA

25 12. Traditional Knowledge Indigenous traditional knowledge should be integrated and respected as an essential element throughout the EA process

26 13. National Advisory Council on EA Develop a national advisory council with Indigenous representatives

27 Review of Fish Habitat Protection

28 Review of Changes to Fisheries Act On June 20, 2016, the Minister of Fisheries, Oceans and the Canadian Coast Guard asked Parliament s Standing Committee on Fisheries and Oceans to examine recent changes to the Fisheries Act Canada s fisheries need the proper safeguards in the right places. I want to hear from all Canadians, including scientists, environmentalists and Indigenous peoples, as well as our industry partners and small business owners. Together, we can find the best path forward to protect sustainable aquatic ecosystems in Canada. - Minister LeBlanc Goal The goal of the review is to review the previous government s changes to the Fisheries Act, restore lost protections and incorporate modern safeguards.

29 Context Early environmental legislation enacted in 1868 (one year after Confederation) habitat protection was added in late 1970 s, including a prohibition against harmful alteration, disruption or destruction of fish habitat No habitat, no fish DFO slogan 2012 amendment removed important protections without consultation

30 Scope of Review 2012/2013 Changes the scope of application of the Fisheries Act, specifically the serious harm to fish prohibition how the prohibition is implemented to protect fish and fish habitat definitions of serious harm to fish and commercial, recreational and Aboriginal fisheries the use of regulatory authorities under the Fisheries Act, and other related provisions of the Act the capacity of Fisheries and Oceans Canada to deliver on fish and fish habitat protection through project review, monitoring and enforcement

31 Scope of Review cont. Key Elements of fisheries protection provisions: Section 35: Serious Harm to Fish prohibition Definitions in Section 2 Sections 20, 21: Fish passage, flow and obstructions Section 6: Factors to consider in decision-making Section 6.1: Purpose Parts of Section 37: particularly Ecologically Significant Areas Sections 38 to 40: Compliance and Protection Section 43: Regulatory Authorities Policy and program areas related to the Fisheries Protection Program

32 1. Definitions under s. 2 Serious harm to fish: the death of fish or any permanent alteration to, or destruction of, fish habitat. Commercial: in relation to a fishery, means that fish is harvested under the authority of a licence for the purpose of sale, trade or barter. Recreational: in relation to a fishery, means that fish is harvested under the authority of a licence for personal use of the fish or for sport. Aboriginal: in relation to a fishery, means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial (FSC) purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization.

33 1. Definitions cont. Serious harm to fish: the death of fish or any permanent alteration to, or destruction of, fish habitat harmful alteration, disruption or destruction of fish habitat (HADD) was formerly the definition of serious harm to fish o disruption to fish habitat is no longer an offence alteration or destruction currently needs to be permanent to violate the Act no protection of fish species that are not harvested (small streams and wetlands) recommend return to HADD definition

34 1. Definitions cont. Commercial: in relation to a fishery, means that fish is harvested under the authority of a licence for the purpose of sale, trade or barter. no protection for fish harvested for Métis Nation commercial fisheries that operate without a licence all definitions require active harvesting particularly problematic for Métis Nation due to historic disruption in harvesting activities

35 1. Definitions cont. Aboriginal: in relation to a fishery, means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial (FSC) purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization. definition does not recognize Métis Nation commercial fishing all definitions require active harvesting particularly problematic for Métis Nation due to historic disruption in harvesting activities and cyclical use of harvesting recommend amendment to definitions to recognize Métis Nation commercial fishing and protection of areas without an active fishery recommend restoring habitat protection to all native fish, not just those part of or deemed to support an active fishery

36 2. Regulatory Powers Minister can authorize a work, undertaking, activity, deleterious substances and exempt water bodies from protections that could result in serious harm to fish DFO has a duty to consult prior to the decision to issue an Authorization This reduces the ability of DFO to provide oversight for projects that may impact on fish habitat Recommend that the Minister s regulatory powers be subject to the free, prior and informed consent of the Métis Nation

37 Review of the Navigation Protection Act

38 Review of Navigation Protection Act On June 20, 2016, the Minister of Fisheries, Oceans and the Canadian Coast Guard, along with the Minister of Transport, asked Parliament s Standing Committee on Transport, Infrastructure and Communities to examine recent changes to the Navigable Waters Protection Act Goal The goal of the review is to review the previous government s changes to the Navigable Waters Protection Act, restore lost protections and incorporate modern safeguards.

39 Scope of Review focus of review is on: o the environmental and sector impacts of the changes in 2014 o the impact of the changes on the long-term viability of commercial and recreational utilization of Canada s waterway o the cost, practicality and effectiveness of the changes when gauged against the environmental, business and recreational function of Canada s waterways o the efficiency of the changes when viewed holistically, from a user perspective, with other Acts that collectively impact upon users

40 Context Navigation or Navigable Waters the public right of navigation the right to free and unobstructed passage over navigable waters is protected under the common law and can only be modified by federal statute Navigable Waters Protection Act allowed interference with public right or navigation and applied to all navigable waters in Canada intent of legislation was to balance the public right to navigate with the need to construct works (eg. bridges and dams) The Navigable Waters Protection Act regulated: construction, placement, alteration, repair and rebuilding of works in, on, over, under, through or across navigable waters obstructions to navigation depositing or throwing of materials such as gravel and mine tailings that risked impacting navigation over time, the Act was applied to almost all waters, including ditches, brooks and streams

41 Regulation of Obstructions obstructions are defined as: o a vessel, or part of one, that is wrecked, sunk, partially sunk, lying ashore or grounded, or any thing, that obstructs or impedes navigation or renders it more difficult or dangerous, but does not include a thing of natural origin unless a person causes the thing of natural origin to obstruct or impede navigation or to render it more difficult or dangerous Minister has authority to address obstructions on a scheduled waterway Minister has authority to address vessels on Federal Property on scheduled or non-scheduled waters Minister may authorize a person to take a vessel that has been abandoned in scheduled waters

42 Exemptions to Prohibitions Throwing, Depositing and Dewatering Governor in Council has the authority to exempt navigable waters from the application of prohibitions, but it requires an Order in Council o throwing or depositing of material liable to interfere with navigation continues to be a prohibited activity under the Act for all navigable waters (sections 21 and 22) o a new prohibition was introduced in 2012 against dewatering any navigable water (section 23) prohibitions apply to all navigable waters, not just those listed on the Schedule to determine whether a waterway is navigable, Transport Canada operationally applies the aqueous highway test rather than the canoe test

43 1. Eliminate Scheduled Waters The public right of navigation must necessarily include the protection of navigable waters All navigable waters deserve legal protections regardless of size and protection should be the default position

44 2. Expand Local Authority to Include Métis Nation Alternatively, if the Minister is unwilling to eliminate the Schedule, the Métis Nation must be recognized as a Local Authority such that it can add waterways to the Schedule This is a burdensome approach but the Métis Nation must be prepared if the Minister is not open to eliminating the scheduled waters

45 3. Coordination with EA review and Fish Habitat review It is critical that these legislative processes work in a complimentary way to ensure protection of navigable waters and the environment Substantial interference with navigable waters should trigger an EA Metis Nation lead role in monitoring and assessment

46 National Energy Board Modernization

47 NEB Modernization On January 16, 2017, the Minister of Natural Resources announced the beginning of work by the Expert Panel to modernize the NEB. Our government believes we must develop our resources and get them to market in an environmentally-responsible way, while creating jobs for the middle class. This requires a regulatory process that has the confidence of Canadians. The Expert Panel will offer many opportunities for Canadians to provide input on the modernization of the NEB. - Minister Carr Goal The goal of the review is to modernize the NEB s structure, role and mandate to position the NEB as a modern, efficient and effective energy regulator and regain public trust.

48 Expert Panel Hélène Gary David Wendy Brenda Lauzon Merasty Besner Grant John Kenny Co-Chair Co-Chair

49 Scope of Review Specifically, the NEB Modernization review will focus on: Governance and structure Mandate and future opportunities Decision-making roles, including for major projects Compliance, enforcement, and ongoing monitoring Engagement with Indigenous peoples Public participation

50 Questions to be Answered for Panel What are the positive and negative aspects of the approach the Government of Canada has taken in recent years to engage and consult Indigenous groups on projects regulated by the NEB?

51 Questions cont. How can Indigenous traditional knowledge and information be further integrated into the NEB application and hearing process? Are there potential constraints to this integration?

52 Questions cont. How can Canada enhance its approach to Indigenous engagement and consultation to inform decision-making on NEB-regulated projects?

53 Questions cont. How the Government s approach to engaging and consulting Indigenous groups on NEB regulated projects supports the Government of Canada s goal of renewing nation-to-nation relationships with Indigenous Peoples and moving towards reconciliation?

54 Questions cont. How should the Government best consider and address the principles outlined in the UNDRIP when undertaking efforts to modernize the NEB?

55 Questions cont. What could be done to enhance the involvement of Indigenous peoples in the full life cycle of NEB-regulated projects? eg. ongoing monitoring of the operation of existing projects economic development opportunities/participation other roles?

56 Decision Making Responsible Authority Decision Maker: Significance No significant effects Significant effects CNSC CNSC Project proceeds Cabinet decides NEB Cabinet Project proceeds Cabinet decides CEAA Minister of Environment and Climate Change Project proceeds Cabinet decides *Expert Panel Public Workshop Materials

57 United Nations Declaration on the Rights of Indigenous Peoples Implementing free and prior informed consent: 32(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. 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

58 UNDRIP cont. Decision-making: 18 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.

59 UNDRIP cont. Métis Rights and Title: 26 (1)Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. (2) Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. (3) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

60 1. Governance and Mandate Deference for established Métis Nation jurisdiction and processes on EA and consultation Where no established processes, Métis Nation should have direct involvement in decision making in EAs Modify the Act to explicitly recognize a link between energy regulation and climate objectives and coordination between commitments in other legislation Métis Nation representation on National Energy Board, including regional/governing Member representation Regional planning initiatives that consider cumulative effects, upstream and downstream effects need to be included in any project assessment NEB as regulator only, EA done by CEAA jointly with Métis Nation or by Métis Nation EA body clear rules regarding transparency, conflict of interest and enforcement

61 2. Decision Making Roles co-decision making between NEB and Métis Nation where no Metis Nation authority traditional knowledge is given equal and due weight by decision-makers and all NEB processes project needs to have potential for rejection

62 3. Legislative Tools for Lifecycle Regulation NEB energy forecasting mandate needs expansion to include matters beyond economics such as: s. 35 and UNDRIP climate change mandate and obligations Decision-making needs clear articulation of rationale and be evidenced-based Metis Nation lead role in monitoring and assessment

63 4. Métis Nation Engagement Consultation needs to be broader and consistent with our governance structures and processes need to be articulated through legislation or, preferably, through negotiated processes with Métis Nation governments Consultation should be part of formal mandate of NEB Adequate capacity for Métis Nation engagement including development of Métis Nation data and expertise Legislated requirements for approval by Band Councils respecting reserve lands, similar provisions for Métis Nation traditional territories Métis Nation led follow up and monitoring in traditional territories Expanded and discretionary extended timelines for Métis Nation engagement

64 Thank You