Indigenous Consultation in Environmental Assessment Processes

Transcription

1 Ministry f the Envirnment and Climate Change Indigenus Cnsultatin in Envirnmental Assessment Prcesses Ontari Assciatin fr Impact Assessment Octber 17, 2017

2 Why cnsult with Indigenus cmmunities during an EA prcess? Cmmn law duty t cnsult Abriginal cmmunities (Sectin 35 f the Cnstitutin Act, 1982) rights Statutry requirements (e.g., Sectins 5.1, 13.1 and 14(2) f the Ontari Envirnmental Assessment Act) interests Agreements, prtcls, relatinship-building, etc. The prvince has a duty t cnsult when it cntemplates an actin r decisin that culd adversely affect an established r credibly asserted Abriginal r treaty right. The Supreme Curt f Canada (SCC) has said that prcedural aspects f cnsultatin can be delegated t prpnents, while substantive aspects cannt be delegated. 2

3 Prcedural aspects f cnsultatin Prcedural aspects f cnsultatin typically delegated t prject prpnents invlve ntifying and cnsulting directly with cmmunities by: sharing infrmatin with cmmunities early in the prcess t assist them in identifying any ptential adverse impacts n Abriginal r treaty rights cnsulting with cmmunities t identify hw ptential adverse impacts n rights culd be avided, managed and/r mitigated dcumenting cnsultatin effrts in the EA submissin s that the Crwn can assess their sufficiency 3

4 Substantive aspects f cnsultatin Substantive aspects that cannt be delegated include: assessing whether there is a duty t cnsult identifying Indigenus cmmunities t be cnsulted n a rights basis prviding versight, as required assessing whether accmmdatin is necessary determining whether cnsultatin, and accmmdatin if required, are sufficient t fulfill the Crwn s duty Ultimately the duty t cnsult rests with the Crwn, and the prvince must be satisfied that its duty has been fulfilled prir t making a decisin n an EA. 4

5 Indigenus cmmunities rle Indigenus cmmunities rle includes: prviding infrmatin n ptential impacts t Abriginal and treaty rights identifying if capacity supprt is needed respnding t pprtunities t cmment respnding t prpnent s respnses t indicate if cncerns have been addressed All parties are expected t act in gd faith. 5

6 Getting a list f Indigenus cmmunities fr EA cnsultatin Mst Class/Streamlined EAs: Reginal Envirnmental Assessment Crdinatr (REAC) will respnd t Ntice f Cmmencement with a list f cmmunities t be cnsulted Individual EA: Request a list frm yur assigned Prject Officer r frm the Directr f Envirnmental Apprvals Branch (EAB) ( eaasibgen@ntari.ca, indicate ptential duty t cnsult ) Als ntify Directr f EAB: if prject culd adversely affect an Abriginal r treaty right if cnsultatin stalls if a Part II Order/Elevatin Request is anticipated 6

7 Paying fr cnsultatin-related csts EA prpnents are expected t pay reasnable csts t enable a cmmunity t participate in an EA prcess: plain language r translated materials technical supprt, 3 rd party review participatin in field prgrams, Indigenus knwledge studies, wrkshps and ther meetings, etc. Reasnableness depends n the scpe f the prject, the nature f the rights and the prject s ptential impacts n thse rights. 7

8 MOECC s expectatins Meaningful cnsultatin is nt abut the number f letters yu mailed r meetings yu had (r attempted), but the substance f the dialgue. Beynd meeting the basic requirements, the mst imprtant factr cnsidered in ur review f a cnsultatin prgram is hw issues (including questins, cmments and cncerns) are addressed. This des nt mean what sectin f the reprt addresses the tpic, but actually hw the issue changed r infrmed the prject, mitigatin measures, mnitring, fllw-up, results f the EA, etc. A summary f issues raised, by cmmunity, and hw they have been addressed, and a detailed recrd f cnsultatin, are expected fr mst EAs. The recrd shuld als shw hw the prpnent has fllwed-up with cmmunities t cnfirm issues have been addressed. 8

9 THANK YOU QUESTIONS? Peter Brwn Indigenus Cnsultatin Advisr Ministry f the Envirnment and Climate Change peter.brwn@ntari.ca