Ministry f the Envirnment and Climate Change Indigenus Cnsultatin in Envirnmental Assessment Prcesses Ontari Assciatin fr Impact Assessment Octber 17, 2017
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
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
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
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
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) (email: 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
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
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
THANK YOU QUESTIONS? Peter Brwn Indigenus Cnsultatin Advisr Ministry f the Envirnment and Climate Change peter.brwn@ntari.ca 416-326-9608 9