First Nations Consultation in Environmental Assessments

Denying [First Nations] a role within the assessment process is denying it access to an important part of the high-level planning process. Case law makes it clear that involving First Nations at the early stages of high-level planning can be essential to proper consultation.

– Justice Groberman (BC Court of Appeal, 2011)¹⁹⁶

Overview of BC Law

In BC, the government’s role in consulting First Nations in the EA process is informed by whether or not the First Nation has entered into a treaty. The only historic treaties signed in BC are the early Douglas treaties on Vancouver Island and Treaty 8, which extends from Alberta and the Yukon into parts of north-eastern BC. More recently, modern treaties (“final agreements”) have been signed by the Nisga’a First Nation,¹⁹⁷ the Tsawwassen First Nation,¹⁹⁸ the Maa-nulth First Nations,¹⁹⁹ the Yale First Nation,²⁰⁰ and the Tla’amin Nation.²⁰¹

For treaty First Nations, if the treaty requires First Nations’ consent, BC law prescribes that no reviewable project may proceed without that consent.²⁰² This consent requirement is usually only for projects on First Nation Treaty Settlement Land, not for those outside of Treaty Settlement Land within a First Nation’s Territory.  If the treaty requires negotiation between the government and the treaty First Nation, the government may enter into an agreement where:

• a reviewable project is proposed for land specified in a final agreement as land to which notice of a reviewable project is required; and
• the reviewable project may reasonably be expected to adversely affect the treaty lands, residents of those treaty lands or the rights of the treaty First Nations people under the final agreement.

Where these conditions are met, the regulatory authority must: give notice and all relevant information regarding a proposed project to the treaty First Nation; consult with the treaty First Nation; and ensure that the treaty First Nation has an opportunity to participate in the EA.²⁰³

For non-treaty First Nations (the vast majority in BC), the EA Act does not prescribe consultation requirements. Provincial legislation formerly required the EAO to ensure First Nations were invited to be partners in “project committees” established to manage the EA process.  This requirement was removed from the EA Act after the Taku Tlingit First Nation won a series of court cases relating to EAs for mining.  Consultation is still required, however, pursuant to the government’s constitutional and common law ‘duty to consult’ First Nations on matters that may affect their Aboriginal rights (see: Chapter 3: Indigenous Rights, Consultation and Consent).

The degree of consultation required to fulfill this duty is a contentious issue, and First Nations have criticized BC’s lack of legally formalized consultation requirements and its failure to specify the process and scope of the consultation process.²⁰⁴ Generally, First Nations with a “strong” strength of claim are entitled to a greater depth of consultation, whereas those with “weak” claims are afforded less. Strength of claim assessments of First Nations’ rights are prepared by the EAO and submitted to the ministers along with a “consultation report”. First Nations, and others, have criticized this process on the grounds that the EAO lacks the required expertise to prepare the strength of claim assessment report and the reports often contain information that is inadequate, incorrect, or otherwise harmful to First Nations interests.²⁰⁵ As a result, many First Nations have brought court actions to challenge the adequacy of the government’s consultation in the EA process.²⁰⁶

Proponents have also expressed frustration with this ill-defined consultation process.²⁰⁷ In the words of one proponent, “the government and the First Nations often held different ideas about which Nations were impacted by, and therefore should be included in, an EA. This created difficulty for proponents who followed government direction, only to find a Tribal Association or individual Nations demanding to be included very late into an already well-underway process”.²⁰⁸

As mentioned above, under BC’s former EA Act, First Nations formed part of the inter-ministerial project committees, which were established for each project.²⁰⁹ The purpose of these committees was to: provide the regulatory authorities with expertise, advice, analysis and recommendations; and analyze and advise the regulatory authorities about public comments received, the potential effects, and the prevention or mitigation of adverse effects.²¹⁰ The importance of these project committees to the overall EA process was recognized by Chief Justice McLachlin as “the primary engine driving the assessment process”.²¹¹

Under BC’s current EA Act, these project committees have been abolished and replaced with working groups. Although in practice affected First Nations may often be invited to participate in working groups, First Nation participation is no longer required by law. Instead, the EAO Executive Director has the discretion to include First Nations representatives.²¹² Further, even if First Nations form part of the working group their ability to influence decision-making is limited because the working group’s recommendation about whether or not an EA Certificate should be issued is not binding on the Minister.

Policy plays an important role in establishing the scope of consultation in BC’s EA legislation.²¹³ For example, provincial policy recommends that the proponent should “seek to engage with First Nations as early as possible regarding how information should be gathered and what information would be included in the Application on First Nations’ interests, rights and title”.²¹⁴ Provincial policy also states that the draft AIR will be circulated to First Nations for their review and comment.²¹⁵ In addition, provincial policy states that the proponent should include information on the following in the AIR:

• First Nations’ interests;
• identification of accommodation measures (i.e., design considerations, mitigation measures and specific commitments); and
• past and planned consultation activities with First Nations.²¹⁶

Issue

Lack of certainty in process, decision-making authority, and resources fails to ensure meaningful participation of First Nations in the EA process. The Assembly of First Nations has defined “meaningful participation” of First Nations in the EA process as including:²¹⁷

• a role in choosing the appropriate class of EA;
• involvement in research design and implementation;
• involvement in the design and implementation of monitoring programs; and
• decision-making authority concerning whether and under what conditions a project is approved.

Recommended Solutions

Develop separate First Nations consultation protocol and agreements for EA review

[Tags: EA; Indigenous Rights; Duty to Consult]

I think there are much, much larger issues at the table that every First Nation grapples with, and there are limited venues for grappling with those issues and so those issues get brought to the table in the EA… Because there is no other outlet for it.

– Mining industry consultant (2011)²¹⁸

The current EA process has been criticized as the wrong forum for addressing the Crown’s duty to consult First Nations.²¹⁹ Although the use of EAs may be appropriate as the first stage of consultation, they are not adequate alone to address Aboriginal rights.²²⁰ First Nations have therefore requested that consultation be carried out in a way that addresses Aboriginal rights separately from the EA process. ²²¹

This could be accomplished by the development of a general consultation protocol between the provincial government and First Nations leadership councils. Ideally, such a protocol would set out objectives, principles, standards, best practices and general guidelines for the conduct of talks between the parties and for project-specific consultation processes.²²²

One example of separate, parallel consultation processes was provided by the EA process applied to the Ruby Creek molybdenum mine in northwest BC. There, the Taku River Tlingit First Nation (“TRTFN”) persuaded the provincial government to set up a parallel process, separate from the EA process, to consult and deal with accommodation issues. This experience led to a government-to-government consultation process and the development of an accommodation report that contained measures for the provincial government to accommodate the TRTFN interests.²²³ Ideally, such an accommodation agreement would be signed prior to a joint project approval decision being issued.²²⁴

Consult potentially affected First Nations at beginning of EA review process

[Tags: EA; Indigenous Rights; Duty to Consult]

Although BC’s consultation policy recommends early consultation with First Nations, this approach is not enshrined in law. In contrast, other jurisdictions have enacted legal provisions requiring proponents to consult affected Aboriginal peoples before the EA review process even commences. For example, under Yukon law, proponents must consult directly with the Aboriginal peoples whose traditional lands will be affected by a proposed mine. Proof of this consultation must be submitted by the proponents to the EA board before the board will commence the review of the EA. Agreements signed between the proponent and the affected Aboriginal peoples may serve as proof that consultation has taken place.²²⁵

Provide time extensions for EA reviews based on project complexity and First Nations’ consultation needs

[Tags: EA; Indigenous Rights; Duty to Consult]

BC’s strict EA review timelines are often inadequate for First Nations to respond to or to become meaningfully engaged in the EA process.²²⁶ This sentiment was concisely expressed by one mining industry consultant as follows: “what we expect from First Nations is outrageous and the EA process just further exacerbates that entire paradigm”.²²⁷

Other jurisdictions have enacted flexible legal provisions governing EA timelines. In the Yukon, for example, legislated timelines will be extended in accordance with the complexity of the project where the decision-maker is required to consult with Aboriginal peoples.²²⁸ The law further provides that wherever there is a duty to consult, it must be exercised by providing:²²⁹

• notice of the matter in sufficient form and detail to allow the party to prepare its views;
• a reasonable period for the party to prepare its views; and
• an opportunity to present its views to the party having the duty to consult.

Provide adequate financial assistance to First Nations for meaningful participation in EA review

[Tags: EA; Indigenous Rights; Duty to Consult]

The EAO now usually provides some minimal funding for First Nation participation, but usually at levels far from sufficient to enable meaningful participation.                                                                              In my experience, almost all First Nations who participate in an environmental assessment come out the other side in debt.

– Tony Pearse (2009)²³⁰

BC law does not provide First Nations with any assurance of financial assistance to participate in the EA process. Ideally, provincial law should be amended to require the EAO to provide adequate funding or to give it authority to order proponents to provide adequate funding for First Nations.  Currently, provincial policy contemplates providing First Nations with a “limited amount of funding”,²³¹ which is often insufficient to allow meaningful participation of First Nations in the EA process.²³² This lack of a clear requirement that adequate funding be made available to First Nations risks excluding any meaningful participation by First Nations.  Under federal EA law, participant funding may be available to First Nations who have a direct, local interest in the project or who have community knowledge or Aboriginal traditional knowledge relevant to the EA.²³³ However, this is often limited to covering travel and participation expenses and remains insufficient to ensure meaningful participation.

To ensure meaningful participation, many First Nations resource policies require the provision of technical, legal and financial resources prior to EA participation.²³⁴ At minimum, funding should also be made available for:

• Traditional use studies, which provide information about traditional land use by Aboriginal peoples.²³⁵ BC’s provincial policy only encourages proponents to consider funding traditional use studies: there are no mandatory legal requirements to carry out these studies, or that they be conducted by qualified persons.²³⁶
• Translation Services, where community members, elders in particular, have difficulty with English.²³⁷ Funding for translation services should be legally required, where necessary. This is recognized in Manitoba, where the law provides that participant assistance may be granted for translation services.²³⁸
• Capacity Building for the First Nation to meaningfully participate in the EA process, including training and funding for dedicated review staff and outside technical assistance.²³⁹ Proponents acknowledge that many of the challenges they face when trying to engage with First Nations relate to a lack of capacity.²⁴⁰ In the words of one mining industry consultant, current capacity funding is intermittent and does not create sustainable capacity.²⁴¹ Funding should be made available continually rather than only on a project-specific basis as First Nations require capacity building assistance on an ongoing basis.²⁴² The importance of funding permanent staff positions has been recognized by the EAO in the past, as shown in its funding of an EA coordinator position for the Treaty 8 Tribal Association. Although, this approach resulted in several recognized benefits, including improvements in response time and reduced staff turnover, the funding was cut in 2009.²⁴³ This experience highlights the importance of legal provisions mandating ongoing participation funding, rather than temporary policy initiatives, to support First Nation capacity building.