Stakeholder Input

Issue

The Minister is not legally required to take into account the working group’s recommendations, First Nations’ positions, or public opinion in deciding whether to approve an EA and issue an EA Certificate.²⁷⁹

Recommended Solutions

Require public comments to be carefully taken into account when reviewing and issuing decisions on EA applications

[Tags: EA; Public Consultation]

Although BC’s EA law provides various avenues for public participation, and provincial policy requires the EAO to “consider” public comments,²⁸⁰ the reviewing authority is not legally required to take the public’s comments into account in EA decision-making.²⁸¹ Instead, the ministers must only consider “matters that they consider relevant to the public interest in making their decision on the application”.²⁸²

In contrast, BC’s former EA Act clearly required the EAO Executive Director to take into account any public comments received when making a referral to the ministers for a final decision.²⁸³ Similarly, under the CEAA 2012, Ontario law and the Mackenzie Valley Resource Management Act, every EA review must include consideration of any comments received by members of the public.²⁸⁴ In the US, the regulatory authority “shall assess and consider comments both individually and collectively”.²⁸⁵In South Africa, the law requires the regulatory authority to make written recommendations to the Minister of Mineral Resources only after considering any objections that were submitted.²⁸⁶

Require agreement between First Nations and proponent as a pre-requisite for EA approval

[Tags: EA; Indigenous Rights; Impact Benefit Agreement]

Past practices have shown that it is unrealistic to expect that industry, who are understandably concerned primarily with their shareholders and their bottom line, will voluntarily seek to involve First Nations in any meaningful way through employment opportunities, business opportunities and sharing of the financial benefits of the project, unless they are required to do so.

– BC First Nations Energy & Mining Council (2010)²⁸⁷

First Nations have raised concerns that regulatory authorities recommend project approval before they have finalized benefit agreements with proponents. When this occurs, First Nations lose leverage in agreement negotiations. To overcome this problem, the law should prohibit EA approval until benefits agreements are concluded between the proponent and affected First Nations.²⁸⁸ This is recognized in some final agreements signed between government and Aboriginal communities in Northern Canada. For example, under the economic measures provisions of the Champagne & Aishihik First Nations Final Agreement the Yukon government must require that proponents enter into project agreements when a development proposal in Aboriginal traditional territories is filed with the regulatory authority responsible for EAs.²⁸⁹

Chapter 2, Negotiation of Agreements, explores these topics in greater depth.

Involve First Nations in significance determinations in EAs

[Tags: EA; Traditional Knowledge; Indigenous Rights]

Aboriginal people want, need, and have the right to be involved at the stage of environmental assessment when the determination of the significance of environmental effects occurs. They are the best qualified to assess whether or not project-related environmental effects are significant to them.

– Pat Larcombe (2000)²⁹⁰

Significance determinations in EAs should be collaborative processes, in which First Nations perspectives assume a pivotal role.²⁹¹ This is in part due to different perspectives that First Nations may have from mining companies and government officials. For example, First Nations may consider “significance” to mean “any impact to the land and environment that threatens or endangers future generations of people or other species”.²⁹² In addition, a determination of significance may be based on traditional knowledge.²⁹³ To ensure that traditional knowledge is properly considered in significance determinations, First Nations may develop their own criteria against which the adequacy of EAs and the importance and acceptability of predicted project impacts can be measured.²⁹⁴

Under the Mackenzie Valley Resource Management Act, the determination of significance is made by a co-management board – a majority of the board members must be First Nations representatives.²⁹⁵ Similarly, the Final Environmental Assessment Guidelines for the Doris North Project in Nunavut requires that: “the concerned communities, as well as other individuals and organizations, shall be fully consulted in defining impact significance”.²⁹⁶

Under Wyoming law, impacts are identified and assigned importance through a participatory approach with affected parties.²⁹⁷ In Norway, the Indigenous (Sami) Parliament is granted power to issue guidelines for assessing the effect of changes in the use of uncultivated land on Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. These guidelines must then be followed in the assessment of Sami interests.²⁹⁸

Require consideration of traditional knowledge in decision-making

[Tags: EA; Indigenous Rights; Traditional Knowledge]

Traditional knowledge is recognized as contributing a “broader scope of environmental values, practices, and knowledge” to decision-making.²⁹⁹ Although not required by law, BC policy recommends that a description of “traditional ecological or community knowledge” be included in EAs, where available.³⁰⁰ Yukon law goes much further, requiring EAs to give full and fair consideration to both scientific and traditional ecological knowledge.³⁰¹ Traditional knowledge is defined as the “accumulated body of knowledge, observations and understandings about the environment, and about the relationship of living beings with one another and the environment, that is rooted in the traditional way of life of first nations”.³⁰²  Similarly, the Mackenzie Valley Environmental Impact Review Board must, by law, consider both traditional knowledge and scientific information when exercising its powers.³⁰³

For further discussion on the use of traditional knowledge in decision making, see the Traditional Knowledge section in Chapter 3: Indigenous Rights, Consultation and Consent.