In the past, Indigenous communities were largely excluded from major projects on their lands. But over the years, successful demands and court actions for collaboration and compensation from government and industry have changed the view of First Nations participation to an imperative rather than an impediment to development.
Passed into law in 2019, the federal Impact Assessment Act enables First Nations to become more involved in the decision-making process for proposed resource-extraction projects in their territories. Still, it is challenging to understand how to navigate these opportunities. A new technical guide and accompanying video series from the First Nations Major Projects Coalition (FNMPC) intends to simplify this engagement.
“If you don’t build bridges to those opportunities, are those real opportunities at all?” asked Trefor Smith, a regulatory consultant for the FNMPC. “Until there is real co-management of resources in the territory, you’re still going to have remnants of a colonial system. This new act doesn’t change that. The intention of the guide is to advocate for the most advantageous implementation from an Indigenous point of view.”
As it’s too early to determine how the new legislation will be implemented, the FNMPC is encouraging nations to become engaged wherever there are potential opportunities while identifying remaining ambiguity in the act’s wording. For instance, it’s still unclear who can become involved in an Impact Assessment Agency of Canada (IAA) process in terms of jurisdiction, authority and governance.
“Where there was opportunity for First Nations to get involved in, each of the phases was never made clear,” asserted FNMPC’s director of operations, Angel Ransom. “Providing space for some pre-planning to occur before a process is triggered helps address some of the initial concerns around the tight timelines. We’ve made it clearer where Indigenous nations can be involved as a true partner with better informed decisions.”
Founded in British Columbia five years ago, the FNMPC has about 60 First Nations members, largely in Western Canada. Before joining the coalition, Ransom was a “one-woman show”, striving to understand the long-term implications of five liquefied natural gas pipeline proposals simultaneously affecting her Nak’azdli Whut’en community.
Ransom says the coalition allows for Indigenous leadership from communities faced with “the chaos” that these projects can bring. “We’ve proven that working together gets Indigenous nations further ahead.”
The new guide provides key steps for effective involvement in impact assessment processes. It provides helpful charts to demonstrate potential entry points at various stages. The eight-part video series offers a more concise version of the 145-page document, including emotional testimonies from Indigenous leaders about the consequences of unchecked development.
While environmental assessments have been a required planning tool in Canada for over 40 years, Indigenous perspectives have generally been relegated to the background. The previous act adopted by the Harper government in 2012 was particularly maligned for eliminating environmental protection.
The new legislation has drawn criticism for exempting many projects from review and giving the new federal agency broad discretionary powers. Still, Trefor Smith notes that there is now a mandatory requirement for considering Indigenous knowledge and new openings for Indigenous-led studies and impact assessments.
The biggest change is the compulsory 180-day early planning phase, when the project proponent and agency must engage with Indigenous nations for input on the project design. The FNMPC is analyzing governance structures and successful examples of independent approaches. For example, the Squamish First Nation recently undertook their own impact assessment of an LNG project in their territory, providing recommendations that the company agreed to.
“Communities where modern treaties were signed have stronger levers for Indigenous-led assessment processes,” Smith affirmed. “But many have to be figured out through other means.”
Other aspects of the act grant assessment authority to self-governing First Nations, though not to the extent achieved by the Cree of Eeyou Istchee in the James Bay and Northern Quebec Agreement.
“This new act is very interesting in terms of more upstream involvement for First Nations across Canada in the planning of impact assessment,” said Kelly LeBlanc, environmental and social assessment coordinator for the Cree Nation Government. “There will be changes for other First Nations but because of Cree treaty rights, we always ensure any new law will be structured to accommodate this special context of project proposals in the territory.”
Niskamoon environment director Marc Dunn agreed, praising the foresight of JBNQA negotiators to establish the first environmental and social assessment process in Canada, while securing Cree representation on joint environmental boards. The Impact Assessment Act provides other First Nations without these treaty rights additional support within the system.
“I’m unbelievably impressed by what the Crees foresaw and negotiated 45 years ago,” Dunn said. “The bar is so high with the JBNQA that legislation still seems to be catching up.”
The Crees recent victory against Strateco Resources’ uranium project demonstrates the power of the JBNQA. Two new lithium mine projects in Eeyou Istchee are currently under review by the Impact Assessment Agency, which could provide a test for the effectiveness of the new federal law – though the JBNQA will still be the final legal threshold.
“The thresholds haven’t changed, so a new metal mine project in Eeyou Istchee would trigger Section 22 of the JBNQA but not the IAA,” LeBlanc explained. “Every time there’s a legislative change, the CNG ensures there will still be special status for the Cree through consultation and representation, to make sure it respects the spirit of the JBNQA.”