ENVIRONMENTAL ASSESSMENT AND ABORIGINAL LANDS AND PEOPLES NOVEMBER 5, 2012

1. ENVIRONMENTAL ASSESSMENT AND ABORIGINAL LANDS AND PEOPLES NOVEMBER 5, 2012

2. Overview • Historical Overview of Treaties • Modern Treaties (Claims Agreements) • Land Claims EA Regimes after JBNQA • Inuvialuit Final Agreement • Dene First Nations Agreements (MVRMA) • Yukon First Nations Agreement (YESSA) • Application of CEAA and CEAA 2012

3. First Nations Treaties

4. First Nations Treaties • Royal Proclamation of 1763 • Friendship treaties • Southern Ontario/Robinson treaties • Numbered treaties • Most purported to surrender aboriginal title • Established small land reserves • Provided harvesting rights to unoccupied Crown Lands • Governance by Indian bands under Indian Act (minor role managing natural resources, environment)

5. Environmental Assessment and Numbered Treaties • S.35 Constitution Act protection of existing aboriginal and treaty rights • Treaty 8 protection of harvesting rights on unoccupied Crown lands • Constitutional duty to consult and accommodate arises when knowledge, actual or constructive, by Crown of a potential Aboriginal claim or right, contemplated Crown conduct and potential that contemplated conduct may adversely affect Aboriginal right or claim (Haida Nation - Supreme Court)

6. Environmental Assessment and Numbered Treaties • CEAA EAs have been key vehicle for consulting First Nations on contemplated Crown conduct (approval of developments) • Athabasca Chipewyan First Nation files constitutional challenge of Jackpine Expansion at Joint Panel (Oct.1 2012) • ACFN argues breach of Treaty 8 rights, breach of Crown consultation obligations • Issue: is Panel appropriate forum to decide on constitutional issues? Panel says no

7. Environmental Assessment and Numbered Treaties • What issues arise with respect to CEAA 2012 with respect to meeting Crown consultation obligations? • Does CEAA 2012 ss. 8 -10 screening process potentially breach Crown consultation obligations?

8. Modern Comprehensive Claims

9. Comprehensive Claims Agreements • Modern era of aboriginal claims settlement dates from 1973 Canada policy • Comprehensive vs. specific claims • Comprehensive claims based on assertion of continuing Aboriginal rights and/or title to lands and natural resources • Achieve certainty of land tenure through surrender of title to Crown (recent approaches differ)

10. Comprehensive Claims Agreements • Agreements provide rights and benefits (title to some land, rights to other lands, financial benefits, joint management regimes for resources • Joint management (co-management) regimes (wildlife, water, land use planning and management, environmental assessment)

11. James Bay and Northern Quebec Agreement (JBNQA) and EA • Canada, Quebec, Cree, Inuit signed JBNQA in 1975 • JBNQA paramount over all other laws of general application • Established governance framework for social, economic development, environmental protection • Environmental assessment process for Cree traditional territory – s. 22

12. James Bay and Northern Quebec Agreement (JBNQA) and EA • Separate process for federal or provincial assessment of projects depending on constitutional jurisdiction within which project falls • But SCC in Moses decides CEAA EA also required; Fisheries Act authorization required, triggers CEAA EA; Duplication? • Revisions to Fisheries Act 2012 relevant? • Implications CEAA 2012?

13. Environmental Assessment under MVRMA • MVRMA enacted in 1998 following completion of land claims agreements with Gwich’in, Sahtu Dene, later Tlicho Dene • Mackenzie Valley Environmental Impact Review Board - co-management EA board • Seven or more members appointed by Minister, half (excluding chair) nominated by aboriginal groups, four by governments, chair nominated by Board s. 112

14. Purposes • Establish Review Board as main instrument for EA in Mackenzie Valley • Ensure environmental impact of developments carefully considered before actions taken • Ensure concerns of aboriginal people and general public are taken into account s. 114

15. Guiding Principles • Timely and expeditious • Have regard to: • protection of environment from significant adverse impacts of developments • protection of social, cultural and economic well-being of residents and communities • Importance of conservation to well-being and way of life of aboriginal people s. 115

16. Preliminary Screening • Applies to proposed developments requiring permit by Mackenzie Valley Land and Water Board or other regulator s. 124 • Quick review of application to determine if project might have significant adverse impacts on environment or be of public concern s. 125 • If yes, refer for EA by MVRMB • If no, issue permits

17. Environmental Assessment • EA by MVRMB a more thorough study to decide if development likely to have significant adverse impacts on environment, cause public concern s. 126 • If yes, MVRMB may recommend Minister issue permit(s), issue permits subject to mitigation measures, or reject s. 128 • Alternatively, MVRMB or Minister(s) may order panel review s.129, 130

18. Environmental Impact Review • Review conducted by an independent panel, consisting MVRMB and non-MVRMB Board members • Review provides more focused study of issues raised during EA s.132 • Review panel issues report with recommendations to federal Minister, responsible Ministers, regulatory agencies for decision s. 136, 137

19. Application of CEAA 2012 • Minister may refer a project to a panel review under CEAA 2012 where in national interest s. 130 • Otherwise CEAA 2012 does not apply in Mackenzie Valley s.116

20. Yukon Environmental and Socio-economic Assessment Act Purposes • Provide a comprehensive, neutrally conducted assessment process • Require consideration of environmental, socio-economic effects before projects undertaken • Ensure projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend s. 5

21. Trends in Aboriginal Claims EA • EA regimes co-managed with aboriginal communities • Assessing sustainability, nor just environmental effects • CEAA doesn’t apply except for large, transboundary projects

22. Application of CEAA 2012 • Minister may refer a project to a panel review under CEAA 2012 s. 62 • Otherwise CEAA 2012 does not apply in Yukon s. 6

23. CEAA 2012 Application to Aboriginal Lands/People • One purpose of CEAA 2012 to promote communication and with aboriginal peoples with respect to EA s.4.(d) • CEA Agency has similarly stated object s. 15.(g) • CEAA applied to virtually all federal decisions relevant to First Nations; CEAA 2012 doesn’t—potential gap in Crown consultation coverage?

24. CEAA 2012 Application to Aboriginal Lands/People • CEAA 2012 has purpose to promote communication/cooperation with aboriginal peoples with respect to EA s.4.(d) • CEA Agency has similarly stated object s. 15.(g) • CEAA 2012 applied to virtually all federal decisions relevant to First Nations; CEAA 2012 doesn’t—potential gap in coverage in relationship to Crown consultation?

25. CEAA 2012 Application to Aboriginal Lands/People • Are changes to “environmental effects” definition important? • What if designated projects screened out of CEAA 2012 EA process? How will Crown meet its Crown consultation duties? • S.19 allows consideration of community/ Aboriginal traditional knowledge in EA