ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS

AGREEMENTS

MARCH 21, 2013

Overview

• Land Claims EA Regimes

• Grand Council of the Cree (JBNQA)

• Dene First Nations Agreements (MVRMA)

• Yukon First Nations Agreement (YESSA)

• Application of CEAA 2012

Modern Comprehensive Claims

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

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)

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. 22,23

James Bay and Northern Quebec Agreement (JBNQA) and EA

• Cree agreed to construction of La Grande project

• 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?

Great Whale Project

• Methylmercury contamination of reservoirs and fish was key unanticipated impact of La Grande project

• Great Whale proposed in 1986, first major project to be assessed under JBNQA

• 3,060 MW complex of dams, dikes river diversions located north of La Grande

• Projected cost: $48 billion • Impacted Inuit and Cree lands

Great Whale Project

Great Whale Project

• Reservoirs of 3000 sq km, plus 865 sq km flooded land to existing water bodies

• Third large hydro project (Nottaway Broadback Rupert) also announced for region south of La Grande

• Cree concerns: fish, beluga whales, polar bears, threatened freshwater seals, aquatic balance along Hudson Bay coast, ice regimes in rivers and ocean, traplines

Great Whale Project

• In 1990, before EA started, Hydro-Quebec called for tenders to construct access road

• Federal government states it has no authority over road construction

• In 1991, Cree apply for mandamus compelling federal government to comply with federal environmental and social impact assessment and review procedures (ss. 22, 23 of JBNQA)

Great Whale Project

• Canada/Quebec argue that joint EARP study underway (without Cree), results to JBNQA provincial administrator (thus eliminating federal review under s.22)

• Federal court said this could happen but only if it did not prejudice Cree rights under JBNQA (which it did)

• Mandamus ordered, upheld on appeal

• Cree Regional Authority v. AG Quebec (1991)

Great Whale Project

• Panel review established with Canada, Quebec, Cree and Inuit representation

• Scoping hearings held

• Panel did not complete its work as a result of political events

Great Whale Project • Cree campaign to oppose Great Whale River

Project wins in 1992 when New York State withdrew from a multi-billion dollar power purchasing agreement

• Quebec/Hydro-Québec suspend Great Whale Project indefinitely in 1994

• Quebec and Cree agree in 2002 on new relationship and on environmental rules for 3 new power stations on Eastmain River, diversion of Rupert River

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

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

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

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

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

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

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

• MVRMB did EA of Mackenzie Gas Project prior to Joint Panel Review

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

Trends in Aboriginal Claims EA

• EA regimes co-managed with aboriginal communities

• Assessing sustainability, nor just environmental effects

• CEAA 2012 doesn’t apply except for large, transboundary projects in Mackenzie Valley, Yukon and Nunavut

• CEAA 2012 limited application in northern Quebec, Inuvialuit region of NWT

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

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?

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