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Regulation in an Era of Reconciliation

DATE: March 2, 2021

Over the last two years, two national conversations have been unfolding: reconciliation (as embodied in the ‘Calls to Action’ released by the Truth and Reconciliation Commission) and the federal review of environmental assessment (as embodied in the release of the Expert Panel report). Stratos has been privileged to be involved in several projects that lie at the intersection of these two conversations, trying to understand what regulation in an era of reconciliation could look like. This has included our work to:

  • Convene a meeting of the Deputy Ministers Committee for the Major Projects Management Office, following the release of the Expert Panel report, to discuss its recommendations and potential policy directions
  • Moderate a Pan-Territorial Board Forum, which brings together environmental assessment and land and water boards from across all three territories to discuss common challenges, lessons learned and opportunities to work together
  • Produce a report for the federal government on what co-management regimes in Canada’s North are doing well in terms of managing natural resources, and on opportunities for future improvement (read more here)

To explore these conversations further, Stratos convened an arm-chair dialogue at the 45th Annual Yellowknife Geoscience Forum with two experts familiar with both northern and southern environmental assessment regimes: Mark Cliffe-Phillips, Executive Director of the Mackenzie Valley Environmental Impact Review Board and Charles Birchall, a certified environmental law specialist and Partner with Willms & Shier Environmental Lawyers LLP.

A central theme was the extent to which Indigenous peoples in Canada are involved in the decision-making related to project approval processes. On Indigenous-owned lands (i.e. where they have title as a result of modern land claim agreements or court decisions) Indigenous people have full decision-making authority over project approvals – in essence, the right to free, prior and informed consent for major projects to move forward. On Crown land, which in many instances overlaps with the traditional territory of Indigenous people, both southern and northern regulatory regimes operate within a legal framework rooted in section 35 of the Canada Constitution Act. Section 35 provides a constitutional guarantee to Canada’s Indigenous peoples that they will have access to involvement in decision-making through a process of consultation and accommodation that must be meaningful and honourable. This right to a process elegantly reflects the principles of reconciliation, if reconciliation is understood as a fair and honest balancing of the rights and interests of Indigenous people and non-Indigenous peoples.

While both northern and southern regimes have an obligation to undertake an honourable and fair process of consultation, there are significant differences in the extent to which they embody the principles of reconciliation. Half of the members of northern co-management boards are people of Indigenous background, embedding Indigenous people into the project approval process from the outset. Northern boards are also explicitly tasked with adopting a more holistic approach to assessing potential project impacts, with an overall mandate to promote the well-being of Indigenous peoples as opposed to stewarding solely the bio-physical environment. These design features make northern co-management regimes structurally more aligned with the principles of reconciliation than southern regimes. As a result, the decisions of these entities are generally perceived as more legitimate and credible. This is likely why the Expert Panel, in its 2017 report, explicitly noted its hope that southern Canada would adopt the co-management approaches common across the territories.

On the topic of regional planning, both northern and southern environmental assessment regimes generally require the project proponent to determine the impacts of their individual project on the area as well as the potential cumulative effects of their project. This has often been a challenging exercise both for project proponents and for environmental assessment bodies.

Project proponents often have neither adequate knowledge of the industrial activity unfolding within the regional areas surrounding their respective proposed projects, nor access to data on the actual or potential impacts of such industrial activity. Even with access to this information, it is difficult for project proponents to accurately forecast and model the potential impacts and interactions of their proposed projects with existing and reasonably expected industrial activity by other companies. The Expert Panel report recognized these challenges, while also highlighting the value of situating project approval processes within a regional impact assessment (RIA) process.

All parties recognize the value of RIAs, in that they can reduce the burden faced by project proponents while offering impact assessment institutions an opportunity to situate individual projects within a broader context. An RIA would rely on land use planning and baseline environmental and socio-economic studies, as well as models and forecasts of predicted future industrial activity from across different sectors. Outstanding questions remain however, particularly as to how to choose where a RIA is to be conducted, who pays, and how a RIA can be undertaken in a timely manner so that its results and recommendations can be applied in the context of individual project proposals.

Mark and Charles agreed that the first RIAs should be undertaken in actual or potential resource development hot-spots. In addition, they suggested that while government should take the lead on undertaking and financing RIAs, there should be an opportunity to explore innovative financing models such as cost-recovery approaches or “user-fees” akin to a toll-road.

As of November 15, 2017, the Government of Canada had yet to introduce a bill relating to the reform of the Canadian Environmental Assessment Act, 2012. Whatever decisions are made, both Mark and Charles agreed on the importance of adequate financial and human resources being allocated to ensure that the new institutions can perform their intended functions, Indigenous communities are able to participate meaningfully, and RIAs are undertaken in a timely manner in strategic hot-spots around the country. Panelists also agreed on the importance of northern and southern institutions continuing to share learnings and best practices, something Stratos is well positioned to support given our experience in this space to date.

One of the advantages of confederation is that jurisdictions have an opportunity to learn from each other as we all struggle to build regulatory regimes that honour the spirit and intent of reconciliation.

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