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In our last two posts we’ve had a lot to say about environmental assessments and Aboriginal consultation. Here we explain environmental assessments and discuss how they serve the Aboriginal right to consultation, as well as how new federal legislation has the potential to change that dynamic.

An environmental assessment, or an EA, is a process by which the government collects information about a proposed development project and its potential environmental, social, cultural and economic effects in order to determine whether to grant a permit for a project, and what conditions, if any, should be imposed it. The federal and provincial governments, and some First Nations, have their own procedures for conducting EAs, and these processes often overlap, as parts of a project may fall within the jurisdiction of multiple governments.

The federal government is usually involved when issues of Aboriginal rights arise, because Canada’s Constitution gives it jurisdiction over “Indians, and lands reserved for the Indians” – and “Indians” in this context has been found to include the Inuit and, more recently, the [Métis].

The former Canadian Environmental Assessment Act required a federal environmental assessment for every project or work that engaged a federal department of a subject matter under federal jurisdiction. The new Canadian Environmental Assessment Act 2012 (CEAA 2012) introduces new and narrower criteria to identify the projects that will require an assessment. A federal EA will only take place if a project is of a type specifically listed in the Regulations or if the National Energy Board or Canadian Nuclear Safety Commission is responsible for regulating the project. This change means that far fewer EAs will be required under the new Act.

In most cases, a federal EA will not be conducted if an equivalent provincial EA process is also available. This measure purports to reduce duplication, although provincial and federal EAs may not always cover the same subject matter and the word “equivalent” is open to interpretation.  The Minister of the Environment also has the discretion to forego a federal EA if there is an equivalent First Nation EA process. The time may be ripe for First Nations with EA processes of their own to review those processes and ensure that they have the capacity to conduct a thorough assessment if called upon to shoulder that responsibility.

Other changes relate to the scope of an assessment – in other words, whether it will cover an entire project, or only certain portions of it – as well as the types of impacts that will be considered. A federal EA will no longer consider the effects of a proposed project in its entirety. Instead, the EA panel will only consider the physical activity that triggered the assessment as well as any physical activities incidental to it. As an example, while a pipeline project may span thousands of kilometers, only specific areas such as where the pipeline crosses a navigable body of water, or specified fishery, will be reviewed.

The impacts to be assessed in a federal EA include matters under federal jurisdiction, such as effects on fish, migratory birds and federal lands. With respect to Aboriginal rights and interests, EAs will consider any changes to the environment that may affect the health, socio-economic conditions, or physical and cultural heritage of Aboriginal peoples, their current use of lands and resources for traditional purposes, or any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. However, there is no requirement to consider the need for the project, or alternatives to it.

CEAA 2012 poses a challenge for Aboriginal peoples because the reduced number of projects subject to EAs, as well as the reduced scope of those assessments, remove significant opportunities for consultation (and, as is the case with the Navigable Waters Protection Act, may entirely remove some projects from the scope of the duty to consult in some circumstances). In the face of this new reality, everyone involved in project development will have to be proactive in establishing meaningful dialogue between project proponents, governments and Aboriginal communities.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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