When it comes to the rights of Indigenous peoples, Prime Minister Justin Trudeau talks a really good talk. A close look at new laws that will dictate how major resource projects are reviewed, however, suggest he wants to leave himself a lot of wiggle room when it comes to walking the walk.
The week before Trudeau was lauded for a speech in the House of Commons that promised of a new legal framework for Indigenous people, his government released two long-awaited pieces of environmental legislation.
Initial reactions were cautiously optimistic. But now that the dust has settled, it’s clear that matching words to action is often an exercise in optimistic romanticism.
Bill C-69 — which will overhaul the Canadian Environmental Assessment Act, National Energy Board Act and Navigable Waters Act — mostly restores protections to how they were before the Harper Conservatives decimated them in 2012, but little has been done to truly modernize processes.
It’s “abundantly clear that the architects…have no transformative aspirations,” wrote University of Victoria law professor Chris Tollefson in an article for Policy Options.
Unfortunately, the same appears to be true about what the new legislation means for how Indigenous peoples and communities will be included in future environmental assessments and protection planning: rather than tightening the rules to make ministers more accountable for upholding First Nations’ rights, the new laws give them broad discretion at every turn.
“Looking at the bill itself, we don’t really see the robust impact-assessment, sustainability framework that was promised,” said Sara Mainville, partner at OKT Law and former chief of northwest Ontario’s Couchiching First Nation.
To be sure, there were some new developments on how governments plan to engage with Indigenous people.
The revised acts require that Indigenous traditional knowledge be used to inform decision-making, require that such knowledge is protected from public disclosure, and create new abilities for Canada to enter into management agreements with Indigenous governing bodies (rather than just provinces and territories).
In the case of impact assessments, the revised bill also explicitly requires that adverse impacts on Indigenous rights need to be considered — a significant shift from the current legislation.
“What the present Act requires is that potential impacts to the current use of lands for traditional purposes be assessed,” said Jeff Langlois, lawyer at JFK Law and recently counsel for Gwich’in Tribal Council in the Peel Watershed case.
“It lets proponents and the government in these formal environmental assessment processes just focus on the use of the land today. Like ‘Have you hunted in the last couple of years? Is it going on right now?’ It’s made these environmental assessments very narrow in scope.”
The proposed legislation expands the review criteria. But here’s the catch — it only needs to be considered by the minister and can always be ignored in the name of “public interest.”
“All that cabinet has to do is say in its reasons that, ‘We took Indigenous impacts and interests into account,’ ” said Jason Maclean, environmental law professor at the University of Saskatchewan. “It doesn’t change anything. In fact, it could provide the government cover and insulation for even worse decision-making, making it that much harder to overturn.”
“It doesn’t change anything. In fact, it could provide the government cover and insulation for even worse decision-making, making it that much harder to overturn.” https://t.co/2ZDqesKoPc
— DeSmog Canada (@DeSmogCanada) February 20, 2018
The issue of ministerial discretion also plagues many other elements of the bills.
For example, Bill C-69 suggests the use of regional impact assessments and strategic impact assessments. Such tools can be used to provide baseline data or plans for an entire area such as the oilsands-dominated Lower Athabasca Region of northeast Alberta in order to help track cumulative impacts — whether they be on the local environment, Indigenous rights or ability to meet climate targets.
Langlois said that a big problem with the current approach is that every proponent and government will argue that you can’t blame any one project for infringement on Aboriginal and treaty rights, meaning none are ever stopped on those grounds.
But once again, the rules are soft: the bill is worded carefully to say that the Minister “may” order a regional or strategic assessment.
“If you want to take these strategic and regional assessments as effective tools, you should be putting some trigger in place to say, ‘What’s going to make you do that assessment?’” Langlois said. “Right now, it’s still just totally discretionary, as is all decision-making under the act still.”
It’s also a fundamental undermining of recommendations made by the government’s expert review panel in its comprehensive April 2017 report, which specifically recommended that legislation “require” such tools to be used in any area where cumulative impacts may occur or already exist and to “guide” the entire impact assessment.
It’s one of the panel’s many key suggestions that has been weakened in the bills.
“I often look at the expert panel report as a recipe, not as a menu,” Mainville said. “You can’t really pick and choose different pieces of it.”
A central ingredient in that recipe was dealing with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which contains the principle of “free, prior, and informed consent.” But there wasn’t a single mention of UNDRIP in the bill.
Instead, Trudeau’s Environment and Climate Change Minister Catherine McKenna pledged to “try really hard” to gain consent from Indigenous communities.
Further complicating the situation was McKenna’s assurance that the Kinder Morgan Trans Mountain pipeline would have been approved under the new environmental assessment legislation — despite many Indigenous communities vehemently opposing its construction.
“Bill C-69’s really obvious failures to mention, let alone implement, UNDRIP or [free, prior and informed consent] is a failure for the government to take a step forward towards shared governance with Indigenous peoples,” Maclean said. “Instead, it retains the same colonial top-down model that reposes all the decision-making power with the federal cabinet under a very broad and highly discretionary ‘national interest’ test.”
In addition to finalizing the legislation, the government will have to craft a wide range of regulations, policies and programs. Such tools could provide more insights into how the Liberals expect to integrate their support of MP Romeo Saganash’s recent private member’s bill to fully implement UNDRIP, as well as Prime Minister Justin Trudeau’s pledge to establish a new legal framework for Indigenous peoples.
“This staged approach is the silver lining to all this,” Mainville said. “But the wait-and-see is wearing First Nations’ patience a little thin.”
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