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4. Interpretation and Analysis
An examination of the information gathered through this research, clearly shows that Aboriginal peoples have a variety of concerns about the federal EA process in Canada. These concerns predominantly relate to
Aboriginal peoples have largely been involved with federal assessment as “stakeholders” or “parties to be consulted” during the scoping phase and commentary (in written submissions and/or public hearings) on finalized EA reports prepared by proponents. Aboriginal peoples have not been actively involved in the research and analysis phases of EAs. Therefore, it is not surprising that there is a dearth of information specific to Aboriginal perspectives on the method and approach to determining the significance of environmental effects. However, what Aboriginal peoples have said and continue to say with respect to the overall EA process does provide, with careful analysis and interpretation, a basis for understanding their general dissatisfaction with the determination of significance in EAs. The balance of this section of the report organizes the views and perspectives of Aboriginal peoples on EA into three themes:
4.1 Aboriginal Involvement in Environmental Assessment4.1.1 Aboriginal Interests in Environmental AssessmentThe majority of large-scale projects, such as mining, hydroelectric development and new transportation corridors that are subject to federal EA review, are located in territories that Aboriginal people have occupied and continue to occupy − and that they rely upon for their cultural and economic survival. Environmental changes and impacts from such developments are directly felt by Aboriginal peoples and communities because they, more than any other segment of Canadian society, continue to rely heavily on the land and natural resources to support their cultures and economies. Unlike the rest of Canadian society, Aboriginal peoples have constitutionally protected Treaty and Aboriginal rights that serve to recognize and protect their land-based lifestyles. Aboriginal people have a strong desire and right to meaningfully participate in federal EAs where a project has the potential to infringe upon or adversely impact their rights and interests and/or the environment, lands and resources they rely upon. Canadians expect that the Act will be properly administered and meets its stated goals. Aboriginal peoples of Canada share these expectations.
4.1.2 Lack of Meaningful Consultation with Aboriginal PeoplesAs a result of recent court decisions in Canada, there has been a concerted effort on the part of government and Aboriginal peoples to define “meaningful consultation.” However, the meaning of meaningful consultation differs with each Aboriginal group. Therefore, it is the responsibility of government, project proponents and Aboriginal peoples to be involved in discussions at the outset of each EA to agree upon a satisfactory consultation process. It is important to note that case law requires the federal government to engage in meaningful consultation; the government cannot delegate this responsibility to a third party or proponent. Issues raised by Aboriginal peoples concerning meaningful consultation, in the context of EA, include:
4.1.3 Limitations on Participation by Aboriginal PeoplesAboriginal peoples feel that their participation in EA is too limited. In general, the extent of Aboriginal involvement has been limited to “being consulted” at the scoping stage and providing written submissions and/or verbal presentations in response to proponent EA reports. In more recent federal panel reviews and comprehensive studies, Aboriginal peoples have received funding to carry out “traditional knowledge studies” and “internal consultations.” This work, however, is typically isolated from the overall assessment and does not contribute directly to the proponent’s work. Aboriginal peoples feel that they must be involved in all aspects of the EA when a project
For Aboriginal peoples, this involvement includes working with the RA and the proponent in the following activities: Developing and/or Designing
Implementing
Identifying and Analyzing
There are numerous merits of greater involvement of Aboriginal peoples in all stages of the EA process, some of which include:
4.1.4 Insufficient Time and ResourcesAboriginal peoples have stated repeatedly that they require adequate time, and human and financial resources to effectively participate in federal environmental processes. With respect to time frames, Aboriginal peoples consistently report that the schedules for EAs provide insufficient time for them to fully understand the EA process, the full scope of the project and its possible impacts. The schedules of EAs also prevent Aboriginal peoples from engaging in their own internal consultation activities, research and comprehensive reviews of the proponent’s EA report. These scheduling difficulties are closely linked to a lack of human and financial resources in Aboriginal communities and organizations to deal with EAs. Most players in EAs (i.e. government, proponent, environmental groups, commercial and industrial associations) have extensive strategic and technical experience. In contrast, for many Aboriginal peoples and communities, the announcement of a federal EA is their first introduction to the process. Aboriginal peoples have consistently articulated that they lack community members who are knowledgeable about the Act, EA procedures and methods, and trained in the Western sciences. Generally, the human resources of most Aboriginal communities and organizations are limited. Those individuals in communities that are trained in human resources are also often allocated to other projects, such as negotiating land claim agreements. Therefore, Aboriginal communities and/or organizations have had to rely heavily on “outside” expertise or consultants to assist them in the EA process. However, most non-Aboriginal consulting firms only bring a Western science perspective to the process and frequently their role, on behalf of Aboriginal peoples, is to challenge the Western science-based models, methods and findings concerning environmental effects. As a result, the values of Aboriginal peoples are not always adequately articulated during the EA. Finally, Aboriginal peoples have virtually unanimously indicated that insufficient financial resources, either from government and/or proponents, are available to them to participate in EAs. They have identified that without these financial resources, they are greatly hindered from the following:
A number of Aboriginal groups recommended that proponents and/or government provide financial resources so community members can obtain EA training.
4.2 Views on the Canadian Environmental Assessment Act and Environmental Assessment Practice4.2.1 Definition of “Environmental Effect”The Act includes a definition of environmental effect. This definition includes “any change that the project may cause in the environment, including any effect of any such change on health and socio-economic conditions, on physical and cultural heritage, on the current use of lands and resources by Aboriginal persons.” Views and concerns about this definition have been reported in most of the submissions made by Aboriginal groups under the Five Year Review of the Act, and therefore will not be repeated here. In brief, Aboriginal peoples hold the view that an infringement or impact on their Treaty and/or Aboriginal rights should be included in the definition of environmental effect. Such an expansion of the definition would explicitly recognize that proponents and government must directly consider whether or not a project has the potential to impact on constitutionally protected rights. Moreover, it would make explicit and reinforce that Treaty and Aboriginal rights must be considered when determining the significance of environmental effects. 4.2.2 Narrow Investigation of Environmental EffectsThere is broad agreement among Aboriginal peoples that the federal EA process pays greater attention to examination of impacts on the non-human components of the environment than on the people who live within and rely upon the very same environment. As an example, Aboriginal peoples recognize the importance of analyzing the direct impacts of a project on fish. However, they feel that a disproportionate amount of time, effort, and money is spent on analyzing the possible direct impacts on the fish than on the potential impacts on Aboriginal peoples (i.e. changes in fish quantity, quality or availability as a source of food or income). Aboriginal peoples hold the view that the non-Aboriginal driven value system and framework (impact-benefit analysis) used in EAs to identify and assess social, heritage and economic impacts prevents accurate identification of the direct and indirect cultural, social and economic impacts of projects on Aboriginal communities. For example, EAs examine impacts on archeological sites, but not on sites that are culturally and historically important to Aboriginal peoples, including:
Similarly, EAs fail to accurately identify the impact of project-related employment on the overall social structure and economies of Aboriginal communities. There is an inherent assumption by non-Aboriginal society that employment opportunities mitigate other project-related social and economic impacts in Aboriginal communities. For example, where projects involve remote employment sites, proponents fail to consider the impact of adults, particularly harvesters, being removed from the community, and the potential loss of subsistence food supplies to families and Elders.
4.2.3 Use of Traditional KnowledgeAboriginal peoples have unanimously expressed the view that traditional knowledge can contribute substantially to the quality of EA. In fact, it must be included if Aboriginal peoples are to have any faith in the process at all. In 1999, the Agency delivered a cabinet directive to ensure that traditional ecological knowledge be used in federal EAs. A recommendation that traditional knowledge be included in federal assessments is also included in the proposed amendments to the Act. To ensure the inclusion of traditional knowledge in EAs, a framework and procedural guidelines will need to be developed to ensure that traditional knowledge is protected and intellectual property rights issues are addressed. A number of guidelines for recent federal EAs (e.g. Voisey’s Bay Nickel Mine Panel Review guidelines) have required proponents to include traditional knowledge in their EA. However, the process of inclusion has not been effective. On one side, it is difficult (if not impossible) for a proponent to include traditional knowledge information in its assessment without the full involvement of the Aboriginal communities. On the other side, Aboriginal communities have been reluctant to contribute their knowledge if they will not be included in processes that use and interpret that information. More recently, Aboriginal communities have been independently conducting traditional knowledge studies. This information has typically been used to refute or challenge the findings of proponents, rather than contributing to the quality of the EA itself. The overwhelming message from Aboriginal peoples is that if they are meaningfully and actively involved in all stages of the EA, traditional knowledge will become a part of the process, rather than a product. 4 4 - See Winds and Voices Environmental Services Inc. 1999.
4.2.4 Follow Up and MonitoringAboriginal peoples feel that too often follow up and monitoring are used as a rationale for approving projects, even when the full magnitude and nature of environmental effects remain uncertain. Virtually all of the documents reviewed by the researchers indicated that Aboriginal peoples should be integral to post EA-mandated follow-up and monitoring programs. Their involvement should be comprehensive, including participation in the initial design, ongoing implementation, and analysis of the results of follow-up and monitoring programs. The scope of follow-up and monitoring programs should address the efficacy of mitigation measures and the accuracy of predicted environmental effects. As well, they should be involved in issues related to proponent conformance to, enforcement of and compliance with license requirements. 4.2.5 Decision MakingTraditionally, Aboriginal peoples made all decisions related to land use within their territories and had established laws that governed the use and protection of the environment (Annunziata et al. 1995). Aboriginal peoples have expressed the view that the federal environmental process does not respect these traditional laws or recognize Aboriginal peoples’ roles and responsibilities related to environmental protection. Further, they argue that the decision-making processes and laws they developed for environmental protection have been greatly eroded. Under the Act, the Minister of the RA’s department or agency has decision-making powers concerning the approval or disapproval of a project. Canadian law requires that all ministries and agencies of the federal government engage in meaningful consultation with Aboriginal peoples when a project subject to an EA has the potential to infringe upon or adversely affect Treaty and Aboriginal rights. If the RA has effected meaningful consultation, the federal government has the right to approve (and license) a project that will infringe upon Treaty and/or Aboriginal rights. However, where the federal government intends to infringe upon Treaty and/or Aboriginal rights, meaningful consultation must include an explicit description of the infringement and justification for it. Given that under current law Aboriginal peoples do not have veto powers, the next best process at the decision-making stage of an EA involves consensus decision making. This involves government and Aboriginal peoples working together to identify ways and mechanisms to avoid and/or minimize infringements on Treaty and/or Aboriginal rights through changes in project design and/or operation and/or mitigation measures.
4.3 Differing Views on the Determination of the Significance of Environmental Effects4.3.1 Different Environmental ParadigmsPerhaps the fundamental reason underlying Aboriginal peoples’ difficulty understanding the process of determining significance is that the concept is quite foreign to their worldview of the environment. Following is a brief overview of the differences in Aboriginal and non-Aboriginal worldviews of the environment. Predominantly, the Western worldview places humans outside of the circle of environment, and categorizes all other elements of the environment within a hierarchical framework. Non-Aboriginal society in Canada functions under a Western science paradigm where explanations and decisions concerning the environment are based upon scientific and academic understandings of environment. There is an implicit value system in place that suggests that quantitative science is superior to qualitative science. Moreover, there is an explicit value system that environmental impacts must be weighed and balanced against the goals of economic growth and prosperity.
The non-Aboriginal approach to determining the significance of environmental impacts is also hierarchical as illustrated in the diagram to the left. That is, effects on environmental components of national or global value (e.g. endangered or threatened species, habitats, ecosystems) are considered more significant than effects on environmental components valued regionally or locally. For example, rare species of orchids or owls receive greater attention in EAs than ducks or whitefish, which are not endangered, but are nonetheless of extreme importance to Aboriginal peoples.
The Aboriginal approach to determining the significance of environmental impacts is also hierarchical as illustrated in the diagram to the left. That is, effects on environmental components of national or global value (e.g. endangered or threatened species, habitats, ecosystems) are considered more significant than effects on environmental components valued regionally or locally. For example, rare species of orchids or owls receive greater attention in EAs than ducks or whitefish, which are not endangered, but are nonetheless of extreme importance to Aboriginal peoples. In contrast, the Aboriginal worldview is based on their intimate connection with, understanding of, and dependence on the land and the environment. Great value is attached to qualitative information that has been acquired over thousands of years. An explicit value system exists wherein Aboriginal people have responsibilities, on individual and community levels, to protect the environment for future generations. This also applies to Treaty and Aboriginal rights for both present and future generations. As such, any impact to the land and environment that threatens or endangers future generations of people or other species is significant. Aboriginal peoples are as concerned as non-Aboriginal society about the protection and preservation of nationally and internationally threatened and endangered species and ecosystems. However, because their culture and economy is so intimately linked to the land and environment, they are most concerned about project-related impacts at the local and regional levels. This is why they feel that impacts of a local and regional nature are most significant. None of the three federal EAs reviewed in the research reported any significant environmental effects. These three mining projects involved large-scale alterations to the physical environment, and the introduction of people, equipment and petroleum-based fuels into the traditional territories of Aboriginal peoples. Aboriginal peoples resident in the vicinity of the three mining projects were astounded that these projects were assessed as having no significant environmental effects.
4.3.2 Methodology for Determining SignificanceCurrent standards and practices for determining significance in Canada follow guidelines developed by the Agency. Aboriginal peoples question the validity of current practice. The following information lists some issues and concerns raised by Aboriginal peoples. In some cases, illustrative examples are provided. The practice of determining significance is highly subjective and driven by non-Aboriginal society values. Example: Species of wildlife such as rabbits or whitefish, which are staple food items, are usually not considered in EAs because they are not important to non-Aboriginal society’s diet and/or are not on a protected list. Example: New project-related jobs are not necessarily considered by Aboriginal society as equitable substitutes for the loss of traditional land-based lifestyles. Thresholds for determining significance are set so high that no environmental effects will be deemed significant. Example: In the Voisey’s Bay EA, social and cultural environmental effects on the Innu and Inuit were defined as being significant only if all communities in the study region were to be affected over a long period of time. The determination of significance is based too heavily on quantitative models and lacks qualitative context and reasoning. Example: Both the North Slave Alliance and Dogrib Treaty 11 Council have referred to the Diavik Diamond project EA as a “big experiment,” meaning these Aboriginal groups had no comfort that the proponents findings about environmental impacts were reliable. Example: The Dogrib Treaty 11 Council has indicated that the proponent’s claim that the mine will not change the distribution or abundance of caribou comes with too much uncertainty to be credible. This organization stated the Diavik EA “relied too heavily on computer models and assumptions, without adequate real-world data to support the analyses.” The determination of significance is too heavily weighted on physical components of the environment. Example: Voisey’s Bay EA examined project-related intake of contaminants by caribou, but did not consider potential health impacts on Innu and Inuit eating caribou from around the proposed mine site. Attention to determining the significance of effects on Aboriginal culture, economy, health and social structure is lacking. Example: Voisey’s Bay EA did not examine impacts of having large numbers of community members absent from the community due to working at the remote mine site (i.e. impact of having fewer harvesters providing subsistence food products to families). The process of determining significance fails to address infringement or impact on Treaty and Aboriginal rights. Example: Voisey’s Bay EA did not consider or comment on project-related impacts to Aboriginal rights. Mitigation options, which are untested at the time of evaluation of significance, are used to develop conclusions about the significance of environmental effects. Example: The Dogrib Treaty 11 Council states that Diavik’s proposed mitigation measures are untested and have high degrees of uncertainty and risk. Too much uncertainty, faith and emphasis are placed on monitoring as a means of mitigating poor predictions about environmental impacts. Example: The North Slave Alliance has stated that its people must play a large role in assessing and monitoring project-related impacts. They indicate that if proper monitoring had been done for the BHP Diamond Project then lessons could have be learned which would have assisted in better understanding the impacts of the proposed Diavik Diamonds Project. Values important to Aboriginal peoples are not considered. Example: The North Slave Alliance stated during the Diavik Diamonds Project EA that any impact on caribou would have serious negative effects on the people. Example: In relation to the completed Diavik Comprehensive Study, the Kitikmeot Inuit Association stated that the federal government and proponent underestimated the value of caribou to their way of life. The emphasis is on global and national values rather than local and regional Aboriginal values. Example: In determining significance of impacts on caribou, the Voisey’s Bay EA considered impacts on the entire George River caribou herd as significant, and impacts to a segment of the herd in a localized geographic area as “minor and not significant” (i.e. impacts on localized portions of the herd which are used and accessible by Innu were deemed insignificant). Decisions about significance are based upon limited baseline information. Example: Experts retained by the Innu Nation to review Voisey’s Bay EA were of the view that the proponent had frequently used only one or two years of monitoring data to establish baseline information. This baseline information was then used as the basis for significance determination. Example: Both the Innu and Dogrib Treaty 11 Council reported that proponents had relied upon limited and unreliable data sources to describe the social, cultural and economic conditions of their communities. Decisions about significance are made without the benefit of traditional knowledge. Example: During the Diavik EA, Aboriginal groups conducted research on traditional knowledge. However, they felt that the proponent inadequately considered this information in their assessment of significance. Conclusions about significance are made without consultation with Aboriginal peoples. Example: None of the case studies revealed that Aboriginal peoples were involved in the actual discussions and evaluations leading to the proponent’s conclusions about the significance of environmental effects.
4.4 In Summary
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