2. Context: The Importance of Environmental Assessment and Determining the Significance of Environmental Effects to Aboriginal Peoples

Aboriginal peoples have a special relationship to the land, its resources and the environments that support the continued health and abundance of the land and natural cycles. This long-standing relationship encompasses spiritual, social, cultural, economic, political, and more recently in Canadian law, legal connections to the environment.

Aboriginal peoples share concerns with non-Aboriginal societies about national and global environmental effects − such as ozone depletion, vanishing species, climate change, and loss of biodiversity. However, as Aboriginal peoples still maintain a close relationship and reliance on the land and resources, their concerns about the state of the environment are heightened. Aboriginal peoples have a greater degree of exposure to environmental degradation and change. They tend to suffer more directly from the impacts of effects such as pollution, contamination, climate change, social and cultural breakdown, and economic hardship.

The exploration and development of natural resources occurs mostly within the territories of Aboriginal peoples. The cumulative effects and impacts of past and potential developments are affecting the sustainability and well-being of Aboriginal communities.

Aboriginal peoples play a minor or nonexistent role in the EA process. ³ Despite recent decisions by the Supreme Court of Canada upholding Canada’s fiduciary obligation to Aboriginal peoples (Guerin, Sparrow, Metecheah), there is still no requirement in the Act to consult with Aboriginal peoples on projects that have the potential to infringe on their Aboriginal and/or Treaty rights. In the case of Delgamuukw, infringement of Aboriginal title requires “meaningful consultation.”

Meaningful consultation requires that the Crown ensures full disclosure of information regarding the potential impact of a proposed project on Aboriginal and/or Treaty rights. Failure to do so could support a legal challenge from Aboriginal peoples to withdraw the approval to proceed. This was the case in Union of Nova Scotia Indians vs. Attorney General of Canada and USG Canadian Mining, where the court found that Canada, in its capacity as the responsible authority (RA), did not provide a fair opportunity for the Aboriginal peoples to be heard in the EA review process. The limited role of Aboriginal peoples in the EA process is most evident when one considers that they are not involved at the most critical stage of the process, namely determining the significance of environmental effects.

Globally, EA is becoming a multipurpose planning and decision-making tool to promote long-term sustainability. The success of this approach is directly related to the nature and scope of the participation of the public. A process that includes government, the proponent and the public can:

• foster better designed and planned projects;
• facilitate development that empowers the community; and
• build local capacity.

Aboriginal peoples, who have constitutionally protected rights, cannot be approached as just one element or component of the “general public” or simply one of many “stakeholders.” Their rights to a more inclusive and relevant process also include active participation in determining the significance of environmental effects. This is advisable and necessary to avoid the loss and deterioration of their lands and resources, the disruption of their traditional lifestyles, the unnecessary (and in some cases unlawful) infringement of their rights, as well as to protect their health and community well-being. Ultimately, Aboriginal peoples ought to see an EA process that optimizes resource use and, as importantly, modifies development according to the capability and potential of the resource base.

3 - Aboriginal peoples who have finalized comprehensive land claims agreements have secured far greater responsibilities and roles in EA than those who have not concluded land claims agreements or those who are unlikely to sign such agreements.

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