Research supported by the Canadian Environmental Assessment Agency’s Research and Development Program   Determining Significance of Environmental Effects: An Aboriginal Perspective   Prepared by Winds and Voices Environmental Services Inc. for the Research and Development Monograph Series, 2000

Determining Significance of Environmental Effects: An Aboriginal Perspective

Prepared by
Winds and Voices Environmental Services Inc.

for the
Research and Development Monograph Series, 2000

Catalogue No. EN05-3/70-2003E-IN
ISBN 0-662-33670-4

Disclaimer

This report was prepared with the support of the Canadian Environmental Assessment Agency’s Research and Development Program. The views, conclusions and recommendations expressed herein are those of the authors and do not represent the views of the Canadian Environmental Assessment Agency or the Government of Canada.

Under the Canadian Environmental Assessment Act, an object of the Canadian Environmental Assessment Agency (Agency) is “to promote or conduct research in matters of environmental assessment and to encourage the development of environmental assessment techniques and practices, including testing programs, alone or in cooperation with other agencies or organizations…” (ss.62(c)).

The Agency established a Research and Development Program (R&D Program) in January 2000 to help federal departments and agencies and other stakeholders to improve the practice of environmental assessment (EA) and to meet future challenges in a manner that is relevant and credible and that encourages innovation and excellence in support of sustainable development. The Agency will periodically identify priority areas for financial support under the R&D Program. The current priority areas are: determining the significance of environmental effects, follow-up, assessing impacts on humans, regional environmental effects framework; and integrating climate change considerations into environmental assessment.

The intent of the research reports is to provide relevant information and to stimulate discussion of those having an interest in environmental assessment. The results and conclusions of all reports produced under the Research and Development Monograph Series are made available to governments at all levels, industry, universities, and the public by way of the Agency’s website.

Correspondence related to the information contained in this research paper should be addressed to:

Winds and Voices Environmental Services Inc.
Centre for Indigenous Environmental Resources
3rd Floor, 245 McDermot Avenue
Winnipeg, Manitoba R3B 0S6

Correspondence related to the Canadian Environmental Assessment Agency’s Research and Development Program should be addressed to:

Ms. Diane Kaiser
Research and Development Program
Canadian Environmental Assessment Agency
22nd Floor, Place Bell
160 Elgin Street
Ottawa ON K1A 0H3
Fax: (613) 948-1354
email: rd@ceaa-acee.gc.ca

Table of Contents

Disclaimer

1. Introduction

• 1.1 Background
• 1.2 Purpose and Objectives

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

3. Methodology

• 3.1 Case Study Review
• 3.2 Literature Review
• 3.3 Interviews

4. Interpretation and Analysis

• 4.1 Aboriginal Involvement in Environmental Assessment
  • 4.1.1 Aboriginal Interests in Environmental Assessment
  • 4.1.2 Lack of Meaningful Consultation with Aboriginal Peoples
  • 4.1.3 Limitations on Participation by Aboriginal Peoples
  • 4.1.4 Insufficient Time and Resources
• 4.2 Views on the Canadian Environmental Assessment Act and Environmental Assessment Practice
  • 4.2.1 Definition of “Environmental Effect”
  • 4.2.2 Narrow Investigation of Environmental Effects
  • 4.2.3 Use of Traditional Knowledge
  • 4.2.4 Follow Up and Monitoring
  • 4.2.5 Decision Making
• 4.3 Differing Views on the Determination of the Significance of Environment Effects
  • 4.3.1 Different Environmental Paradigms
  • 4.3.2 Methodology for Determining Significance
• 4.4 In Summary

5. Aboriginal-Based Criteria for Determining the Significance of Environmental Effects

6. Better Practices for Determining Significance

• Schedule 1: Project Design and Early Environmental Assessment Decisions
• Schedule 2: Scoping Stage
• Schedule 3: Research and Data Collection Stage
• Schedule 4: Identification of Environmental Effects Stage
• Schedule 5: Significance Determination Stage
• Schedule 6: Environmental Assessment Report Review Stage
• Schedule 7: Decision Stage

7. Concluding Remarks

• 7.1 Recommendatins for Future Research

Appendices

• APPENDIX 1: Interview Documents
• APPENDIX 2: Contact List of Potential Interviewees
• APPENDIX 3: Aboriginal Values and Significant Impact Indicators
• APPENDIX 4: Case Study Review Notes
• APPENDIX 5: Aboriginal Issues and Concerns Related to Significance

Bibliography

1. Introduction

1.1 Background

Deciding whether a project is likely to cause significant adverse environmental effects is central to the concept and practice of environmental assessment (EA). According to the Agency’s Reference Guide: Determining Whether a Project is Likely to Cause Significant Adverse Environmental Effects, “the focus of environmental assessment always narrows down to a decision of whether or not the project is likely to cause significant adverse environmental effects. Ultimately, the process of determining significance is the heart of environmental assessment.”

Many Aboriginal peoples ² across Canada depend upon a healthy environment for their social, cultural and economic survival. Therefore, Aboriginal peoples have a direct and immediate interest in the EA process and outcomes. Moreover, many of the larger natural resources development proposals, which are subject to federal EA, are situated in Aboriginal peoples’ traditional territories where their constitutionally protected Treaty and Aboriginal rights are enjoyed and practiced. In this regard, Aboriginal peoples have legal, as well as social, cultural and economic interests, in how the determination of significance of environmental effects is approached.

Many submissions have been made by Aboriginal peoples in the context of Comprehensive Study Reports, Panel Reviews and in the Five Year Review of the Canadian Environmental Assessment Act (the Act). It is evident from these submissions that Aboriginal peoples consider the current process of determining significance to be inadequate.

1.2 Purpose and Objectives

The broad purpose of this research has been to explore ways and means of improving the methodology and approach to determining significance in cases where Aboriginal interests and rights are involved. The two key objectives of the research were (1) to develop draft criteria for consideration when determining significance of environmental effects, and (2) to recommend “better practices” for evaluating the significance of environmental effects when the interests and rights of Aboriginal peoples are involved.

Specific objectives were to

1. Report on whether or not existing criteria and procedures used within federal EAs meet the needs and concerns of Aboriginal peoples.
2. Document the views and concerns of Aboriginal peoples concerning the methods by which the significance of environmental effects is currently determined.
3. Document the approaches and suggestions made by Aboriginal peoples concerning how the significance of environmental effects may be determined.
4. Develop recommendations as to how the process involved in determining the significance of environmental effects might be improved.

1 - Winds and Voices Environmental Services Inc. (WAVES) is a First Nations environmental consulting firm wholly owned by the Centre for Indigenous Environmental Resources.

2 - “Aboriginal peoples” is inclusive and refers to First Nations, Inuit and Metis individuals, families, communities, governments and organizations.

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.

3. Methodology

The research design provided for a literature review, analysis of three federal EAs of projects situated within Aboriginal territories and interviews with Aboriginal peoples and/or organizations across the country.

3.1 Case Study Review

The three case studies chosen were

1. Panel Review of the Voisey’s Bay Mine and Mill project, Labrador;
2. Panel Review of the BHP Diamonds project, Northwest Territories (NWT); and
3. Comprehensive Study of the Diavik Diamonds project, NWT.

These three projects were selected based on several criteria, namely, they were

• fairly recent;
• covered under the Act;
• situated in a number of Aboriginal groups’ traditional territories; and
• proposed during a time when Aboriginal groups were in the process of negotiating comprehensive land claims agreements.

In addition, all of the projects had a fairly high level of Aboriginal involvement in the EA processes. Brief descriptions of the case study projects are included in Appendix 4.

The case study research focussed on submissions made by, or on behalf of, Aboriginal groups to the project proponents and/or review panels concerning an environmental impact statement (EIS) and/or a comprehensive study report. (Documents reviewed for each project are listed in the bibliography under Case Studies.)

3.2 Literature Review

The literature review focused on documents that described Aboriginal perspectives, recommendations and/or concerns about the federal EA process. The majority of the documents were “after-the-fact” commentaries on concluded federal EAs, position papers developed as part of the Five Year Review of the Act, or EA procedures contained in comprehensive land claims agreements.

3.3 Interviews

The researchers planned to conduct telephone discussions with Aboriginal persons with direct experience and knowledge of federal EA processes. A preliminary list of 29 people was developed. These individuals were either known by the researchers or were identified as key contacts within Aboriginal organizations that had been closely involved with the federal assessments under the three case studies.

All prospective interviewees were contacted by telephone to request if they would be willing to participate in the interviews. All parties contacted were very interested in participating in the survey, however, most were unable to allocate time to participate in the interview. Most indicated they wished to have the questions sent by e-mail so they could respond in writing. The researchers forwarded the list of questions and the interview guide to those interviewees unable to participate in a telephone interview (see Appendix 1). A second, and sometimes third call was made by the researchers to schedule interview times and/or inquire when written comments would be forthcoming.

At the time of writing, only four of the 29 prospective interviewees had either responded in writing or participated in a telephone interview. Although the researchers did not expect all persons on the list to participate, the low response rate was unexpected.

The researchers identified two potential reasons underlying the low response level:

1. Aboriginal peoples and organizations are often overburdened with requests to participate in surveys and interviews.
2. Aboriginal peoples have generally not been involved in significance determination in the context of a federal EA. Consequently, they have limited knowledge and/or comfort in discussing this issue.

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

• the “process” aspects of EA, such as consultation, timeframes, and human and financial resources;
• their fundamental goal to protect their Aboriginal and Treaty rights, cultures, communities, economies, land-based lifestyles, and the lands and resources that support these rights; and
• federal, provincial and territorial governments’ fiduciary duty to ensure that constitutionally protected Treaty and Aboriginal rights are not infringed upon by resource development projects.

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:

1. Aboriginal involvement in EA;
2. the Act and overall EA methodology; and
3. specific concerns regarding the determination of significance of environmental effects.

4.1 Aboriginal Involvement in Environmental Assessment

4.1.1 Aboriginal Interests in Environmental Assessment

The 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 Peoples

As 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:

• Communities are not consulted at the early stages of project conception.
• Proponents do not provide sufficient information about the project and the possible range of impacts early enough in the EA.
• Information provided to communities is often too technical and not provided in the spoken language of the communities.
• Communities and organizations are not asked what their consultation and information needs and expectations are with respect to the project and the EA.
• Consultation only occurs at the scoping stage.
• Community leaders and/or key “informants” are often the only persons consulted.
• Proponents and government make inaccurate assumptions about which Aboriginal organizations represent the interests of individual communities and cultural groups.
• Community-based knowledge is not drawn upon during the research and data collection stage or for identifying and determining the significance of environmental effects.
• Findings of EAs are not communicated in formats that are readily understandable to communities.
• Public hearings tend to be intimidating and difficult venues for community members to express their views and concerns about the project.

4.1.3 Limitations on Participation by Aboriginal Peoples

Aboriginal 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

• is situated in a traditional territory;
• has the potential to impact the lands and resources important to them; and
• has the potential to impact or infringe upon their Treaty and Aboriginal rights.

For Aboriginal peoples, this involvement includes working with the RA and the proponent in the following activities:

Developing and/or Designing

• terms of reference, schedules, communications and information sharing protocols;
• consultation and scoping processes;
• research during the data collection stage;
• follow-up and monitoring programs;
• criteria and methods for assessing the significance of environmental effects; and
• submissions or presentations to government prior to and/or during public hearings.

Implementing

• consultation and scoping processes;
• research process during the data collection stage; and
• follow-up and monitoring programs.

Identifying and Analyzing

• potential environmental effects; and
• mitigation options and measures.

There are numerous merits of greater involvement of Aboriginal peoples in all stages of the EA process, some of which include:

• Better understanding among parties or each other’s needs, concerns and expectations – this reduces conflict, scheduling overruns, and possibly court challenges which can substantially increase factors of cost and time.
• Contribution of Aboriginal peoples’ values and knowledge (traditional knowledge) into the process – this improves the quality and quantity of baseline data, enhances understanding about and prediction of short- and long-term environmental effects, improves the overall quality of the assessment and can reduce research costs.
• Aboriginal communities and/or organizations are better informed about how the proponent has reached its conclusions, and better able to make informed decisions about the project and to articulate their concerns and recommendations about the findings.
• Opportunities are increased for building relationships in the event that the project is approved and proceeds.

4.1.4 Insufficient Time and Resources

Aboriginal 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:

• effectively participating in consultations with government and the proponent;
• carrying out internal consultations;
• translating documents and providing information in formats (visual, audio) that are more relevant to their communities;
• hiring experts;
• conducting research;
• reviewing the proponent’s EA report; and
• preparing submissions for government or panels.

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 Practice

4.2.1 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 Effects

There 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:

• places where important events occurred (e.g. an intercultural battle occurred, a community member was accidentally killed, kill sites, an unusual wildlife form or behavior was observed);
• valuable campsites (e.g. meeting places, areas where fuel wood can be found, a place where one can always find fish);
• places of spiritual significance (e.g. isolated areas where certain medicinal or ceremonial plants and/or medicines grow, vision quest locations); and
• burial sites of ancestors.

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 Knowledge

Aboriginal 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 Monitoring

Aboriginal 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 Making

Traditionally, 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 Effects

4.3.1 Different Environmental Paradigms

Non-Aboriginal Society Perspective on Significance

Perhaps 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 Significance

Current 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

1. Aboriginal communities and/or organizations have a vested interest in ensuring that projects that are situated within their territories are subject to the highest quality of EA possible. This vested interest derives from Aboriginal peoples’
   • immediate and direct reliance upon the land and resources, hence lower tolerance to environmental effects, than any other segment of Canadian society;
   • social, economic and cultural identity which derives from their active and ongoing activities on the land; and
   • constitutionally protected Treaty and Aboriginal rights.
2. Both the federal government and Aboriginal peoples have responsibilities for ensuring that projects approved (pursuant to the Act and other federal legislation) do not infringe or otherwise impact on Treaty and Aboriginal rights.
3. According to law, Aboriginal peoples must be meaningfully consulted during EAs of projects that have the potential to infringe upon Treaty and Aboriginal rights. Jurisprudence dictates that the federal government cannot delegate the responsibility for meaningful consultation to project proponents.
4. Aboriginal peoples and the non-Aboriginal segment of Canadian society have fundamentally different environmental paradigms and worldviews. These differences have contributed to a lack of trust between the two groups. In addition, Aboriginal peoples feel that EA does not consider their values and perspectives, and therefore does not fully and accurately predict environmental impacts.
5. Aboriginal peoples need to be actively and meaningfully involved in all stages of EA to ensure that they, the federal government and the proponent can make informed findings and decisions about environmental effects.
6. Aboriginal involvement and the inclusion of traditional knowledge will enhance the quality of EA.
7. Aboriginal peoples need to fully understand the entire EA process to participate and contribute in a productive, pro-active and meaningful manner.
8. Aboriginal peoples need adequate time as well as human and financial resources to participate and contribute to EA.

5. Aboriginal-Based Criteria for Determining the Significance of Environmental Effects

In the previous section of this report, the concerns expressed by Aboriginal peoples included a failure on the part of EA processes to consider the full range of components of the environment important to them, and included and addressed environmental values important to them (an Aboriginal version of “valued ecosystem components [VECs]”). These two factors, in addition to the contrasting worldviews of Aboriginal and non-Aboriginal peoples, contribute to Aboriginal peoples’ perception of EA as failing to comprehensively identify significant environmental effects.

This section of the report lists:

• components of the environment of particular importance to Aboriginal peoples;
• values that are attached to these components; and
• indicators of changes and/or impacts to the components likely to be deemed as significant environmental effects by Aboriginal peoples.

Information from the literature review, case studies and interviews was synthesized to develop the list. It also includes the knowledge and experience of the researchers.

The list is not exhaustive. Nonetheless, it serves to illustrate the broad range of concerns likely to be raised by most Aboriginal communities involved in a federal EA. It can serve as a preliminary point for government and proponents to begin to understand the perspectives of Aboriginal peoples. As well, it can serve as a framework for Aboriginal communities to customize their concerns based upon their own specific geographic, cultural, social and economic circumstances.

Finally, the researchers believe that the clear articulation of information by Aboriginal peoples, in a framework similar to the one presented in this section, can promote better understanding by governments and proponents of Aboriginal peoples’ positions, needs and expectations. In so doing, the potential exists for better quality assessments and greater participation of Aboriginal peoples in the examination and interpretation of project-related impacts.

Treaty and/or Aboriginal Rights

Harvested Animal and Plan Species

Ecosystem

Water/Ice for Travel and Consumption

Economy

Social/Cultural

Other Community Health and Safety

6. Better Practices for Determining Significance

Issues raised by Aboriginal peoples about the EA process will be considered in this section. Recommendations for interfacing Aboriginal peoples’ involvement, views, values and knowledge to improve the approach and quality of determining significance and EA practice will also be presented.

Some key messages that emerged from the research follow.

• Aboriginal people want, need, and have the right to be involved ⁵ at the stage of EA when the determination of the significance of environmental effects occurs. They are the best qualified to assess whether or not project-related environmental effects are significant to them. For Aboriginal peoples to be effectively involved at this stage, they need to be involved in all of the stages leading up to the determination of significance.
• For Aboriginal peoples to meaningfully contribute to the assessment of the significance of environmental effects, they need to fully understand the federal EA legislation, guidelines and practices. That is, they need to clearly understand what type of information is required and at what stage in the process the information is critical.
• Government and proponents do not generally have a good understanding of what are Treaty and Aboriginal rights; how, when, or why projects may infringe or otherwise impact on such rights; or what are their fiduciary and legal requirements with respect to meaningful consultation and protection of Treaty and Aboriginal rights.
• Aboriginal peoples, government and project proponents need to clearly communicate their assumptions, needs and expectations at the outset of EA. While the proponent is clearly responsible for fulfilling certain requirements under the Act, Aboriginal peoples believe that the federal government has a fiduciary obligation to ensure that Aboriginal peoples are meaningfully involved and that proponents understand this obligation. Aboriginal involvement in EA should not be interpreted as support for a project, but rather as a means to ensure all parties are informed.

The following schedules provide a tool for Aboriginal peoples, proponents and government to improve their understanding of Aboriginal peoples perspectives relating to the process or outcomes of EAs − as well as improve working relationships with each other to ensure high-quality EAs and satisfactory outcomes.

Each schedule has been organized according to the various stages or steps of EA. Each describes the common current practices (i.e. status quo), an issue or set of issues, and recommendations to improve the process (i.e. better practice).

5 - Aboriginal involvement would be triggered when a) a project has the potential to infringe upon or otherwise adversely affect Treaty and/or Aboriginal rights, and/or b) a project has the potential to change or impact the environment in a way that adversely effects the lands, resources, activities, and/or culture, social structure, health and economy of Aboriginal peoples.

Schedule 1: Project Design and Early Environmental Assessment Decisions

Schedule 2: Scoping Stage

Schedule 3: Research and Data Collection Stage

Schedule 4: Identification of Environmental Effects Stage

Schedule 5: Significance Determination Stage

Schedule 6: Environmental Assessment Report Review Stage

Schedule 7: Decision Stage

7. Concluding Remarks

The criteria and better practice suggestions presented in Sections 5 and 6 provide a general framework for resolving some of the issues and addressing the dissatisfaction of Aboriginal peoples in relation to determining the significance of environmental effects. They are to be considered as a starting point. It is hoped that Aboriginal peoples, government and proponents alike will find them useful. Nonetheless, the researchers recommend that they be customized accordingly, to fit the needs and circumstances of the Aboriginal peoples/communities faced with a project undergoing a federal EA within their traditional territory. Therefore, the application and utility of the framework may vary considerably depending upon one or more of the following factors:

• the type of project and level (screening, comprehensive study, panel review) of EA which may dictate the relative level of involvement of Aboriginal peoples;
• Aboriginal peoples prior experience and level of experience with EA;
• Aboriginal peoples relationship with the proponent (e.g. existing positive or negative relationship, new relationship); and
• the intensity and type of environmental degradation and/or existent community impacts within the traditional territory associated with previous development activities.

The recommendations provided for “better practices” require a higher level of trust and commitment amongst all parties involved in EA than has been evidenced to date. With these better practices, the potential exists for proponents and government to feel that implementing some or all of them will result in higher costs and longer timeframes. Additionally, Aboriginal peoples may feel that their participation in the EA will be construed as “definite support for the project.” However, the benefits of these better practices far outweigh the costs, as does their implementation.

• Aboriginal involvement in all aspects of the EA will be improved, assisting in their decision-making processes about whether or not the project should proceed.
• The quality of the EA will be improved, reducing the chances that the EA report will be found deficient.
• There will be up-front commitments and agreements between the parties, resulting in a reduction in duplication of effort, effective scheduling and the potential for mid-EA court challenges.
• Participation of Aboriginal peoples in data collection and research will increase efficiencies. Moreover, the data and research will have other benefits and uses by communities.
• The potential for court challenges will be diminished.
• Aboriginal peoples will be building capacity that can be used during the operational phases of the project.
• Government will have a higher level of certainty that they are meeting their fiduciary obligation to meaningfully consult with Aboriginal peoples.

7.1 Recommendations for Future Research

This investigation has raised a number of themes or issues. Further or new research may contribute to a better understanding of how to increase Aboriginal involvement in EAs and/or improve both the quality and effectiveness of the EA process. Suggestions for further research include:

• Examining ways of formally introducing Aboriginal peoples worldview (e.g. perspective that individuals, communities and society have responsibilities to protect environment for future generations) and values systems (holistic definition of the environment as including people) into all stages of federal EAs;
• Revising the Agency’s Reference Guide: Determining Whether a Project is Likely to Cause Significant Adverse Environmental Effects to incorporate the views and concerns of Aboriginal peoples regarding their involvement in the
  • criteria (e.g. local impacts have same or greater importance than national)
  • methods (e.g. appropriate and meaningful inclusion of qualitative, observational, and/or traditional knowledge)
  • process (e.g. cooperative and consensus-based evaluation and interpretation of significance of impacts) of determining the significance of environmental effects; and
• Testing, evaluating and refining the criteria and better practice suggestions presented in this report to prove their usefulness and practicality. (This could be accomplished through the development of a partnership arrangement between the Agency, a RA, a proponent and one or more Aboriginal communities where a project is in its early stages of conception.)

Appendix 1: Interview Documents

Winds and Voices Environmental Services Inc.

Determining Significance: Aboriginal Interests, Rights and Values

Questionnaire

The intent of the interviews are for key individuals, organizations, and/or Aboriginal leadership to identify issues on the current methods of determining significance and how to improve the practice in order to involve Aboriginal peoples.

Objective: To identify Aboriginal interests, rights and values to determine significance.

• What criteria would you recommend be applied to determine significant impacts to ensure that Aboriginal interests, values and concerns are properly addressed?
• What are the indicators of significant impact to the interests, rights and values listed above?

Objective: To identify methods of improving the practice of determining significanceand involving Aboriginal peoples in the process.

• What advice, comment and/or recommendation would you give in order to achieve better involvement by Aboriginal peoples in the EA process which can lead to meaningful involvement in determining significance?

Winds and Voices Environmental Services Inc.

Determining Significance: Aboriginal Interests, Rights and Values

GUIDE FOR QUESTION #1

What interests, values and concerns would you recommend be applied to determine significant impacts to ensure that Aboriginal interests are properly addressed?

In some EAs, the things Aboriginal people value (e.g. medicinal plants) may not be considered when determining significance.

Based on our research, a preliminary list of values identified by Aboriginal people include such interests as cultural sites, Treaty and Aboriginal rights, wildlife habitat, migration routes, traditional andhistorical sites (e.g. trading routes), archaeological sites, etc.

What interests and/or values of your community do you feel should be included for consideration when determining significance?

GUIDE FOR QUESTION #2

How would you determine if an impact on the interests, rights and values listed above is significant or not?

Based on our research, a preliminary list of possible impacts identified by Aboriginal peoples as being significant includes:

• infringement of Treaty and Aboriginal Rights (e.g. decrease in land base, inability to exercise the right, adverse effects on land claims negotiations by development;
• deterioration of the environment (e.g. overall negative impact on air, water, land); increasing hardship among people who rely on resources as a primary or secondary source of diet and income); and
• health and safety (e.g. contamination of foodstuffs and natural environment, decrease in quality and quantity of herbs and medicines, increased stress on individuals and families).

GUIDE FOR QUESTION #3

What advice, comment and/or recommendation would you make to provide better opportunities for Aboriginal people to be involved in the EA process which can then lead to a more meaningful involvement in determining significance?

Our initial research indicates that Aboriginal people want to be more involved in the general processes of EA, and more specifically by the following:

• earliest access (e.g. The Agency must undertake consultations with Aboriginal peoples before any EA ever starts in order to build understanding and capacity within the Aboriginal communities on EA legislation and processes.);
• scoping( e.g. The RA must notify Aboriginal group of proposed projectand provide project description to Aboriginal group to identify interests and potential impacts.);
• consultation (e.g. The RA, not the proponent must consult Aboriginal peoples to ensure their full understanding of the process and proposed project, and to include their interests and values in the scoping exercise; the proponent must consult Aboriginal peoples when gathering baseline information; and the RA and the proponent must consult Aboriginal peoples when determining significance.);
• evaluation of Impacts (e.g. Aboriginal peoples must be included in identifying potential impacts and possible mitigation measures.);
• decision making (e.g. Aboriginal peoples must be included in making decisions on what constitutes a significant impact.);
• monitoring (e.g. Aboriginal peoples must be party to the development, design and implementation of monitoring programs.); and
• time and resources (e.g. The RA must provide sufficient time to Aboriginal peoples to respond to the project proposal; and the RA and the proponent must provide sufficient financial resources to Aboriginal peoples to respond to the EIS.).

Appendix 2: Contact List of Potential Interviewees

CONTACT LIST FOR INTERVIEWS

(Note Personal Names Withheld)

Appendix 3: Aboriginal Values and Significant Impact Indicators

ENVIRONMENTAL VALUES
IDENTIFIED AS BEING IMPORTANT BY ABORIGINAL PEOPLES

The following list presents the broad range of components and values of the environment that Aboriginal peoples have identified as being important and requiring protection and/or preservation to ensure their current and future social, cultural, spiritual and economic well-being. The following list was generated from information in the case study reviews, literature review and interviews of the research.

Land and Resources

• Abundance, distribution, movement of plants and wildlife
• Aquatic habitat
• Archaeological sites
• Barren Lands
• Beaver
• Burial sites, cremation grounds Cultural/geographic boundary markers
• Caribou
• Carving stone
• Changing patterns of consumption
• Climate
• Clothing needs (Arctic, High Arctic)
• Community water supplies
• Demographic changes
• Drinking water supplies
• Earth (diatomaceous, peat, volcanic ash)
• Eiderdown
• Environmental and biological productivity
• Fish
• Food and clothing requirements
• Forests
• Fox
• Geothermal resources (steam, water, water vapour heated by natural heat)
• Grizzlies
• Harvesting camps
• Harvesting rights
• Health
• Heritage/historic sites
• High water mark for streams
• Housing
• Human Capital
• Hydrology
• Ice beds
• Lakes
• Landfast ice Permafrost
• Lands for future tourism and other economic opportunities
• Lichen
• Maple sugar runs
• Marine Mammals
• Medicinal plants and roots
• Migratory birds (including habitat)
• Minerals (gypsum, sodium chloride)
• Moose
• Mountain sheep
• Musk ox
• Oceanography
• Outpost camps
• Pingos
• Place names
• Planning and management opportunities for wildlife, habitat, land, water
• Polar Bears
• Population growth
• Porcupine
• Preservation of cultural identity
• Preservation of traditional languages, beliefs, histories, cultural knowledge
• Prior development
• Protection of economic and spiritual relationship to land
• Protection/preservation of Arctic wildlife
• Public order (liquor, drug control)
• Quality, diversity and long-term optimum productivity of fish and wildlife populations
• Quantity and quality of water flow
• Raptors (eagles, owls, etc.) and products of (feathers, bones, etc)
• Rare, threatened, endangered species
• Muskrat
• Recreational areas
• Rocks (limestone, marble, flint, gravel, sand, shale, slate)
• Sage, sweet grass
• Scenery
• Shellfish
• Soils (ochre, clay, marl)
• Subsoils
• Survey monuments
• Traditional and current levels, patterns and character of harvesting Nutritional and cultural importance of wildlife
• Traditional native use
• Traditional routes of access
• Traditional systems of wildlife management
• Use and peaceful enjoyment of the land
• Vital, healthy wildlife populations
• Water beds
• Watersheds
• Wells
• Wild rice
• Wildlife and wildlife habitat
• Wolves

Aboriginal Rights

• Ability to exercise inherent Aboriginal and Treaty rights as per the Constitution Act, 1982
• Aboriginal interests in international agreements
• Aboriginal title in traditional territories
• Indian Act by-laws
• Intellectual property
• Land Codes under First Nations Land Management Act Stable land baseLand claims negotiations
• Metis rights and interests are not as fully recognized through legal jurisprudence and claims settlements to the same extent as First Nations and Inuit.
• Ownership and jurisdiction of lands and resources
• Protection of cultural distinctiveness and social well-being of Aboriginal peoples
• Treaty rights

SIGNIFICANT INDICATORS OF NEGATIVE IMPACTS

Aboriginal peoples have described a diversity of changes in, or impacts to the environment that they believe should be considered in EA processes to be significant environmental effects. The following list was generated from information in the case studies, literature and interviews covered by the research.

Harvesting

• Conflicts with harvesting practices and activities
• Disruption of harvesting activities
• Future harvest loss
• Greater distances of travel to hunting grounds
• Inability for youth to participate in their first hunt due to loss of caribou
• Loss of use, opportunity or interference with use of land and resources
• Restricted Access for harvesting and establishing/maintaining camps

Wildlife

• Altered caribou migration patterns (may require more travel)
• Caribou population decline
• Change in behaviour of species (e.g. habituation of bears at project sites due to garbage feeding)
• Damage to wildlife and habitat
• Loss of fish and fish habitat
• Loss of wildlife and wildlife habitat
• Wildlife population decline

Community/Health

• Contamination and degradation of community water supplies
• Cracked wells
• Sickness caused by contaminated animals

Contravenes Legal Standards

• Conflicts with conservation plans or regional land use plans
• Potential to exceed territorial and/or federal air and water quality standards

Ecosystem

• Deterioration of the natural environment
• Detrimental change in current use of land and resources for traditional purposes by Aboriginal persons
• Discharges or release of persistent and/or toxic chemicals, microbiological agents, nutrients
• Disruption of food webs
• Encroachment in areas of potentially high biodiversity
• Foreclosure of future resource use or production
• Habitat damage and /or disturbance
• Habitat fragmentation
• Habitat loss
• Negative effects on historical, archaeological, paleontological or architectural resources
• Negative effects on human health, well-being and quality of life
• Obstruction of migration or passage of wildlife
• Prevalence of acrid, noxious fumes and particles
• Reduction of quantity and/or quality of recreational opportunities or amenities
• Threats to rare and endangered species
• Transboundary ecosystemic or socio-cultural impacts
• Tumour growth on fish and wildlife
• Wildlife and/or fish population declines

Social Fabric/Health

• Abrogating well-established and traditional social obligations and domestic responsibilities
• Decline in use of place names relating to specific territories integral to Aboriginal culture
• Decreased quality and quantity of herbs and medicines − leads to weakened traditional healing practices and an additional strain on traditional health care systems
• Indicators of money management problems (e.g. increased gambling, alcohol and drug abuse, unpaid bills)
• Social indicators (e.g. increased alcohol abuse, criminal convictions, assault, spousal assault)

Economy

• Increased hardship among people who rely on resources as a primary or secondary source of diet and income
• Loss or damage to property or equipment used in wildlife harvesting
• Lost work related to gathering of fur-bearing animals
• Negative impact on the ability of future Dogrib to care for themselves in either the traditional way or cash economy
• Present and future loss of income from wildlife harvesting

Travel

• Interference with rights of navigation
• Interference with passage on water

Water

• Disruption of flow of underground streams
• Muddy, flooded rivers from clear-cut erosions
• Reduced flow of waters
• Reduced quality of waters
• Reduced quantity of waters

Aboriginal and/or Treaty Rights

• Decrease in land base causing adverse effects or negating aboriginal ability to negotiate land claims settlements
• Exclusion in the development, management and protection of Aboriginal and Treaty rights areas
• Infringement to Aboriginal rights where the proposal impairs and undermines the ability of Aboriginal peoples ability to continue with activities such as hunting, trapping, fishing
• Infringement to the Aboriginal right where the proposal imposes undue hardship on the holder of the right; denies the holders of the right their preferred means of exercising the right; and limits the Aboriginal right unreasonably
• Interference with exercise of Aboriginal and Treaty rights
• Interference with the peaceable enjoyment of traditional lands
• Limited access and exercise of aboriginal rights by development
• Long-term alienation
• Loss of opportunity to exercise Aboriginal rights
• Undermining the spiritual base

Other

• Exceeds activity thresholds
• Lack of proposed mitigation
• Unresolved environmental issues

Appendix 4: Case Study Review Notes

Results of the Case Study Review

A case study review of Aboriginal submissions in three recent federal EAs was conducted to achieve the following objectives:

• Determine the nature of environmental effects in each of the case studies that were identified as being significant.
• Determine the issues and concerns raised by Aboriginal people and/or organizations relating to how significance was determined in each case study.
• Identify recommendations made by Aboriginal people and/or organizations to ensure their values and concerns are addressed in the EA process with a focus on significance.

The case study review focussed on three specific EAs: the BHP Diamonds project, NWT; the Diavik Diamonds project, NWT; and the Voisey’s Bay Mine and Mill project, Labrador. These projects were chosen because they were situated in the heart of Aboriginal peoples’ territories and involved a relatively high level of involvement of Aboriginal people throughout the EA process. Listed below are the descriptions of each project, the Aboriginal groups potentially affected by the project and the results of the case study review.

Case Study #1 − BHP Diamonds Project

Project Description

The BHP Diamonds project, a joint venture between BHP Diamonds Inc. and the Blackwater Group, involved a proposal to develop and operate a diamond mining project in the Lac De Gras area of the NWT. Five diamond-bearing kimberlite pipes would be mined; four located within a few kilometres of each other in the Koala watershed north of Lac De Gras and a fifth, 29 km to the southeast, adjacent to Lac De Gras.

All the kimberlite pipes lie under lakes that would need to be drained before mining commences. All pipes would be mined by open-pit mining with subsequent underground mining of two pipes. The estimated life of a mine is 25 years. Other aspects of the proposed project included piling waste rock in the vicinity of each pit, a process plant to process ore and an impoundment basin for waste rock. The project also would include an airstrip, 400-person permanent camp, diesel power plant, integrated offices and security buildings.

The project is situated within the traditional territory of many First Nation groups, Including the Dogrib, Yellowknives Dene, Lutselk’e First Nation, Metis Nation of the NWT and the Kitikmeot Inuit Association. All Aboriginal groups expressed interest in participating in the EA and provided submissions to the proponent and/or the RA indicating their concerns regarding the project. This project was examined under the auspices of a federal EA panel review (See BHP Diamonds Project under Case Studies in the bibliography).

Findings

What environmental effects were identified as significant?

None of the environmental effects of the project were deemed to be significant. After the panel review, the environmental effects were seen as being largely predictable and mitigable. The potential economic benefits were seen to be large and socio-economic environmental effects were noted as being both positive and negative. The panel believed negative socio-economic environmental effects could be dealt with through long-term monitoring and various programs developed by the proponent and government.

Although many concerns were raised by Aboriginal groups concerning potential impacts on caribou, water quality, fish, vegetation and many other environmental components, the panel recommended that the project proceed. The proponent concluded that the environmental effects were insignificant for each environmental component mentioned in the EIS.

What were the issues/concerns raised by Aboriginal people/organizations related to “significance” and what values did Aboriginal people believe should be addressed in the EA process?

Issues and Concerns

Many issues and concerns were expressed by Aboriginal groups regarding the potential impact of the project on their interests; the outstanding issues and concerns are listed below.

• Caribou

Possibly the biggest concern expressed by Aboriginal groups was the potential for the project to impact caribou. The health of the caribou herds is essential to traditional land-based lifestyle of Aboriginal people in the area.

• Lack of data

Aboriginal groups indicated that the EA process had not gathered sufficient information and data on caribou. For example, Dogrib Elders stressed that adequate information on caribou cannot be attained in only two years of study (Dogrib Treaty 11, 1996). Other concerns included: a lack of information in general regarding the project; more data was needed on wildlife, fish habitat, socio-economic conditions, water, Inuit harvesting rights and other environmental components.

• Aboriginal issues not addressed

In various submissions to the proponent and/or RA, Aboriginal groups expressed their concerns about the issues they felt were important but had not been properly addressed in the EA process − such as the potential environmental effects on caribou. The project was allowed to proceed without addressing these effects; it was recommended that those concerns could be addressed through a caribou management plan. Other specific concerns of Aboriginal people that were not addressed in the EA included impacts of fuel emissions and dust associated with increased land and air traffic. The Metis Nation recommended the proponent specifically address issues that directly affect Metis lands and resources.

Additionally, Aboriginal groups were concerned over findings in the EA process. For example, the EA report found that the changes to water quality and stream flow would not have significant widespread effects. However, Aboriginal groups were not convinced that the changes were not significant. Other findings questioned by Aboriginal groups were the ability of the proponent to fully assess the impacts on certain rivers without addressing cumulative effects of all past, present and future projects.

Values

• Eskers

An important consideration raised by Aboriginal groups was the importance of eskers. Eskers are geological formations made by glaciers. These formations are very important to various Aboriginal groups and wildlife. Eskers were traditionally used as burial sites for Aboriginal people. They are also prime habitat for a variety of denning animals. Aboriginal people recommended that no eskers be destroyed without a full assessment by affected Aboriginal communities (See BHP Diamonds Project under Case Studies in the bibliography).

• Caribou

Aboriginal people identified caribou as being central to their way of life and indicated the importance of their protection. Aboriginal groups stressed the importance of caribou as a staple food source, as well as for clothing and shelter.

• Additional values identified by Aboriginal groups

Beaver
BirdsFish
Fox
Grizzlies
Wolves Burial sites
Place names and the relationship between them
Heritage sites
Trading routes Housing
Health

Were there recommendations made by Aboriginal people and/or organizations to improve the practice of determining “significance”?

• Traditional knowledge

Aboriginal groups identified the need to include traditional knowledge in designing and conducting further baseline studies, as well as ongoing research and monitoring programs relating to the project. To ensure traditional knowledge is properly acknowledged and recorded, Elders recommended that it be gathered on an individual basis. Several Aboriginal groups recommended that the proponent demonstrate how traditional knowledge would be utilized throughout the life of the project.

• Decision making

Decisions concerning the territories of Aboriginal peoples must be made by those who have travelled and worked on the land. This will ensure that informed decisions are being made.

• Time and resources

Aboriginal people continually expressed the need for additional time and resources when participating in the EA process. Virtually all of the submissions made by Aboriginal groups to the panel indicated that they needed more time and/or resources to effectively participate in the EA process.

Many stated that additional time and resources would have afforded them the opportunity to meet their own research requirements using their own methods. For example, a number mentioned that additional time was needed to allow for translation of key documents. Elders also recommended that funding should have been put in place to allow them to record their laws, which they felt were important to protect. In some instances, Aboriginal groups stated they did not receive adequate participant funding and could not fully respond to the proponent’s EIS.

• Consultation

Aboriginal groups in various submissions to the proponent and/or the RA indicated the need for greater consultation in the EA process. Further recommendations were to include the Metis when conducting the EA − to ensure they have an opportunity to participate and are meaningfully consulted throughout the EA process.

• Participation

Aboriginal groups recommended being more adequately involved in various stages of the EA process, including the development of management and monitoring plans. They recommended that project approval be subject to the development of various management and monitoring programs considered necessary to ensure effective environmental management, and to ensure Aboriginal issues and concerns are addressed.

Case Study #2 − Diavik Diamonds Project

Project Description

The Diavik Diamonds project is situated at East Island in Lac De Gras, NWT. The project, involving both open-pit and underground mining, was described as having its facilities situated on the island, with open pits behind water-retention dikes located offshore. A processed kimberlite containment facility, country-rock areas, a diamond recovery plant, accommodation buildings, power generation facilities, mechanical and administration buildings and a 2,000 m airstrip would also be located on East Island. Other site developments included mine haul-roads, access roads, service roads, and quarry and borrow sites. The project is composed of four kimberlite pipes that have a combined geological resource of 37.4 million tonnes. Final closure of the mine would take place in 2030.

Dene, Metis and Inuit communities reside within the proposed area for the Diavik Diamonds project. Aboriginal people from the communities view stewardship of the land and its resources as an important responsibility. The project was subject to a comprehensive study under the Act.

Results

What environmental effects were identified as significant?

No environmental effects were identified as being significant in the EA report for the Diavik Diamonds project. The comprehensive study report identified the areas covered in the environmental effects analysis. Climate and air quality, global climate change, vegetation, terrain and wildlife were a few of the values and environmental components subject to an environmental effects analysis. The environmental effects for each of the environmental components in the comprehensive study report were identified as not likely to result in significant adverse effects.

The EIS indicated that where environmental effects on certain environmental components, such as caribou, permafrost, and surface runoff, are not certain. The environmental effects could be addressed later, at the regulatory stage, and through ongoing monitoring. The project was approved with certain conditions (i.e. ongoing monitoring and mitigation).

What were the issues/concerns raised by Aboriginal people and/or organizations related to “significance” and what values did Aboriginal people believe should be addressed in the EA process?

Issues and Concerns

• Interpretation of significance

Aboriginal organizations had issues and concerns about how the significance of environmental effects was interpreted. The proponent indicated that certain environmental effects relating to dust emissions, climate change, regional impacts, wildlife, fish and fish habitat and many other environmental components were not significant. Aboriginal groups expressed the importance of having absolute certainty when determining environmental effects because the components of the environment are critical to their cultural, social and economic survival.

• Methodology for determining significance

Aboriginal people also questioned the methodology or process of how significance was determined. Aboriginal groups questioned the thresholds used to determine significance. Aboriginal groups contended that thresholds for determining significance were set so high that all effects would be deemed insignificant. There were several examples throughout Aboriginal submissions in which the proponent predicted no significant environmental effects which Aboriginal organizations disagreed with. In particular, the Aboriginal groups disagreed that impacts related to dust emissions, wildlife, fish and fish habitat, climate change and surface water would not be significant. The RA concluded that the proponent’s criteria were consistent with evaluation standards for EA and reflected best practices in EA studies across Canada.

Aboriginal groups were concerned that the environmental effects would not be localized as the proponent indicated in the EA. For example, Aboriginal groups felt increased hunting, changes in migratory patterns and many other factors would affect caribou at a regional level.

In addition to uncertainties regarding the potential environmental effects of the project, Aboriginal groups expressed concern about the prediction models used by the proponent to determine impacts. They recommended Diavik closely monitor the project for its impacts on the caribou, other wildlife and water quality not just at the project site, but on a broad regional basis.

• Lack of information to make informed decisions

One Aboriginal group contended that Diavik did not collect sufficient data about community wellness, cultural well-being, traditional land use and economy, heritage resources and traditional knowledge. This type of information was viewed critical by the Aboriginal groups to a proper and comprehensive assessment of environmental effects. Aboriginal groups also held the view that the proponent had not collected sufficient information about the environmental effects of the project on surface water. In contrast, the RA was satisfied with the proponent’s assessment of surface water impacts.

• Additional values identified by Aboriginal groups

Beaver Birds
Caribou
Fish
Fox
Lichen
Grizzly
Moose
Musk ox
Muskrat
Wolves
Barren lands
Lakes
Scenery
Human capital

Were recommendations made by Aboriginal people and/or organizations to improve the practice of determining “significance”?

• Time and resources

There were several recommendations in the Aboriginal submissions that additional funding should be made available to allow Aboriginal groups to carry out their own review of the project. Some Aboriginal organizations indicated they did not have the human resources to participate in the EA process.

• Consultation

A common statement was that Aboriginal groups need to be consulted more meaningfully in the EA process. They recommended that proponents should document the results of the consultations in a “issues database.” This would ensure that the concerns and issues raised by First Nations would be accurately addressed in the EA process. Additionally, Aboriginal groups recommended meeting directly with the Minister of Environment to ensure their issues were addressed.

• Ensure a broad and comprehensive consultation

It was recommended that the proponent should have held comprehensive discussions with Aboriginal groups concerning its predictions of environmental effects on Inuit and Aboriginal traditions in the Lac De Gras area. To ensure meaningful consultation, Aboriginal groups recommended that it be a legislative requirement for the proponent to work with the communities to address matters such as the project’s impact on water quality.

• Future monitoring and review

Aboriginal groups recognized that not all issues would be addressed by the EA, and further monitoring and review of the project would be necessary. Aboriginal groups recommended that they be involved in all future monitoring of the project and any further reviews that may be required. Aboriginal groups were concerned about the uncertainties of predicting impacts and strongly recommended the project be closely monitored.

Case Study #3 − Voisey’s Bay Mine and Mill Project

Project Description

The Voisey’s Bay Nickel Company (VBNC) proposed to mine nickel, together with some copper and cobalt, at a location in northern Labrador, 35 km south of Nain and 79 km north of Utshimassits (Davis Inlet). VBNC would start by mining 32 million tonnes of ore from an open pit, while carrying out more exploration to determine the quantity of below-surface ore. VBNC would then develop an underground mine, where it hoped to mine another 118 million tonnes. Other aspects of the project included partial processing of the ore on site, tailings ponds, an airstrip, docking facilities for ocean ships and a permanent camp for site personnel. During the EA hearings VBNC reported the project would create 570 jobs during construction, 420 jobs in the open pit phase and 950 jobs in the underground phase.

The area in the project was being proposed is home to Aboriginal people, namely the Labrador Inuit and the Innu Nation. These two groups, whom would be most likely to feel any direct impacts of the project insisted on taking part in many aspects of the EA. On January 13, 1997, both the Inuit and Innu signed Memorandums of Understanding with VBNC that provided for their direct participation in the EA and recognized the interests of the Labrador Inuit Association and the Innu Nation. The Voisey’s Bay Mine and Mill Project was subjected to a panel review under the Act.

Results

What environmental effects were identified as significant?

The panel reviewed all aspects of the project and considered the opinions of many groups of people, including Aboriginal peoples, in making its decision regarding the project. The panel concluded that the project would not seriously harm the natural environment in such a way as to deprive the Aboriginal peoples of country foods or their ability to harvest them.

Air quality, contaminants in the environment, freshwater fish, fish habitat and marine mammals were some of the key environmental components addressed in the environmental effects analysis. It was concluded that there would be no significant environmental effects, however the panel recommended further measures (follow-up and monitoring) to ensure that there were no significant environmental effects.

What were the issues/concerns raised by Aboriginal people/organizations related to “significance” and what values did Aboriginal people believe should be addressed in the EA process?

Issues and Concerns

Aboriginal peoples issues and concerns about the project and EA process centered on two primary areas: lack of information in the EIS and the methodology used to predicting potential impacts. Other issues were raised as well and these are also summarized below.

• Lack of information

Virtually all of the submissions made by Aboriginal groups raised concerns about the lack of baseline information in the EIS. Lack of information occurred when referring to baseline inventories for watersheds, quantification of fish habitat and many other areas. Innu Nation also felt that the threshold for the adequacy of information about impacts had not been met.

• Findings regarding impacts

Aboriginal submissions indicated a general disagreement about the findings in the EIS. The Innu Nation criticized the proponent’s prediction of the natural environment, terrestrial environment, environmental impacts, fish and fish habitats, marine mammals and social impacts. They felt the proponent had not sufficiently investigated possible environmental effects and had simply resorted to the use of the phrase “uncertain environmental effect” too often. For instance, Aboriginal submissions indicate that the EA did not address predicted water shortages in tailings ponds, physical disruption of fish habitat and chemical alteration of surface and groundwater sources.

• Additional findings

The Innu Nation also felt that the threshold for the adequacy of information about impacts had not been met.

• Additional values identified by Aboriginal groups

Aquatic life Fish habitat
Fish
Shellfish
Caribou
Marine mammals
Polar bears Lakes and tributaries
Social impacts

Were there recommendations made by Aboriginal people and/or organizations to improve the practice of determining “significance”?

• Criteria and principles for determining significance

Aboriginal groups had many recommendations to improve the criteria for determining significance. For instance, it was recommended that the proponent use the Department of Fisheries and Oceans habitat alteration, disruption, and destruction guidelines to address significance for the project. They felt these guidelines represent a tangible measure for determining significance.

Additional recommendations focussed on certain rules and principles that should be applied to determining significance − for example, using the precautionary principle and incorporating duration, extent, severity and probability into the determination of significance. They also suggested that the method of determining significance should include models and assumptions that apply ranges (e.g. highs and lows, full life cycle of species etc.).

Aboriginal groups also made several recommendations to clearly define the terms used to describe significance and to ensure that Aboriginal groups understand what they mean (in the case of the VBNC, EIS the terms “slightly,” “short-term,” “long-term,” “moderate” and “minor” were used to describe the significance of environmental effects).

• Impact modelling

The proponent relied on the use of various models to predict the significance of environmental effects. Aboriginal groups questioned the ability of the various models to accurately predict the significance of environmental effects. It was recommended that models be improved to take into consideration various scientific aspects such as water evaporation, estimating contaminant routes, decomposition of organic matter and uptake of contaminants by plants.

Though these recommendations were very particular in nature, it can be generally stated that the development of the various models used by the proponent should be developed in conjunction with Aboriginal groups and/or their consultants to ensure that they take into consideration the full range of scientific and traditional knowledge available.

• Additional resources

It was recommended that additional financial resources be provided to Aboriginal groups to participate more effectively in the EA.

• Further studies and monitoring

Aboriginal groups recommended that the proponent gather further data on various environmental components deemed important to them and potential at risk from the project. Specifically, it was recommended that there be further marine mammal studies, development of a polar bear management zone, and further investigation of possible impacts of the project on lakes and tributaries.

To ensure their concerns were adequately addressed, Aboriginal groups recommended that the proponent file additional information where its findings had indicated uncertainty about environmental impacts and then further assess the significance based upon the additional or new information. It was suggested that the gaps in knowledge and information could be filled by Elders who have invaluable insight about the land and resources.

Appendix 5: Aboriginal Issues and Concerns Related to Significance

The following is a compilation of points raised by Aboriginal peoples. It is based upon information derived by the researchers through the literature review, case study review and interviews.

Methodology for Determining Significance

• Use habitat alteration, disruption and destruction guidelines to address significance for the project.
• Rules and principles to determine significance should include the precautionary principle; incorporating the duration, extent, severity and probability of EAs; considering the vulnerable stages of aquatic life; modelling to address assumptions; and using ranges of highs and lows.
• Unless the predicted impacts give the RA a good idea of what the important impacts are likely to be and their significance, approval should not be given for the project to proceed.
• Redefine terms related to significance to ensure they are understood clearly (i.e. “slightly,” “short-term,” “long-term,” “moderate” and “minor”).
• Candidate VECs should include species important to Aboriginal groups.
• The Review Panel should take a broader approach to examine potential cumulative effects.
• Thresholds of significance should be lowered. They are currently set very high and this makes it difficult to classify any environmental effect as significant.
• Determination of significance should be expended to include effects significant to Aboriginal peoples, and not be limited only to those defined by the Act.

Consultation

• Make all results readily available to the community group(s).
• Identify the community group(s) as the focal point for consultations.
• Consult with community residents most likely to be affected.
• Hold hearings in the communities most affected by proposal.
• Include local communities affected by proposals in the design and consultation processes.

Process and Protocol

• Start consultation in the exploration stage, well before the development or production stages.
• Develop and agree on a process for future consultations.
• Governments need a thorough understanding of the historical transformation, current conditions and future visions of the affected communities.
• Employ reasonable effort and analysis to determine the existence of Aboriginal rights, the implications of resource management or development activities on those rights, and whether the approval of the proposal can co-exist with Aboriginal rights.
• Conduct consultations with Aboriginal peoples in a manner consistent with government-to-government relationships.
• Hold round tables with communities, stakeholders and proponents.
• A process for verifying the proponent’s “issues database” is needed.
• Hold comprehensive discussions on the predicted potential effects that the project may have.

Duty to Consult

• Upgrade the Act to reflect recent and current case law in respect of Aboriginal and Treaty rights (i.e. Delgamuukw, Marshall).
• Greater consultation is needed with the proponent and the RA in the EA process.
• Ensure Metis people have an opportunity to participate in the EA and be meaningfully consulted throughout the EA process.
• Meet with the Minister of Environment to ensure that Aboriginal issues are addressed.
• A legislative authority is required to ensure that the proponent works with the affected communities.

Role of Government in EA

Legislative Requirements

• Protect section 35(1) of the Constitution Act (1982) by embodying them in federal legislation.
• Respect the rights of Aboriginal peoples and their relationship to their lands, environment and natural resources.
• Incorporate sections on EA into the implementation plans of land claims and self-government agreements.
• The proponent must identify all government agencies and other organizations involved in the regulation, monitoring and/or management of proposed projects.

EA Policy

• Broaden the scope of “significance” to include long-term and cumulative impacts, and to capture Aboriginal relationships to traditional lands (historical and current use) and unextinguished rights.
• Formalize a regulatory process to ensure that commitments are met by proponents and RAs.
• In evaluating impacts on Aboriginal peoples:
  • Spiritual, cultural and social differences must be recognized.
  • Aboriginal goals for social, political and economic development must be recognized.
  • Aboriginal peoples involvement in all phases of the planning process must be ensured.
  • Methods appropriate to Aboriginal peoples must be used.
• Create a framework that managers of EA and development planning projects can use to ensure appropriate inclusion of Aboriginal peoples and their knowledge as part of EA and development planning processes.
• Create a step-by-step approach to assist Aboriginal peoples to deal with projects of impact on their environment and way of life.
• Relevant environmental, social, economic and cultural standards, guidelines and objectives should guide the determination of significance.
• Scoping requirements of the process should be clarified in the Act to draw a clear distinction between “scoping of the project” (what constitutes the project) and “ scope of the assessment” (what will be considered during the course of the assessment).
• A single EA regime should be established.
• A proponent code of conduct should be established.

Role of Aboriginal Peoples in EA

• A “cookie-cutter” approach should not be used to create an artificial Aboriginal viewpoint or set of issues.
• Recognize that oral history is a valid and relevant form of research for establishing significance.
• Use the traditional knowledge and experience of Aboriginal peoples for regional planning.
• Take into account oral forms of communication and traditional land management practices.
• Increasing Aboriginal participation in the process or improving consultation methods will be of no effect if decision-makers ignore recommendations of fundamental importance to Aboriginal peoples.
• If the Act is to have any legitimacy or integrity with Aboriginal peoples, it must ensure that EA is comprehensive and that Aboriginal peoples are included in the process from beginning to end.
• Develop an environmental protection plan in cooperation with Aboriginal peoples.
• Include traditional knowledge.

Decision Making

• Dynamic, evolving local EA regimes with clearly defined operating procedures and guidelines should be developed?.
• Remove the discretion of the RA to determine significance by developing schedules for categories of activities (statutory schedules, checklists).
• Harmonize the Act with land claims and self-government agreements. The jurisdiction of Treaty Nations must be recognized.
• Decisions concerning the territories of Aboriginal peoples must be made by those who have travelled and worked the land.
• Informed decisions are made by those who know the land.

Time and Resources

• If Aboriginal groups cannot provide details of cultural and sustenance resources within the study area, the proponent must commission such studies as necessary to identify the presence of such resources.
• Instantaneous and written translation of process and materials should be available.
• Aboriginal groups should be able to carry out their own reviews of projects. Additional financial and human resources should be provided to Aboriginal groups to participate more effectively in the EA review.
• Government should provide training and/or funding to Aboriginal groups to eliminate the serious lack of education, expertise and technical training.
• Additional time and resources would afford Aboriginal groups the opportunity of meeting their own research requirements using their own methods. (Aboriginal people continually expressed the need for additional time and resources when participating in the EA process; most of their available human resources are focussed on negotiating land claim agreements).

Internal Community Processes

• Clearly define local processes.
• Develop and complete historical reviews of traditional land use to determine spiritual, cultural and sacred areas.
• Assess archaeological sites using traditional knowledge.

Participation by Aboriginal Groups

• Aboriginal groups recommended being more adequately involved in various stages of the EA process, including development of management and monitoring plans.
• Project approval should be subject to the development of various management and monitoring programs considered necessary to ensure effective environmental management and to ensure Aboriginal issues and concerns are addressed.
• There was additional need for time to allow for translating key documents in the EA process.
• Elders also recommended funding to record their laws that are important to protect.
• In some instances, Aboriginal groups did not receive adequate participant funding and could not fully respond to the proponent’s EIS.

Traditional Knowledge

• Traditional knowledge should be included in designing and conducting further baseline information studies related to the project.
• To ensure traditional knowledge is properly acknowledged and recorded, Elders recommended that it be gathered on an individual basis.
• The proponent should demonstrate how traditional knowledge would be used throughout the life of the project.

Future Monitoring and Review

• Aboriginal groups should be involved in all future monitoring of the project and any further reviews that may be required.
• Uncertainties in predicting impacts should result in the project being closely monitored.
• If work was not completed by Diavik’s comprehensive study review, the outstanding matters should be subject to further review under an independent EA panel.
• Aboriginal groups recommended that there be more information gathered with regard to various environmental components of projects (i.e. marine mammal studies, development of a polar bear management zone, lakes and tributaries, and locations of proposed project facilities).
• The proponent should file additional information and prediction about impacts where serious uncertainties regarding environmental impacts remain.
• Gaps in knowledge and information could be filled by Elders, who could provide valuable insight in existing resources throughout the project area.

Bibliography

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CASE STUDIES

BHP Diamonds Project

Canadian Environmental Assessment Agency. June 1996. NWT Diamonds Project: Report of the Environmental Assessment Panel. Minister of Supply and Services Canada.

Dogrib Treaty 11 Council. 12 February 1996. Presentation to General Session: EARP Panel Hearings. Yellowknife, Northwest Territories.

Kitikmeot Inuit Association. 13 January 1996. Notes for the Presentation to the BHP Diamonds Project Environmental Assessment Panel.

Lusel k’’e First Nation. February 1996. Submission to the Wildlife Technical Session of the NWT Diamonds Project Environmental Assessment Review Hearings.

Lusel k’’e First Nation. 20 February 1996. Submission to the Socio-Economic Technical Session of the NWT Diamonds Project Environmental Assessment Review Hearings.

Lusel k’’e First Nation. 20 February 1996. Submission to the Environmental Management Plans Technical Session of the NWT Diamonds Project Environmental Assessment Review Hearings.

Lusel k’’e First Nation. 20 February 1996. Submission to the Water Technical Session of the NWT Diamonds Project Environmental Assessment Review Hearings.

Metis Nation − Northwest Territories. 23 February 1996. Closing Statement presented by William Carpenter for Gary Bohnet to the BHP Diamond Environmental Assessment Review Panel.

North Metis Alliance. Can’t Live Without Work − North Slave Metis Environmental, Social, Economic and Cultural Concern: A Companion to the Comprehensive Review Study on the Diavik Diamonds Project.

Diavik Diamonds Project

Department of Indian and Northern Affairs, Natural Resources Canada and Department of Fisheries and Oceans. June 1999. Comprehensive Study Report: Diavik Diamonds Project.

Department of Indian and Northern Affairs, Natural Resources Canada and Department of Fisheries and Oceans. September 1999. Responsible Authorities’ Response to Public Comments on the Diavik Diamonds Project Comprehensive Study Report.

Kitikmeot Inuit Association. 20 July 1999. Letter to Minister of Environment.

North Slave Metis Alliance. Can’t Live Without Work − North Slave Metis Alliance Environmental, Social, Economic, and Cultural Concern: A Companion to the Comprehensive Study Review on the Diavik Diamonds Project.

Pearse, T. D. June 1999. Diavik Diamonds Project An Environmental Assessment. Dogrib Diavik Working Group. Dogrib Treaty 11 Council.

Voisey’s Bay Mine and Mill Project

Chambers, M., J. Kuipers and P. Robinson. 20 March 1998. Comments relating to Tailings and Waste Rock Management and Air Quality Impacts on the Voisey’s Bay Mine/Mill Project Environmental Impact Statement. Center for Science in Public Participation.

Heathcote, I. 16 February 1998. Report on Deficiencies in the Environmental Impact Statement for the Voisey’s Bay Mine and Mill Undertaking. Wyndham Research Inc. in collaboration with students of 96-401 Environmental Colloquium University of Guelph. Guelph, Ontario.

Innu Nation. October 1998. If We Wait and See It Will Be Too Late: Innu Nation Critique of Approach to Environmental Management by Voisey’s Bay Nickel Company.

Innu Nation. March 1998. Compendium of Critiques of the Voisey’s Bay Nickel Company Limited Environmental Impact Statement, Voisey’s Bay Mine Mill Project.

Makowecki, R. February 1998. Aquatic Ecosystem Assessment of the Environmental Impact Statement for Voisey’s Bay Mine/Mill Project. Westworth Associates Environmental Ltd. Edmonton, Alberta.

Makowecki, R. 15 September 1998. Freshwater Fish and Fish Habitat. Westworth Associates Environmental Ltd. Edmonton, Alberta.

Symbion Consultants. February 1998. Review of the Adequacy of the Voisey’s Bay Mine/Mill Project Environmental Impact Statement Relative to the Socio-Economic Directives Contained in the Voisey’s Bay Mine/Mill Environmental Assessment Panel Final Guidelines.