ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS
AGREEMENTS
MARCH 21, 2013
Overview
• Land Claims EA Regimes
• Grand Council of the Cree (JBNQA)
• Dene First Nations Agreements (MVRMA)
• Yukon First Nations Agreement (YESSA)
• Application of CEAA 2012
Modern Comprehensive Claims
Comprehensive Claims Agreements
• Modern era of aboriginal claims settlement dates from 1973 Canada policy
• Comprehensive vs. specific claims
• Comprehensive claims based on assertion of continuing Aboriginal rights and/or title to lands and natural resources
• Achieve certainty of land tenure
Comprehensive Claims Agreements
• Agreements provide rights and benefits (title to some land, rights to other lands, financial benefits, joint management regimes for resources
• Joint management (co-management) regimes (wildlife, water, land use planning and management, environmental assessment)
James Bay and Northern Quebec Agreement (JBNQA) and EA
• Canada, Quebec, Cree, Inuit signed JBNQA in 1975
• JBNQA paramount over all other laws of general application
• Established governance framework for social, economic development, environmental protection
• Environmental assessment process for Cree traditional territory – s. 22,23
James Bay and Northern Quebec Agreement (JBNQA) and EA
• Cree agreed to construction of La Grande project
• Separate process for federal or provincial assessment of projects depending on constitutional jurisdiction within which project falls
• But SCC in Moses decides CEAA EA also required; Fisheries Act authorization required, triggers CEAA EA; Duplication?
Great Whale Project
• Methylmercury contamination of reservoirs and fish was key unanticipated impact of La Grande project
• Great Whale proposed in 1986, first major project to be assessed under JBNQA
• 3,060 MW complex of dams, dikes river diversions located north of La Grande
• Projected cost: $48 billion • Impacted Inuit and Cree lands
Great Whale Project
Great Whale Project
• Reservoirs of 3000 sq km, plus 865 sq km flooded land to existing water bodies
• Third large hydro project (Nottaway Broadback Rupert) also announced for region south of La Grande
• Cree concerns: fish, beluga whales, polar bears, threatened freshwater seals, aquatic balance along Hudson Bay coast, ice regimes in rivers and ocean, traplines
Great Whale Project
• In 1990, before EA started, Hydro-Quebec called for tenders to construct access road
• Federal government states it has no authority over road construction
• In 1991, Cree apply for mandamus compelling federal government to comply with federal environmental and social impact assessment and review procedures (ss. 22, 23 of JBNQA)
Great Whale Project
• Canada/Quebec argue that joint EARP study underway (without Cree), results to JBNQA provincial administrator (thus eliminating federal review under s.22)
• Federal court said this could happen but only if it did not prejudice Cree rights under JBNQA (which it did)
• Mandamus ordered, upheld on appeal
• Cree Regional Authority v. AG Quebec (1991)
Great Whale Project
• Panel review established with Canada, Quebec, Cree and Inuit representation
• Scoping hearings held
• Panel did not complete its work as a result of political events
Great Whale Project • Cree campaign to oppose Great Whale River
Project wins in 1992 when New York State withdrew from a multi-billion dollar power purchasing agreement
• Quebec/Hydro-Québec suspend Great Whale Project indefinitely in 1994
• Quebec and Cree agree in 2002 on new relationship and on environmental rules for 3 new power stations on Eastmain River, diversion of Rupert River
Environmental Assessment under MVRMA
• MVRMA enacted in 1998 following completion of land claims agreements with Gwich’in, Sahtu Dene, later Tlicho Dene
• Mackenzie Valley Environmental Impact Review Board - co-management EA board
• Seven or more members appointed by Minister, half (excluding chair) nominated by aboriginal groups, four by governments, chair nominated by Board s. 112
Purposes
• Establish Review Board as main instrument for EA in Mackenzie Valley
• Ensure environmental impact of developments carefully considered before actions taken
• Ensure concerns of aboriginal people and general public are taken into account
s. 114
Guiding Principles
• Timely and expeditious
• Have regard to: – protection of environment from significant
adverse impacts of developments– protection of social, cultural and economic
well-being of residents and communities– Importance of conservation to well-being and
way of life of aboriginal people s. 115
Preliminary Screening
• Applies to proposed developments requiring permit by Mackenzie Valley Land and Water Board or other regulator s. 124
• Quick review of application to determine if project might have significant adverse impacts on environment or be of public concern s. 125
• If yes, refer for EA by MVRMB• If no, issue permits
Environmental Assessment
• EA by MVRMB a more thorough study to decide if development likely to have significant adverse impacts on environment, cause public concern s. 126
• If yes, MVRMB may recommend Minister issue permit(s), issue permits subject to mitigation measures, or reject s. 128
• Alternatively, MVRMB or Minister(s) may order panel review s.129, 130
Environmental Impact Review
• Review conducted by an independent panel, consisting MVRMB and non-MVRMB Board members
• Review provides more focused study of issues raised during EA s.132
• Review panel issues report with recommendations to federal Minister, responsible Ministers, regulatory agencies for decision s. 136, 137
Application of CEAA 2012
• Minister may refer a project to a panel review under CEAA 2012 where in national interest s. 130
• Otherwise CEAA 2012 does not apply in Mackenzie Valley s.116
• MVRMB did EA of Mackenzie Gas Project prior to Joint Panel Review
Yukon Environmental and Socio-economic Assessment Act
Purposes•Provide a comprehensive, neutrally conducted assessment process •Require consideration of environmental, socio-economic effects before projects undertaken •Ensure projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend s. 5
Trends in Aboriginal Claims EA
• EA regimes co-managed with aboriginal communities
• Assessing sustainability, nor just environmental effects
• CEAA 2012 doesn’t apply except for large, transboundary projects in Mackenzie Valley, Yukon and Nunavut
• CEAA 2012 limited application in northern Quebec, Inuvialuit region of NWT
Application of CEAA 2012
• Minister may refer a project to a panel review under CEAA 2012 s. 62
• Otherwise CEAA 2012 does not apply in Yukon s. 6
CEAA 2012 Application to Aboriginal Lands/People
• CEAA 2012 has purpose to promote communication/cooperation with aboriginal peoples with respect to EA s.4.(d)
• CEA Agency has similarly stated object s. 15.(g)
• CEAA 2012 applied to virtually all federal decisions relevant to First Nations; CEAA 2012 doesn’t—potential gap in coverage in relationship to Crown consultation?
CEAA 2012 Application to Aboriginal Lands/People
• Are changes to “environmental effects” definition important?
• What if designated projects screened out of CEAA 2012 EA process? How will Crown meet its Crown consultation duties?
• S.19 allows consideration of community/ Aboriginal traditional knowledge in EA