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Traditional ecological knowledge and environmental governance in Canada : the role of law and comprehensive… Pudovskis, Matthew Stephen 2013

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TRADITIONAL ECOLOGICAL KNOWLEDGE AND ENVIRONMENTAL GOVERNANCE IN CANADA: THE ROLE OF LAW AND COMPREHENSIVE AGREEMENTS IN FACILITATING INCORPORATION  by Matthew Stephen Pudovskis  B.Sc. (Env)(Hons), The University of Western Australia, 2000 LL.B. (Hons), The University of Western Australia, 2004  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  October 2013  ? Matthew Stephen Pudovskis, 2013  ii  ABSTRACT This thesis examines the incorporation of traditional ecological knowledge or ?TEK? (sometimes known as ?traditional knowledge?) in environmental governance regimes at two levels: at the national level in respect of Canada, and at the regional level in respect of environmental impact assessment (?EIA?) regimes established by or under comprehensive land claims agreements in Canada.  The objective was, broadly, to gain an understanding of the depth and manner of TEK incorporation in Canada, particularly in the context of EIA regimes established under comprehensive agreements.  I approached this objective by first reviewing the relevant literature on the theory of TEK, and identifying principles for the efficient and respectful incorporation of TEK in practical contexts, including co-management under comprehensive agreements.  I then applied these principles in the contexts of the common law and statutory duties to consult, as well as statutory and other duties to consider TEK under Canadian law.  For my main empirical chapter I applied the principles in the context of a detailed case study of TEK in relation to four EIA regimes established by or under six comprehensive agreements.  For the case study I examined both the terms of agreements and associated rules and procedures, and documents evidencing actual project assessments. I conclude that statutory and other duties to consult Indigenous peoples and consider TEK provide a solid foundation for the incorporation of TEK in practice in Canada in relation to a wide range of areas of environmental governance.  At a practical level, evidence for the substantial incorporation of TEK in Canada is less clear outside of the EIA context, though there is evidence in relation to some areas (especially fisheries and oceans management).  In relation to EIA, there is evidence of substantial TEK incorporation in the context of co-management regimes established under comprehensive agreements.  I discuss the role of legal and institutional iii  mechanisms as well as other factors such as Indigenous agency in facilitating the incorporation of TEK in practical contexts.  Finally, I suggest some ways in which EIA regimes established under comprehensive agreements might be designed so as to maximise the efficient and respectful incorporation of TEK.   iv  PREFACE  This thesis is original, unpublished, independent work by the author, M. Pudovskis. Portions of Chapter 3 have been submitted to an academic journal for review and possible publication.   v  TABLE OF CONTENTS ABSTRACT .................................................................................................................................................. ii PREFACE .................................................................................................................................................... iv TABLE OF CONTENTS .............................................................................................................................. v LIST OF FIGURES .................................................................................................................................... vii ACKNOWLEDGEMENTS ....................................................................................................................... viii 1 INTRODUCTION ................................................................................................................................ 1 1.1 The rise of TEK and Indigenous participation in environmental governance .............................. 1 1.2 This thesis ................................................................................................................................... 13 2 THEORETICAL DIMENSIONS OF TEK ......................................................................................... 20 2.1 Issues of nomenclature ................................................................................................................ 20 2.2 Meaning and nature of TEK ........................................................................................................ 23 2.3 Socio-cultural context of TEK .................................................................................................... 28 2.4 Implications for co-management and the ?incorporation? or ?integration? of TEK arising from TEK?s meaning and nature and socio-cultural context ........................................................................... 32 2.4.1 The ?anthropological perspective? on TEK ........................................................................ 32 2.4.2 A response to the ?anthropological perspective? ................................................................ 37 2.5 Conclusions ................................................................................................................................. 46 3 TEK IN THE CANADIAN CONTEXT ............................................................................................. 48 3.1 The duty to consult ...................................................................................................................... 48 3.2 Statutory and other duties to consult Indigenous people and/or consider TEK in environmental decision-making ...................................................................................................................................... 62 3.2.1 Conservation and management of species and habitats ...................................................... 62 3.2.2 Management of national parks ............................................................................................ 73 3.2.3 Fisheries and oceans management ...................................................................................... 78 3.2.4 Environmental protection and management including EIA ................................................ 86 3.3 Conclusions ................................................................................................................................. 95 4 TEK AND EIA UNDER COMPREHENSIVE AGREEMENTS....................................................... 96 4.1 Source and key features of EIA regimes ..................................................................................... 97 4.2 EIA procedures ......................................................................................................................... 100 4.2.1 Preliminary screening ....................................................................................................... 100 4.2.2 Assessment and review ..................................................................................................... 107 vi  4.3 Conclusions ............................................................................................................................... 148 5 CONCLUSIONS ............................................................................................................................... 154 BIBLIOGRAPHY ..................................................................................................................................... 162 vii  LIST OF FIGURES Figure 1: Map showing extent of comprehensive land claims agreements in Canada................................ 12   viii  ACKNOWLEDGEMENTS This thesis could not have been completed with the support of certain individuals to whom I am enduringly grateful.  I express my appreciation to my thesis supervisor, Professor Benjamin Richardson, who supported me throughout the thesis-writing process with helpful and encouraging feedback.  Also on the UBC law faculty, I express my gratitude to Professor Douglas Harris for reviewing drafts of a directed research project which contributed to this thesis.  My thanks also go to Professor Mary Liston for her helpful comments during our Law 500 class in October 2012.  Fellow members of the Law 500 class enrolled in the Master of Law program also provided useful comments during a class feedback session and to them I am grateful. Financially, I could not have gotten by without the generous support of the Law Foundation of BC?s Law Foundation Fellowship.  This financial aid enabled me to concentrate on my studies while in Vancouver without having to find employment. I extend my thanks also to my parents, my aunt and uncle in Canberra, Australia, and to my parents-law-in, John and Christine Cameron, who provided important moral support during the challenging thesis-writing process.  These family members provided me the necessary encouragement to continue working on what sometimes seemed like a never-ending project. Finally, I extend my heartfelt gratitude to my wife, Ms Alison Pudovskis, who struggled with me during the long days required to complete this thesis and provided much motivational support.  I could not have done it without her. 1  1. INTRODUCTION 1.1 The rise of TEK and Indigenous participation in environmental governance Historically, Indigenous peoples in Western countries were excluded from states? environmental governance regimes.  One reason for this exclusion was the historic non-recognition by governments and courts of Indigenous peoples? rights in relation to lands and waters under customary law.  Another reason was lack of awareness, or denial, that Indigenous people had anything meaningful to contribute.  The result was that decisions about the environments of Indigenous peoples? traditional territories were made without the input of Indigenous peoples.  This led sometimes to devastating results for Indigenous peoples and cultures,1 as well as impoverished decision-making due to the exclusion of Indigenous knowledge. Beginning in the 1970s, international discourse about the relationship between Indigenous peoples and environmental governance began to change due to a combination of factors ? scholarly, legal and political.2  Rather than dismissing Indigenous people, scholars, international bodies and states began to recognise that Indigenous people might have a valuable role to play in states? environmental governance regimes.  Much of this growing awareness was centred on ?traditional ecological knowledge? or ?TEK? ? the knowledge of Indigenous people about the environment.  The ensuing debates about the relative value of TEK have paralleled important                                                             1 Winona LaDuke, ?Traditional Ecological Knowledge and Environmental Futures? (1994) 5:1 Colorado J Int?l Envtl L & Pol?y 127 at 138; Ellen Desmet, Indigenous Rights Entwined with Nature Conservation (Cambridge, UK: Intersentia, 2011) at 1, 15, 18. 2 Benjamin J Richardson, ?The Ties That Bind: Indigenous Peoples and Environmental Governance? in Benjamin J Richardson, Shin Imai & Kent McNeil, eds, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford: Hart, 2009) 337 at 368; Desmet, supra note 1 at 15.  See also Claudia Notzke, Aboriginal Peoples and Natural Resources in Canada (North York, Ont: Captus Press, 1994) at 3 (?[t]he 1980s and 1990s have been witnessing a redefinition of the relationship between native and non-native Canadians, and as part of it, a restructuring of power and responsibility with regard to natural resources?). 2  developments in law and policy which have led, in some countries such as Canada, to increasing involvement of Indigenous people in environmental management. Perhaps the first step in the debates about the relative value of TEK was a realisation by scientists, other scholars and international bodies in the 1980s that biodiversity3 was an asset to be protected, that it was being rapidly lost, and that in the process, unique Indigenous cultures comprising enormous cultural diversity were also being lost.  As Indigenous cultures disappeared or were impacted by industrialization, so (it was believed) was their knowledge as to sustainable management of natural ecosystems slipping away.  Scholars were concerned that the loss of this unique knowledge diminished humanity?s capacity to live sustainably in the future.4  The initial drive to include Indigenous peoples and their TEK in environmental governance processes was therefore motivated by a ?salvage? mentality, without any particular concern for Indigenous rights or self-determination. Developments in environmental law and policy, including international norms, also framed and contributed to the rise in TEK at the international level.  Central to these developments was a growing international recognition of the concept of sustainable development.  First elaborated by the Club of Rome in its 1973 Limits of Growth report,5 the concept was popularised in the 1987 report of the World Commission on Environment and Development, ?Our Common Future?,                                                             3 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, Can TS 1993 No 24, [1993] ATS 32 (registration number I-30619, entered into force 29 December 1993) [Convention on Biological Diversity], art 2 defines ?biodiversity? as ?the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems.? 4 See e.g. Harvey A Feit, ?Self-management and State-management: Forms of Knowing and Managing Northern Wildlife? in Milton MR Freeman & Ludwig N Carbyn, eds, Traditional Knowledge and Renewable Resource Management in Northern Regions (Edmonton, Alta: IUCN Commission on Ecology and the Boreal Institute for Northern Studies, 1988) 72 at 81. 5 Donella H Meadows et al, The Limits to Growth: A Report for the Club of Rome?s Project on the Predicament of Mankind (New York: Universe Books, 1972). 3  more commonly known as the ?Brundtland Report?.6  This report referred specifically to the relationship between sustainable development and ?traditional knowledge?, reflecting the early ?salvage? mentality: These communities [?so-called indigenous or tribal peoples?7] are the repositories of vast accumulations of traditional knowledge and experience that links humanity with its ancient origins. Their disappearance is a loss for the larger society, which could learn a great deal from their traditional skills in sustainably managing very complex ecological systems.8 The status of sustainable development as a central principle of environmental policy, and its relationship with TEK and biodiversity conservation was further strengthened in 1992 with the United Nations Conference on the Environment and Development in Rio de Janeiro (the UNCED, or ?Earth Summit?).  One of the key documents to emerge from the UNCED was the Convention on Biological Diversity, which referred to the environmental knowledge of Indigenous peoples in article 8(j): Each contracting party shall ? (j) ? respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.9                                                             6 Development and International Co-operation: Environment, GA, 42d Sess, Annex, Provisional Agenda Item 83(e): Report of the World Commission on Environment and Development: ?Our Common Future?, UN Doc A/42/427 (1987) 3 [Brundtland Report].  The Brundtland Report defines ?sustainable development? as the ?development that meets the needs of the present without compromising the ability of future generations to meet their own needs? (ibid 3 at 54, para 1).  See also Donna Craig, ?Recognising Indigenous Rights through Co-Management Regimes: Canadian and Australian Experiences? (2002) 6 New Zealand Journal of Environmental Law 199 at 208. 7 Brundtland Report, supra note 6, 3 at 118-119, para 70. 8 Ibid, 3 at 119, para 74. 9 Convention on Biological Diversity, supra note 3. 4  This article embodies some of the emerging principles of TEK: notably, that TEK is the property of Indigenous people and should only be used with their consent.  However, the article?s formulation of TEK as the ?knowledge, innovations and practices? of Indigenous peoples is also limiting, for it excludes Indigenous peoples? values about the environment (discussed further in chapter 2).  Also, the formulation is strictly instrumentalist, for it promotes only that TEK which may be applied in the quest for biodiversity conservation.  Other, less relevant TEK is presumably excluded.  Yet, as I will explain in subsequent chapters, the Convention?s formulation of TEK in article 8(j) continues to be relevant in a number of contemporary contexts. The Rio Declaration10 and Agenda 2111 were UNCED documents which expressed more directly the relationship between sustainable development and the need for a substantive role for Indigenous peoples in states? environmental governance regimes.  For example, paragraph 26.1 of Agenda 21 states that: In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous peoples, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate and strengthen the role of indigenous people and their communities.12 Principle 22 of the Rio Declaration is in a similar vein but goes further to declare that states should ?recognise and support? the cultures and ?interests? of Indigenous peoples so as to achieve environmental goals:                                                             10 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992: Volume 1: Resolutions Adopted by the Conference, UNCEDOR, 1992, Annex I, ?Rio Declaration on Environment and Development?, A/CONF.151/26/Rev.1(Vol.1) 3 [Rio Declaration]. 11 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992: Volume 1: Resolutions Adopted by the Conference, UNCEDOR, 1992, Annex II, ?Agenda 21?, A/CONF.151/26/Rev.1(Vol.1) 9 [Agenda 21]. 12 Ibid, 9 at 385, para 26.1. 5  Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.13 These declarations, though ?soft law? in the sense that they are not binding, reflect a trend in international environmental norms and standards towards greater involvement of Indigenous people in environmental governance on environmental grounds. Other developments in international law put the focus more squarely on Indigenous rights for their own sake, though still contributing to greater involvement in environmental governance.  The seminal International Labour Organization Convention No. 169 from 1989,14  for example (which succeeded the earlier, assimilationist, ILO Convention of 195715), established as an international norm the need to protect the environment of Indigenous peoples? traditional territories in order to protect Indigenous cultures.16  The ILO Convention No. 169 posits consultation and environmental impact assessment (?EIA?) as key mechanisms for involving Indigenous peoples in environmental governance.17  As I will explain in chapters 3 and 4, EIA has emerged, at least in the case of Canada, as one of the key arenas for inclusion of TEK in environmental governance regimes.                                                               13 Rio Declaration, supra note 10, 3 at 7, principle 22.  See also Lee P Breckenridge, ?Protection of Biological Cultural Diversity: Emerging Recognition of Local Community Rights in Ecosystems under International Law? (1992) 59:4 Tennessee Law Review 735 at 771. 14 Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, 28 June 1989, 1650 UNTS 383 (registration number I-28383, entered into force 5 September 1991) [ILO Convention No. 169].  See also Breckenridge, supra note 13 at 738-739,750-759. 15 Convention (No.107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-tribal Populations in Independent Countries, 26 June 1957, 328 UNTS 247 (registration number I-4738, entered into force 2 June 1959). 16 ILO Convention No. 169, supra note 14, arts 5(a), 7(4), 13(1), 15(1). See also Craig, supra note 6 at 205-206; Desmet, supra note 1 at 23. 17 ILO Convention No. 169, supra note 14, arts 6(1), 7(3). 6  More recently, the 2007 United Nations Declaration on the Rights of Indigenous Peoples18 has provided an important normative framework for international discourse about Indigenous rights.  The Declaration affirms and repeats many of the principles of the ILO Convention No. 169, and expands upon them.19  Article 31, paragraph 1 refers specifically to the need to protect ?traditional knowledge?, and its status as the ?intellectual property? of Indigenous peoples: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.20 The Declaration gives prominence to the concept of ?free, prior and informed consent? when making decisions in respect of Indigenous peoples,21 a concept of note in the context of TEK incorporation (see chapter 4).   Also in the UN context, the UN Permanent Forum on Indigenous Issues, established in July 2000, provides an ongoing focus for policy development in relation to traditional knowledge and Indigenous involvement in states? environmental governance (and other) regimes.22  The Permanent Forum has made numerous recommendations to various UN bodies (including the Secretariat of the Convention on Biological Diversity) and member states in relation to TEK and                                                             18 United Nations Declaration on the Rights of Indigenous Peoples, Annex to GA Res 61/295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, (2007) [UN Declaration on Indigenous Peoples]. 19 Ibid, arts 15(1), 20(1), 29(1), 32(2). 20 Ibid, art 31(1). 21 See especially ibid, arts 19, 32(2).  See also ibid, arts 10, 11(2), 28(1), 29(2). 22 See also Craig, supra note 6 at 207. 7  related issues in its twelve sessions to date since 2002.23  According the Ellen Desmet, the IUCN, also, at its Fifth World Parks Congress in Durban in 2003, adopted a new model of conservation based on respect for the rights of Indigenous peoples and local communities.24 Other, more general trends in environmental theory and policy have contributed to greater Indigenous involvement and use of TEK in environmental governance.  One of these trends has been the theory of participatory management, or plurality in environmental management25 (particularly evident in the 1994 Desertification Convention26).  Driven partly by growing recognition of the uncertainty and complexity of natural ecosystems, this trend favours the infusion of a variety of different ?voices? and values in environmental decision-making, eschewing complete reliance upon a top-down, expert-driven approach.27  The premise is that by providing greater opportunities for the public, and, specifically, Indigenous people, to be involved in environmental decision-making, decisions about environmental management can be better attuned to local specifics, and decision implementation made more efficient by directly involving the people affected.28  In this context, TEK may provide for more flexible decision-making,29 contribute to decentralized, appropriate management regimes,30 and offer different                                                             23 See e.g. Permanent Forum on Indigenous Issues, Report on the Third Session (10-21 May 2004), UNPFIIOR, 3d Sess, Supp No 23, UN Doc E/2004/43-E/C.19/2004/23 at paras 20(a), 75; Permanent Forum on Indigenous Issues, Report on the Sixth Session (14-25 May 2007), UNPFIIOR, 6th Sess, Supp No 23, UN Doc E/2007/43-E/C.19/2007/12 at paras 131, 145. 24 Desmet, supra note 1 at 15. 25 Breckenridge, supra note 13 at 736-737, 768, 782-783; Nina-Marie E Lister & James J Kay, ?Celebrating Diversity: Adaptive Planning and Biodiversity Conservation? in Stephen Bocking, ed, Biodiversity in Canada: Ecology, Ideas and Action (Peterborough, Ont: Broadview Press, 2000) 189 at 203; Derek R Armitage, ?Collaborative Environmental Assessment in the Northwest Territories, Canada? (2005) 25:3 Environmental Impact Assessment Review 239 at 240; Nicolas Houde, ?The Six Faces of Traditional Ecological Knowledge: Challenges and Opportunities for Canadian Co-Management Arrangements?, online: (2007) 12:2 Ecology and Society 34 <http://www.ecologyandsociety.org/vol12/iss2/art34/>. 26 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, 1954 UNTS 3, Can TS 1996 No 51 (registration number I-33480, entered into force 26 December 1996). 27 Stevenson, supra note 35 at 279; Lister & Kay, supra note 25 at 203; Berkes & Fast, supra note 35 at 6-7, 9. 28 Houde, supra note 25. 29 Lister & Kay, supra note 25 at 204. 8  perspectives and novel ideas for coping with environmental change.31  John Borrows refers to the inclusion of Indigenous peoples in this context as ?strengthening the institutions of democracy.?32  As argued by Donna Craig in relation to the Australian context, however, participatory or collaborative management may amount to something less than co-management for Indigenous people.33  This trend could also be viewed as a means to channel and neutralise political dissent.34 Equally if not more important to the rise of TEK have been developments in the judicial and political recognition of Indigenous rights at the domestic level.35  Much of these changes have been driven by Indigenous activism, leading to favourable court decisions and other developments such as the Royal Commission on Aboriginal Peoples (1996)36 (?RCAP?), an important driver for the rise of TEK as a tool of environmental governance in Canada.37  The Supreme Court of Canada?s (?SCC?) 1973 decision in Calder38 changed the playing field in                                                                                                                                                                                                30 Houde, supra note 25. 31 Ibid. 32 John Borrows, ?Living Between Water and Rock: First Nations, Environmental Planning and Democracy? (1997) 47 UTLJ 417 at 429 [Borrows, ?Living Between Water and Rocks?]; John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 45 [Borrows, Recovering Canada]. 33 Craig, supra note 6 at 210. 34 See Desmet, supra note 1 at 24. 35 MG Stevenson, ?Indigenous Knowledge in Environmental Assessment? (1996) 49:3 Arctic 278 at 278; Peter J Usher, ?Traditional Ecological Knowledge in Environmental Assessment and Management? (2000) 53:2 Arctic 183 at 184.  See also Fikret Berkes et al, ?The Canadian Arctic and the Oceans Act: The Development of Participatory Environmental Research and Management? (2001) 44 Ocean & Coastal Management 451, cited in Fikret Berkes & Helen Fast, ?Introduction? in Fikret Berkes et al, eds, Breaking Ice: Renewable Resource and Ocean Management in the Canadian North (Calgary, Alta: University of Calgary Press, 2005) at 10-11 (?the experience in the North shows that joint management strongly parallels the emergence of Aboriginal land claims?); Craig, supra note 6 at 240 (referring to the rise of joint management of protected areas in Australia). 36 Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: The Commission, 1996). 37 Usher, supra note 35 at 184.  C.f. Berkes & Fast, supra note 35 at 10 (the RCAP deems important the formalization of power-sharing between the central and local/regional governments); Jennifer E Dalton, ?Aboriginal Title and Self Government in Canada: What is the True Scope of Comprehensive Land Claims Agreements?? (2006) 22 Windsor Rev Legal Soc Issues 29 at 37 (the RCAP contributed to refinements and adjustments to negotiations processes in relation to comprehensive land claims agreements); Christopher Alcantara, Negotiating the Deal: Comprehensive Land Claims Agreements in Canada (Toronto: University of Toronto Press, 2013) (the RCAP provided an incentive for comprehensive land claims agreements to be negotiated). 38 Calder v British Columbia (AG), [1973] SCR 313. 9  Canada.  This decision, driven by the Nisga?a people?s continuing push for recognition of their legal rights, recognised the possibility of a form of ?Aboriginal title? existing in parts of Canada where it had not been extinguished.  Given that most of Canada, especially the North and most of British Columbia was not subject to ?historic treaties?,39 the ramifications of Aboriginal title were enormous.  Now, any action by government or industry in respect of Crown land might be interfering with Aboriginal rights and title, leading to court actions and possible remedies.  The Government of Canada responded to this momentous development (which would be repeated in Australia 19 years later with the High Court of Australia?s decision in Mabo No. 240), with its ?comprehensive land claims? (?CLC?) policy in 1973.41  This policy was designed to yield ?modern treaties? in all those parts of Canada not covered by historic treaties.  First off the mark (though not strictly developed within the CLC framework) was the James Bay and Northern Quebec Agreement in 1975,42 an agreement between the federal government and the Cree and Inuit of Quebec made in response to a massive, looming, hydroelectric development in northern Quebec.43  This agreement included the (then) relatively innovative feature of co-management, whereby the Cree and Inuit of Quebec would partner with government representatives in equal numbers on management boards in relation to such areas as EIA and wildlife management.  Requirements to consult local communities would further facilitate Indigenous input into management processes, though this first agreement did not refer explicitly to TEK.                                                               39 The Canadian Government recognises approximately 70 historic treaties relating to the period from around the late seventeenth/early eighteenth century (the period of ?New France?) to 1921 (when the last of the ?numbered? treaties, Treaty No. 11, was signed) (John Leslie, with contributions by Doug Whyte & Patricia Kennedy, ?Treaties, Surrenders, and Agreements?, online: Library and Archives Canada <http://www.collectionscanada.gc.ca/aboriginal-heritage/020016-3008-e.html>). 40 Mabo v Queensland (No. 2) (1992) 175 CLR 1. 41 See Alcantara, supra note 37 at 14; Richardson, supra note 2 at 364. 42 James Bay and Northern Quebec Agreement and Complementary Agreements, 1998 ed (Quebec: Government of Quebec, 1998), online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca> [James Bay and Northern Quebec Agreement]. 43 Paul Rynard, ?Welcome In, but Check Your Rights at the Door: The James Bay and Nisga?a Agreements in Canada? (2000) 33:2 Canadian Journal of Political Science 211 at 215-216. 10  Since the James Bay and Northern Quebec Agreement some 24 comprehensive land claims agreements have followed, including 11 agreements made with Yukon First Nations pursuant to the template of the Yukon Territory?s Umbrella Final Agreement.44  The most recent agreement (concluded on 7 July 2010) was between the Crees of Eeyou Istchee in Quebec and the federal government, in respect of the Eeyou Marine Region (part of the south-east corner of Hudson Bay adjacent to the Cree?s land area recognised in the James Bay and Northern Quebec Agreement).45  Together, these agreements cover a significant portion of Canada, including most of the territorial North as well as parts of Quebec, Labrador, and (under the BC Treaty Process) parts of British Columbia (see Figure 1).  The Nunavut Agreement is perhaps the most significant of the agreements given it led (in 1999) to the creation of the new self-governing territory of Nunavut, an area of some two million square kilometres.46  For the purposes of this thesis, the comprehensive agreements have greatly elevated the status of Indigenous rights in Canadian law, and have created new institutions including co-management arrangements for the balancing of Indigenous interests with environmental governance.  Co-management may be the most promising type of institutional arrangement for inclusion of TEK.47  One of the purposes of this thesis is to test this theory.                                                             44 Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca> (signed on 29 May 1993) [Umbrella Final Agreement]. 45 Agreement between the Crees of Eeyou Istchee and Her Majesty the Queen in Right of Canada Concerning the Eeyou Marine Region, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca> (signed on 7 July 2010 and came into effect on 15 February 2012 pursuant to the Eeyou Marine Region Land Claims Agreement Act, SC 2011, c. 20, s 5(1)). 46 See e.g. Thomas Isaac, ?Aboriginal Peoples and the Law: The Nunavut Agreement-in-Principle and Section 35 of the Constitution Act, 1982? (1992) 21 Man LJ 390 at 391; Garth Nettheim, Gary D Meyers & Donna Craig, Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resources Management Rights (Canberra: Aboriginal Studies Press, 2002) at 104; Dalton, supra note 37 at 39. 47 See Graham White, ?Cultures in Collision: Traditional Knowledge and Euro-Canadian Governance Processes in Northern Land-Claim Boards? (2006) 59:4 Arctic 401 at 402 [White, ?Cultures in Collision?] (?land-claim boards are not only substantively important sites in terms of gauging the influence of TK, they represent perhaps the best opportunity for imbuing public, non-Aboriginal governmental institutions with [traditional knowledge]?). 11  The upshot of these developments in international and domestic law, policy and theory has been that TEK has emerged as an important conceptual tool for improving environmental outcomes, as well as helping to achieve Indigenous self-determination aspirations.  From an environmental perspective, the most fundamental rationale for inclusion of TEK in environmental governance regimes is that TEK may contribute to sustainability by incorporating Indigenous systems of land management and associated values;48 however scholars have also argued that TEK can: provide a greater breadth and depth of environmental information,49 provide a clearer perspective on deviations from normal conditions,50 identify impacts on animal species? populations,51 enhance abilities to predict, monitor, and avoid ecological and social impacts in the context of EIA,52 guide research questions,53 and assist in the interpretation of scientific data.54  Despite this promising theory, however, the degree to which TEK has actually                                                              48 See Frederick Briand, ?Foreword? in Robert E Johannes, ed, Traditional Ecological Knowledge: a Collection of Essays (Gland, Switzerland: International Union for the Conservation of Nature and Natural Resources (IUCN), 1989) 4 at 4; Robert E Johannes, ?Introduction? in Johannes, ibid, 5 at 8 [Johannes, ?Introduction?]; Breckenridge, supra note 13 at 748, 774; L Baker et al, ?The Role of Aboriginal Ecological Knowledge in Ecosystem Management? in Jim Birckhead, Terry de Lacy & Laurajane Smith, eds, Aboriginal Involvement in Parks and Protected Areas: Papers Presented to a Conference Organised by the Johnstone Centre of Parks, Recreation and Heritage at Charles Sturt University, Albury, New South Wales 22-24 July 1991 (Canberra: Aboriginal Studies Press, 1992) 71, cited in Terry de Lacy, ?The Uluru/Kakadu Model - Anangu Tjukurrpa. 50,000 years of Aboriginal Law and Land Management Changing the Concept of National Parks in Australia? (1994) 7 Society and National Resources 479 at 491; LaDuke, supra note 1 at 133, 139; Barry Sadler & Peter Boothroyd, ?Back to the Future: Traditional Ecological Knowledge and Modern Environmental Assessment? in Barry Sadler & Peter Boothroyd, eds, Traditional Ecological Knowledge and Modern Environmental Assessment (Vancouver: University of British Columbia, Centre for Human Studies, for the Canadian Environmental Assessment Agency and the International Association for Impact Assessment, 1994) 1 at 1; Borrows, ?Living Between Water and Rocks?, supra note 32 at 428-429; Borrows, Recovering Canada, supra note 32 at 32, 34; Paul Nadasdy, Hunters and Bureaucrats: Power, Knowledge, and Aboriginal-State Relations in the Southwest Yukon (Vancouver: UBC Press, 2003) at 114 [Nadasdy, Hunters and Bureaucrats]; Stephen C Ellis, ?Meaningful Consideration? A Review of Traditional Knowledge in Environmental Decisions Making? (2005) 58:1 Arctic 66 at 67. 49 Usher, supra note 35 at 187; Ellis, supra note 48 at 67. 50 Stevenson, supra note 35 at 284. 51 Borrows, ?Living Between Water and Rocks?, supra note 32 at 439. 52 Sadler & Boothroyd, supra note 48, 1 at 3; Stevenson, supra note 35 at 284; Ellis, supra note 48 at 67; Houde, supra note 25. 53 Usher, supra note 35 at 190; E Peacock et al, ?Conservation and Management of Canada?s Polar Bears (Ursus maritimus) in a Changing Arctic? (2011) 89:1 Canadian Journal of Zoology 371 at 380. 54 Ibid at 379. 12   Figure 1: Map showing extent of comprehensive land claims agreements in Canada (source: Land Claims Agreements Coalition, online: <http://www.landclaimscoalition.ca/modern-treaties/>) 13  been incorporated into environmental governance regimes at the domestic level remains somewhat obscure.  Even less clear is the way in which different legal and institutional mechanisms tend to facilitate or hinder the incorporation of TEK.  These issues are the subject of this thesis. 1.2 This thesis In this thesis I examine the incorporation of TEK in environmental governance regimes at two levels: at the national level in respect of Canada, and at the regional level in respect of EIA regimes established by or under particular comprehensive land claims agreements in Canada.  I have chosen Canada as a case study of the incorporation of TEK at the domestic level in part because of its history of judicial and political recognition of Indigenous rights.  As discussed above, Canada compared with other Western countries has a relatively long history of judicial recognition of Indigenous rights, as well as political recognition in the form of comprehensive agreements.  Significantly, Canada afforded constitutional recognition to Aboriginal rights, including treaty rights, in 1982.55  Canada is also significant in its adoption of co-management as an institution for reconciling the interests of Indigenous people with environmental concerns, particularly pursuant to comprehensive agreements.  For all these reasons, Canada might be expected to have seen substantial incorporation of TEK at the domestic level.  Examining the depth and manner of TEK incorporation in Canada has the potential to yield insights into the degree to which states have truly accepted the implicit environmental benefits of TEK. I have chosen to examine co-management regimes established under comprehensive agreements as the focus of my study because of the great potential for these institutions to yield substantial incorporation of TEK.  As discussed above, co-management regimes are a relatively                                                             55 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s 35(1). 14  novel institution seen as a means for ?righting the balance? between Indigenous and state interests in environmental governance, and achieving improved environmental outcomes as well as Aboriginal empowerment.56  Though co-management regimes exist outside of comprehensive agreements,57 the negotiated context of the agreement-based regimes suggests that these arrangements may have the greatest potential to yield substantial incorporation of TEK. I focus on EIA as opposed to other areas of environmental governance in part because of the important theoretical role of EIA in promoting Indigenous involvement in environmental governance, as promoted by international instruments such as ILO Convention No. 169.  As I will discuss in chapter 3, there is also a history of a relationship between EIA and TEK in Canada that warrants further exploration.  Further, according to Peter Usher EIA may be the ?most structured and visible? of the policy arenas involving TEK.58  These factors all make EIA regimes a suitable vehicle for a focussed study of TEK incorporation in the Canadian context.  Though other areas of environmental governance such as wildlife management and heritage protection may also be suitable vehicles for a TEK study, these are beyond the scope of this thesis.  I hope, however, that my integrated conclusions may assist in facilitating understanding and further research in relation to TEK in these other contexts. The objective of my thesis is, broadly, to gain an understanding of the depth and manner of TEK incorporation in Canada, particularly in the context of EIA under comprehensive agreements.  Such an understanding may (as discussed) shed light on the degree to which TEK has been accepted by Western nation states as a norm of environmental governance.  More                                                             56 See The Honorable Eric Smith, ?Some Thoughts on Comanagement? (2008) 14 Hastings W-Nw J Envtl L & Pol?y 763 at 763. 57 For example, the Beverly and Qamanirjuaq Caribou Management Board: see Stella Spak, ?The Position of Indigenous Knowledge in Canadian Co-Management Organizations? (2005) 47:2 Anthropologica 233 at 237, 240-241. 58 Usher, supra note 35 at 185. 15  particularly, I hope to address knowledge gaps as to the general amenability of TEK to practical incorporation, and the role of legal and institutional mechanisms in facilitating TEK incorporation.  While other factors may play a role in determining the depth and breadth of TEK incorporation in environmental governance regimes, there can be little doubt that legal and institutional mechanisms play an important role in facilitating TEK incorporation.  However, the manner in which these mechanisms facilitate or hinder TEK incorporation is relatively poorly understood.  Much of the research on the issue has been carried out by non-lawyers, notably natural and social scientists, so there is considerable scope for substantial contribution to the scholarship from a legal perspective. My theoretical framework is to assume that TEK may potentially improve environmental outcomes and help achieve Indigenous self-determination aspirations.  However, I do not attempt to test this assumption directly, as to do so would be beyond the scope of this thesis.  Instead, I ask the following, specific, questions with a view to assisting future researchers in testing the fundamental assumption more directly: what are the roles of legal and institutional mechanisms in facilitating TEK incorporation?  Are there any aspects of TEK which appear to be particularly resistant to incorporation?  And, how might co-management regimes in respect of EIA be better designed so as to promote the efficient and respectful incorporation of TEK?  In answering these questions I take both a traditional doctrinal approach, examining the various legal instruments and their associated institutional structures, processes and rules, and also a normative approach: evaluating the effectiveness of different legal systems in terms of TEK incorporation.  For the normative approach I identify and apply relevant principles for the efficient and respectful incorporation of TEK based upon a review of the literature. 16  In terms of structure and methodology, chapter 2 examines the theoretical dimensions of TEK; in particular, issues of nomenclature, the characteristics of TEK, and its socio-cultural context as described by social scientists and others.  I examine the academic debates regarding the merits of attempts to incorporate TEK in environmental governance regimes, especially Canadian co-management regimes, and draw from these debates principles for the efficient and respectful utilization or incorporation of TEK.  For this chapter, I rely upon the scholarly literature on TEK.   Chapter 3 examines TEK at the level of Canada as a whole in terms of broad categories of legal duties relevant to TEK incorporation: the common law duty to consult, and statutory and other duties to consult Indigenous people and/or consider TEK in environmental decision-making.  To some extent I examine duties arising under comprehensive agreements in this chapter, though my main analysis of comprehensive agreements is left for chapter 4.  In chapter 3 I describe and critique the legal and institutional mechanisms for incorporation of TEK across a range of areas of environmental governance having regard to the principles identified in chapter 2.  I identify the key areas of environmental governance in Canada in terms of TEK incorporation.  The chapter is also partly empirical in the sense that I consider the degree to which the various legal and institutional mechanisms have facilitated the incorporation of TEK in practice.  The main empirical analysis, however, is left for the detailed case study in chapter 4.  For chapter 3 I use primary sources (including SCC decisions and federal and provincial statutes), as well as scholarly commentary on these sources. Chapter 4 comprises a detailed empirical case study of the incorporation of TEK in the context of EIA regimes established under comprehensive agreements, including in relation to co-management arrangements.  My analysis is in part doctrinal and textual, as I examine the 17  provisions of the EIA chapters of comprehensive agreements and implementing or associated legislation, as well as the the rules and procedures established by the various co-management boards or review bodies.  A large part of my analysis is also empirical as I examine a number of actual project assessments carried out by review bodies (including co-management boards) pursuant to the relevant legal schemes (including those established by or under comprehensive agreements).  For each agreement examined (see below), I selected a sample of assessments as case studies of the EIA process, attempting to capture a diversity of assessments in terms of the nature of the project and time period of the assessment.  To some degree the object was to detect changes in approach towards TEK incorporation over time.  For this part of the analysis I examined primary assessment documents issued by the co-management boards or review bodies themselves, such as terms of reference for projects and review reports, as well as proponents? documentation and documents produced by Indigenous parties to assessments.  In chapter 4 I describe some limitations in the availability of documents, though these did not affect my study to a great degree. To make my case study manageable I chose to focus on six particular agreements out of the 25 comprehensive agreements concluded to date in Canada: (a) the Inuvialuit Final Agreement, dated 5 June 1984;59 (b) the three agreements made in respect of the Mackenzie Valley region of the Northwest Territories (the Gwich?in Agreement, concluded 22 April 1992,60 the Sahtu Dene and                                                             59 The Inuvialuit Final Agreement as Amended: Consolidated Version April 2005, online: Inuvialuit Environmental Impact Review Board <http://www.eirb.ca/pdf/inuvialuit_final_agreement.pdf> [Inuvialuit Final Agreement] (came into effect 25 July 1984 pursuant to the Western Arctic (Inuvialuit) Claims Settlement Act, SC 1984, c 24, s 3(1)). 60 Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Gwich?in as represented by the Gwich?in Tribal Council: Volume 1, (Ottawa: Minister of Indian Affairs and Northern Development, 1992), online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-18  Metis Agreement, concluded 6 September 1993,61 and the Tlicho Agreement, concluded 25 August 2003)62 (the ?Mackenzie Valley agreements?); (c) the Nunavut Agreement, concluded 25 May 1993;63 and (d) the Nisga?a Final Agreement, concluded 4 May 199964 (see Figure 1).  Though each is a distinct agreement, the individual Mackenzie Valley agreements can be treated as a cluster because they share a common system of EIA pursuant to the Mackenzie Valley Resource Management Act.65  Accordingly, the six agreements represent four jurisdictions for the purposes of EIA. I have chosen these particular agreements as representatives of the whole body of agreements based upon a combination of three criteria: (1) likely representation of a diversity of approaches to incorporating TEK, based upon the date when the agreement was concluded, and the area or region to which it relates; (2) likely importance of the regime with respect to TEK incorporation as described by the literature; and (3) likely overall significance of TEK incorporation under the agreement due to the relative size of the area governed by the agreement.  The Nunavut                                                                                                                                                                                                aandc.gc.ca> [Gwich?in Agreement] (came into effect 22 December 1992 pursuant to the Gwich?in Land Claim Settlement Act, SC 1992, c 53, s 4(1)). 61 Sahtu Dene and Metis Comprehensive Land Claim Agreement: Volume 1 (Ottawa: Minister of Indian Affairs and Northern Development, 1993), online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca> [Sahtu Dene and Metis Agreement] (came into effect 23 June 1992 pursuant to the Sahtu Dene and Metis Land Claim Settlement Act, SC 1994, c 27, s 4(1)). 62 Land Claims and Self Government Agreement among The Tlicho and the Government of the Northwest Territories and the Government of Canada, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca> [Tlicho Agreement] (came into effect 4 August 2005 pursuant to the Tlicho Land Claims and Self-Government Act, SC 2005, c 1, s 3(1) and the Tlicho Land Claims and Self-Government Agreement Act, SNWT 2003, c 28, s 4(1)). 63 Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca> [Nunavut Agreement] (came into effect 9 July 1993 pursuant to the Nunavut Land Claims Agreement Act, SC 1993, c 29, s 4(1)). 64 Nisga?a Final Agreement, Schedule to the Nisga?a Final Agreement Act, SBC 1999, c 2 [Nisga?a Final Agreement] (came into effect 11 May 2000 pursuant to the Nisga?a Final Agreement Act, SC 2000, c 7, s 4(1) and the Nisga?a Final Agreement Act, SBC 1999, c 2, s 3(1)). 65 SC 1998, c 25 [MVRM Act]. 19  Agreement, Inuvialuit Final Agreement and Mackenzie Valley agreements meet all three criteria.  The Nisga?a Final Agreement meets the first criterion because it represents a different region of Canada compared with the other agreements, and also a different time period (having been concluded in 1999, later than most of the other agreements).  I also consider that this agreement deserves study because it is an example of a self-government agreement, and because it does not appear to have been considered by any scholars in the context of TEK.   20  2. THEORETICAL DIMENSIONS OF TEK In this chapter I deal first with the preliminary issue of nomenclature ? why I have chosen the term ?TEK? and to what I mean to refer by this term.  I explain the contested nature of the term, then examine in detail the meaning and nature of ?TEK?, including scholarly and statutory definitions, characteristics of TEK, and the importance of socio-cultural context.  My discussion of TEK?s socio-cultural context (especially as described by anthropologists) leads to a discussion of the implications of incorporating or utilizing TEK in a co-management context.  From this discussion, I identify general principles for utilizing or incorporating TEK in practical contexts which I consider in chapters 3 and 4. 2.1 Issues of nomenclature Throughout this thesis I primarily use the term ?traditional ecological knowledge? or ?TEK? in preference to other possible terms such as ?traditional knowledge? (?TK?), ?Indigenous knowledge? or ?local knowledge?.  Some scholars, international instruments and legal regimes (including those established under comprehensive agreements) prefer these other terms; for example, the EIA regimes in Canada?s North use mainly the term ?traditional knowledge? or ?TK? (see below).  Some scholars choose to use these alternative terms for the deliberate purpose of drawing a distinction with TEK;66 other scholars use TEK and TK or other terms interchangeably to refer to the same concept.67  One reason I use the term ?TEK? is that scholars continue to use the term, either as their preferred term, or as a convenient reference to the knowledge of Indigenous peoples about the environment.  Scholars continue to use the term TEK because it has a relatively long history (dating from at least the 1980s), and because it remains a                                                             66 See Stevenson, supra note 35 at 208.  Stevenson prefers the term ?Indigenous knowledge?. 67 White, ?Cultures in Collision?, supra note 47 at 405. 21  common term (despite some contentiousness) in discourse concerning the management of land and resources across the North American Arctic and Subarctic.68  The second (and more important) reason why I prefer the term ?TEK? is that it is restrictive and relatively precise in its scope, despite its contested nature.  ?TEK?, unlike ?TK? or ?Indigenous knowledge? (the term preferred by the anthropologist Marc Stevenson) refers specifically to the knowledge of Indigenous peoples about the environment.  In defining Indigenous knowledge in this way, the term necessarily excludes from its ambit knowledge of Indigenous peoples about things not directly related to the environment, such as ?knowledge ? which traditionally informed emotional and physical well-being, customary social values, cultural practices, and spiritual beliefs.?69  Although, as stated by Stevenson, ?all aspects of indigenous knowledge are interconnected, and thus related to the natural environment?, there are aspects of Indigenous or traditional knowledge which do not ?require continual reference to or validation? by ecological knowledge.70  Accordingly, I use the term ?TEK? to refer to those aspects of the ?knowledge? of Indigenous peoples which relate specifically to the environment.  This distinguishes ?TEK? from the terms ?traditional knowledge? and ?Indigenous knowledge?, which refer to a broader concept of knowledge held by Indigenous persons.   ?TEK? is also distinguished from ?local knowledge?, which generally refers to the knowledge of persons other than Indigenous persons about the environment.  TEK may well be a species of ?local knowledge? (being based, in part, on observations of the local environment), though in this thesis I do not refer to the knowledge of persons other than Indigenous peoples.                                                             68 Nadasdy, Hunters and Bureaucrats, supra note 48. 69 Stevenson, supra note 35 at 282. 70 Ibid. 22  In choosing to use the term ?TEK? I acknowledge its contested nature.  There are several aspects to TEK?s contentiousness.  First, some scholars object to the word ?traditional? because (in their view) it implies stasis, or a ?frozen in time? approach to the knowledge of Indigenous peoples.71  As Nadasdy explains, the word ?traditional? may therefore perpetuate some non-Indigenous peoples? views about Indigenous knowledge being necessarily rooted in the past.72  According to these views, contemporary knowledge acquired by contemporary Indigenous people cannot be ?traditional?, so ought to be dismissed in applied contexts.73  I discuss this issue in more detail in the section 2.2. The second criticism or concern about the term ?TEK? is that the terms ?ecological? or ?environmental? (an alternative to ?ecological? in ?TEK?) are Western terms, and alien to Indigenous worldviews.  This dovetails with Nadasdy?s theory that the use of the term TEK, and, more generally, attempts to utilize TEK tend to favour non-Indigenous resource managers at the expense of Indigenous peoples.  I discuss these dynamics in more detail later in this chapter.   The third criticism or concern about ?TEK? concerns the term ?knowledge?.  Nadasdy, in particular, has argued that the word ?knowledge? carries cultural assumptions that may serve to define what some people regard as legitimate and non-legitimate.  As I will discuss further in section 2.2 (?Meaning and Nature of TEK?), some Indigenous people see ?knowledge? and experience as inseparable ? part of a complex socio-cultural system that includes stories, songs and values.  The word ?knowledge? when used by non-Indigenous scientists and resource managers may result in important aspects of Indigenous relationships with the environment being excluded from environmental decision-making.  While acknowledging these concerns regarding                                                             71 Nadasdy, Hunters and Bureaucrats, supra note 48 at 120; see also White, ?Cultures in Collision?, supra note 47 at 405 and the sources therein cited. 72 Nadasdy, Hunters and Bureaucrats, supra note 48 at 120. 73 Ibid. 23  ?TEK?, I argue that when properly construed, the term does not have the negative connotations contended by some. 2.2 Meaning and nature of TEK As already mentioned, TEK refers to the knowledge of Indigenous peoples and communities about the environment.  However, this simple statement does not convey the complex, multi-faceted nature of TEK.  To give a sense of this complex nature, scholars have proposed the following definitions of TEK: (a) ?Traditional ecological knowledge is the culturally and spiritually based way in which indigenous peoples relate to their ecosystems.?74  (b) ?[TEK is] the accumulated wisdom of native communities about natural processes?.75 (c) ?TEK may be viewed as being composed of three interrelated components: 1) specific environmental knowledge, 2) knowledge of eco-system relationships, and 3) a code of ethics governing appropriate human-environmental relationships ...?.76 (d) ?[T]he concept of traditional ecological knowledge comprises both indigenous systems of environmental ethics and the group?s scientific knowledge about environmental use that has resulted from generations of interaction.?77 (e) ?TEK refers specifically to all types of knowledge about the environment derived from the experience and traditions of a particular group of people.?78                                                             74 LaDuke, supra note 1 at 127. 75 Sadler & Boothroyd, supra note 48, 1 at 1. 76 Stevenson, supra note 35 at 281. 77 Rebecca Tsosie, ?Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge? (1996) 21:1 Vt L Rev 225 at 272-273, citing Johannes, ?Introduction?, supra note 48. 24  (f) ?[A] cumulative body of knowledge and beliefs, evolving by adaptive processes and handed down through generations by cultural transmission?.79  There are no definitions of ?TEK? in any Canadian statutes, though there are two definitions of other terms that refer to the same or a similar concept.  The first is from the Yukon Territory?s Environmental and Socio-economic Assessment Act,80 and the second is from Nunavut?s Wildlife Act81: (a) ? ?[T]raditional knowledge? means the accumulated body of knowledge, observations and understandings about the environment, and about the relationship of living beings with one another and the environment, that is rooted in the traditional way of life of first nations.?82 (b) ? ?Inuit Qaujimajatuqangit? means traditional Inuit values, knowledge, behaviour, perceptions and expectations; (Qaujimajatuqangit Inuit)?.83 The first definition from the Yukon ESA Act reflects a broad concept of TEK, though is arguably problematic in its reference to TEK being ?rooted? in the ?traditional way of life? of First Nations ? potentially suggesting a ?frozen in time? approach as warned against by Nadasdy.  I discuss the unique Nunavut concept of ?Inuit Qaujimajatuqangit? or ?IQ? in more detail in chapter 4 in the context of EIA.  I also discuss in chapter 4 some of the non-statutory definitions of TEK found in guidelines issued by the co-management boards.                                                                                                                                                                                                 78 Usher, supra note 35 at 186. 79 Fikret Berkes, Sacred Ecology: Traditional Ecological Knowledge and Resource Management (Philadelphia: Taylor & Francis, 1999) at 8, cited in Berkes & Fast, supra note 35 at 3. 80 SC 2003, c 7 [Yukon ESA Act]. 81 Wildlife Act, S Nu 2003, c 26 [Wildlife Act]. 82 Yukon ESA Act, supra note 80, s 2(1). 83 Wildlife Act, supra note 81, s 2. 25  These scholarly and statutory definitions of TEK and related terms give a sense that TEK has multiple aspects.  It includes knowledge of Indigenous peoples about the environment, as well as ethics and values about the environment.  Drawing upon these understandings, some scholars have constructed typologies of TEK, spelling out in detail TEK?s different components or categories.  Nicolas Houde, for example, identified six ?faces? of TEK based upon a comprehensive review of the literature.84  By contrast, Stevenson argued that TEK may be viewed as comprising ?three interrelated components? (set out in the definitions above).  The framework I consider to be most useful is that proposed by Peter Usher in 2000.85  Usher identifies four distinct categories of TEK which he claims are ?distinguishable on substantive and epistemological grounds?:  a) Category 1: Factual/rational knowledge about the environment;  b) Category 2: Factual knowledge about past and current use of the environment; c) Category 3: Culturally based value statements, including moral or ethical statements about how to behave with respect to animals and the environment, and about human health and well-being in a holistic sense; and d) Category 4: A culturally based cosmology which forms the foundation of the knowledge system.86 This framework is useful when examining TEK in practical contexts, including EIA, because it identifies and separates out key aspects of TEK which, I (and some other scholars) argue require separate and different treatment for efficient and effective utilization of TEK.  The                                                             84 Houde, supra note 25. 85 Usher, supra note 35 at 186-187. 86 Ibid. 26  framework is also useful because it is simpler than Houde?s typology, yet reflects all of the key aspects of TEK identified by Houde as well as other scholars. It is useful to examine Usher?s four categories of TEK more closely.  A discussion of categories 3 and 4 TEK leads naturally to a discussion of TEK?s socio-cultural context. Category 1: Factual/rational knowledge about the environment Stevenson refers to this category of TEK as ?specific environmental knowledge?.87  It is the most obvious, and, for scientists and resource managers, the most accessible and sought-after type of TEK.88  It refers to everything that Indigenous people know about the environment in specific, factual terms, and includes such information as the type and numbers of animals and plants presently and formerly in particular areas, the behaviour of animals, the nature of oceanic currents, weather patterns, water quality, hydrology, and geomorphology.89  Such knowledge is based primarily upon individuals? observations of and inferences about the environment made in the course of activities on the land, especially hunting for hunter-gatherer peoples.90  This knowledge is also based upon word of mouth from other individuals, such as elders and other hunters who have passed on their observations of the environment to other members of their kin group and community.  The knowledge may also be transmitted from generation to generation.  Accordingly, the category 1 TEK of an individual or community may have a considerable time-                                                            87 Stevenson, supra note 35 at 281. 88 Ibid; Usher, supra note 35 at 186-187. 89 See e.g. ibid; Borrows, Recovering Canada, supra note 32 at 39; Brad Nesbitt et al, ?Cooperative Cross-Cultural Biological Surveys in Resource Management: Experiences in the Anangu Pitjantjatjara Lands? in Richard Baker et al, eds, Working on Country: Contemporary Indigenous Management of Australia's Lands and Coastal Regions (South Melbourne, Victoria: Oxford University Press, 2001) at 187. 90 Ann Gunn et al, ?The Contribution of the Ecological Knowledge of the Inuit to Wildlife Management in the Northwest Territories? in Freeman & Carbyn, supra note 4, 22 at 24; Breckenridge, supra note 13 at 747; LaDuke, supra note 1 at 127; Usher, supra note 35 at 187-188. 27  depth.91  It is also constantly evolving as individuals make new observations and inferences and contribute their knowledge to the collective whole.92  It is for this reason that concerns about the term ?traditional? as implying stasis are unfounded.  The nature of category 1 TEK as experiential, individual-based information also means that it has certain limitations and carries certain risks in practical contexts, which I discuss later in this chapter. Category 2: Factual knowledge about past and current use of the environment Category 2 TEK comprises factual knowledge about Indigenous peoples? past and current use of the environment, including patterns of land use or occupancy, harvest levels, and ?other statements about social or historical matters that bear on the traditional use of the environment.?93  In the context of EIA, this type of knowledge may be used to identify ?valued ecosystem components? or ?VECs? ? the parts of the natural environment that are of most importance to Indigenous peoples.94   As with category 1 TEK, this type of TEK is based upon observations made by living persons, including observations which have been orally transmitted from individual to individual. Category 3: Culturally based value statements, including moral or ethical statements The third category of TEK comprises Indigenous codes of ethics and values concerning the environment.95  Such codes of ethics and values are contained and reflected in such things as stories, social relations, and practices, and in a fundamental sense explain Indigenous                                                             91 Ibid at 187 (?[TEK] thus provides a diachronic or ?natural history? perspective?). 92 Ibid at 186-187; Stevenson, supra note 35 at 282; Feit, supra note 4 at 82. 93 Usher, supra note 35 at 186. 94 See Usher, supra note 35 at 188; Stevenson, supra note 35 at 281-283. 95 Usher, supra note 35 at 187.  See also Tsosie, supra note 77 at 272-273; Sadler & Boothroyd, supra note 48, 1 at 1; Stevenson, supra note 35 at 281. 28  understandings of their relationship with the environment.96  They entail ?analyses and prescriptions for all manner of social interactions among people and between people and animals, as well as deeply spiritual and philosophical precepts.?97  In the context of EIA, these values and ethics help identify and assess VECs, or (to put it another way) ?key phenomena, places and processes? from an Aboriginal perspective.98  According to Nicolas Houde, this category of TEK is ?not currently well translated in state resource management?.99 Category 4: A culturally based cosmology According to Usher, category 4 TEK is ?a culturally based cosmology ? the foundation of the knowledge system ? by which information derived from observation, experience, and instruction is organized to provide explanations and guidance.?100  This category of TEK relates to Indigenous worldviews about the environment and is closely related to category 3 TEK.  Categories 3 and 4 TEK both refer to TEK?s socio-cultural context, which requires some understanding in order to understand TEK as a whole, and its application in practical contexts. 2.3 Socio-cultural context of TEK Given their expertise in Indigenous cultures, anthropologists have given particular attention to TEK?s socio-cultural dimensions.  Paul Nadasdy in particular and also Stella Spak have provided detailed descriptions of the socio-cultural context of TEK based upon their observations of and interactions with particular Indigenous groups of the Canadian North (the Kluane people of the southwest Yukon Territory in the case of Nadasdy, and the Dene people of the Northwest                                                             96 P Nadasdy, ?The Politics of TEK: Power and the ?Integration? of Knowledge? (1999) 36:1-2 Arctic Anthropology 1 at 7 [Nadasdy, ?The Politics of TEK?]. 97 Graham White, ? ?Not the Almighty?: Evaluating Aboriginal Influence in Northern Land-Claims Boards? (2008) 61 Arctic 71 at 80 [White, ?Not the Almighty?]; see also White, ?Cultures in Collision?, supra note 47 at 405. 98 Usher, supra note 35 at 186; see also Stevenson, supra note 35 at 279. 99 Houde, supra note 25 (referring to ?ethics and values?, the ?fourth face? of TEK). 100 Usher, supra note 35 at 186. 29  Territories in the case of Spak).101  These scholars have emphasized that TEK, at least for the groups studied, is part of a hunter-gatherer culture, described by Nadasdy as a ?cultural milieu?.102  TEK for these peoples is not simply ?knowledge? about the environment ? it is a ?way of life?.103  This is because TEK is based upon ? and essentially indistinguishable from ? the experiences of Indigenous people in gaining knowledge about the environment.  According to Nadasdy, the Kluane people believe that ?true? knowledge about the environment can only be gained through experience, by living on the land and hunting animals.104  ?Secondary? knowledge may be transmitted orally by other persons, but such knowledge is regarded as less important than knowledge gained through one?s experience hunting.105  Since hunting is a pivotal part of the Kluane culture, in many ways defining their distinctive identity, hunting and its surrounding ?constellation of values, beliefs, practices, and social relations? also defines the nature of TEK held by Kluane people.106 A key aspect of the values and beliefs of Kluane people in relation to hunting is the nature of the relationship between humans and animals.107  This may stem from the fact that, according to Kluane beliefs, animals took human form in the long-distant past, and some humans and animals continue to be able to metamorphose into each other.108  Under this system of beliefs, humans are not separate from the ?environment?, but rather are but one element of a social system which                                                             101 Nadasdy, Hunters and Bureaucrats, supra note 48 at 60-113; Spak, supra note 57.  See also Nadasdy, ?The Politics of TEK?, supra note 96. 102 See Nadasdy, ?The Politics of TEK?, supra note 96 at 4. See also Feit, supra note 4 at 80; LaDuke, supra note 1 at 127; Usher, supra note 35 at 188; White, ?Cultures in Collision?, supra note 47 at 409; Houde, supra note 25. 103 Nadasdy, ?The Politics of TEK?, supra note 96 at 4; Nadasdy, Hunters and Bureaucrats, supra note 48 at 63. 104 Ibid at 95-96, 101. 105 Ibid at 95. 106 Ibid at 66, 75. 107 Ibid at 84-85, 108. 108 Ibid at 84. 30  includes animals as well as humans.109  The relationship between humans and animals is reciprocal according to this system, meaning that animals may present themselves to be killed by human hunters, and humans have certain obligations towards animals in return.110  Kluane people describe these obligations in terms of ?respect? for animals, and they include such precepts as: an obligation to kill animals when they present themselves, a prohibition on ?wastage? (hunting animals when they are not needed, or overhunting), and a concern with the thoughts and feelings for animals (and associated prohibition against talking and thinking badly about animals) on the basis of a belief that animals are powerful, intelligent, sentient beings.111  According to Nadasdy, the Kluane people continue to hold these beliefs despite profound changes to Kluane society in the twentieth century associated with colonialism.112 Other scholars, including Indigenous scholars such as Winona LaDuke have characterised Indigenous peoples? relationship with the environment in similar terms.113  LaDuke, for example, describes the Anishinabeg and Cree principle of ?Minobimaatisiiwin?, or, the ?good life,? which includes belief in the principle of reciprocal relations with nature and a need to treat animals with respect.114  According to Stella Spak, ?treating animals with respect is of utmost importance in Dene views on sustainable human/animal relationships.?115  Other scholars, however, have tended to take these specific statements and generalize them.  In his study of ?top-down? and ?bottom-up? strategies for incorporating TK into environmental decision-making in the                                                             109 Ibid at 83. See also Spak, supra note 57 at 235 (?[t]he most important distinction between European and traditional Dene attitudes towards nature is that the Dene do not see themselves as being separate from or above nature.?). 110 Nadasdy, Hunters and Bureaucrats, supra note 48 at 92, 108. 111 Ibid at 85-91. 112 Ibid at 92. 113 See e.g. Feit, supra note 4 at 77 (?[t]he Waswanipi [Cree] hunters say that they only catch an animal when the animal gives itself to them, or is given them by God and the spirits. ? [T]hey are under reciprocal obligation for what they receive, and treat the animals with respect in the same way they hunt, butcher, consume and use the animal bodies?); LaDuke, supra note 1 at 128. 114 Ibid. 115 Spak, supra note 57 at 238. 31  Northwest Territories, for example, Stephen Ellis claimed that ?traditional knowledge typically sees humans as part of a spiritual and animistic nature.?116  The difficulty with such generalized statements is that they tend to mask differences between Indigenous peoples and communities in terms of the nature of their TEK and relationship with the environment.  Other scholars, notably Rebecca Tsosie, have recognised that the nature of Indigenous peoples? relationships with the environment varies considerably between Indigenous peoples and communities due to (among other factors) the differential impacts of colonialism.117  Accordingly, TEK for some Indigenous groups may be influenced by and include ?Western? concepts of science and resource management to some degree.118  As I discuss in section 2.4, this has implications for the way co-management arrangements should be considered. A final important aspect of TEK deriving from its socio-cultural dimensions is that it is regarded by Indigenous communities and peoples as a form of communal property.  The communal, proprietary nature of TEK is easily understood when it is appreciated, as discussed, that TEK is intimately linked and essentially interchangeable with the lived experiences of the people of a particular community in relation to cultural activities (such as hunting) central to their identity.  TEK may therefore be seen as the unique ?product? of a particular community or communities, such that attempts by outsiders to access and utilize TEK are resisted.  As I will                                                             116 Ellis, supra note 48 at 72, citing other scholars.  See also White, ?Cultures in Collision?, supra note 47 at 410 (?[f]or northern Aboriginal peoples, humans are part of nature but with no claim to enhanced status over its elements?). 117 See Richardson, supra note 2 for a discussion of different scholarly perspectives on Indigenous relationships with the environment.  See also R Riewe & L Gamble, ?The Inuit and Wildlife Management Today? in Freeman & Carbyn, supra note 4, 31 at 31, 35-36; Feit , supra note 4 at 82-83 (self-management may be weakened when communities develop ?conflicting interests?); LaDuke, supra note 1 at 130; Tsosie, supra note 77 at 244, 287 (?the traditional land ethics of indigenous peoples have undergone transformation either as a result of colonization or through a voluntary adaptation to meet changing times? at 244); E J Millner-Gulland & Ruth Mace, Conservation of Biological Resources (Cambridge: Blackwell Science, 1998) at 160; Borrows, Recovering Canada, supra note 32 at 30 (?ancient connections to the environment? have been ?weakened?). 118 See M Dowsley & GW Wenzel, ? ?The Time of the Most Polar Bears?: A Co-Management Conflict in Nunavut? (2008) 61 Arctic 177 at 186 (?[a] similar process of partial integration of the concept of overhunting was observed in Nunavut concerning polar bear populations.?). 32  discuss in chapter 4, this dimension of TEK is reflected in the requirements of some of the EIA regimes established under comprehensive agreements.  This dimension of TEK (including the need to ensure that Indigenous communities and peoples receive equitable benefits from the utilization of TEK) is also a key concern of international bodies dealing with Indigenous issues under the United Nations system.119 At least at a theoretical level, the socio-cultural context of TEK presents the greatest difficulties for efficient and respectful utilization and incorporation of TEK in practical contexts, including co-management.  In section 2.4, I explain in some detail the ?anthropological? perspective on TEK and co-management which argues, essentially, that the socio-cultural dimensions of TEK are fundamentally incompatible and irreconcilable with co-management.  I then respond to the various arguments made by anthropologists and others so as to be in a position to progress (in chapters 3 and 4) to an examination of TEK in certain practical contexts. 2.4 Implications for co-management and the ?incorporation? or ?integration? of TEK arising from TEK?s meaning and nature and socio-cultural context  2.4.1 The ?anthropological perspective? on TEK Scholars have often critiqued aspects of various co-management regimes as they relate to TEK.  The most serious critique, however, is of a fundamental nature: that co-management as currently conceived in Canada is inimical to the appropriate utilization of TEK and empowerment of Indigenous peoples, and may actually have the effect of disempowering Indigenous peoples.  Paul Nadasdy has made this argument most compellingly and                                                             119 This is reflected in international instruments dealing with TEK, especially the UN Declaration on Indigenous Peoples, supra note 18, art. 31(1), and ?Agenda 21?, supra note 11 at 386 (ch 26.4(b)). 33  comprehensively,120 so his views require a degree of attention.  I describe Nadasdy?s views as the ?anthropological perspective? on TEK because variations on Nadasdy?s views are also found in the critiques of other anthologists such as Stella Spak, as well as other scholars including political scientists. According to the anthropological perspective, the fundamental problem with co-management in relation to TEK is that it is based upon a ?Western, bureaucratic? model of environmental management with Western language, terminology, structures and concepts.  According to this perspective, co-management is an application of state power, whereby the state is able to expand its power at the expense of Indigenous peoples.121  Much of the critique is centred upon the terminology and rhetoric associated with co-management, or perceived to be associated (as alluded to above in the context of nomenclature).  For example, Nadasdy claims that: Many of the terms used in relation to the management of land and wildlife such as ?subsistence?, ?conservation? and ?traditional use?, have no counterparts in the languages or cultural practices of Aboriginal peoples ?. [Accordingly,] use of [these] terms biases discourse in favour of scientific managers by restricting the ways in which it is possible to talk (and think) about these issues.122 Nadasdy is similarly critical of TEK?s constituent terms ? ?traditional?, ?ecological/environmental?, and ?knowledge?.  In relation to ?knowledge? Nadasdy claims that: The idea that traditional and scientific knowledge can be integrated is based on two implicit assumptions about the nature of knowledge.  First it assumes that knowledge is a collection of intellectual products that can be isolated from their social context; second it assumes that knowledge exists in discrete bounded                                                             120 Nadasdy, ?The Politics of TEK?, supra note 96; Nadasdy, Hunters and Bureaucrats, supra note 48 ch 3. 121 Nadasdy, ?The Politics of TEK?, supra note 96 at 12; Nadasdy, Hunters and Bureaucrats, supra note 48 at 141; Spak, supra note 57 at 234-235, 243. 122 Nadasdy, Hunters and Bureaucrats, supra note 48 at 119. 34  ?systems? (i.e., that ?scientific knowledge,? for example, is somehow qualitatively different from ?traditional knowledge?).123 Nadasdy claims that each of these assumptions is false, meaning that the ?factual? aspects of TEK cannot be separated from their socio-cultural dimensions without doing harm to both the TEK and Indigenous people.124  Nadasdy refers to the specific, interrelated processes of ?compartmentalization? and ?distillation? whereby the different components of TEK are separated, distorted, or omitted.125  ?Compartmentalization? occurs when TEK holders are required (by resource managers or co-management boards) to convey their TEK in relation to a specific, narrowly-defined topic, such as sheep in the case of the Ruby Range Sheep Shearing Committee (the subject of Nadasdy?s research).126  Such an approach has two effects.  First, the way the topic is framed may create the illusion that Indigenous people do not possess any TEK about the topic.  For example, resource managers might believe that Indigenous people do not have any TEK in relation to mining or forestry because they frame the issue in these terms, ignoring the possibility that Indigenous people may have beliefs and values about the correct way to deal with the earth and trees.127  The second effect is what Nadasdy terms ?distillation?128 (and Ellis terms ?scientization?129).  The need for TEK holders to direct their knowledge towards particular, narrowly-defined issues may mean that they are prevented from discussing their values, beliefs and experiences in relation to the topic, even though, in the view of the TEK holders, the values, beliefs and experiences are the most important element.  This may mean the                                                             123 Ibid at 132. 124 Ibid at 132-133. 125 Nadasdy, ?The Politics of TEK?, supra note 96 at 5-11; Nadasdy, Hunters and Bureaucrats, supra note 48 at 123-132. 126 Nadasdy, ?The Politics of TEK?, supra note 96 at 6-7; Nadasdy, Hunters and Bureaucrats, supra note 48 at 123-126. 127 Ibid. 128 Nadasdy, ?The Politics of TEK?, supra note 96 at 7-11; Nadasdy, Hunters and Bureaucrats, supra note 48 at 126-132. 129 Ellis, supra note 48 at 72. 35  omission of Indigenous values and practices about wise resource management ? one of the principle rationales for utilizing TEK in the first place.130   Compartmentalization and distillation (or scientization) of TEK may also cause it to be distorted, through simplification and decontextualization.131  Distortion in turn may increase the danger of TEK being misinterpreted or misrepresented, perhaps leading to misappropriation or exploitation.132  The ultimate effect of these processes may be the concentration of power in the state and non-Indigenous people at the expense of Indigenous peoples and communities.133  For Nadasdy and Spak, the solution is to devolve power over land and natural resource management to Aboriginal communities.134 The other important ramification of Nadasdy?s conception of knowledge is that scientific knowledge is inseparable from its socio-cultural context, so has no normative or objective weight outside of that context.135  This is a very significant claim that, if correct, would render nonsensical the project of ?integrating? TEK with scientific knowledge.  This, indeed, is what Nadasdy claims.136  This would also negate the separation of the different categories of TEK as proposed by Usher.  However, as I argue below, it is both necessary and legitimate for co-                                                            130 See supra note 48. 131 Stevenson, supra note 35 at 279, 286-287, 290 (referring to the risk of decontextualisation); Nadasdy, ?The Politics of TEK?, supra note 96 at 9-10 (referring to the risks of distillation); Nadasdy, Hunters and Bureaucrats, supra note 48 at 126-132 (referring to distillation and its risks); Ellis, supra note 48 at 72 (referring to the risks of scientization and TEK being simplified); Spak, supra note 57 at 239 (referring to the risks of TEK being decontextualized and misinterpreted). 132 Stevenson, supra note 35 at 279-280, 283, 290; Spak, supra note 57 at 239; Ellis, supra note 48 at 73-74; Houde, supra note 25.  See also Tsosie, supra note 77 at 316; Usher, supra note 35 at 191-192. 133 Stevenson, supra note 35 at 282; Nadasdy, ?The Politics of TEK?, supra note 96 at 12, 15; Nadasdy, Hunters and Bureaucrats, supra note 48 at 141; Ellis, supra note 48 at 73-74; White, ?Not the Almighty?, supra note 97 at 2. 134 Nadasdy, Hunters and Bureaucrats, supra note 48 at 145; Spak, supra note 101 at 243. 135 Nadasdy, Hunters and Bureaucrats, supra note 48 at 133, 135 (?scholars have demonstrated the context-dependent nature and value-ladenness of all scientific fact and theory to the satisfaction of nearly all those engaged in the study of science.  This has cast doubt on the idea that scientific knowledge can be defined as the product of some objective methodology?), 138. 136 Ibid at 133. 36  management boards to separate the ?factual? aspects of TEK (categories 1 and 2 TEK) from those aspects based upon values and beliefs about the environment (categories 3 and 4 TEK). Other scholars, notably Stephen Ellis and Graham White (from an environmental science and political science background, respectively) make similar arguments about the supposed ?incompatibility? of TEK and the ?values? said to be inherent in the ?Euro-Canadian legal-bureaucratic model of governance? of co-management arrangements.137  This incompatibility is said to be reflected in the structural and procedural aspects of some of the co-management regimes established under comprehensive agreements.  For examples according to Ellis, White and others, co-management boards such as the Mackenzie Valley Environmental Impact Review Board (?MVEIRB?) and the Nunavut Wildlife Management Board (?NWMB?) are characterized by the following features to a greater or lesser degree (all of which are said to be incompatible with Indigenous values and worldviews): use of overly formal physical settings for proceedings such as hotel meeting rooms;138 use of technical, scientific or bureaucratic language during proceedings;139 insufficient translation services for TEK holders;140 inability of translation services (when available) to properly translate complex concepts of TEK;141 the confrontational or adversarial nature of co-management proceedings, including cross-examination of elders;142                                                             137 See Ellis, supra note 48 at 70, 74-75 (?the structures and procedures of environmental governance are very much entrenched in the Euro-Canadian cultural tradition of decision making? at 70); White, ?Cultures in Collision?, supra note 47 at 405-407, 412; White, ?Not the Almighty?, supra note 97 at 80.  See also Craig, supra note 6 at 246 (?[j]oint Management is a Western cultural model, which tries to recognize Indigenous, concerns within the dominant Australian regimes relating to the land management?); Spak, supra note 57 at 242-243. 138 White, ?Cultures in Collision?, supra note 47 at 403; Nadasdy, ?The Politics of TEK?, supra note 96 at 10; Nadasdy, Hunters and Bureaucrats, supra note 48 at 211-213; Spak, supra note 57 at 237. 139 Spak, supra note 57 at 238 (in relation to the Beverly and Qamanirjuaq Caribou Management Board); Ellis, supra note 48 at 70. 140 White, ?Cultures in Collision?, supra note 47 at 404, 406. 141 Ellis, supra note 48 at 71; White, ?Cultures in Collision?, supra note 47 at 406, 409. 142 White, ?Cultures in Collision?, supra note 47 at 404, 411. 37  the dominance of English-language documentary evidence in proceedings;143 the hierarchical structure of land-claims boards, with power concentrated at the top;144 use of extensive, written, impersonal rules and procedures, combined with an inflexible and overly formal approach to proceedings;145 authority in land-claims boards being based on office-holding instead of personal attributes;146 compartmentalization and division of labour on land-claims boards (with experts in different areas of the natural sciences, for example);147 an emphasis on merit or credentialism as prerequisites for office-holding instead of experience;148 requirements to release information to the maximum extent;149 and, isolation of communities from decision-makers and decision-making process.150  These scholars are generally pessimistic about the prospects of successfully utilizing TEK in the context of co-management.  However, contrary to the claims of Nadasdy and others,151 White notes that the decisions or recommendations of co-management boards are usually accepted by Ministerial decision-makers, despite their (strictly-speaking) advisory function.152 2.4.2 A response to the ?anthropological perspective? I now offer a response to the anthological perspective on TEK, addressing each of the major elements of the argument.  First, in response to the most general criticism (that the ?values? and concepts inherent in the structures of co-management are incompatible with Indigenous values                                                             143 Ibid at 404, 409 (in relation to the MVEIRB); Armitage, supra note 25 at 249-250 (referring to the MVEIRB and other boards established under the MVRM Act). 144 White, ?Cultures in Collision?, supra note 47 at 408. 145 Ibid at 408, 411. 146 Ibid at 409. 147 Ellis, supra note 48 at 70; White, ?Cultures in Collision?, supra note 47 at 409. 148 Ibid at 410. 149 Ibid at 411. 150 Armitage, supra note 25 at 250. 151 Nadasdy, Hunters and Bureaucrats, supra note 48 at 211 (in relation to the Ruby Range Sheep Steering Committee); Spak, supra note 57 at 237, 240-241 (in relation to the Beverly and Qamanirjuaq Caribou Management Board).  See also Thomas Isaac, ?Aboriginal Peoples and the Law: The Nunavut Agreement-in-Principle and Section 35 of the Constitution Act, 1982? (1992) 21 Man LJ 390 at 403 (in relation to the NWMB). 152 White, ?Not the Almighty?, supra note 97 at 74. 38  and worldviews), it is simplistic to assume that TEK has the same meaning for all Indigenous peoples and communities.  Although it is clearly the case that TEK has a socio-cultural context, the nature of the context necessarily varies between Indigenous peoples and communities due to the diversity of values, beliefs and customs possessed by Indigenous peoples and communities.  The variation may also be due to differential impacts upon Indigenous peoples and communities due to processes of colonialism, such as dispossession.153  Accordingly, as Rebecca Tsosie has argued, some Indigenous peoples and communities may have adopted and internalised Western concepts, structures and procedures of environmental governance more than others.154  In theory, such peoples and communities should be less likely to be fundamentally disadvantaged by co-management arrangements. This point is supported by the fact that co-management arrangements under comprehensive land claims agreements are the product of intensive, lengthy negotiations between Indigenous representative bodies and the federal and (in some cases) provincial or territorial governments.155  This distinguishes these arrangements from some of those examined by proponents of the anthropological perspective, such as the Ruby Range Sheep Steering Committee studied by Nadasdy and the Beverly and Qamanirjuaq Caribou Management Board studied by Spak156 (both of which were ad hoc arrangements established outside of the CLC context).  By contrast,                                                             153 See supra note 117. 154 See Tsosie, supra note 77 at 226, 232, 244, 275, 287, 300-312, 317-318, 330-331.  See also Alcantara, supra note 37 at 66, 115 (referring to the differential ?acculturation? of the Inuit and Innu in Labrador, and the Kwanlin Dun and Kaska in the Yukon Territory, including in terms of language and adherence to a subsistence economy). 155 See Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 9, [2010] 3 SCR 103, Binnie J on behalf of the majority of 7 of 9 justices [Little Salmon] (?the modern comprehensive treaty is the product of lengthy negotiations between well-resourced and sophisticated parties?).  See also ibid at para 128 per Deschamps J, on behalf of LeBel and Deschamps JJ (?[t]he [comprehensive land claims] agreements are most often the fruit of many years of intense negotiations?); Lisa Dufraimont, ?Continuity and Modification of Aboriginal Rights in the Nisga?a Treaty? (2002) 25 UBC L Rev 455 at 457, 477-478, 491-492 (in relation to the negotiation of the Nisga?a Final Agreement); Dalton, supra note 37 at 30 (?the negotiation processes leading to successful implementation [of comprehensive land claims agreements] are generally arduous and complex?). 156 See Spak, supra note 57 at 237. 39  comprehensive agreement-based co-management arrangements take place in the context of land claims having been made over particular geographic areas by an Indigenous people.  Since the SCC?s Calder157 decision in 1973, the possibility of Aboriginal rights and title in relation to lands and waters in Canada has been real, meaning that federal, provincial and territorial governments (where applicable) have a large incentive to settle these claims by consent.158  At least from the government?s perspective, settlement of Indigenous land claims provides ?certainty? over issues related to land,159 meaning that future arrangements for dealing with land may proceed smoothly despite the existence of Aboriginal rights.  As a result, Indigenous peoples or representative bodies necessarily have a position of relative power in these negotiations, so have some capacity to shape the terms and principles of land claims agreements.160  The upshot is that it is reasonable to assume that Indigenous parties to the agreements have some degree of comfort with the structure, language and concepts of the co-management arrangements, and that it is simplistic to refer to these arrangements as purely ?Western, bureaucratic? structures.161                                                             157 Supra note 38. 158 But see Alcantara, supra note 37 at 21, 26, 29, 31 (referring to government disincentives to negotiate comprehensive agreements, or to delay the conclusion of agreements). 159 See e.g. Little Salmon, supra note 155 at paras 68 (per Binnie J on behalf of the majority), 102, 109-110 (per Deschamps J, on behalf of LeBel and Deschamps JJ) (e.g. ?[l]egal certainty is the primary objective of all parties to a comprehensive land claim agreement? at 109); Dufraimont, supra note 155 at 480-483, 506; Dalton, supra note 37 at 70-73. 160 C.f. Little Salmon, supra note 155 at para 9; Dufraimont, supra note 155 at 475, 477, 493-494; Alcantara, supra note 37 at 8-9 (referring to Aboriginal agency in the negotiation of comprehensive agreements, notwithstanding ?historical, cultural, and institutional constraints? (ibid at 8)).  But see ibid at 14, 21, 26, 28, 31 (governments have a ?significant advantage? in negotiations); Rynard, supra note 43 at 225 (in relation to the James Bay and Northern Quebec Agreement).  See also Dalton, supra note 37 at 36 (citing Rynard), 69 (referring to a ?power imbalance? in negotiations, citing Andrea Gaye McCallum, ?Dispute Resolution Mechanisms in the Resolution of Comprehensive Aboriginal Claims: Power Imbalance between Aboriginal Claimants and Governments in Negotiation? (1995) 2:1 Murdoch UEJL, online: <http://www.austlii.edu.au/au/joumals/MurUEJL/1995/13.html>). 161 C.f. Dufraimont, supra note 155 at 491-492 (?[t]he Nisga?a negotiators judged that the agreement [the Nisga?a Final Agreement] serves the interests of the Nisga?a Nation? (at 491-492); ?the treaty parties themselves are arguably best placed to decide the appropriateness of the complex and interrelated set of compromises embodied in the settlement.  Thus, the value of treaty negotiation itself militates against second-guessing individual aspects of a negotiated agreement? at 492). 40  To the extent that co-management arrangements contain structural or procedural features that do tend to disadvantage TEK holders notwithstanding the negotiated nature of the arrangements, the substantial Indigenous membership of the agreement-based co-management boards can plausibly ameliorate these effects to some extent.  Most or all of the co-management boards created under the comprehensive land claims agreements have at least fifty percent Indigenous membership excluding the chair (who must be agreed by the Indigenous members), and some boards have greater than fifty percent Indigenous membership from time to time.162  Accordingly, the Indigenous members of the boards have (at least in theory) the capacity within certain institutional constraints to shape and direct the processes of co-management proceedings to make them more accommodating for TEK holders.163 In relation to Nadasdy?s concerns regarding compartmentalization and distillation, it appears that part of the problem is a failure by some co-management boards to properly address categories 3 and 4 TEK.  In my view, this issue can be addressed in part by requirements for co-management boards to ensure the inclusion and consideration all types of TEK, including that belonging to categories 3 and 4.  It is clear that failure to provide for the inclusion and consideration of these categories of TEK makes it impossible for these aspects of TEK to bear upon environmental governance decisions, negating one of the main rationales for including TEK in the first place (the incorporation of Indigenous systems of environmental management).  However, a difficulty arises in relation to the manner in which categories 3 and 4 TEK should be presented to co-management boards, and whether and how these types of TEK should be distinguished from categories 1 and 2 TEK.  The anthropological perspective would argue                                                             162 White, ?Not the Almighty?, supra note 97 at 75 (note that White also claims that some boards have as low as 40% Indigenous membership (ibid)). 163 But see Rynard, supra note 43 at 230 (in relation to the Nisga?a Final Agreement). 41  against any separation or differential treatment of the different categories of TEK.164  There are, however, compelling reasons why the different categories of TEK should be treated differently in the context of co-management.  To understand these reasons it is necessary to understand the nature of the decision-making function of co-management boards.   Co-management boards such as the NWMB are required, pursuant to the terms of their respective establishing agreements, to make decisions as instruments of public government.165  They must make decisions on a regional basis about complex issues of (among other things) wildlife management and EIA, and these decisions must ensure protection of the environment whilst balancing the values of different stakeholders.166  Accordingly, it is incumbent upon co-management boards to take into account the best available information about (for example) species? population sizes, trends in numbers, and behaviour. Such decisions of co-management boards must also resolve any contested knowledge claims about issues in dispute, and they must synthesize different types of information from different sources.  These issues arise from both the variability within different types of information, and also from the variability between different types of knowledge (such as TEK and science).  Variability within TEK arises from the individual nature of categories 1 and 2 TEK, an issue described by scientists Dowsley & Wenzel in their study of Inuit TEK about polar bears and climate change in the context of the Nunavut Agreement.167  Dowsley & Wenzel observed from their interviews with Inuit hunters of western Baffin Bay that TEK about polar bears and changes in the sea ice environment varied between individuals, and also at the level of the village.168                                                              164 See Stevenson, supra note 35 at 283 for a version of this argument. 165 See White, ?Cultures in Collision?, supra note 47 at 402. 166 See e.g. Nunavut Agreement, supra note 63, ss 5.1.3(a)(ii), 5.1.3(b)(i), 5.1.5; Wildlife Act, supra note 81, s 1(3). 167 Dowsley & Wenzel, supra note 118 at 182-183. 168 Ibid. 42  Some of the variations at the individual level were non-trivial, and related directly to conservation and climate change concerns.  For example, some Inuit believed that polar bears were capable of hunting in the open ocean in the absence of sea ice, while others believed that they were incapable of such hunting.169  At the village level, there was variation between villages in terms of TEK regarding the size of the polar bear population, the behaviour and condition of polar bears, and the meaning of the various observations.  Dowsley & Wenzel further observed that individual Inuit were generally unwilling or reluctant to generalize their TEK when asked, preferring to refer only to their own observations and inferences and not those of other people.170  Other scholars have also remarked on this aspect of TEK.171 Variability between different types of information arises due to the inclusion of scientific information as well as TEK in co-management arrangements (as well as other environmental governance regimes).  For example, in the context of the arctic or sub-arctic, scientific surveys may indicate the number of polar bears is declining at a regional level, while TEK at the community level may indicate that polar bears are increasing.172  Such divergent knowledge claims may arise in part because categories 1 and 2 TEK tend to be geographically localized, making regional-level trends (such as those associated with climate change) difficult or impossible to detect.173 The need to resolve contested knowledge claims is a compelling reason why some scholars, particularly those from a scientific, wildlife management or environmental science perspective have argued that it is necessary to draw distinctions between the different categories of TEK, and                                                             169 Ibid. 170 Ibid. 171 See e.g. Usher, supra note 35 at 187. 172 See Peacock et al, supra note 53 at 375 for a discussion of this issue which arose in 2008 in the context of the Nunavut Agreement. 173 Dowsley & Wenzel, supra note 118 at 183-184. 43  include procedures for validating and assessing categories 1 and 2 TEK.174  These categories of TEK, unlike categories 3 and 4 TEK, are contrasted and compared with scientific knowledge claims in co-management and other contexts, so should be subjected to the same standards of scrutiny.175  This approach necessarily (and implicitly) rejects the anthropological perspective?s conception of science as being simply a set of cultural constructs with no normative or objective probative value.  This approach also creates the risk of compartmentalization unless measures are taken to integrate categories 3 and 4 into the process.  Proponents of this perspective such as Dowsley & Wenzel believe that this is possible (and that co-management can be successful) if there is better communication and cooperation between Indigenous and non-Indigenous partners.176  In the context of EIA, Usher argues that rather than forcing Indigenous people to contribute TEK, categories 3 and 4 TEK can be included by giving proponents the option of either using best efforts to obtain TEK using ethical standards, or facilitating provision of TEK by Indigenous persons to the review panel.177  Usher cites the environmental review of the Voisey?s Bay Nickel Company?s mine in Labrador as a good example of this process.178 The final aspect of the anthropological perspective which requires addressing is the proposition that instead of co-management, Indigenous people should be given control over land and resources.179  My first point in response is that co-management arrangements under comprehensive agreements are firmly entrenched institutions of environmental governance in Canada.  Moreover, they are likely to proliferate further in the future as new comprehensive agreements are concluded (for example, under the BC Treaty Process).  For these reasons, co-                                                            174 Gunn et al, supra note 90 at 26; Johannes, ?Introduction?, supra note 48, 5 at 8; Usher, supra note 35 at 188, 190; Dowsley & Wenzel, supra note 118 at 183. 175 Usher, supra note 35 at 190. 176 Dowsley & Wenzel, supra note 118 at 186.  See also Peacock et al, supra note 53 at 378. 177 Usher, supra note 35 at 191. 178 Ibid. 179 See supra note 134. 44  management arrangements are likely to persist in the near future, even if there is scope for amending and reforming the existing arrangements.  It is unrealistic and unhelpful to advocate (in effect) that co-management be abandoned in favour of another approach. My second point is that the alternative to co-management proposed by some scholars (Indigenous control of resources) is not necessarily viable, on environmental or other grounds.  As argued by Richardson and others, Indigenous governance of land and resources based upon models of community governance or land rights may not necessarily lead to improved environmental outcomes, despite the claims of those who perceive Indigenous peoples as ?ecological guardians?.180  Effective land management by Indigenous peoples and communities requires intact social and economic systems and institutions, and historic impairment of these systems and institutions may have reduced the likelihood of effective and sustainable land management in some cases.181  Impairment may have resulted from such factors as ?population                                                             180 See Richardson, supra note 2 at 340 (the ?ecological guardians? thesis posits Indigenous people as ?living harmoniously with nature without indulging in the profligacy associated with Western culture?).  For an example of the ?ecological guardian? argument see Andre Goldenberg, ?Surely Uncontroversial? ? The Problems and Politics of Environmental Conservation as a Justification for the Infringement of Aboriginal Rights in Canada? (2002) 1 JL & Equality 278 at 311-317.  For acknowledgements of apparently unsustainable or environmental destructive practices or actions of Indigenous peoples or communities see Riewe & Gamble, supra note 153 at 34 (referring to instances of overhunting or ?wastage? of caribou by Inuit of the Keewatin Region of Nunavut); Johannes, ?Introduction?, supra note 48, 5 at 7 (?[t]raditional peoples have not lived in some preternatural state of harmony with nature.  Some of their abuses of natural resources have been substantial.?); Tsosie, supra note 77 at 275, 287, 300, 303 (Indigenous authorisation of coal strip-mining, uranium mining and waste disposal including nuclear waste repositories on Indian reservations in the United States); Shepard Kresh III, The Ecological Indian: Myth and History (New York: WW Norton, 1999), cited in Borrows, Recovering Canada, supra note 32 at 33 (?current or even past Aboriginal practices ? could lead to serious environmental degradation?; Thomas King, The Inconvenient Indian: A Curious Account of Native People in North America (Canada: Doubleday Canada, 2012) at 206-209, 222 (popular account of some examples of environmentally destructive practices on US reservations). 181 Feit, supra note 4 at 83; Tsosie, supra note 77 at 288, 290-294; Millner-Gulland & Mace, supra note 117 at 160.  This point is also made by the Brundtland Report, supra note 6 at ch 4, para 75 (?[t]hese groups? own institutions to regulate rights and obligations are crucial for maintaining the harmony with nature and the environmental awareness characteristic of the traditional way of life.?). 45  growth, immigration, increased financial incentives, easier technological means to over-harvest, or a weakening of community authority.?182   Even if relevant systems and institutions are intact and stable, Indigenous governance of land and resources at a community or territorial level is unsuitable for addressing environmental issues of a broader scale, such as climate change or the management of fish and animals whose migratory paths traverse a number of different traditional territories.  Such issues require integrated management with the input of different stakeholders.183  More generally, the presence of a significant population of non-Indigenous persons within an Indigenous community or traditional territory necessarily requires input from those persons as a principle of democratic governance. For these reasons, I argue that it is preferable to try to better understand the ways in which TEK is utilized in co-management and other contexts, and determine how legal and institutional mechanisms might be improved to utilize and incorporate TEK more effectively and respectfully.184  This is the purpose of this thesis.  To assist in this purpose, I propose in the following section principles for the effective and respectful utilization of TEK that take into account the various considerations described in the literature.                                                             182 Millner-Gulland & Mace, supra note 117 at 160.  See also Rynard, supra note 43 at 225 (in relation to potential environmental risks created by financial pressures under the Nisga?a Final Agreement). 183 See Douglas C Harris, ?Territoriality, Aboriginal Rights, and the Heiltsuk Spawn-On-Kelp Fishery? (2000-2001) 34 UBC L Rev 195 at 230. 184 For support of this approach see Douglas A Clark et al, ?Polar Bear Conservation in Canada: Defining the Policy Problems? (2008) 61:4 Arctic 347 at 356 (?[w]e suggest thoughtful reform would likely be a more effective means of fostering long- term conservation than would outright termination of existing institutions or decision processes. ? Cultural conflicts may be difficult to resolve, but failure of the institutions involved to attempt resolution could have dire consequences.?). 46  2.5 Conclusions In this chapter I have described the meaning and nature of TEK, and have attempted to convey some of the theoretical challenges of ?incorporating? TEK in practical contexts, including co-management.  It is clear that the issue of ?integrating? or ?incorporating? TEK in the context of co-management is contentious.  Nonetheless, based upon my review of the literature, I have identified the following four principles for utilizing TEK effectively and respectfully in co-management and other practical contexts.  I propose these principles not to suggest a normative resolution to the debates regarding TEK, but rather to provide a framework for analyzing the various legal regimes discussed in chapters 3 and 4: 1. There must be an opportunity for Indigenous people to volunteer all categories of TEK in a culturally appropriate setting, and in a manner that is culturally appropriate (which may require, for example, an informal setting, and availability of translation services). 2. Indigenous people must have a choice whether to volunteer TEK. 3. Co-management boards and other decision-makers should be required to consider all categories of TEK in their decision-making processes, but not privilege TEK over other forms of knowledge such as scientific knowledge. 4. There should be procedures for assessing and validating categories 1 and 2 TEK. In arguing for these particular principles I have acknowledged the anthropological perspective?s arguments regarding the importance and sensitivity of the socio-cultural dimensions of TEK, whilst also recognising the practical issues faced by co-management boards arising in part from the experiential, observation-based nature of TEK.  I do not argue that this list of principles is 47  comprehensive; indeed, other relevant principles are that co-management boards should have a goal of cooperation and communication between Indigenous and non-Indigenous members, and that co-management arrangements should be flexible, and employ an iterative or adaptive management process wherever possible.  However, these principles are less relevant to the legal systems described below and are more difficult to evaluate in the context of this thesis so I do not consider them further.   48  3. TEK IN THE CANADIAN CONTEXT In this chapter, I provide an overview of TEK in the context of Canadian environmental governance from a legal perspective.  I identify two main legal mechanisms for incorporating TEK in this context: the common law duty to consult and statutory and other duties.  These two mechanisms overlap or exist alongside each other to some extent, and I attempt to explain these convergences (and relevant departures) where possible.  I also describe various co-management arrangements which have arisen in relation to TEK, including some established under comprehensive agreements.  However, my main focus upon comprehensive agreements is in chapter 4.  My discussion of statutory and other duties includes a description of the four key areas of environmental governance for TEK incorporation in Canada. I examine each type of legal mechanism having regard to the four principles identified in chapter 2.  In giving focus to these principles I consider the following three issues: the scope of legal decisions that require or facilitate consideration of TEK; the scope of TEK that may be volunteered by Indigenous people where applicable; and, the scope of decision-makers? legal duties to meaningfully incorporate TEK into decisions.  It is these three issues which together determine the importance and likely impact of TEK upon environmental governance in Canada.  I also draw upon certain examples to provide a sense of the degree to which TEK has actually been incorporated in practice pursuant to the legal mechanisms. 3.1 The duty to consult Until 2004, it was unclear whether under Canadian law the Crown in right of the federal or provincial governments was required to consult Indigenous peoples in circumstances where their rights were asserted but not yet determined.  This was particularly relevant in British Columbia 49  where the Crown had not, historically, entered into treaties with Indigenous peoples, except in relation to parts of Vancouver Island (the Vancouver Island or ?Douglas Treaties?), and the north-east part of British Columbia subject to Treaty No. 8 (concluded in 1899).  However, this situation changed with the SCC?s decisions in Haida Nation v British Columbia (Minister of Forests)185 and Taku River Tlingit First Nation v British Columbia (Project Assessment Director),186 both released on 18 November 2004.  These cases established a common law duty to consult and, where applicable, accommodate Indigenous interests where rights are undetermined.  This duty now sits alongside all other legal duties to consult Indigenous peoples and incorporate TEK.  The SCC subsequently clarified the nature of this duty in its decisions of Mikisew Cree First Nation v Canada (Minister of Canadian Heritage)187 (released in November 2005) and Rio Tinto Alcan v Carrier Sekani Tribal Council188 and Little Salmon,189 both released in 2010. Haida Nation concerned decisions by the British Columbia Minister for forestry to approve the replacement and transfer of tree farming licences under the Forest Act,190 in respect of areas of Haida Gwaii (formerly known as the Queen Charlotte Islands).  The areas of Haida Gwaii the subject of the licences had been claimed by the Haida inhabitants of the islands for 100 years, yet at the time of the Minister?s decisions these claims of Aboriginal rights and title had yet to be determined.  The Minister did not consult the Haida prior to making the decisions, claiming the absence of any legal duty.  The Court found in reasons for decision given by McLachlin CJ that                                                             185 2004 SCC 73, [2004] 3 SCR 511 [Haida Nation]. 186 2004 SCC 74, [2004] 3 SCR 550 [Taku River]. 187 2005 SCC 69, [2005] 3 SCR 388 [Mikisew]. 188 2010 SCC 43, [2010] 2 SCR 650 [Rio Tinto Alcan]. 189 Supra note 155. 190 RSBC 1996, c 15. 50  the Crown had a duty to consult the Haida in the circumstances.191  The Court also found that the Crown?s duty to consult may include a duty to accommodate Indigenous interests in some circumstances.192  The Court articulated the duty to consult and, where applicable, accommodate as follows: a) The source of the Crown?s duty to consult is the honour of the Crown.  The honour of the Crown arises from the Crown?s assertion of sovereignty in circumstances where there was prior Indigenous occupation.193 b) The duty to consult and, where applicable, accommodate falls upon the Crown and not third parties such as project proponents.  The Crown may ?delegate procedural aspects of consultation to industry proponents seeking a particular development? [as is] not infrequently done in environmental assessments?, though the honour of the Crown cannot be delegated.  The ?ultimate legal responsibility? for consultation and accommodation rests with the Crown.194 c) The ?duty [to consult] arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it??.195 d) The content of the duty to consult and accommodate varies with the circumstances.  ?In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the                                                             191 Haida Nation, supra note 185 at paras 10ff, 20, 67, 74. 192 Ibid. 193 Haida Nation, supra note 185 at para 16; see also Taku River, supra note 186 at para 24. 194 Haida Nation, supra note 185 at para 53. 195 Ibid at para 35; see also paras 37 (?[k]nowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate?), 64; Taku River, supra note 186 at para 25. 51  existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.?196  e) Consultation must be in ?good faith?,197 and must be meaningful.198  Meaningful consultation requires that the Crown substantially address Aboriginal concerns.199 f) The content of meaningful consultation may vary (at one end of the spectrum) from a requirement to ?give notice, disclose information, and discuss any issues raised in response to the notice? in circumstances ?where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor?,200 to a requirement (at the other end of the spectrum) to ?[provide] opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision? where ?a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high.?201 g) Substantially addressing Aboriginal concerns may require the Crown to accommodate those concerns.202  The duty to accommodate is ?revealed? ?[w]here a strong prima facie case exists for the claim ? and the consequences of the government?s proposed decision may adversely affect it in a significant way.?203  In this situation, ?addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to                                                             196 Haida Nation, supra note 185 at para 39; see also Taku River, supra note 186 at para 29. 197 Ibid at pars 41-42; see also Taku River, supra note 186 at para 29. 198 Haida Nation, supra note 185 at paras 10, 41, 46; see also Taku River, supra note 186 at para 29. 199 Haida Nation, supra note 185 at para 42. 200 Ibid at para 43. 201 Ibid at para 44. 202 Ibid at paras 46-47; see also Taku River, supra note 186 at para 29. 203 Haida Nation, supra note 185 at para 47. 52  minimize the effects of infringement, pending final resolution of the underlying claim.?204  However, the duty to accommodate does not give First Nations a right of veto.  What is required is a ?balancing of interests?, or ?good faith efforts to understand each other?s concerns and [a] move to address them.?205 The Court made it clear that the duty to consult and accommodate may arise in relation to strategic planning decisions as well as decisions which have a direct, physical impact upon claimed rights and title, where such decisions may have potentially serious impacts on Aboriginal rights and title.206 Taku River concerned a decision of the British Columbia Minister to approve the construction of a road related to a proposed mine re-opening under British Columbia?s former Environmental Assessment Act207 (repealed and replaced by the current Environmental Assessment Act208 in 2002 ? see chapter 4 for discussion).209  The case concerned the Taku River Tlingit First Nation (?TRTFN?), whose claimed traditional territory overlapped that of the proposed mine and road, and whose rights and interests had yet to be determined by the courts or treaty.210  The SCC affirmed the existence of the Crown?s duty to consult and, where applicable, accommodate Aboriginal peoples prior to proof of rights or title claims,211 but found that the Crown had discharged its duty in this case.212  The Crown had discharged its duty to consult because the TRTFN had been afforded the opportunity to participate, and had in fact fully participated in the assessment of the proposed project under the Environmental Assessment Act                                                             204 Ibid. 205 Ibid at paras 48-49; see also Little Salmon, supra note 155 at para 14. 206 Haida Nation, supra note 185 at para 76. 207 RSBC 1996, c 119. 208 SBC 2002, c 43. 209 Taku River, supra note 186 at para 3. 210 Ibid at paras 1, 26. 211 Ibid at para 21. 212 Ibid at paras 2, 22, 47. 53  over the course of three and half years.213  In particular, ?[t]he TRTFN was part of the Project Committee, participating fully in the environmental review process. ? [I]ts views were put before the Ministers, and the final project approval contained measures designed to address both its immediate and long-term concerns.?214  The Province was not required to ?develop special consultation measures to address TRTFN?s concerns, outside of the process provided for by the Environmental Assessment Act??.215  Taku River therefore stands for the proposition that the Crown may discharge its duty to consult where it has established statutory schemes which provide for adequate consultation with Indigenous peoples or communities. Mikisew concerned the alleged existence of the duty to consult in the context of ?historic? treaty rights.  The facts were that the federal government had approved (under the now-repealed Canadian Environmental Assessment Act, 1992216) the construction of a road within and near Wood Buffalo National Park in Alberta and the Northwest Territories.217  The proposed road ran along but outside of the boundary of the Mikisew Cree First Nation Reserve, which had been created by withdrawing land from the national park in 1988 in fulfilment of obligations under Treaty No. 8 (concluded in 1899).218  Members of the Mikisew Cree First Nation were beneficiaries under Treaty No. 8, and claimed that the proposed road would infringe upon their treaty rights to hunt and trap.219  Accordingly (the Mikisew argued), the Crown owed them a duty of consultation before making the decision to approve the road.  The Crown argued in response that it had no duty to consult since it was exercising its own treaty right to ?take up?                                                             213 Ibid at paras 22, 38,40-41. 214 Ibid at para 22. 215 Ibid at para 40. 216 SC 1992, c 37 [CEAA, 1992] (see Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2001] FCJ No. 1877 at para 2). 217 Mikisew, supra note 187 at para 3. 218 Ibid at paras 3, 6. 219 Ibid at paras 3, 7. 54  lands under the treaty, and that any duty to consult and accommodate had been satisfied through the original treaty negotiations.220  Alternatively, Park Canada?s consultation efforts had satisfied the Crown?s duty to consult.  The Court found that the duty to consult and, if applicable, accommodate arose when the Crown contemplated conduct which might adversely affect a First Nation?s treaty rights.221  As was found by the SCC in Haida Nation, the content of the duty depended upon the particular context of the case, including the likely seriousness of the proposed conduct on the relevant Aboriginal people: The duty here has both informational and response components. In this case, given that the Crown is proposing to build a fairly minor winter road on surrendered lands where the Mikisew hunting, fishing and trapping rights are expressly subject to the ?taking up? limitation, I believe the Crown?s duty lies at the lower end of the spectrum. The Crown was required to provide notice to the Mikisew and to engage directly with them (and not, as seems to have been the case here, as an afterthought to a general public consultation with Park users). This engagement ought to have included the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights.222 The Court found that the Crown had not satisfied its duty to consult.223  This seems to have turned on the fact that although Parks Canada had provided the Mikisew with the terms of reference for the environmental assessment, and had invited them to attend ?open houses?,224 it failed to substantially address their concerns by not replying to one of their letters, and by                                                             220 Ibid at para 36. 221 Ibid at paras 34, 56-57. 222 Ibid at para 55. 223 Ibid at paras 4, 67-68. 224 Ibid at para 9. 55  already making its decision regarding the road before holding a face-to-face meeting.225  This decision suggests that consultation directed at the general public may not be sufficient to satisfy the Crown?s duty to consult where the Crown has not ensured that the relevant First Nation?s concerns have been ?substantially addressed.?  The recent environmental assessment of the Kitsault Mine Project in British Columbia provides an interesting comparison with the Mikisew case (see chapter 4). The SCC?s 2010 decisions of Little Salmon and Rio Tinto Alcan affirmed and further clarified the duty to consult.  In Little Salmon, a majority of the SCC held that the Crown?s duty of honourable dealing with Aboriginal people may mandate a duty to consult First Nations when it exercises rights under comprehensive land claims agreements in a manner which may affect their interests.226  Comprehensive agreements may not constitute ?complete codes? in terms of consultation,227 though the scope of the common law duty to consult will be shaped by the scope of consultation procedures under an agreement.228  In Rio Tinto Alcan, the Court usefully explained in greater detail than it had done in previous decisions the circumstances in which the duty to consult is triggered.  This is particularly relevant to a consideration of the scope of environmental decisions which may involve TEK.  The Court held that there are three elements to the test: 1) the Crown?s knowledge, actual or constructive, of a potential Aboriginal claim or right; 2) contemplated Crown conduct; and 3) the potential that the contemplated conduct may                                                             225 Ibid at paras 67-68. 226 Little Salmon, supra note 155 at paras 7, 13-14, 38, 61, 66; but see paras 46 (?the parties themselves may decide therein to exclude consultation altogether in defined situations and the decision to do so would be upheld by the courts where this [page133] outcome would be consistent with the maintenance of the honour of the Crown.?), 71 (?the honour of the Crown may not always require consultation. The parties may, in their treaty, negotiate a different mechanism which, nevertheless, in the result, upholds the honour of the Crown? (emphasis in original)); c.f. Deschamps J, on behalf of LeBel and Deschamps JJ at para 118 (?where there is a treaty, the common law duty to consult will apply only if the parties to the treaty have failed to address the issue of consultation?). 227 Ibid at paras 38, 52, 62 (Binnie J on behalf of majority), 94 (Deschamps J, on behalf of LeBel and Deschamps JJ). 228 Ibid at para 67. 56  adversely affect an Aboriginal claim or right.229  The threshold for the first element to be triggered is ?not high?: Actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted ? Constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an Aboriginal community or an impact on rights may reasonably be anticipated. While the existence of a potential claim is essential, proof that the claim will succeed is not. What is required is a credible claim. Tenuous claims, for which a strong prima facie case is absent, may attract a mere duty of notice.230 In relation to the second element, ?there must be Crown conduct or a Crown decision that engages a potential Aboriginal right. What is required is conduct that may adversely impact on the claim or right in question.?231  In this context, the Court confirmed that the duty to consult extends to ?strategic, higher level decisions? that may have an indirect impact on Aboriginal claims and rights.232  Citing earlier cases, the Court referred to the following examples of proposed Crown conduct and decisions which have been found to trigger the duty to consult: the transfer of tree licences which would have permitted the cutting of old-growth forest (Haida Nation); the approval of a multi-year forest management plan for a large geographic area; the establishment of a review process for a major gas pipeline; and the conduct of a comprehensive inquiry to determine a province?s infrastructure and capacity needs for electricity transmission.233  The Court expressly declined to comment on whether the duty would arise in the case of legislative action.234                                                             229 Rio Tinto Alcan, supra note 188 at para 31. 230 Ibid at para 40. 231 Ibid at para 42. 232 Ibid at para 44. 233 Ibid. 234 Ibid. 57  In relation to the third element, the Court held that the onus is on the claimant to demonstrate a ?causal connection? or ?causal relationship? between proposed Crown conduct and an ?appreciable adverse effect on the First Nations? ability to exercise their aboriginal right?.235  However, in keeping with its other findings, the Court held that the adverse effects need not be direct, physical effects; instead, the duty may apply with respect to strategic, ?high level? conduct that facilitates direct impacts upon rights.236  This is consistent with the purpose of the duty to consult, which the Court held was to avoid ?irreversible effects? upon Aboriginal rights and title pending the resolution of rights and title claims.237 In considering the common law duty to consult in the context of TEK, the first issue is the scope of decisions which may trigger the duty.  It is clear from the SCC?s reasoning that the scope of decisions where the duty may be triggered is very broad.  This may be particularly the case in parts of British Columbia and other areas where claims of Aboriginal rights and title are undetermined, and so relatively broad in scope.  However, Mikisew and Little Salmon indicate that the duty is also likely to arise in respect of a broad range of decisions in those parts of Canada subject to historic and modern treaties. The second issue is the scope of TEK that may be volunteered by Indigenous people when the duty to consult is triggered.  As discussed in chapter 2, one of the principles for the efficient and respectful use of TEK is provision for all four categories of TEK to be volunteered (principle 1).  Whether this principle can be realised in the context of the duty to consult depends upon the scope and content of the duty in the particular circumstance.  As explained by the SCC                                                             235 Ibid at paras 45-46, 51. 236 Ibid at para 47. 237 Ibid at paras 46, 53.  See also Chris W Sanderson, Keith B Bergner & Michelle S Jones, ?The Crown?s Duty to Consult Aboriginal Peoples: Towards an Understanding of the Source, Purpose and Limits of the Duty? (2012) 49:4 Alb L Rev 821 at 826. 58  in Haida Nation, there may be some instances where, in the view of the Crown, the potential impact of the proposed conduct or decision upon Aboriginal rights is relatively minor and/or the claim of rights is weak.  In these circumstances, the Crown may be justified in simply issuing a notice to the First Nation, and then discussing any issues raised.238  The Court in Haida Nation contrasted this with ?deep consultation?, which arises when the claim is strong and the potential impact upon Aboriginal rights is great.  In these circumstances, the Crown may be required to afford opportunities to the First Nation to make written submissions and to formally participate in the decision-making process, and to provide reasons for its decision.239  In all cases, the focus is upon substantially addressing the ?concerns? of First Nations about potential impacts upon rights. In my view, the scope of the duty to consult is sufficiently broad to allow a First Nation to volunteer any or all four of Usher?s categories of TEK, wherever the duty falls along the spectrum described by the SCC in Haida Nation.  Category 2 TEK (comprising factual knowledge about past and current use of the environment) is the most clearly contemplated category of TEK that one would expect to be volunteered, but there appears to be no reason in law or principle why a First Nation could not also volunteer category 1 TEK (factual/rational knowledge about the environment or ?specific environmental knowledge?), category 3 TEK (culturally based value statements, including moral or ethical statements about the proposed conduct or decision), or category 4 TEK (comprising a culturally based cosmology, or worldviews about the environment), even if the First Nation?s participation is limited to responding to a notice describing a proposed decision or conduct.  For example, a First Nation might volunteer moral or ethical statements related to potential impacts upon its right to hunt.                                                              238 Haida Nation, supra note 185 at paras 39, 43. 239 Ibid. 59  Given the potential complexity of these matters, however, it is likely that as a matter of practice the potential for First Nations to volunteer all categories of TEK in a meaningful sense will vary proportionately with the scope and content of the duty to consult.  In other words, a First Nation is likely to be in a position to volunteer TEK comprehensively and meaningfully only in situations where there is ?deep consultation? ? where the consultation is at the high end of the spectrum as judged by the Crown.  This is likely to be the case in relation to, for example, more substantial infrastructure projects such as road construction (as in Taku River).  Subject to judicial review and/or overriding statutory or agreement-based duties (see section 3.2), the Crown has considerable discretion to judge that the potential impacts upon Aboriginal rights are minor and do not warrant ?deep consultation.? Even where there is ?deep consultation? (as occurred in Taku River), the scope of TEK that a First Nation may volunteer may be limited by the requirement that the consultation be directed at the effects of a specific act or decision upon a specific Aboriginal or treaty right.  For example, there is the potential for ?distillation? of TEK if, for example, the First Nation wishes to discuss broader processes of land management than the narrowly defined project in question.240  This may limit in practice the capacity of the First Nation to volunteer and have meaningfully considered category 1 TEK other than knowledge specifically about the environment in question, and category 4 TEK.  On the other hand, a First Nation could claim that TEK itself is an incident of Aboriginal rights, potentially broadening the scope of consultation to include a broad range of TEK.  This issue does not appear to have been given consideration by the courts to date.  If raised, however, it might also raise the potentially thorny issue of who holds the TEK and hence the ?right? ? the local Indigenous group or a wider, regional, grouping of First Nations.                                                             240 See Taku River, supra note 186 at para 12. 60  The third issue is the scope of decision-makers? duties to incorporate any TEK volunteered into the final decision (see principle 3).  This depends again upon and the scope and content of the duty to consult and, in particular, whether the duty to accommodate is engaged.  Though, as scholars have noted, the content and limits of the duty to accommodate remain somewhat vague even after Rio Tinto Alcan and Salmon River,241 it appears from the SCC?s decisions that only when this duty is engaged is the Crown required to actually change its policy or decision in order to address First Nations? concerns.242  In all other circumstances, the Crown?s duty to ?substantially address? First Nations? concerns may be limited to giving meaningful consideration to those concerns and, in some cases, responding to the concerns in writing.  The legal question is always what the honour of the Crown demands in the circumstances of the case.  It follows that the Crown may only be required to actually act upon TEK when, according to the Crown?s judgement, a strong prima facie case exists for the claim, and the consequences of the Crown?s proposed decision may adversely affect it in a significant way.243   Even where accommodation arises, the duty ?requires [only] that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns.?244  This may involve taking steps to avoid irreparable harm or to minimize the effects of infringement of Aboriginal rights.245  According to Sanderson, Bergner & Jones, this may in turn mean ?making adjustments to a project location to avoid or                                                             241 Sanderson, Begner & Jones, supra note 237 at 843.  See also Treacy, Campbell & Dickson, supra note 202 at 572, 597, 613. 242 See Haida Nation, supra note 185 at para 47; Taku River, supra note 186 at paras 25, 42. 243 See Haida Nation, supra note 185 at para 47. 244 Taku River, supra note 186 at para 2.  See also Haida Nation, supra note 185 at para 14 (?the alleged duty to consult and accommodate by its very nature entails balancing of Aboriginal and other interests?). 245 Haida Nation, supra note 185 at para 47. See also Treacy, Campbell & Dickson, supra note 202 at 615 (?the Supreme Court of Canada in Haida and Taku River instead appears to indicate the related notions of mitigation and avoidance of impacts on Aboriginal interests as the key elements of substantive accommodation? (omitting footnotes)). 61  mitigate the potential impact on a significant site, or limiting construction to certain times of the year to avoid or mitigate the potential impact on a hunting right.?246  As noted above, however, accommodation does not extend to a right of veto.247  In other words, even though the categories 3 and 4 TEK of a First Nation may dictate that a project not proceed at all, the Crown is under no duty to accede to such wishes.  This means that, in practice, the scope of the Crown?s duty to incorporate TEK when the duty to consult and accommodate is triggered may, in practice, be limited largely to categories 1 and 2 TEK.  For different reasons, this may be the case with EIA under comprehensive agreements as well (see chapter 4). In summary, the duty to consult is likely to be triggered in relation to a wide range of governmental decisions.  First Nations may technically be able to volunteer the full suite of TEK when the duty is triggered.  In practice, however, the capacity of First Nations to volunteer TEK comprehensively and meaningfully, especially categories 3 and 4 TEK, is likely to be limited to those situations where there is ?deep consultation.?  The determination of when such consultation is required is at the Crown?s direction, and is likely to arise only in relation to a limited array of proposed decisions and conduct.  The Crown?s duty to actually incorporate TEK into its decision-making is further limited to those situations where the duty to consult includes the duty to accommodate.  Even in these situations, there are the risks of distillation of TEK, and that the Crown may lawfully disregard categories 3 and 4 TEK.                                                             246 Sanderson, Begner & Jones, supra note 237 at 844. 247 See Haida Nation, supra note 185 at para 48; Mikisew, supra note 187 at para 66; Little Salmon, supra note 155 at para 14. 62  3.2 Statutory and other duties to consult Indigenous people and/or consider TEK in environmental decision-making In addition to the common law duty to consult, Canadian law includes statutory duties for decision-makers to consider TEK and to consult Indigenous peoples or communities in respect of a range of areas of environmental governance.  The main areas are conservation and management of species and habitats, management of national parks, fisheries and oceans management (including management of marine protected areas), and environmental protection and management including EIA.  Duties to consult Indigenous peoples or consider TEK also exist under comprehensive agreements in relation to some of these areas.  I organise my discussion in this section in terms of these areas of environmental governance. 3.2.1 Conservation and management of species and habitats Duties to consider TEK and consult Indigenous peoples in respect of conservation and management of species and habitats exist under both federal and provincial and territorial law, as well as under comprehensive agreements.  These legal regimes may interact with each other.  The most significant federal legislation in this area is the Species at Risk Act (?SARA?).248  This legislation, together with the national policies designed to implement it, is also arguably the most significant statutory vehicle for the inclusion of TEK in relation to the conservation and management of species and habitats in Canada (though see the discussion of the Nunavut Wildlife Act249 below).  SARA came fully into force on 1 June 2004, replacing the federal government?s earlier, administrative, system for endangered species protection.250  SARA?s key provision relevant to TEK is section 15(2), which states that ?COSEWIC [the Committee on the                                                             248 SC 2002, c 29. 249 S Nu 2003, c 26. 250 Jennifer L Dawe & Barbara Neis, ?Species at Risk in Canada: Lessons Learned From the Listing of Three Species of Wolffish? (2012) 36 Marine Policy 405 at 405-406, 412. 63  Status of Endangered Wildlife in Canada] must carry out its functions on the basis of the best available information on the biological status of a species, including scientific knowledge, community knowledge and aboriginal traditional knowledge.?  Created administratively in 1977,251 COSEWIC is established under section 14 and is the main advisory body to the Minister in relation to species at risk.  The main function of COSEWIC is to assess the status of species considered by COSEWIC to be at risk, to identify existing and potential threats to species, and to classify the species for consideration by the Minister.252  The term ?Aboriginal traditional knowledge? or ?ATK? is not defined in the Act, though according to the COSEWIC Aboriginal Traditional Knowledge (ATK) Process and Protocols Guidelines: ATK is based on the knowledge of the relationships between humans, wildlife, spirituality, environmental conditions, and land forms in a defined locality and, frequently, over lengthy time periods.  ATK is the term used by the COSEWIC ATK SC [Subcommittee] and others to describe the complex and unique knowledge and knowledge systems held by Aboriginal Peoples.253 Though somewhat vague, this description is broad and arguably includes all four categories of TEK. The requirement that COSEWIC must carry out its function on the basis of the ?best available information?, including ATK, is supported and supplemented by other provisions.  A key requirement is that ?COSEWIC?s assessment of the status of a wildlife species must be based on a status report on the species that COSEWIC either has had prepared or has received with an application.?254  Status reports in turn must contain ?a summary of the best available                                                             251 Ibid at 405-406. 252 SARA, supra note 248, s 15(1)(a). 253 Government of Canada, COSEWIC Aboriginal Traditional Knowledge (ATK) Process and Protocols Guidelines (April 2010), online: COSEWIC <http://www.cosewic.gc.ca/eng/sct5/index_e.cfm>. 254 SARA, supra note 248, s 21(1). 64  information ? including aboriginal traditional knowledge.?255  Accordingly, there is both a direct requirement for COSEWIC to consider ATK in assessing the status of species, and a procedural mechanism for the inclusion of ATK (the production of status reports). The process for including ATK in status reports is supported and facilitated by a unique committee established under SARA: the Aboriginal Traditional Knowledge Subcommittee (the ?ATK SC? referred to above).  Established in 2000,256 the ATK SC?s mandate is (like other subcommittees established under the Act) to ?assist in the preparation and review of status reports on wildlife species considered to be at risk.?257  In practice, the ATK SC does not prepare status reports itself but rather reviews and comments upon the ATK content of draft reports, which are prepared by contractors (environmental consultants) on COSEWIC?s instructions.258  The report writer (the contractor) then incorporates the ATK SC?s suggestions into the draft report in consultation with the co-chair of the Species Subcommittee (the ?SSC?, another of the subcommittees established under the Act).259  COSEWIC then assesses the draft report in accordance with its duty under section 21(1) and reports to the Minister. We can see from this procedure that despite the oversight function of the ATK SC, there is risk that ATK will be distilled before reaching COSEWIC?s final report to the Minister.  First, the draft status report is produced for a particular purpose (assessing the status of species at risk and potential threats to the species), and so TEK deemed by the consultant to be irrelevant or superfluous could be omitted.  This may have a filtering or distilling effect with respect to categories 3 and 4 TEK.  Second, members of the ATK SC are appointed by the Minister at the                                                             255 Ibid, s 2(1) (definition of ?status report?). 256 See supra note 253. 257 SARA, supra note 248, s 18(1). 258 Supra note 253; Government of Canada, COSEWIC's Assessment Process and Criteria, online: COSEWIC <http://www.cosewic.gc.ca/pdf/Assessment_process_and_criteria_e.pdf> at 4. 259 Ibid. 65  Minister?s discretion,260 so there is the possibility of non-ATK experts being on the committee.  Third, it appears the ATK SC has no say in the ATK content of status reports once they go back to the consultant.  The consultant and the chair of the SSC have the discretion to modify the ATK SC?s input into the report.  Fourth, there is no requirement for Aboriginal persons or ATK experts to be members of COSEWIC, though expertise in ATK is a qualifying criterion.261  At present, a co-chair of the ATK SC is one of 31 members of COSEWIC.262 Though a comprehensive assessment of the degree and manner in which TEK or ATK is actually incorporated under the SARA process is beyond the scope of this thesis, a look at two recent status reports assessed by COSEWIC is illuminating.  In 2013 COSEWIC assessed the status of the Grizzly Bear (Ursus arctos) ? a species of great significance to First Nations for subsistence and cultural purposes ? based upon a status report prepared in 2012.263  The report states that ?[t]his report includes substantial updating from traditional ecological knowledge collected and summarized from First Nations, M?tis, and Inuit sources by the COSEWIC Aboriginal Traditional Knowledge (ATK) Subcommittee.?264  However, although the report describes Aboriginal subsistence hunting of grizzly bears,265 it in no place directly attributes any specific information, conclusions or recommendations to ATK.  Accordingly, whether and how ATK was actually used to inform the conclusions and recommendations of the report is unclear.                                                               260 SARA, supra note 248, s 18(3) (?[s]ubject to subsection (2), the chairperson and members of the aboriginal traditional knowledge subcommittee must be appointed by the Minister after consultation with any aboriginal organization he or she considers appropriate?). 261 Ibid, s 16(2). 262 Government of Canada, ?About COSEWIC? (May 2013), online: COSEWIC <http://www.cosewic.gc.ca/eng/sct6/sct6_4_e.cfm>. 263 COSEWIC, COSEWIC Assessment and Status Report on the Grizzly Bear Ursus Arctos in Canada (Ottawa, Government of Canada: 2012), online: Species at Risk Public Registry <www.registrelep-sararegistry.gc.ca/default_e.cfm>. 264 Ibid at xiii. 265 E.g. ibid at 43, 45-46, 54. 66  As a comparison to the grizzly bear report I selected a second recent report for a species which might be of less significance to First Nations: the Buff-breasted Sandpiper (Tryngites subruficollis).266  For this species the report simply states that ?[n]o published Aboriginal Traditional Knowledge is currently available for the species.?267  The report contains no other references to ATK or to Aboriginal people.  This example and that of the grizzly bear report suggest that even apart from a possible distillation effect, the degree to which ATK or TEK is actually included in status reports is uneven and erratic.  This is consistent with the limited scholarship on this issue, which suggests that there is a lack of resources for the systematic collection of ATK under SARA, and little guidance and no criteria for the use of ATK.268  Scholars Dawe & Neis refer also to the adoption of stricter and more rigorous scientific standards for the assessment of species since SARA was enacted,269 which may also lead to some types of TEK being excluded from the process. Apart from status reports and the duty of COSEWIC to consider ATK, there are other important avenues for the inclusion of TEK under SARA.  One of these is in relation to recovery actions.  The Minister is required to prepare recovery strategies for species,270 action plans,271 and management plans for ?species of special concern?272 in co-operation with wildlife co-management boards established under comprehensive agreements (where boards have functions in relation to particular species), as well as ?every aboriginal organization that the competent minister considers will be directly affected by [by the relevant action].?  Depending on the terms                                                             266 COSEWIC, COSEWIC Assessment and Status Report on the Buff-Breasted Sandpiper Tryngites Subruficollis In Canada (Ottawa, Government of Canada: 2012), online: Species at Risk Public Registry <www.registrelep-sararegistry.gc.ca/default_e.cfm>. 267 Ibid at 6. 268 Dawe & Neis, supra note 250 at 412. 269 See ibid at 409, 411. 270 SARA, supra note 248, ss 39(1)(c), 39(2). 271 Ibid, ss 48(1)(c), 48(2). 272 Ibid, ss 66(1)(c) and (d), 66(2). 67  of their establishing agreement, the co-management boards would have either the duty or the discretion to consult Indigenous communities or governments in discharging their function under these provisions of SARA, providing an opportunity for TEK to be infused into the process.  For example, under the Labrador Inuit Agreement the Torngat Wildlife and Plants Co-Management Board must consult the Nunatsiavut Government before it intends to establish or vary a Total Allowable Harvest for a species or population of wildlife or plant.273 Another possible avenue for the inclusion of TEK is the advisory function of the National Aboriginal Council on Species at Risk.274  This Council, which consists of six representatives of Aboriginal peoples selected by the Minister based upon recommendations from Aboriginal organizations, is mandated to advise the Minister on the administration of the Act, and to provide advice and recommendations to the Canadian Endangered Species Conservation Council.275  It is plausible that the Council could constitute a second oversight body (along with the ATK SC) in relation to the use of ATK under the Act, albeit at a higher level. Stewardship Action Plans and the associated Habitat Stewardship Program (?HSP?) for Species at Risk of Environment Canada constitute another significant avenue for the inclusion of TEK in the implementation of SARA.  SARA section 10.1 states (in part) that ?[t]he Minister, after consultation with the Canadian Endangered Species Conservation Council, may establish a stewardship action plan that creates incentives and other measures to support voluntary                                                             273 Land Claims Agreement between the Inuit of Labrador and Her Majesty the Queen in Right of Newfoundland and Labrador and Her Majesty the Queen in Right of Canada, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca> [Labrador Inuit Agreement] (came into force 1 December 2005 pursuant to the Labrador Inuit Land Claims Agreement Act, SC 2005, c 27, s 5(1), and Labrador Inuit Land Claims Agreement Act, SNL 2004, c L-3.1, s 3(2)), s 12.9.10. 274 SARA, supra note 248, s 8.1(b). 275 Ibid, s 8.1. 68  stewardship actions taken by any government in Canada, organization or person.?  Significantly, a stewardship action plan: must include, but is not limited to, commitments to: ? (c) methods for sharing information about species at risk, including community and aboriginal traditional knowledge, that respect, preserve and maintain knowledge and promote their wider application with the approval of the holders of such knowledge, with other governments and persons.276 This provision reflects both the value and proprietary dimensions of TEK, first enshrined in the Convention on Biological Diversity277 and then later in the UN Declaration on Indigenous Peoples.278 Preparation and implementation of stewardship action plans are supported by both the Habitat Stewardship Program (?HSP?) for Species at Risk, and the Aboriginal Fund for Species at Risk (?AFSAR?) ? both funding programs designed to support voluntary community actions directed at the conservation and management of critical habitats for species at risk.  The HSP became operational in 2000-2001 and is a product of Canada?s National Strategy for the Protection of Species at Risk (2000).279  AFSAR, established in 2004, is a capacity-building program for Aboriginal organizations and communities wishing to be involved in this area of environmental governance.280  Some recent projects under the HSP have been specifically focussed on utilizing TEK for the purposes of species and habitat conservation.281                                                             276 Ibid, s 10.2(c). 277 Supra note 3. 278 Supra note 18. 279 Government of Canada, ?Habitat Stewardship Program for Species at Risk?, online: Environment Canada <http://www.ec.gc.ca/hsp-pih/>. 280 Government of Canada, ?Aboriginal Fund for Species at Risk?, online: AFSAR <https://www.retablissement-recovery.gc.ca/AFSAR-FAEP/index.cfm?fuseaction=home.main&lang=En>. 281 See e.g. a project entitled ?Implementing Traditional Ecological Knowledge for habitat stewardship of Species at Risk?, proposed by the Okanagan Indian Educational Resources Society (En'owkin Centre).  The project relates to the Okanagan Valley, British Columbia.  The Environment Canada website states that the aim of the project is to 69  A limitation of SARA is its narrow focus in terms of species and geographic coverage, as mandated by the Constitutional division of powers between the federal and provincial governments.  As provided by sections 34 and 35, SARA?s prohibitions on hunting, otherwise disturbing and trading in listed species282 apply automatically throughout Canada only in relation to ?aquatic species? and migratory birds protected under the Migratory Birds Convention Act, 1994.283  They apply to other listed wildlife species automatically only on federal lands such as national parks.284  The prohibitions extend to the provinces and territories only where the Governor in Council has so ordered, where the Minister is of the opinion that the laws of the province or territory do not sufficiently protect the species.285  Though it is unclear, it seems likely that this limitation of SARA would also limit the role of TEK under SARA.  It is clear, however, that there remains a significant, potential, role for the legislation of the provinces and territories to include TEK in respect of species and habitat conservation. At the provincial and territorial level, conservation and management of species and habitats is governed primarily by the various Wildlife Acts and Fish and Wildlife Acts,286 though some jurisdictions also have a separate Act in respect of endangered species.287  The most significant                                                                                                                                                                                                ?conduct activities that will incorporate and utilize Traditional Ecological Knowledge in the conservation and recovery work directly related to species at risk on the Locatee Lands (ECOmmunity Place) and an off-reserve area known as ?Roddy Flats.? The focus of the activities will aim to engage ?stewards? while concentrating on the protection, enhancement and restoration of habitats for species at risk. Through the integration of Indigenous Knowledge with science in endeavouring to protect species at risk, partnerships have and will continue to foster, ultimately achieving what is vital for the continued survival of many endangered and threatened habitats? (Government of Canada, ?Contributions Under the Habitat Stewardship Program for Species at Risk in BC's Okanagan Valley in 2010-2011?, online: Environment Canada <http://www.ec.gc.ca/default.asp?lang=En&xml=B7CC776C-710D-4447-966C-E2FD6453EB92>). 282 SARA, supra note 248, ss 32-33. 283 SC 1994, c 22. 284 SARA, supra note 248, ss 34(1), 35(2)(b). 285 See ibid, s 34(3). 286 Fish and Wildlife Act, SNB 1980, c F-14.1; Fish and Wildlife Conservation Act 1987, SO 1987, c 41; The Wildlife Act, 1998, SS 1998, c W-13.12; The Wildlife Act, RSM 1987, c W130, CCSM W130; Wildlife Act, RSA 2000, c W-10; Wildlife Act, RSBC 1996, c 448; Wild Life Act, RSNL 1990, c W-8; Wildlife Act, RSNS 1989, c 504; Wildlife Act, supra note 81. 287 See below. 70  of these Acts in the context of TEK is Nunavut?s Wildlife Act,288 which is designed to implement the wildlife chapter of the Nunavut Agreement289 (though, interestingly, the concept of TEK does not appear in the Agreement itself).  Under the Wildlife Act, the concept of Inuit Qaujimajatuqangit (?IQ?) is given central prominence.  IQ is defined to mean ?traditional Inuit values, knowledge, behaviour, perceptions and expectations,?290 and so is broader than TEK in the sense that it does not have to relate specifically to the environment.  The concept is perhaps more similar to Stevenson?s concept of ?Indigenous knowledge?291 than to TEK as I have defined it, though it is broad enough to include all four of Usher?s categories of TEK.  IQ is reflected in the Act?s values,292 and its constituent principles and concepts are enumerated in section 8.  Sections 3 and 9 operationalize IQ by requiring that decision-makers (including the NWMB) ?interpret and apply [the] Act in accordance with the purpose, values and principles of this Act,?293 and by imposing duties on decision-makers in respect of some of the particular principles of IQ.294  This is a significant example of a legislature placing emphasis upon TEK (or a version of it) as a central principle of governance. The other Wildlife and Fish and Wildlife Acts make no reference to TEK or related concepts, and provide for few or no formal, prescribed opportunities for Aboriginal participation.  Though the common law duty to consult might apply in respect of at least some decisions under these statutes (such as, for example, decisions to designate areas as wildlife sanctuaries or critical habitats warranting protection, or, perhaps, decisions to issue hunting licences to non-Aboriginal                                                             288 S Nu 2003, c 26. 289 Supra note 63. 290 Wildlife Act, supra note 81, s 2. 291 Stevenson, supra note 35 at 280. 292 Wildlife Act, supra note 81, s 1(2)(f). 293 Ibid, s 3. 294 Ibid, s 9. 71  persons), the degree to which the duty to consult is actually engaged in practice is unclear and is beyond the scope of this thesis.   By contrast, TEK and Indigenous participation are notable features of the provincial and territorial statutes for endangered species (species at risk) protection.295  These schemes vary considerably.  Perhaps the most notable is that of the Northwest Territories (the Species at Risk (NWT) Act),296 which is modelled in part on SARA but also has significant linkages with the co-management arrangements established under the Inuvialuit Final Agreement297 and the Mackenzie Valley Agreements.298  The Species at Risk (NWT) Act establishes as the primary decision-making body (in lieu of a government Minister) the Conference of Management Authorities on Species at Risk, a pluralistic body comprising co-management boards, the Tlicho Government, the Northwest Territories Government, and the federal government.299  Given the decision-making function of this body with respect to listing species, and accepting and implementing management plans and recovery strategies, there is potential for ATK (the relevant term) to have a significant role under this Act.300  In addition, the advisory body to the Conference, the Species at Risk Committee (?SARC?) must (as under SARA) make decisions on the basis of the ?best available information?, including ATK.301  Unlike COSEWIC, SARC must include appointees of co-management boards,302 and must have ?expertise derived from                                                             295 See Species at Risk (NWT) Act, SNWT 2009, c 16, ss 17(2), 30(4)(a); Endangered Species Act, 2007, SO 2007, c 6, s 5(3); Endangered Species Act, SNL 2001, c E-10.1, ss 6(2), 12(1), 12(2); Endangered Species Act, SNS 1998, c 11, s 10(2). C.f. Endangered Species Act, SNB 1996, c E-9.101 and The Endangered Species Act, SM 1989-1990, c 39, CCSM c E111, neither of which refers to TEK. 296 SNWT 2009, c 16. 297 Supra note 59. 298 Supra note 60. 299 Species at Risk (NWT) Act, supra note 296, ss 11(1)-(2). 300 Ibid, ss 12, 36(1), 66(1), 70(1). 301 Ibid, s 17(2). 302 Ibid, s 19(1)(a). 72  Aboriginal traditional knowledge?.303  SARC is required to assess the status of species and prepare status reports,304 and reports must contain ?the best available information, including Aboriginal traditional knowledge?.305  Accordingly, it appears that there is ample opportunity for the incorporation of TEK into decision-making in respect of endangered species in the Northwest Territories, and perhaps less risk of distillation compared with the processes under SARA.  This is an example of comprehensive agreements and co-management processes having a significant influence upon the incorporation of TEK in environmental decision-making processes. Conservation and management of migratory birds is another relevant area.  This issue falls within federal powers due to the Migratory Birds Convention (1916), which was significantly amended and replaced by the Amending Protocol to the Migratory Birds Convention in 1995 (coming into force on 8 October 1999).306  The Migratory Birds Convention as amended is a bilateral convention between the United States and Canada for the protection and sustainable management of migratory birds that traverse the United States-Canada boundary.307  The Convention applies in respect of ?migratory game birds?, ?migratory insectivorous birds?, and ?other migratory nongame birds?.308  Significantly, since the Amending Protocol came into force, the Convention provides that one of the means for achieving the conservation principles of the Convention is ?[u]se of aboriginal and indigenous knowledge, institutions and                                                             303 Ibid, s 19(2). 304 Ibid, ss 25, 30, 31(3)(a). 305 Ibid, s 30(4)(a). 306 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States, 7 December 1916, 2478 UNTS 33 (registration number II-1305, entered into force 7 December 1916) (Schedule to Migratory Birds Convention Act, 1994, SC 1994, c 22) [Migratory Birds Convention].  The Migratory Birds Convention includes the Protocol Between the Government of Canada and the Government of the United States of America Amending the 1916 Convention Between the United Kingdom and the United States of America For the Protection of Migratory Birds in Canada and the United States, 14 December 1995, 2473 UNTS 329, Can TS 1999 No 34 (registration number I-44408, entered into force 8 October 1999) [Amending Protocol to the Migratory Birds Convention]. 307 Amending Protocol to the Migratory Birds Convention, supra note 306, art 2. 308 Ibid, art 1. 73  practices ...?.309  However, this requirement is not reflected in the Migratory Birds Convention Act, 1994, which implements the Convention.  Perhaps not coincidentally, there appears to have been little progress towards co-management or use of TEK in relation to the conservation and management of migratory birds in Canada, despite co-management being expressed as an aspirational goal of the Canadian Wildlife Service?s various policy initiatives.310 In summary, SARA, Nunavut?s Wildlife Act and some of the provincial and territorial statutes for endangered species protection mandate use and consideration of TEK in relation to the conservation and management of some species and their habitats.  These statutes differ from the common law duty to consult in that they put the decisions to consult and use TEK beyond the discretion of individual decision-makers.  However, depending on the particular scheme there is still risk of distillation of TEK before it reaches the final decision-maker.  Only in Nunavut are decision-makers required to consider TEK as a matter of course.  The degree to which TEK is actually incorporated in practice in this area of governance is unclear though there is some evidence to suggest that practical incorporation is relatively limited at this time. 3.2.2 Management of national parks Management of national parks is an area of environmental governance where one would expect to see involvement of Indigenous peoples and use of TEK.  Since 2001 this has, in fact, been reflected in the legislation to some degree.  Pursuant to section 12(1) of the Canada                                                             309 Ibid, art 2, para 3. 310 See e.g. Government of Canada, Framework for Landbird Conservation in Canada (1996), online: Environment Canada <http://www.ec.gc.ca/mbc-com/default.asp?lang=En&n=9BCFCF15-1> at 9 (?[b]ecause landbird conservation relates to many species, habitats, ecosystems and landscapes, progress in conservation requires the cooperation of many government jurisdictions, non-government organizations, private industry, academics, aboriginal communities, landowners, and individuals?). 74  National Parks Act311 (which came into force in February 2001 and repealed the earlier National Parks Act from 1930312): The Minister shall, where applicable, provide opportunities for public participation at the national, regional and local levels, including participation by aboriginal organizations, bodies established under land claims agreements and representatives of park communities, in the development of parks policy and regulations, the establishment of parks, the formulation of management plans, land use planning and development in relation to park communities and any other matters that the Minister considers relevant. While this provision clearly envisages a role for Indigenous people in the development of both high-level policy for national parks, as well as the management of particular national parks, it falls short of requiring that the Minister collaborate with Indigenous peoples or communities in carrying out these functions (compared with, for example, the Minister?s duties with respect to oceans management under the Oceans Act313 ? see below).  The Minister may, however, enter into agreements with, inter alia, ?aboriginal governments, bodies established under land claims agreements ? for carrying out the purposes of this Act.?314  This is an express, general, power to enter into co-management arrangements with Indigenous bodies with respect to national parks.  As well as the general power, section 41(1) of the Act allows the Governor in Council to authorize the Minister to enter into an agreement with the Council of the Haida Nation respecting the management and operation of Gwaii Haanas National Park Reserve of Canada (see below).315  National park reserves were first established in 1988 as a means for acknowledging                                                             311 SC 2000, c 32. 312 National Parks Act, RS 1985, c N-14. The repeal of the National Parks Act by s 46 of the Canada National Parks Act, supra note 311 came into force on 19 February 2001 (Order Fixing February 19, 2001 as the Date of the Coming into Force of Certain Provisions of the Act, SI/2001-29, (2001) C Gaz 135:5, 444). 313 SC 1996, c 31. 314 Ibid, s 10(1). 315 This provision was originally the subject of s 8.5(1) of An Act to Amend the National Parks Act, SC 1992, c 23. 75  and addressing the existence of Aboriginal title claims over areas which would otherwise be set aside as national parks.316  Pending resolution of a claim for title which has been accepted for negotiation, a national park reserve functions exactly the same as a national park, except Aboriginal persons may carry on ?traditional renewable resource harvesting activities? in the area.317  The Canada National Parks Act allows for national park reserves to become national parks when the relevant Aboriginal claims have been resolved.318 The full extent to which TEK is actually used in the management of Canada?s 34 national parks and 6 national park reserves319 is unclear due to a paucity of scholarship on this issue.320  However, a search of the Parks Canada website321 suggests that the extent of Indigenous involvement and use of TEK in the management of Canada?s national parks varies along a continuum from low to high.  This is perhaps not surprising given that some national parks are older, established parks, whereas others, especially some of those in the North, were created under processes established under comprehensive agreements.  At the low end of the spectrum, by way of example, Indigenous involvement and use of TEK appears to be in preliminary stages in the Thousand Islands National Park in Ontario.322  Wapusk National Park on the western shore                                                             316 See An Act to amend the National Parks Act and to amend An Act to amend the National Parks Act, SC 1988, c 48, s 12.  The first national park reserve was the current Quttinirpaaq National Park of Canada on Ellesmere Island in Nunavut, though the current Pacific Rim National Park Reserve of Canada was also contemplated from the beginning (ibid, ss 12, 15(1)). 317 Canada National Parks Act, supra note 311, ss 4(2), 39-40.  The term ?traditional renewable resource harvesting activities? is not defined in the Act. 318 Ibid, s 6(2). 319 See ibid, Schedule 1 and Schedule 2 for a list of current national parks and national park reserves, respectively. 320 But see Ryan K Danby et al, ?Science and the St Elias: An Evolving Framework for Sustainability in North America?s Highest Mountains? (2003) 169:3 The Geographical Journal 191.  See also e.g. Ken Atkinson, ?New National Parks in the Canadian North? (2001) 86:2 Geography 144 (for an overview of the relationship between Aboriginal land claims and the establishment of national parks in Canada?s North); Craig, supra note 6 at 211-212, 235-236 (regarding the establishment of Gwaii Haanas National Park Reserve). 321 On 12 June 2013 I searched for the term ?traditional knowledge? on the Parks Canada website (<http://www.pc.gc.ca/eng/index.aspx>), searching the National Parks of Canada subsection of the site as well as other subsections. 322 See Parks Canada, St Lawrence Islands National Park of Canada Management Plan 2010, online: Parks Canada <http://www.pc.gc.ca/> at 7 (?[o]ver the past three years, the park and the Mohawks of Akwesasne have made 76  of Hudson?s Bay in Manitoba might be somewhere in the middle of the spectrum.  The ten-member board for this park includes two members from each of the York Factory First Nation and the Fox Lake Cree Nation, and the 2007 management plan claims that it ?is founded on science and traditional knowledge?.323  At the high end of the spectrum are parks such as Kluane and Vuntut National Parks in the Yukon Territory, and Aulavik National Park on Banks Island in the Northwest Territories, each of which was created pursuant to processes under comprehensive agreements.324  Accordingly, Indigenous participation in the management of these parks is substantial, and amounts to formal co-management in at least some of the parks.325  Despite this participation, the actual manner and degree to which TEK is used in the management of these parks is unclear.  Danby et al claim that there have been ?successful attempts at integration? of TEK and scientific information in respect of Kluane National Park (notwithstanding Nadasdy?s pessimism),326 but otherwise there is little information in the literature as to the practical incorporation of TEK in Canadian national parks. Another park at the high end of the spectrum is Gwaii Hanaas National Park Reserve, which was created prior to 30 January 1993 pursuant to section 8.5(1) of An Act to Amend the National                                                                                                                                                                                                concerted efforts to establish a respectful and productive relationship. SLINP and the regional community were honoured in the summer of 2007 with a traditional Haudenosaunee Smoky Fire ceremony that formalized the park?s relationship with the Mohawk community of Akwesasne. ? Resource management practices, visitor experience and educational programs will continue to be enriched through the integration of traditional Aboriginal knowledge?). 323 Parks Canada, Wapask National Park of Canada Management Plan (2007), online: Parks Canada <http://www.pc.gc.ca/> at 2, 4, 6. 324 See e.g. the Champagne and Aishihik First Nations Final Agreement, online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca>, s 10.3.2.1, ch 10, Schedule A, s 3.1; Yukon First Nations Land Claims Settlement Act, SC 1994, c 34, s 18 (establishment of Kluane National Park as and from 14 February 1995, the date the first land claims agreements under the Yukon Umbrella Agreement came into effect). 325 See e.g. the Champagne and Aishihik First Nations Final Agreement, supra note 324, ch 10, Schedule A, ss 6.1-6.2 (requiring establishment of a joint management board in respect of Kluane National Park); c.f. Parks Canada, Aulavik National Park of Canada Management Plan (2002), online: Parks Canada <http://www.pc.gc.ca/> at i (?[s]tewardship of the park will be an ongoing and cooperative partnership between Parks Canada and the Inuvialuit?), 19 (?[t]his role (ensuring that the Inuvialuit are consulted on all matters relating to fish and wildlife and their habitat) is a requirement for management in Aulavik. This process for consultation is known as cooperative management (co-management)?). 326 Danby et al, supra note 320 at 200. C.f. especially Nadasdy, Hunters and Bureaucrats, supra note 48, ch 3-5. 77  Parks Act.327  It was on 30 January 1993 that the Minister for the Environment on behalf of the federal government executed the Gwaii Haanas Agreement, an agreement between the federal government and the Haida Council on behalf of the Haida Nation for the cooperative management of Gwaii Hanaas (the terrestrial part of Haida Gwaii that had been set aside as a Haida Heritage Site in 1985).328  The Gwaii Haanas Agreement commits the parties to the establishment of an Archipelago Management Board for the reserve, with 50-50 Haida and federal government membership.329  Gwaii Haanas National Park Reserve is notable because it is an example of a formal co-management arrangement for a protected area produced other than in the context of a comprehensive land claims agreement.  The undated management plan for the reserve claims that it is the first Canadian example of a management plan for a protected area produced by a co-management board.330  The management plan reflects the parties? commitment to the use of TEK in the management of the reserve, efforts which seem to have been limited largely to documenting TEK at the time of the plan.331  Accordingly, the actual role of categories 3 and 4 TEK in the management of the reserve is unclear. Apart from active Indigenous involvement in the management of national parks and national park reserves through co-management or informal partnerships, routine monitoring of ecological integrity indicators is another avenue for the inclusion of TEK in parks management.  Section 8(2) of the Canada National Parks Act provides that ?[m]aintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be                                                             327 SC 1992, c 23.  See also Canada National Parks Act, supra note 311, s 41, Schedule 2. C.f. Craig, supra note 6 at 235. 328 Gwaii Hanaas Agreement (1993), online: Parks Canada <http://www.pc.gc.ca/> [Gwaii Haanas Agreement]. 329 Ibid, s 4.1. 330 Archipelago Management Board, Gwaii Haanas National Park Reserve and Haida Heritage Site: Management Plan for the Terrestrial Area (undated), online: Parks Canada <http://www.pc.gc.ca/eng/pn-np/bc/gwaiihaanas/plan/plan1.aspx> at 5. 331 Ibid at 5, 9, 12, 15, 18, 31. 78  the first priority of the Minister when considering all aspects of the management of parks.?  According to Parks Canada?s Data Sources and Methods for the Park Ecological Integrity Indicator from October 2012, active monitoring for ecological integrity began in 2008 and is ongoing.332  Data collection is occurring in every national park pursuant to a national framework, and ?traditional knowledge? is one source of data for indicators.333  However, there is little information on how this TEK is collected and applied in respect of ecological integrity monitoring.  It seems likely that the degree to which TEK is collected and used for this purpose will depend upon the robustness of partnerships or co-management arrangements with Indigenous groups. 3.2.3 Fisheries and oceans management Given the importance of fisheries to the Indigenous peoples of Canada and the prominence of fisheries in such pivotal Aboriginal rights cases as R v Sparrow,334 R v Gladstone,335 R v Marshall,336 and Lax Kw?alaams Indian Band v Canada (AG),337 it is not surprising that fisheries and oceans management is one of the key sites for the participation of Indigenous peoples and inclusion of TEK in management decisions.  Prior to the SCC?s decisions in Haida Nation and Taku River, its decision in Sparrow in 1990 prompted the development of the Aboriginal Fisheries Strategy (?AFS?) in 1992.  This, as explained by Walter, M?Gonigle & McKay, led to Department of Fisheries and Oceans (?DFO?) efforts to consult First Nations in relation to aspects of fisheries management, especially the allocation of the total allowable catch (?TAC?)                                                             332 Parks Canada, Data Sources and Methods for the Park Ecological Integrity Indicator (np: Her Majesty the Queen in Right of Canada, 2012), online: Parks Canada <http://www.ec.gc.ca/indicateurs-indicators/7CB5BB69-2367-4F68-9F34-6EEA3BDD8BC0/EI_en.pdf> at 3. 333 Ibid at 3, 5. 334 [1990] 1 SCR 1075 [Sparrow]. 335 [1996] 2 SCR 723 [Gladstone]. 336 [1999] 3 SCR 456, 177 DLR (4th) 513. 337 2011 SCC 56, [2011] 3 SCR 535. 79  for certain fisheries such as the Pacific Salmon Fishery.338  The AFS also included co-management initiatives, where Aboriginal groups have, for example, ?management responsibilities over aspects of food fisheries and some enhancement projects.?339  However, existing co-management regimes vary substantially in their comprehensiveness, from ?fairly extensive involvement? in the management of the salmon fishery in the case of the Gitksan, to more limited co-management efforts involving, for example, ?hiring Aboriginal guardians to do enforcement work, or Aboriginal management of a hatchery, without more comprehensive co-management of regional issues.?340  According to Walter, M?Gonigle & McKay: No comanagement agreement to date [2000] involves complete self-regulation, nor do these initiatives substantially change what remains the dominant strategy of DFO for management of the fishery. While elements of the fishery are becoming more community-based, the dominant strategy remains centralized state management of an increasingly industrial, corporate-owned fleet, where use and management are functionally separate.341 According to Harris, the SCC?s August 1996 decision in Gladsone (which historically recognized the right of the Heiltsuk people of the British Columbia central coast to a commercial herring-spawn-on-kelp fishery) prompted further efforts by the DFO to formalize consultations with First Nations.342  However, it seems that as under the AFS, consultations were directed primarily at determining the allocation of the TAC for fisheries such as the herring fishery.343  Nonetheless, it is possible that the consultation procedures established or augmented following                                                             338 Emily R Walter, Michael M?Gonigle, & Celeste McKay, ?Fishing Around the Law: The Pacific Salmon Management System as a ?Structural Infringement? of Aboriginal Rights? (2000) 45 McGill LJ 263 at 285-286. 339 Ibid at 286. 340 Ibid at 286-287. 341 Ibid at 287. 342 Harris, supra note 183 at 235. 343 Ibid. 80  Gladstone provided First Nations with some opportunity to volunteer TEK in relation to fisheries management.  As noted by Harris, the DFO has retained final decision-making authority.344 Since the SCC?s decisions in Haida Nation and Taku River in 2004 the common law duty to consult has sat alongside, or over the top of DFO?s earlier policy initiatives with respect to Indigenous consultation.  Exactly how the duty to consult has affected DFO?s operations and decision-making is beyond the scope of this thesis, though evidence of the effect of the developing jurisprudence is evident in the federal Oceans Act345 (enacted in 1996), and the subsequent Oceans Strategy from 2002.  The Oceans Act is notable in that it expressly requires the Minister to collaborate with First Nations and co-management bodies in the development of oceans policy in two key provisions.  Pursuant to section 29: The Minister, in collaboration with other ministers, boards and agencies of the Government of Canada, with provincial and territorial governments and with affected aboriginal organizations, coastal communities and other persons and bodies, including those bodies established under land claims agreements, shall lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems in waters that form part of Canada or in which Canada has sovereign rights under international law [emphasis added]. Potentially, this is a mechanism for infusing oceans management with categories 3 and 4 TEK.  Section 31 is similar, requiring the Minister to collaborate with ?affected aboriginal organizations? and ?bodies established under land claims agreements? to ?lead and facilitate the development and implementation of plans for the integrated management of all activities or measures in or affecting estuaries, coastal waters and marine waters that form part of Canada or in which Canada has sovereign rights under international law.?  These two provisions establish a                                                             344 Ibid. 345 Supra note 313. 81  lead role for First Nations (through the agency of ?affected aboriginal organizations?) and co-management boards in the development of both policy at the national level, and also integrated management at a regional level.   In practice, TEK has featured most prominently in the context of regional integrated management, though its application is at an early stage and is limited to particular geographic areas.346  Integrated management is not defined in the Oceans Act, though according to the DFO the ?Integrated Management concept? involves: comprehensive planning and managing of human activities to minimize the conflict among users; a collaborative approach that cannot be forced on anyone; and a flexible and transparent planning process that respects existing divisions of constitutional and departmental authority, and does not abrogate or derogate from any existing Aboriginal or treaty rights.347 The principles guiding integrated management are said to include ?ecosystem-based management, sustainable development, the precautionary approach, conservation, shared responsibility, flexibility and inclusiveness.?348  By 2010 there were three pilot projects for integrated management in Canada: the Pacific North Coast Integrated Management Area (?PNCIMA?), the Beaufort Sea Integrated Management Planning Initiative (?BSIMPI?), and the Eastern Scotian Shelf Integrated Management (?ESSIM?) Area.349  According to Jones, Rigg & Lee, both the PNCIMA and the BSIMPI (though not the ESSIM) involve substantial                                                             346 Russ Jones, Catherine Rigg & Lynn Lee, ?Haida Marine Planning: First Nations as a Partner in Marine Conservation?, online: (2010) 15:1 Ecology and Society 12 <http://www.ecologyandsociety.org/vol15/iss1/art12/>. 347 Government of Canada, Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada (Ottawa: Department of Fisheries and Oceans, 2002), online: Department of Fisheries and Oceans <http://www.dfo-mpo.gc.ca/oceans/publications/cosframework-cadresoc/pdf/im-gi-eng.pdf> at ii. 348 Ibid. 349 Jones, Rigg & Lee, supra note 346. 82  collaboration with First Nations.350  The PNCIMA is based upon a ?government-to-government? engagement between federal government departments and First Nations as prescribed by a 2008 memorandum of understanding.  The BSIMPI, in comparison, has a management structure consistent with the Inuvialuit Final Agreement involving a senior management committee and working groups, though falls short of formal co-management.351   The intent of both the PNCIMA and the BSIMPI (and of integrated management in general) is to develop integrated management plans for particular, large areas of ocean called Large Ocean Management Area (?LOMAs?), and to develop a network of marine protected areas.352  To date, TEK has been engaged in these processes primarily through ?ecosystem overview assessments? of LOMAs and follow-up assessments where TEK has been documented through recorded interviews with TEK holders.353  This suggests a relatively limited, narrow use of TEK.  However, scholars Jones, Rigg & Lee are hopeful that in due course this TEK will be used in the case of the PNCIMA to apply Haida concepts of ecosystem-based management to both integrated management on a regional scale and to the management of particular marine protected areas.354  An opportunity for such application of TEK may lie in the Bowie Seamount Marine Protected Area (Sgaan Kinghlas), which was established in April 2008 following a 2007 agreement between DFO and the Council of the Haida Nation for the planning and management of the area.355 Integration of TEK into fisheries and oceans planning by the DFO is facilitated and supported by the National Centre of Expertise ? Traditional Ecological Knowledge (?CETEK?),                                                             350 Ibid. 351 Ibid. 352 Designated pursuant to the Oceans Act, supra note 313, s 35. 353 Jones, Rigg & Lee, supra note 346. 354 Ibid. 355 See ibid; Bowie Seamount Marine Protected Area Regulations, SOR/2008-124 (registered 17 April 2008). 83  established in 2008.356  According to the DFO, CETEK is mandated to ?provide the Department with leadership and guidance on the use of TEK for integrated and coastal management.?357  CETEK defines TEK for its purposes as ?the knowledge, practices and beliefs acquired through long term observations and experiences, and the wisdom to apply and adapt the observations and experiences to dynamic environment? of Indigenous as well as non-Indigenous peoples.358  Little information is available about the operations of CETEK. National marine conservation areas (?NMCAs?) are a final aspect of fisheries and oceans management involving TEK.  Complementary to, though distinct from marine protected areas established under the Oceans Act, NMCAs are established under the Canada National Marine Conservation Areas Act359 and are administered by Parks Canada.  The CNMCA Act came into force on 13 June 2002 and was intended to provide a separate, stand-alone statute for the ?marine park? provisions previously contained in the National Parks Act.  NMCAs are essentially an extension of the terrestrial national parks system, and are for the purpose of ?protecting and conserving representative marine areas for the benefit, education and enjoyment of the people of Canada and the world?.360  Indigenous involvement and use of TEK are key features of the CNMCA Act.  According to the Preamble: Parliament wishes to affirm the need to ? consider traditional ecological knowledge in the planning and management of marine conservation areas;                                                             356 See Fisheries and Oceans Canada, ?National Centre of Expertise ? Traditional Ecological Knowledge (CETEK)?, online: Fisheries and Oceans Canada <www.dfo-mpo.gc.ca> [DFO, ?CETEK?]. 357 Fisheries and Oceans Canada, Northern Pacific Salmon Integrated Fisheries Management Plan Summary (2012), online: Fisheries and Oceans Canada <http://www.pac.dfo-mpo.gc.ca/fm-gp/mplans/2012/smon/smon-nc-cn-2012-sum-res-eng.pdf> at 4. 358 DFO, ?CETEK?, supra note 356. 359 SC 2002, c 18 [CNMCA Act], ss 2(1) (definition of ?marine conservation area?), 4(1), 5(1), Schedule 1. 360 Ibid, s 4(1). 84  [and] involve federal and provincial ministers and agencies, affected coastal communities, aboriginal organizations, aboriginal governments, bodies established under land claims agreements and other appropriate persons and bodies in the effort to establish and maintain the representative system of marine conservation areas? Pursuant to section 10(1), the Minister must consult with, inter alia: affected coastal communities, aboriginal organizations, aboriginal governments and bodies established under land claims agreements ? in the development of marine conservation area policy and regulations, the establishment of any proposed marine conservation area [NMCA] and the modification of any marine conservation area? . The Minister must consult the same categories of Indigenous bodies before appointing the members of the management advisory committee for an NMCA.361  The Minister must further consult the same categories of Indigenous bodies in preparing a management plan for an NMCA.362  As a further, general, function, the Minister may ?conduct scientific research and monitoring and carry out studies based on traditional ecological knowledge, including traditional aboriginal ecological knowledge, in relation to marine conservation areas.?363 Despite the aspirations and requirements of the CNMCA Act, it appears that, to date, little progress has been made in actually involving Indigenous peoples in the planning and management of NMCAs, or in utilizing TEK in these functions.  This is partly because very few NMCAs have yet been created ? according to the Parks Canada website, there are currently only three established NMCAs: Fathom Five National Marine Park in Ontario (established in 1987), Saguenay-St. Lawrence Marine Park in Quebec (established in 1998), and Gwaii Haanas                                                             361 Ibid, s 11(3). 362 Ibid, s 9(1). 363 Ibid, s 8(3). 85  National Marine Conservation Area Reserve (established in 2010).364  However, even with these established NMCAs, the management plans and State of the Park reports for Fathom Five and Saguenay-St Lawrence Marine Parks indicate that there has been little inclusion of Indigenous peoples or TEK in the management of these parks to date.365  The 2010 State of the Park report for Fathom Five National Marine Park notably blames this on the Saugeen Ojibway Nation?s withdrawal from the management process on the basis that they did not want their attendance at meetings to be construed as formal consultation for the purposes of the common law duty to consult.366  This comment provides a rare and interesting insight into the nature of the practical interaction between the common law and statutory duties to consult.  As would be expected, Indigenous (Haida) involvement is seemingly much greater in respect of the Gwaii Haanas National Marine Conservation Area Reserve, which is the subject of a formal co-management agreement with the Haida Council and is complementary to the Gwaii Haanas National Park Reserve discussed above.367  These examples hint at the role of factors other than legal mechanisms in promoting or hindering TEK incorporation. In summary, Indigenous involvement in the management of oceans and fisheries, including marine protected areas, has gone from virtually zero in 1990 to reasonably substantial involvement in some areas of governance in some geographic areas.  Indigenous involvement in these areas and use of TEK is supported by specific statutory provisions as well as national                                                             364 Parks Canada, ?National Marine Conservation Areas of Canada?, online: Parks Canada <http://www.pc.gc.ca/eng/progs/amnc-nmca/index.aspx>. The official status of these parks as NMCAs is unclear given that none of them appears in Schedule 1 of the CNMCAA. The Lake Superior National Marine Conservation Area is a further, proposed, NMCA. 365 See Parks Canada, State of the Park Report 2010: Fathom Five National Marine Park of Canada (Her Majesty the Queen in right of Canada, represented by the Chief Executive Officer of Parks Canada: np, 2010), online: Parks Canada <http://www.pc.gc.ca/eng/amnc-nmca/on/fathomfive/plan.aspx> at 3-4, 29 [Fathom Five State of the Park Report]; Parks Canada, Saguenay-St. Lawrence Marine Park Management Plan (Her Majesty the Queen in Right of Canada, represented by the Chief Executive Officer of Parks Canada: np, 2010), online: Parks Canada <http://www.pc.gc.ca/eng/amnc-nmca/qc/saguenay/plan.aspx> at 19-20. 366 Fathom Five State of the Park Report, supra note 365 at 3. 367 See Jones, Rigg & Lee, supra note 346. 86  policy, which are in turn supplemented by the duty to consult.  However, it appears that despite the progress made, involvement of Indigenous peoples and use of TEK in these areas of environmental governance is still at a relatively early stage.  The actual manner and depth of TEK incorporation in practice is unclear due to a relative paucity of scholarship on the issue (despite some scholars? optimistic views).368  However, it may be possible to tentatively conclude that, as for national parks, the degree of TEK incorporation depends to some extent upon the significance of the Indigenous role in the process, or (to put it another way) the strength and robustness of government-Indigenous partnerships. 3.2.4 Environmental protection and management including EIA The fourth area of environmental governance where there are statutory requirements to consult with Indigenous peoples and communities and consider TEK is environmental protection and management, including EIA.  Though Canada is not a party to it, this is consistent with ILO Convention No. 169, which requires involvement of Indigenous peoples in EIA as a means to mitigate impacts on their cultures due to large projects and developments.369  Requirements for proponents to consider TEK as part of EIA processes first arose in Canada in the early 1990s under the (now repealed) Canadian Environmental Assessment Act.370  Though this Act as passed did not contain any express requirements for the consideration of TEK, the definition of ?environmental effect? included ?any effect of any such change [in the environment] on health and socio-economic conditions, on physical and cultural heritage, [and] on the current use of lands and resources for traditional purposes by aboriginal persons? .?371  This definition directed attention towards at least some aspects of TEK; accordingly, federal assessment bodies                                                             368 See ibid. 369 See supra note 14, art 6(1), 7(3). 370 SC 1992, c 37 [CEAA, 1992].  See Stevenson, supra note 35 at 278-279; Usher, supra note 35 at 184. 371 CEAA, 1992, supra note 370, s 2(1). 87  began to require proponents to consider TEK in the context of certain major resource projects, particularly those in the North.  Notable early examples of project assessments featuring TEK include the BHP Diamonds Inc mine in the Northwest Territories (known originally as the NWT Diamonds project),372 and the Voisey?s Bay Nickel Project in Labrador.373  From June 2003 consideration of ?aboriginal traditional knowledge? as part of environmental assessments became discretionary under the Act.374 At the federal level, consideration of TEK in the context of EIA is now governed by the Canadian Environmental Assessment Act, 2012.375  This Act (which came into force on 6 July 2012 and repealed the CEAA, 1992) largely repeats the earlier Act?s requirements as to TEK and consideration of Aboriginal matters.  Pursuant to section 19(3), ?[t]he environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge?, repeating the earlier Act?s discretionary requirement contained in section 16.1.  In addition, every environmental assessment of a designated project must take into account, among other things, the effects of the following with respect to Aboriginal peoples: any change that may be caused to the environment on  (i) health and socio-economic conditions,  (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or                                                             372 Stevenson, supra note 35 at 285-286; Usher, supra note 35 at 184; Kwiatkowski, RE & M Ooi, ?Integrated Environmental Impact Assessment: A Canadian Example? (2003) 81:6 Bulletin of the World Health Organisation 434. 373 Usher, supra note 35 at 184. 374 CEAA, 1992, supra note 370, s 16.1, inserted by An Act to amend the Canadian Environmental Assessment Act, SC 2003, c 9, s 8. 375 SC 2012, c 19, s 52. 88  (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.376 This requirement, while not expressly requiring consideration of TEK, nonetheless directs attention to at least category 2 TEK as a matter of practice and potentially category 3 as well. The mechanism for inclusion of TEK under the CEAA, 2012 is consultation with Indigenous people by the proponent.  Pursuant to the Prescribed Information for the Description of a Designated Project Regulations,377 a description of a ?designated project? must include, inter alia, ?[a] description of the project?s location, including ? (e) the project?s proximity to reserves, traditional territories as well as lands and resources currently used for traditional purposes by Aboriginal peoples.?378  It must also include: Information on the effects on Aboriginal peoples of any changes to the environment ? including effects on health and socio-economic conditions, physical and cultural heritage, ? [and] current use of lands and resources for traditional purposes.379 In the absence of pre-existing, published information, it is difficult to see how this requirement could be met without consulting Indigenous people about their current use of land and resources, as well as their ?socio-economic conditions, physical and cultural heritage?, and including this information in the project description.  This requirement would seem to involve a targeted focus on at least category 2 TEK, though not necessarily a broader documentation of Indigenous concerns as advocated by proponents of the anthropological perspective on TEK such as Stevenson.380  Following Mikisew, there also remains doubt as to whether consultation processes                                                             376 Ibid, ss 2(1) (definition of ?environmental effects?), 5(1)(c), 19(1)(a). 377 SOR/2012-148. 378 Ibid, Schedule s 12(e). 379 Ibid, Schedule s 19. 380 Stevenson, supra note 35 at 283. 89  under the CEAA, 2012 would satisfy the common law duty to consult, though this doubt could be alleviated by assessment bodies ensuring that proponents determine and substantially address the concerns of affected Indigenous peoples as part of the assessment process. In some parts of Canada the CEAA, 2012 is supplanted in whole or in part by EIA regimes created by or under comprehensive agreements.  For example, as discussed in the following chapter, the EIA regime created by the Nunavut Agreement takes the place of the CEAA, 2012 in Nunavut.381  In the Northwest Territories, the regime created by the Inuvialuit Final Agreement generally prevails, though the CEAA, 2012 applies in limited circumstances.382  The MVRM Act (a regime designed to implement the requirements of the Gwich?in Agreement, the Sahtu Dene and Metis Agreement and the Tlicho Agreement) generally prevails over the CEAA, 2012 in the Mackenzie Valley region.383  In the Yukon Territory, the Yukon ESA Act384 (designed to implement the EIA provisions of the Umbrella Final Agreement385 and individual First Nations agreements) generally displaces the CEAA, 2012.386  Accordingly, the EIA regimes created by or under comprehensive agreements play a significant role in respect of TEK incorporation. The Yukon ESA Act and its associated rules of procedure and guidelines include a number of requirements in respect of provision and consideration of TEK.  Pursuant to the Rules for Screenings Conducted by the Executive Committee, project proponents are required to include                                                             381 Nunavut Agreement, supra note 63, s 12.12.7 (as amended pursuant to P.C. 2008-977, 29 May 2008). 382 Inuvialuit Final Agreement, supra note 59, ss 11(19), 11(37). 383 MVRM Act, supra note 65, s 116. 384 Supra note 80. 385 Supra note 44. 386 Yukon ESA Act, supra note 80, s 6. 90  ?valued environmental and socio-economic components? in their initial project documentation,387 and a proposal is not adequate unless it takes into account, inter alia: the need to protect the rights of Yukon Indian persons under final agreements, the special relationship between Yukon Indian persons and the wilderness environment of Yukon, and the cultures, traditions, health and lifestyles of Yukon Indian persons and other residents of Yukon.388 This requirement is reflective of a broader approach to the incorporation of TEK, with a focus upon the concerns of Indigenous people rather than a direct incorporation of any particular aspect of TEK.  Another mechanism for inclusion of TEK is a requirement for screening and review bodies to consult with relevant First Nations directly.389  This is a relatively unique requirement under Canadian law, being found only (apart from the Yukon ESA Act) in the EIA regimes established under or in respect of the three British Columbia comprehensive agreements,390 the MVRM Act, and the Labrador Inuit Agreement.391  Such consultations provide the relevant Indigenous groups an opportunity to voice their concerns about the proposed project, and contribute as little or as much TEK as they wish. The Yukon ESA Act and rules made under the Act also require each of the relevant assessment bodies, where applicable (a designated office, the executive committee, or a panel of                                                             387Yukon Environmental and Socio-economic Assessment Board, Rules for Screenings Conducted by the Executive Committee, online: YESAB <http://www.yesab.ca/rules/documents/ExComRulesEnglishFinalNov2305.pdf> [Yukon Screening Rules], r 16, Schedule A. 388 Ibid, s 19(b).  See also the Yukon ESA Act, supra note 80, s 42(1)(g). 389 Ibid, ss 57(4), 72(3). 390 Nisga?a Final Agreement, supra note 64, ch 10, para 6(c); the Tsawwassen First Nation Final Agreement, online: BC Treaties Commission <http://www.bctreaty.net/nations/agreements/Tsawwassen_final_initial.pdf>, s 15.7(b) (came into force 3 April 2009 pursuant to the Tsawwassen First Nation Final Agreement Act, SC 2008, c 32, s 4(1) and the Tsawwassen First Nation Final Agreement Act, SBC 2007, c 39, s 3(1)); Maanulth First Nations Final Agreement, (9 December 2006), online: BC Treaties Commission <http://www.bctreaty.net/nations/agreements/Maanulth_final_intial_Dec06.pdf>, s 22.3.19(b) (came into force 1 April 2011 pursuant to the Maanulth First Nations Final Agreement Act, SC 2009, c 18, s 4(1) and the Maa-nulth First Nations Final Agreement Act, SBC 2007, c 43, s 3(1)). These obligations are implemented by the Environmental Assessment Act, SBC 2002, c 43, s 29.1(2)(d). 391 Supra note 273, ss 11.5.1, 11.5.11. 91  the Review Board) to consider, as well as assess TEK.  These are also relatively unique requirements under Canadian EIA law (though see the discussion in chapter 4 below).  The Yukon Screening Rules392 and the Rules for Reviews Conducted by Panels of the Yukon Environmental and Socio-economic Assessment Board393 each state that a relevant assessment body must ?give full and fair consideration to scientific information, traditional knowledge and other information provided to it or obtained by it under this Act.?394  As mentioned above in chapter 2, ?traditional knowledge? is defined in the Act as ?the accumulated body of knowledge, observations and understandings about the environment, and about the relationship of living beings with one another and the environment, that is rooted in the traditional way of life of first nations.?395  This is a broad definition which includes all four of Usher?s categories of TEK, yet arguably involves an antiquated notion of the concept of traditionality.  In terms of assessment, a designated office or the Review Board (as the case may be) is required to: determine the relevance and weight to be given to any information provided or obtained ? [and] there shall be no presumption that scientific information or traditional knowledge, as the case may be, should be accorded greater weight based solely on the fact that the information is, respectively, scientific information or traditional knowledge.396 This requirement is consistent with my proposed principles for utilizing TEK in co-management and other contexts, which argue that TEK should be assessed, and not privileged over other                                                             392 Supra note 387. 393 YESAB, Rules for Reviews Conducted by Panels of the Yuko Environmental and Socio-economic Assessment Board, online: YESAB <http://www.yesab.ca/rules/documents/PanelRulesFinalFeb2706-English.pdf> [Yukon Panel Review Rules]. 394 Yukon Screening Rules, supra note 387, s 101; Yukon Panel Review Rules, supra note 393, s 102. 395 Yukon ESA Act, supra note 80, s 2(1) (definition of ?traditional knowledge?). 396 YESAB, Rules for Evaluations Conducted by Designated Offices, online: YESAB <http://www.yesab.ca/rules/documents/DORulesEnglishasapprovedJune110.pdf>, s 56; Yukon Screening Rules, supra note 387, s 102; Yukon Panel Review Rules, supra note 393, s 103. 92  forms of knowledge such as scientific knowledge (principles 3 and 4).  As I will show in chapter 4, this requirement is not reflected universally in the comprehensive agreements. In addition to the federal schemes, some attempts have been made to incorporate TEK into provincial EIA statutes.  In Nova Scotia, for example, the Environmental Assessment Regulations397 require that a proponent?s ?registration document? for a proposed project include, inter alia, ?all steps taken by the proponent to identify the concerns of the public and aboriginal people about the adverse effects or the environmental effects of the proposed undertaking? and also ?a list of all concerns expressed by the public and aboriginal people about the adverse effects or the environmental effects of the proposed undertaking.?398  Similarly, Alberta?s Environmental Protection and Enhancement Act399 requires an environmental impact statement to contain a description of ?social, cultural and economic impacts?,400 which may require consultation with First Nations to determine valued ecosystem components (VECs).  Apart from these specific examples, there are no prescribed requirements for direct consultation with Indigenous peoples or communities (as opposed to the general public) or for inclusion of TEK under provincial statutes.  However, inclusion of TEK may nonetheless be facilitated under some of these statutes to some extent pursuant to the common law duty to consult, which is operationalized by non-legal guidelines in some jurisdictions.401                                                             397 2003, NLR 54/03. 398 Environmental Assessment Regulations, 2003, NLR 54/03, ss 9(1)(b)(xiii), (xxxiv). 399 RSA 2000, c E-12. 400 Ibid, s 49(d). 401 See Environmental Assessment Office (BC), Proponent Guide for Providing First Nation Consultation Information (Non-Treaty First Nations) [nd], online: Environmental Assessment Office <http://www.eao.gov.bc.ca/pdf/EAO_Guidelines_FN_Consultation-Non_Treaty_Nations.pdf> at 1, 3; Office of Aboriginal Affairs (NS), Proponents? Guide: Engagement with the Mi?kmaq of Nova Scotia (May 2009), online: Government of Nova Scotia <http://www.gov.ns.ca/abor/docs/Proponants-Guide.pdf> at 5; Department of Environment and Local Government (NB), A Guide to Environmental Impact Assessment in New Brunswick (April 2012), online: Environment and Local Government <http://www2.gnb.ca/content/dam/gnb/Departments/env/pdf/EIA-EIE/GuideEnvironmentalImpactAssessment.pdf> at xix-xxi; Alberta Aboriginal Relations, Alberta?s First 93  Environmental protection in respect of pollution control is another distinct area where there are express statutory requirements to consult Indigenous peoples or communities and consider TEK.  The principle federal statute in this area is the Canadian Environmental Protection Act, 1999.402  ?Traditional aboriginal knowledge? is recognised in the preamble of the Act, though the implication is that TEK is subordinate to science: Whereas the Government of Canada recognizes the integral role of science, as well as the role of traditional aboriginal knowledge, in the process of making decisions relating to the protection of the environment and human health and that environmental or health risks and social, economic and technical matters are to be considered in that process. Section 2(1)(i) is the substantive provision in relation to TEK.  It states: In the administration of this Act, the Government of Canada shall, having regard to the Constitution and laws of Canada and subject to subsection (1.1), ? (i) apply knowledge, including traditional aboriginal knowledge, science and technology, to identify and resolve environmental problems [emphasis added]. The term ?traditional aboriginal knowledge? is not defined under the Act.  Moreover, the Act does not state how ?traditional aboriginal knowledge? is to be assessed so the exact role of TEK under the Act is unclear.                                                                                                                                                                                                Nations Consultation Guidelines on Land Management and Resource Development (Updated November 14, 2007), online: Alberta Aboriginal Relations <http://www.aboriginal.alberta.ca/documents/First_Nations_and_Metis_Relations/First_Nations_Consultation_Guidelines_LM_RD.pdf> at 6; Alberta Environment, ?First Nations Consultation Guidelines (Regulatory Authorizations and Environmental Impact Assessments)?, in Alberta Aboriginal Relations (ibid, Pt III at 2).  See also Treacy, Campbell & Dickson, supra note 202 at 604-610 (for a discussion of consultation guidelines in British Columbia and Alberta). 402 SC 1999, c 33 [CEPA]. 94  An interesting example of a requirement to consider TEK in the context of pollution control is contained in the Agreement between Canada and the United States of America on Great Lakes Water Quality, 2012, part of an amendment to the original 1978 Great Lakes agreement between Canada and the United States.403  The purpose of this recent agreement is ?to restore and maintain the chemical, physical, and biological integrity of the Waters of the Great Lakes.?404  Significantly, article 2, paragraph 2(4)(l) of the Agreement states that: The Parties shall be guided by the following principles and approaches in order to achieve the purpose of this Agreement:  ? science-based management ? implementing management decisions, policies and programs that are based on best available science, research and knowledge, as well as traditional ecological knowledge, when available ? [emphasis added]. This provision interestingly contemplates use of TEK as part of ?science-based management?.  It is unclear what this means in practice, though there is risk that inappropriate scientific standards may be applied to ?distil? important aspects of TEK falling within categories 3 and 4.  The Great Lakes Agreement and the Migratory Birds Convention405 are both examples of international agreements requiring Canada to use TEK in environmental governance where the obligation has yet to make its way into domestic, statutory law.                                                              403 Protocol Amending the Agreement between Canada and the United States of America on Great Lakes Water Quality, 1978, as Amended on October 16, 1983 and on November 18, 1987, Can TS 2013 No 8 (entered into force 12 February 2013) [no UNTS No], Appendix: Agreement Between Canada and the United States of America on Great Lakes Water Quality, 2012 [Great Lakes Agreement], art 2, para 4(12). 404 Ibid, art 2, para 1. 405 Supra note 306. 95  3.3 Conclusions The common law duty to consult compels the federal and provincial governments to consult Indigenous peoples in relation to some types of conduct and proposed decisions.  This duty has the potential to facilitate substantial inclusion of TEK in a broad variety of governmental decisions.  However, given the government?s discretion in the application of the duty, and the duty?s limitations as prescribed by the SCC, there is also potential for TEK to be omitted from governmental decision-making despite the duty.  The advantage of statutory requirements, by contrast, is that they remove the discretion of decision-makers and require Indigenous consultation or consideration of TEK or both.  The principle statutes in the areas of conservation and management of species and habitats, national parks management, management of fisheries and oceans, and environmental protection and management all contain notable examples of mandated duties to consult Indigenous peoples and/or consider TEK.  These duties are supplemented to some extent by requirements under comprehensive agreements, and co-management arrangements established within or outside of the comprehensive agreement context.  Accordingly, there is a reasonably robust legal framework for the substantive incorporation of TEK in Canada.  Though evidence of practical incorporation remains limited due to the relative newness of most of the legal frameworks and paucity of scholarship, there is reason to conclude tentatively that depth of TEK incorporation depends, at least in part, on the strength of government-Indigenous partnerships.  96  4. TEK AND EIA UNDER COMPREHENSIVE AGREEMENTS In this chapter I describe and critique the incorporation and utilization of TEK under the EIA regimes established by or under the comprehensive agreements identified in chapter 1, by reference to the principles identified in chapter 2.  In particular, I describe and critique the legal and institutional mechanisms under the various arrangements for the inclusion of TEK, the scope of TEK that Indigenous peoples and communities may volunteer and have considered by decision-making bodies (principles 1, 2 and 3), and the nature of any procedures for assessing and validating categories 1 and 2 TEK (principle 4).  Based on my analysis, I identify the key determinants for the inclusion of TEK having regard to the principles. As explained in chapter 1, my analysis is based not only upon the terms of the agreements themselves and associated legislation and guidelines issued by decision-making bodies, but also upon documents evidencing the incorporation of TEK in practice.  To this end, I examined a number of actual assessments of proposed projects under the four jurisdictions identified in chapter 1 (the Inuvialuit Settlement Region (?ISR?), the Mackenzie Valley region of the Northwest Territories, Nunavut, and the Nisga?a Area) (see Figure 1) at both the screening and assessment and/or review stages using publicly available documents in online registries.  These documents helped elucidate the fine detail of the various assessment processes and shed light upon how these processes facilitate and hinder the inclusion and consideration of different categories of TEK. To provide necessary context, I first identify and describe the legal sources of the four EIA regimes, the key distinguishing features of the regimes, and the relevant decision-making bodies.  I then organize my discussion in terms of the key stages in the EIA process, describing for each stage the legal and institutional mechanisms for inclusion of TEK, illustrated by case examples. 97  4.1 Source and key features of EIA regimes In each of the four jurisdictions the relevant comprehensive agreement or agreements play a role in defining the nature of the EIA regime, though the role varies between jurisdictions.  In Nunavut and the ISR, the EIA regime is defined entirely by the Nunavut Agreement and the Inuvialuit Final Agreement, respectively.  Though these agreements are ratified and implemented by federal legislation, the EIA regimes are entirely self-contained in the agreements themselves and are not found in any legislation.  In Nunavut the CEAA, 2012 does not apply,406 though in the ISR it prevails over any assessment carried out under the Inuvialuit Final Agreement where applicable.407 In the Mackenzie Valley, by contrast (meaning all of the Northwest Territories except for the ISR and Wood Buffalo National Park408), the EIA regime is governed by the MVRM Act, which relevantly commenced on 22 December 1998.  The MVRM Act implements the EIA sections of the three comprehensive agreements which have been concluded to date in respect of the Mackenzie Valley (the Gwich?in Agreement, the Sahtu Dene and Metis Agreement, and the Tlicho Agreement), though it also applies in respect of the South Slave and Deh Cho regions where comprehensive agreements have yet to be concluded.  Despite the application of the MVRM Act, the provisions of the agreements prevail to the extent of any inconsistency.409  The CEAA, 2012 does not generally apply in respect of projects in the Mackenzie Valley, though                                                             406 Nunavut Agreement, supra note 63, s 12.12.7 (as amended pursuant to P.C. 2008-977, 29 May 2008). 407 Inuvialuit Final Agreement, supra note 59, ss 11(19), 11(37). 408 MVRM Act, supra note 65, s 2 (definition of ?Mackenzie Valley?); see also Gwich?in Agreement, supra note 60, s 2.1.1. 409 MVRM Act, supra note 65, s 5(1). 98  projects in the ?national interest? or transregional projects may be subject to a joint review under the CEAA, 2012 (as was the case for the Mackenzie Gas Project ? see below).410 In the ?Nass Area? ? the area surrounding the Nass River in northern British Columbia the subject of the Nisga?a Final Agreement411 ? the EIA regime comprises British Columbia?s Environmental Assessment Act412 and the CEAA, 2012 (where applicable), as amended by chapter 10 of the agreement.  The Nisga?a Lisims Government (?NLG?) has the power to enact laws in respect of EIA of projects on ?Nisga?a Lands?413 (the 1,992 square kilometres of fee simple lands granted to the NLG under the agreement414) but has yet to do so.  Accordingly, unlike the other jurisdictions considered in this chapter, the Nass Area does not have its own, area-specific, EIA regime at present, though the Nisga?a Final Agreement has a bearing upon the regime (see below). In terms of common features, the EIA regimes in Nunavut, the ISR and the Mackenzie Valley each have co-management boards created by either the agreements or the MVRM Act.  The Nunavut Agreement establishes the Nunavut Impact Review Board (?NIRB?), a nine-member board empowered to carry out both screenings and environmental reviews of projects meeting the criteria under the agreement.415  The nine members of the NIRB consist of four members nominated by the ?DIO? or Designated Inuit Organisation (Nunavut Tunngavik Inc, or ?NTI?), two members appointed by the federal government, and two members appointed by the                                                             410 MVRM Act, supra note 65, s 116. 411 ?Nass Area? is defined in the Nisga?a Final Agreement, supra note 64, ch 1.  It is a 27,000 square kilometre area which includes the ?Nisga?a Lands? and the ?Nisga?a Wildlife Area? (16,100 square kilometres). 412 SBC 2002, c 43 [EA Act]. 413 Nisga?a Final Agreement, supra note 64, ch 10, para 3. 414 Ibid, ch 1 (definition of ?Nisga?a Lands), ch 3, paras 1-2. 415 Nunavut Agreement, supra note 63, ss 12.2.1-12.2.2. 99  Nunavut Territorial Government, plus a chairperson agreed by all members.416  The NIRB is expressly an ?institution of public government?.417  The Inuvialuit Final Agreement establishes two co-management boards: the Environmental Impact Screening Committee (?EISC?) and the Environmental Impact Review Board (?EIRB?) in respect of screenings and reviews, respectively.418  Each committee or board is a seven-member co-management body consisting of three Inuvialuit-appointed members, three government-appointed members, and a chairperson who must be agreed to by the Inuvialuit.419  In respect of the Mackenzie Valley, the MVRM Act establishes the Mackenzie Valley Environmental Impact Review Board (the ?MVEIRB?), which carries out environmental assessments and (where applicable) reviews of projects in the Mackenzie Valley.420  Screenings of projects in the Mackenzie Valley are carried out by other bodies such as the Mackenzie Valley Land and Water Board, another co-management body established under the MVRM Act.421  The MVEIRB has not less than seven members including a chairperson, including one member nominated by each of the Gwich?in First Nation, the Sahtu First Nation, and the Tlicho Government.422 For projects in or affecting the Nass Area, environmental assessments are generally carried out by the executive director of the Environmental Assessment Office (?EAO?), an office within the British Columbia government.423  There are no co-management boards in respect of environmental impact assessments in the Nass Area, though British Columbia or Canada as the                                                             416 Ibid, s 12.2.6. 417 Ibid, s 12.2.1. 418 Inuvialuit Final Agreement, supra note 59, ss 11(5), 11(22). 419 Ibid.  The three government-appointed members consist of one member appointed by the federal government, one member appointed by the Northwest Territories Government, and one member appointed by the Yukon Government (due to the application of the agreement to the Yukon North Slope) (ibid). 420 MVRM Act, supra note 65, ss 112(1), 114(a). 421 See ibid, s 124. 422 Ibid, s 112(2). 423 EA Act, supra note 412, ss 2(2), 10-11, 17. 100  case may be must consult the NLG in respect of such assessments.424  The EAO screens projects in what it calls the ?pre-application? stage, and then assesses projects meeting the statutory criteria in the ?review? stage (which might comprise an environmental assessment carried out by the EAO, or, less commonly, a full review equivalent to that in the other jurisdictions carried out by a commission or hearing panel appointed by the Minister).425  The NLG is entitled to representation on any assessment board, panel or tribunal established by the Minister for the purpose of a review.426  Accordingly, we can see from the outset that the institutional framework for EIAs in respect of the Nass Area is significantly different to that in the other three jurisdictions. 4.2 EIA procedures In each of the four jurisdictions there are two broad stages in the EIA process: preliminary screening (or the ?pre-application? stage as it is known in British Columbia), and the assessment or review stage.  The Mackenzie Valley is unique in having separate, sequential, assessment and review stages, with reviews being carried out only in respect of particularly significant projects.  Each of the two main stages presents opportunities and barriers for the inclusion of TEK.  I describe these two stages in turn, paying particular attention to the various steps in the assessment and review stages. 4.2.1 Preliminary screening Preliminary screening is the first stage of the environmental assessment process.  It is at this stage that the proponent submits its project application for a licence or other authorisation needed to carry out a project, and the relevant screening body decides whether a more thorough                                                             424 Nisga?a Final Agreement, supra note 64, ch 10, para 6(b). 425 EA Act, supra note 412, s 14(3). 426 Nisga?a Final Agreement, supra note 64, ch 10, para 7(b). 101  assessment or review is necessary.  Statutory criteria prescribe when screening is necessary for a project application, and in most jurisdictions these criteria are broad.  In Nunavut, for example, all ?project proposals? must generally be screened by the NIRB, meaning ?physical works? and ?physical activities? but excluding government plans.427  In the ISR, ?government wildlife enhancement projects? are excluded from screening,428 meaning that a broad array of government research projects in respect of wildlife and wildlife habitat are not required to be screened.429  By contrast, in British Columbia categories of reviewable projects are prescribed by the Reviewable Projects Regulation,430 so proponents are usually able to determine in advance whether their project will require environmental assessment.  Whether projects are required to be screened affects the scope of projects for which TEK might potentially be volunteered and incorporated.  Ideally, screening criteria would also enable the common law duty to consult to be satisfied, though the exclusion of some actions from screening raises the prospect of some other form of consultation being required in some cases. For those projects required to be screened, there are at least theoretical requirements and opportunities for inclusion of TEK.  Guidelines issued in each of the four jurisdictions express a general expectation that project proponents will consult Indigenous peoples prior to submitting project documentation for screening.431  This expectation is consistent with concerns expressed                                                             427 Nunavut Agreement, supra note 63, ss 1.1.1 (definition of ?project proposal?), 12.4.1. 428 Inuvialuit Final Agreement, supra note 59, ss 2 (definition of ?development?), 11(1). 429 See EISC, Environmental Impact Screening Guidelines (29 June 2012), online: EISC <http://www.screeningcommittee.ca/pdf/eisc_guidelines.pdf> [EISC, Screening Guidelines] at 10.  Many of these projects are, nonetheless, submitted to the EISC for formal screening. 430 BC Reg 370/2002. 431 EISC, Screening Guidelines, supra note 429 at 22-23; MVEIRB, Environmental Impact Assessment Guidelines March 2004, online: MVEIRB <http://www.reviewboard.ca/upload/ref_library/MVE%20EIA%20Guidelines_1195078754.pdf> [MVEIRB, EIA Guidelines] at 10, 12-13; NIRB, Screening: NIRB Public Guide Series: Stage 1 (Cambridge Bay, Nunavut: NIRB, 2013), online: NIRB <http://www.nirb.ca/> at 7; EAO, Guidelines for Preparing a Project Description for an Environmental Assessment in British Columbia, online: EAO <http://www.eao.gov.bc.ca/> at 3; EAO, User Guide (2009, updated March 2011), online EAO <http://www.eao.gov.bc.ca/> [EAO, User Guide] at 22. 102  in the literature that Indigenous peoples should be involved in project planning as early as possible for their input to be meaningful.432  This also reflects a hope on the part of EIA authorities that consultation will be carried out primarily by the project proponent as opposed to the assessment authority.  This is especially important in British Columbia where the EAO is particularly cognizant of the need to satisfy the common law duty to consult in the context of EIA (see below). In the ISR and the Mackenzie Valley guidelines additionally require project proponents to gather and document ?traditional knowledge?, or ?TK? at the screening stage.  The definition of TK in the ISR screening guidelines is based upon article 8(j) of the Convention on Biological Diversity ? ?knowledge, innovations and practices of the Inuvialuit and other aboriginal peoples embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity?.433  As discussed in chapter 1, this is a narrow definition for it excludes values about the environment, or category 3 TEK as a component.  This has a bearing upon the scope of TEK included in environmental reviews in the ISR (see below).  The Mackenzie Valley, by contrast, has TK-specific guidelines,434 unique among the four jurisdictions.  These guidelines deliberately avoid a definition of TK, though explain the term in some detail.  According to the guidelines (released in July 2005) TK includes ?three important elements? in relation to EIA under the MVRM Act: 1) knowledge about the environment; 2) knowledge about use and management of the environment; and 3) values about the environment.435  This third element includes what Indigenous people ?consider ?significant? or valued components of the                                                             432 See e.g. Nancy MacPherson & Gladys Netro, ?Community Impact Assessment for Old Crow, Yukon? in Sadler & Boothroyd, supra note 48, 31 at 40; Borrows, Recovering Canada, supra note 32 at 45. 433 EISC, Screening Guidelines, supra note 429 at 9. 434 MVEIRB, Guidelines for Incorporating Traditional Knowledge in Environmental Impact Assessment, July 2005, online: MVEIRB <http://www.reviewboard.ca/upload/ref_library/MVReviewBoard_Traditional_Knowledge_Guidelines_1247177561.pdf> [MVEIRB, TK Guidelines]. 435 Ibid at 6. 103  environment,?436 or VECs.  These three elements correspond with Usher?s categories 1-3 TEK, meaning that the concept of TK in the Mackenzie Valley is appropriately broad.  I discuss the Mackenzie Valley?s TK Guidelines in further detail in relation to assessments and reviews. For the next stage of the screening process, the screening body generally places the proponent?s documentation in an online public registry and then invites members of the public and registered participants to comment in writing within a limited period (usually 45 days in the ISR437).  British Columbia is an exception because it does not have a public comment period at the ?pre-application? stage, though for projects ?off Nisga?a Lands [that] may reasonably be expected to have adverse environmental effects on residents of Nisga?a lands, Nisga?a Lands or Nisga?a interests?, British Columbia or the federal government (for federal assessments) must ensure that the Nisga?a Nation receives timely notice of, and relevant information on, the project and the potential adverse environmental effects.438  These Nisga?a-specific requirements are important in satisfying the common law duty to consult.  In the other jurisdictions, a person must notify the screening body in advance if they wish to be registered, though in the ISR ?Inuvialuit organizations? and ?Inuvialuit communities?439 are automatically included on the EISC?s distribution list.440  A registered participant must have an Internet connection so as to receive email notifications of screenings. Despite the general requirements for proponents to consult Indigenous people pre-screening, the TK-specific requirements in the ISR and the Mackenzie Valley, and the opportunities for                                                             436 Ibid. 437 Environmental Impact Screening Committee & Environmental Impact Review Board, Rules of Procedure for the Environmental Impact Screening and Review Process of the Inuvialuit Final Agreement (7 July 2011), online: Environmental Impact Review Board <http://www.eirb.ca/pdf/rules_of_procedure.pdf> [EISC & EIRB, Rules of Procedure], s 2.4.5. 438 Nisga?a Final Agreement, supra note 64, ch 10, para 6(a). 439 Meaning any of the communities of Aklavik, Inuvik, Paulatuk, Sachs Harbour, Tuktoyaktuk or Ulukhaktok (Holman) (EISC & EIRB, Rules of Procedure, supra note 437, s 1.1). 440 Ibid, s 2.2.1. 104  Indigenous people to comment in writing on project documentation, my review of a number of screenings indicates that, in general, remarkably little TK or TEK is presented at the screening stage in any of the jurisdictions.  There are several reasons for this.  First, despite the general expectations of screening bodies regarding consultation and incorporation of TK, there is also an understanding among screening bodies and proponents that the scope of consultations may vary depending on the nature and location of the project.441  This is consistent with the SCC?s prescriptions on the scope and content of the common law duty to consult.  Many projects screened are of a relatively minor nature, such as minor extensions to existing projects or low-impact university or government research projects, and proponents of these projects generally do little or no consultation prior to making their application.  Proponents of larger projects, such as Cumberland Resources in respect of their Meadowbank Gold Mine proposal in Nunavut (screened in 2003) do more consultation,442 but even in these cases there is generally little or no TK or TEK included in the project documentation.  This may be because proponents know that these projects are likely to require assessment or review, so they reserve the more extensive consultation until later in the process. Second, the types of forms adopted by screening bodies for the submission of project documentation may effectively excuse a lack of consultation and TK.  In Nunavut, for example, proponents submitting project documentation for screening are required to complete a standard                                                             441 See EISC, Screening Guidelines, supra note 429 at 22; MVEIRB, EIA Guidelines, supra note 431 at 10; NIRB, Guide 3: Guide to Filing Project Proposals and the Screening Process (updated August 2007), online: NIRB <http://www.nirb.ca/> at 4-5; NIRB, Guide 6b: A Proponent?s Guide to Conducting Public Consultation for the NIRB Environmental Assessment Process (August 2006), online: NIRB <http://www.nirb.ca/> [NIRB, Guide 6b] at 3. 442 See Cumberland Resources Ltd, Meadowbank Gold Property: Project Description Report: March 2003, online: NIRB <http://www.nirb.ca/PublicRegistry.html> at 5-1. 105  ?Project Proposal Information Requirements? form.443  This form has one section dealing with ?Community Involvement and Regional Benefits?, and this requires only brief details of community consultations.  There is no section dealing with TK. Third, the public comment periods at the screening stage are not well-suited to extensive provision of TK.  Although Indigenous people could conceivably volunteer all four categories of TEK at this stage, the written format and limited time period for comments, coupled with the relatively limited project information available at this stage generally precludes extensive provision of TEK.  Moreover, some of the screening bodies seem to discourage extensive comments by issuing brief, standard forms for comments with limited space.444  The requirement for registered participants to be pre-registered and have an Internet connection also means that Indigenous representative bodies rather than individuals are generally involved at this stage.   Indigenous agency is also important at the screening stage (as it is at the assessment and review stages ? see below).  For relatively minor projects, it may be the case that Indigenous representative bodies and individuals are not overly concerned with the potential environmental impacts of the proposal, so do not see the need to volunteer any TEK.  Conversely, for major projects where the proponent has carried out extensive consultation, Indigenous representative bodies and individuals may be satisfied that their concerns have been addressed through the consultation process such that they do not see the need to voice their concerns directly with the screening body, at least not extensively.  This appears to have been the case, for example, with the screening of Cumberland Resources? proposed Meadowbank Gold Mine in the Kivalliq region of Nunavut (70km north of the Hamlet of Baker Lake), where the proponent                                                             443 See e.g. NIRB, Part 1 Form: Project Proposal Information Requirements, online: NIRB <http://www.nirb.ca/> submitted by the Northwest Company in respect of its Northern Gas Bar Iqaluit project in 2006. 444 See NIRB, ?Comment Form for NIRB Screenings?, online: NIRB <http://www.nirb.ca/> (issued in respect of many projects screened between 2003 and 2013). 106  (Cumberland) had carried out around 7 years of public consultations prior to screening.  In that case, three Inuit organizations (NTI, Kivalliq Inuit Association and the Chesterfield Inlet Hunters and Trappers Organisation) made comments, though two used the NIRB?s standard one-page form for comments, and the third (NTI) in a letter did not volunteer any TK.  NTI did, however, recommend that there be a review with further opportunity for consultation.445 The screening stage is significant from the perspective of TEK incorporation because, despite the relatively limited inclusion of TEK at this stage, screening represents the only opportunity for TEK inclusion for most projects.  This is because, at least in Nunavut and the ISR, most projects do not proceed beyond the screening stage.  In Nunavut, of the approximately 1200 projects screened by the NIRB since July 1993, only seven (or approximately 0.5%) have proceeded to the review stage.446  This is a function of the NIRB?s application of the relevant legal test, which is that projects will only be reviewed if they are determined to have ?significant impact potential.?447  Similarly in the ISR, the EIRB has reviewed only seven out of around 1200 projects screened by the EISC since 1985.448  This means that in these two jurisdictions there is little TEK or TK included for the vast majority of projects entering the EIA process.  By contrast in the Mackenzie Valley, the MVEIRB has assessed 37 out of an unknown number of projects screened by other bodies.  The test for screening bodies in the Mackenzie Valley is whether a project proposal ?might have a significant adverse impact on the environment or might be a                                                             445 Letter from Stefan Lopatka, Senior Advisor, Environmental, Water and Marine Management, Lands & Resources Department, Nunavut Tunngavik Incorporated to Stephanie Briscoe, Executive Director, Nunavut Impact Review Board (11 August 2003), online: NIRB <http://www.nirb.ca/PublicRegistry.html>. 446 NIRB, ?Public Registry?, online: NIRB <http://www.nirb.ca/PublicRegistry.html>.  Seven projects are listed under the heading ?completed reviews?.  Details of projects screened are available only for 2003 onwards.  From 2003 to year end 2012 377 projects were screened, giving an approximate average of 63 projects screened per year, or 1260 projects screened over a 20-year period. 447 Nunavut Agreement, supra note 63, s 12.4.1. 448 EISC, ?Environmental Impact Screening Committee Registry site?, online: EISC <http://www.screeningcommittee.ca/>. 107  cause of public concern?449 ? evidently broader criteria than in Nunavut or the ISR.  The MVEIRB has also reviewed or participated in the review of two projects: the Mackenzie Gas Project from 2004-2009, and the Gahcho Ku? Diamond Mine Project from 2006-2013.450  I discuss the review of the Mackenzie Gas Project in the next section.  In British Columbia, 56 out of 79 projects have proceeded to the assessment stage,451 reflecting the pre-filtering function of the Reviewable Projects Regulation.  Of these projects, one (the Kemess North Copper/Gold Project) has been reviewed by a review panel, though this did not involve the Nisga?a so I do not consider it further.452 4.2.2 Assessment and review Compared with the screening stage, the assessment and review stages453 present much greater opportunities for TEK to be volunteered and incorporated.  Requirements for consultation and consideration of TEK by proponents are also much more extensive than at the screening stage, and there are requirements for assessment and review bodies to consider any TEK presented.  However, as I will discuss in this section, the incorporation of TEK at the assessment and review stages may be limited by a range of factors, including the nature of the legal test structuring the assessment process, the regime?s general emphasis on TEK, factors associated with the particular project, and Indigenous agency.                                                             449 MVRM Act, supra note 65, s 125(1)(a). 450 MVEIRB, ?Public Registry?, online: MVEIRB <http://www.reviewboard.ca/registry/>. 451 EAO, ?Project Status Report: Certified/Completed Projects?, online: EAO Project Information Centre: e-PIC <http://www.eao.gov.bc.ca/> (excluding those project proposals which have been withdrawn, terminated, or refused). 452 See the Kemess North Copper-Gold Mine Project Joint Review Panel Report (17 September 2007), online: EAO Project Information Centre: e-PIC <http://www.eao.gov.bc.ca/> at 17-18. 453 There is just a review stage in the ISR and Nunavut.  The Mackenzie Valley EIA regime has both assessment and review stages.  In British Columbia, including the Nass Area, there is a single ?review? stage, though this may involve either ?standard? assessment procedures, or higher-level procedures involving public hearings. 108  4.2.2.1 Issues scoping and preparation of a Terms of Reference (ToR) The first step after an assessment or review body receives a referral of a project from a screening body is issues scoping and preparation of a terms of reference (?ToR?454).  A ToR is the document which directs the scope of the proponent?s public consultation, including with Indigenous peoples, and sets the framework and instructions for the proponent?s preparation of an environmental impact statement or ?EIS?.455  This stage is important because it sets the parameters for the remainder of the assessment or review.  The board or review panel?s (?review body?) final assessment is based primarily upon the EIS (together with other information on the public record and obtained during public hearings), so the manner in which issues are defined at the scoping and ToR stage has an important cascading effect upon the incorporation of TEK. Review bodies scope the issues of a proposed project based on a number of factors, including the nature of the project and project location as disclosed by the proponent?s initial documentation, and the review body?s experience with similar projects.  Projects of a particular type may raise similar issues which will routinely be included in a ToR for the proponent to address.  For example, a proposal for a large greenfields mining project in the arctic region, such as Baffinland?s proposed Mary River iron ore mine project on Baffin Island in Nunavut (reviewed by the NIRB from March 2008-September 2012456) may raise a set of ?standard? issues such as potential impacts upon caribou and caribou harvesting, which the ToR will require                                                             454 Referred to as an ?application information requirements? document or ?AIR? in British Columbia (see EAO, User Guide, supra note 431 at 24-25). 455 An EIS is termed a ?developer?s assessment report? or ?DAR? in the Mackenzie Valley, and an ?Application? in British Columbia including the Nass Area (MVEIRB, EIA Guidelines, supra note 431 at 29; EAO, User Guide, supra note 431 at 29). 456 See NIRB, Final Hearing Report: Mary River Project: Baffinland Iron Mines Corporation NIRB File No. 08MN053 (September 2012), online: NIRB <http://www.nirb.ca/PublicRegistry.html> [NIRB, Final Hearing Report for Mary River Project]. 109  to be addressed.  In particular, the ToR will require the proponent to describe, assess, and mitigate potential impacts associated with the identified issues.   Subject to certain constraints (discussed below), Indigenous peoples or communities may volunteer TEK at the scoping and ToR stage by commenting directly on the draft ToR.  In each of the jurisdictions an opportunity is offered for members of the public and parties to the proceeding to provide written comments on a draft ToR before it is finalised.  Parties to the proceeding include Indigenous representative bodies, such as NTI in Nunavut and Hunters & Trappers Committees in the ISR.  The limitation of this procedure is that the ToR has already been drafted by the review body by this point.  Of greater significance, therefore, are community scoping sessions where Indigenous people may influence the scope of issues before a draft ToR is prepared.  Community scoping sessions are held in each of the ISR, Mackenzie Valley and Nunavut, though generally only for larger-scale or more contentious projects.  At these sessions, usually held in town halls in local communities, the review body and/or the proponent introduces the project to the community, and community members (including representatives of Indigenous bodies) are able to ask questions and make comments.  These sessions are an important opportunity for Indigenous people to raise concerns about projects, including concerns based upon categories 3 and 4 TEK, and volunteer any specific TEK if they wish.  Indigenous people may also ask that the proponent, as part of its consultations and preparation of an EIS, carry out a TK study.  This occurred during a community scoping meeting in Hay River in the context of the MVEIRB?s review of Paramount Resources? proposed seismic exploration program (for petroleum) in the Deh Cho Region of the Northwest Territories in 2005.457  During the scoping meeting, which was attended by representatives of four potentially-affected First Nations,                                                             457 MVEIRB, Summary of Community Hearing: EAO506-007 Paramount Resources Ltd. Significant Discovery Licence 8 2-D Seismic Exploration Program, online: MVEIRB <http://www.reviewboard.ca/registry/>. 110  including the Northwest Territory Metis Nation, the Ka?a?gee Tu First Nation stressed that a TK study had not been carried out, and urged that the MVEIRB require one of the proponent.458  In that case, it does not appear that the First Nations attendees at the meeting actually volunteered any TEK.  By contrast, public scoping meetings in respect of Baffinland?s proposed Mary River project in Nunavut (which involved the development of a new open-pit mine on Baffin Island, construction of a new railway line and port, and year-round shipping involving ice-breaking through Foxe Basin), yielded extensive TEK about such things as wildlife and potential impacts to wildlife, impacts to traditional land uses, and socio-economic impacts, encompassing categories 1-3 TEK.459  These examples indicate that Indigenous agency has a significant role to play in the incorporation of TEK in EIA processes, which may in turn be affected by the nature of the project as well as other factors. In British Columbia, community scoping sessions are not a feature of the EIA regime, though the Nisga?a Nation and NLG may influence the scope of issues through participation on project working groups established by the EAO in respect of individual assessments.  In relation to the Kitsault Mine Project (involving the re-opening of a pre-existing though reclaimed molybdenum open-pit mine about 140km north of Prince Rupert in the Nass Wildlife Area), NLG representatives on the working group identified surface and groundwater quality, climate change, yellow and red cedar and moose as VECs, and advised that the moose population was declining in the area of the proposed mine.460  This information contributed to the scope of issues required                                                             458 Ibid at 9. 459 NIRB, NIRB Public Scoping Meeting Summary Report for Part 5 Review of Baffinland Iron Mines Corporation?s Mary River Project (June 2009), online: NIRB <http://www.nirb.ca/PublicRegistry.html> at 3, 6, 8. 460 EAO, Proposed Kitsault Mine Project (Proposed Project) Working Group Meeting October 5, 2010, 10:00am ? 3:00pm: Final Meeting Summary, online: EAO <http://www.eao.gov.bc.ca/> at 5-6. 111  to be addressed by the proponent in its comprehensive Application461 document.  Participation of First Nations representatives in project working groups may help to satisfy the common law duty to consult in British Columbia. Though Indigenous people have opportunities to influence the scope of issues at the scoping and ToR stage, including with respect to specific TEK requirements, they are constrained by the overall structural framework of the EIA regime.  This framework relevantly includes the nature of the legal test the review body ultimately has to consider in making a decision, the definition of TEK or TK adopted by the review body, and the regime?s overall emphasis upon TEK or TK.  These factors constrain the way in which issues, including Indigenous concerns, are treated throughout the whole course of the assessment or review process, so have a large bearing upon the scope of TEK incorporated.  I discuss the frameworks of each of the jurisdictions in some detail, with examples of how the frameworks influence the scoping of issues and content of ToRs. For all assessments and reviews, the ultimate question is whether the project should be allowed to proceed.  In answering this question, review bodies are required to consider prescribed criteria, which vary greatly between the jurisdictions.  In the Mackenzie Valley, the MVEIRB when carrying out an assessment must determine whether the proposed development will likely have a ?significant adverse impact on the environment or ? be a cause of significant public concern.?462  In addressing this question the MVEIRB must consider both environmental and socio-economic factors, namely:                                                             461 Equivalent to a developer?s assessment report (?DAR?) in the Mackenzie Valley, and an EIS in the ISR and Nunavut. 462 Ibid, s 128(1)(a); see also Gwich?in Agreement, supra note 60, s 24.3.5; Sahtu Dene and Metis Agreement, supra note 61, s 25.3.5(a). 112  (a) the protection of the environment from the significant adverse impacts of proposed developments; (b) the protection of the social, cultural and economic well-being of residents and communities in the Mackenzie Valley; and (c) the importance of conservation to the well-being and way of life of the aboriginal peoples of Canada to whom section 35 of the Constitution Act, 1982 applies and who use an area of the Mackenzie Valley.463 More generally, the purpose of the Mackenzie Valley EIA regime is ?to ensure that the concerns of aboriginal people and the general public are taken into account?.464  Accordingly, the overall framework of the EIA regime in the Mackenzie Valley is directed towards consultation and consideration of matters of importance to Indigenous people.  This might be expected to facilitate inclusion of at least category 3 TEK in the process (reflecting the values of Indigenous people about the environment).   Incorporation of TEK in the Mackenzie Valley is further facilitated by statutory requirements for the MVEIRB to consider TK, and the associated TK Guidelines.  In making any decision (at the screening, assessment or review stages), the MVEIRB has been required since 4 August 2005 (the date the relevant provision came into force) to consider ?any traditional knowledge and scientific information that is made available to it.?465  This requirement implements a requirement contained in the Tlicho Agreement (which also came into force on 4 August 2005),466 though applies to all assessments and reviews in the Mackenzie Valley.  The TK Guidelines released in July 2005 provide guidance in respect of this requirement, explaining, among things, the proprietary dimensions of TK and the need for ?prior informed consent? in gathering and researching TK ? reflecting in part the principles of the UN Declaration on                                                             463 MVRM Act, supra note 65, s 115. 464 Ibid, s 114(c). 465 Ibid, s 115.1 read with s 133(1). 466 Tlicho Agreement, supra note 62, s 22.1.7. 113  Indigenous Rights.467  The guidelines explain the MVEIRB?s general expectations with respect to TK for all stages of an assessment or review.  In relation to scoping, the guidelines make clear that ?[t]he Review Board [the MVEIRB] uses traditional knowledge to help identify the issues to be addressed in the environmental assessment, and to assist in determining the likely geographic area of impact.?468  Moreover, a ?developer?s assessment report? or ?DAR? is expected to describe, among other things: ? The steps taken by the developer to work with traditional knowledge holders for incorporating traditional knowledge; ? How traditional knowledge and traditional knowledge holders have influenced the developer?s project design, impact assessment, and mitigation measures; and ? A plan for future cooperation between the developer and traditional knowledge holders in order to further incorporate traditional knowledge where applicable, including monitoring and mitigation programs.469 As discussed above, the TK Guidelines conceive TK broadly, encompassing at least categories 1-3 TEK.  These requirements, if implemented, have the potential to assist in satisfying the common law duty to consult by facilitating a measure of ?accommodation? of Indigenous interests. It appears from my review of assessments in the Mackenzie Valley that the 2005 amendment to the MVRM Act requiring consideration of TK and the release of the TK Guidelines had a large impact upon the treatment of TK in the EIA process.  Though TK featured in environmental assessments prior to the 2005 changes, the changes placed TK front and centre as a matter of importance to be considered by project proponents.  For Deze Energy Corp?s proposed Taltson                                                             467 See MVEIRB, TK Guidelines, supra note 434 at 14-15, 23-24. 468 Ibid at 22. 469 Ibid at 23. 114  Hydroelectric Expansion Project, for example, the ToR (issued in March 2008) required the proponent (Deze) to address: a) Which communities and traditional knowledge holders participated in any traditional knowledge studies and how those participants were identified and agreed upon; b) What approach was taken in working with traditional knowledge holders and in the collection and use of traditional knowledge, and why; c) Verification from each community whether there are policies and cultural practices for the acceptable standards for working with traditional knowledge holders and handling the traditional knowledge. Where these do exist, verify how they were adhered to; d) Sources of traditional knowledge that have been used, including specific studies, archives, and individuals interviewed; e) When traditional knowledge is collected from existing studies and reports, verification that secondary sources are relevant and appropriate; f) Evidence that the traditional knowledge was collected and peer-reviewed with the Aboriginal community or traditional knowledge holders, and approved by the appropriate individuals or organizations; and g) How traditional knowledge and traditional knowledge holders have influenced the developer?s project design, impact assessment, and mitigation measures, as well as reclamation and closure planning. [Moreover] The DAR should outline any plans for future cooperation between the developer and traditional knowledge holders, and provide any commitments or agreements concerning such efforts.470 While not expressly requiring any TK studies, these requirements clearly reflect the MVEIRB?s expectation that Deze would work extensively with Indigenous people to incorporate a broad range of TK into the project design.  Notably, the MVEIRB put the onus on Deze to verify any                                                             470 MVEIRB, Terms of Reference for the Taltson Hydroelectric Expansion Project Developer?s Assessment Report (28 March 2008), online: MVEIRB <http://www.reviewboard.ca/registry/> at 17-18. 115  TK collected.  This, it appears, is a general requirement across those jurisdictions which place emphasis upon TEK or TK (see below). The joint review of the Mackenzie Gas Project from 2004-2009 though not strictly bound by the TK Guidelines similarly placed great emphasis upon TK.  This project was the most significant project assessed or reviewed in the Northwest Territories to date, involving the development of three natural gas fields, a ?gathering system? of pipelines from the gas fields, and, perhaps most significantly, the construction of a 1,196km, 30-inch buried pipeline to transport natural gas and natural gas liquids to Alberta.471  The agreement establishing the joint review panel made between the MVEIRB, the Inuvialuit as represented by the Inuvialuit Game Council, and the federal Minister for the Environment required the panel to ?make best efforts to promote and facilitate the contribution of traditional knowledge to the environmental impact review?.472  The ToR for the review ? drafted by parties to the agreement ? directed the proponents to ?use and incorporate traditional knowledge into the EIS?.473  The TOR described TK as ?a broad base of knowledge held by individuals and collectively by communities that may be based on observation and experience.?474                                                             471 Joint Review Panel for the Mackenzie Gas Project, Foundation for a Sustainable Northern Future: Report of the Joint Review Panel for the Mackenzie Gas Project: Volume I ? Chapters 1 to 10 December 2009 (Minister of Environment, Government of Canada: np, March 2010), online: MVEIRB <http://www.reviewboard.ca/registry/> [Joint Review Panel, Panel Report vol. 1] at 15. 472 Agreement Establishing the Joint Review Panel for the Mackenzie Gas Project, in Joint Review Panel for the Mackenzie Gas Project, Foundation for a Sustainable Northern Future Report of the Joint Review Panel for the Mackenzie Gas Project: Volume II ? Chapters 11 to 19 December 2009 (Minister of Environment, Government of Canada: np, March 2010), online: MVEIRB <http://www.reviewboard.ca/registry/> [Joint Review Panel, Panel Report vol. II] 620 at 626 (Schedule: Joint Review Panel Mandate, s 3). 473 Inuvialuit Game Council, Mackenzie Valley Environmental Impact Review Board & The Minister of the Environment. Environmental Impact Statement Terms of Reference for the Mackenzie Gas Project (August 2004), online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/Content/1/5/5/155701CE-6B5C-4F54-84E3-5D9B8297CD15/tor_final_e.pdf> at 7. 474 Ibid at 5. 116  In Nunavut, the NIRB is required to consider, among other things, ?whether the [proposed] project would enhance and protect the existing and future well-being of the residents and communities of the Nunavut Settlement Area? and ?whether the proposal reflects the priorities and values of the residents of the Nunavut Settlement Area? in making a review decision.475  These requirements put even more express emphasis upon the values of Indigenous people than in the Mackenzie Valley, though unlike in the Mackenzie Valley the NIRB is not required to consider TK.  Nor has the NIRB issued any TK-specific guidelines, though its general guidelines documents make a number of references to TK and ?IQ?.476  TK is defined in the NIRB?s Guide to Terminology and Definitions (updated August 2007) as a ?[c]umulative body of knowledge, practice and belief, evolving by adaptive processes and handed down through generations by cultural transmission. Specific Inuit Traditional Knowledge is referred to as Inuit Qaujimajatuqangit.?477  Inuit Qaujimajatuqangit or ?IQ? is defined separately as: Guiding principles of Inuit social values including: respecting other, relationships, and caring for people; development of skills through practice, effort and action; working together for a common cause; fostering good spirit by being open, welcoming, and inclusive; serving and providing for family and/or community; decision making through discussion and consensus; being innovative and resourceful; and respect and care for the land, animals and the environment.478 Both the terms adopted by the NIRB are broad in the sense that they do not refer just to knowledge about the environment, though they would include Usher?s categories 1 and 2 TEK as                                                             475 Nunavut Agreement, supra note 63, ss 12.5.5(a) and (c). 476 See e.g. NIRB, Guide 6b, supra note 441 at 3; NIRB, Review: NIRB Public Guide Series: Stage 2 (Cambridge Bay, Nunavut: NIRB, 2013), online: NIRB <http://www.nirb.ca/> [NIRB, Review Guide] at 8. 477 NIRB, Guide 2: Guide to Terminology and Definitions (updated August 2007), online: NIRB <http://www.nirb.ca/> at 7. 478 Ibid at 4. 117  well as categories 3 and 4.  The two terms are used somewhat interchangeably in the EIA process in Nunavut. Though general requirements for proponents to address TK or IQ are less clear in Nunavut than in the Mackenzie Valley, this has not stopped the NIRB from imposing comprehensive TK or IQ requirements on proponents as part of its major reviews.  In the ToR for Cumberland Resources? proposed Meadowbank Gold Mine, for example, the NIRB required the proponent to (among other things): ?present baseline data, including Traditional Knowledge about the existing biophysical and socio-economic environments?; ?present and justify its definition of Traditional Knowledge ? [and] explain the methodology used to collect it?; ?discuss how it treated Traditional Knowledge in baseline data collection, impact prediction and significance assessment?; ?explain how it integrated Traditional Knowledge and western-based science, including the manner in which it reconciled any apparent discrepancies between the two?; and ?describe a program to pursue the collection of Traditional Knowledge and to integrate it into ongoing baseline data collection, mitigation, and monitoring programmes?.479  Separately, the proponent was required to identify, through public consultation, current and historical patterns of land- and resource-use, as well as VECs and Valued Socio-Economic Components (?VSECs?, a concept unique to Nunavut).480  These requirements suggest a focus upon category 1 TEK in the establishment of baseline data, though are potentially broad enough to include category 3 TEK given the definitions of TK and IQ adopted by the NIRB.  Notably, the onus of verifying TEK was placed on the proponent in this example.                                                             479 NIRB, Environmental Impact Statement (EIS) Guidelines for the Meadowbank Project (February 2004), online: NIRB <http://www.nirb.ca/PublicRegistry.html> at 20-21. 480 Ibid at 21. 118  The Guidelines (equivalent to a ToR) for Baffinland?s proposed Mary River project also contained extensive IQ requirements, which were influenced by the Qikiqtani Inuit Association?s (?QIA?, a regional association of NTI) input during the scoping and ToR stage.  This highlights the role of Indigenous representative bodies and, more broadly, Indigenous agency in facilitating the incorporation of TEK in EIA processes.  In response to a draft ToR released by the NIRB for comment, the QIA urged an expansive definition of ?IQ?, and advised that IQ should be used as a means for seeing the project through an Inuit ?lens? rather than simply as a source of information.481  The Final Guidelines, issued on 16 November 2009, accordingly identified TK as one of the ?guiding principles? of the review, and adopted the alternative, broader, term ?Inuit Qaujimaningit? proposed by QIA.482  The guidelines also adopted QIA?s suggestion that IQ function as an ?Inuit lens?, and required the proponent to (among other things): present and justify its definition of TK; summarise what kinds of TK were collected; and ?discuss how it weighed and incorporated TK in baseline data collection, impact prediction, and significance assessment, and the development of mitigation and monitoring programs?.483  Accordingly, the final requirements for the proponent to consider TK and IQ were a blend of the specific (gathering baseline data about the biophysical environment and land use), and the broad (seeing the project through an Inuit ?lens?) ? a product of the QIA?s input into the process.  However, as I will discuss in the next section, this influence of the QIA did not necessarily result in the desired outcome in terms of TEK incorporation.                                                             481 Letter from Stephen Bathory, Acting Director, Lands and Resources, Qikiqtani Inuit Association to Ms Leslie Payette, Manager, Environmental Administration, Nunavut Impact Review Board (31 July 2009), online: NIRB <http://www.nirb.ca/PublicRegistry.html> at 2, 6-7. 482 NIRB, Guidelines for the Preparation of an Environmental Impact Statement for Baffinland Iron Mines Corporation?s Mary River Project (NIRB File No. 08MN053) (16 November 2009), online: NIRB <http://www.nirb.ca/PublicRegistry.html> at ix, 7. 483 Ibid at 37. 119  In British Columbia, the EA Act484 says little about the criteria the EAO or a commission or review panel (as the case may be) must consider when carrying out a review of a project.485  However, this is an instance where the Nisga?a Final Agreement has a significant influence upon the EIA process for certain projects affecting the Nass Area.  According to chapter 10, paragraphs 8(e) and (f) of the agreement: All environmental assessment processes referred to in this Agreement will, in addition to the requirements of applicable environmental assessment legislation: ? e. assess whether the project can reasonably be expected to have adverse environmental effects on residents of Nisga?a Lands, Nisga?a Lands, or Nisga?a interests set out in this Agreement and, where appropriate, make recommendations to prevent or mitigate those effects; f. assess the effects of the project on the existing and future economic, social and cultural well-being of Nisga?a citizens who may be affected by the project; ? The ?processes referred to? in the agreement include the modified EIA process the agreement mandates when a proposed project is to be located off Nisga?a Lands (the fee simple lands held by the NLG in the Nass River valley), but which ?may reasonably be expected to have adverse environmental effects on residents of Nisga?a Lands, Nisga?a Lands or Nisga?a interests.?486  These criteria capture projects proposed to be located in the Nass Wildlife Area (adjacent to Nisga?a Lands), such as Avanti Kitsault Mine Ltd?s (?Avanti?) proposed Kitsault Mine Project, located at Alice Arm north of the Nass River valley.  For these projects, the government of Canada or British Columbia (for a federal or provincial assessment) must ensure that the Nisga?a                                                             484 Supra note 412. 485 Section 11(3) of the Act simply states that ?[t]he assessment of the potential effects of a reviewable project must take into account and reflect government policy identified for the executive director, during the course of the assessment, by a government agency or organization responsible for the identified policy area.?  486 Nisga?a Final Agreement, supra note 64, ch 10, para 6. 120  Nation is consulted about the environmental effects of the project, and receives an opportunity to participate in the environmental assessment.487  Neither the Nisga?a Final Agreement nor the EA Act contains any requirement for consideration of TEK or TK.  Moreover, the various guidelines issued by the EAO mention TEK only sparingly.  According to the EAO?s Fairness and Service Code dated January 2009, the EAO may require a proponent to: ? involve First Nations in relevant studies; ? incorporate community and traditional knowledge into baseline studies; ? identify First Nation interests that may be affected by a proposed project; and, ? identify and develop measures to prevent, avoid or mitigate any potential significant adverse effects on First Nations? interests.488 With respect to ?Treaty Nations? (including the Nisga?a), proponents are ?encouraged to incorporate relevant ecological, traditional or other knowledge in describing these [environmental, economic, social, health, and heritage] effects? in preparing an Application.489  However, ?a proponent is not required by the EAO to fund specific and separate studies commonly referred to as traditional use studies, aboriginal interest and use studies or traditional ecological knowledge studies?.  These guidelines indicate a lesser emphasis on TEK in British Columbia, including in respect of projects in or affecting the Nass Area, compared with the other jurisdictions.  To the extent TEK is required be considered, it seems to be limited to categories 1 and 2 TEK.  Nonetheless, the requirement in paragraph 8(f) of chapter 10 of the agreement for                                                             487 Ibid, ch 10, paras 6(b)-(c). 488 EAO, Fairness and Service Code (January 2009), online: EAO <http://www.eao.gov.bc.ca/> [EAO, Fairness and Service Code] at 10-11; see also EAO, User Guide, supra note 431 at 6. 489 EAO, Proponent Guide for Providing Treaty Nation Consultation Information (Treaty Nations) [nd], online: EAO <http://www.eao.gov.bc.ca/> [EAO, Guide for Treaty Nation Consultation] at 2. 121  proponents to ?assess the effects of the project on the existing and future economic, social and cultural well-being of Nisga?a citizens who may be affected by the project? could conceivably lead to a consideration of categories 3 and 4. The proposed Kitsault Mine Project is an example of how these principles played out at the scoping stage.  The Kitsault Mine Project is one of the few projects involving the Nisga?a for which assessments have been completed.490  It is an interesting example because it was proposed to take place in the Nass Wildlife Area, triggering the ?modified? process under chapter 10, paragraphs 6-10 of the Nisga?a Final Agreement.  Accordingly, in addition to its common law duty to consult, the government of British Columbia had an obligation under the agreement to consult the Nisga?a Nation in respect of this project.  The government sought to address these duties by requiring the project proponent (Avanti Kitsault Mine Ltd) to consult the Nisga?a in preparing its draft Application document.491  Notably, the section 11 order defining the scope of consultation did not refer to TK.  Instead, it directed the proponent to consult the Nisga?a for the ?purpose of developing the application?, with the overriding purpose of ensuring that the proponent satisfied the province?s duties to consult under both the agreement and the common law.492  Thus, there were no specific requirements for the proponent to gather and incorporate                                                             490 To determine which projects have been assessed in relation to the Nasss area I examined the following sources: Nisga?a Lisims Government, ?Nass Area Working Group?, online: Nisga?a Lisims Government <http://www.nisgaanation.ca/> (non-exhaustive list of environmental assessments in which the NLG has participated); EAO, ?Project Status Report?, online: EAO Project Information Centre: e-PIC <http://www.eao.gov.bc.ca/> (projects referring to ?Nisga?a? identified through the search function); and three maps showing completed assessments on the EAO website: EAO, Certified Completed Projects under Former EA Act June 30, 1995 to December 29, 2002 (25 May 2007), online: EAO <http://www.eao.gov.bc.ca/>; EAO, Certified Completed Projects under Current EA Act December 30, 2002 to May 25, 2007 (25 May 2007), online: EAO <http://www.eao.gov.bc.ca/>; EAO, Environmental Assessments Completed between May 26, 2007 and February 9, 2011 [nd], online: EAO <http://www.eao.gov.bc.ca/> (showing locations of projects in and near the Nass Area). 491 Jennifer Dessouki [Project Assessment Manager, Proposed Kitsault Mine Project], Order Under Section 11, online: EAO <http://www.eao.gov.bc.ca/> [Dessouki, Kitsault Section 11 Order]. 492 Ibid at 8, 10, 12 (ss 12.1 , 17.1, 20.2, 20.4). 122  any category of TEK, though the proponent was still expected to address the socio-economic factors referenced in paragraph 8(f). In the ISR, the factors to be considered by the EIRB in carrying out a review are not expressly prescribed, except in relation to the Yukon North Slope (the part of the ISR in the north-east corner of the Yukon Territory).493  The Inuvialuit Final Agreement nonetheless contains principles and objectives which have had a differential effect upon the decisions of the EIRB.  One of the agreement?s objectives is ?to preserve Inuvialuit cultural identity and values within a changing northern society?.494  However, it appears that the EIRB places little emphasis upon this objective.  Instead, the EIRB focuses upon section 13 of the agreement, which deals with impacts upon Inuvialuit wildlife harvesting and wildlife compensation.  Pursuant to section 13(11)(a), where the EISC has referred a proposal to the EIRB on the basis of potential impacts to wildlife harvesting, the EIRB must recommend to the relevant government authority ?terms and conditions relating to the mitigative and remedial measures that it considers necessary to minimize any negative impact on wildlife harvesting.?  One of the objectives of section 13 is ?to prevent damage to wildlife and its habitat and to avoid disruption of Inuvialuit harvesting activities by reason of development?.495  In practice, the EIRB places particular emphasis upon this criterion; as it explained in its assessment of Ku??ek Resource Development Corporation?s ?Revitalization of the Western Arctic Reindeer Herd? proposal in November 2000: The EIRB notes the order in which these objectives [in section 13 of the Inuvialuit Final Agreement] are stated.  Clearly the intention is that priority be given to preventing damage and avoiding disruption of harvesting. ? The EIRB interprets its mandate to                                                             493 Inuvialuit Final Agreement, supra note 59, s 12(23). 494 Ibid, s 1(a). 495 Ibid, s 13(1)(a) [emphasis added]. 123  mean that its first responsibility is to assess whether the potential adverse impacts of a development on wildlife and its habitat are within acceptable limits of risk.496 This focus upon biophysical impacts, and impacts upon current land use is consistent with, and helps to explain the EIRB?s definition of TK as ?knowledge, innovations and practices of the Inuvialuit and other aboriginal peoples embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.?497  It follows that when the EIRB requires proponents to ?demonstrate how Traditional Knowledge was used to influence the planning, design and implementation phases of their proposed development?,498 as it did in relation to the proposed Inuvik to Tuktoyaktuk Highway project in September 2010,499 it is essentially seeking categories 1 and 2 but not necessarily categories 3 or 4 TEK. 4.2.2.2 Proponent?s EIS and TK Studies The next step in the EIA process is preparation by the proponent of an EIS in accordance with a finalised ToR.  The EIS is perhaps the most important document of the assessment or review process for it forms the basis of the assessment.  In the EIS, the proponent addresses each issue identified during the scoping stage, which normally includes a detailed description of the baseline environment, an assessment of potential impacts in respect of each issue, and proposed mitigative measures where necessary.  The scope of TEK incorporated in an EIS is influenced by the ToR; though as I will discuss, other factors such as the scale of the project and the nature of                                                             496 EIRB, Public Review of Ku??ek Resource Development Corporation?s ?Revitalization of the Western Arctic Reindeer Herd? Proposal (27 November 2000), online: EIRB <http://www.eirb.ca> [EIRB, Public Review of Reindeer Proposal] at 18 [emphasis added]. 497 EIRB, Environmental Impact Review Guidelines (29 April 2011), online: EIRB <http://www.eirb.ca> [EIRB, Review Guidelines] at 12. 498 Ibid at 25. 499 EIRB, Environmental Impact Statement Terms of Reference for the Environmental Impact Review of the Hamlet of Tuktoyaktuk, Town of Inuvik and GNWT ? Construction of the Inuvik to Tuktoyaktuk Highway, Northwest Territories Development Proposal (Draft) (30 September 2010), online: EIRB <http://www.eirb.ca> at 15. 124  the relationship between the proponent and the Indigenous group (including whether an Impact and Benefit Agreement is being negotiated) are also relevant. In the Mackenzie Valley, requirements for proponents to address and incorporate TK in their EIS documents have intensified since the amendments to the MVRM Act and release of the TK Guidelines in July-August 2005.  Prior to this time not all projects were required to address TK.  Since 2005, requirements to consider TK have become more significant, though the actual degree to which assessments and reviews have actually yielded TEK or TK at the EIS stage have varied greatly.  In the case of Paramount Resources? proposed seismic program, its DAR did not cite any new TK research or consultations, despite a requirement in the ToR to describe the steps Paramount had taken to work with TK holders to incorporate TK into the proposed program.500  Instead, Paramount cited an earlier (2001), broader-scale TK study it had conducted, which allegedly concluded that there was not any ?traditional activity over the project area?.501  The MVEIRB was not allowed to see the TK study because Paramount claimed it was confidential.  Accordingly, we do not know what the study said, though Paramount?s claimed reference to an absence of ?traditional activity? over the area suggests that the study dealt primarily, if not exclusively, with category 2 TEK (patterns of current and traditional land use such as hunting and trapping).  This, in fact, appears to be a common feature of TK studies across the jurisdictions (see below).  Despite the lack of any new TK research or studies, the MVEIRB was                                                             500 MVEIRB, Terms of Reference and Work Plan for the Environmental Assessment of Paramount Resources Ltd.?s Significant Discovery Licence 8, 2D Geophysical Program (SDL8) (6 April 2006), online: MVEIRB <http://www.reviewboard.ca/registry/> at 6. 501 Paramount Resources Ltd, Significant Discovery Licence 8, 2D Geophysical Program, Environmental Assessment EA0506-007: Developer?s Assessment Report (May 2006), online: MVEIRB <http://www.reviewboard.ca/registry/> at 1. 125  able to recommend that Paramount?s proposed seismic program be approved, over the objection of some of the First Nations parties to the assessment.502 Compared with Paramount?s proposed project, Deze Energy?s proposed hydro expansion project in the same Deh Cho Region of the Northwest Territories was much larger in scale, involving the construction of a new 36MW power plant and a 690 km transmission line from the plant to the diamond mines in the remote east-central part of the territory.503  Also, Deze itself was a joint venture between Aboriginal groups and a Crown corporation.  Two thirds of Deze were owned by two Aboriginal-owned corporations: Akaitcho Energy Corporation (wholly owned by the Akaitcho Territorial Government, representing six Dene First Nations (the Deninu Kue, Lutsel K?e, Salt River, Smith?s Landing, Dettah, and N?Dilo)), and Metis Energy Company Ltd (wholly owned by the Northwest Territories Metis Nation).504  The other third of Deze was owned by the Northwest Territories Energy Corporation (03) Ltd (NTEC), a Crown corporation.505  These factors seem to have contributed to a greater investiture in TK as part of the assessment process.  Unlike Paramount, Deze was prepared to fund new TK studies in respect of the project, though, instead, Aboriginal leaders chose to undertake their own community-driven TK projects at arm?s-length from Deze and its consultants.506  This way, it was thought, the communities could control the content and direction of the studies.  Subsequently, Deze funded some additional TK studies to supplement the community-driven projects, and the Northwest Territory Metis Nation prepared its own TK report.  As a result of                                                             502 See MVEIRB, Reasons for Decision and Report of Environmental Assessment EA0506-007: Paramount Resources Ltd. Significant Discovery Licence 8, 2D Geophysical Program (SDL8) (14 November 2006), online: MVEIRB <http://www.reviewboard.ca/registry/> [MVEIRB, Reasons for Decision ? Paramount Resources] at iii. 503 Deze Energy Corporation, Taltson Hydroelectric Expansion Project: Project Description in Support of the MVLWB Land and Water Applications (May 2007), online: MVEIRB <http://www.reviewboard.ca/registry/> at vii. 504 Ibid at 2-1-2-2. 505 Ibid at 2-2. 506 Ibid at 6-1; Deze Energy Corporation, Talston Hydroelectric Expansion Project: Developer?s Assessment Report 2009 (March 2009), online: MVEIRB <http://www.reviewboard.ca/registry/> at 9.6.1-9.6.3. 126  these efforts, Deze claimed in its DAR that ?[t]raditional knowledge has been expressed throughout the expansion Project?.507  However, the manner in which TK was included was somewhat erratic.  Category 1 TEK included in the DAR in relation to such things as birds was gathered exclusively from earlier, published sources.508  Moreover, the amount of category 1 TEK included in the DAR was limited.  The four additional or follow-up TK studies commissioned by Deze were directed at traditional land use and ?Aboriginal valued socio-economic and environment components? (reflecting categories 2 and 3 TEK),509 though the DAR does not explain how the information from these reports was incorporated into the project.  The DAR claimed that the initial community-driven projects and the Northwest Territory Metis Nation report contributed useful information about Aboriginal environmental values, though the relevant section of the report speaks only of values supposedly infused through the participation of the Aboriginal joint venturers.510  The DAR does not explain what these values are or how they influenced the project.  Overall, therefore, it is unclear whether TEK or TK contributed substantially to the project assessment, despite the framework of the ToR and TK Guidelines.  This example demonstrates the role of proponents? discretion in the EIA process in relation to TEK incorporation.  As noted above, the proponent for the Mackenzie Gas Project (Imperial Oil Resources Ventures Ltd) was required to ?use and incorporate traditional knowledge into the EIS?.  Since the actual EIS is not available in the online public registry, it is unclear exactly how the proponent addressed this requirement.  However, according to the joint review panel?s final report, the proponent?s approach was to commission community-directed TK studies, similar to                                                             507 Ibid at 9.6.2. 508 Ibid at 9.5.14-9.5.15, 9.6.6. 509 Ibid at 9.6.4-9.6.5. 510 Ibid at 9.6.3-9.6.4. 127  the approach taken by Deze in respect of its hydro expansion project.511  A part of the program included producing ?TK baseline reports?.512 Though none of these studies or reports was finished by the time the EIS was submitted, the joint review panel eventually received five TK reports.  The report of the joint panel says little about the content of these reports except to note that: The focus of the studies was to gather local knowledge of the historic and current use of lands and resources, as well as the location of special cultural and spiritual areas for Aboriginal residents in those communities closest to the Project?s proposed facilities and pipeline routes.513 In other words, the studies related mainly if not exclusively to category 2 TEK.  While other TEK was contributed directly by Aboriginal participants during community hearings as part of the review (see below), the EIS stage yielded a relatively narrow range of TEK.  The exact reasons for this are unclear, though the likelihood given the studies were community-directed is that category 2 TEK was the type of TEK the relevant Aboriginal communities were most comfortable contributing.  This may have been influenced by the proponent?s and the Aboriginal communities? perceptions of the scope of the review process. In its Application for the Kitsault Mine Project, Avanti claimed that it had had 25 meetings with NLG since 2008, as well as held a series of ?open houses? in Nisga?a villages in June 2010.514  However, it appears this process yielded little specific information about the environment or environmental concerns, except in relation to the declining moose population.515                                                              511 Joint Review Panel, Panel Report vol. 1, supra note 471 at 90-91. 512 Ibid at 90. 513 Joint Review Panel, Panel Report vol. II, supra note 472 at 398; see also Joint Review Panel, Panel Report vol. 1, supra note 471 at 91.  The reports are not available in the registries. 514 Avanti Kitsault Mine Ltd, Application for an Environmental Assessment, online: EAO <http://www.eao.gov.bc.ca/> (submitted 30 April 2012) at 13-40. 515 Ibid at 13-2, 13-38, 13-40, Appendix 13.0-A at ii. 128  Instead, most of Avanti?s information about Nisga?a socio-economic concerns came from desk-top studies.516 Avanti was working with the Nisga?a to carry out an environmental, social, and cultural impact assessment (termed an ?ESCIA?), though this had not been completed at the time of the Application.517  Consistent with the lack of any specific requirements in the Application Information Requirements for gathering or considering TEK, Avanti did not commission a TK study.   The surprising aspect of the Kitsault assessment is that the consultation requirements under the Nisga?a Final Agreement did not overcome the lack of TEK requirements under the EA Act to yield a measure of TEK.  The parties could conceivably have negotiated to produce a TK study, or otherwise include more extensive and broader TEK in the proponent?s documents.  The reason this did not occur is unclear, though one possible explanation is the lack of any requirement for proponents to enter into an Impact and Benefit Agreement (?IBA?) with Indigenous groups in British Columbia.  Though the EAO ?encourages? proponents to explore ?benefit-sharing? agreements with Indigenous groups, including ?treaty nations?, it stresses that such agreements are ?not considered preconditions to the completion of the review process or to a decision by the Ministers.?518  According to Gogal, Reigert & Jamieson, IBAs may arise as a result of the common law duty to consult, but only in a few parts of Canada (including the parts of the Mackenzie Valley subject to the Mackenzie Valley agreements, the ISR and Nunavut) are requirements for IBAs prescribed in relation to particular categories of projects.519  Accordingly, though Avanti and the NLG were in fact negotiating an IBA during the course of the                                                             516 Ibid at 13-38, Appendix 13.0-A at ii. 517 Ibid at 13-2, Appendix 13.0-A at ii. 518 EAO, Fairness and Service Code, supra note 488 at 11; see also EAO, User Guide, supra note 431 at 6; EAO, Guide for Treaty Nation Consultation, supra note 489 at 2-3. 519 Sandra Gogal, Richard Reigert & JoAnn Jamieson, ?Aboriginal Impact and Benefit Agreements: Practical Considerations? (2005) 43 Alb L Rev 129 at 130, 133, 136-138. 129  assessment,520 the relative lack of pressure to conclude an agreement may have given the Nisga?a less leverage to insist upon a TEK study, and, conversely, greater latitude for Avanti to resist any such overtures.  We do not know, however, whether the Nisga?a ever raised the need for a TK study.  They may have chosen not to, perhaps influenced in part by perceived or actual constraints of the Application Information Requirements. As discussed above, both the Meadowbank Gold Mine project and Baffinland?s Mary River project in Nunavut had extensive TK or IQ requirements in their respective Guidelines for preparation of an EIS.  In response, the EIS documents for both projects claimed extensive collection of TK.521  Both proponents commissioned TK studies.522  The TK research in respect of the Mary River project was particularly extensive.  For that project, the proponent held meetings with Inuit ?working groups? it had established in five communities in North Baffin between 2006 and 2010, including a five-day ?IQ Working Group Workshop? in March 2008 at Arctic Bay.523  In addition, consultants engaged by the proponent interviewed Inuit elders about their TK, and in September 2010 there was a ?Baffinland-Qikiqtani Inuit Association (QIA) thematic workshop? where IQ was discussed.524  However, the scope of these studies was limited, the ?overall objective? being ?to obtain local knowledge of wildlife, land use, and areas                                                             520 EAO, Proposed Kitsault Mine Project (Proposed Project): Working Group Meeting January 20, 2012, 10:00am ? 3:30pm Vancouver, online: EAO <http://www.eao.gov.bc.ca/> at 5-6. 521 Cumberland Resources Ltd, Meadowbank Gold Project: Draft Environmental Impact Statement: Part 1: Report (December 2004), online: NIRB <http://www.nirb.ca/PublicRegistry.html> [Cumberland Resources, Draft EIS Part 1], Popular Summary at iv, 14, 28, 30, 119; Baffinland Iron Mines Corporation, Mary River Project Environmental Impact Statement Volume 1: Main Document (December 2010), online: NIRB <http://www.nirb.ca/PublicRegistry.html> [Baffinland, Mary River EIS vol. 1] at 39, 75; Baffinland Iron Mines Corporation, Mary River Project Environmental Impact Statement Volume 2: Consultation, Regulatory Framework and Assessment Methodology (December 2010), online: NIRB <http://www.nirb.ca/PublicRegistry.html> [Baffinland, Mary River EIS vol. 2] at 7, 33. 522 Ibid. 523 Ibid at 5, 7, 33. 524 Ibid. 130  of cultural value.?525  The proponent used the results of the studies in its environmental baseline study reports for identified VECs ?and in the individual effects assessment as appropriate?,526 but did not use the results to develop an ?Inuit lens? of the project contrary to the Guidelines.  Instead, it appears that the IQ gathered was mainly helpful in ?developing an understanding of baseline conditions and historical trends of caribou abundance, distribution and habitat?, an area where the baseline of scientific data was limited527 (consistent with fears expressed in the literature that TEK may be used only in an ?instrumental? sense in co-management contexts).  Overall, the proponent claimed, the IQ gathered and ?popular science? were ?complementary?.528  Despite the limitations of the TK research, the proponent claimed that the TK had influenced ?five key aspects of the project design?, including whether to use one of the port sites (Milne Inlet) for year-round shipping, and the precise shipping route through Foxe Basin.529 In respect of the Meadowbank Gold Mine project, data from TK studies was similarly used to ?support and clarify the baseline data collected, specifically with regard to caribou migration patterns and fish.?530  TK from a Hunters & Trappers Organisation (an ?HTO?) and ?various Elders? was used to supplement data from aerial surveys and other studies regarding the ?diversity, relative abundance, and distribution of wildlife species?, including caribou, wolverines, wolves, arctic hares, raptors, waterfowl and fish.531  As for the Mary River project, the proponent claimed that the TK and scientific data in these respects were complementary.532                                                              525 Ibid at 7. 526 Ibid at 7, 33. 527 Ibid at 33. 528 Ibid. 529 Baffinland, Mary River EIS vol. 1, supra note 521 at 38-39. 530 Cumberland Resources, Draft EIS Part 1, supra note 521 at 15; see also 28. 531 Ibid at ix, 98, 102-104, 109. 532 Ibid at 28. 131  TK was also used to determine the extent of current or historic Inuit land use of the area, and to determine VECs and VSECs.533  According to the proponent, TK informed the ?socio-economic baseline?, and helped the proponent ?plan and design? the mine;534 two decisions about mine roads and fencing around the mine site were said to have been influenced by TK.535  Overall, however, the focus of the EIS was very much on categories 1 and 2 TEK, and this TEK was used in a relatively minor sense to supplement or corroborate other scientific studies carried out by the proponent. One feature that distinguishes both the Meadowbank and Mary River reviews was the fact that the proponent was required in each case to negotiate an Inuit Impact and Benefit Agreement (?IIBA?) with the Inuit, and was actively negotiating such an agreement throughout the course of the review.536  The Nunavut Agreement requires that an IIBA be finalized before a ?Major Development Project? may commence, ?major development project? being defined as projects involving development or exploitation but not exploration of a prescribed scale on Inuit Owned Lands, as well as water power generation or water exploitation projects in the Nunavut Settlement Area.537  An IIBA may include any matter connected with a major development project and may address, among other things, Inuit training, Inuit preferential hiring, and ?particularly important Inuit environmental concerns and disruption of wildlife, including wildlife disruption compensation schemes.?538  Accordingly, an IIBA is a potential mechanism for substantively addressing and incorporating TEK as part of an environmental review in Nunavut.  The other significance of IIBAs is that they provide negotiating leverage to Inuit                                                             533 Ibid at x, xxii, Popular Summary at vii, 9, 30. 534 Ibid at 27-28, 119. 535 Ibid at 28. 536 Ibid at xi, xxii, 165; Baffinland, Mary River EIS vol. 1, supra note 521 at 4, 6-7, 33, 38. 537 Nunavut Agreement, supra note 63, ss 26.1.1, 26.2.1. 538 Ibid, s 26.3.1, Schedule 26-1 items 1-2, 13. 132  representative bodies engaged in environmental reviews, such as QIA.  It is reasonable to assume, therefore, that Inuit representative bodies in Nunavut have relatively high capacity to influence project proponents to substantially incorporate TEK as part of project reviews.  To some degree, this may have been the case with the Meadowbank and Mary River projects, though the general lack of categories 3 and 4 TEK included in these project assessments suggests that these aspects of TEK may be particularly resistant to inclusion in EIA processes. Of the seven reviews carried out to date by the EIRB in respect of the ISR, the proponent?s EIS document is available for only one: the review of the proposed Inuvik to Tuktoyaktuk Highway, carried out between April 2010 and January 2013.  This project, proposed by the Hamlet of Tuktoyaktuk, Town of Inuvik and Government of Northwest Territories, comprises the construction of a new 138km gravel highway from Inuvik to Tuktoyaktuk on the southern shore of the Beaufort Sea.539  In their EIS for this project, the proponents refer to two main meetings or consultation sessions in Inuvik and Tuktoyaktuk in October 2009 and January 2010.540  There were subsequently community scoping sessions held by the EIRB in each of the two communities, and also an ?additional but complementary series? of consultation meetings arranged by the Inuvialuit Land Administration in November 2010.541  As a result of these public consultation sessions the proponents claim to have received some TK.542  However, the proponents did not, initially, conduct any TK studies, relying instead upon earlier, published, TK studies, such as the Inuvialuit Settlement Region Traditional Knowledge Report from 2006 and                                                             539 Hamlet of Tuktoyaktuk, Town of Inuvik and Government of Northwest Territories, Project Description Report for Construction of the Inuvik to Tuktoyaktuk Highway, Northwest Territories (February 2010), online, EISC Registry Site: <http://www.screeningcommittee.ca/> at vii. 540 Hamlet of Tuktoyaktuk, Town of Inuvik & Government of Northwest Territories, Environmental Impact Statement for Construction of the Inuvik to Tuktoyaktuk Highway, NWT (May 2011), online: EIRB <http://www.eirb.ca> [Hamlet of Tuktoyaktuk, Town of Inuvik & Government of Northwest Territories, EIS] at iii-iv. 541 Ibid. 542 Ibid at 21. 133  community conservation plans prepared in connection with the Inuvialuit Final Agreement.543  Later (after the EIS was submitted), the proponents arranged TK workshops in Inuvik and Tuktoyaktuk,544 though the final report of these workshops is not available in the EIRB registry.  The proponents did not plan to enter into a socio-economic agreement, or access and benefits agreement, with the Inuvialuit on the basis that the project is a capital infrastructure project for a public highway.545 Based primarily upon the earlier, published TK studies, the proponents claimed that they had ?incorporated traditional knowledge throughout the environmental assessment? for the highway project.546  Specifically, the proponents claim that: Traditional knowledge was used in this environmental review process to: ? Contribute to biophysical and socio-economic understanding of the region; ? Contribute to overall Project design decisions; ? Improve the confidence in predicted biophysical and socio-economic impacts; ? Contribute to the development of mitigation strategies, and follow-up and monitoring programs; ? Assist in the ability to meet regulatory requirements; and ? Design a more culturally-acceptable development.547 TK equivalent to categories 1 and 2 TEK was said to have contributed to baseline information concerning harvesting seasons and locations, wildlife migration patterns, camp locations, burial                                                             543 Ibid. 544 EIRB, Final Report of the Panel for the Substituted Environmental Impact Review of the Hamlet of Tuktoyaktuk, Town of Inuvik and GNWT ? Proposal to Construct the Inuvik to Tuktoyaktuk Highway (25 January 2013), online: EIRB <http://www.eirb.ca> [EIRB, Final Report for Inuvik to Tuktoyaktuk Highway Project] at 10. 545 Ibid at 80. 546 Hamlet of Tuktoyaktuk, Town of Inuvik & Government of Northwest Territories, EIS, supra note 540 at 21. 547 Ibid at 22. 134  sites, traditional land use, and other resource use.548  The proponent also claims to have used information concerning the ?values, issues and concerns? of Inuvialuit people from the published TK studies in designing the project and assessing the impacts.549  However, having come from earlier studies, these values and concerns did not relate to the highway project specifically.  Overall, therefore, the use of TK by the proponent in the case of the highway project represents a clear case of ?distillation? of TK, where TK was simply extracted from earlier documents and applied in a manner designed to suit the proponents. 4.2.2.3 Technical review and information requests Once the proponent has submitted its draft EIS document to the review body, the document is opened up for public comment.  In the ISR, Mackenzie Valley and Nunavut, this is called the ?technical review? stage, because all the parties to a proceeding as well as technical experts appointed by the review body examine the EIS in close detail, trying to identify any deficiencies.  For example, they might try to determine whether the conclusions in the draft EIS are supported by the analysis, or whether appropriate methods were used to develop the conclusion.550  This stage is open to members of the general public who may be aware of the project through perusing the online public registry or through notification.  In the ISR, Mackenzie Valley and Nunavut the stage also includes an ?information request? period where parties or registered participants may submit formal questions to the project proponents about their draft EIS.  The proponent must respond to these ?information requests? or ?IRs? in writing and the responses are published on the online registry so they can be viewed by all participants.  There may be two rounds of technical reviews and information requests depending on the scale of the project.  The                                                             548 Ibid. 549 Ibid. 550 See NIRB, Review Guide, supra note 476 at 9. 135  overall purpose is to identify and narrow any outstanding points of contention between the parties as the process moves towards final hearing and decision, similar to the pre-trial procedures of a judicial process. Procedurally, there is not a great deal of difference between the jurisdictions at this stage, though the procedures in British Columbia are different and there are some subtle differences among the other jurisdictions.  In British Columbia, the process is more streamlined, with a 45 to 60-day public comment period,551 and no information requests.  Members of the public and participants (such as the NLG, where applicable) may submit comments and questions to the proponent, but rather than being required to answer these in detail as in the other jurisdictions, the proponent need only provide a response in ?tracking tables?.552  The tabular form of this question-and-answer process means that proponents may be excused in providing relatively succinct answers to questions.  Among the other jurisdictions, the ISR has a defined 90-day technical review period, of which the first 76 days are open to information requests.553  The guidelines for the other jurisdictions do not refer to any specific timeline for the technical review and information request stage, keeping it flexible. The EIA Guidelines and TK Guidelines for the Mackenzie Valley refer specifically to TK in relation to this stage.554  According to the EIA Guidelines, TK may be used as a basis for identifying and focussing upon unresolved or unclear issues.555  Also, the technical review stage is an opportunity for the MVEIRB to analyse any TK thus far presented.  The MVEIRB considers the relevance of the TK, but also, especially, the appropriateness of the methodologies                                                             551 EAO, User Guide, supra note 431 at 32. 552 Ibid at 33. 553 EIRB, Review Guidelines, supra note 497 at 17. 554 MVEIRB, EIA Guidelines, supra note 431 at 31; MVEIRB, TK Guidelines, supra note 434 at 24. 555 MVEIRB, EIA Guidelines, supra note 431 at 31. 136  used by the proponent to gather and present TK.556  According to the guidelines, ?[t]o ensure the traditional knowledge presented in the EIA is reliable and credible?, the MVEIRB may seek assurance from those delivering TK that: ? The traditional knowledge was collected and peer?reviewed with the aboriginal community or traditional knowledge holders in accordance with appropriate community specific protocols; and ? The traditional knowledge presented was approved by the appropriate individuals or organizations for use using the principle of prior informed consent.557 These requirements highlight the general emphasis upon TK in the Mackenzie Valley compared with the other jurisdictions, especially the emphasis upon appropriate standards for collection and presentation of TK. Significantly, the technical review and information request stage is an opportunity for Indigenous representative bodies and individuals to volunteer TEK according to their discretion, and to question the manner and degree to which the proponent has incorporated TEK.  Indigenous representative bodies sometimes avail themselves of this opportunity, even though the technical review stage is often devoted to technical matters such as the design of tailings dams and pits in relation to mining projects.  During the technical review and information request stage of the Mary River project, for example, the QIA complained that ?[a]lthough the Proponent put substantial effort and resources toward collecting Traditional Knowledge, Inuit feel that it is not integrated or implemented in proposed Project design, monitoring programs or                                                             556 MVEIRB, TK Guidelines, supra note 434 at 24. 557 Ibid. 137  management plans in the DEIS.?558  The QIA suggested that the proponent could include additional information and advice regarding: seasonal winds and how this can impact development areas and caribou habitat, ocean currents and streams surrounding ballast water exchange areas, hydrological patterns to prevent contamination around mine site and camps and predict ground stability, and wildlife observations to compare with previously completed aerial surveys.559 In a further information request the QIA made extensive recommendations for monitoring based upon TK.560 In the context of Paramount?s proposed seismic program in the Deh Cho Region of the Northwest Territories, the MVEIRB itself made information requests directly to Aboriginal groups in respect of TK.561  Rather than requiring the proponent to carry out a TK study, the MVEIRB asked Aboriginal groups to provide information ?regarding their respective knowledge and use of the [relevant] area through the IR process? on the bases that the proposed project was relatively small-scale, and the area was claimed as traditional territory by a number of Aboriginal groups.562  However, the MVEIRB was disappointed with the responses it received.  The responses ?provided little information that the Review Board could use in determining the significance of potential impacts to the environment? and were ?disappointingly sparse?.563  In the MVEIRB?s view (and consistent with a significant role for Indigenous agency), the onus was on the Aboriginal parties to provide information regarding environmental impacts ?on the basis                                                             558 Qikiqtani Inuit Association, IR Submission, online: NIRB <http://www.nirb.ca/PublicRegistry.html> at 2 (submitted under cover of letter dated 17 March 2011). 559 Ibid. 560 Letter from J Okalik Eegeesiak, President, Qikiqtani Inuit Association to Lucassie Arragutainaq, Acting Chairperson NIRB (5 October 2011), online: NIRB <http://www.nirb.ca/PublicRegistry.html> at 2-3 (submission of technical review comments). 561 MVEIRB, Reasons for Decision ? Paramount Resources, supra note 502 at 7-8. 562 Ibid. 563 Ibid at 8. 138  of traditional knowledge which only they possess?.564  The MVEIRB suggested that the First Nations did not contribute TEK because they were not truly concerned about the proposed project.565  Whether or not correct, this suggestion emphasizes that the nature and scope of TEK volunteered in EIA processes is always at the discretion of Indigenous groups, and the exercise of this discretion may be influenced by the nature of the project (and possibly proponent). Though the technical review and information request stage provides an opportunity for Indigenous groups to volunteer TEK, the degree to which they can do so is limited to some extent by the scope of the ToR.  A proponent requested to provide detailed information about TK may balk at doing so if the ToR does not require any consideration of TK.  However, given that ToR requirements to consider TK are common in at least the ISR, Mackenzie Valley and Nunavut as discussed, there is a degree of latitude for Aboriginal groups to quiz proponents on this point if they so desire. 4.2.2.4 Community and formal hearings In addition to the opportunities to provide comments in writing at various stages of the EIA process, each of the jurisdictions also offers opportunities for members of the public, including Indigenous groups, to make oral representations directly to the review body.  These opportunities are provided at hearings, and, in British Columbia, at ?open houses? in respect of most assessments.566  In theory, hearings and open houses provide a prime opportunity for Indigenous peoples to volunteer TEK, and at least in respect of the ISR, Mackenzie Valley and Nunavut this is borne out by a consideration of case examples (see below).                                                             564 Ibid. 565 Ibid. 566 EAO, User Guide, supra note 431 at 32. 139  The powers and procedures with respect to hearings are similar in the ISR, Mackenzie Valley and Nunavut.  In each of these jurisdictions the review boards have express power to hold informal ?community? meetings, as well as formal hearings as part of environmental assessments or reviews.567  This power gives assessment and review boards the discretion to design hearings which suit the nature of the proposal; for example, formal hearings for larger-scale or more contentious reviews such as the Mackenzie Gas Project, and less formal ?public meetings? for smaller scale projects such as Commander Resources? proposed diamond exploration program on Victoria Island in the ISR.  This discretion is useful in facilitating the provision of TEK.  In practice, however, the distinction between these two types of hearings is often not apparent.  In each of the jurisdictions all proceedings are required to be ?informal and flexible?,568 and they tend to take on a standard format of presentations by representatives, (including Indigenous representative bodies) with opportunities for questioning.  Provision of TEK is facilitated by rules allowing the admission of information which does not necessarily adhere to the strict rules of evidence, and (in the ISR and Nunavut) requirements for assessment and review bodies to give ?due regard and weight? to Aboriginal peoples? traditions of oral communications and decision-making during hearings.569  In the Mackenzie Valley, the MVEIRB has the power to ?make arrangements to secure information from or hear the testimony of an elder or the holder of traditional knowledge at any time during a proceeding.?570                                                              567 MVEIRB, Rules of Procedure for Environmental Assessment and Environmental Impact Review Proceedings (Revised 1 May 2005), online: MVEIRB <http://www.reviewboard.ca/upload/ref_library/MVEIRB_RulesofProcedure_0505.pdf> [MVEIRB, Rules of Procedure], ss 64, 67; EISC & EIRB, Rules of Procedure, supra note 437, s 3.7.1, NIRB, Nunavut Impact Review Board Rules of Procedure: Effective September 3, 2009, online: NIRB <ftp://ftp.nirb.ca/> [NIRB, Rules of Procedure], ss 19.1, 36.1. 568 MVEIRB, Rules of Procedure, supra note 567, s 31; EISC & EIRB, Rules of Procedure, supra note 437, ss 1.3.11, 1.4.1; Nunavut Agreement, supra note 63, s 12.2.24. 569 MVEIRB, Rules of Procedure, supra note 567, s 30; EISC & EIRB, Rules of Procedure, supra note 437, ss 1.4.1(i)-(ii); NIRB, Rules of Procedure, supra note 567, ss 33.1, 50.3; Nunavut Agreement, supra note 63, s 12.2.24. 570 MVEIRB, Rules of Procedure, supra note 567, s 33. 140  Indigenous participants may, in theory, be cross-examined at least in the context of formal hearings, though in practice this seems rarely to occur.  Accordingly, many of the hearings appear to be of an essentially non-adversarial nature.  As the EIRB remarked in respect of its review of Esso Chevron?s proposed Isserk 1-15 Drilling Program in November 1989: The value of local knowledge and expertise has been clearly demonstrated in these proceedings because of the contribution made by the Tuktoyaktuk Hunters and Trappers Committee ?.  The fact that a compensation agreement between Esso and the IGC/IRC [Inuvialuit Game Council/Inuvialuit Regional Corporation], was concluded within 24 hours of completion of the Public Meetings shows the willingness of the parties to accommodate each others? concerns when given an opportunity to question and comment in an atmosphere that is constructive and non-adversarial.571 Provision of TEK during hearings is also facilitated by the availability of translation services.  As discussed in chapter 2, some scholars have remarked on the difficulties associated with language in incorporating TEK in various contexts.572  In each of the ISR, Mackenzie Valley and Nunavut translation or interpretation services are available during hearings as appropriate, for translation of English into Aboriginal languages and vice versa.  The MVEIRB boasts the availability of ?simultaneous oral translation? during hearings ?where appropriate and necessary.? 573  This was employed during the review of the Mackenzie Gas Project, where ?most [of the panel?s hearings] were interpreted live into the English, Gwich?in, Inuvialuktun, North Dene and South Dene languages?, as well as being broadcast by live audio webcasting.574                                                              571 EIRB, Public Review of the Esso Chevron et al Isserk 1-15 Drilling Program (1 November 1989), online: EIRB <http://www.eirb.ca> [EIRB, Public Review of Isserk Program] at 6. 572 Ellis, supra note 48 at 71; White, ?Cultures in Collision?, supra note 47 at 404, 406, 409 (referring to the MVEIRB); Armitage, supra note 25 at 249-250 (referring to the MVEIRB and other boards established under the MVRM Act). 573 MVEIRB, TK Guidelines, supra note 434 at 25;  574 Joint Review Panel, Panel Report vol. 1, supra note 471 at 79. 141  The NIRB also arranges for simultaneous translations for reviews held in Nunavut.575  Translation services featured prominently during the review of the Mary River project, where four interpreters were involved in the final hearing proceedings, and simultaneous oral translation was available throughout the proceedings to ensure that Inuktitut-speaking Inuit could comprehend and fully participate.576  The NIRB also places particular emphasis on ensuring that most written materials produced throughout the EIA process are translated into Inuktitut, mitigating to some extent Graham White?s concerns on this issue.577 In the ISR, Mackenzie Valley and Nunavut the review bodies try to facilitate provision of TEK and participation of Indigenous persons and communities by ensuring that informal and formal hearings are carried out in appropriate locations, and at appropriate times of the year.578  In the Mackenzie Valley, there is an express requirement for environmental reviews to include ?public consultations or hearings in communities that will be affected by the development?,579 though in practice all assessments and reviews in the three jurisdictions involve informal or formal hearings in local, affected communities.  For the proposed Inuvik to Tuktoyaktuk Highway, for example, the EIRB held public hearings in Inuvik and Tutoyaktuk ? the two most affected communities ? in September 2012.580  For the Mackenzie Gas Project, the joint review panel held hearings in 26 centres and northern communities over 115 days, hearing from 558 presenters as either individuals or as representatives of groups or organizations.581  Assessment                                                             575 See NIRB, Guide 6a: Guide to NIRB?s Public Awareness and Public Participation Programs: The Review Process (August 2006), online: NIRB <http://www.nirb.ca> [NIRB, Guide 6a] at 4. 576 NIRB, Final Hearing Report for the Meadowbank Gold Project (August 2006), online: NIRB <http://www.nirb.ca/PublicRegistry.html> at iv; NIRB, NIRB Public Scoping Meeting Summary Report for Part 5 Review of Baffinland Iron Mines Corporation?s Mary River Project (June 2009), online: NIRB <http://www.nirb.ca/PublicRegistry.html> at 4 (in relation to public scoping meetings). 577 White, ?Cultures in Collision?, supra note 47 at 404, 409. 578 See e.g. NIRB, Guide 6a, supra note 575 at 4. 579 MVRM Act, supra note 65, s 134(1)(e). 580 EIRB, Final Report for Inuvik to Tuktoyaktuk Highway Project, supra note 544 at ii, 1, 4, 9. 581 Joint Review Panel, Panel Report vol. 1, supra note 471 at 80. 142  and review bodies may also try to enhance attendance at these hearings by ensuring they do not clash with known wildlife harvesting seasons or ceremonial periods. Without actually being present or interviewing participants in the process it is difficult to ascertain whether the procedures with respect to hearings are optimal in terms of TEK provision or in establishing ?culturally appropriate? settings for Indigenous persons.  As discussed in chapter 2, some scholars have criticised what they perceive as the ?Western, bureaucratic? and adversarial nature of some of the co-management proceedings under comprehensive agreements.582  However, to the extent the final reports of the review bodies can be relied upon, it appears that a great deal of TEK is volunteered during hearings, and that this TEK is sometimes broader in scope than that contributed during any other stage of the EIA process.  In some cases, the assessment or review bodies have remarked favourably on the extent and usefulness of TEK provided during hearings. For example, during the review of Esso Chevron?s Isserk 1-15 Drilling Program in the ISR in 1989, Inuvialuit community members volunteered categories 1 and 2 TEK concerning the ice environment and belugas and beluga harvesting, among other subjects.583  As noted above, the EIRB remarked positively on this TEK.584  Also in the ISR, Inuvialuit community members volunteered category 1 TEK about possible range overlaps between caribou and reindeer during public workshops arranged for the review of Ku??ek Resource Development Corporation?s ?Revitalization of the Western Arctic Reindeer Herd? proposal in 2000.585  In its final review report, the joint review panel for the Mackenzie Gas Project noted that ?during the course of                                                             582 See e.g. Nadasdy, ?The Politics of TEK?, supra note 96 at 12; Nadasdy, Hunters and Bureaucrats, supra note 48 at 141; Spak, supra note 57 at 234-235, 242-243; Ellis, supra note 48 at 70, 74-75; White, ?Cultures in Collision?, supra note 47 at 404-407, 411-412; White, ?Not the Almighty?, supra note 97 at 80. 583 EIRB, Public Review of Isserk Program, supra note 571 at 6, 28. 584 Ibid at 6. 585 EIRB, Public Review of Reindeer Proposal, supra note 496 at 21. 143  many community and general hearings, it [had] heard considerable TK information from participants.?586  This directly-provided TEK made up for the lack of completion of the TK studies.  During the review of the proposed Mary River project in Nunavut, 41 Inuit participants contributed TK on a variety of subjects during community ?round table? sessions held concurrently with the formal hearings, information the NIRB claimed was ?immensely? beneficial to its deliberations.587 TEK contributed during hearings is not limited to categories 1 and 2 TEK.  Indeed, it seems that hearings, especially ?community? hearings and meetings provide especially suitable settings for Indigenous persons to make statements about values and matters of cultural importance, equating to categories 3 and 4 TEK.  One striking example is from the EIRB?s review of Commander Resources? proposed diamond exploration program on Victoria Island, where, during public meetings in February 2003, community members expressed their concerns about possible disruptions of caribou migration due to mining activity on the island, resulting in ?loss of the community?s main source of sustenance and pleasure?.588  Similarly, during the MVEIRB?s review of Deze Energy?s proposed hydro expansion project in 2010, members of the ?uts?l K?e Dene First Nation during a public hearing in the community of Dettah spoke of the spiritual values of a particular sacred site they felt would be affected by the proposed project.589  Such direct statements of values are often absent or obscured in developers? EIS documents.                                                             586 Joint Review Panel, Panel Report vol. 1, supra note 471 at 92. 587 NIRB, Final Hearing Report for Mary River Project, supra note 456 at 14. 588 EIRB, Public Review of Commander Resources Ltd. Proposed Diamond Exploration Program, Victoria Island, NT (17 February 2003), online: EIRB <http://www.eirb.ca> at 14. 589 MVEIRB, Report of Environmental Assessment and Reasons for Decision EA0708-007: Dez? Energy Corporation Ltd. Taltson Hydroelectric Expansion Project (6 August 2010), online: MVEIRB <http://www.reviewboard.ca/registry/> at 97, 106. 144  As mentioned above, the primary opportunity for members of the public to speak directly to the Environmental Assessment Office (EAO) and proponent in British Columbia is through ?open houses?, usually convened during the public comment period for the proponent?s Application document.  The Minister has power under the EA Act to order that an assessment be carried out by a hearing panel with a public hearing,590 but this has been done for only one project to date, and that project did not involve the Nisga?a.591  According to the EAO?s User Guide for environmental assessments, open houses are an opportunity for the public to ?to review the application, provide comments, and ask questions of the EAO and the proponent.?592  However, it is doubtful whether these sessions function in the same way as hearings, or even informal community meetings like those held in the other jurisdictions.  For example, it is unclear whether questions can be asked of the EAO or proponent before an audience.  The EAO does not record any oral comments made by members of the public at open houses.593  As Mikisew demonstrated, merely inviting First Nations as members of the public to attend an open house may be insufficient to satisfy the common law duty to consult. In relation to the Nass Area and projects affecting the Nisga?a, the Nisga?a Final Agreement does not extend or expand the EAO?s usual procedures for public involvement.  Pursuant to chapter 10, paragraph 8(d) of the agreement, the assessment process must ?provide for public participation in the assessment process, including public notice of the project, an opportunity to make submissions, and, when deemed appropriate by the Party conducting the assessment, public hearings conducted by an independent review panel? for relevant projects; however all of this can arguably be achieved through ?open houses? (where no hearing is directed).  The EAO                                                             590 EA Act, supra note 412, s 14(3)(a)(ii). 591 See the Kemess North Copper-Gold Mine Project Joint Review Panel Report (17 September 2007), online: EAO Project Information Centre: e-PIC <http://www.eao.gov.bc.ca/> at 17-18. 592 EAO, User Guide, supra note 431 at 32. 593 EAO, Public Comment Policy [nd], online: EAO <http://www.eao.gov.bc.ca/> at 2. 145  has discretion whether to hold public hearings.  Both the agreement and the EA Act also require British Columbia to consult the Nisga?a in relation to such projects,594 though in practice such consultation occurs only if the proponent?s consultation has been inadequate, or the Nisga?a have failed to participate in working groups.595  Generally, as the Kitsault assessment demonstrates, British Columbia seeks to satisfy its consultation duties by imposing duties to consult on the project proponent.  This would seem to be consistent with Haida Nation, though the ?ultimate legal responsibility? for consultation and accommodation always rests with the Crown. In the case of the Kitsault Mine assessment, the EAO attended ?community meetings? in the four Nisga?a villages (Laxgalts?ap, Gitlaxt?aamiks, Gingolx, and Gitwinksihlkw) in July 2010 and July 2012.596  There were meant to be ?open houses? in the villages during the public comment period though the NLG was unable to arrange these meetings.597  During the EAO-attended meetings, Nisga?a citizens raised a number of issues, including ?[c]oncern about long term impacts to marine animals from the historical and the proposed mine, and the health risk associated with the consumption of contaminated (high levels of metals) shellfish, clams, and crab, etc?, but the assessment report does not record any specific or detailed examples of TEK being volunteered.598  Accordingly, it does not appear that the ?hearing? stage added much TEK in the case of the Kitsault Mine assessment, compared with some of the assessments in the other jurisdictions.  Without further information, this may be attributed to the limitations of the                                                             594 Nisga?a Final Agreement, supra note 64, ch 10, para 6(b); EA Act, supra note 412, s 29.1(2)(d). 595 Dessouki, Kitsault Section 11 Order, supra note 491 at 15 (ss 27.1-27.2) (in relation to the Kitsault Mine Project specifically); EAO, User Guide, supra note 431 at 33 (general procedures). 596 EAO, Kitsault Mine Project Assessment Report: With Respect to the Application by Avanti Kitsault Mine Ltd. for an Environmental Assessment Certificate Pursuant to the Environmental Assessment Act, S.B.C. 2002, c.43 (1 March 2013), online: EAO <http://www.eao.gov.bc.ca/> at 334. 597 Ibid at 331. 598 Ibid at 334. 146  assessment process in British Columbia, the nature of the relationship between the proponent and the Nisga?a, or Indigenous agency. 4.2.2.5 Review board?s decision Having held community and/or formal hearings, the final stage of the EIA process is the making of a determination by the review board as to whether the project should proceed, and the issue of a report with recommendations for final decision by the Minister.  At this stage, the assessment or review body is guided by prescribed decision-making requirements, which I discussed previously.  In short, the requirements vary between the jurisdictions, though the Mackenzie Valley and Nunavut have the clearest requirements to consider the values and wishes of Indigenous people.  In the ISR, the focus is more on wildlife harvesting and impacts to the biophysical environment.  In British Columbia, assessments engaging the procedures of the Nisga?a Final Agreement must consider both ?adverse environmental effects on residents of Nisga?a Lands, Nisga?a Lands or Nisga?a interests?, and ?the effects of the project on the existing and future economic, social and cultural well-being of Nisga?a citizens who may be affected by the project.?599  Any requirements for review bodies to consider TEK or TK must be considered within these frameworks.  As discussed above, the Mackenzie Valley is unique in having statutory requirements for the review board to consider ?traditional knowledge?.600  In the ISR and Nunavut rules of procedure require consideration of ?traditional knowledge? as defined in the respective jurisdictions.601  For projects affecting the Nass Area, there is no express requirement for the EAO or hearing panel as the case may be to consider TK, though the requirement to consider the ?future economic, social and cultural well-being of Nisga?a citizens?                                                             599 Nisga?a Final Agreement, supra note 64, ch 10, paras 8(e)-(f). 600 MVRM Act, supra note 65, s 115.1. 601 EISC & EIRB, Rules of Procedure, supra note 437, s 1.4.1(iv); NIRB, Rules of Procedure, supra note 567, s 43.1. 147  might direct attention to at least some aspects of TEK as a matter of practice, to the extent any such TEK has been volunteered through the course of the review. Of the four jurisdictions examined, the ISR is unique in also having prescribed requirements as to how TK is to be treated in relation to scientific knowledge.  According to the ISR?s rules of procedure, the screening and review bodies (the EISC and the EIRB) must both ?ensure that Traditional Knowledge is considered and given weight equal to other sources of information in these Proceedings.?602  This requirement does not take into account the potential limitations of TEK discussed in chapter 2, and so risks elevating TEK at the expense of scientific knowledge that may be more accurate and valid.  There are no prescribed requirements for how TEK or TK is to be treated in the other three jurisdictions, though the MVEIRB?s TK Guidelines state that ?the Review Board shall investigate the knowledge and experience on which these [impact] predictions are based, and find out how the parties involved came to their conclusions. This shall apply to traditional knowledge as it does to other forms of knowledge and information, and may be done through information requests, or by questioning at hearings.?603  The MVEIRB also expects project proponents to ensure that TK is ?collected and peer?reviewed with the aboriginal community or traditional knowledge holders in accordance with appropriate community specific protocols,?604 though this provides no guidance on comparing TK with scientific information. For most of the assessments and reviews I examined the review bodies claimed in their final reports to have considered all TK presented during the assessment or review process.  For example, the joint review panel for the Mackenzie Gas Project claimed that it had ?relied on this information [TK presented during hearings], in addition to the TK studies it received, to ensure                                                             602 EISC & EIRB, Rules of Procedure, supra note 437, s 1.4.1. 603 MVEIRB, TK Guidelines, supra note 434 at 24. 604 Ibid. 148  that it has taken TK into account in accordance with the EIS Terms of Reference.?605  I could not find any examples, however, of a review body explaining exactly how it used or treated TEK in making its final decision.  TEK or TK seems simply to have been but one source of information used by review bodies together with other sources of information in an undifferentiated manner.  The relative weight of TEK or TK in the final decision is therefore difficult to determine.  It appears, however, that TEK has rarely been controversial in the EIA context (at least as revealed in the public documents).  Review bodies generally leave validation and assessment of TEK or TK to proponents, and proponents regularly claim that TEK or TK gathered are complementary with scientific data.  It is perhaps little wonder, then, that TEK does not often feature prominently in the final assessment reports of review bodies.  This does raise the question, however, of the degree to which TEK or TK has truly been adopted by, and had an impact upon EIA processes in the co-management context. 4.3 Conclusions In this chapter I have explained the legal and institutional mechanisms for incorporation and utilization of TEK under four EIA regimes: three established by or under comprehensive agreements and one modified by an agreement.  I have described how the different stages of the EIA process present different opportunities and barriers for provision and inclusion of TEK, and through reference to case examples, explained how requirements to address TEK do not necessarily translate into substantive incorporation.  Based on this review, I identify the following as key determinants of the efficient and respectful incorporation of TEK in the EIA context (having regard to the principles identified in chapter 2):                                                              605 Joint Review Panel, Panel Report vol. 1, supra note 471 at 92. 149  1. Regime?s overall emphasis on TEK A key point of difference between the four jurisdictions is the overall emphasis upon TEK (or TK) as a discrete factor to be considered.  The emphasis is perhaps greatest in the Mackenzie Valley, though the NIRB also places great emphasis upon TK.  Somewhat less emphasis is placed upon TK in the ISR, while the least emphasis is in British Columbia.  The overall emphasis upon TEK clearly has a bearing upon the degree to which it is incorporated in the EIA process: it determines to a large extent ToR requirements for proponents to address TEK, and accordingly, the scope of TEK included in environmental impact statements, the primary basis of all assessments and reviews.  A regime?s overall emphasis on TEK in turn stems from the treatment of TEK by the relevant comprehensive agreement or statutory scheme.  As I have shown, the MVRM Act contains an express requirement for the MVEIRB to consider TK at the screening, assessment and review stages (implementing a requirement under the Tlicho Agreement).  The existence of this requirement led to the TK Guidelines which comprehensively explain the nature of TK, procedures for dealing with TK, and requirements for the incorporation of TK at various stages of the EIA process.  The guidelines shape the EIA process in the Mackenzie Valley, though do not necessarily overcome other factors which tend to preclude incorporation of TK.   In Nunavut, by contrast, there are no express requirements for the NIRB to consider TK, though the relevant legal test nonetheless directs attention towards some aspects of TEK, namely the values of Inuit people including values about the environment.  This emphasis upon the concerns and wishes of Inuit people prescribed by the Nunavut Agreement ensures that some TK is incorporated into the EIA process in Nunavut, though it may be speculated that an explicit requirement for consideration of TK would place even more emphasis upon the concept leading 150  to broader incorporation.  There are similarly no requirements for consideration of TEK in the ISR or British Columbia (including the Nass Area), though a greater emphasis upon Indigenous concerns in the ISR nonetheless leads to some consideration of TEK in that jurisdiction. 2. Definition of TEK/TK Related to the first determinant is the definition of TEK or TK adopted in a particular jurisdiction.  As I have shown, the MVEIRB and the NIRB have both adopted broad definitions of ?traditional knowledge? (and also ?IQ? in Nunavut), meaning that proponents when directed to address TK requirements are necessarily directed towards a broad range of TK.  This creates maximum potential for inclusion of all four categories of TEK, though, as I have demonstrated, other factors relating to the nature of the project, as well as requirements for an IBA may influence the breadth of TEK incorporated.  In the ISR, by contrast, the narrow definition of TK adopted by both the EISC and the EIRB essentially guarantees that project proponents will consider only a narrow range of TEK, to the extent they consider TEK at all.  In British Columbia, the lack of any definition of TEK coupled with a lack of TEK guidelines means that project proponents are effectively excused from considering the concept in any detail, which may overcome in part any Indigenous agency working in the opposite direction. 3. Scope of procedural opportunities for Indigenous people to volunteer TEK Apart from the emphasis upon TEK and how it is defined, the scope of TEK incorporated is influenced by the scope of procedural opportunities for Indigenous people to volunteer TEK directly to review bodies.  The examples I have given demonstrate that opportunities for Indigenous peoples to comment in writing, and, especially, to make oral representations often lead to a rich body of TEK being volunteered, including in terms of categories 3 and 4 TEK 151  which might otherwise be excluded or obscured by the EIA process.  Community scoping sessions and informal community meetings are particularly valuable opportunities for Indigenous people to volunteer TEK directly, and it appears that despite the criticisms of some scholars these sessions are generally able to overcome cultural barriers to yield substantive TEK.  It may be that these sessions could be improved to yield even greater TEK, though in the Mackeznie Valley and Nunavut especially it appears that great strides have been taken towards making public hearings as ?culturally appropriate? and amenable to Indigenous people as possible.  There is less evidence available to evaluate the regimes in the ISR and British Columbia on this score.  However, it appears that the more streamlined process in British Columbia, with short public comment periods, no ?information request? stage, and rarer public hearings and community scoping sessions may work against the broad incorporation of TEK in that jurisdiction. 4. Nature of the project and Indigenous agency The nature of the project coupled with Indigenous agency also shapes the scope of TEK incorporation in the context of EIA.  Generally, the larger the scale of the project, and the more sensitive the receiving environment, the greater the scope of consultation and the greater the opportunities for Indigenous people to volunteer TEK.  Indigenous people may also be particularly concerned about larger projects so make greater efforts to provide their TEK to the proponent or directly to the review body.  These factors both applied, for example, in the context of Baffinland?s proposed Mary River project in Nunavut.  Smaller scale projects, by contrast, may not yield much TEK notwithstanding any TK requirements prescribed by the review body because it may simply be beyond the scope of the proponents? financial capabilities to comprehensively address the issue, including by funding TK studies.  Relatively small-scale projects may also not particularly concern Indigenous peoples, so they may be less motivated to 152  volunteer their proprietary-based TEK.  These factors together appear to have led to the non-inclusion of TEK in the case of Paramount Resources? proposed seismic exploration program. 5. Other factors The effect of some other factors is less clear.  It seems plausible that requirements to conclude IBAs before major projects can commence put pressure on project proponents to accede to the wishes of Indigenous peoples, including in respect of TEK where applicable, though this is difficult to test based upon the materials examined.  Further research would be required to examine this issue directly. Whether the absence of express requirements for review bodies to assess or validate TEK has any bearing upon the way in which TEK ultimately affects environmental assessments is also unclear.  In practice, despite the concerns expressed in the literature, it appears that contested knowledge claims seldom arise in the context of EIA, so it is generally a somewhat moot issue.  Moreover, review bodies generally require proponents to carry out any verification of TEK, avoiding the issue themselves.  However, the existence of clear procedures for assessing and verifying TEK would still provide a useful and transparent framework for dealing with the eventuality of conflicts between TEK and scientific data. The final issue is whether co-management boards make any difference to the incorporation of TEK.  The EIA regimes in the ISR, the Mackenzie Valley and Nunavut all include co-management boards, but the regime in British Columbia, including in respect of the Nass Area, does not.  The effect of having a co-management board as apart from the other factors I have discussed is difficult to determine based upon the materials I have examined.  It may be speculated however, that the role of co-management boards is especially important during oral 153  hearings including scoping sessions, when Indigenous people make direct oral representations to the board.  Should the individual or body make representations in language or in terms of complex cultural concepts it may be that the Indigenous members of the board are better positioned to understand these representations and ensure that they are properly considered in the course of the review.  Similarly, co-management boards are likely to be better positioned to speak directly with Indigenous peoples or communities when the board is required to consult directly.  For these reasons, the Nisga?a and other First Nations of British Columbia might be disadvantaged to some extent by the EIA regime in British Columbia.  On the other hand, the capacity of co-management boards to maximise inclusion of TEK is constrained by their duty to base their decisions upon evidence presented (as opposed to the personal knowledge of individual members), and duties to act in the public interest.  In many ways, therefore, co-management boards are the same as review bodies in other jurisdictions in terms of their decision-making functions.   154  5. CONCLUSIONS In this thesis, I have examined TEK from a theoretical perspective (in chapter 2), and a practical perspective at two levels: the Canadian legal system broadly in relation to environmental governance, focussing on the common law duty to consult and statutory and other duties to consult and consider TEK (chapter 3), and the regional level in the context of EIA regimes established by or under (or modified by) comprehensive land claim agreements (chapter 4).  In chapter 2, I identified four principles for the efficient and respectful utilization of TEK drawing from the relevant literature, and I applied these principles in chapters 3 and 4.  The issues were those I identified in chapter 1: what is the role of legal and institutional mechanisms in facilitating TEK incorporation?  Are there any aspects of TEK which appear to be particularly resistant to incorporation?  And, how might co-management regimes in respect of EIA be better designed so as to promote the efficient and respectful incorporation of TEK?  The overall objective was to gain an understanding of the depth and manner of TEK incorporation in Canada, particularly in the context of EIA under comprehensive agreements.   In these conclusions I first provide an overview of the depth of TEK incorporation in Canada, in terms of both development of legal and institutional frameworks and incorporation in practice.  Second, I examine the manner of TEK incorporation, in terms of the types of TEK which are incorporated, and the role of legal and institutional mechanisms in facilitating TEK incorporation.  Third, I propose ways in which EIA regimes might be amended or designed so as to maximize the efficient and respectful incorporation of TEK.  I end with some final thoughts on TEK and environmental governance.  155  1) Depth of TEK incorporation in Canada ? overview As described in chapter 3, statutory and other duties to consult Indigenous peoples and consider TEK provide a solid foundation for the incorporation of TEK in practice in Canada in relation to a wide range of areas of environmental governance.  It appears that, at least since the early 2000s (when most relevant statutory duties began to appear), Canada has taken earnest steps to ensure the substantive involvement of Indigenous peoples in respect of environmental governance.  The statutory and other requirements are broad-ranging, and include (under the Oceans Act) requirements for the Minister to ?collaborate? with Indigenous organizations in the development of high-level oceans policy.  Under each area of environmental governance discussed, there is a role for Indigenous people in environmental decision-making if not the development of policy.  In some cases there are co-management arrangements.  EIA regimes, in particular (as discussed in chapter 4) contain numerous opportunities and requirements for Indigenous involvement, as well as for consideration of TEK.  It may therefore be concluded that, at least at a broad legal and institutional level, Canada has embraced the concept of TEK as a tool for environmental governance.  At a practical level, the evidence for substantial TEK incorporation is less clear, at least outside of the EIA context.  In the context of the environmental governance regimes described in chapter 3 the relative newness of most of the legal frameworks and a relative paucity of scholarship means that it is difficult to evaluate the depth and manner of TEK incorporation.  In most areas of environmental governance it appears that attempts to substantially incorporate TEK are at an early stage.  There are, however, promising examples, such as the recent arrangements for jointly managing the terrestrial and marine environments of Haida Gwaii.  In the context of EIA regimes established by or under comprehensive agreements, by contrast, my 156  case study demonstrates that there has been a great deal of TEK incorporation in a number of significant project assessments, such as Baffinland?s proposed Mary River mine in Nunavut.  It appears there has been a greater depth of TEK incorporation in those parts of Canada such as Nunavut, the Mackenzie Valley and, to a lesser extent, the ISR, where EIA regimes are characterized by co-management arrangements established by or under comprehensive agreements. 2) Manner of TEK incorporation and role of legal and institutional mechanisms Equally if not more important to the depth of TEK incorporation is the manner in which it is incorporated.  My analysis of EIA regimes established by or under comprehensive agreements provides the greatest insight into this issue, though my analysis of environmental governance regimes in chapter 3 also provides some insights.  In the context of EIA, it appears that whilst Indigenous peoples generally have the opportunity to volunteer all four of Usher?s categories of TEK and have this TEK considered by review boards, categories 3 and 4 TEK are seldom volunteered during the course of project assessments, or, these categories of TEK are otherwise excluded from the EIA process.  The exact reasons for this omission of categories 3 and 4 TEK is difficult to discern, but the apparent fact of the omission seems to confirm the warnings of some of the scholars discussed in chapter 2 that attempts to ?incorporate? or ?integrate? TEK in practical contexts may lead to TEK?s compartmentalization and distillation.  Failure to volunteer categories 3 and 4 TEK may, to some degree be attributed to Indigenous agency.  For small projects, for example, Indigenous people may choose not to volunteer these types of TEK.  However, Indigenous agency does not provide a full explanation for the relative lack of categories 3 and 4 TEK incorporated in EIA processes.  As I showed in relation to regimes in the ISR and British Columbia, the design of the legal regimes themselves plays a significant role in 157  determining the scope of TEK incorporated.  The regime?s overall emphasis upon TEK and the definitions adopted are both important determinants.  Also important is the scope of opportunities for Indigenous people to volunteer TEK.  These appear to be relatively less in British Columbia than in some of the other jurisdictions. There is less evidence, in my view, of factors associated with the ?Western, bureaucratic? nature of EIA regimes influencing the manner of TEK incorporation.  Though there are certainly limitations with a study based solely on public documents, it appears from the documents examined that Indigenous representative bodies were in no worse position in the context of environmental assessments and reviews than non-Indigenous representative bodies.  The evidence shows that Indigenous representative bodies contributed substantial TEK in a number of cases, and that this TEK had a bearing upon assessments and reviews.  Indigenous individuals were also afforded ample opportunities to volunteer TEK, and they availed themselves of these opportunities in a number of cases.  Community scoping sessions and hearings appear to been particularly facilitative of TEK provision by Indigenous individuals, and these mechanisms were one means by which Indigenous people could overcome other institutional constraints to volunteer categories 3 and 4 TEK.  Potential issues relating to language difficulties and use of written, technical documents (emphasized by Graham White) appear to have been neutralised to some extent by availability of translation services, translation of English-language documents into Aboriginal languages, and substantial participation by Indigenous representative bodies. The reason for the relative lack of incorporation of categories 3 and 4 TEK in the context of EIA therefore remains somewhat elusive.  It might have been expected (as I speculated in chapter 2) that the presence of co-management boards with half Indigenous membership would help to overcome any legal or institutional constraints to facilitate incorporation of a broad range 158  of TEK.  This may be true to some extent, though the effect of co-management boards in facilitating TEK in the context of EIA is difficult to determine.  In my view, a broader explanation is suggested; namely, that the nature of EIA itself as a legal and administrative process is not well-suited to the incorporation of categories 3 and 4 TEK.  Unlike in the context of some other environmental governance regimes, the function of EIA review boards including co-management boards is not to develop policy but rather to evaluate the environmental and socio-economic aspects of projects proposed by others.  Review boards have limited capacity to decide on appropriate land uses for particular areas in a broad sense.  Accordingly, it is perhaps not surprising that Indigenous participants in EIA processes have relatively limited say in whether and how projects should proceed.  In a sense, EIA processes are directed at facilitating projects ? through the means of ensuring compliance with certain environmental and socio-economic objectives.  It is possible to infer a general expectation on the part of all participants that projects will generally proceed.  Indeed, in many ways the co-management review boards established under comprehensive agreements seem to operate in a very similar way to review boards established outside of comprehensive agreements.  They all have obligations to operate in the ?public interest?, and to review proposed projects on the basis of evidence presented.  Indigenous people moreover do not have a right of veto in EIA processes, which may act as a broad discouragement to volunteering TEK contrary to the fundamental aims of project proponents. Outside of the EIA context, the depth and manner of TEK incorporation depends on the nature of the relevant legal duties but also, it seems, on the strength of the Indigenous role in the process, particularly the strength and robustness of government-Indigenous partnerships.  In the context of SARA, for example, TEK incorporation is facilitated by the Aboriginal traditional 159  knowledge sub-committee (the ATK SC), an expert body of Indigenous persons tasked with promoting the inclusion of TEK in decision-making processes under the Act.  However, it appears likely that the degree to which TEK is incorporated under SARA is limited by the relative insignificance of the ATK SC?s role, as well as a lack of guidance regarding the concept of ATK and a lack of resources.  Similarly in the context of national parks, it seems that the scope of TEK incorporation varies proportionately with the strength of the partnership between the government and Indigenous parties.  This is evidenced by the seemingly greater role of TEK in the context of national parks where there are formal co-management arrangements, such as Kluane National Park in the Yukon Territory and Gwaii Hanaas National Park Reserve in British Columbia.  Examples in the context of fisheries and oceans management suggest a similar phenomenon. If correct, this supposition lends weight to the theory that co-management is the most promising site for TEK incorporation.  It is also consistent with theory concerning the socio-cultural and proprietary dimensions of TEK, which suggests that Indigenous people will not volunteer TEK (or aspects of it) in circumstances where there are risks of misuse or misappropriation, and the benefits are not readily apparent.  It may be, therefore, that categories 3 and 4 TEK are generally resistant to incorporation in practical contexts unless certain conditions are met. 3) How EIA regimes might be improved so as to maximize the efficient and respectful incorporation of TEK Having considered the determinants for the inclusion of TEK in EIA regimes in chapter 4 I now suggest some means by which EIA regimes might be designed so as to maximize the 160  efficient and respectful incorporation and utilization of TEK.  As discussed in chapter 1, these suggestions are based on the (untested) assumption that TEK might improve EIA processes by yielding better environmental outcomes and promoting Aboriginal empowerment.  It should also be recognized that necessary procedures and requirements must always be tailored to specific projects. First, there should be a prescribed requirement for the review body to consider TEK in its deliberations.  The evidence from the Mackenzie Valley suggests that the amendment to the MVRM Act in 2005 requiring consideration of TK by the MVEIRB led to substantial flow-on effects with respect to incorporation of TEK.  Second, the definition of TEK should be broad enough to encompass all four categories of TEK.  Third, there should be comprehensive guidelines which explain the concept of TEK and how it is to be used in the assessment or review process.  Clear and comprehensive guidelines help to ensure efficiency, transparency, and respectful use of TEK.  The guidelines should also explain when and how TEK is to be assessed and validated by the proponent or review body, as required.  Fourth, the EIA procedures should include adequate opportunities for Indigenous people to make oral representations directly to the review body, at both early (scoping) and later (final hearing) stages.  These hearings or scoping sessions should include adequate translation services where necessary, and be located in communities most likely to be directly affected by, or concerned with the proposed project. Final thoughts Canada has taken steps towards substantive incorporation of TEK in its environmental governance regimes by creating legal and institutional frameworks designed to facilitate incorporation.  The establishment of these frameworks, which include co-management 161  arrangements under comprehensive agreements, suggest that Canada has accepted, in principle, the environmental and other benefits of TEK and is genuinely attempting to realize the value of TEK in practice.  The degree to which TEK has actually been incorporated in practice in Canada is less clear, though there are indications in some areas of environmental governance, especially EIA, that progress has been made towards practical incorporation.  The manner of this incorporation suggests that categories 3 and 4 TEK may generally be resistant to inclusion in environmental governance regimes except, perhaps, when there are reasonably robust co-management arrangements in place.  The EIA context may be unique in that it may not be directed at the substantial inclusion of categories 3 and 4 TEK.  Nonetheless, there are ways in which EIA regimes might be improved so as to facilitate a greater depth and scope of TEK incorporation.   Until we can be sure that TEK incorporation is being maximized under EIA and other environmental governance regimes it is premature to conclude whether the full potential of TEK is being realized in terms of improving environmental outcomes or promoting Aboriginal empowerment.  It may simply be that TEK is not being properly used, so is unable to reach its potential.  My research provides a basis for further research on the practical aspects of TEK incorporation.  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