Science, Irving K. Barber Faculty of (Okanagan)
Earth, Environmental and Geographic Sciences, Department of (Okanagan)
DSpace
UBCO
Nishima-Miller, Jeffrey
Master of Arts - MA
University of British Columbia
Environmental Impact Assessment (EIA) is a government designed approval process for large-scale natural resource activities and development projects. Throughout Canadian jurisdictions, EIA has been criticized for limiting Indigenous involvement, and failing to adequately address the concerns of project impacts on Indigenous rights and title. To overcome these difficulties, Indigenous-led impact assessment (ILIA) has emerged as a process that provides Indigenous Nations/groups with meaningful input and an increased degree of control over project assessments. This research was designed to help meet objectives defined by the Tsilhqot’in National Government (TNG), who are currently exploring how they will implement a Tsilhqot’in-specific assessment process. The Supreme Court of Canada’s landmark Tsilhqot’in title decision (William decision) has created a range of immediate management and planning needs, and new opportunities for Tsilhqot’in communities. This coincides with the 2018/2019 updates to British Columbia’s and Canada’s EIA laws, both of which provide opportunities for Indigenous Nations/groups to conduct part or all of an EIA review, which will be recognized by BC or Canada. The objectives of this research are a) identify the various ways in which Indigenous Nations/groups have chosen to implement their own assessment processes that reflect their unique locations, histories, natural resource issues and governance approaches; b) determine the information, data management and administrative support requirements, communication and decision-making tools, and funding mechanisms or needs of ILIA; and c) describe the variable degrees of control achieved through ILIA. These objectives were achieved through a literature review exploring the evolution of Indigenous participation in EIA and the emergence, opportunities, and obstacles of ILIA; and through the composition of five case studies outlining why and how select Indigenous Nations/groups in Western Canada have implemented ILIA. The recommendations outline a number of approaches that can be taken by Indigenous Nations/groups as they work to design and implement an ILIA process. Recommendations include establishing consistent approaches to working with proponents and/or the Crown; building internal capacity among internal staff, community members, and leadership; facilitate accessibility of existing data sources; and explore legally-binding cooperative or joint management agreements that provide leverage when working with proponents and/or the Crown.
INDIGENOUS-LED IMPACT ASSESSMENT: APPROACHES, REQUIREMENTS, AND DEGREES OF CONTROL by Jeffrey Nishima-Miller B.A., University of Victoria, 2018 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE COLLEGE OF GRADUATE STUDIES (Interdisciplinary Studies) THE UNIVERSITY OF BRITISH COLUMBIA (Okanagan) April 2021 © Jeffrey Nishima-Miller, 2021 ii The following individuals certify that they have read, and recommend to the College of Graduate Studies for acceptance, a thesis/dissertation entitled: Indigenous-led Impact Assessment: Approaches, Requirements, and Degrees of Control submitted by Jeffrey Nishima-Miller in partial fulfillment of the requirements of the degree of Master of Arts. Dr. Kevin Hanna Supervisor Dr. Donna Sense Supervisory Committee Member Dr. Jocelyn Stacey Supervisory Committee Member Dr. William Nikolakis Supervisory Committee Member Dr. Adam Ford University Examiner iii Abstract Environmental Impact Assessment (EIA) is a government designed approval process for large-scale natural resource activities and development projects. Throughout Canadian jurisdictions, EIA has been criticized for limiting Indigenous involvement, and failing to adequately address the concerns of project impacts on Indigenous rights and title. To overcome these difficulties, Indigenous-led impact assessment (ILIA) has emerged as a process that provides Indigenous Nations/groups with meaningful input and an increased degree of control over project assessments. This research was designed to help meet objectives defined by the Tsilhqot’in National Government (TNG), who are currently exploring how they will implement a Tsilhqot’in-specific assessment process. The Supreme Court of Canada’s landmark Tsilhqot’in title decision (William decision) has created a range of immediate management and planning needs, and new opportunities for Tsilhqot’in communities. This coincides with the 2018/2019 updates to British Columbia’s and Canada’s EIA laws, both of which provide opportunities for Indigenous Nations/groups to conduct part or all of an EIA review, which will be recognized by BC or Canada. The objectives of this research are a) identify the various ways in which Indigenous Nations/groups have chosen to implement their own assessment processes that reflect their unique locations, histories, natural resource issues and governance approaches; b) determine the information, data management and administrative support requirements, communication and decision-making tools, and funding mechanisms or needs of ILIA; and c) describe the variable degrees of control achieved through ILIA. These objectives were achieved through a literature review exploring the evolution of Indigenous participation in EIA and the emergence, opportunities, and obstacles of ILIA; and through the composition of five case studies outlining why and how select Indigenous Nations/groups in Western Canada have implemented ILIA. The recommendations outline a number of approaches that can be taken by Indigenous Nations/groups as they work to design and implement an ILIA process. Recommendations include establishing consistent approaches to working with proponents and/or the Crown; building internal capacity among internal staff, community members, and leadership; facilitate accessibility of existing data sources; and explore legally-binding cooperative or joint management agreements that provide leverage when working with proponents and/or the Crown. iv Lay Summary Environmental Impact Assessment (EIA) is a government designed approval process for large-scale industrial activities and development projects. Throughout Canada, EIA has been criticized for limiting Indigenous involvement and inadequately addressing the significance or project impacts on Indigenous rights and title. The research supports the Tsilhqot’in National Government (TNG) as they work to design and implement a Tsilhqot’in-specific impact assessment process for the review of large-scale development proposals within their territories. The objectives of this research are to explore the key components of Indigenous-led impact assessment (ILIA), including the various was Indigenous Nations/groups have implemented ILIA to date, the information and resourcing requirements of ILIA, and the variable degrees of control achieved through ILIA. The findings of this research support the existing literature and outline the key opportunities and challenges associated with ILIA, as well as the role ILIA can play in overcoming the inadequacies of EIA. v Preface This research was made possible through a collaboration between the Tsilhqot’in National Government (TNG) and the Centre for Environmental Assessment Research (CEAR) at the University of British Columbia (UBC), Okanagan Campus. My role in this project was to work on addressing TNG’s questions concerning ILIA. I conducted this project independently, focusing on the design and implementation of ILIA in Western Canada, through both literature review and the development of five case studies which highlights how ILIA has been implemented and utilized prior to the beginning of this research in September 2019. The components of this research and thesis were completed independently, with guidance from my supervisor, Dr. Kevin Hanna; committee members, Dr. Donna Sense, Dr. Jocelyn Stacey, and Dr. William Nikolakis; and the TNG senior advisor of Tsilhqot’in Nen (Water, Lands, and Resources), J.P Laplante. In addition, staff members or consultants from each Indigenous Nation/group mentioned within the case studies provided feedback, expertise, and guidance on the accuracy throughout various phases of case study development. Case study review was provided by Aaron Bruce for the Squamish Nation Process, Dr. Debra Stokes for the Stk’emlu’psemc te Secwepemc Nation Assessment Process, Erin Hanson for the Tsleil-Waututh Nation Assessment, Mark Gustafson and Melody Lapine for the Mikisew Cree Culture and Rights Assessment, and Nicole Kapell for the Ktunaxa Nation Rights and Interests Assessment. This research project was discussed with the UBC Ethics Board and was exempt from behavioral ethics review, as this research did not involve interviews or participant observation. As case study review was conducted by staff members or consultants from each Nation/group mentioned in the case studies, this did not require ethics approval, as any information or data collected through these engagements was shared according to their standard employment and professional practices. vi Table of Contents Abstract ................................................................................................................................................................. iii Lay Summary ........................................................................................................................................................ iv Preface ................................................................................................................................................................... v Table of Contents .................................................................................................................................................. vi List of Tables ......................................................................................................................................................... x List of Figures ....................................................................................................................................................... xi List of Abbreviations ............................................................................................................................................ xii Acknowledgements ............................................................................................................................................. xiv Dedication ........................................................................................................................................................... xv Chapter 1: Introduction ......................................................................................................................................... 1 1.1 Research Objectives ......................................................................................................................................... 2 1.2 Definitions of Key Terms ................................................................................................................................. 3 1.3 Thesis Structure ................................................................................................................................................ 5 Chapter 2: Research Methodology ....................................................................................................................... 6 2.1 Theoretical Approach ...................................................................................................................................... 6 2.2 Study Design ................................................................................................................................................... 7 2.2.1 Literature Review ................................................................................................................................... 8 2.2.2 Case Study Development ....................................................................................................................... 8 2.2.3 TNG Engagement ................................................................................................................................. 11 2.3 Analysis ......................................................................................................................................................... 12 2.3.1 Case Study Analysis ............................................................................................................................. 12 2.4 Ethical Considerations ................................................................................................................................... 14 2.4.1 Reflexivity and Positionality ................................................................................................................ 14 2.4.2 Validity and Consistency ..................................................................................................................... 15 2.4.3 Limitations ........................................................................................................................................... 16 Chapter 3: Evolution of Indigenous Involvement in Environmental Impact Assessment .................................. 18 3.1 Environmental Impact Assessment ............................................................................................................... 18 3.1.1 Indigenous Consultation and EIA ........................................................................................................ 20 3.1.1.1 R. v. Sparrow, 1990 ........................................................................................................................ 20 3.1.1.2 Delgamuukw v. Brtish Columbia, 1997 .......................................................................................... 21 3.1.1.3 Haida v. British Columbia (Minister of Forests), 2004 ................................................................. 21 vii 3.1.1.4 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 .......... 22 3.1.1.5 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 ............................. 22 3.1.1.6 Tsilhqot'in Nation v. British Columbia, 2014 ................................................................................. 22 3.1.2 The Duty to Consult ............................................................................................................................. 23 3.1.3 Executing the Crown’s Duty to Consult through EIA ......................................................................... 25 3.1.4 Procedural Elements of Indigenous Participation in Provincial and Federal EIA ............................... 26 3.2 Critique of Crown Consultation Processes .................................................................................................... 28 3.2.1 The Weaknesses of Crown Consultation through EIA Processes ...................................................... 29 3.2.1.1 The Prosperity and New-Prosperity EIA Inconsistencies ............................................................. 32 3.2.2 Recognizing the Duty to Consult as a Colonial-Crown Driven Process .............................................. 33 3.3 The Progression of Indigenous-Crown Relations .......................................................................................... 34 3.3.1 The United Nations Declaration on the Rights of Indigenous Peoples ................................................ 35 3.4 Canada and British Columbia EIA Reform ................................................................................................... 37 3.4.1 New Options for Indigenous-led Impact Assessment .......................................................................... 38 Chapter 4: Emergence, Opportunities, and Obstacles of ILIA .......................................................................... 40 4.1 The Emergence of ILIA ................................................................................................................................. 40 4.1.1 Overcoming the Weaknesses of EIA ................................................................................................... 41 4.1.2 Recognition and Assertion of Indigenous Legal Systems and Political Rights ................................... 41 4.1.3 Authenticating Corporate Social Responsibility .................................................................................. 42 4.2 Modes of and Opportunities for Control ....................................................................................................... 43 4.2.1 Modes of Control ................................................................................................................................. 43 4.2.2 Opportunities for Control ..................................................................................................................... 44 4.3 ILIA Obstacles and Limitations .................................................................................................................... 48 4.3.1 Legal Obstacles .................................................................................................................................... 48 4.3.2 Procedural Obstacles ............................................................................................................................ 49 4.3.3 Resource Limitations ............................................................................................................................ 49 Chapter 5: ILIA Case Studies ............................................................................................................................. 51 5.1 The Squamish Nation Process ...................................................................................................................... 51 5.1.1 The Squamish Nation ........................................................................................................................... 51 5.1.2 The Woodfibre Liquified Natural Gas Plant and Export Terminal Proposal ....................................... 51 5.1.3 Developing the Squamish Nation Process ........................................................................................... 52 5.1.4 Implementing the Squamish Nation Process ........................................................................................ 53 5.1.5 Outcomes of the Squamish Nation Process .......................................................................................... 56 5.1.6 Squamish Nation Process Key Findings .............................................................................................. 58 5.2 The Stk’emlu’psemc te Secwepemc Nation Assessment Process ................................................................. 59 5.2.1 The Stk’emlu’psemc te Secwepemc Nation .......................................................................................... 59 5.2.2 The Ajax Mine Proposal ....................................................................................................................... 60 viii 5.2.3 The SSN Government-to-Government Framework and EA Collaboration Plan .................................. 60 5.2.4 Implementing the SSN Assessment Process ......................................................................................... 61 5.2.5 Outcomes of the SSN Assessment Process ........................................................................................... 65 5.2.6 SSN Assessment Process Key Findings ................................................................................................ 67 5.3 The Tsleil-Waututh Nation Assessment ....................................................................................................... 68 5.3.1 The Tsleil-Waututh Nation ..................................................................................................................... 68 5.3.2 The Trans Mountain Pipeline and Tanker Expansion Proposal ............................................................. 68 5.3.3 Tsleil-Waututh Nation Stewardship ....................................................................................................... 70 5.3.4 Implementing the Tsleil-Waututh Nation Assessment .......................................................................... 71 5.3.5 Outcome of the Tsleil-Waututh Nation Assessment ............................................................................. 75 5.3.6 Tsleil-Waututh Nation Assessment Key Findings ................................................................................ 77 5.4 The Mikisew Cree Culture and Rights Assessment ..................................................................................... 77 5.4.1 The Mikisew Cree First Nation .............................................................................................................. 77 5.4.2 The Frontier Oil Sands Mine Proposal ................................................................................................... 78 5.4.3 Shifting from a Traditional Land-use Assessment to the Mikisew Cree Culture and Rights Assessment ...................................................................................................................................................................................... 79 5.4.4 Implementing the Mikisew Cree Culture and Rights Assessment ......................................................... 80 5.4.5 Outcomes of the Mikisew Cree Culture and Rights Assessment ........................................................... 82 5.4.6 Methodology for Assessing Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Teck Frontier Project ........................................................................................................................... 84 5.4.7 Mikisew Cree Culture and Rights Assessment and MCFN-CEAA Methodology Key Findings .......... 86 5.5 Ktunaxa Nation Rights and Interests Assessment ........................................................................................ 88 5.5.1 The Ktunaxa Nation ............................................................................................................................... 88 5.5.2 Legacy of Extraction .............................................................................................................................. 88 5.5.4 Section C: Ktunaxa Nation Rights and Interests Assessment ................................................................ 89 5.5.5 Outcomes of the Ktunaxa Nation Rights and Interests Assessment ...................................................... 92 5.5.6 Ktunaxa Nation Rights and Interests Assessment Key Findings ........................................................... 93 Chapter 6: Analysis, Results, Discussion, and Conclusion ................................................................................ 95 6.1 Analysis, Discussion, and Results of ILIA Case Studies .............................................................................. 95 6.2 ILIA processes reflect the unique locations, histories, natural resource issues, and governance approaches of the Indigenous Nation/group undertaking the assessment .............................................................................. 95 6.2.1 Emergence of ILIA ............................................................................................................................... 96 6.2.1.1 Overcoming the Weaknesses of Provinal/Federal EIA .................................................................. 96 6.2.1.2 Assertion and Recognition of Indigenous Legal Systems and Political Rights ............................. 97 6.2.2 Current State of Territory ..................................................................................................................... 98 6.2.2.1 History of Past Development .......................................................................................................... 99 6.2.2.2 Connection to the Site .................................................................................................................. 101 ix 6.2.2.3 Land-Use Planning/Objectives ..................................................................................................... 102 6.3 ILIA processes will have unique data management requirements, administrative support, communication and decision-making tools, and funding mechanisms ....................................................................................... 104 6.3.1 Resource Requirements ....................................................................................................................... 104 6.3.1.1 Internal Staffing, Community, and Leadership Requirements ..................................................... 104 6.3.1.2 External Technical Support Requirements ................................................................................... 108 6.3.1.3 Access to Proponent or Crown Funding ....................................................................................... 109 6.4 ILIA processes have variable degrees of control, including control over how the assessment is conducted, what is being assessed (i.e., values), and decision-making. .............................................................................. 110 6.4.1 Indigenous Control .............................................................................................................................. 110 6.4.1.1 Cooperative or Joint Management Agreements ........................................................................... 111 6.4.1.2 ILIA Process Model ..................................................................................................................... 113 6.4.2 ILIA Influence ..................................................................................................................................... 115 6.4.3 Procedural and Legal Obstacles .......................................................................................................... 116 6.5 Summary ..................................................................................................................................................... 118 6.6 Conclusion ................................................................................................................................................... 118 6.6.1 Recommendations for ILIA ................................................................................................................ 123 6.6.2 Recommendations for Future Research .............................................................................................. 124 Bibliography ...................................................................................................................................................... 125 x List of Tables Table 1: Case Study Logic Model ................................................................................................................................ 11 Table 2: Case Study Analysis Code Book ................................................................................................................... 13 Table 3: Duty to consult phases outlined by Indigenous and Norther Affairs Canada ................................................ 24 Table 4: Province of British Columbia Updated Procedures for Meeting Legal Obligations When Consulting First Nations ......................................................................................................................................................................... 24 Table 5: Steps of the Squamish Nation Process ........................................................................................................... 55 Table 6: Agreed upon conditions for approval of Woodfibre LNG under the Squamish Nation Process. .................. 57 Table 7: SSNAP Valued Components ......................................................................................................................... 63 Table 8: Steps in Completing the SSNAP. ................................................................................................................... 64 Table 9: SSN Panel Activities Consistent with the Land Use Objective for Pipsell. .................................................. 66 Table 10: TWM Assessment Key Questions and Associated Research Activities. ..................................................... 73 Table 11: TWN Values for the Assessment of the TMEX Proposal ..................................................................... 74-75 Table 12: The 3 main tasks in completing the MCCRA. ............................................................................................. 81 Table 13: The 8 main research activities in completing the MCCRA 3 main tasks. ................................................... 81 Table 14: MCCRA Valued Components, Thresholds, and Indicators ......................................................................... 82 Table 15: Steps in Assessing the Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Frontier Oil Sands Mine Project ................................................................................................................................... 85 Table 16: KNRIA Valued Components, Indicators, and Measures ............................................................................. 90 Table 17: Fording River Operations Assessment Section C Mitigations Table (examples) ........................................ 91 Table 18: Chapter 5 ILIA Process Models ................................................................................................................... 95 Table 19: ILIA Cooperative and Joint Management Agreements ............................................................................. 111 Table 20: ILIA Process Model Degrees of Control ................................................................................................... 113 xi List of Figures Figure 1: ILIA Case Study Indigenous Government Geographic Locations ................................................................. 9 xii List of Abbreviations AER Alberta Energy Regulator BC British Columbia BSA Biodiversity Stewardship Area CEAA 2012 Canadian Environmental Assessment Act 2012 CEAA Canadian Environmental Assessment Agency CEAR Centre for Environmental Assessment Research CEO Chief Executive Officer CSR Corporate Social Responsibility EA Environmental Assessment EAA Environmental Assessment Act EAO Environmental Assessment Office EIA Environmental Impact Assessment EIS Environmental Impact Statement EPEA Environmental Protection and Enhancement Act EVWQP Elk Valley Water Quality Plan FPIC Free, Prior, and Informed Consent FRO Fording River Operations G2G Government-to-Government GT Guiding Topic IA Impact Assessment IAA Impact Assessment Act IAAC Impact Assessment Agency of Canada IBA Impact Benefit Agreement IK Indigenous Knowledge ILIA Indigenous-led impact assessment KGHM Kombinat Górniczo-Hutniczy Miedzi KNC Ktunaxa Nation Council KNRIA Ktunaxa Nation Rights and Interests Assessment LCO Line Creek Operations LNG Liquified Natural Gas LSA Local Study Area MCCRA Mikisew Cree Culture and Rights Assessment MCFN Mikisew Cree First Nation MIIR Ministry of Indigenous Relations and Reconciliation MOU Moratorium of Understanding MPMO Major Projects Management Office xiii NEB National Energy Board NGO Non-Governmental Organization PGL Pottinger Gaherty Limited RSA Regional Study Area SCC Supreme Court of Canada SN Squamish Nation SNP Squamish Nation Process SSN Stk’emlu’psemc te Secwepemc Nation TLRD Treaty, Lands, and Resources Department TMEX Trans Mountain and Tanker Expansion TML Taseko Mines Limited TNG Tsilhqot’in National Government TRTFN Taku River Tlingit First Nation TWN Tsleil-Waututh Nation UBC University of British Columbia UNDRIP United Nations Declaration on the Rights of Indigenous Peoples VC Valued Component WMA Wildlife Management Area xiv Acknowledgements This research was made possible due to the support and guidance of my professors, friends, and family. A special thanks to my supervisor, Dr. Kevin Hanna, who throughout my research provided guidance and mentorship which helped me grow both personally and academically. I also owe special thanks to my committee members, Dr. Jocelyn Stacey, Dr. Donna Sense, and Dr. William Nikolakis- who provided insightful feedback throughout my research process. Much gratitude is also owed to J.P Laplante and the Tsilhqot’in National Government who provided guidance and encouragement, while also making this project possible. A special thanks is also owed to Aaron Bruce, Dr. Debra Stokes, Erin Hanson, Mark Gustafson, Lindsay Wong, Melody Lapine, and Nicole Kapell who provided feedback on the case studies developed as a part of this project, as it was integral to this project’s success. I would also like to thank my support network of awesome folks at UBC Okanagan. The UBC Backcountry Hunters and Anglers Club has been a great peer group, their passion and work ethic for wildlife conservation continues to provide me with motivation, and I look forward for the years of adventures to come. A special shoutout is owed to Mateen Hessami and Pete White, you guys rock. I would also like to acknowledge my family, Kami Nishima, Jody Nishima, Max Nishima, and Kiyomi Nishima, who continue to be my support system and inspiration. Finally, my deepest gratitude extends to my partner Ali Macquisten, who has been patient, loving, and supportive throughout every step of the graduate studies process. xv Dedication To my family, the ‘Neeshmas’. 1 Chapter 1: Introduction The approval of large-scale natural resource developments despite limited input from impacted Indigenous peoples, communities, and Nations/groups has been a contentious topic in Canadian politics. A collection of court challenges has made it clear that Indigenous peoples throughout Canada have highlighted the power imbalance between Indigenous peoples and the provincial/federal decision-makers regarding the development of natural resource projects (Papillon and Rodon, 2017). Throughout Canadian federal and provincial jurisdictions, Environmental Impact Assessment (EIA) is the accepted tool for assessing and regulating large-scale industrial and development projects (Therivel and Wood, 2017; Hanna, 2016). EIA is used as a mechanism to measure and articulate anticipated impacts that guide decisions regarding if and how projects should proceed. EIA has been criticized by Indigenous peoples, Nations, and groups for meeting the bare minimum consultation requirements as outlined by Canada’s constitutional ‘duty to consult’, ultimately failing to consider Indigenous perspectives (Hanson, 2018). Indigenous-led impact assessment (ILIA) is a review process designed and conducted with meaningful input and an adequate degree of control by Indigenous parties (Gibson, Hoogeven, and MacDonald, 2018). To overcome the challenges associated with provincial/federal EIA, ILIA provides opportunities to move beyond Crown-led processes which achieve the bare minimum consultation requirements, if at all. When integrated into EIA, ILIA can be used as a mechanism to ensure that Indigenous rights, jurisdiction, self-determination, and interests are recognized while simultaneously achieving the Crown’s legal consultation requirements (O’Faircheallaigh and MacDonald, 2020). As such, this is an important aspect of building positive relationships between Indigenous Nations/groups, the Crown, and proponents, ultimately reducing the risk of conflict. In 2018 and 2019, the provincial government of British Columbia and federal government of Canada, respectively, passed new EIA laws. The updated EIA laws are enacted through the implementation of the federal Impact Assessment Act, 2019 (IAA), and BC Environmental Assessment Act, 2018 (EAA). Both new Acts were designed with aspirations to align with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which includes the concept of Free, Prior, and Informed Consent (FPIC), as a means of giving effects to the self-determining rights of Indigenous peoples. Aligning with UNDRIP will be enacted in-part through new opportunities for ILIA as apart of Crown EIA activities (IAA, 2019; EAA, 2018). ILIA as apart of Crown EIA will allow for Indigenous Nations/groups to enter into agreements with the responsible Minister’s to conduct either part or all of an EIA on behalf of either the federal Impact Assessment Agency of Canada or provincial British Columbia Environmental Assessment Office. The effective implementation of ILIA is profoundly important, as it has the potential to move beyond the provincial/federal approaches of EIA and Indigenous consultation, 2 by advancing processes which integrate Indigenous perspectives into the design and decision-making for development projects within Indigenous territories. This research was facilitated by a collaborative partnership between the Tsilhqot’in National Government (TNG) and the University of British Columbia Okanagan Centre for Environmental Assessment Research. Through this partnership, TNG expressed their intent to explore their options for leading the reviews of proposed development projects within Tsilhqot’in territories. Guided by the information needs of TNG, this thesis highlights the variable ways Indigenous Nations/groups have implemented ILIA processes, investigating the practices, opportunities, and challenges of ILIA. With this, the purpose of this research is to provide information and results useful for a Tsilhqot’in-specific ILIA process design. 1.1 Research Objectives This project was designed to investigate the practices, opportunities, and challenges for implementing ILIA. As the work helps support the potential implementation of an ILIA process for the Tsilhqot’in Nation, collaboration with TNG was key to ensure that the research outputs provide outcomes that ultimately benefit the Nation in its planning and management activities. As identified by TNG, with increased opportunities for ILIA, there is an existing need for knowledge in regard to how ILIA has been used to date. In response, the following research objectives have guided this thesis: • Identify the various ways in which Indigenous Nations/groups have chosen to implement their own assessment processes that reflect their unique locations, histories, natural resource issues and governance approaches. • Determine the information, data management, and administrative support requirements, communication and decision-making tools, and funding mechanisms or needs of ILIA. • Describe the variable degrees of control achieved through ILIA. The research objectives reflect the goals of TNG, which have played a central role in the selection of research methods and presentation of research results. The Supreme Court of Canada’s landmark Tsilhqot’in title decision (William decision) has created a range of immediate management and planning needs, and new opportunities for Tsilhqot’in communities. This coincides with the 2018/19 updates to the federal and BC EIA laws, which provide opportunities to redefine and reshape ILIA as part of Crown EIA reviews. As such, leading the reviews of proposed resource projects in Tsilhqot’in territories has been identified by TNG as an important new opportunity to be explored. Supporting TNG, the University of British Columbia Okanagan’s Centre for Environmental Assessment Research (CEAR) is working with TNG to explore ILIA process design options, which will help to advance its implementation on Tsilhqot’in lands. 3 Extending beyond TNG’s use, the study of ILIA will be helpful for Indigenous communities and academia alike. This project can serve as a useful resource for Indigenous Nations/groups who are working to implement their own processes, by outlining process design options and decisions regarding whether to undertake an ILIA review. Academically, this research contributes to both the EIA literature and the emerging ILIA field, and reinforces the need to focus on ILIA practice, participation, and connections to Crown and proponent decision-making. In addition, the results of this research are directly relevant for the implementation, management, and evaluation of the updated Federal IAA and BC EAA, which both provide new options for ILIA as a part of Crown EIA. Because the research outcomes seek to understand the structure and elements of ILIA, a qualitative approach to data collection and analysis was considered best. The research approach involved three stages. First, was through a literature review including the evolution of Indigenous involvement in EIA (chapter 3) and emergence, opportunities, and obstacles of ILIA (chapter 4). The literature review chapters were an important aspect of identifying why ILIA has emerged, its goals, and opportunities. Second, was through the composition of case studies explaining why and how five Indigenous Nations/groups located in Western Canada have taken on ILIAs prior to the new federal and BC EIA legislation (chapter 5). The case studies were used to identify how specific Indigenous governance structures have supported ILIA and how EIA itself is has been changed and remade to reflect such structures. The third stage was completed through the analysis of the literature review and case studies completed through stages one and two (Chapter 6). Analysis, and the generation of results, specifically addressed the original research objectives of this study. To conclude, a number of recommendations were generated aimed at supporting the design and implementation of ILIA by TNG, and potentially by other Indigenous Nations or groups. 1.2 Definitions of Key Terms This thesis uses a number of key terms that are defined here. Within this thesis, Indigenous is the preferred term to describe the peoples, Nations, and groups who inhabited the territorial boundaries of what is now commonly referred to as Canada prior to the arrival of European settlers. Within this context, Indigenous is an overarching term including First Nations, Inuit, and Metis peoples, communities, Nations, and groups. As consistent with section 35 of the Canadian Constitution Act, 1982, Aboriginal is used to describe First Nations, Inuit, and Metis people, Nations, and groups when referring to the constitutionally protected Aboriginal and Treaty rights or when referencing Crown documents. As such, Aboriginal rights refer to the specific rights of Indigenous peoples acknowledged by the Constitution Act, 1982. Treaty rights are those confirmed through agreements between the Government of Canada, provinces, territories and Indigenous peoples, communities, Nations, and groups. Treaties are used to 4 delineate the ongoing rights and obligations of each group involved in its inception. Treaties exist both through historic treaties (i.e., those signed between the British Crown and Indigenous Nations/groups between 1701 and 1923) and modern treaties (i.e., comprehensive land claim agreements signed after 1973). Traditional territories are used to describe the lands to which Indigenous peoples, communities, Nations, and groups have ancestral and contemporary connections. Many traditional territories remain unceded (including 95% of the land base in British Columbia), meaning that Indigenous peoples and Nations/groups never ceded or legally signed away jurisdiction or ownership of their lands to Canadian authority (Wilson, 2018). Indigenous knowledge refers to the understandings, explanations, skills, and philosophies developed by Indigenous peoples through interactions with their traditional territories (UNESCO, 2020). In contrast, western science is used to describe the knowledge system most commonly applied to provincial and federal (conventional) EIA. Provincial/federal EIA refers to the review of proposals for development projects led by government agencies (i.e., IAAC or the EAO). Indigenous-led impact assessment (ILIA) is “a process that is completed prior to any approvals or consent being provided for a proposed [development] project, which is designed and conducted with meaningful input and an adequate degree of control by Indigenous parties- on their own terms and with their approval” (Gibson, Hoogeven, and MacDonald, 2018; 10). Development projects are generalized as resource use activities requiring EIA as defined by EIA Acts or regulations (i.e., mining, hydroelectric, or transportation activities). Act is used throughout this thesis to mean the legislation which prescribes requirements of EIA (i.e., the federal IAA and BC EAA). Proponent is the party proposing a development project which is required to prepare an EIA report, outlining the proposed project design and anticipated impacts (Hanna, 2016). In both EIA and ILIA, an impact is defined as the environmental, economic, social, and Section 35 Aboriginal rights, effects of an activity, including those that are anticipated. In assessing impacts, EIA and ILIA typically use valued components (VC), which are aspects of the environment, society, or economy of value to stakeholders or the Indigenous Nation/group. VCs are typically assessed according to regional study areas (RSA) and local study areas (LSA). The RSA refers to the geographic area identified in EIA where the effects of a specific project may contribute indirectly to cumulative effects of the project (RAMP, 2020). A cumulative effect is defined as “a change in the environment caused by multiple activities and natural processes that accumulate across space and time” (Canadian Council of Ministers of the Environment, 2014;1). The LSA is the geographic area where direct effects of a specific project may occur (RAMP, 2020). An important and required aspect of determining the impacts of a proposed project, especially those that may impact Indigenous peoples, communities, Nations, or groups is consultation. Crown consultation processes (including the duty to consult) is required by federal or provincial government when their decisions- such as an EIA approval- has potential adverse impacts on Aboriginal or Treaty 5 rights. Consultation varies depending on the context, but can include notification, accommodation, compensation, or consent, depending on the nature of rights at stake and severity of the anticipated impacts. In this context, the term ‘Crown’ conceptualizes the Canadian state, and its provincial and federal governments that exercise the executive powers that govern the country (Harris, 2006). For this thesis, the power, authority, and jurisdiction of the Crown is recognized as being associated with colonial control, which means that the jurisdictional authority over land and its inhabitants has been attained through the process of colonization. 1.3 Thesis Structure This research highlights the opportunities and obstacles of ILIA, with the goal of providing information useful for its future design and implementation. In doing so, this thesis is organized into 6 chapters. Chapter 2 describes the research methodology, providing an overview of the systematic procedure and analytical technique applied to achieving the research objectives. Chapter 3 provides a review of the relevant literature related to the evolution of Indigenous involvement in EIA- highlighting the past and present challenges associated with Indigenous involvement in provincial/federal EIA. Chapter 4 builds upon chapter 3 by reviewing the relevant literature related to ILIA and describing some of the uniform qualities of ILIA. The information contained within chapter 4 contributes to forming the concepts and ideas used to generate results that achieve the research objectives. Chapter 5 provides five ILIA case studies that describe why and how ILIA has been implemented in Western Canada to date. The case studies are used to articulate the lessons and experiences of Indigenous Nations/groups that have completed an ILIA, which can support the future design and implementation of ILIA. Chapter 6 delivers the results of case study analysis and discussion of the research objectives- describing how ILIA has emerged, its resource requirements, various levels of control, and procedural and legal obstacles. The second part of chapter 6 concludes the research project by proposing a broad set of recommendations for ILIA and future research, which can help the future design and implementation of ILIA. 6 Chapter 2: Research Methodology The following chapter describes the approach and methods of data collection and analysis used in this research. This includes sections outlining the theoretical approach taken, literature review topics, study design, analysis, and ethical considerations. As discussed in the previous chapter, with increased opportunities for Indigenous-led impact assessment (ILIA), there is a growing need for knowledge regarding how ILIA has been implemented to date. The methods of data collection and analysis described in this chapter have been selected to reflect the goal of this research, which is to provide information useful to the future application of ILIA in the review of development projects. 2.1 Theoretical Approach Throughout this research, pragmatism is used as the guiding theoretical paradigm. A pragmatic approach was chosen to guide this thesis as a study that not only explains and theorizes the current state, structure, and phenomena of ILIA, but further works to produce knowledge that can be applied to guide actions and change (Denzin and Lincoln, 2011). Pragmatism strives to expose constructive knowledge through inquiry, while looking for constructed truth (i.e., the idea that truth is constructed through human perception) which effectively addresses a problem or question (Denzin and Lincoln, 2011). Pragmatism is a suitable approach for the evaluation of EIA processes, as it guides this project with a goal of providing practical information about ILIA process options and Indigenous involvement in EIA. Although the purpose of this research is to support Tsilhqot’in National Government (TNG) in developing their own ILIA process, a focus of transferability (as guided by pragmatism) advances the application of research findings to other settings, such as other Indigenous jurisdictions working to implement ILIA processes. When discussing Indigenous involvement in EIA and the integration of ILIA processes into Crown EIA processes, it is necessary to acknowledge the confluence of different epistemologies (knowledge systems) and value systems. EIA, in its definition and intent, stems from Western worldviews directly related to an extractivist mindset (Willow, 2019; Klein and Simpson, 2013). Contrasting extractivism, Indigenous worldviews may present alternative approaches to natural resource extraction, environmental management, and relationships to the natural world (Klein and Simpson, 2013). In using a pragmatic approach, which recognizes the confluence of different knowledge systems (epistemologies), I have situated this project within the theoretical framework of ‘Ethical Space’ (Poole, 1972). As informed by Wilkes (2011), Ethical Space offers a productive position where research can be conducted on topics that work between cultural differences, while remaining respectful of different knowledge systems (Ermine, 2000; Wilkes, 2011). Ermine (2000) explains “The confluence where the two worlds of Indigenous and Western Peoples meet and where two sets of worldviews are brought to encounter can also theoretically represent a space of flux where nothing is yet formed or understood” 7 (121). The Ethical Space is located at the intersection of different worldviews, where knowledge can be communicated across various world views and knowledge systems. An Ethical Space approach to EIA and natural resource management “encourages decision-makers and stakeholders to collaborate and achieve shared outcomes and foster common respect for the benefit of all” (BC First Nations Wildlife Forum, 2020; 10). Within Ethical Space, collaboration and cooperation- especially in terms of natural resource management- “facilitates the coexistence of both multiple knowledge systems and multiple layers of jurisdiction, in which Indigenous peoples, Nations, and groups not only manage Crown objectives, but also their own” (BC First Nations Wildlife Forum, 2020; 11). Situating this research within Ethical Space creates research that provides a venue for collaboration, advice, sharing and cross-validation (i.e., one side validates the other’s decisions), through interactions of mutual respect. Both pragmatism and Ethical Space are used throughout this research to refute ideas of complete objectivity and subjectivity, allowing for an intersubjective approach through reflexivity and the acknowledgement of multiple perspectives (Ermine, 2000; Morgan, 2007). 2.2 Study Design This research applies a qualitative mixed methods approach, including three stages. Stage 1 was a literature review of the evolution of Indigenous participation in EIA (chapter 3) and emergence, opportunities, and obstacles of ILIA (chapter 4). The purpose of the literature review was to provide baseline knowledge on EIA and ILIA, and as a precursor to research stages 2 and 3. Stage 2 was case study development, which involved the composition of case studies outlining why and how five Indigenous Nations/groups in Western Canada have taken on an ILIA’s outside of the Crown assessment processes. Stage 3 was analysis of the ILIA case studies and generation of results which achieve the research objectives. Although this research relies upon western research methodologies, I have incorporated principles of Indigenous research methodologies that guide the research process. As suggested by the National Aboriginal History Organization, integrating principles of Indigenous research methodologies can be achieved through standards of ownership, control, access, and possession, which guide decisions regarding the goals and process of research, data collection, and analysis (First Nations Centre, 2007). This was achieved through open dialogue with staff members from each Indigenous Nation/group regarding their case study, assuring that consent had been given to include each case within this research (i.e., ownership), that information included is neither confidential or sensitive (i.e., possession and control), and that findings were accurate in its representation of the Nation’s/group’s beliefs, values, and intent (i.e., access and control). Furthermore, throughout each phase of research, open dialogue with TNG continued to ensure integration of the goals and values of the Tsilhqot’in Nation into the research design 8 (i.e., access and control), which was central to the analysis and presentation of research results both within this thesis, but also in its application. 2.2.1 Literature Review Literature review was used in this research in two ways. First, to describe and understand the current state of knowledge related to EIA and ILIA. Second, as a method to identify key themes of interest through the classification/categorization of information and data within the current state of knowledge (Bowen, 2009). To organize the literature review, I have explored and grouped literature into two broad topics, which have been synthesized into two separate chapters of this thesis. First, is the evolution of Indigenous involvement in EIA (chapter 3), describing the past and present state of Indigenous participation in Canada’s federal and BC’s provincial EIA processes. Chapter 3 is used to build a foundational understanding of why Indigenous Nations/groups have chosen to design and implement an ILIA process. Second, the emergence, opportunities, and obstacles of ILIA (chapter 4), describe some of the uniform qualities of Indigenous leadership in EIA enacted through ILIA. The concepts and themes highlighted in chapter 4 are latter applied to case study analysis and the generation of results that achieve the research objectives of this study (chapter 6). The literature review has been conducted by using both primary and secondary sources, including archival records, press releases, government and non-government documents/guidance material, scholarly documents, books, policy documents, online news articles, legal documents, legislation, and court transcripts. 2.2.2 Case Study Development As noted by Yin (2018), case studies are a useful tool for explaining phenomena, which, in this research, relate to ILIA. The case studies have been designed to identify the variable ways in which Indigenous Nations/groups have created and used their own assessment processes through modes of control which reflect their unique locations, histories, natural resource issues, and governance approaches. Case studies were constructed using a review of published (print and online) primary and secondary (including archival) documents that are publicly available. This includes sources such as independently produced assessment reports by Indigenous Nations/groups, assessment reports by the EAO or CEAA/IAAC, Crown consultation and accommodation reports, collaboration plans, decision statements, and proponent project applications. 9 The case studies include: • The Squamish Nation Process Assessment for Woodfibre LNG • The Stk’emlu’psemc te Secwepemc Nation Assessment Process for KGHM Ajax Mine • The Tsleil-Waututh Nation Assessment for Trans Mountain Pipeline and Tanker Expansion • The Mikisew Cree First Nation Culture and Rights Assessment for the Teck Frontier Project • The Ktunaxa Nation Rights and Interests Assessment (Section C) for the Teck Fording River Operations Swift Coal Mine Expansion Figure 1: ILIA Case Study Indigenous Government Geographic Locations (Map Data- Google Earth Proã, 2021). This map displays the geographic locations of each Indigenous Nation’s main governance office. The locations of each Nations/groups main governance offices are key, as it dictates the set of provincial and federal laws that are applied and the Crown assessment regimes the Nations/groups engage in or work in parallel to. Locations provided are approximate, and do not reflect the territories, multiple communities, or relationships to the land where projects have been proposed of each Nation/group mentioned within the ILIA case studies. Three factors guided the selection of the case studies: geographic location; the availability of required resources; and approach to ILIA. All of the case studies are located in Western Canada (as this thesis focuses on ILIA experiences within the political and geographic location of Western Canada), 10 requiring assessments conducted by the Canadian Environmental Assessment Agency (CEAA)/Impact Assessment Agency of Canada (IAAC), Environmental Assessment Agency (EAO), National Energy Board (NEB), Alberta Energy Regulator (AER), or joint reviews (multiple assessment agencies). More specifically, four of the case studies took place in BC, including the Squamish Nation Process, the Stk’emlu’psemc te Secwepemc Nation Assessment Process, the Tsleil-Waututh Nation Assessment, and the Ktunaxa Nation Rights and Interests Assessment. One case study, the Mikisew Cree First Nation Culture and Rights Assessment, is located in Alberta. Second, case studies were selected based on the willingness of Indigenous Nations/groups to share the results of their assessments (by making them publicly available) and willingness of Nation/group staff members or consultants to provide a case study review, which helped ensure the accuracy of each individual case study mentioned in chapter 5. Third, case studies were selected because of their differing approaches to ILIA (i.e., in terms of process design, cooperative or joint management agreements utilized, etc.). This was an important consideration, as the intent to this research was to uncover the multiple ways in which ILIA has been carried out in order to provide useful information for future ILIA processes. The case study development and analysis generates explanations of the five ILIA processes that achieve the research objectives. In doing so, the research objectives have been re-stated as theoretical (research) proposition to help guide case study design, data collection, and analysis. Three theoretical propositions shape the case study development and analysis: 1) ILIA processes will reflect the unique locations, histories, natural resource issues, and governance approaches of the Indigenous Nations/groups undertaking the assessment; 2) ILIA processes are accompanied by unique data management requirements, administrative support, communication and decision-making tools, and funding mechanisms.; and, 3) ILIA processes have variable degrees of control, including control over how the assessment is conducted, what is being assessed (i.e., types of values), and decision making (including project approval and the associated mitigation, accommodation, and compensation measures). The case studies follow an explanatory case study model, which consists of an accurate description of the facts of a case, its considerations, and conclusions based on credible explanations that are congruent with reality (Mills, Durepos, and Wiebe, 2011; Hancock and Algozzine, 2017; Yin, 2018). The composition of each case study follows a similar chronological structure (i.e., case study logic model). A chronological approach to explaining the context of ILIA was used in the development of the case studies, as the cases were bound by time, and cover the events over time (Yin, 2018). In alignment with the principles of qualitative case study research set out by Yin 2018, this research applied a series of investigative questions in regard to who/where, why, what, how, and outcomes (Table 1). It should be noted that the sequence structure/order and heading titles for each case do not all follow the same exact 11 layout. This was done intentionally to develop a narrative for each ILIA case that explains the series of events which influenced the development, decision making, and administration of each unique process. 1. Who/Where? Introduce the specific Indigenous Nation/group conducting the ILIA, including where the Nation/group is located. 2. What? Explain the specific project being assessed, including project details and the level of Crown EIA triggered. 3. Why? Provide the context, factors, and motivations influencing the development of the ILIA process. 4. How? Explain how the ILIA process was implemented, including the procedural steps and phases used in completing the assessment. 5. Outcomes. Explore the decision-making/consent mechanisms in regard to the ILIA, how the assessment was considered by the Crown and proponents, the influence of the ILIA, and any obstacles/limitations associated with implementing the process. Table 1: Case Study Logic Model The first draft of each case study was provided to a representative (staff member) from each Nation/group who completed an assessment of each case study. Nation representatives reviewed and provided feedback/guidance on accuracy, while also providing additional information needed to fill in any missing gaps. This was an interactive process of clarifying, confirming, and redefining the information included in each case. Review of the case studies was key, providing a means of confirming accuracy and triangulating data. 2.2.3 TNG Engagement The partnership between Tsilhqot’in National Government (TNG) and the CEAR developed before I came to UBC. The scope and topic of this thesis was shaped by the TNG and CEAR partnership. I stepped into the role of the researcher to respond to the research needs identified by TNG. In doing so, engagements with TNG were driven by the overarching goal to support TNG community member, leadership, and staff in their work on ILIA, to reflect their goals, values, and visions of a Tsilhqot’in specific assessment process. A key goal of this study is to provide TNG with useful information which supports the Nations that make up TNG as they consider ILIA process options. This research is not about TNG, but rather for TNG. In developing and completing this research, my first engagement with TNG was in October 2019, when I attended a 2-day Tsilhqot’in Land Use Planning Workshop. The goal of my attendance at the workshop was to become acquainted with Tsilhqot’in community members, leadership, and staff- with no active research component. Following this, I met virtually throughout the UBC academic semesters (from fall 2019 to Spring 2021) with the TNG senior advisor for Tsilhqot’in Nen (Water, Lands, and Resources) to discuss research objectives, progress, and emergent information needs to be included within the literature review and case study development. Engagements with the TNG senior advisor of Tsilhqot’in Nen played a key role in the development of this thesis, guiding research objectives and study design. 12 Once first drafts of the ILIA literature review and case studies were refined and completed, I provided the updated documents to the relevant TNG staff members, who would be involved in the TNG ILIA process building. Following the completion of this project, final analysis and results were generated and provided to TNG for their use. Following the completion of this study, the TNG and CEAR relationship extended beyond my role of the researcher, as the CEAR will continue working with TNG throughout their ILIA process development phases. 2.3 Analysis After each stage of data collection, I conducted a thematic analysis. Thematic analysis is a process of identifying patterns and assembling information into categories (Bowen, 2009). For the use of this study, thematic analysis was chosen as the preferred method of inquiry, as it is an effective means by which the experiences and insights of Indigenous Nations/groups who have conducted ILIA can be examined, while highlighting key similarities and differences between the variable approaches to ILIA (King, 2004). In doing so, this involved a process of identifying units of meaning, assigning appropriate codes, establishing categories, highlighting themes, and then choosing representative examples (Merriam and Tisdell, 2015). Analysis highlighted themes based on frequency of representation and paralleled emergence in the literature review and case studies. Of particular importance to the analysis of case studies, thematic content analysis of the ILIA literature review (chapter 4) helped to identify constructs for the development of a conceptual and analytic framework of inquiry. 2.3.1 Case Study Analysis Case study analysis within this research relied upon three phases. First, through the application of an analytic strategy. As described by Yin (2009; 130) “The first and foremost preferred strategy is to follow the theoretical propositions that led to your case study”. The theoretical propositions guiding case study analysis shaped data collection, by identifying the data which achieve the original research questions (Yin, 2018; Hancock and Algozzine, 2017; Nowell, Norris, White, and Moules, 2017). Second, through the application of an analytical technique, which for this study was explanation building. Yin (2009) presents explanation building as a strategy that works to “explain a phenomenon to stipulate a presumed set of causal links about it, or “how” or “why” something happened” (143). This aligns with the goal of case study development, to generate explanations of the 5 ILIA processes which illustrate the research propositions, thereby achieving the research objectives. First, this was done through the identification of key themes (themes of analysis) within the ILIA literature review (chapter 4). Once themes of analysis were established, thematic codes and corresponding descriptive codes were assigned to the three theoretical propositions (see table 2). This relied on: ‘Within-case analysis’ and ‘cross-case analysis’. I conducted ‘within-case analysis’, which treated each ILIA process (case study) as a stand-13 alone comprehensive case (Merriam and Tisdell, 2015; Yin, 2018;). Thematic coding was used to analyze the content of each case study by organizing information from each individual case according to each theme of analysis. Cross-case analysis was used to identify the similarities and differences of each case through the re-examination and re-coding of data, which built abstractions across the 3 research propositions (Merriam and Tisdell, 2015; Yin, 2018; Nowell, Norris, White, and Moules, 2017). The third and final stage of case study analysis was reporting of results. Building upon the previous stage of analysis (i.e., case study analysis code book), results were reported according to the three theoretical propositions that guide the case study development and inquiry (see table 2). Analysis results were reported through a set of abstractions within and across the ILIA case studies to meet the original research objectives (Yin, 2018; Hancock and Algozzine, 2017). Theoretical Propositions Thematic Codes Descriptive Codes ILIA processes reflect the unique locations, histories, natural resource issues, and governance approaches of the Indigenous Nation/group undertaking the assessment. • Emergence of ILIA • Overcoming the weaknesses of provincial/federal EIA • Assertion and recognition of Indigenous legal systems and political rights • Current State of Territory • History of past development • Connection to the site • Land-use planning/objectives ILIA processes are accompanied by unique data management requirements, administrative support, communication, and decision-making tools, and funding mechanisms. • Resource Requirements • Internal staffing, community, and leadership requirements • External technical support requirements • Access to proponent or Crown funding ILIA processes have variable degrees of control, including control over how the assessment is conducted, what is being assessed (i.e., values), and decision making. • Indigenous Control • Cooperative or joint management agreements • ILIA process model: co-managed, co-developed, or independent • ILIA Influence • Influence on project design, mitigation, and accommodation • Influence on Decision-making (approval or rejection) • Procedural and Legal Obstacles • Lack of legislated opportunities for ILIA • Difficulty integrating ILIA into Crown EIA review • Timelines Table 2: Case Study Analysis Code Book1 1 Thematic codes are applied to each of the theoretical propositions and used as themes of analysis. Descriptive codes correspond to the adjacent thematic codes, as the identifying features within the case studies related to the themes of analysis. 14 2.4 Ethical Considerations The UBC Behavioral Research Ethics Board determined this research did not require ethics approval. Throughout each research stage, individuals themselves were not the focus of this research, as individual or personal opinions were not the topic of this study. Instead, this research was focused on ILIA process design and implementation. Any information collected beyond publicly available documents, was done so strictly with authorized staff members who released information and data within the ordinary course of their employment and professional practices. For example, case study review was done by representatives from each Indigenous Nation/group in each case and engagements with TNG was done through staff. TNG and CEAR also have a Memorandum of Understanding (MoU) which is a formal agreement guiding and framing collaborative work, the sharing of data and information, and a protocol for the use and stewardship of any Indigenous Knowledge shared or used during research. The TNG-CEAR MOU helps address the history of institutional misappropriation of Indigenous-knowledge and worldviews for the advancement of western knowledge, by focusing on the production of knowledge which strives to empower TNG. Although ethics approval was not required, there are a number of ethical considerations that should be discussed. This includes my ‘reflexivity and positionality’ as the researcher, considerations of validity and reliability, and research limitations. The following sections of this chapter will address these considerations. 2.4.1 Reflexivity and Positionality Within the context of reflexivity and positionality, it is important that I reflect on my identity and perspectives that have been shaped by colonial discourse and action. I am of settler decent, growing up in Victoria, British Columbia, Canada- the unceded territories of the Lekweungen and WSÁNEĆ peoples. In pursuit of my studies, I have relocated to Kelowna, British Columbia, Canada, where I currently live, work, and play on the unceded territories of the Sylix people. I respectfully acknowledge that the Lekweungen, WSÁNEĆ, and Sylix people’s cultural, spiritual, and physical relationships with the land continue to the present. I have and continue to benefit significantly from the appropriation of Indigenous lands into the hands of settlers in the form of private property and Crown land. With these territorial acknowledgments, I situate myself within the history and legacy of colonialism. I am self-aware that my identity and situated perspectives have been and continue to be shaped by the history and legacy of colonialism. The next area of importance is addressing me, positionally, as the researcher, and if not properly addressed, the power imbalances that can follow (Merriam and Tisdell, 2015). It is imperative that I acknowledge that I am not conducting research on TNG, but rather with TNG. I say this by 15 acknowledging the challenges inherent to academic research involving Indigenous peoples, as it is rooted in both imperialism and colonialism (Smith, 2012). As the researcher, I recognize this and have undertaken a process of self-reflection to limit the infiltration of my own cultural biases into any work I complete involving ILIA. As such I have used a participatory research methodology when collaborating with TNG, as it facilitated the breaking down of barriers related to insider and outsider by including key informants (i.e., TNG staff) throughout the research process (Merriam and Tisdell, 2015). 2.4.2 Validity and Consistency Yin (2018) emphasizes the importance of accounting for construct, internal, and external validity when conducting case study research. Construct validity refers to identifying correct operational measures for the concepts and phenomenon being studied (Yin, 2018; Stewart, 2012). Accounting for construct validity was accomplished through the use of multiple sources of evidence, thereby confirming the correct operational measures and concepts for research on ILIA (Yin, 2018). For example, the development and generation of results regarding the ILIA case studies were informed by the concepts and rationales described in the ILIA literature review, ILIA source documents, and confirmed through member checks from staff at each Indigenous Nation/group mentioned in each case. Internal validity relates to the ability of the case studies to establish a causal relationship, where certain conditions lead to reactive actions (Yin, 2018; Merriam and Tisdell, 2015). The composition of the case studies accounted for this by using a logic model (see table 1), which asks who/where, what, why, how and outcomes investigative questions. The logic model helped the formulation of case study narratives which followed the same explanation building approach. External validity refers to identification of the domain where a case study’s findings can be generalized (Yin, 2018). Generalization occurred by establishing a number of theoretical propositions (Yin, 2018), where the data collected was applied to addressing the theoretical propositions of ILIA. Furthermore, the generalization of the theoretical propositions was achieved through the use of multiple case study design, where cross-case analysis illustrated a series of commonalities (i.e., themes) between the ILIA case studies (Stewart, 2012). When considering the validity in this research, it is important to account for the consistency of results. Consistency is achieved when research results are true to the data collected (Merriam and Tisdell, 2015). In this research, consistency was ensured through the transparency of research methodology. This includes explanations of case study design (following the case study logic model), methods of analysis, triangulation, limitations, as well as through feedback and discussions with the research team regarding methods and results (Hancock and Algozzine, 2017). A key strength of this research approach is its participatory aspect. Throughout the process of data collection and analysis, I have engaged in open dialogue through member checking with a staff 16 member of each Nation/group discussed in each case and TNG staff regarding case study design and results. The benefits of this are twofold. First, it has guided the direction of my research in a way that the Indigenous Nations/groups involved see as appropriate. Second, it has helped generate findings, which are representative of intent, meaning, and experiences associated with ILIA, through respondent validation and triangulation (Merriam and Tisdell, 2015; Hancock and Algozzine, 2017). Data triangulation is used through multiple sources of data collection (i.e., literature review material, multiple sources of publicly available information used in the development of case studies, and staff review) to compare and cross check information (Merriam and Tisdell, 2015; Hancock and Algozzine, 2017). 2.4.3 Limitations There are inherent limitations to the approach used in this research. Case study research has been criticized for being less rigorous when compared to other research methodologies, sometimes lacking transparency and allowing for ambiguous evidence to influence the direction of findings and conclusions (Hodkinson and Hodkinson, 2001; Yin, 2018). To account for and ensure academic rigor and transparency, the methods for case study development and analysis applied a systematic procedure. For example, when developing each case study, a ‘logic model’ was applied to investigate a series of exploratory questions, which guided the data collection procedure (see table 1). For case study analysis, key themes were first identified through the literature review and recorded within a ‘code book’, which maintained a consistent chain of evidence (see table 2). As 5 ILIA case studies included in this research, the number could be seen relatively small, and therefore, less rigorous. This was overcome by choosing case studies from multiple Nations/groups located across Western Canada and project types being reviewed, providing detail on variable approaches to ILIA that have been utilized to date. It should be noted, however, that the development of case studies was based on ILIA processes which were conducted prior to the implementation of the new federal IAA and BC EAA. As such, ILIA as a part of the new legislation was not included in this research. This leaves a knowledge gap of how the research objectives can be applied to ILIA and EIA reviews under the new federal and BC EIA Acts, which will be an important objective of future research. In the development and analysis of the case studies, it was important to be mindful of the author’s biases and intentions when reviewing documents (Hancock and Algozzine, 2017). For instance, project applications (used as a component of the case study development) are produced by, or on behalf-of the proponents, who would of course support a project’s approval and large-scale natural resource development in general (Peletz-Bohbot, 2019). Similarly, the Indigenous consultation reports are produced by the Crown, which summarizes Indigenous consultations, including the adequacy of consultation, reflecting what the Crown believes should be included to prove that the duty to consult has 17 been fulfilled. As such, it was necessary to be aware of document biases, as well as my own, throughout the review (Hancock and Algozzine, 2017). This was mitigated by triangulating data through multiple sources of evidence and case study review by representatives from the Indigenous Nations/groups (Merriam and Tisdell, 2015; Hancock and Algozzine, 2017). As this research focused on ILIA processes that were implemented prior to the updated BC Environmental Assessment Act (EAA) and federal Impact Assessment Act (IAA) in 2018/19, it is limited to the legal and procedural context of past BC and federal EIA laws. As such, this is an important consideration for future research, as the implementation of ILIA in coordination with the BC EAA and federal IAA (as discussed later in section 6.6.2) must still be evaluated to provide a full and clear understanding of the opportunities and challenges associated with Indigenous involvement in updated Crown EIA regimes. While an evaluation of the new BC and federal EIA regimes is not included within this research, the lessons and findings are directly applicable for Indigenous Nations/groups who are strategizing and working to design and implement an ILIA in the following ways. First, the results highlighting how ILIA is implemented to reflect the unique locations, histories, natural resource issues, and governance approaches of Indigenous Nations/groups undertaking assessments. It provides illustrations of how ILIA can be designed and implemented to reflect the key interests and values of the Indigenous Nation/group undertaking the assessment. Second, the findings describe the information, data management and administrative support requirements, communication and decision-making tools, and funding mechanisms or needs for ILIA providing useful information regarding the resources (i.e., internal capacity and financial) required to undertake an ILIA. Lastly, the different degrees or levels of control achieved through ILIA described provides key information, highlighting strategies, mechanisms, tools, and the key areas of project-based assessments that can be utilized to assert an increased level of control over how natural resources are managed by maximizing the influence of ILIA. 18 Chapter 3: Evolution of Indigenous Involvement in Environmental Impact Assessment This chapter outlines the past and present state of Indigenous involvement in Canada’s federal and BC’s provincial Environmental Impact Assessment (EIA) processes. The chapter is focused on material describing shifts in Indigenous participation in EIA, shaping the new federal and BC EIA laws. It emphasizes the current state of EIA and Indigenous consultation processes, which is critical given that this research is designed to explore new opportunities for Indigenous-led impact assessment (ILIA) existing parallel to Crown EIA and consultation processes. The first part of this chapter traces the evolution of Indigenous involvement in EIA federally and in BC. This begins with a brief description of EIA, followed by a number of influential court decisions which have shaped how Indigenous considerations have been integrated into EIA including the duty to consult, how the duty to consult is executed through EIA, and the procedural elements of Indigenous participation in EIA. The second part provides a critical examination of the duty to consult, including the weaknesses of crown consultation initiated through EIA, and recognition of the duty to consult as a colonial, Crown driven process. The third section explains the progression of Indigenous-Crown relations and the changing narratives and discourses in these relations. The last section outlines recent federal and BC EIA reform, describing the new federal and BC EIA processes, including how each process, and the associated phases, plan to facilitate Indigenous participation. This section concludes by introducing the new opportunities for ILIA included in each updated process. 3.1 Environmental Impact Assessment Environmental Assessment or Impact Assessment (terminology dependent on jurisdiction) will be referred to as Environmental Impact Assessment (EIA) for the purposes of this thesis. EIA is an approval process for large-scale natural resource activities and development projects (Hanna, 2016). Throughout Canadian jurisdictions, in situations where projects are proposed to governments by industry proponents, depending on the scale of the proposal, the project is required to undergo an EIA (Hanna, 2016). As such, EIA works to collect and analyze information on the potential impacts of project proposals, which may be used in the design of mitigation measures and to guide decisions of how and if a project should proceed (Hanna, 2016). The steps of an EIA are part of an analytic process which intends to facilitate informed decision-making by incorporating considerations of ecological sustainability, economic stability, and the approval of projects which reflect public interest (Hanna, 2016; Hanna and Noble, 2015). Although the steps of EIA processes incorporated into federal, provincial, and territorial EIA processes are similar, there is some variance in the structure of, and number of steps taken in, the completion of separate EIA processes (Hanna, 2016). 19 The roots of EIA in Canada began in the 1970’s, evolving throughout the 1980’s, with the introduction of the first federal EIA legislation- The Canadian Environmental Assessment Act, 1992 (Chamberlain and Hail, 2016; Hanna, 2016). Since then, EIA has become a key component of environmental management, and is legislated federally, provincially, and territorially. There are fourteen EIA processes in Canada; one in each of the 10 provinces, in each of the 3 territories, and also one overall federal process. The federal process applies across the country to projects and activities that fall under federal areas of responsibility, while the provinces and territories each have their own unique EIA processes. These sometimes intersect with areas of federal jurisdiction, meaning that project may require both a federal and provincial EIA. In British Columbia, the first EIA legislation was introduced in 1994, with the establishment of the British Columbia Environmental Assessment Act, 1994 (Haddock, 2010). Building upon the introductions of the Canadian Environmental Assessment Act, 1992, and the British Columbia Environmental Assessment Act, 1994, both EIA processes have gone through a number of legislated updates. Federally, in 2012, the Canadian Environmental Assessment Act, 1992, was repealed and the Canadian Environmental Assessment Act, 2012 was introduced (IAAC, 2020b; IAAC, 2020c). In British Columbia, in 2002, the 1994 Act was repealed and replaced by the British Columbia Environmental Assessment Act, 2002 (Haddock, 2010). Recently, both Canada and BC updated their EIA laws with the introduction of the federal Impact Assessment Act (IAA) and British Columbia’s Environmental Assessment Act, (EAA) 2018. Federally and in BC, EIA is legally required when projects exceed specific thresholds outlined by the federal ‘Physical Activities Regulations’, BC’s ‘Reviewable Projects Regulation’, or designated as reviewable by a Minister (SOR/2019-285, 2019; BC Reg. 243, 2019). Once an EIA review is triggered, the legal framework guiding the federal EIA is the IAA and the responsible authority throughout the completion of the federal EIA process is the Impact Assessment Agency of Canada (IAAC) (IAAC, 2020b). In BC, the legal framework for guiding the provincial EIA is the EAA, 2018 and the responsible authority throughout the completion of BC’s EIA process is the Environmental Assessment Office (EAO) (EAO, 2020b). In circumstances where both a federal and provincial EIA is required, both Acts include provisions for cooperation and coordination through a joint review, where the federal government will collaborate with another level of government (i.e., provincial) to complete a single assessment (EAO, 2020b; IAAC, 2020a). In some circumstances, there are provisions for substitution of the federal process for the BC process, or vice versa. 20 3.1.1 Indigenous Consultation and EIA Section 35 of Canada’s Constitution 1982, affirms and recognizes of Aboriginal2 rights as a part of Canadian constitutional law. This provided new opportunities for dialogue between Indigenous peoples and the Canadian Crown, requiring communication of potential adverse effects Crown actions may have on Aboriginal rights and title (Government of Canada, 1982). Aboriginal rights recognized by the Crown include: Rights to the land; Rights to subsistence resources and activities; The right to self-determination and self-government; The right to practice one’s own culture and customs including language and religion (cultural integrity); The right to enter into treaties (Godlewska and Webber, 2007; Wolf Collar, 2020). Section 35 of Canada’s Constitution affirms the Government of Canada’s formal commitment to reconciliation (Government of Canada, 2019). As such, this provides the basis for Indigenous participation in EIA as large-scale development projects pose potential impacts on Aboriginal rights. Section 35 of the Constitution Act, 1982 provided the basis for six influential judicial decisions (among others) that have shaped Indigenous-Crown relations and Indigenous involvement in EIA: • R. v. Sparrow, 1990 • Delgamukkw v. British Columbia, 1997 • Haida v. British Columbia (Minister of Forests), 2004 • Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 • Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 • Tsilhqot’in Nation v. British Columbia, 2014 3.1.1.1 R. v. Sparrow, 1990 In 1990, the Supreme Court of Canada (SCC) made a precedent-setting decision which set out the test for determining when governmental infringement on Aboriginal rights was justified, providing that these rights existed at the time of the Canadian Constitution, 1982. This is known as the “Sparrow Test”. The Sparrow Test first seeks to identify if the Crown has interfered with the exercise of existing Aboriginal rights to such an extent that the rights has been infringed upon (Newman, 2014; Sparrow, 1990). Next, the Sparrow Test outlines what justifies a permissible Crown infringement upon an Aboriginal right. As explained by Salomons and Hanson (2009), the Crown must demonstrate that: 2 For the use in this chapter, the term ‘Aboriginal’ will be used when discussing the rights designated by Section 35 of the Canadian Constitution Act 1982, as this is the terminology used within the Act itself. Additionally, the term Aboriginal and First Nations is used throughout this thesis to describe Indigenous peoples in circumstances where the federal or BC governments have used the term Aboriginal or First Nations within the sourced documents. 21 • “The infringement serves a “valid legislative objective” (Sparrow, 1990). The court suggested a valid legislative objective would be conservation of natural resources, in which Indigenous interests would come second only to that”; • “There has been as little infringement as possible in order to effect the desired result” (Sparrow, 1990); • Indigenous Nations/groups were consulted, and fair compensation was provided (Sparrow, 1990). 3.1.1.2 Delgamuukw v. British Columbia, 1997 In 1997, the Supreme Court of Canada confirmed that Aboriginal title extends beyond the right to use the land (i.e., through hunting, fishing, and gathering), and that title incorporates Aboriginal jurisdiction to the land base which has been traditionally used (Newman, 2014). This was a key case in framing Indigenous-Crown relations. It established that the Crown is required to consult with Indigenous Nations/groups if rights to use the land or title will be affected and should be compensated as a result (Newman, 2014). The Delgamuukw v. British Columbia decision in 1997 shaped Indigenous involvement in resource development (including the EIA process), as it formally recognized that Indigenous Nations/groups have legitimate claims to title and ownership of their traditional territories, and therefore, legitimate interests in the encroachment of development in their territories (Chadwick, 2013; Newman, 2014). 3.1.1.3 Haida v. British Columbia (Minister of Forests), 2004 In 2004, the Haida Nation challenged the transfer of a forestry license from the British Columbia (BC) provincial government to a private company called Weyerhaeuser (Thomson, 2015). The Haida Nation claimed that they had not been consulted, due to the Crown’s denial of ancestral land rights (Haida, 2004; Thomson, 2015). The courts found that despite not having treaty rights or proven Aboriginal rights, the land claims made by the Haida Nation triggered the duty to consult (Thomson, 2015). Therefore, by unilaterally proceeding with the license transfer, BC had failed to adequately consult and accommodate the Haida Nation in relation to Aboriginal rights and title and their ancestral land claims (Thomson, 2015). A final result of the Haida decision was the creation of a ‘sliding scale’ test, which requires the depth of consultation to be proportionate to the strength of the Indigenous community’s rights claims and the impact of Crown action on those claims weighs claims based on their impacts on Aboriginal rights and title (Thomson, 2015). The sliding scale test determines that where prima facie claims are strong, and impacts on Aboriginal rights and title are significant, the Crown must also accommodate Indigenous peoples (Haida, 2004; Thomson, 2015; Newman, 2014). 22 3.1.1.4 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 In conjunction with the Haida case, in 2004 the Taku River First Nation claimed that British Columbia had approved the construction of a resource road through their territory without adequate consultation (Taku River, 2004; Thomson, 2015). This case concluded that as long as meaningful consultation has taken place between the Crown and Indigenous Nations/groups, agreements are not required in regard to consultation or accommodation measures (Thomson, 2015). In other words, the Crown can rely on existing assessment/regulatory schemes to fulfill the duty to consult, so long as those existing schemes allow the Crown to meet the constitutional minimum requirements. The Court held that by robustly involving the Taku River Tlingit First Nation in the EIA process, the duty to consult had been adequately discharged (Taku River, 2004; Thomson, 2015). This was significant, as it confirmed that EIA can be an adequate framework for fulfilling the Crowns consultation obligations (Craik, 2016). 3.1.1.5 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 In the fifth case of note, the Mikisew Cree First Nation made a claim that the approval for the construction of a winter road through Treaty 8 territory infringed upon their traditional activities (Mikisew Cree, 2005; Thomson, 2015). The Supreme Court ruled that the duty to consult is applicable in this case and there should have been notification and engagement with the Mikisew Cree before the approval for road construction. Most notably, this meant that infringement on treaty rights also require adequate consultation and that consultation must be specific to the Indigenous community; the Crown cannot rely on generic public participation mechanisms to fulfill its duty (Sterling and Landman, 2009; Thomson, 2015). 3.1.1.6 Tsilhqot’in Nation v. British Columbia, 2014 In 2014, the Supreme Court of Canada declared Aboriginal title to a portion of the Tsilhqot’in Nation’s traditional and unceded territory (Tsilhqot’in Nation, 2014). This was the first time in Canadian history this had occurred. The judgment set a clear test for establishing Aboriginal title in traditional Indigenous territories (Tsilhqot’in Nation, 2014). Significantly, the Court observed that in territories where Aboriginal title is claimed but not yet proven, it would be prudent to secure the consent of the Indigenous Nation through the consultation process. This is because Aboriginal title entails the right to control the land, which in turn means that projects approved without consent may later need to be cancelled if title is proven and the project is unjustifiably infringing (Bruce and Hume, 2015). 23 3.1.2 The Duty to Consult As a result of the court cases outlined above (and indeed others), the doctrine of ‘the duty to consult, and, where appropriate, accommodate’ (duty to consult) has been continually developed (Ariss, Fraser, and Somani, 2017). The doctrine of the duty to consult requires the Crown to consult with Indigenous peoples when contemplating decisions/actions that have the potential to negatively impact Aboriginal rights, title, and treaty rights (Land, 2014). We see the duty to consult arise when “1) the Crown has knowledge, actual or constructive, of potential Aboriginal claims or rights; 2) the Crown proposes conduct or decision; and 3) that conduct, or decision may have an adverse impact on the Aboriginal claims or right” (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010). When triggered, the overarching task of the duty to consult is to “listen to the views and concerns of affected Indigenous groups and, where necessary and possible, modify the action or decision to avoid unlawful infringement of those rights” (Brideau, 2019; 1). With the duty to consult, the Crown is able to determine how consultation will take place (Chadwick, 2006). The Courts have set out the minimum requirements for consultation that the Crown must achieve when contemplating actions which may have adverse effects on Aboriginal or treaty rights (Newman, 2014). This provides provincial and federal governments with flexibility in the processes and frameworks they choose to use in discharging the duty to consult, so long as the minimum level of constitutional requirements have been achieved (Chadwick, 2006; Newman, 2014). Therefore, how the duty to consult is carried out is adapted to reflect the specific Aboriginal and treaty rights potentially impacted by the Crown conduct under contemplation (Newman, 2014; Stacey, 2020). This is the case as “[i]t is not the courts’ mandate to create a blanket scheme for how this duty should be carried out on the ground nor are the courts able to make appropriate decisions about each province’s circumstances that would need to be considered” (Chadwick, 2006; 20). Indigenous and Northern Affairs Canada has a set of best practice guidelines for government departments and agencies that are required to carry out the duty to consult (see table 3). In addition, the Province of British Columbia provides Interim Procedures for Meeting Legal Obligations When Consulting First Nations (2010) (see table 4). Each set of guidelines are informed by Canada and BC’s understandings of the legal parameters of the duty and provide policy-based guidance to assist officials and proponents in their efforts to effectively incorporate consultations and, where appropriate, accommodation into government/proponent-initiated activities and processes (Indigenous and Northern Affairs Canada, 2011; Province of British Columbia, 2010). As illustrated in table 3, the federal guidelines for the consultation process are largely Crown driven, with little to no collaboration with Indigenous Nations/groups in deciding how consultation is carried out. 24 Table 3 (continued): Duty to consult phases outlined by Indigenous and Northern Affairs Canada (Indigenous and Northern Affairs Canada, 2011) Phase 1: Preparation Step 1: Identify First Nations that have Aboriginal Interests within the area of proposed government activity. Step 2: Identify treaties or process agreement(s) which may identify agreed upon processes for consulting. Step 3: Review readily available information to gain a general understanding of the nature of Aboriginal Interests; the potential impacts the proposed decision may have on Aboriginal Interests; and the scope of project or decisions. Step 4: Consider consultation levels in terms of the strength of the case for the claimed aboriginal rights (including title) that may be affected; and, the potential for impacts on Aboriginal Interests. Step 5: Decide who will engage First Nations. Here, the procedural steps of consulting may be undertaken by the ministry or agency proposing to make a decision; an interagency consultation team; or, the proponent. Phase 2: Engagement Step 1: Provide information and seek input reviewing information and considering an anticipated level of consultation through an introductory letter or meeting with the First Nation. Step 2: Engage First Nation(s) to address and accommodate their interests where required. Step 3: Complete the consultation at the appropriate level. Phase 3: Accommodation Step 1: Assess consultation and need to accommodate. Step 2: Identify accommodation option(s) based on the kind and/or strength of the Aboriginal Interests being impacted; and the degree of impact on Aboriginal Interests. Step 3: Propose accommodation measure and attempt to reach agreement. Phase 4: Decision and Follow-Up Step 1: Assess consultation and accommodation record. If analysis suggests that the consultation and accommodation effort has been sufficient, proceed with making a decision on the authorization request. Step 2: Provide decision to First Nation. For middle to deep consultation processes, consider articulating the reasons for decision, including what accommodation, if any, has been deemed appropriate. Step 3: Ensure implementation of accommodations. Here, the decision maker is responsible for ensuring accommodations are implemented. Table 4: Province of British Columbia Updated Procedures for Meeting Legal Obligations When Consulting First Nations (Province of British Columbia, 2010) Phase 1: Pre-Consultation Analysis and Planning Step 1: Describe and ‘map out’ the proposed Crown conduct. Step 2: Identify potential adverse impacts of Crown conduct. Step 3: Identify which Aboriginal groups are in the area of the proposed Crown conduct and ascertain their respective potential or established Aboriginal or Treaty rights and related interests. Step 4: Make an initial determination as to whether there is a duty to consult. Step 5: Assess the scope of the duty to consult and, where appropriate, accommodate. Step 6: Design the form and content of the consultation process. Step 7: Ensure that a records management and filing system is in place. Phase 2: Crown Consultation Process Step 1: Implement the consultation process. Step 2: Document, catalogue, and store all Crown consultation meeting records and other correspondence. Step 3: Develop and maintain an issues management tracking table. Step 4: Adjust the consultation and accommodation process, as necessary. Phase 3: Accommodation Step 1: Gather and analyze information supporting the basis for accommodation. Step 2: Identify possible accommodation measures and options. Step 3: Select appropriate accommodation options. Step 4: Communicate and document selected accommodation measures. Phase 4: Implementation, Monitoring, and Follow-Up Step 1: Communicate and implement the decision(s). Step 2: Monitor and follow-up. Step 3: Evaluate the consultation process. 25 3.1.3 Executing the Crown’s Duty to Consult through EIA The Taku River case confirmed that existing legislated processes can be appropriate for meeting the Crowns duty to consult, including EIA (Government of Canada, 2011; Thomson, 2015). In cases involving the development of large-scale natural resource projects, both federal and provincial governments will use and rely upon EIA to execute the duty to consult, as the EIA process has been identified by the Crown as an appropriate means of measuring and assessing potential impacts on Indigenous rights and title and treaty rights (CEAA, 2014). Thereby, avoiding unnecessary duplication. 3 It should be noted however that many Indigenous Nations/groups have argued that EIA is an inadequate process for discharging the duty to consult, which will be addressed latter in Section 3.2. As explained by Craik 2016, “There is a pragmatic attractiveness to using EIA processes to implement the duty to consult where the activity in question is subject to EIA, since much of the information and analysis of the environmental effects of a proposed activity will be required to assess the impacts of that same activity on Aboriginal rights and interests. Integrating these processes is efficient since it minimizes the need for multiple consultations. As well, because consultations in one sphere may impact the scope of the activity under consideration in the other sphere – for example, consultations within the EIA may result in project modifications that would have implications for the duty to consult Aboriginal people – the processes of consultation under the duty to consult and in EIA are to some degree inseparable” (Craik, 2016; 1). With these apparent efficiencies, the duty to consult is integrated into EIA in the following ways (Chadwick, 2013; Craik, 2016): • The Crown relies on the EIA process to collect information on the potential impacts on Aboriginal and treaty rights, including information that helps inform their understanding of the magnitude of those potential impacts. • There are natural overlaps between environmental effects of projects on Aboriginal people and impacts on Aboriginal and treaty rights. EIA assesses how projects will affect the natural landscape and environment; therefore, EIA is well adapted for examining how Aboriginal and Treaty rights exercised within the environment may be affected by the project. • The EIA review process is used by the Crown to gather information and hear different perspectives in regard to how projects may adversely impact Aboriginal and Treaty rights. 3 Although the Crown relies upon EIA to execute the duty to consult, under circumstances where the EIA process does not adequately discharge the duty to consult, the Crown is required to provide additional opportunities for consultation. This is communicated in Clyde River (Hamlet) v. Petroleum Geo-Services Inc, 2017, which states “where the regulatory processes being relied upon does not achieve adequate consultation or accommodation, the Crown must take further measures” (Para 3). This is again confirmed through Chippewas of the Thames First Nation v. Enbridge Pipeline Inc, 2017, which states “if the agency’s [NEB] statutory powers are insufficient in the circumstances or if the agency does not provide adequate consultation and accommodation, the Crown must provide further avenues for meaningful consultation and accommodation prior to project approval” (Para 3). 26 • Indigenous knowledge (i.e., traditional ecological knowledge) is expected to be considered by both the proponents and Review Panel when completing analysis, conclusions, and making recommendations related to project effects and proposing mitigation measures. • The Crown, when appropriate, will integrate mitigation measures for adverse environmental effects proposed during the EIA process to accommodate for impacts on Aboriginal rights that may arise. 3.1.4 Procedural Elements of Indigenous Participation in Provincial and Federal EIA For both the BC and federal EIA processes, the evaluation of the anticipated effects of project proposals is largely proponent driven, as proponents are largely responsible for the preparation of technical studies that agencies use in the assessment of adverse effects and the potential costs/benefits associated with project approval (Haddock, 2010). As such, it has become common practice for both provincial and federal government agencies to delegate the procedural elements of consultation obligations to industry proponents (Andrews, 2015), a practice endorsed by the Supreme Court of Canada in Haida (Para 53). This often involves producing studies that address the potential impacts on the rights and interests of Indigenous communities (Andrews, 2015). As is noted in the BC EAO’s ‘Guide to Involving Proponents when Consulting First Nations in the Environmental Assessment Process’ (2013), the key objectives of consultation with First Nations during an EIA under the 2002 EAA were: • “Determining the Aboriginal Interests that may be impacted by a proposed project. Where appropriate, Aboriginal Interests should be linked to the Valued Components being assessed in an EA”; • “Developing an information-gathering plan to identify the information needed to assess potential impacts to Aboriginal Interests”; • “Exchanging information with First Nations regarding Aboriginal Interests and potential impacts of the proposed project to those Aboriginal Interests in a way that is consistent with any Aboriginal consultation plans that may be required under a Section 11 Order (e.g., community meetings, discussion with Chief and Council, etc.)”; • “Ensuring that First Nations understand the opportunities for consultation available to them throughout an EA so that potential impacts to Aboriginal Interests are adequately assessed and mitigated or otherwise addressed”; • “Responding to feedback received from First Nations on potential impacts to Aboriginal Interests”; 27 • “Developing solutions with First Nations regarding ways to avoid or reduce potential impacts to Aboriginal Interests” (EAO, 2013; 5). As illustrated above, proponents have had considerable influence over the extent to which Indigenous Nations/groups are included throughout the various stages of the EAA 2002 assessment process (Andrews, 2015). The EAO also outlines expectations of proponents in relation to the Crown’s duty to consult, which may include directing proponents to: • “Identify Aboriginal Interests that may be affected by a proposed project”; • “Provide First Nations with all relevant information about the proposed project”; • “Involve First Nations in relevant studies including, for example, archaeological field work”; • “Incorporate community and traditional knowledge, where appropriate, into baseline studies”; • “Gather information about how Aboriginal Interests may be impacted by a proposed project”; • “Identify and develop Accommodation measures to prevent, mitigate or otherwise address potential effects on Aboriginal Interests”; • “Document and report to EAO the results of the proponent’s consultation with First Nations at specific stages of the EA” (EAO, 2013; 7). As set out by the ‘sliding scale’ test, which is informed by Haida v. British Columbia (Minister of Forests), 2004, the nature and strength of the Aboriginal claim will vary depending on the particular activity being reviewed, therefore creating variance (i.e., a spectrum) in the extent to which the duty to consult is carried out. As explained by Craik (2016), “at one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the infringement minor. In such cases the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. At the other end of the spectrum lie cases 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 on non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the 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” (Craik, 2016). As a result, the specific procedural requirements of Indigenous involvement in EIA’s are variable and responsive to the potential level of environmental disturbance and associated claims to Aboriginal rights and title. This can range from cursory reports prepared solely by proponents or assessment agencies to involvement throughout each step of the EIA process, including participation in EIA working groups or technical advisory committees (Craik, 2016). 28 The Taku River Tlingit First Nation case is an example of the procedural elements of Indigenous participation in EIA, where the duty to consult was considered adequately fulfilled through a provincial EIA process (Craik, 2016). In this case, the duty to consult was determined as requiring consultation consistent with a strong prima facie claim made by Taku River Tlingit First Nation (TRTFN) for the effects of Redfern Resources Limited’s project proposal to reopen the Telequah Chief mine. The proposal involved the construction of an industrial highway that would have cut directly through TRTFN asserted territories (Pape and Salter, 2004). The project required an EIA review under the BC EAA, 2002. For the required elements of the EIA, TRTFN was provided financial assistance (i.e., participant funding) to facilitate their participation and participated in the following features of the review: • Representation on the Project Committee (which provides direction on the review process, including the technical aspects of the review); • Through meetings with officials and consultants in preparing the EIA to discuss TRTFN concerns; • Opportunities for TRTFN to include their concerns in the Project Report; inclusion of mitigation strategies to address TRTFN’s concerns (which were further adopted into the project approval conditions); • Opportunities for TRTFN’s concerns to be addressed through the permitting process of the project (Taku River First Nation v. British Columbia, 2004; Craik, 2016). As explained by Craik (2016), “the key elements of the EA process were that TRTFN was provided with notice, full disclosure of the project details and impacts, TRTFN was given ample opportunity to understand how their interests were affected, and to voice their concerns and have those concerns responded to meaningfully. The presence of mitigation measures that sought to address TRTFN’s concerns was understood by the court as a form of accommodation” (Craik, 2016). 3.2 Critique of Crown Consultation Processes There are weaknesses in the Crown consultation processes, which have resulted in inadequate consideration of Indigenous interests and concerns when conducting EIA reviews. This is significant, as both the BC and federal governments have committed to reconciliation and UNDRIP, but it has been argued that previous EIA processes (BC 2002 EAA and federal CEAA 2012) served to obstruct and erode relationships with Indigenous Nations/groups rather than reconcile them (see Grewing and Cox, 2017). This section helps illustrate why critics have long called for the federal and provincial governments to reform their approach to consultation and accommodation. Such reforms should include: • Explicitly mandate a goal of EIA to advance reconciliation with Indigenous peoples by creating more meaningful opportunities for Indigenous contributions on project design, assessment procedures, mitigation measures, and decision making (Haddock, 2010; Rutherford, 2016); 29 • Provide adequate funding for Indigenous participation throughout the entire EIA process (Haddock, 2010); and, • Align with the guidelines set out by the United Nations Declaration on the Rights of Indigenous Peoples (Haddock 2010; WCEL, 2018). 3.2.1 The Weaknesses of Crown Consultation through EIA Processes While there is a pragmatic attractiveness to using EIA processes to implement the duty to consult, it comes with a number of challenges. In reviewing relevant literature, five key challenges of consultation through EIA have been identified: 1) The scope of EIA is too narrow (Gibson, Galbraith, and MacDonald, 2016; Booth and Skelton, 2010; Weitzner, 2008; Craik, 2016; Haddock, 2011). 2) EIA fails to account for the self-determining rights of Indigenous peoples, Nations, and groups (Bruce and Hume, 2015; McCreary and Milligan, 2013; Booth and Skelton 2011; O’Fairchaellaigh, 2007). 3) Inadequate funding and timelines to support meaningful and robust Indigenous participation in EIA (Gibson et al., 2016; O’Fairchaellaigh, 2007; Haddock, 2010; O’Fairchaellaigh and MacDonald, 2020). 4) Lack of participation in decision-making (Bruce and Hume 2015; Ritchie, 2013); and, 5) Substitution and inconsistencies between federal and provincial processes (Smith, Johnston, and Askew, 2018; Haddock, 2011). First, the scope of provincial/federal EIA has been criticized for narrowly defining what constitutes an impact and the time and space over which impacts are assessed (O’Faircheallaigh and MacDonald, 2020; Kapell, 2018). The practice of EIA has often focused on the biophysical impacts and components of projects (which can be objectively measured, for example, waste rock), while ignoring Indigenous components such as Indigenous knowledge (IK) and cultural values (which can be seen as subjective- and therefore, harder to measure, for example, locations of spiritual significance) (Bruce and Hume, 2015). In addition, EIA has also been criticized for overlooking cumulative effects (CE) (those that happen over time and space) (Kapell, 2018). In terms of the time scale by which impacts are considered, provincial/federal EIA generally focuses on avoiding or mitigating the negative impacts which would occur moving forward, rather than looking at the burden of existing impacts (O’Faircheallaigh and MacDonald, 2020). That is, provincial/federal EIA has generally failed to consider the cumulative effects of past development on Indigenous rights and title, by not integrating pre-impact baselines into assessment methodologies (O’Faircheallaigh and MacDonald, 2020). This is problematic, as it exposes Indigenous Nations/groups to the ‘cumulative effects of consultation’ (as they happen over time and 30 space), leading to the eventual erosion of Indigenous title and rights due to “diminishing the land base upon which many of their rights and practices rely” (Ritchie, 2013). Likewise, provincial/federal EIA has overlooked the spatial effects which cumulatively impact Indigenous rights and title (Kapell, 2018). For example, while a healthy fish population might still remain following project approval, if there are industrial activities which limit access to the fish populations (active resource roads, mining leases, etc.), the significance of a healthy fish population is negated through the navigational barriers which limit access (Bruce and Hume, 2015). Second, provincial/federal EIA has been criticized for failing to account for the self-determining rights of Indigenous peoples, Nations, and groups through oversimplifications of Indigenous rights and title (Bruce and Hume, 2015). Government consultations during EIA often uses a ‘reductionist approach’ that associates Indigenous rights and title purely based on biophysical measurements (Bruce and Hume, 2015). For example, if there are still a lot of fish in the territory as a whole, the right to fish is not significantly impacted, and therefore, Indigenous rights are not impacted (Bruce and Hume, 2015). By doing so, impacts are measured according to the presence of fish, rather than the impacts on rights to govern and manage fish, thereby ignoring Indigenous self-determination. Third, Crown EIA agencies often fail to provide adequate funding and time to facilitate meaningful and robust Indigenous participation in EIA (O’Faircheallaigh and MacDonald, 2020). For example, funding for Indigenous participation in EIA is generally provided to Indigenous Nations/groups through the federal Participant Funding Program, and in BC, by the Capacity Funding Program (IAAC, 2019b; EAO, 2020a). A study by the First Nations Major Projects Coalition (2018) has shown that Crown funding programs only provide a small portion of Indigenous EIA participation costs. In circumstances requiring deeper levels by Indigenous Nations/groups, their internal, legal, and consulting costs rise significantly (O’Faircheallaigh and MacDonald, 2020). Therefore, the extent to which Indigenous Nations/groups are able to participate in EIA may be dictated by the amount of Crown funding available (O’Faircheallaigh and MacDonald, 2020). Similarly, timelines for Indigenous consultation in EIA follow the procedural structure of the Crown’s EIA regime (Udofia, Noble, and Poelzer, 2017). This limits the level of engagement that Indigenous Nations/groups are able to achieve, as communication and engagement practices within Indigenous communities may extend those provided by the Crown (Haddock, 2010). Time constraints therefore limit the degree to which Indigenous concerns can be addressed or integrated into EIA (Bruce and Hume, 2015). Fourth, decision-making power is solely held by the Crown. After an EIA is conducted, the final decision of whether to approve or reject a project is ultimately made by the responsible ministers- a process which has been criticized for often ignoring Indigenous perspectives (Bruce and Hume, 2015; Crawford, 2018; Ritchie, 2013). While Indigenous views can be expressed through provincial/federal 31 EIA, there are no opportunities provided for Indigenous Nations/groups to make substantive decisions in regard to project approval/rejection in relation to the project’s potential impacts on Indigenous rights, interests, aspirations, laws, beliefs, or values (Bruce and Hume, 2015). As a result, there has been significant criticism of provincial/federal EIA processes failure to create frameworks for shared decision-making. Two examples of consultation failures displaying some of the points above are Tsleil-Waututh Nation v. Canada (Attorney General) and Coastal First Nations v. British Columbia (Environment). In Tsleil-Waututh Nation v. Canada, the Federal Court of Appeal withdrew Kinder Morgan’s Trans Mountain pipeline expansion approval on two grounds: The Court decided that the National Energy Board (NEB) was mistaken in their decision to exclude increased marine traffic from the EIA report and Canada did not adequately discharge the duty to consult and accommodate affected Indigenous peoples (Morales 2019). In Coastal First Nations v. British Columbia (Environment), the Supreme Court of BC found that the BC provincial government failed to discharge its duty to consult Indigenous peoples on the Enbridge Northern Gateway pipeline. In this case, a number of costal Indigenous Nations argued that the crown failed to engage Indigenous perspectives into the review process (i.e., ignoring Indigenous governance, cultural values, and processes) (Morales, 2019). In both cases, the courts sided with the Indigenous jurisdictions ruling that the government had failed to adequately discharge the duty to consult. Fifth, while there are provisions for agreements between multiple jurisdictions for collaborative assessments, included in the legislative framework of the former EAA 2002 and CEAA 2012 and the updated EAA 2018 and IAA- adequacy and consistency of conclusions between the two processes has not been guaranteed (Smith, Johnston, and Askew, 2018). For example, BC’s assessment process has often been substituted for the federal process, or vice versa (Smith, Johnston, and Askew, 2018; Haddock, 2011). Compared to a collaborative assessment, substitution does not ensure that the assessment standards of all jurisdictions have been met, and consequently can result in weaker consultation processes (Smith, Johnston, and Askew, 2018). For example, under the EAA, 2002, BC has conducted its own assessments parallel to the federal process which have resulted in conflicting findings and decisions about the same project (Smith, Johnston, and Askew, 2018; Haddock, 2011). The most significant example of this (as discussed in Section 3.2.1.1) is Taseko’s Prosperity Mine (latter called ‘New Prosperity Mine’ when a revised project application underwent a second review) EIA reviews, which resulted in conflicting 32 conclusions between the BC and federal reviews, illustrating two disconnected processes (Smith, Johnston, and Askew, 2018; Haddock, 2011). 3.2.1.1 The Prosperity and New-Prosperity EIA Inconsistencies In 2008 Taseko Mines Limited (TML) submitted a project application for ‘Prosperity Mine’, a gold and copper project that would have been located 125km southwest of Williams Lake BC, in a region known as the ‘Chilcotin’. The proposed project location was within the traditional territories of the Tsilhqot’in Nation, proposed in area known as Teztan Biny (Fish Lake), an area of special importance to the Tsilhqot’in Nation. The area is used for subsistence hunting, fishing, trapping, foraging for food and medicine, guiding, grazing, education, spiritual ceremonies, and other cultural practices (CEAA, 2010). The project proposal included the complete destruction on Teztan Biny (using the lake for tailings disposal), which the Tsilhqot’in Nation were strongly opposed to due to the irreversible social, cultural, and environmental impacts which would be caused by the project if approved (CEAA, 2010). The project was reviewed separately by the BC and federal EIA processes. The BC process determined that the proposed project, after mitigation and compensation, would not result in significant adverse effects beyond the loss of Teztan Biny (and associated losses of fish and fish habitat) (CEAA, 2010). With this, the EAO determined the project should be considered justifiable (CEAA, 2010). Following this recommendation, the project was granted an Environmental Assessment Certificate by the BC provincial government, which was eligible for 5 years. The federal review determined that the project would result in significant adverse effects, including adverse impacts on fish and fish habitat, navigation, current and traditional uses of land and resources by Indigenous Nations/groups, and existing and potential Aboriginal rights and title (CEAA, 2010). Due to these findings, the project was not given authorization to proceed. Following the federal rejection of the Prosperity Project, in 2011, TML made alterations to project design, proposing a new project in the same location known as “New-Prosperity Mine” (CEAA, 2013). The new project design would no longer completely eliminate Teztan Biny. This did not change the Tsilhqot’in Nations disapproval of the re-designed project, as industrial impacts in the area would result in unacceptable and irreversible social, cultural and environmental impacts (CEAA, 2013). The earlier EA Certificate issued by BC was still in place, only federal approval was required. Following the second federal review, the project was rejected for a second time based on many of the same observations made by the previous assessment (Government of Canada, 2014). Of particular importance once again, were the significant and irreversible adverse effects that would be felt by the Tsilhqot’in Nation. 33 3.2.2 Recognizing the Duty to Consult as a Colonial, Crown Driven Process With colonization, Indigenous people, Nations, and groups have been displaced from and in many regards have lost recognition of jurisdictional authority over their traditional territories (Hanson, 2018; Christie, 2006). It is important to recognize that the duty to consult is ultimately a reflection of the Crown’s claimed jurisdictional authority over Indigenous territories (Hanson, 2018; Gunn, 2017; Christie, 2006). As explained by Christie, 2006, “These rights, the Court held, are not ‘absolute’, but rather function to temper the power of ‘unquestioned sovereignty’ of the Crown. The central role played by Crown sovereignty is clear from the context within which questions arise around Aboriginal rights - enquiry around Aboriginal rights begins with a single unifying vision, that of Aboriginal peoples’ lives and lands being subject to overarching control regulation by the Crown” (145). In relation to the BC provincial and federal EIA processes, it is important to recognize that the duty to consult triggered through these processes is ultimately guided by a colonial vision of land-use (Hanson, 2018; Gunn, 2017; Christie, 2006). The Crown’s consultation obligations are “not about how this Aboriginal [Nation] collectivity might see itself in relation to its land, and about how that vision might inform visions about how people in general will interact with the land in question- rather, the Crown is obliged to consult about how its visions of land use will be implemented” (Christie, 2006; 154). This illustrates that although Aboriginal rights are recognized, the Crown nonetheless is the fundamental sovereign power controlling how and where Aboriginal rights are carried out and title is recognized (Christie, 2006). This retention of Crown power is also present the EIA process since BC and Canada retain the decision-making power under their updated assessment regimes. Through the assertion of Crown sovereignty, Canadian law controls when and how the Crown and industry are required to consult with Indigenous Nations/groups, resulting in unequal power dynamics within the consultation process. As explained by Hanson, 2018, “Canadian law coerces Indigenous groups to participate in Crown-led consultation stating that they are required to engage, by allowing for Crown decisions to proceed without Indigenous input, and by maintaining potential that courts will interpret Indigenous non-participation as forfeiture of legal resource” (42). In the case of large-scale development proposals, if an Indigenous Nation/group chooses not to participate in the consultation/EIA process, it risks having projects being approved that may have impacts felt for generations (Hanson, 2018). As silence signals consent to the Crown, consultation has become a means by which Indigenous Nations/groups must participate in order to protect their territories and fasten benefits for their communities (Hanson, 2018). The coercive nature of colonial-Crown driven consultation is in contrast to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which is built upon the fundamental right of Indigenous self-determination (Imai, 2008; Gray and Burrows, 2020). At the core of rights to self-34 determination is a choice, as self-determination can be exercised in different ways (Imai, 2008). This includes non-exclusive choices of Indigenous sovereignty and self-government, self-management and self-administration, co-management and joint-management, and participation in public government (Imai, 2008). The non-exclusive choices associated with Indigenous self-determination contrast the duty to consult, as the unquestioned sovereignty of the Crown must reconcile with Indigenous jurisdictional authority (Gray and Burrows, 2020). Legal scholars note that UNDRIP and its fundamental right of Indigenous self-determination provide a foundation for legal pluralism in Canada, where Western and Indigenous legal orders may work cooperatively and collaboratively (Gray and Burrows, 2020) (see Section 3.3 which discusses the implementation of UNDRIP into Canadian law and Section 3.4 which explains the integration of UNDRIP into federal and BC EIA). 3.3 The Progression of Indigenous-Crown Relations Indigenous-Crown relations have changed overtime and continue to evolve. The colonial relationship to Indigenous peoples was, in many ways, premised upon Doctrine of Discovery and terra nullius, which have now been deemed as illegitimate by the Canadian courts, at least on its face4 (Tsilhqot’in 2014; Nichols, 2017; Hanson, 2018). Although Indigenous jurisdiction and sovereignty have remained intact in Canada, Canada as a settler nation continues to exercise exclusive jurisdiction (Hanson, 2018). The assertion of Indigenous jurisdictional authority over their lands have been viewed by Canada as legitimate threats to Crown sovereignty, and therefore undesirable (Christie, 2013). Ongoing colonization has created unequal power dynamics between Indigenous peoples and the Crown; Indigenous peoples, Nations and groups have been forced to engage with Canadian law for the recognition of Indigenous jurisdiction (Hanson, 2018). As a result, Indigenous-Crown relations have been mediated by Aboriginal case law, which continue to shape Indigenous-Crown relations. As such, Aboriginal rights as articulated through section 35 of the Canadian Constitution, 1982, and the duty to consult (as discussed in this thesis) should be seen as evolutionary and never static. Understanding, recognition, and implementation of the legal orders of Indigenous peoples are subject to change in scope, procedure, and aspect- towards a transformation of a shared political community, where Indigenous jurisdiction, authority, adjudicatory processes, and decisions are upheld (Indigenous Law Research Unit, 2013). As such, Aboriginal rights as defined in relation to section 35 of the Canadian Constitution, 1982, and the duty to consult, cannot be seen as the ‘be all end all’ for Indigenous-Crown relations. 4 See John Burrows article “The Durability of Terra Nullius: Tsilhqot’in Nation v. British Columbia” (2015), for an explanation of the persistent nature of terra nullius and the Doctrine of Discovery as it pertains to the recognition of Aboriginal title. 35 The newest era of Indigenous-Crown relations in Canada is now being defined by the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). On May 10th, 2016, Carolyn Bennet, the federal Minister of Indigenous and Northern Affairs, announced that Canada is now a full supporter of UNDRIP, and it intends to adopt and implement UNDRIP, including Free Prior and Informed Consent (FPIC) (Northern Public Affairs, 2016). However, there are still questions about how the federal government intends to adopt and implement UNDRIP and the impact this might have on Section 35 of the Constitution. As explained by Gunn, 2017, “A critical distinction between rights protected under section 35(1) rights and UNDRIP is that the rights recognized in UNDRIP are defined according to Indigenous peoples’ own laws, as a fundamental aspect of self-determination of peoples” (33), presenting an opportunity for “resetting the relationship between Indigenous peoples and Canada through recognizing and protecting Indigenous peoples’ rights, according to their own legal traditions” (Gunn, 2017; 33). With this, the implementation of UNDRIP presents a valuable opportunity for advancing Indigenous-Crown relations. Gunn, 2017, further articulates this by stating “Canada’s commitment to implement UNDRIP presents another moment to reconsider the relationship between the Crown and Indigenous peoples, including how Indigenous peoples’ rights are defined and protected” (32). UNDRIP offers a means for moving beyond Indigenous-Crown relations as defined by section 35 and the duty to consult, which are based upon Crown legal understandings and processes, to processes defined by Indigenous self-determination and legal traditions (Gunn, 2017). If implemented to the fullest extent, UNDRIP will have a significant impact on the duty to consult and EIA processes alike. The success and willingness of governments to implement UNDRIP remains to be seen. The initiative is emergent, and it will require effective implementation across a range of agencies responsible for reviewing, permitting, and regulating development activities. It will also require greater collaboration with Indigenous Nations/groups and a new approach to decision-making by Crown government. 3.3.1 The United Nations Declaration on the Rights of Indigenous Peoples In 2019, BC announced it would become the first jurisdiction within Canada to pass legislation implementing UNDRIP through the introduction of Bill 41-2019: Declaration on the Rights of Indigenous Peoples Act. Bill 41 was passed, affirming the application of UNDRIP into the laws of British Columbia, including the government’s commitment to consultation and cooperation with Indigenous peoples, Nations, and groups to ensure that BC’s laws uphold guidelines set out by UNDRIP (Declaration on the Rights of Indigenous Peoples Act, 2019). Specific rights included in UNDRIP are: • Rights to self-determination. • Rights to autonomy and self-government. 36 • Rights to the lands, territories, and resources which they have (Indigenous peoples) have traditionally owned, occupied, or otherwise used or acquired (Bruce and Hume, 2015). Included within UNDRIP, is adherence to the concept of Free, Prior, and Informed Consent (FPIC), which flows from the right to self-determination. FPIC is a bottom-up approach to consultation that is based on the recognition “that Indigenous peoples, as self-determining collective actors, should be empowered to make decisions over their future and that of their traditional lands. They must therefore consent to economic development projects that may have a major impact on their lands and communities” (Papillon and Rodon, 2017; 216). As explained by Gibson, Galbraith, and MacDonald (2016; 162), “to be true to its definition, FPIC must be obtained”: • “Without force, coercion, intimidation, manipulation, or pressure from the government or company seeking consent (free)”; • “With sufficient time to review and consider all relevant factors, starting at the inception stage, in advance of any authorization for- and continuously throughout the planning and implementation of- activities (prior)”; • “Based on an understanding of adequate, complete, understandable, and relevant information relative to the full range of issues and potential impacts that may arise from the activity or decision (informed)”; and, • “Only from the legitimate representatives of the people affected, with any caveats or conditions stipulated by the people whose consent if given (consent)”. The implications for EIA practice are evident. When UNDRIP was originally adopted by the UN general Assembly in 2007, Canada was one of four countries to vote against (object) the adoption of UNDRIP, largely because of FPIC (Allard, 2017). But within some corners of Canada’s resource-based industries in Canada, FPIC is considered to be a ‘veto’ that could be used by Indigenous peoples to reject or halt a project that they do not support. Consent is not a veto. On the contrary, Indigenous Nations/groups approach FPIC as a framework for consensus-based decision making based on continued negotiations until agreement is reached (Boyd and Lorefice, 2019). With a change in government, in 2016 Canada officially revoked its objector status to UNDRIP, committing to fully adopting UNDRIP and working to implement it within the laws of Canada. The significance of Canada’s use of UNDRIP is yet to be determined. In 2019, BC announced it would become the first jurisdiction within Canada to pass legislation implementing UNDRIP through the introduction of Bill 41-2019: Declaration on the Rights of Indigenous Peoples Act. Bill 41 was passed, affirming the application of UNDRIP into the laws of British Columbia, including the government’s commitment to consultation and cooperation with Indigenous peoples, Nations, and groups to ensure that 37 BC’s laws uphold guidelines set out by UNDRIP (Declaration on the Rights of Indigenous Peoples Act, 2019). 3.4 Canada and British Columbia EIA Reform Following the election of the federal Liberal Party in 2015, the newly elected national government promised to restore public trust in the federal EIA process through review and reform of CEAA 2012. In 2018, following an extensive review process, the federal government introduced Bill C-69, which was titled ‘An Act to enact the Impact Assessment Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts’. Bill C-69 was passed in 2019, and with this, a new EIA process was put into place through the enactment of the Impact Assessment Act (IAA). In 2017 a new government in BC prompted the EAO to begin a process to develop a new provincial EIA framework, including supporting policies and regulations. The new process was designed to mirror the updates to the federal EIA process under the IAA5. After a process of consultation across sectors, and with Indigenous organizations, BC introduced Bill 51- 2018 Environmental Assessment Act (EAA), which was enacted and came into force in late 2019. Among the most prominent changes included in both the federal IAA and BC EAA 2018 is the intention of supporting reconciliation with Indigenous peoples by aligning with the guidelines set out by UNDRIP. This is expressed in the IAA preamble6, which states “Whereas the Government of Canada is committed to implementing UNDRIP” (IAA, 2019). And the IAA outlines in Section 6 that its purposes (among others) are to: • “To promote cooperation and coordinated action between federal and provincial governments- while respecting the legislative competence of each- and the federal government and Indigenous governing bodies that are jurisdictions, with respect to impact assessments”; • “To promote communication and cooperation with Indigenous peoples of Canada with respect to impact assessments”; • “To ensure respect for the rights of Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, in the course of impact assessments and decision-making under this Act”; and, • “To ensure that an impact assessment takes into account scientific information, Indigenous knowledge and community knowledge” (IAA, 2019). 5 Dr. Kevin Hanna (personal communication, 2020) 6 It is important to point out that the Preamble of legislation (i.e., the IAA) is non-enforceable. As UNDRIP is only mentioned in the Preamble of the IAA without reference within its operational provisions, the Act does not ensure that its intention to support UNDRIP will be applied to its entirety (Lindgren, 2018). 38 Likewise, goals of reconciliation and aligning with UNDRIP are outlined in ‘Part 2-Administration’ of the EAA which explain the purposes of the Environmental Assessment Office (EAO)- one of which states “Support reconciliation with Indigenous peoples in British Columbia” by: • “Supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples”; • “Recognizing the inherent jurisdiction of Indigenous Nations and their right to participate in decision-making in matters that would affect their rights, through representatives chosen by themselves”; • “Collaborating with Indigenous Nations in relation to reviewable projects, consistent with the United Nations Declaration on the Rights of Indigenous Peoples”; and, • “Acknowledging Indigenous peoples' rights recognized and affirmed by section 35 of the Constitution Act, 1982 in the course of assessments and decision-making under this Act” (EAA, 2018). 3.4.1 New Options for Indigenous-led Impact Assessment In advancing reconciliation with Indigenous peoples (which includes aligning with UNDRIP), the updated EAA and IAA have created opportunities for Indigenous-led impact assessments (ILIA) in coordination with their respective review processes. These opportunities are communicated in the federal Act in section 31(1), which explains that under the responsible Minister’s discretion, they may substitute an Indigenous ‘jurisdictions’ assessment process (i.e., ILIA) for the Impact Assessment Agency of Canada’s (IAAC) process. It is stated again in section 29, explaining that the IAAC may delegate any part of the assessment to an Indigenous jurisdiction (IAA, 2019). Procedurally, opportunities for ILIA under the IAA can be initiated during the first phase of the new EIA process through the ‘Indigenous Engagement and Partnership Plan’ and/or the ‘Impact Assessment Cooperation Plan’. The Indigenous Engagement and Partnership Plan is a document describing how Indigenous Nations/groups will be engaged and consulted throughout the EIA process, including specific studies Indigenous Nations/groups would like to either lead or participate in (IAAC, 2019b). The Impact Assessment Cooperation Plan outlines how IAAC will collaborate and align with other jurisdictions throughout the assessment process, including Indigenous jurisdictions (IAAC, 2019b). Likewise, the EAA outlines opportunities for ILIA in section 41, which explains that the responsible Minister has the authority to enter into agreement with Indigenous jurisdictions to substitute ILIA for part, or all of the BC Environmental Assessment Office process (EAA, 2018). Procedurally, Indigenous Nations/groups interested in participating in or leading part or all of an assessment may provide notice during the EIA Early Engagement Phase (EAO, 2020b). If so, an Assessment Plan will 39 define and detail the roles and responsibilities of each participant (including the Crown, proponents, and Indigenous Nations/groups) throughout the assessment process including how the Indigenous-led assessment will align with the EAO assessment (EAO, 2020b). In both Acts, final decision-making, in regard to project approval, is still controlled by Crown authorities (i.e., responsible Ministers (for federal and BC assessments) or Governor in Council (if required during a federal assessment). Under the IAA, reasons for the decision (approval or rejection) are made publicly available, specifically addressing how the decision considered the potential impacts on Indigenous people’s rights (IAAC, 2019b). In doing so, any submissions or views submitted by Indigenous Nations/groups must be considered (IAAC, 2019b). Similarly, under the EAA, participating Indigenous Nations/groups have the opportunity to provide notice of consent or lack thereof through recommendations given to the Provincial Decision Makers (EAO, 2020b). If the Minister’s decision contradicts the notice of consent or lack thereof given by participating Indigenous Nations/groups, the Minister must provide reasons, and is also required also provide an opportunity to meet with the Nation/group for conflict resolution (EAO, 2020b). How ILIA will take shape as part of the new federal and provincial processes remains to be seen. These are still early days in the implementation of both Acts. What can be said so far is that ILIA will be initiated through nation-to-nation agreements, can be carried out in-part or entirely in replacement of the BC-led or Canada-led assessments, and will be required to meet certain conditions set out by the IAAC or EAO (i.e., time limits) (EAO, 2018; IAAC, 2018). However, it still needs to be determined how ILIA will be used in accordance with Indigenous Nations/groups unique governance structures, beliefs, histories, natural recourse management issues, goals, and priorities. There are also additional questions about cost, capacity needs, and administrative structures that would be needed for managing an EIA review. Chapter 5 will explore these questions and describe several ways that ILIA has been implemented during previous provincial and federal EIA Acts. 40 Chapter 4: Emergence, Opportunities, and Obstacles of ILIA While ILIA is a recent development within Canada’s federal Impact Assessment Act (IAA) and BC’s Environmental Assessment Act (EAA), conceptually, different forms of Indigenous-led impact assessment (ILIA) have occurred globally and throughout Canada prior to the new Acts. This chapter reviews the literature on ILIA, describing some of the uniform qualities of Indigenous leadership in environmental impact assessment (EIA), which reflects the current state of knowledge. Reviewing the current literature written on ILIA is useful, as this research project explores the various ways in which ILIA has been implemented to date and will offer critical resources in the analysis of ILIA case studies. The application of ILIA is diverse and has been used to reappraise existing projects as well as for the review of project proposals which have applied for regulatory approval (O’Faircheallaigh and MacDonald, 2020). The application of ILIA is variable, ranging from large-scale interdisciplinary studies, to smaller or limited studies focusing on single use variables within an area (i.e., fishing rights) (Jolley, 2007). This literature review traces some of the common qualities of ILIA which may be applied across various jurisdictions, not only within Canada, but globally. This includes three sections. The first section provides an explanation of the factors driving the emergence of ILIA. The second, describes the modes of and opportunities for control in ILIA. The third, presents some of the obstacles and limitations associated with ILIA. This review is not intended to be a comprehensive interpretation of the procedural elements of ILIA, but rather to provide background knowledge on ILIA which will serve as useful in the analysis of ILIA within this thesis. 4.1 The Emergence of ILIA ILIA has emerged as a recent development, gaining momentum and popularity in colonial states such as Canada, Australia, and New Zealand (O’Faircheallaigh and MacDonald, 2020). The literature suggests that the driving forces behind the emergence of ILIA can be broadly categorized into three overlapping rationales. First and foremost, the emergence has been the result of the weaknesses of Indigenous participation in EIA, where Indigenous Nations/groups have not had a substantial voice throughout EIA reviews and decision making, therefore creating and implementing their own assessment processes in response (Morales, 2019; O’Faircheallaigh and MacDonald, 2020). Second, ILIA has been gaining prominence through the growing recognition and assertion of Indigenous legal systems and political rights through both domestic and international law (O’Faircheallaigh and MacDonald, 2020). Third, there is growing recognition among industry proponents and corporate managers of the financial and reputational benefits associated with authenticating their ‘corporate social responsibility’ through the consideration and integration of ILIA (O’Faircheallaigh and MacDonald, 2020). This section will explore the three factors previously listed driving the emergence of ILIA. 41 4.1.1 Overcoming the Weaknesses of EIA Through a provincial/federal approach to EIA, proponents - in coordination with technical experts- prepare an assessment of their proposed project’s anticipated impacts, making commitments through project design features, including compensation or mitigation to accommodate these impacts (O’Faircheallaigh and MacDonald, 2020; Hanna, 2016). During provincial/federal EIA, a government agency oversees the EIA, verifying requirements, adequacy, timelines, conditions for approval, and recommendations or decisions on whether or not the project should proceed (Hanna, 2016). Throughout the history of EIA processes, Indigenous peoples’ interests have been largely ignored by proponents during their assessments (Craik, 2016; Gibson et al., 2018). This has often been done through either the outright exclusion of Indigenous Nations/groups from the entire EIA process or through restricted/limited participation in EIA which lacks meaning, with little to no control over assessment methods, project planning, conditions, or decision-making (Craik, 2016). Through restricted/limited participation, Indigenous governance, cultural values, and processes are ignored (Bruce and Hume, 2015; Gibson et al., 2018; Morales, 2019). These weaknesses, among others (see Chapter 3, Section 3.2.1), have motivated Indigenous Nations/groups to create processes to determine what is assessed and how it is assessed (O’Faircheallaigh and MacDonald, 2020). ILIA has been used as a way of overcoming the exclusionary/restrictive nature of provincial/federal EIA, by applying a system which is controlled (in-part or fully) by the Indigenous Nation/group, rather than proponents or assessment agencies (O’Faircheallaigh and MacDonald, 2020). 4.1.2 Recognition and Assertion of Indigenous Legal Systems and Political Rights Throughout the history of colonial state authority, EIA agencies have failed to recognize Indigenous forms of governance and decision-making (Craik, 2016). Colonial authority over Indigenous Nations/groups had the effect of removing Indigenous authority, and right to influence decisions that affected Indigenous communities. This includes decisions regarding industrial developments within their traditional territories (O’Fairchaellaigh, 2016)- despite the fact that Indigenous resource planning and management historically predates contact with European settlers (Turner and Berkes, 2006). In both Canada and Australia, the denial of these fundamental political rights persisted until at least the 1960’s, as colonial government policies changed (and have continued to change) contemporarily (O’Fairchaellaigh, 2016). There is now a growing recognition of Indigenous legal systems and political rights in domestic jurisdictions and international law (Gibson et al., 2016; O’Fairchaellaigh, 2016). For example, with the reception of section 35 of Canada’s Constitution Act, 1982, recognition was brought to pre-existing Aboriginal and treaty rights. This provided a foundation for future regulation, legislation, and interpretation of Indigenous people’s rights (Gibson et al., 2016). In addition, a series of 42 court cases have continually evolved a set of principles guiding Indigenous-Crown relations (see chapter 3). Currently, one of the most significant steps in the apparent recognition of Indigenous legal systems and political rights in Canada is the federal and BC government’s commitment to the full implementation of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including Free, Prior, and Informed Consent (FPIC). ILIA provides a tool, by which Indigenous peoples can define and articulate their interests, while simultaneously asserting authority to influence decisions which affect them. The use of ILIA asserts Indigenous Nations/groups jurisdictional capacity to make free and informed decisions concerning development projects, based on their own concerns, interests, and values (Pappilon and Rodon, 2019). In light of a limited understanding of how UNDRIP and FPIC will be adopted by Crown governments, Indigenous Nations/groups have begun asserting their own understandings of UNDRIP and FPIC (Pappilon and Rodon, 2019). In the absence of a clear legal framework providing institutionalized Indigenous consent mechanisms, proponents and Crown governments/assessment bodies are forced to consider alternative Indigenous-led mechanisms, where control over consent is held by the Indigenous jurisdiction (Pappilon and Rodon, 2019). 4.1.3 Authenticating Corporate Social Responsibility Historically, Indigenous peoples have been excluded from industrial land-use developments, including decision-making and the associated benefits of these developments on their traditional territories. Furthermore, industrial developments have often been associated with negative environmental, cultural, and social impacts (O’Fairchaellaigh, 2017). Throughout recent decades however, Indigenous Nations/groups have fought against this by opposing development altogether or/simultaneously demanding changes to the distribution of benefits of resource development (O’Fairchaellaigh, 2017). As explained by O’Fairchaellaigh (2017) “In doing so they have utilised a range of approaches, including: efforts to win greater recognition of Indigenous rights in international forums; pressure for passage of national and state or provincial legislation recognizing Indigenous land rights and protecting Indigenous culture; litigation in national and international courts; and direct political action aimed at governments and developers, often in alliance with non-governmental organizations (NGOs)” (1). O’Fairchaellaigh notes that “in response to these initiatives, many of the corporations that undertake large-scale resource exploitation have sought to address concerns regarding the impact of their activities on Indigenous peoples by adopting principles generally referred to as ‘corporate social responsibility’ (CSR) policies” (1). Trebeck (2017) defines CSR as “those activities, other than commercial outputs of a company and beyond legally required behavior, that address social and environmental concerns of company 43 stakeholders. Stakeholders are anyone or any or organization affected by or able to affect a particular entity” (11). As such, CSR is often designed to protect companies from public pressure, scrutiny, court litigation, and other factors, which might limit profit potential (O’Fairchaellaigh, 2017). Indigenous opposition has been associated with major delays in developing projects, while Indigenous support can facilitate early project approval and completion. As such, CSR activities have become an essential part of winning support from Indigenous communities (Trebeck, 2017). With the growing recognition of Indigenous Nations/groups ability to insist that their interests and perspectives should be accepted as part of EIA reviews, pressure has been placed on governments and corporations to ensure that Indigenous Nations/groups are effectively integrated into the review process itself (Trebeck, 2017). In order for industry proponents to demonstrate their CSR, the integration of ILIA into applications and reviews of project proposals has emerged as a tool for guaranteeing Indigenous group’s integration into project reviews (O’Fairchaellaigh and MacDonald, 2020). This has been facilitated by providing financial support for ILIA and negotiation agreements with affected Indigenous Nations/groups (i.e., IBA’s) where ILIAs are conducted prior to agreements being made or ratifying that Indigenous interests are required and given adequate consideration for future project reviews (O’Fairchaellaigh and MacDonald, 2020). 4.2 Modes of and Opportunities for Control Control tends to vary in ILIA, ranging from independently conducted assessments, where the Indigenous group conducts and controls every aspect of the assessment, to ILIA as part of a co-developed assessment, where the Indigenous group leads and control’s part the assessment (O’Fairchaellaigh and MacDonald, 2020). This section reviews the literature on Indigenous co-management and meaningful Indigenous engagement, which illustrates modes of and opportunities for control in natural resource management. The modes of and opportunities for control are highly important for the analysis of ILIA, as the extent to which control is applied is a defining factor in the variable ways in which Indigenous Nations/groups have chosen to implement their own assessment process. 4.2.1 Modes of Control ‘Modes of control’ are the mechanisms and tools that have been used by Indigenous Nations/groups in asserting a level of control over how natural resources are managed within their territories. Three modes of control used by Indigenous Nations/groups are recurrent in the literature: 1) Land claims negotiations; 2) Cooperative and joint-management agreements; and, 3) Land use planning Land claims negotiations are a process of creating comprehensive land claim agreements which recognize Indigenous land ownership and can facilitate an increased level of participation and control 44 over land use activities (Usher, 2003). In Canada, these are referred to as ‘modern treaties. An example of a comprehensive land claim agreement is the Mackenzie Valley Resource Management Act (MVRMA) 1998. The MVRMA created an EIA regime that integrates Indigenous self-government into the process as a primary mechanism for protecting Indigenous interests in the land (Chamberlain and Haile, 2016). It should be noted that land claims negotiations often take a number of years and are often stalled. Disputes over resource extraction can create an incentive to resolve these negotiations more quickly as a tool for distinguishing who has control over the land and resources in question (Joyce and MacFarlane, 2001). Cooperative and joint-management agreements are another way Indigenous Nations/groups have increased their control over natural resource management (Wilkes, 2011). Co-management and joint-management agreements vary considerably, but broadly refer to decision-making structures of shared power and responsibility (Wilkes, 2011; Houde, 2007). The degree to which power and responsibility are actually shared is highly variable and depends on the exact terms and conditions of the agreement itself (Wilkes, 2011). These agreements are most common between Indigenous Nations/groups and the government and/or industrial proponents in the form of environmental agreements or impact and benefit agreements (IBAs) (Wilkes, 2011). For example, IBAs set out what benefits and support the Indigenous Nation/group receives in exchange for their support of the project (SHK, 2017). The possible benefits included in IBAs range from contracting guarantees, cooperative environmental protection agreements, or social-cultural support initiatives, although there is no standard IBA agreement (SHK, 2017). Land use planning can be a strategy used by Indigenous Nations/groups to predict and accommodate a multitude of human impacts, while simultaneously articulating a vision for land uses within their territories (Wilkes, 2011; Houde, 2007). The visions of land uses articulated through land use planning often incorporate the social, cultural, economic, and ecological aspects of natural resources (Stevenson and Webb, 2003). Land use plans can be a powerful statement in dealing with provincial and federal governments, as it has been used as a tool to assert land governance, control how natural resources are managed, and assert self-governance and cultural self-determination (Cook et al., 2017). For example, in EIA, land use planning has been used as a mode of control as it provides a basis for identifying pre-determined valued components, which may be used in EIA or decision/analysis scenarios (Clogg, Smith, and Carlson, 2017). 4.2.2 Opportunities for Control ‘Opportunities for control’ refers to the key areas of EIA that Indigenous Nations/groups can choose to lead in an attempt to extend and maximize their influence throughout the assessment, review, and permitting processes. O’Fairchaellaigh and MacDonald (2020) note 5 opportunities for control in EIA which can be achieved through ILIA: 45 1) Control over who to partner with; 2) Control over scoping; 3) Control over who conducts the assessment; 4) Control over how the assessment is conducted; and, 5) Control over findings. Gibson, Hoogeveen, and MacDonald (2018) also outline 3 different models to conducting ILIA in regard to control over who to partner with: • Co-managed ILIA; • Co-developed ILIA; or, • Independent ILIA. While Indigenous Nations/groups may not always have control over the model which is applied (as sometimes not every option is available), the three models impact the degree of control Indigenous Nations/groups have over the various stages of the assessment process. First, is a co-managed ILIA, which is developed with the state impact assessment agency or regulatory body. As described by Gibson et al., “a co-managed impact assessment occurs when one or more Indigenous Nations/groups assess a proposed project alongside the Crown agency, which has a duty to review the project under the existing impact assessment legislation. Some form of agreement between the Indigenous Nations/groups and the Crown is required, either negotiated specifically for that project assessment, or defined through a wider negotiated process agreement (Gibson et al., 2018; 19). When Indigenous Nations/groups partner with a Crown agency there are increased opportunities to leverage funding and more flexible EIA timelines to support the completion of ILIA. In addition, when partnering with Crown agencies, there are increased opportunities to facilitate a framework for shared decision-making. Second, is a co-developed ILIA, in which the Indigenous Nation/group collaborates with the proponent to assess some or all of the projects impacts (O’Fairchaellaigh and MacDonald, 2020). This ILIA model is usually associated with IBA’s between the proponent and the Indigenous Nation/group (Gibson et al., 2018). As described by Gibson et al., “a co-developed process may see an Indigenous Nation/group work directly with the proponent from the outset of project planning, including on routing and siting preferences, vetting of consultants to do environmental and socio-economic studies, and analysis of the results and implications of those studies, even to the degree of filing a jointly agreeable application” (Gibson et al., 2018; 24). By partnering with proponents, there are increased opportunities to leverage funding to support the completion of the ILIA and to include Indigenous interest within proponent project applications. Third, is independent ILIA, where the Indigenous Nation/group conducts the assessment independently of the Crown and proponents. As explained by Gibson et al., “in circumstances where an 46 Indigenous Nation/group sets up its own assessment process for a project, complete with a defined and largely completely internalized assessment process and a formal decision-making and condition-setting process, we generally label that an independent impact assessment” (Gibson et al., 2018; 30). The second opportunity for control is over scoping. Scoping generally refers to the identification of issues and parameters to be addressed in an EIA (Hanna, 2016). There are various aspects of scoping, such as defining what is deemed an impact, which impacts are considered to be most relevant (therefore requiring the most resources), the assessment study area, and the timeline by which impacts will be assessed (O’Fairchaellaigh and MacDonald, 2020). Control over scoping is a key component of ILIA. Scoping establishes the foundation of creating an evidence-based assessment process and provides the Indigenous Nation/group with as much information as possible to consider the value, risks, and benefits of a proposed project (O’Fairchaellaigh and MacDonald, 2020; Papilon and Rodon, 2017). Furthermore, control over scoping has been identified as an important aspect of ILIA, as it guides the parameters of the assessment which reflect the location, history, and natural resource issues of the Indigenous Nation/group conducting the assessment (O’Fairchaellaigh and MacDonald, 2020). Control over scoping in ILIA overcomes the persistent difficulty of narrow scoping in provincial/federal EIA, as it facilitates the inclusion of Indigenous components such as IK, cultural values, and cumulative effects at a level which the Indigenous Nation/groups undertaking the assessment considers appropriate. As control over scoping includes determining what the assessment will address- for Indigenous Nations/groups, this includes identifying which aspects of an EIA they are capable of undertaking (O’Fairchaellaigh and MacDonald, 2020). If running a full EIA is beyond the capacity of the Indigenous Nation/group, they may choose to separate out key topics of control through scoping. As explained by O’Fairchaellaigh and MacDonald (2020), these may include: • Cultural impact assessment; • Indigenous-specific socio-economic impact assessment; • Indigenous knowledge and use studies; • Indigenous rights and title impact assessments; or, • Cumulative effects assessment across multiple variables. The third opportunity for control is over who actually conducts the assessment. In EIA, a proponent’s technical work can often be contracted out to environmental and engineering services, and other consultants (Hanna, 2016). This has often been problematic, as these providers, while technical experts, might have a limited understanding of what is needed for meaningful Indigenous participation, including the unique values and world views of the Indigenous Nations/groups involved (which are sometimes multiple) (O’Fairchaellaigh and MacDonald, 2020; Papillon and Rodon, 2017). A critical opportunity for control in ILIA involves the right to choose the team that will complete the technical assessment work, 47 which would ensure that the team involved, and work they produce, incorporates Indigenous values (O’Fairchaellaigh and MacDonald, 2020). The fourth opportunity for control is over how the assessment is conducted. This refers to the methods and procedures used for data collection, analysis, and the associated timelines for the assessment (overcoming the inadequate timelines for Indigenous involvement in provincial/federal EIA). This includes how information is gathered (i.e., interviews, studies, focus groups, etc.), documented (i.e., written, auditory, or visually), analyzed (i.e., how the information collected is applied to the assessment of impacts), communicated (i.e., how assessment material is shared within the Indigenous Nation/group so that their concerns are accurately documented), and timelines for the assessment (i.e., the time needed to accurately complete the assessment) (O’Fairchaellaigh and MacDonald, 2020). This is an important opportunity for control, as the methods and procedures utilized will reflect the community-driven concerns and aspirations in relation to the project being assessed (O’Fairchaellaigh and MacDonald, 2020; Papillon and Rodon, 2017). The final and fifth opportunity for control is over the findings (the interpretation of information). To conclude an EIA process, a report is produced which includes the findings of the assessment, impact management strategies, conditions for approval, and recommendations on whether or not a project should proceed (in the context of ILIA, this is often where consent is given or withheld) (O’Fairchaellaigh and MacDonald, 2020; Papillon and Rodon, 2017). The assessment report is then used to make decisions on whether or not the impacts of the project are acceptable according to the responsible government authorities (Hanna, 2016). Control over findings has been identified as an important aspect of ILIA, as it directly affects judgements in determining project outcomes (O’Fairchaellaigh and MacDonald, 2020). In addition, control over findings establishes the opportunity for the Indigenous Nation/group to assert their jurisdictional capacity to make a free and informed decision concerning the project, based on their own findings of concerns and interests (Papillon and Rodon, 2017). By controlling findings, Indigenous Nations/groups can uphold their rights to self-determination by allowing the Nation/group to make free and informed decisions regarding project impacts A key aspect to each level of control listed above is how internal decision-making is achieved. This includes how decisions are made in regard to what ILIA model to apply (i.e., who to partner with); determining key interests and significance of impacts on these components (i.e., scoping); what external consultants are used to help carry out the technical aspects of the assessment (if any); and whether or not to give consent to a project (i.e., whether or not anticipated impacts are acceptable to the Indigenous Nation/group). In ILIA, decision-making processes are a reflection of the Indigenous Nations/groups governance/laws/culture and should be articulated on behalf of both community members and leadership. 48 O’Fairchaellaigh and MacDonald (2020) outline 4 decision-making options which can be applied throughout ILIA. These include: • Collaborative consensus: A joint decision-making process between the state and the Indigenous Nation/group. • Community referendums: A community voting or consensus process, which apply specific governance mechanisms. • Customized review panels: Where selected community members act as a review panel tasked with deep engagement throughout the assessment process (i.e., hearing evidence, making decisions, etc.). • Leadership decision-making: A decision-making process where elected or customary leaders are in charge of decision making on behalf of their communities. 4.3 ILIA Obstacles and Limitations While ILIA provided opportunities to enhance Indigenous participation and control in environmental management, the effective integration of ILIA into Crown-controlled EIA processes comes with a number of obstacles and limitations. This section provides an overview of the associated obstacles and limitations to the effective implementation of ILIA. A review of the relevant literature reveals 3 main issues. These include legal obstacles, procedural obstacles, and resource limitations. 4.3.1 Legal Obstacles Supportive legislation is a significant enabling factor for the effective incorporation of ILIA into state EIA processes (O’Fairchaellaigh and MacDonald, 2020). For example, while the updated BC EAA and Canada’s federal IAA both provide opportunities for the integration of ILIA into their EIA processes, many other provinces in Canada do not. Incorporating ILIA into state EIA in a way that influences project design and decision-making can be problematic without legislation that recognizes Indigenous-led processes as legitimate or required under circumstances where there is intent to conduct an ILIA (Eckert et al., 2019; O’Fairchaellaigh and MacDonald, 2020). If not recognized by legislation, conducting an ILIA runs the risk of not being given adequate consideration, or only being partially used. This is especially true in jurisdictions that do not require the assessment of effects on Indigenous rights and interests within their assessment methodologies (Gibson, Galbraith, and MacDonald, 2016). Additionally, legislated policy often fails to incorporate or acknowledge Indigenous knowledge (IK) and law into practice, valuing western scientific knowledge and policies over IK and Indigenous law (Eckert et al., 2019). Furthermore, in circumstances where Indigenous land rights have not been legally recognized or 49 are unresolved through treaties or land claim agreements, the incorporation of ILIA into EIA may not be guaranteed (Eckert et al., 2019). 4.3.2 Procedural Obstacles There are several procedural obstacles within state EIA which may limit the integration of ILIA. First are legislated timelines of EIA, which may not line up with the timelines required for an ILIA. As ILIA requires a higher degree of participation on the part of the Indigenous Nation/group conducting the assessment- Indigenous Nations/groups may require additional time during their assessment to guarantee their community members and decision-makers are satisfied with the identification of potential impacts on their determined interests (Gibson, Galbraith, and MacDonald, 2016). Second, ILIA may become more procedurally difficult under circumstances where a project location is within the territories of multiple Indigenous Nations/groups (O’Fairchaellaigh and MacDonald, 2020). In situations where there are multiple Indigenous Nations/groups involved, a diversity of values and opinions may emerge- making a single or unified ILIA process more difficult (O’Fairchaellaigh and MacDonald, 2020). For example, linear projects/facilities such as pipelines, may pass through the territories of multiple Indigenous Nations/groups. Third, although ILIA may enhance Indigenous participation in project decision-making, under almost all EIA processes, decision-making remains in the hands of state authorities (i.e., a Minister) (O’Fairchaellaigh and MacDonald, 2020). This means that there are circumstances where an Indigenous Nations/groups decision to withhold consent to a project will not be reflected in the state’s decision-making (O’Fairchaellaigh and MacDonald, 2020; TLRD, 2015). 4.3.3 Resource Limitations Resource limitations present challenges to the meaningful and efficient integration of ILIA into EIA in terms of both funding and internal capacity. With the increased engagement in EIA associated with ILIA, sufficient funding is required for internal, legal, and consulting costs of conducting the assessment. Covering these costs may be difficult, and unless adequate funding can be leveraged from the state or proponents, conducting an ILIA becomes difficult to impossible (O’Fairchaellaigh and MacDonald, 2020). High degrees of internal capacity are also required by the Indigenous Nation’s/group’s staff, community members, and leadership for the completion of an ILIA. For example, there are no ‘best practices’ in ILIA procedures or processes. A best practice is what meets the needs of an Indigenous Nation’s/group’s unique locations, histories, natural resource issues, and governance approaches and addressing these factors requires high degrees of internal capacity (O’Fairchaellaigh and MacDonald, 2020). Under circumstances where Indigenous Nations/groups receive multiple project applications requiring EIA, participation fatigue may also occur within Indigenous Nations/groups, including their staff, community members and leadership whose territories have significant resource 50 development pressure (Udofia, Noble, and Poelzer, 2017). Resource limitations can also become confounded with the remoteness of some Indigenous communities (Udofia, Noble, and Poelzer, 2017). This includes the logistical limitations associated with travel, the time and resources to do so (especially for hired consultants), and difficulty coordinating community participation in communities within a region but isolated from one another (Udofia, Noble, and Poelzer, 2017). 51 Chapter 5: ILIA Case Studies The ILIA case studies in this chapter are presented as individual cases. The cases provide an overview of why and how the Nations developed an ILIA. There are 5 cases: • Squamish Nation Process (Section 5.1), • Stk’emlu’psemc te Secwepemc Nation Assessment Process (Section 5.2), • Tsleil-Waututh Nation Assessment (Section 5.3), • Mikisew Cree Culture and Rights Assessment (Section 5.4), and • Ktunaxa Nation Rights and Interests Assessment (Section 5.5). Each ILIA case study included was developed to answer a series of investigative questions regarding who, where, what, why, how, and outcomes (noted in Chapter 2, Section 2.2.2 for a more detailed description of the investigative questions guiding case study development). Case study development has played a key role within the context of this research in two ways. First, they have been provided to the Tsilhqot’in National Government to be used as guidance material as they explore what a Tsilhqot’in specific assessment process might entail. Second, they provide the basis for analysis and results, which help meet the research objectives (see Chapter 6). 5.1 The Squamish Nation Process 5.1.1 The Squamish Nation The Squamish Nation (SN) is a Coast Salish First Nation whose traditional territories span across the area commonly referred to as the lower mainland of British Columbia (BC), including the present-day Greater Vancouver area; Gibson’s landing and the Squamish River watershed (Squamish Nation, 2020a). Like most of the land in BC, the Squamish Nation’s traditional territories (including the waters and resources) are occupied and used by settler populations despite being unceded. In 1993, SN began Treaty negotiations in collaboration with the British Columbia Treaty Commission as part of the 6-stage treaty negotiation process (BC Treaty Commission, 2020). The SN treaty negotiations are currently at stage 3: ‘Framework Agreement’, with little to no progress as of late (Squamish Nation, 2020; BC Treaty Commission, 2020). In 2001, the Squamish Nation implemented the Xay Temixw (Sacred Land) Land Use Plan, which describes the community’s vision for the future of the forests and wilderness of their traditional territories (Squamish Nation, 2020b). 5.1.2 The Woodfibre Liquified Natural Gas Plant and Export Terminal Proposal In 2013, Woodfibre LNG Liquified Natural Gas (LNG) and Fortis BC proposed an LNG plant 7 kilometers southwest of the District of Squamish. The proposal included the construction of a 52km twinned pipeline from Indian Arm to Squamish, involving a 700-metre pipeline trench on the west side of 52 the Squamish River (managed by Fortis BC) (EAO, 2015b). The proposal also included an LNG plant with the production capacity of 1.5-2.1 million tonnes of LNG per year (managed by Woodfibre LNG) (EAO, 2015b). The project would add an additional two LNG tankers that would travel up the Howe Sound each month (EAO, 2015b). A significant portion of this work takes place in the SN’s traditional territory. The project requires both a BC environmental assessment (under the BC 2002 EAA) and a federal environmental assessment (under CEAA, 2012) (IAAC, 2014; Noble, 2016). Following a request to completely substitute the federal review process for the provincial review process under the British Columbia Environmental Assessment Act, 2002, by British Columbia, the Federal Minister of Environment approved the request, making the BC EAO the government authority for the assessment (IAAC, 2014). Included in the conditions set by the substitution agreement were that BC must conduct the procedural aspects of Aboriginal consultation and make available the funding provided by CEAA to support Aboriginal consultation to participating Indigenous Nations/groups throughout the substituted Environmental Impact Assessment (EIA) (IAAC, 2014). The project proposal was identified by the EAO as having the potential of impacting Squamish Nation’s claimed Aboriginal title and rights. Hunting, fishing, trapping, gathering, navigation (i.e., trails and travel ways), and archaeological and heritage resources and sites were identified as potentially impacted rights (EAO, 2015b). 5.1.3 Developing the Squamish Nation Process The Squamish Nation has participated in multiple EIAs under the BC Environmental Assessment Act and Canadian Environmental Assessment Act, 2012. The Squamish Nation viewed the EIA process administered through both the provincial and federal agencies had been inadequate in fulfilling the Crown’s constitutional duty to consult and accommodate their rights and, more fundamentally, failed to provide a framework for seeking consent (Bruce and Hume, 2015). As a result, the Squamish Nation developed and implemented its own independent assessment process for major projects proposed within its territory. This new independent Indigenous-led framework is known as the ‘Squamish Nation Process’ (SNP) (Bruce and Hume, 2015). Squamish Nation representatives Bruce and Hume explain that the purpose of creating the SNP was to “allow the Nation to make an informed decision about the impact a proposed project may have on their lands and waters today, and for generations to come, and to assess whether those impacts are acceptable in light of the Nation’s present and future goals and desires” (Bruce and Hume, 2015; 9). In creating a process that operates independently of the provincial/federal EIA process, the Squamish Nation created a ‘Framework Agreement’, which sets out the terms and conditions of participating in the SNP. Therefore, a willing proponent is a key aspect in implementing the SNP (Bruce 53 and Hume, 2015). Woodfibre LNG and SN agreed upon a number of terms and conditions formalizing the SNP through the Framework Agreement (Bruce and Hume, 2015): • “Squamish Nation will undertake their own independent assessment of the project and make their own determination on impacts on the Nation’s Aboriginal rights and/or title”; • “The Squamish Nation Process is confidential. Proponents agree to not provide any information regarding Squamish Nation Aboriginal rights and title, or any other interests, in their EA submissions to provincial or federal governments unless the Nation consents”; • “The Squamish Nation Process parallels, to the extent possible, the Crown EA to provide some certainty to proponents and the Crown”; • “The Nation does not formally participate in the Crown EA but agrees to use technical information submitted in the Crown process in its assessment of a project to avoid duplication of information and to make the Squamish Nation Process efficient and less costly. The Nation may send a technical consultant to attend EA Working Group sessions to get clarification on technical information. This also helps the Nation obtain as much relevant information that may be available and can use this information in its process in tandem with information it has collected through other means”; • “The proponent agrees to provide supplemental information to the Squamish Nation through an information request process, even if this information is not required under the EA process”; • “The Nation is able to fully consider the outcomes of an independent Traditional Use and Occupancy Study and how this information pertains to its understanding of the project rather than allowing the proponents and Crown to make those determinations based on their assumptions”; • “The proponent agrees to pay process fees that will fully fund the Squamish Nation Process”; • “If the conclusions of the Process point to approval, the Nation will issue an Environmental Certificate setting out the conditions of approval. This takes the form of a legally binding agreement, but is not the same as, and is separate from, any form of impacts and benefits agreement” (Bruce and Hume, 2015). 5.1.4 Implementing the Squamish Nation Process For the purpose of the assessment of Woodfibre LNG, the SNP operated outside of both the federal and provincial EIA legislation. Implementing a process outside of the provincial/federal EIA processes required a contractual arrangement (i.e., “Framework Agreement”) with project proponents. Framework Agreements are used to outline the terms and conditions of operating within the SNP legal process, providing SN with both legal and political leverage (Bruce and Hume, 2015). Framework 54 agreements associated with the SNP can be adapted to accommodate for variance in projects (Bruce and Hume, 2015). Integral to the successful implementation of the SNP is proponents ‘buy-in’, as proponents are not required to enter into a separate Indigenous-led assessment under BC’s 2002 EAA or Canada’s CEAA, 2012 (Bruce and Hume, 2015). The Framework Agreement further outlines the participant funding mechanisms provided to SN. The proponent was required to provide funding for the SNP, but details regarding funding amounts have remained confidential (Bruce and Hume, 2015; Squamish Nation, 2015). What is clear is that the proponent was required to fund the SNP for the entirety of the assessment. While funding provided by the proponent for the SNP remains confidential, the EAO provided $5,000 in capacity funding to SN during the Pre-Application phase and $10,000 during the Application Review phase. The Canadian Environmental Assessment Agency provided $52,600 in capacity funding to SN to support their participation in the substituted EIA process (EAO, 2015b). Bruce and Hume (2015) explain that the Squamish Nation must coordinate the SNP with the Crown to outline agreed upon timelines, as the SNP does not mirror the timelines set out by provincial/federal consultation or EIA processes. This requires the Crown to accommodate slight variances in timeline requirements for information sharing by SN. As such, the Crown amended ‘Section 11’ (which establishes the various timelines for each step and the requirements to consult impacted First Nations under the Environmental Assessment Act, 2002) to acknowledge that SN was conducting its own independent assessment process (Bruce and Hume, 2015; EAO, 2015b). The amended timelines established were viewed as an ‘ideal goal rather than a firm date’ (Bruce and Hume, 2015). Once the Crown, proponents, and the Squamish Nation created clear agreements on the SNP (i.e., time limits, framework agreements, etc.), the process proceeded (see table 5 for the procedural elements of the SNP). Throughout the SNP, SN relied on environmental review from consultants at Pottinger Gaherty Environmental Consultant Ltd (PGL) on the technical aspects of the project that concerned SN members in the assessment process (Squamish Nation, 2015). This was done through PGL participating in the provincial EAO Technical Working Group on behalf of SN for the project assessment. To avoid unnecessary duplication between the SNP and Crown EIA, consultants from PGL participated in the EIA Working Group to collect technical information for use within the SNP (Bruce and Hume, 2015). Beyond PGL attending the EIA Working Group, SN did not participate in the Crown EIA process (Bruce and Hume, 2015). 55 Step 1: Introduce Proposed Project • Proponent introduces the project to the SNP project review team. Once the project is introduced to the SNP project review team, the SNP project review team introduces the project to SN community members. • Community members get educated on both industry and project details. Industry details are given in advance of project details. • Community members are given an opportunity to voice their initial perspectives in terms of concerns or opportunities. Step 2: Technical Information Collection • The Squamish Nation uses an independent consultant to coordinate with the Crown EIA for gathering technical information (avoiding duplication). The sole purpose of this is to obtain relevant studies and seek clarity (information requests) in regard to the studies. • The Squamish Nation reviews proponent’s studies and makes decisions on whether they agree or disagree with findings. Step 3: Defining Interests and Scoping Assessment • The Squamish Nation begins collecting independent information, determining which Squamish Nation ‘values’ will potentially be impacted. • Valued components (VCs) are established as an organizing framework for the assessment of the potential effects of the project (EAO, 2015b). The Squamish Nation defines the VCs according to their own land management practices. Community meetings are used throughout this stage to help develop the VCs (according to Bruce and Hume 2015, this usually takes form as ‘Aboriginal Rights and Title’). The VCs are used to account for a larger number of interconnected guiding topics (GT) (i.e., impacts to marine environment). • Gathering further information is completed in defining scope and interests. For example, the Xay Temix (Sacred Land) Land Use Plan. Step 4: Assessment • Define impact significance in accordance with Squamish Nation’s beliefs, cultural history, collective community values, and environmental impacts. • Proposed impacts (and significance of impacts) on identified GT’s are interpreted and measured. • Draft report created. Step 5: Present Results to Community and Chiefs and Council • Results of the previous steps are presented to Squamish Nation community members. Here, the community is given the opportunity to develop possible conditions that must be met for project approval (i.e., impact benefit agreements, mitigation measures, etc.). • Chiefs and Council review all relevant information, ask questions, and provide feedback. • Information provided by both community members and Chiefs and Council is used for revisions to the assessment report, including revisions required for project approval. Step 6: Final Squamish Decision Making and Conditions • Impacts on established VC (and interconnected GTs) and draft conditions for project approval are submitted to Chiefs and Council is an assessment report. • Chiefs and Council vote on whether to reject or accept the recommended draft conditions on the project. • If approved, the proponent is required to enter into a legally binding agreement that solidifies requirements (i.e., environmental agreement), conditions, compliance, and enforcement. These are solidified through a Squamish Nation Environmental Certificate. If the proponent is unable to meet the requirements set out by the Squamish Nation Environmental Certificate, SN holds the authority to revoke it. • If rejected, SN would not discuss anything other than the conditions required for their approval. If the proponents are unable/unwilling to meet these conditions, SN would pursue legal options contractually under the Framework Agreement and constitutionally under constitutional law. Table 5: Steps of the Squamish Nation Process (Bruce and Hume, 2015) The steps of the SNP were designed as an assertion of SN’s jurisdictional capacity to make a free and informed decision in regard to project proposals, which reflect SN’s concerns and interests (Papillon and Rodon, 2019). In theory, the intended conclusion to this process was for SN to enter into dialogue with proponents and the Crown to discuss mitigation, conditions, and decision-making- as SN does not 56 formally participate in Crown EIA or consultation up to this point. Therefore, this should be the start of meaningful Crown consultation (Bruce and Hume, 2015). As originally intended, dialogue between SN and the Crown was to focus on the integration of SN’s proposed conditions and mitigation measures into the provincial EIA certificate or federal Environmental Assessment Decision Statement (Bruce and Hume, 2015). In reality, it did not play out as originally intended. While SN sought to have the SNP recognized by CEAA and the EAO as an independent and binding process, both CEAA and the EAO failed to recognize the authority of the SNP (Papillon and Rodon, 2019). As a result, SN did not participate in any consultation processes/activities with the Crown (Papillon and Rodon, 2019). Although a legally-binding agreement was not reached between SN, CEAA, and the EAO, SN was successful in establishing a legally-binding agreement with the proponent Woodfibre LNG, initiated through the issuance of the SN Environmental Certificate (Bruce and Hume, 2015; Papillon and Rodon, 2019). This solidified that if approved, the requirements, conditions, compliance, and enforcement conditions would be met (as intended), although not included within the Crown’s conditions for approval (Bruce and Hume, 2015; Papillon and Rodon, 2019). 5.1.5 Outcomes of the Squamish Nation Process In 2014, the Squamish Nation launched its SNP. With this, SN expressed that they would not negotiate impact and benefits agreements (IBAs) from the project until all potential environmental, cultural, and social impacts were adequately measured (Bruce and Hume, 2015). An independent report was produced and submitted to SN Chiefs and Council (see table 5, step 5) for review in June of 2015. After review by Chiefs and Council, 25 ‘stringent’ conditions of approval were produced and included within the SN Environmental Certificate (Squamish Nation, 2015). Agreements between SN, proponents (FortisBC and Woodfibre LNG Limited), and the province were negotiated upon and reached. 13 of the conditions applied directly to the proponent, the remainder were applied to the government and FortisBC (Noble, 2016). The parties involved agreed to satisfy the 25 environmental conditions set out by the SNP. More specifically, Woodfibre LNG committed to meeting conditions 1 to 12, Fortis BC committed to meeting conditions 13 to 20, the Province of BC committed to meeting conditions 21 to 24, and Woodfibre LNG, Fortis BC, and the Province of BC all agreed to meeting condition 25 (see table 6 for conditions of approval). With these conditions agreed upon, on November 23rd, 2018 the Squamish Nation granted its final approval for the project to proceed (Squamish Nation, 2018). The project was also approved both federally and provincially following the commencement of their EIA reviews. 57 Agreed upon conditions by Woodfibre LNG 1. More detailed information on the environmental impacts of the Woodfibre LNG seawater cooling discharge system and alternative technologies available. This resulted in an agreement to use air cooling technologies opposed to the originally proposed seawater cooling system. 2. Restoration of Mill Creek and adjacent areas to ‘green zone designation’. 3. Locate alternative water sources for periods of critical stream flow if water flow from Mill Creek is inadequate. 4. Fully fund a Squamish Nation marine use plan that would be designed to address the cumulative impacts of industrial developments in the Howe Sound. 5. Establish access agreements for Squamish Nation members through the ‘Controlled Access Zone’, which would allow for the practice of Aboriginal rights. 6. Co-manage environmental management and monitoring programs with the Squamish Nation. This includes fully funding Squamish Nation participation. 7. Provide insurance coverage to address personal loss and injury that results from project malfunctions or accidents. 8. Future project expansion will not take place without Squamish Nation approval. 9. LNG tankers will not refuel in Squamish Nation territory. 10. Noise impacts on the marine environment will be further investigated. 11. The Woodfibre LNG facilities operational scope of work will only be on the liquefaction and export of natural gas. 12. Mitigation measures proposed as voluntary in the EA application will become mandatory and legally binding. Agreed upon conditions by Fortis BC 13. Proponents must commit to a drilled underground pipeline which avoid industrial impacts on the Skwelwil’em Wildlife Management Area (WMA). 14. Barges are prohibited from the WMA. 15. Relocation of the compressor station. 16. Re-rout and include buffer zones for the pipeline away from identified cultural sites. 17. Co-manage environmental management and monitoring programs with the Squamish Nation. This includes fully funding Squamish Nation participation. 18. Provide insurance coverage to address personal loss and injury that results from project malfunctions or accidents. 19. Further pipeline expansion will not take place without Squamish Nation approval. 20. Mitigation measures proposed as voluntary in the EA application will become mandatory and legally binding. Agreed upon conditions by the Province of BC 21. Oil will not be authorized for transportation through the pipeline. 22. Government-to-Government discussions will take place in regard to marine use planning to mitigate the cumulative impacts of industrial development in the Howe Sound. 23. Collaborate with the Squamish Nation to create an emergency response plan for the Squamish Valley area. 24. Expansion of the LNG plant or pipeline will not take place without Squamish Nation approval. Agreed upon conditions by Woodfibre LNG, Fortis BC, and the Province of BC 25. Each party involved will enter into economic benefit agreements with the Squamish Nation that will reflect Squamish Nation rights and title. Before the project is approved by SN, the IBA must be completed and finalized to the satisfaction of SN. Table 6: Agreed upon conditions for approval under the SNP (Squamish Nation, 2015) 58 While the proponent agreed to satisfy the conditions of approval set out through the SNP, the Crown failed to include them within their separate conditions of approval (Papillon and Rodon, 2019). For example, while proponent Woodfibre LNG agreed to meet condition #1 (use of an air-cooling system), the Crown still approved the use of the seawater cooling system, despite this being a key concern communicated by SN through the SNP (Squamish Nation, 2015; Government of British Columbia, 2015a). Crown approval of seawater cooling was communicated under the 2015 BC Environmental Assessment Certificate (Government of British Columbia, 2015a). This resulted in inconsistencies between SN and Crown approval conditions. In 2017, proponent Woodfibre LNG filled an application for BC to amend their conditions of approval under the Environmental Assessment Certificate. As the proponent was legally bound to the conditions set out by the SNP under the SN Environmental Certificate, they honoured those and advocated for the use of the air-cooling system by applying for amendments to the Crown conditions for approval (Woodfibre LNG, 2017; Squamish Nation, 2015). The amendment was later made by BC, including air-cooling technology within the Environmental Assessment Certificate (Government of British Columbia, 2017). Decisions made through the SNP are based on assessing project impacts on SN rights and title as well as impacts on future generations. The SNP was implemented with the intention to facilitate a nation-to-nation dialogue between the Crown and the SN, where true consent (or lack thereof), is communicated by the SN to the Crown. As the Crown assessment agencies did not agree to include the SNP conditions for approval within the BC Environmental Assessment Certificate and Federal Environmental Assessment Decision Statement, this was not achieved. However, through the Framework Agreement and subsequent SN Environmental Certificate signed with the proponent, these conditions were met, as they were contractual, and therefore legally-binding. Therefore, if a project is approved through the SNP, the proponent could be confident that deliberate review has taken place to address SN interests and concerns. Most importantly, however, is that approval through the SNP means that consent has been given for the project (Bruce and Hume, 2015). 5.1.6 Squamish Nation Process Key Findings • SN viewed conventional EIA processes administered by the Crown as inadequate in fulfilling the Crown’s duty to consult, accommodating impacted rights, and providing a framework for consent. To overcoming these weaknesses, SN designed and implemented the SNP. • The SNP were designed as an assertion of SN’s jurisdictional capacity to make a free and informed decision in regard to project proposals, which reflect SN’s concerns and interests. • The SNP uses a legally binding ‘Framework Agreement’ with the project proponent (that is, a private contract, outside provincial and federal EIA legislation) which sets out the terms and 59 conditions to participating in the SNP. This includes an agreement for the proponent to fully fund the SNP. • The SNP is designed to run independently of Crown EIA processes. In doing so, SN does not participate in Crown consultations when operating through the SNP. • SN did not participate in the Crown EIA or consultation process. The only engagement in the Crown’s EIA process was done through consultants from PGL, who participated in the EIA Working Group strictly to collect technical information to avoid unnecessary duplication between the SNP and Crown process. • The SNP uses technical information from proponents, Crown EIA processes, and independent information. This information is used to determine which Squamish Nation values (according to identified VCs and GTs) will potentially be impacted. • The SNP includes Squamish Nation community members through the 6-step review process. • Once the SN approves a project in accordance with the SNP, SN engages in dialogue with proponents to discuss the terms and conditions for the issuance of a Squamish Nation Environmental Certificate. The proponent is required to meet these conditions if approved through the SNP, as the SN Environmental Certificate is legally binding, ensuring that conditions are met. • Under a circumstance where the proponent is unwilling or unable to meet the conditions set out by the Squamish Nation Environmental Certificate, SN holds the authority to revoke the certificate and pursue legal options. • While the proponent agreed to satisfy the conditions of approval set out through the SNP, for the permitting process of the Woodfibre LNG proposal, the Crown failed to include them within their separate conditions of approval. As a result, Woodfibre LNG applied for the BC Environmental Assessment Certificate to be amended to reflect the conditions approval set out by the SNP. 5.2 The Stk’emlu’psemc te Secwepemc Nation Assessment Process 5.2.1 The Stk’emlu’psemc te Secwepemc Nation The Stk’emlu’psemc te Secwepemc Nation (SSN) is a governance group which is part of the Secwepemc Nation whose traditional territories are situated in the area commonly referred to as Interior British Columbia (SSN, 2019). The Secwepemc people currently occupy territories that extend from the Columbia River valley along the Rocky Mountains, west to the Fraser River, and south to the Arrow Lakes (Tk’emlups, 2020). In 2007, a Resource Sharing Protocol Moratorium of Understanding (MOU) was established to manage conservation, negotiations, and resources of the Tk’emlu’ps te Secwepremc 60 Indian Band and Skeetchestn Indian Band (SSN, 2019), subsequently forming SSN (SSN, 2020). Similarly, to most of the land in BC, the SSN traditional territories (including the waters and resources) are occupied and used by settler populations despite being unceded. SSN is currently not involved in the BC treaty negotiation process (British Columbia, 2020). 5.2.2 The Ajax Mine Proposal In 2011, proponent KGHM Ajax Mining Inc. (KGHM), applied for EIA approval to develop, operate, and decommission an open-pit copper and gold mine and ore processing facility, located in the traditional territories of SSN near Kamloops, BC (CEAA and EAO, 2017). The Ajax Mine proposal would have a production capacity of 65,000 tonnes of ore per day with a 23-year operating life (CEAA and EAO, 2017). The footprint of the project would be approximately 1,700 hectares and would include an open pit mine, ore processing plant, tailings storage facility, mine rock storage facilities, water and waste management systems, a new 19km water line, a 5.3 km natural gas pipeline, and a 9km transmission line (CEAA and EAO, 2017). The Ajax Mine proposal required both provincial and federal review. A coordinated EIA was initiated to be carried out by CEAA (now called IAAC) and the BC EAO in preparing a joint federal Comprehensive Study/provincial Assessment Report which would meet the requirements set out by both the Canadian Environmental Assessment Act 2012, and the 2002 BC Environmental Assessment Act. Once completed, the project still required separate EIA decisions by federal and provincial decision-makers (CEAA and EAO, 2017). Of special significance to SSN, the proposed mine site was set to encompass an area known by SSN as Pipsell (SSN, 2017a). Pipsell is an area of cultural, spiritual, and physical importance to the peoples of SSN. This importance is defined in an oral history of “the Trout Children Stseptekwll” (SSN, 2017b). Pipsell includes several productive trout fisheries, including Goose Lake, and biodiverse grasslands, which act as important habitat for species such as mule deer which are important for SSN sustenance (EAO, 2017). As such, Pipsell is a significant place for the practice of SNN’s culture and rights. 5.2.3 The SSN Government-to-Government Framework and EA Collaboration Plan SSN have criticized provincial/federal EIA for inadequately incorporating Indigenous perspectives. To overcome this difficulty, SSN advocated for alternative approaches to completing the EIA. With this, the SSN Assessment Process (SSNAP) was developed to “Facilitate informed decision-making by the SSN Communities in a manner which is consistent with our laws, traditions, and customs and assesses project impacts in a way that respects our knowledge and perspectives” (SSN, 2017a). The BC EAO began consultations with SSN in 2011 for the Ajax Mine proposal, when the EIA was first initiated. The EAO concluded that SSN had a strong prima facie claim to Aboriginal rights in 61 the project area, and therefore consultations should be consistent with the deep end of the Haida spectrum (CEAA, EAO, 2017). This includes opportunities for SSN to participate in the working group, to review and comment on draft EIA documents, and to engage in government-to-government consultation regarding the Ajax Mine Project. In 2015, the government of BC initiated an Ajax government-to-government (G2G) discussion table, which included SSN, the BC EAO, the Major Mines Permitting Office of British Columbia, the Ministry to Energy, Mines, and Petroleum Resources, the Ministry of Indigenous Relations and Reconciliation, the Ministry of Forest, Lands, Natural Resource Operations and Rural Development, and other provincial ministries as necessary (CEAA and EAO, 2017). Through the G2G discussion table, a G2G Framework Agreement was created to establish a collaborative relationship between SSN and the BC government as it related to the Ajax Mine assessment (EAO and SSN, 2015). The G2G Framework set out the implementation of the SSNAP, Ajax EA Collaboration Plan, and if necessary, an Ajax Permitting Collaboration Plan for the proposed projects regulatory processes (EAO and SSN, 2015). It is important to note that the government-to-government framework and subsequent EA Collaboration Plan were led and initiated by BC provincial agencies (as listed above) and SSN. There was little to no involvement throughout this process from CEAA. Once the agreements were created, CEAA agreed to share the outcomes from the SSNAP with the federal decision-maker. Beyond this, many relations between SSN and CEAA remained the same as conventional consultation associated with EIA processes throughout the assessment of Ajax (CEAA and EAO, 2017). 5.2.4 Implementing the SSN Assessment Process Initiated through the G2G discussion table, SSN and the EAO began co-writing the Ajax Mine Project G2G Framework Agreement and Ajax Mine EA Collaboration Plan (EAO, 2017). The scope and purpose of the G2G Framework Agreement was to further the relationship between SSN and the province of BC through for the assessment of Ajax by implementing several structures and processes (EAO and SSN, 2015). These include: • Ajax Government to Government Committee (which consists of representatives from SSN, EAO, Responsible Ministers, and other government ministries (as appropriate) who are responsible for overseeing the implementation of the Agreement). • Negotiations Table (which consists of representatives from SSN and the relevant Responsible ministries. The Table is responsible for engaging on any potential Negotiated Accommodation Packages). • Chief to Chief Table (consisting of SSN leadership and assistant deputy ministers of the relevant responsible ministries. The Table may meet as required for issue resolution). 62 • Ajax EA Collaboration Plan (as discussed in more detail below). • Ajax Permitting Collaboration Plan (outlining collaboration of permitting if the project is approved). • Linkages to the SSN Assessment Process (including how to address and incorporate the SSNAP into the EIA Decision Package). • Linkages to broader reconciliation discussions. The EA Collaboration Plan was created to support informed decision-making, to ensure that SSN has direct input into the provincial EIA decision-making process, and to ensure that SSN’s input would be adequately considered (EAO, 2017). With this, SSN implemented the SSN Assessment Process (SSNAP), a unique community-based impact assessment framework created for the assessment of the Ajax Mine proposal (EAO, 2017). Furthermore, the plan included specific collaboration points (which contributed to over 50 meetings with SSN), timeline changes to meet the needs of SSN, additional rounds of comments and response resulting directly from the SSNAP, provincial participation in SSNAP events, and a commitment by the EAO to include and consider the results of the SSNAP in the assessment report prepared by the EAO and CEAA joint review (EAO, 2017). As outlined by the EA Collaboration Plan, the SSNAP will strive to follow the Common Process Schedule which outlines SSN’s involvement in the EAO EIA review process. This includes the agreed upon collaboration points which provides linkages between SSNAP and the BC EIA process (EAO and SSN, 2015). The EAO provided capacity funding to SSN for their participation throughout the EIA process. During the pre-Environmental Impact Statement (EIS)/Application phase, the EAO provided $5,000 to both the Tk’emlúps te Secwépemc and Skeetchestn Indian Band (for a $10,000 total) (CEAA and EAO, 2017). During the EIS/Application review, the EAO provided SSN with $40,000 of capacity funding. $150,000 of additional funding was provided by the Province of British Columbia, through the Ministry of Indigenous Relations and Reconciliation, to support the development of the Ajax Government-to-Government Framework, which includes the development of the EIA Collaboration Plan and the Ajax Mine Permitting Collaboration Plans (CEAA and EAO, 2017). SSN later contacted the province for additional funding to support the SSNAP, and the province responded by offering an additional $50,000 to support SSN’s participation (CEAA and EAO, 2017). CEAA supports Indigenous participation in EIA through a Participant Funding Program, which provides funding to reimburse the eligible expenses associated with EIA participation. Through the Participant Funding Program, SSN received $249,050 (CEAA and EAO, 2017). In addition, a number of agreements were initiated between KGHM and SSN, providing funding for the development of the Cultural Heritage Study, SSN’s participation in the EIA, and the completion of the SSNAP between 2008 and 2016 (CEAA and EAO, 2017). The funding dollar amount provided by KGHM to SSN is confidential. 63 With the creation of SSNAP through the EA Collaboration Plan, SSN communicated that SSNAP was designed to align with SSN laws, governance, traditions, and customs that would take into consideration both traditional knowledge and western science (SSN, 2017b). This was communicated through the “Principle of Walking on Two Legs”, which emphasizes Secwepemc knowledge and worldviews while also incorporating European derived “western” knowledge (SSN, 2017b). With the creation of the SSNAP, a process was created with a broader scope than provincial/federal EIA, as it considers the cumulative impacts of a project on culture, community, and values inherent to SSN knowledge and perspectives (SSN, 2017b). For the use of the SSNAP, SSN considered the Valued Components (VCs) that were part of the coordinated federal and provincial EIA. Additionally, SSN requested that two more VCs were included to address issues of specific importance to SSN that are outside the scope of provincial and federal EIA legislation. These included aboriginal economies and current use of lands and resources for traditional purposes (see table 7). Likewise, for the completion of the SSNAP, SSN used the Local Study Area (LSA) and Regional Study Area (RSA) defined by the federal and provincial EIA. The LSA was defined as “the project footprint and surrounding area within which there is a reasonable potential for effects due to an interaction with a project component or activities” (CEAA and EAO, 2017; 9). The RSA included “the local study area and areas within which the project’s environmental effects may overlap or act cumulatively with the environmental effects of other projects or activities” (CEAA and EAO, 2017; 9). VC Categories VC’s Environment • Surface Water Quality and Quantity • Groundwater Quality and Quantity • Fish and Fish Habitat • Vegetation (including rare plants, wetlands, and grasslands) • Wildlife (including amphibians, reptiles, migratory birds, raptors, non-migratory game birds, and mammals) • Greenhouse Gases • Air Quality • Noise and Vibration • Current Use of Land and Resources for Traditional Purposes Health • Human Health (including air quality, domestic water quality, country foods, noise, and vibration) Social and Economic • Community Well-being • Recreation • Local and Regional Economy • Accommodation, Infrastructure, Public Facilities, and Services • Land and Resource Use • Property Values • Aboriginal Economies Heritage • Heritage Table 6: SSNAP Valued Components (EAO, 2017) Due to the nature of the SSN connection to the land, the SSNAP for Ajax mine was developed to be consistent with their own Indigenous governance and Indigenous knowledge, and also incorporate the 64 role of Pipsell as a cultural keystone area (SSN, 2017b). Going forward, project reviews subject to the SSNAP will require adjustments to ensure that it reflects the SSN relationship to the site in the context of another project, as well as procedural changes following subsequent assessments. At the community level SSNAP worked to facilitate collaboration and communication with community members (EAO and SSN, 2015). The SSNAP for the Ajax mine review included a number of steps (see table 8 for details) (EAO and SSN, 2015). Step 1: Select Representatives for an SSN Review Panel • In collaboration with community members, SSN selects representatives for an SSN Review Panel. • For the assessment of Ajax Mine Project, the SSN Review Panel includes Tk’emlúps te Secwépemc and Skeetchestn Chief and Councils, two family appointed representatives from each of the 13 families in the SSN communities, consisting of 42 panel members. • The SSN Review Panel is put together to include family, Elder, and Youth representatives, who will be involved throughout the entire assessment process in reporting back to their respective families and communities. • The make-up of the SSN Review Panel is subject to change for future project reviews completed through the SSNAP. Step 2: Conduct Oral Proceedings • The SSN Review Panel conducts oral proceedings that considers the project and its impacts. • Oral proceedings are conducted in accordance to Secwepemc laws, traditions, customs and land tenure systems, and may include input from SSN Knowledge Keepers, SSN community members, SSN technical experts (and other experts), other First Nations, KGHM Ajax Limited, and/or others as identified by SSN. Step 3: Prepare a Review Panel Decision Package • SSN Review Panel prepares a Decision Package for the SSN Joint Council (which is comprised of leadership from the Skeetchestn Indian Band and the Tk’emlups Indian Band). • The SSN Joint Council uses the Decision Package to decide whether or not SSN gives their free, prior, and informed consent to develop lands and recourses through the Ajax Mine Project. • Decisions are made in accordance with SSN laws, traditions, customs, and land tenure systems. Step 4: Review and Consider the Review Panel Decision Package • SSN reviews the Decision Package, including any proposed negotiation accommodation packages that would further government to government agreements. • SSN Joint Council start working to arrive at a decision on whether SSN supports/agrees to the project proceeding, and if so, on what conditions. Step 5: Presenting Information to Community Members • Information regarding project details and the SSNAP was delivered by SSN Review Panel members who reported back to the 13 families within SSN communities. In addition, mail-outs and door-to-door information initiatives were also utilized to deliver key information to community members. Step 6: Final Decision • SSN Chiefs and Council make the final decision on the significance of the impacts of the project based on the SSN Review Panel Decision Package. • Decision results are provided to the BC EAO. • Once the decision results are received by the EAO, they are referred to provincial ministers to inform their decision on the issuing of the EA certificate. Table 7: Steps in Completing the SSNAP (EAO and SSN, 2015). 65 SSN’s key considerations gathered through the SSNAP were communicated through honouring the connectedness of the land, sky, water, and cultural aspects of their territory. Key concerns identified through the SNNAP related to ‘xqelmecwétke’, which includes components of the water world and water people, sky world and grandfather sky, holistic health, intergenerational teachings and knowledge transfer, and indigenomics7 (CEAA and EAO, 2017). The reports produced by SSN during their assessment communicated the importance of the components and the anticipated impacts the project would have on them if approved. In particular, the SSN Panel Recommendations Report (2017) used the components encapsulated within xqelmecwétke in relation to Pispell as a cultural keystone area according to the principle of Walking on Two Legs (SSN, 2017b). As seen in Table 8, to conclude the SSNAP, the SSN Review Panel Decision Package is referred to SSN Chiefs and Council to guide their final decision on the project in regard to significance of the anticipated impacts. The SSN Review Panel recommended that the Ajax Mine Project should not proceed, as the anticipated impacts will negatively affect the maintenance and continuity of traditional, cultural, and spiritual practices. As described in the SSN Panel Recommendations Report (2017), this aligns with Secwépemc laws, customs and traditions, which establish the obligation of Secwépemc people to care for and be responsible for the protection and management of lands within our Secwépemc Territory (SSN, 2017b). 5.2.5 Outcomes of the SSN Assessment Process To conclude the SSNAP, the SSN Joint Council considered the best use of Pipsell as a cultural keystone area and developed a specific land use objective for the site. The SSN Panel Recommendations Report (2017b) states “Oral histories associated with Pipsell and the project area, and the areas surrounding the project area are foundational for Secwépemc stsq’ey’ [Indigenous laws] that deal with reciprocal and mutually accountable relationships between humans and the environment” (21). Based on this statement, through the land use objective for Pipsell, SSN “asserts the right to maintain and ensure the continuity of [their] traditional cultural and other practices, exercise [their] traditional and cultural heritage and practices and carry on [their] traditional customs and spiritual activities in the historical location where those activities where and are traditionally carried on. These rights include, but are not limited to, the following” (21): • “Determine the uses to which our lands will be put, both now and in the future, in a way that is sustainable for future generations”; 7 Indigenomics refers to “the practice of brining an Indigenous perspective to economic and social development” (Devlin, 2016). 66 • “Protect lands for the purpose of maintaining traditional cultural and other practices, their way of life, and the Secwépemc economy”; • “Use and benefit from resources and trade in resources, including, without limitation, land, timber, and minerals (including copper, gold, silver, salt, jade, obsidian, mica, coal, ochre, and spiritual aggregates (sweat rock) and other minerals)”; • “Maintain and preserve forest habitat that supports plant and wildlife populations necessary to exercise aboriginal rights and enjoy the benefits of aboriginal title”; • “maintain the water, watersheds and the air and airsheds and a sustainable ecosystem within SSN Territory”; • “Manage resources, including, without limitation, replanting of tubers and bulbs and controlled landscape burning”; and • “Carry out a variety of cultural and spiritual customs, ceremonies, and traditions within SSN Territory including spiritual ceremonies at or near Pípsell” (SSN, 2017b; 21-22). With the assertion of SSN rights, the Pipsell land use objective determines that the land uses of Pipsell and the surrounding areas must be consistent with the principle of a culturally enriched sustainable land use (SSN, 2017b). The land use objective emphasizes that all uses of the lands and resources must be approved by SSN, recommending that activities consistent with the land use objective must be sustainable into the future (SSN, 2017b). This means avoiding severe disruptions to the landscape, water, air, and the related aspects of cultural heritage, as they would fundamentally change the character of the place, therefore conflicting with sustainable land use (SSN, 2017b). The SSN Panel recommended a number of activities, which would be consistent with the land use objective for Pipsell (see table 9). Pipsell Land Use Objective Activities Examples 1. Designation of Pipsell as a cultural heritage site. • Identification of Pipsell as a cultural keystone area. 2. Educational uses. • Intergenerational teachings of traditional hunting, fishing, and gathering practices. • Secwépemc university, teaching traditional and western aspects of geological knowledge, hydrology, ethnobotany, atmosphere (wind and weather), fire management, wetlands, ornithology, and cultural education for youth. 3. Non-destructive resource uses. • Traditional hunting, fishing, and gathering. • Forest management (but not sustained logging or clear cutting) 4. Cultural uses. • Sweats, ceremonies, summer camps, family gatherings, cultural village, and pit house. 5. Restoration and revitalization activities • Prescribed burning. Table 8: SSN Panel Activities Consistent with the Land Use Objective for Pipsell (SSN, 2017b). 67 Following the completion of the SSNAP, the SSN Joint Council accepted the recommendations of their community panel, including the end land use objective for Pipsell, concluding that the Ajax Mine proposal would be in conflict with SSN land use objectives (EAO, 2017). As a result, SSN rejected the Ajax Mine Project, stating that they do not give their free, prior, and informed consent for the construction of the mine (EAO, 2017). With this decision, SSN communicated that the development of Ajax Mine would result in significant environmental effects and irreversible changes to the area (EAO, 2017). Furthermore, it was determined that if approved, the Ajax Mine Project would alter SSN’s physical and spiritual connection to Pipsell, having significant impacts on the intergenerational transfer of knowledge and health of SSN communities and peoples (SSN, 2017b; EAO, 2017). Following the SSN decision, the EAO and SSN continued to work together on the completion of the EIA (EAO, 2017). SSN provided a formal decision package to the EAO and CEAA, which was considered in the Joint Assessment Report and included in the referral package for the responsible Ministers (EAO, 2017). Following the delivery of the referral package to the responsible Ministers, both British Columbia and Canada rejected the project on the likelihood of significant adverse environmental effects (Government of Canada, 2018). 5.2.6 SSN Assessment Process Key Findings • Initiated by an Ajax Mine G2G discussion table, a G2G Framework was created to establish a collaborative relationship between SSN and the BC government as it related to the Ajax Mine assessment. The G2G Framework initiated SSN and the EAO co-writing an Ajax Mine EA Collaboration Plan. With this, SSN created their own assessment process. • The SSNAP was designed to run alongside, and where appropriate, collaboratively with the BC and federal EIA processes. • The EA Collaboration Plan included specific collaboration points (which contributed to over 50 meetings with SSN) • The EA Collaboration Plan solidified a commitment by the EAO to include and consider the results of the SSN Assessment Process in the assessment report prepared by the EAO and CEAA joint review. • The SSNAP was created to provide flexibility in process design. Future project assessed under the SSNAP will be adapted to reflect variable proposals and contexts (i.e. the SSN relationship to the site within the context of another project) of future projects as determined by SSN. • The SSNAP was created to be consistent with SSN governance and knowledge and incorporated the role of Pipsell into the assessment as a cultural keystone place. • Through the completion of the SSNAP, SSN asserted their Indigenous environmental governance. 68 • The SSNAP selects representatives for an SSN Review Panel to participate in the review process with the final output of an SSN Review Panel Decision Package. The SSN Review Panel includes Tk’emlúps te Secwépemc and Skeetchestn Chief and Councils, two family appointed representatives from each of the 13 families in the SSN communities, consisting of 42 panel members. • SSNAP uses a 6-step assessment. The SSN Joint Council makes the final decision on the significance of the impacts of the project based on the SSN Review Panel Decision Package. Decision results are provided to the BC EAO. Once the decision results are received by the EAO, they are referred to provincial Ministers to inform their decision on the issuing of the BC EA Certificate. • In the final stages of the SSNAP, the SSN Review Panel considered the best use of Pipsell as a cultural keystone area, recommending an end land use objective for the site. • The SSN Review Panel recommended that the project should not proceed, as it does not match the end land use objective of Pipsell. Following this, these recommendations were referred to the SSN Joint Council for their final decision. • To conclude the SSNAP, the SSN Joint Council accepted the recommendations made by the SSN Review Panel, including the end land use objective for Pipsell. With this, SSN rejected the project. 5.3 The Tsleil-Waututh Nation Assessment 5.3.1 The Tsleil-Waututh Nation The Tsleil-Waututh Nation (TWN) are a Coast Salish Nation, whose traditional territories are located in what is now referred to as Vancouver, British Columbia (TWN, 2019). The TWN traditional territories encompasses the wilderness and watersheds northwards to Mount Garibaldi, Coquitlam Lake in the east, and Howe Sound to the west (TWN, 2020). Similarly, to most of the land in BC, the TWN traditional territories (including the waters and resources) are used by settler populations despite being unceded. TWN is currently undergoing Treaty negotiations in collaboration with the British Columbia Treaty Commission as part of the 6-stage treaty negotiation process. The TWN treaty negotiations are currently at stage 4: ‘Agreement-in-Principle’, as TWN will continue to negotiate a treaty which “prescribes Tsleil-Waututh inclusion in all decisions involving our traditional territory” and one that asserts “our constitutionally protected Aboriginal rights over our traditional territory” (TWN, 2020). 5.3.2 The Trans Mountain Pipeline and Tanker Expansion Proposal In 2013, Kinder Morgan Canada filed an application with the National Energy Board (NEB) for the Trans Mountain pipeline and tanker expansion (TMEX) proposal. The project proposal included the 69 developments that would twin the existing Trans Mountain pipeline that would carry crude and refined oil from Alberta to the coast of British Columbia, delivery the product at the existing Westridge Marine Terminal in Burnaby, BC. The terminal would require expansion as a result of increased capacity from the project. The pipeline would triple the volume of crude oil moved along the existing pipeline route (from 48,000 to 142,000 cubic metres per day) (TLRD, 2015; NEB, 2016). Once transported through the pipeline, approximately 70% of the diluted bitumen would be shipped from the Westridge Marine Terminal in Burnaby, BC (TLRD, 2015; NEB, 2016). There would be a seven-fold increase in the frequency of tanker departures from Burrard Inlet- Moving from roughly one per week to roughly one every two days (TLRD, 2015; NEB, 2016). Several components of the TMEX proposal fall within the TWN Consultation Area (explained below), including the Marine Terminal, which is located less than two km across the water from Tsleil-Waututh Indian Reserve No. 3 (TLRD, 2015; NEB, 2016). TWN raised multiple concerns to NEB and Kinder Morgan Canada in regard to the TMEX project proposal prior to the TWN assessment, as the seven-fold increase in tanker traffic was anticipated to have significant impacts on TWN’s ability to practice Aboriginal rights within the Burrard Inlet. Since several components of the TMEX proposal fell within the TWN Consultation Area, pursuant to the TWN Stewardship Policy (explained below), TWN carried out their own assessment, which was intended to run in parallel to the Crown process (TLRD, 2015). The TWN assessment process was implemented as an assertion of the Nation’s inherent jurisdiction and law, acting on their authority to assess and decide whether TMEX should proceed within its territory (TLRD, 2015; Christie et al., 2015). The TWN assessment process was designed to measure both biophysical and the cultural, spiritual, legal, and governance rights and responsibilities of TWN (Christie et al., 2015). As a result of an equivalency agreement (NEB-EAO Agreement) for EIAs that require both provincial and NEB reviews, BC accepted the National Energy Board’s (NEB) EIA as an equivalent assessment to one conducted under the BC Environmental Assessment Act (EAO, 2016). As such, the NEB-led the review process for the TMEX proposal in accordance with the NEB Act and CEAA, 2012. The provincial EAO stated that they would continue to conduct Aboriginal consultation in collaboration with the federal Crown throughout the NEB review (EAO, 2016). TWN expressed concerns over the NEB-EAO Agreement, noting that they viewed relying on a singular NEB process as flawed (BC Legislative Library, 2017). In an attempt to overcome these flaws while also upholding TWN stewardship responsibilities and asserting TWN Jurisdiction, TWN implemented their own independent assessment process as a separate legal order from the Crown. In 2014, following the NEB request for assessments completed by other jurisdictions, TWN applied to be treated as an independent jurisdiction completing a separate assessment process- holding responsible authority with respect to a designated project (under Section 18 of CEAA, 2012) (TWN, 2014). The NEB did not have a process for engaging with Indigenous-70 led assessments completed as an independent jurisdiction. The TWN participated in the NEB review as an intervenor to provide a basis for future legal resources8 (BC Legislative Library, 2017; Hanson, 2018). TWN’s participation in the Crown consultation process was primarily funded through a contribution agreement signed with NEB for a total of $40,000 of participant funding (BC Legislative Library, 2017). Another $26,000 was provided to TWN by the Major Projects Management Office (MPMO) for participant funding in the NEB hearing and consultation activities following the release of the NEB Recommendation Report (BC Legislative Library, 2017). The EAO provided TWN with $5,000 in capacity funding to support their participation in Crown consultation processes (BC Legislative Library, 2017). Although TWN received participant funding from the Crown, this dollar amount does not accommodate to the financial and human capital required to carry out the TWN assessment process. As a result, TWN funded the majority of the work required for the completion of the TWN assessment independently. The funding amount and sources for the independent TWN assessment process have remained confidential. 5.3.3 Tsleil-Waututh Nation Stewardship The Tsleil-Waututh Nation (TWN) have an established ‘Consultation Area’, to outline their territorial jurisdiction, which extends from the United States border (in the south) to Mt. Garibaldi (in the north) (Hanson, 2018). In 2009, TWN created their ‘Stewardship Policy’, which is an expression of TWN’s jurisdiction, laws, and obligations to their territory (Hanson, 2018; TLRD, 2015). The TWN Stewardship Policy sets out what meaningful consultation requires for TWN, both procedurally and substantively. As such, the TWN Stewardship Policy established that any decisions or activities that may potentially impact TWN rights, title, or interests within the Consultation Area must undergo a process of review and consultation (Hanson, 2018; TLRD, 2015). The TWN Stewardship Policy is provided to each entity which sends TWN a referral (requesting consultation), outlining TWN’s requirements for meaningful consultation, an overview of the TWN review process, and TWN’s conditions for project approval (Hanson, 2018; TLRD, 2015). TWN uses its Treaty, Lands, and Recourse Department (TLRD) to carry out the bulk of these responsibilities (Hanson, 2018). In addition, TWN implemented a ‘Marine Stewardship Program’ in 2005 (TLRD, 2015). The Marine Stewardship Program aims to restore the Burrard Inlet to its pre-contact status, by working to achieve two desired environmental outcomes, which include: 8 See Hanson, 2018, section 9 ‘Why do Indigenous Groups Participate? Consultation as Coercive Process’ for a further description of why Indigenous Nations/groups feel they must participate in Crown consultation processes, as not participating can wrongly be interpreted as consent. 71 • “Restoring Burrard Inlet to a condition where wild marine foods are abundant and safe to eat and a subsistence economy may be re-established (TLRD, 2015; 40)” • “Restoring Burrard Inlet to a condition where cultural work may occur in clean water, without exposure to contaminated sediment, at sites that are physically intact and free from impaired views, violations of privacy, and noise intrusions. (TLRD, 2015; 40)” The TWN Marine Stewardship Program, as guided by its desired outcomes, asserts TWN stewardship responsibilities, dictating that all projects and activities must provide tangible environmental improvements which support Tsleil-Waututh title, rights, and interests (TLRD, 2015). This assertion further includes three facets: • “Recognition of Tsleil-Waututh legal authority, which brings with it a corresponding level of governance over stewardship planning and implementation” (TLRD, 2015; 40). • “On-the-ground Tsleil-Waututh regulatory action, and habitat and species restoration” (TLRD, 2015; 40). • “Long-term commitments from all governments to oversight, monitoring, and capacity building” (TLRD, 2015; 40). 5.3.4 Implementing the Tsleil-Waututh Nation Assessment The TWN Stewardship Policy was created as an assertion of TWN’s inherent governance, legal orders, and jurisdiction, providing opportunities for TWN and the Crown to engage as separate legal jurisdictions through government-to-government dialogue (Hanson 2018; TLRD, 2015). For dealing with project proposals identified as potentially impacting TWN rights, title, or interests, TWN’s decision-making structure has two broad lenses: 1. From the onset, decision making is guided by Coast Salish Law, which instils TWN with “a sacred obligation to protect, defend, and steward the water, land, air, and resources of the territory” (TLRD, 2015; 53), thus providing environmental, cultural, spiritual, and economic foundations for future generations (TLRD, 2015). This first lens is a threshold lens, meaning TWN will only assess project proposals further if they do not violate TWN legal principles (TLRD, 2015). In measuring project proposals using a legal principal threshold, TWN’s TLRD technical staff gather and use baseline data for territorial management (Hanson, 2018; TLRD, 2015). This includes potential impacts of proposed projects, design and implementation of restoration projects, and avenues for restoring cultural and health opportunities for TWN members to access and use their lands, waters, and resources (Hanson 2018; TLRD, 2015). Here, both TWN law and technical analysis are used to inform TWN decision makers and elected leadership (Hanson, 2018). 72 2. As a government, TWN emphasizes that they are not opposed to development, and are supportive of sustainable development (Hanson, 2018). Before decisions are made, TWN requires that an assessment is completed to better understand and measure anticipated effects. Once assessed through the first lens, if potential negative effects of the proposed development do not exceed TWN legal limits, TWN further assesses potential impacts while engaging in dialogue with proponents and assessment/regulatory agencies to determine how to avoid/mitigate impacts and improve project design so that is has a positive impact of the TWN territory and people (Hanson, 2018). The TWN assessment for the TMEX project proposal was conducted independently of the Crown assessment by TLRD staff (TLRD, 2015). Throughout the TWN assessment, technical analysis was aided by commissioning five experts who produced reports for TWN on the TMEX proposal and potential impacts. These included an Oil Spill Risk Assessment, Oil Spill Trajectory Analysis, a report on Behavior, Fate, and Consequences of Spilled Dillbit, Oil Spill Response Gap and Capacity Analysis, and an Oil Spill Air Quality Assessment (TWN, 2015). In accordance with the TWN Stewardship Policy, the project was assessed using the two broad lenses for decision making in regard to impacts on TWN rights, title, or interest within the TWN Consultation Area (TLRD, 2015). The TWN assessment started by using first lens, which would measure the potential negative effects of the TMEX proposal on the natural and cultural resource base (see table 10 below). 73 Table 9: TWM Assessment Key Questions and Associated Research Activities (TLRD, 2015). Answering key questions in the first lens involved the identification and assessment of TWN values (i.e., valued components)- which reflect TWN title, rights, and interests (see table 11) (TLRD, 2015). For the purpose of the assessment, the effects of the TMEX proposal were categorized and measured according to ‘marine shipping direct effects’, ‘oil spill effects’, and ‘cumulative effects’ in relation to the identified TWN title, rights, and interests (TLRD, 2015). Key consequences of the potential marine shipping direct effects, oil spill effects, and cumulative on TWN values include: • “Adding to negative cumulative effects in Burrard Inlet, thereby further compromising the environmental integrity of Burrard Inlet and undermining the Marine Stewardship Program”. • “Undermining Tsleil-Waututh’s ability to once again be able to harvest and eat abundant, safe marine foods from Burrard Inlet”. • “Preventing recovery of a subsistence economy based on harvest, use, sale, and trade of salmon, herring, clams, and birds”. Lens 1 (Assessment of the project in accordance with TWN legal principles) Key Questions: • What impact will the TMEX proposal have on the natural and cultural resource base of the proposed project area? • What impact will the TMEX proposal have on the socio-economic and cultural conditions of Tsleil-Waututh and our members? • Will the TMEX proposal interfere with Tsleil-Waututh stewardship and restoration efforts? • What will the TMEX proposal contribute to the cumulative effects of past land-use decisions? • Does the TMEX proposal have the potential to deprive future Tsleil-Waututh generations of the control and benefit of our waters and lands? • Does the TMEX proposal jeopardize, prejudice, or otherwise compromise Tsleil-Waututh title, rights, or interests? • Does the TMEX proposal represent the best use of lands and resources for the present and for the future? Steps in Answering the Lens 1 Key Questions: 1. Review of available information and reports provided by experts commissioned by TWN. In completing lens (phase) one, TWN commissioned five expert reports to review the risk, response, and consequences of oil spills in the Consultation Area. 2. Assessment of how information informs key questions. 3. Application preparing the of all relevant information to answer each key question. While the report for the first lens was being prepared, a community engagement meeting was held to gather community input, review evidence, and discuss potential effects. Opportunities were also provided for Kinder Morgan Canada (TMEX proponent), the National Energy Board, and Natural Resources Canada to comment on the assessment prior to its submission to Chief and Council. 4. TWN staff provide findings on whether or not the TMEX proposal is an appropriate land-use decision in accordance with the Stewardship Policy. 5. Once assessed through the first lens by TWN technical staff, the information was presented to TWN Chief and Council, to decide whether they would accept the findings, and either withhold or provide consent for the project. Only if the threshold is met using the first lens can the proposal proceed to the second lens. If the proposal does not meet the threshold the assessment will end without a second lens of inquiry. 74 • “Undermining Tsleil-Waututh’s ability to engage in cultural work in clean water with visual quality, privacy, and quiet”. • “Jeopardizing contemporary Tsleil-Waututh economic initiatives, such as real estate development, cultural tourism, and other business enterprises” (TLRD, 2015; 71). In addition, the TWN assessment concluded that if the TMEX proposal is implemented, the goals set out by the Marine Stewardship Program will compromised in two ways. These include: • “The TMEX proposal would slow or deny achievement of the objectives of the Marine Stewardship Program” (TLRD, 2015; 84). • “Approving the TMEX proposal would violate Tsleil-Waututh law, because it undermines stewardship obligations” (TLRD, 2015; 84). Tsleil-Waututh Title, Rights, and Interests Marine Shipping Direct Effects Oil Spill Effects Cumulative Effects Archaeological and Cultural Heritage Sites Shoreline Erosion Water and air pollution; sediment contamination; shoreline cleanup damage More physical damage to sites already harmed by past development; setback to Tsleil-Waututh cultural renaissance Contemporary Economy On-water hazards; perceived pollution; physical obstruction; disturbance to views Water and air pollution; sediment contamination Further negative economic impacts on Tsleil-Waututh Nation and its members Cultural or Spiritual Practices and Places Perceived pollution; physical obstruction; loss of quite or privacy; shoreline erosion; disturbance to views Water and air pollution; sediment contamination; shoreline cleanup damage More physical damage to sites already harmed by past developments; further interruption of our obligations to our ancestors; setback to Tsleil-Waututh cultural renaissance Further Cultural Transmission Perceived pollution; physical obstruction; loss of quiet or privacy; disturbances to views Water and air pollution; sediment contamination Further alienation of Tsleil-Waututh youth from Tsleil-Waututh elders and their knowledge of history, traditional ways and skills; setback to Tsleil-Waututh cultural renaissance Cultural Travel On-water hazards; perceived pollution; physical obstruction Water and air pollution; sediment contamination Restricted movement throughout Burrard Inlet; reduced access to harvest and cultural sites; reduced connection to our waters and lands 75 Tsleil-Waututh Title, Rights, and Interests Marine Shipping Direct Effects Oil Spill Effects Cumulative Effects Environmental Integrity and Stewardship Responsibility Acoustic disturbance; on-water hazards; perceived pollution; physical obstruction; loss of quiet or privacy; shoreline erosion; disturbances to views Water and air pollution; sediment contamination; loss, harm, or contamination of habitat or species; shoreline cleanup damage Further exceedance of Burrard Inlet’s environmental carrying capacity and greater delay in achieving Tsleil-Waututh stewardship objectives; additional impediments to the restoration of our subsistence economy; setback to Tsleil-Waututh culture renaissance Individual and Community Health On-water hazards; physical obstruction; loss of quiet or privacy; disturbances to views Water and air pollution; sediment contamination; loss, harm, or contamination of habitat or species Additional risk of disease or illness; further reduction in quality of life Marine Fish and Wildlife Habitat and Species; Resource Access and harvest Use; Subsistence Economy Acoustic disturbance; perceived pollution; physical obstruction; shoreline erosion Water and air pollution; sediment contamination; loss, harm, or contamination of habitat or species; shore- line cleanup damage Further delay in achieving Tsleil-Waututh stewardship objectives; additional impediments to restoration of our subsistence economy and to our livelihood options; further interruption of obligations to the ancestors Title, Governance, and Future Benefit Violation of Tsleil-Waututh law Violation of Tsleil-Waututh law Further compromises Tsleil-Waututh’s ability to uphold our stewardship obligations in Burrard Inlet Tsleil-Waututh Reserve Shoreline erosion, perceived pollution; disturbances to views Water and air pollution; sediment contamination; shoreline cleanup damage More physical damage to sites already harmed by past development Water Perceived pollution Water or air pollution; sediment contamination More contamination of already polluted water, making it even more hazardous Table 10: TWN Values for the Assessment of the TMEX Proposal (TLRD, 2015; 80-81). 5.3.5 Outcome of the Tsleil-Waututh Nation Assessment The TWN assessment report concluded that the TMEX proposal does not represent the best use of Tsleil-Waututh territory, including its water, land, air, and resources (TLRD, 2015). Furthermore, it was concluded that TMEX has the potential to deny past, current, and future generations the benefits of the water, land, air, and recourses throughout the territory (TLRD, 2015). The assessment recommended that TWN Chief and Council continue to withhold TWN support for the TMEX proposal (TLRD, 2015). Based on the findings and recommendations of the report, TWN Chief and Council decided to reject the 76 project, to not grant TMEX authorization under Tsleil-Waututh law for the project to proceed (therefore ending any further assessment by TWN), and to withhold its consent to the project proceeding in TWN’s territory (TLRD, 2015). Prior to the commencement of the NEB review, TWN notified NEB of their expectation to be treated as a legal jurisdiction with the authority to assess and make decisions on the project in parallel to the Crown process (TWN, 2014). NEB ignored this request, and without input from TWN, it defined the factors and scope of the EIA. The NEB determined that Kinder Morgan’s application was complete, and that the assessment would proceed; and formalized the hearing schedule, timelines, and the process for receiving and testing evidence (TWN, 2014). Following the completion of the TWN assessment, TWN filed their assessment report with NEB as an independent jurisdiction (Clogg et al., 2017). The intention of doing so was for NEB to use the TWN assessment in parallel to the Crown assessment as a basis for a government-to-government agreement discussion which could reconcile the conflicting views both TWN and the Crown hold towards the project (Clogg et al., 2017). But this did not occur. The NEB received the TWN Assessment as a “traditional land and resource use study”, without addressing or acknowledging the application of TWN laws and jurisdiction enacted through the review and rejection of the project (Clogg et al., 2017). Following the NEB review process and Crown consultation processes, both the NEB and the EAO advised that the project should be approved. Both NEB and the EAO were satisfied with the Crown’s duty to consult and accommodate Aboriginal groups and determined that project approval was in public interest (NEB and EAO, 2016; NEB, 2016). Following these recommendations, the project received NEB approval in 2016, and then a BC Environmental Assessment Certificate in 2017. Following these approvals, TWN has responded by challenging this approval in court through Tsleil-Waututh v. Canada (Attorney General). The Tsleil-Waututh Nation argued that NEB had failed to properly discharge the duty to consult (Wright, 2018). The Federal Court of Appeal found that the Crown had failed its constitutional duty to consult. Following re-initiated Aboriginal consultations as a result of Tsleil-Waututh v. Canada, the project was later approved, for the second time, by the Governor in Council in 2019 (Government of Canada, 2019b; Natural Resources Canada, 2019). The second approval was challenged in court on the basis that the Crown had inadequately considered the impacts identified through the TWN assessment; however, the approval was upheld on the basis that the Crown had adequately consulted Indigenous Nations/groups prior to the second approval (Coldwater First Nation, 2020). 77 5.3.6 Tsleil-Waututh Nation Assessment Key Findings • TWN uses an established ‘Consultation Area’, delineating TWN territorial jurisdiction. Within the Consultation Area, decisions or activities that may potentially impact TWN rights, title, or interests must undergo a process of review and consultation. • Activities or decisions which undergo review (i.e., through the TWN Assessment Process) within the Consultation Area are done in accordance with the TWN ‘Stewardship Policy’. When consultation is initiated, the Stewardship Policy is provided to proponents to outline TWN’s requirements for meaningful consultation, an overview of the TWN review process, and TWN’s conditions for project approval. • The TWN Assessment Process is designed to facilitate opportunities for TWN and the Crown to collaborate as separate legal orders through government-to-government dialogue. As such, the assessment is an assertion of TWN law and jurisdiction independent from the Crown. • The TWN Assessment is conducted ‘in-house’ by staff members of TWN’s Treaty, Lands, and Recourses Department. • The TWN Stewardship policy sets out a two-tiered (i.e., lens) decision-making process. The first is a threshold lens which measures impacts in accordance with TWN legal principles. With the TWN assessment of TMEX, lens 1 was assessed by answering several ‘key questions. If thresholds are not exceeded, the second lens allows for dialogue between TWN, proponents, and assessment/regulatory agencies to discuss project design, benefits, etc. • Final decisions on the acceptability of project impacts are made by TWN Chiefs and Council. 5.4 The Mikisew Cree Culture and Rights Assessment 5.4.1 The Mikisew Cree First Nation The Mikisew Cree First Nation (MCFN) are a Treaty 8 First Nation whose traditional territory covers the area now referred to as northeastern Alberta, Canada (Candler, Gibson, and Malone, 2015). This area spans over the lower Peace River, lower Athabasca River, and Peace-Athabasca Delta, much of which includes the Northern Alberta oil sands (Candler, Gibson, and Malone, 2015). Treaty 8 is a ratified agreement signed in 1899, between the British Crown (government) and various Indigenous Nations, covering and area of 840,000 square kilometers (Treaty No.8, 1899). As noted by Treaty 8 knowledge holders, the intent of the Treaty 8 signing was based upon principles of law, respect, honesty, and acceptance (Powderface, 2011). As such, the intent of entering into Treaty 8 was to facilitate peace and co-existence between Indigenous and settler populations of the region (Treaty No.8, 1899; Powderface, 2011). There are certain rights embodied within the signing of Treaties. These include the creation of 78 reserves for the exclusive use of member First Nations, and the designation of non-reserve lands for the non-exclusive use of member First Nations for their rights to hunt, fish, and trap on Treaty Crown Lands (Treaty No.8, 1899; Powderface, 2011; Grassy Narrows First Nation, 2014). 5.4.2 The Frontier Oil Sands Mine Proposal The Frontier Oil Sands Mine Project, proposed in 2011 by Teck Resources Limited, and since abandoned, would have been the largest single open pit oil sand mine in Canada. The spatial extent of physical disturbance of the project would have covered an area of roughly 29,000 hectares (AER and CEAA, 2019). The project location would be in an area of intact wetlands, muskegs, and forest located between the Birch Mountains and Athabasca River. The project proposal included three mine pits, five external tailings areas, water storage ponds (in and out of pits), river water intake, pipeline, and road access with water withdrawals from the Athabasca River, a construction and operations lodge, an aerodrome, mine access roads, a permanent bridge over the Athabasca River, diversion of Big Creek, and destruction of two lakes (including fish habitat compensation structures) (AER and CEAA, 2019; Candler, Gibson, and Malone, 2015). The mine would have an approximate 39-year operating life, running from 2025 to 2064. With post-closure and reclamation continuing for several decades following the mines operational lifespan (Candler, Gibson, and Malone, 2015). The Frontier Project was subject to EIA federal and provincial review under the Canadian Environmental Assessment Act, 2012, and Alberta’s Environmental Protection and Enhancement Act, 2000 (EPEA). An agreement was reached between the federal minister of Environment and Climate Change and the Chief Executive Officer of the Alberta Energy Regulator (AER) for the establishment of a Joint Review Panel for the EIA of the Frontier Project (AER and CEAA, 2019). Mikisew knowledge holders recognize the geographic area of the project footprint as a place of ecological integrity and is home to the last wood bison herd within Mikisew territory which holds population levels which support sustainable harvest, and acts as an important movement corridor for moose, migratory birds, and other animals (Candler, Gibson, and Malone, 2015). Furthermore, the project would be the most northerly oil sands development, and closest to Wood Buffalo National Park, an area which was created in 1922 to protect Canada’s largest heard of free roaming wood bison (McCormack, 1992). The area is a traditional Mikisew hunting ground (although hunting in the National Park is not permitted) and is considered a ‘cultural heartland’ of the Mikisew Cree, as its vital bison habitat (Candler, Gibson, and Malone, 2015). 79 5.4.3 Shifting from a Traditional Land-use Assessment to the Mikisew Cree Culture and Rights Assessment Much of the MCFN traditional territories have been subject to significant industrial development, with significant oil sand mining along the Athabasca River (Candler, Gibson and Malone, 2015). With a legacy of industrial activity in the region, MCFN have participated in multiple EIA reviews. As explained by Mikisew knowledge holders, the scale of industrial developments has created challenges for upholding Treaty 8 rights and Mikisew traditional ways of life (Candler, Gibson, and Malone, 2015). To address these impacts, in 2009, MCFN began requesting that the provincial (Alberta) and federal governments work with MCFN to develop a Traditional Land and Resource Use Management Framework for the region (Candler, Gibson, and Malone, 2015). In 2011, the Alberta Government proposed a Lower Athabasca Regional Plan, which was considered inadequate by MCFN (MCFN GIR, 2014). To provide a better alternative, in 2014, MCFN implemented a Land Use Plan, a living document to be used in determining the most important areas for the conservation of natural resource across MCFN territories (MCFN GIR, 2014). The Land Use Plan initiated the completion of a number of Traditional Land Use surveys; mapping containing animal and vegetation information; collection of development, oil sands, and mining information; and identification mapping of areas needing further protection as well as those suitable for development (MCFN GIR, 2014). MCFN have criticized provincial/federal EIA for primarily focusing on biophysical measures and traditional land uses, overlooking Mikisew culture and rights (Candler, Gibson, and Malone, 2015). MCFN have identified proponent and government-led assessments as barriers to inclusion, as they often favour western science over Mikisew traditional knowledge (Candler, Gibson, and Malone, 2015). To confront these challenges, following preliminary consultations between MCFN and Teck, Teck agreed to not undertake a proponent-led traditional land-use assessment for MCFN (AER and CEAA, 2019). Instead, Teck agreed to use the Mikisew Cree Culture and Rights Assessment (MCCRA) in its replacement, which would be developed collaboratively with technical support from the Firelight Group (Candler, Gibson, and Malone, 2015). These agreements were verified through a detailed work plan and a joint instruction letter from MCFN and Teck sent to the Firelight Group in 2014, which authorized the start of the Mikisew Cree Culture and Rights Assessment (AER and CEAA, 2019). In the joint instruction letter, Teck agreed to fund the assessment set out in the agreed upon scope of work agreed upon by both MCFN and Teck. Funding would be paid to MCFN in a staged approach, which would be linked to study milestones (Candler, Gibson, and Malone, 2015). The financial details of amounts paid by Teck to MCFN throughout their assessment process have remained confidential. MCFN also received funding from the CEAA to assist their participation in the EIA, receiving a total of $92,970.00 from the CEAA’s Participant Funding Program (CEAA, 2019). 80 5.4.4 Implementing the Mikisew Cree Culture and Rights Assessment The primary goal of completing the MCCRA was to provide relevant assessment agencies and the proponent (Teck) with information and assessment of Mikisew rights and culture directly from the Mikisew perspective (Candler, Gibson, and Malone, 2015). The MCCRA was developed to provide baseline information regarding the existing status of Mikisew culture and rights practices in the region and an assessment of the potential impacts resulting from the Frontier Project on Mikisew culture and rights (as outlined by section 35 of Canadas Charter of Rights and Freedoms) as guided by their Land Use Plan (Candler, Gibson, and Malone, 2015). The land base of the assessment includes a local study area (LSA) within 5km of the project and a regional study area (RSA) within 25km of the project extending downstream to receiving waters (including Lake Claire and the Athabasca-Peace Delta) (Candler, Gibson, and Malone, 2015). Defining the RSA was based on identifying the area which Mikisew members anticipate they may experience direct, indirect, or induced effects of the project (Candler, Gibson, and Malone, 2015). The MCCRA incorporates Mikisew knowledge with a Mikisew-informed assessment framework to anticipate the effects of the Frontier Project on Mikisew culture and rights within the LSA and RSA study areas (Candler, Gibson, and Malone, 2015). The collaborative work between MCFN and the Firelight Group, required to complete the MCCRA, was organized into 3 main tasks (see table 12) (Candler, Gibson, and Malone, 2015). The completion of these tasks consisted of 8 research activities related to scoping and baseline data collection (see table 13). In completing the 3 main tasks and 8 associated research activities, of special importance for the purpose of the MCCRA was the identification of three valued components (VC) which represent Mikisew culture and rights. The VCs were selected in relation to Mikisew knowledge, identified through community scoping processes, with a focus of values of greatest concern to Mikisew members (see table 14) (Candler, Gibson, and Malone, 2015). Throughout the assessment, the VCs were measured and analyzed using indicators and thresholds (Candler, Gibson, and Malone, 2015). Indicators were used to identify the interconnected conditions Mikisew community members associate with a healthy way of life, rights, governance, and stewardship (Candler, Gibson, and Malone, 2015). Thresholds were used to evaluate the anticipated residual project and cumulative effects (Candler, Gibson, and Malone) (see table 14 for details on VC’s and the associated indicators and thresholds). Thresholds were measured using “Pre-1965” baselines, which was grounded on the judgement of Mikisew knowledge holders, as it is considered the time Mikisew peoples were able to sustain harvesting practices consistent with the harvesting practices which would have occurred around the time of the signing on the Treaty in 1899 (Candler, Gibson, and Malone, 2015). 81 Task 1 • Work planning and methods (including identification of VCs, indicators, and thresholds). This task aimed to confirm the scope of work, budget, assessment methods, community confirmation of VCs, and interview instruments. Task 2 • Review of existing baselines, gap analysis, VC based focus groups, follow-up interviews and on-territory documentation. This task aimed to deliver a baseline summary and gaps analysis. Task 3 • Reporting and Community-based assessment, including review of results, impact pathways, management options, and assessment of project effects. This task aimed to deliver a final version of the MCCRA and conclusions report. Table 11: The 3 main tasks in completing the MCCRA (Candler, Gibson, and Malone, 2015). 1. Creation of a work plan and joint instruction letter • MCFN, Teck, and the Firelight group were involved in the creation of the joint instruction letter, which once completed, authorized Firelight to start their work completing the Culture and Rights Assessment. 2. Document review and methods development • Pulling together previous Mikisew studies, project documents, and archival material. 3. Initial scoping and focus group sessions • An initial scoping session was held with Mikisew knowledge holders. Here, Teck introduced the Frontier Project. Following, Mikisew staff and the Firelight Group introduced the Culture and Rights Assessment study to community members to confirm areas of focus. • A second scoping session was held for a more detailed discussion with community members in Mikisew treaty rights, indicators of Mikisew culture and way of life, and proposed VCs and thresholds. 4. Territory field visit, follow-up interviews, and rights-based harvest focus groups • Territorial field visit: Firelight researchers traveled with Mikisew land users to the project area to conduct several informal interviews and conduct participant observation. • Follow-up interviews: Firelight researchers conducted follow-up semi-structured interviews, with a total of fifteen follow-up interviews. Of the fifteen interviews, twelve were focused on ‘way of life’ and three were focused on ‘stewardship’. 5. Traditional use study scope change • A scope change was approved by Teck to include revisions to a previous Mikisew Knowledge and Use Study for the project based on the Project Update and additional data collected since 2013. 6. Bridge update scope change • Following the withdrawal of Shell’s Pierre River Mine (a project in Mikisew territory) from the regulatory process, a second scope change was approved by Teck. The second scope change allowed Firelight to conduct additional fieldwork and focus groups to consider the implications of a bridge over the Athabasca River (which was originally included in the Pierre River Mine Project but is now included as part of the Frontier Project). 7. Technical workshop • Firelight and key Mikisew knowledge holders participated in a ‘technical workshop’ to review the key project impacts on water, bison, and culture. 8. Final reporting and review • Completion of draft reporting. • Following completion of draft reporting, two focus groups were held to confirm findings. • Report revisions were made based on Mikisew review and feedback, and an internal Firelight peer review and external peer review. Table 12: The 8 main research activities in completing the MCCRA 3 main tasks (Candler, Gibson, and Malone, 2015) 82 Valued Components Thresholds and Indicators 1. Way of life: Mikisew culture, identity, language, and sense of place. • Indicators: Mikisew language, sense of place, identity, and ability of MCFN members to maintain transmission of knowledge, practice, place, and experience between generations • Thresholds: Current and future MCFN generation’s ability to practice and pass on Mikisew language, culture, identity, and sense of place to future MCFN generations within the RSA (pre-1965). 2. Harvesting rights: Mikisew subsistence practices in the project area. • Indicators: Subsistence and cultural use in the area, inclusive of important species and resources, harvest locations, and subsistence activities such as hunting, fishing, and foraging. • Thresholds: Current and future MCFN generations’ ability to sufficiently access quantity and quality culturally important resources needed to support MCFN harvesting (pre-1965). 3. Governance and Stewardship: Mikisew decision-making. • Indicators: Mikisew stewardship autonomy in decision-making. • Thresholds: Current and future MCFN generations access to adequate provisions to support Mikisew environmental stewardship and autonomy in decision making. Table 13: MCCRA Valued Components, Thresholds, and Indicators (Candler, Gibson, and Malone, 2015) The completion of the MCCRA main tasks and research activities were supplemented with a review of existing Mikisew data (much of which was initiated and completed through the MCFN Land Use Plan). The review of previous Mikisew data “related to harvest rights in past Mikisew knowledge and use studies, which provided site-specific data pertaining to preferred species, preferred means of harvest, and preferred harvest locations. The past knowledge and use studies include (but are not limited to) Mikisew Cree First Nations Indigenous Knowledge and Use report for Teck Resources Limited’s Proposed Oil Sands Mine Project (Candler et al., 2013), Mikisew Indigenous Knowledge Study for Shell Jackpine Mine Expansion, Pierre River Mine, and Redclay Compensation Lake (Candler, 2012), As Long as the Rivers Flow: Athabasca River Knowledge, Use and Change (Candler, Olson, and DeRoy, 2010), and 2010 Mikisew Cree First Nation Comprehensive TLU Project (Tobais, 2010)” (Candler, Gibson, and Malone, 2015; 194-195). 5.4.5 Outcomes of the Mikisew Cree Culture and Rights Assessment The MCCRA found that there have already been significant impacts on Mikisew culture and rights throughout their traditional territories (Candler, Gibson, and Malone, 2015). Recognition of existing impacts solidify the importance of protecting the integrity of remaining areas for ensuring the future practice of Mikisew culture and rights (Candler, Gibson, and Malone, 2015). The MCCRA concluded that if the project is built, there will be significant adverse effects on all three valued components (Candler, Gibson, and Malone, 2015). These impacts are likely to be felt across multiple MCFN generations and are likely to result in rapid and serious adverse changes to the ability of future generations to practice Mikisew culture and rights (Candler, Gibson, and Malone, 2015). As a result of 83 the cooperative agreement between MCFN and Teck, Teck did not dispute any of the findings from the Mikisew Cree, as they relied on the MCCRA for all traditional land-use data (AER and CEAA, 2019). Additionally, the Peace-Athabasca Delta was defined as a cultural keystone area within the RSA, as a primary location for harvesting, social networking, economic prosperity, and political and cultural activities that are vital to Mikisew communities (AER and CEAA, 2012). Through the MCCRA, MCFN communicated that the “Peace-Athabasca Delta is no longer meeting ecological integrity criteria or the conditions Mikisew members require to exercise their asserted Aboriginal and treaty rights” (AER and CEAA, 2012); 807). Evidence was presented to show “ongoing negative trends in water quantity, water quality, native vegetation, wildlife populations and health, migratory bird habitat, and Indigenous access across the delta” (AER and CEAA, 2019; 807). Impacts to culture and rights were linked to this evidence, indicating that the Frontier Project if approved is likely to have significant impacts to Mikisew use of the area (AER and CEAA, 2019). To accommodate this, Canada and MCFN suggested a number of measures for the Review Panels consideration which could be used to address the potential impacts on MCFN’s asserted Aboriginal and treaty rights. These include bison protection; a project-specific Teck Frontier monitoring and oversight committee; delta protection and Peace-Athabasca Delta monitoring and research; cultural programming; and caribou protection (AER and CEAA, 2019). Of special importance to the practice of MCFN rights were the anticipated residual effects of the project on the ability of future Mikisew generations to sustainably hunt wood bison within the RSA. Through the analysis of the Mikisew Culture and Rights Assessment, Chandler, Gibson, and Malone (2015) express the Mikisew concerns by stating “Mikisew baseline harvest estimates indicate that the current population of harvestable bison is not adequate and needs to be many times larger to sustain adequate harvesting by current and future MCFN members. If built, the project would result in an industrial zone of influence that would eliminate all or almost all MCFN harvesting for multiple Mikisew generations in an area that currently includes 91% of recorded bison harvest values south of Wood Buffalo National Park” (4). Through the completion of the Sakâw Mostos (Wood Bison) Indigenous Knowledge Study, MCFN articulated that increased protection measures are required in order to maintain the existence of the herd within its preferred location (i.e., key habitat, travel corridors, winter range, etc.) and at levels that support the practice of Mikisew harvesting rights if the Frontier Project proceeds (Candler et al., 2015). In 2018, Teck and MCFN announced the signing of a Participation Agreement in regard to the Frontier Project. This solidifies a number of economic benefits for MCFN connected to the Frontier Project, sets out a framework for traditional land use and environmental stewardship for the project, and provides a framework for communication/engagement for the entire lifetime of the project- which could result in community-based mitigations for specific effects (AER and CEAA, 2019). Although the 84 Participation Agreement was created, MCFN maintained their right to withdraw their support for the project prior to any final authorizations (AER and CEAA, 2019). The Agreement commits Teck to mitigate the effects of the project on MCFN’s use of the land and resources, for traditional purposed, physical and cultural heritage, social, economic, and health effects, and MCFN rights (AER and CEAA, 2019). Although the Participation Agreement was signed between Teck and MCFN, this did not prevent the use of the MCCRA throughout the proceeding EIA tasks, including the Review Panel hearing. The accommodation measures suggested by MCFN, in conjunction with the Participation Agreement kick started accelerated discussions of protecting key areas of the Athabasca-Peace Delta and the Ronald Lake Bison Herd with Teck. Using the data/information collected in the Sakâw Mostos (Wood Bison) Indigenous Knowledge Study and a Wood Buffalo National Park World Heritage Sit Action Plan, MCFN advocated for a ‘Biodiversity Stewardship Area’ (BSA), which would help mitigate the project’s impact on the Ronald Lake Bison Herd and the ongoing degradation of the Wood Buffalo National Park (AER and CEAA, 2019). In response, in 2018 the Government of Alberta “announced its intention to establish a Biodiversity Stewardship Area Wildland Provincial Park adjacent to and immediately south of Wood Buffalo National Park” (UNESCO, 2019; 32). MCFN communicated that they would withhold support for the Frontier Project until the BSA was solidified. In 2019, MCFN reached an agreement with the Government of Alberta and Teck Resources Ltd., Imperial Oil, and Cenovus Energy for the mitigation of impacts on the sustainability of the wood bison harvest (Teck, 2019). The agreement included the establishment of a BSA around Wood Buffalo National Park, which would preserve a land base for traditional activities (including bison hunting) (Teck, 2019). The BSA was established as the 161,880-hectare Kitaskino Nuwenene Provincial Park, which was designated as open to traditional land use by Indigenous people (Lavoie, 2019; Teck, 2019). With this designation, Mikisew Cree announced their support for the Frontier Project (Johnson, 2020). On February 23rd, 2020, Teck Resources Ltd. announced that they would formally withdraw their application for the Frontier Project from EIA process (Teck Ltd., 2020). The project would no longer proceed to the development stage. 5.4.6 Methodology for Assessing Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Frontier Oil Sands Mine Project Following the 2015 completion of the MCCRA, in 2018, MCFN and the Canadian Environmental Assessment Agency developed a ‘Methodology for Assessing Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Frontier Oil Sands Mine Project’ (AER and CEAA, 2019). The methodology was created for the use of Crown consultation independent of the EIA, while also supporting the mandate of the Review Panel with respect to the assessment of the potential effects of the 85 Frontier Project on the exercise of Mikisew Cree rights (CEAA, 2018). The methodology was intended to be used by the Review Panel for assessment of Aboriginal and Treaty rights, as the Review Panel is mandated to accept information on possible adverse environmental effects that the project may have on asserted or established Aboriginal or Treaty rights (including any information regarding measures that can be taken to avoid or mitigate potential adverse effects on established Aboriginal or Treaty rights) (CEAA, 2018). The methodology includes 3 structured steps (see table 15) and principles that the review panel may use when considering information and evidence as it relates to the impacts on Aboriginal and Treaty rights (CEAA, 2018). In addition to supporting requirements of the Review Panel to consider the potential effects of the project on Aboriginal and Treaty rights, the federal government’s application of the methodology ensures that the Duty to Consult has been carried out (CEAA, 2018). The collaborative creation of such methodologies is an additional example of what increased Indigenous involvement in EIA reviews could look like. Steps Associated Activities 1. Determining the context in which potential impacts on rights will occur. • Identify the conditions that support the community’s exercise of rights • Understanding how historic, contemporary, and approved activities have affected the conditions that support the community’s exercise of rights • Identifying the importance of the Frontier Project’s location in relation to the exercise of a community’s rights 2. Evaluating potential Frontier project impacts. • Identifying the pathways for potential impacts of the Frontier project (positive and negative) on the exercise of rights • Determining whether the Frontier Project will have a low, medium, or high level of impact on the exercise of rights based on nature of impacts, regional/historic/cumulative impacts, community thresholds, cultural landscape, preferred expression of rights, distribution of benefits/impact equity, and present and future generations 3. Follow-up and validation of the implementation of the methodology. Table 14: Steps in Assessing the Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Frontier Oil Sands Mine Project (CEAA, 2018) In assessing the impacts on the exercise of Aboriginal and Treaty rights in the context of the proposed Frontier Project, the methodology applied nine principles co-developed by MCFN and the CEAA, which can serve as useful guidelines for evaluating the potential impacts to Aboriginal and treaty rights and providing a robust basis for decision-making (CEAA, 2018; Gustafson and Brooks, 2018). These principles include (CEAA, 2018): 1. The assessor must consider the nature and scope of rights, as those rights are asserted, and how the rights might be impacted. 86 2. Assessing impacts on Aboriginal and treaty rights requires more than assessing environmental effects on the current use of lands and resources for traditional purposes or on physical and cultural heritage. 3. Assessing impacts on the exercise of Aboriginal and treaty rights requires understanding the context of historical and contemporary cumulative effects in which rights are exercised. This context needs to be evaluated before looking at project effects on those rights. The assessor must recognize that existing environmental conditions do not tell the full story about historical and current cumulative impacts on Aboriginal and treaty rights. 4. The assessment should not be limited to site-specific effects but must consider all impacts on the exercise of rights. 5. Utilizing an Indigenous perspective and Indigenous knowledge is an imperative. 6. The assessor must consider Indigenous values, norms and laws, where provided by a community. 7. An assessor must engage the rights-bearing community during an assessment. The selection of methods and indicators for assessing impacts to Aboriginal and treaty rights is to be community driven, where a community has elected to participate. 8. Thresholds and measures to understand the potential effects of a project on the exercise of Aboriginal and treaty rights and culture are to be utilized where the community has defined them. 9. Assessments of impact to the exercise of Aboriginal and treaty rights should consider a projects contribution to reconciliation. The methodology was submitted to the Review Panel for consideration with suggestion that it might be helpful when considering effects to other Indigenous groups involved in the EIA process (CEAA, 2018). The methodology was applied to a preliminary assessment of potential impacts of the Frontier project on Aboriginal and Treaty rights (IAAC, 2019). Although the Review Panel considered the Mikisew-CEAA methodology and used certain aspects of the methodology to assist with the EIA process (i.e., preliminary assessment), the Report of the Joint Review Panel for the Teck Resources Limited Frontier Oil Sands Mine Project (2019) stated that although the methodology was ‘considered’, it was not applied in its entirety (AER and CEAA, 2019). Instead, the Review Panel used certain aspects of the methodology where it was determined that it would assist the EIA of the Project as required by the Joint Review Panel terms of reference (AER and CEAA, 2019). 5.4.7 Mikisew Cree Culture and Rights Assessment and MCFN-CEAA Methodology Key Findings • Consultations between MCFN and Teck led to an agreement for Mikisew Cree to take the lead on completing a traditional land-use assessment. This agreement allowed MCFN to change to scope 87 from a traditional land-use assessment to the Mikisew Cree Culture and Rights Assessment (MCCRA). As a result, rather than a proponent-led traditional land-use assessment process, Teck would rely on the Mikisew led MCCRA to substitute it. • The MCCRA was developed to provide baseline information regarding the existing status of Mikisew culture and rights practices in the region and an assessment of the potential impacts resulting from the Frontier Project on Mikisew culture and rights (as outlined by section 35 of the Canadian Constitution Act, 1982). • The MCCRA designated a local study area (LSA) within 5km of the project and regional study area (RSA) outlining a 25km zone around anticipated impact pathways of the project where changes to the practice of Mikisew culture and rights would be measured. • Three valued components (VCs) were identified to represent Mikisew Culture and Rights. These include: 1) Mikisew culture, identity, language, and sense of place (Way of Life); 2) Mikisew subsistence practices in the project area (Harvesting Rights); 3) Mikisew decision-making (Governance and Stewardship) • The MCCRA was conducted with technical support from the Firelight Group. The collaborative work between MCFN and the Firelight Group was organized into 3 main tasks and 8 associated research activities. • As a result of the cooperative agreement between MCFN and Teck, Teck did not dispute any of the findings from the Mikisew Cree, as they relied on the MCCRA in replacement of traditional land-use data. The MCCRA was then used by the Crown and Review Panel in consultation and throughout the EIA. This provided a principled means for the Joint Review Panel and Crown to consider the cumulative effects of the project on the landscape which would impact Mikisew Cree culture and rights. • Following the completion of the MCCRA, MCFN and the Canadian Environmental Assessment Agency developed a ‘Methodology for Assessing Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Frontier Oil Sands Mine Project’, for use during the EIA of the Frontier project. Additionally, both the Crown and the Review Panel applied the same methodology for assessing the potential impacts on Aboriginal and treaty rights for the project review, both parties articulated the same conclusions. 88 5.5 Ktunaxa Nation Rights and Interests Assessment 5.5.1 The Ktunaxa Nation The Ktunaxa Nation Council (KNC) is an Indigenous governance group (tribal council) of the Ktunaxa Nation, consisting of 4 communities, including ʔakisq̓nuk (Columbia Lake) First Nation, Yaqan Nukiy (Lower Kootenay) First Nation, ʔaq̓am (St. Mary’s) First Nation, and Yaq̓it ʔa·knuqⱡi’it (Tobacco Plains) First Nation (Ktunaxa Nation, 2020a). The Ktunaxa territories are located in what is often called the Kootenay region, in Southeastern British Columbia. The Ktunaxa Nation’s traditional territories also included parts of Alberta, Montana, Washington, and Idaho (Firelight Group, 2014). The Ktunaxa traditional territories are unceded, despite being occupied and used by settler populations (Firelight Group, 2014). In 1993, KNC began Treaty negotiations in collaboration with the British Columbia Treaty Commission as part of the 6-stage treaty negotiation process. The KNC treaty negotiations are currently at stage 5: ‘Final Agreement’ (BC Treaty Commission, 2020). 5.5.2 Legacy of Extraction The Ktunaxa Nation’s traditional territories have undergone significant changes since colonial contact, much of which includes natural resource development projects (Firelight Group, 2014; Kapell, 2019). With this development, KNC has participated in several provincial and federal assessments under the 2002 BC Environmental Assessment Act, and the Canadian Environmental Assessment Act, 2012. Among the most prominent developments within Ktunaxa territories are open pit coal mining (much of which includes steelmaking coal operations), underground mineral mining, forestry, transportation construction, residential and recreation development, and hydroelectric generation (including the construction and maintenance of dams) (Firelight Group, 2014; Kapell, 2019). As explained by Kapell, 2019, colonial administration has imposed significant land and resource developments throughout Ktunaxa territories. Consequently, the Ktunaxa Nation's tradition territories have undergone significant land-use changes. These changes and the associated assessment/regulatory processes have both, in part, led to the Ktunaxa Nation’s expression of concerns in regard to: the amount and scale of recourse development within their territories; the physical footprint of project developments; an increased presence of selenium, cadmium, sulphate, and other contaminants in waterways within the Elk River watershed; lack of Indigenous participation in provincial/federal EIA processes; and an inadequate consideration of cumulative impacts when making decisions to approve such developments (Firelight Group, 2014; Kapell, 2019). The Ktunaxa have addressed some of the challenges associated with the history of resource development within their territories through a series of regional and provincial agreements with the BC 89 provincial government and proponents. These agreements include a Strategic Engagement Agreement between BC and KNC, which was originally signed in 2010 and renewed in 2019, the regional Elk Valley Selenium Task Force initiative, and the Elk Valley Water Quality Plan (EVWQP) (Firelight Group, 2014; Government of British Columbia and Ktunaxa Nation, 2013; Government of British Columbia, 2019). Of particular interest in regard to increased Indigenous participation in EIA processes, KNC has led components of EIA applications through the submission of ‘Section C’, which focuses on Ktunaxa Nation rights and interests within proponent’s project applications. The development of Section C: Ktunaxa Nation Rights and Interests Assessment (KNRIA) is completed collaboratively with proponents, with technical support (i.e. baseline data collection, assessment, and technical writing) from consultants to assess Ktunaxa Nation interests within Environmental Assessment Certificate Applications for the Kootenay West Gypsum Mine, Baldy Ridge Extension, Revelstoke Generating Station Unit 6, Line Creek Operations (LCO) Phase 2, and Fording River Operations (FRO) Swift Coal Mine Expansion (Ktunaxa Nation, 2020b; Firelight Group, 2014; EAO, 2015a). For each application, KNC has worked collaboratively with Ktunaxa communities, proponents and the EAO to create one application for each. Although KNC and proponents take a collaborative approach, the creation of ‘Section C’ does not suggest or lead to the Ktunaxa Nation’s consent to or support for a project (Firelight Group, 2014). Instead, ‘Section C’ is the assessment of Ktunaxa Nation concerns and Aboriginal interests potentially impacted by the associated projects, and proposed methods to mitigate those impacts (Firelight Group, 2014). 5.5.4 Section C: Ktunaxa Nation Rights and Interests Assessment For the assessment of the FRO Swift Coal Mine Expansion Project, proposed by Teck Resources Limited (Teck) KNC participated throughout all stages of the EIA review, and participated in the evaluation of Teck’s application, prior to the application review (EAO, 2015a). For the assessment of FRO Swift Coal Mine Expansion, the BC EAO provided $20,000 in capacity funding to KNC during the Pre-Application phase, and $40,000 for the Application Review phase (EAO, 2015a). Furthermore, Teck provided funding to KNC to support their participation in the EIA process, which supported the hiring of staff and consultants for the preparation of Section C (EAO, 2015a). Procedurally, the key components of ‘Section C: Ktunaxa Nation Interests’ assessment process included: a) The identification of valued components (VCs), b) outlining the spatial boundaries for baseline data collection for the assessment of project impacts on valued components, c) baseline data collection and assessment of impacts for each VC, and d) summary of potential effects, mitigations, and actions (Firelight Group, 2014). VCs were created through a collaborative and community-based process. Once preliminary VCs were established, they were reviewed and confirmed by KNC staff and verified with knowledge holders. 90 For the purpose of the assessment, four of six VCs were organized by KNC governance sectors, which include the ‘Traditional Knowledge and Language Sector’, ‘Economic Sector’, ‘Social Sector’, and ‘Lands and Resources Sector9’. In addition to the VCs organized by KNC governance sectors, ‘Water’ and ‘Cumulative Effects’ were included as cross sector VCs, as they coincide with each KNC governance sector (see table 16 for details) (Firelight Group, 2014). Valued Components Indicators or Measures Traditional Knowledge and Culture Sector • Ktunaxa language and culture • Cultural areas and properties- including all site specific and non-site-specific use and occupancy values • Future Ktunaxa relationship with and knowledge of the land Social Sector • Housing, transportation, and social services • Ecological approach to human health and confidence in wild foods Economic Sector • Jobs and employment • Business development • Ktunaxa rights-based economy (with a focus on commercial rights) • Training and education Land and Resources Sector • Biodiversity, connectivity, quantity and quality of habitat for rare species, ungulates, large carnivores, and fish • Plant abundance and ecosystems of cultural importance. These include old growth forests, high elevation grasslands, parklands, and wetlands • Ecosystem health. This includes but is not limited to, water quality, air quality, lake stewardship, and channel morphology • Long term soil productivity and slope stability • Archaeology Water • Indicators and measures are included throughout each sector level Cumulative Effects • Indicators and measures are included throughout each sector level Table 15: KNRIA Valued Components, Indicators, and Measures (Firelight Group, 2014) The spatial boundaries for data collection for the assessment of project impacts on VCs includes a local study area (LSA) and a regional study area (RSA) (Firelight Group, 2014). For the purpose of the assessment of the FRO Swift Coal Mine Expansion, the LSA was defined as a 5km buffer zone around the project’s operational boundary, where the highest impact project-related disturbances can be expected (i.e., mining related activities) (Firelight Group, 2014). The RSA was defined by culturally relevant areas known as qukin ʔamakʔis (Raven’s Land) and portions of ¢am̓na ʔamakʔis (Wood Tick’s Land) and Koocanusa Reservoir, as the boundaries for where the direct and indirect effects of the project may be anticipated (i.e., increased traffic) (Firelight Group, 2014). Baseline data collection for the assessment of impacts on VCs within the LSA and RSA were determined by a list of common data sources for all VCs 9 “The Ktunaxa Lands and Resources Council is a standing committee of the Ktunaxa National Chiefs and Council, with the authority and mandate to make lands and resource decisions on behalf of the Ktunaxa Nation Council. One member from each community’s elected Chief and Council sits on the Lands and Resources Council” (Firelight Group, 2014; C1-16). 91 and VC-specific source documents (Firelight Group, 2014). For example, common data sources include archival and ethnographic material held by KNC, internal KNC data/documentation, professional assessments, past studies, and primary interviews with KNC staff, elders, knowledge holders, etc. (Firelight Group, 2014). Once baseline data collection was completed for each VC and relevant issues, concerns, and potential effects were identified for the project, a mitigations table was designed to reduce the impact of potential negative effects, by including ‘Measures’ to increase the impact of potential positive effects (Firelight Group, 2014). For example, there are three columns in the mitigations table. The first column is organized by KNC Sectors (Economic, Traditional Knowledge and Culture, Lands and Resources, and Social Sectors), second is the related measures and mitigations recommended to mitigate potential impacts on each sector, and third are the agreements that bind Teck in carrying out mitigation activities with KNC (See table 17) (Firelight Group, 2014). It should be noted that some potential impacts and mitigations cross multiple KNC sectors. Below (table 17) outlines the structure and information included in the mitigations table, for the Fording River Operations Swift Coal Mine Expansion EIA included in Section C, with an example from each KNC Sector. KNC Sector Section C Recommended Measures and Mitigations Related Measures that currently bind Teck • Economic Sector Education and Training: Identification of existing training programs throughout the Kootenay region and across Canada that could be delivered locally to assist in Ktunaxa training. Working Protocol Agreement November 2007- With the establishment of the Ktunaxa-Teck Procurement and Employment Operational Working Group (PEOWG) Strategic Plan • TK and Language Sector • Lands and Recourses Sector Ongoing Access and Use: Identify annual opportunities for Ktunaxa Access to Teck properties to practice Ktunaxa culture and rights-based activities (i.e., culture camps, treks, hunting, fishing, and gathering). Line Creek Operations (LCO) Phase 2, Condition #26- Ktunaxa Access management Plan allows for Ktunaxa harvesting and other cultural uses (subject to regulatory and operational safety) • TK and Language Sector • Social Sector • Lands and Resources Sector Water, wild foods, and confidence: Teck and KNC will collaboratively develop a Ktunaxa Elk Valley Wild Foods Program. This includes project monitoring, contaminants mitigations and compensations to address impacts to Ktunaxa culture, communication tools to address wild food safety throughout the Elk Valley, and the incorporation of Ktunaxa TK and participation in monitoring the health of resources. Elk Valley Water Quality Permit and Valley Wide EMA Permit. LCO Phase 2, Condition #25d- Update the 2013 Ktunaxa Nation dietary study to determine contaminant risk and update the information used in the Human Health Risk Assessment. • All Sectors Compliance monitoring: Within six months of EA certification, and through IBA or other agreements, Teck will provide funds for Ktunaxa to confirm compliance and management plans. Monitoring referenced in the permit for the EVWQP under the TOR for the Environmental Monitoring Committee. Table 16: Fording River Operations Assessment Section C Mitigations Table (examples) (Firelight Group, 2014) 92 5.5.5 Outcomes of the Ktunaxa Nation Rights and Interests Assessment It is important to note that among the most prominent of industry proponents within the Ktunaxa territories is Teck Resources Limited (Teck). Currently, Teck operates four metallurgical coal operations in the Qukin ʔamakʔis (Elk Valley - a region within Ktunaxa territories), which include Elkview Operations, Fording River Operations, Greenhills Operations, and Line Creek Operations (Teck Coal Limited, 2020). In addition, Coal Mountain Operations is currently in its reclamation and closure phase (Teck Coal Limited, 2020). For the past decade, KNC and Teck have been working to improve relations through the production of economic, environmental, social, and cultural initiatives that aim to reduce impacts, while enhancing Ktunaxa interests and benefits (Ktunaxa Nation and Teck Coal Limited, 2016). For example, in 2007 Teck and KNC signed a Working Protocol Agreement (which outlines communication and cooperation protocols)- with the collaboration of ‘Section C’ being an outcome of this relationship. In 2012, formal discussions and engagement activities were initiated between KNC and Teck for an Impact and Benefits Agreement (IBA) which would apply to the entire Elk Valley (Ktunaxa Nation and Teck Coal Limited, 2016). At the time of the application for the FRO Swift Coal Mine Expansion, and the KNRIA were underway, negotiations of the IBA were still taking place (Firelight Group, 2014). Section C of the application explains that if the IBA is approved by KNC and Teck, it “is anticipated to confirm mitigation and/or accommodation commitments made in this application, as well as other commitments by Teck and KNC designed to address Ktunaxa right and interests related to the project and to other Teck mining activities in the Elk Valley region” (Firelight Group, 2014). Prior to the conclusion of the negotiations between KNC and Teck for the Elk Valley IBA, the FRO Swift Coal Mine Expansion was granted a BC Environmental Assessment Certificate in 2015 following the consideration of the EAO’s assessment findings (Minister of Mines and Minister of Environment and Climate Change, 2015). The decision was made on the basis of the responsible Ministers concurrence with the EAO’s findings that A) They were satisfied the proposed conditions and project design would adequately prevent and mitigate the potential negative environmental, social, economic, heritage, or health impacts of the project, concluding that no significant adverse effects are expected, and B) They were satisfied that the Crown’s duty to consult and accommodate Aboriginal groups had been discharged for the project (Government of British Columbia, 2015b). The key conditions guiding the EAO’s findings and Ministers’ decision that the project would not result in significant adverse effects require Teck to: • “Hire an independent environmental monitor to audit whether Teck is complying with the conditions in the environmental assessment certificate”; • “Construct and operate water treatment plants at Fording River Operations in accordance with the timeframe and specifications set out in the Elk Valley Water Quality Plan”; 93 • “Develop management plans to monitor and mitigate effects on wildlife, fish and fish habitat, air quality and noise, public access, and water, as well as effects from invasive plants”; • “Develop and implement a plan that will address the recommendations of the Westslope Cutthroat Trout population study in the upper Fording River (following the studies completion in 2016)”; • “Establish an advisory group to provide scientific, technical and Aboriginal advice on strategies to evaluate and reduce impacts on biodiversity from this and other projects operated by Teck in the Elk Valley”; • and, “Collaborate with the Ktunaxa Nation to ensure protection of Ktunaxa’s cultural and heritage values, obtain input regarding ecological values, and support Ktunaxa’s participation in economic opportunities associated with the project” (BC Gov News, 2015). In 2016, following expansion proposals, Teck and KNC concluded negotiations for the Impact and Benefits Agreement which was developed as a comprehensive agreement which commits both parties to the continuance of sustainable mining in the Elk Valley (Ktunaxa Nation and Teck Coal Limited, 2016). The IBA formalizes the collaborative relationship between KNC and Teck; creates a framework where issues and concerns can be addressed, provides ‘valuable certainty’ for projects in the Elk Valley; allows planned mine extensions to be designated as ‘Contributing Projects’; creates certainty for the Ktunaxa that their key interests of land and water stewardship; reclamation planning; business and employment development and cultural resource management will be addressed consistent with Ktunaxa values and KNC interests; and triggers the formation of an Environmental Working Group, Cultural Working Group, and Procurement and Employment Operational Working Group (Ktunaxa Nation and Teck Coal Limited, 2016). Each working group will include equal representation from the Ktunaxa and Teck who will work to determine the actions and processes for effectively implanting the agreement (Ktunaxa Nation and Teck Coal Limited, 2016). 5.5.6 Ktunaxa Nation Rights and Interests Assessment Key Findings • Prior to the Fording River Operations Swift Coal Mine Expansion assessment, KNC had previously signed a number of agreements which guide KNC engagements with the BC provincial government and water quality enforcement and monitoring. These include the Strategic Engagement Agreement between BC and KNC, the regional Elk Valley Selenium Task Force Initiative, and the Elk Valley Water Quality Plan. • Prior to the Fording River Operations Swift Coal Mine Expansion project assessment KNC and Teck signed a ‘Working Protocol Agreement’ which outlines communication and cooperation protocols. 94 • KNC has led part of EIA applications for project applications in their territories through the submission of ‘Section C’, which assesses project impacts to Ktunaxa Nation Aboriginal rights and interests within Environmental Assessment Certificate Applications. • The development of ‘Section C’ is done so collaboratively with proponents, with technical support from consultants. • The development of ‘Section C’ does not imply Ktunaxa consent or support for the associated projects. • Through the EIA process for the Fording River Operations Swift Coal Mine Expansion, the BC EAO provided capacity funding to KNC during the Pre-Application phase and Application Review phase. Teck provided funding to KNC to support their participation in the EIA process, which included funding to hire staff and consultants. • Primary data collection during the assessment of Ktunaxa Nation interests was done so by using common data sources, including archival and ethnographic material, internal KNC data/documentation, professional assessment, past studies, and primary interviews with KNC staff, elders, knowledge holders, etc. • Once primary data collection is completed, a ‘mitigations table’ is produced outlining how to reduce the impact of potential negative effects while increasing the impact of potential positive effects. The mitigations table further includes agreements that bind Teck in carrying out mitigation activities with Teck. • During the assessment process for the Fording River Operations Swift Coal Mine Expansion project assessment, Teck and KNC were engaged in negotiations for an IBA for the entire Elk Valley. The IBA was signed by both parties following the approval of the Fording River Operations Swift Coal Mine Expansion (2015) in 2016. This solidified Teck’s requirements to uphold the mitigations table. • A key condition guiding the EAO’s findings that the project would not result in significant adverse effects require Teck to “Collaborate with the Ktunaxa Nation to ensure protection of Ktunaxa’s cultural and heritage values, obtain input regarding ecological values, and support Ktunaxa’s participation in economic opportunities associated with the project”. 95 Chapter 6: Analysis, Results, Discussion, and Conclusion To begin, this chapter will examine the analysis and results of this research within the context of the research objectives. The second part of this chapter will discuss the conclusions of this research, which includes recommendations for Indigenous-led impact assessment (ILIA) and recommendations for future research based on the results of this project and literature review of Indigenous involvement in environmental impact assessment (EIA) and ILIA. 6.1 Analysis, Discussion, and Results of ILIA Case Studies As described in Chapter 2, analysis, discussion, and results of the Chapter 5 ILIA case studies are reported according to the three research propositions of this study (see Sections 6.3, 6.3, and 6.4 for a description of the research propositions). As explained in Chapter 2, the research propositions of this study have guided case study development and analysis by identifying the data which achieve the original research objectives. The following sections describe the results and discussion of the Chapter 5 case studies according to the research propositions and corresponding themes of analysis. Categorizing the case studies within this analysis, discussion, and dissemination of results, according to the three ILIA process models described in Chapter 4, is key (see table 18 below). The various process models will be referenced throughout the following sections and will be further discussed as a mechanism of Indigenous control in section 6.1.4.2. ILIA Process Model ILIA Case Studies Independent ILIA (completed independently of both the Crown and proponents) • Squamish Nation Process Assessment for Woodfibre LNG • Tsleil-Waututh Nation Assessment for Trans Mountain Pipeline and Tanker Expansion Co-managed ILIA (completed alongside the Crown EIA Agency) • Stk’emlu’psemc te Secwepemc Nation Assessment Process for KGHM Ajax Mine • Methodology for Assessing Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Frontier Oil Sands Mine Project (Mikisew Cree First Nation) Co-developed ILIA (completed in collaboration with the proponent) • Mikisew Cree First Nation Culture and Rights Assessment for the Teck Frontier Project • Assessment of Ktunaxa Rights and Interests (Section C) for the Teck Fording River Operations Swift Coal Mine Expansion Table 17: Chapter 5 ILIA Process Models 6.2 ILIA processes reflect the unique locations, histories, natural resource issues, and governance approaches of the Indigenous Nation/group undertaking the assessment Case study analysis has identified the ‘emergence of ILIA’ and ‘current state of territory’ as the two main themes which illustrates how ILIA processes are created to reflect aspects of location, history, natural resource issues, and governance approaches of the Indigenous Nation’s/group’s undertaking the assessment. The emergence of ILIA in the Chapter 5 case studies is attributed to overcoming the 96 weaknesses of provincial/federal EIA and through the assertion and recognition of Indigenous legal systems and political rights. Current state of territory describes how ILIA weaves the history of past development, connection to site, and land-use planning/objectives into assessments. 6.2.1 Emergence of ILIA The chapter 5 case studies illustrate that the emergence of ILIA is driven by overcoming the weaknesses of provincial/federal EIA and through the assertion and recognition of Indigenous legal systems and political rights. 6.2.1.1 Overcoming the Weaknesses of Provincial/Federal EIA As discussed in Chapter 4, ILIA has emerged as a tool to overcome the inadequacies of Crown consultation and the exclusion and marginalisation of Indigenous Nations/groups perspectives in EIA (see Chapter 3, Section 3.2.1 for a description of the weaknesses of Crown consultation through EIA Processes). ILIA provides a process which supports meaningful input from, and control for, Indigenous Nations/groups when reviewing project proposals. The chapter 5 case studies confirm that ILIA confronts the inadequacies of provincial/federal EIA by providing an assessment process which integrates, measures, and articulates Indigenous rights and interests into assessment methodology inputs and outputs. Each Indigenous Nation/group mentioned in the Chapter 5 case studies have worked to overcome the weaknesses of provincial/federal EIA in the following ways: • Squamish Nation (SN) designed and implemented the Squamish Nation Process (SNP) to “allow the Nation to make an informed decision about the impact a proposed project may have on their lands and waters today, and for generations to come, and to assess whether those impacts are acceptable in light of the Nation’s present and future goals and desires” (Bruce and Hume, 2015; 8). The SNP provides a framework for SN, proponents, and the Crown “to discuss their respective decisions on a project and the conditions of potentially approving the project, which may lead to a shared decision on a project” (Bruce and Hume, 2015; 8). • Tsleil-Waututh Nation (TWN) designed and implemented their assessment process to consider project effects holistically, including “effects on the biophysical environment but also on interconnected cultural, spiritual, legal, and governance rights and responsibilities of the Tsleil-Waututh Nation” (TWN, 2017; 50). This allowed TWN to determine “whether the project is a good land-use decision from the perspective of potential effects” (TWN, 2017; 51). • Stk’emlu’psemc te Secwepemc Nation (SSN) designed and implemented the SSN Assessment Process (SSNAP) to align with “SSN laws and governance and included assessments which respect SSN cultural perspectives, knowledge and history, and which respects SSN rights and title 97 throughout the project area” (SSN, 2017; 4). With this, the SSNAP provides a platform which facilitates “informed decision-making by the SSN communities in a manner which is consistent with [their] laws, traditions, and customs and assesses project impacts in a way that respects [their] knowledge and perspectives” (SSN, 2017; 281). • Mikisew Cree First Nation (MCFN) designed and implemented the Mikisew Cree Culture and Rights Assessment (MCCRA) to “provide baseline information regarding the context and existing status of Mikisew practice in the region and an assessment of potential impacts resulting from the proposed [project] on the culture and Section 35 rights of the Mikisew Cree First Nation” (Candler, Gibson, and Malone, 2015; 14). This created an assessment which “traces anticipated pathways of effects, characterizes these effects, and identifies measurable indicators or actions that may be useful to Teck and Mikisew in Project planning (Candler, Gibson, and Malone, 2015; 14). • Ktunaxa Nation Council (KNC) undertook Section C of the proponents EIA application to identify “specific Ktunaxa rights, including Ktunaxa title in the project area [and identify] potential project effects on Ktunaxa use and rights, [including] a description of mitigations and other measures recommended by KNC” (Firelight Group, 2014; C-vii). This allows for an assessment which accurately reflects “Ktunaxa knowledge and convey Ktunaxa title, rights, and interests in relation to the proposed project, including cultural and land use information” (Firelight Group, 2017; C1-2). 6.2.1.2 Assertion and Recognition of Indigenous Legal Systems and Political Rights While ILIA is used to overcome the inadequacies of Indigenous participation in provincial/federal EIA and Crown consultation, ILIA has also been implemented through the assertion and recognition of Indigenous legal systems and political rights. It is important here to delineate between the assertion and recognition of Indigenous legal and political rights. For the use of this thesis, assertion of Indigenous legal and political rights refers to the actions taken by Indigenous Nations/groups in declaring their jurisdictional authority in order to uphold their own rights and legal obligations for both their peoples and their territory. Recognition refers to the acknowledgement of Indigenous legal and political rights by either or both proponents and the Crown through agreements which use ILIA into their EIA procedures. Each Nation/group mentioned in the Chapter 5 case studies developed their assessment process as an assertion of their right to self-determination, which includes the jurisdictional capacity to make informed decisions in regard to the anticipated impacts proposed activities will have on their culture, knowledge, history, rights, and interest. For example, the independently conducted SNP and TWN assessment were created as direct assertions of SN’s and TWN’s inherent jurisdictional authority, acting 98 as a separate legal order from the Crown to assess and decide whether the proposed project should proceed in their territory (Bruce and Hume, 2015; TLRD, 2015). The intent was to facilitate government-to-government dialogue with the Crown to decide how, and if, the proposed projects should proceed through regulatory processes independent of the Crown (Bruce and Hume, 2015; TLRD, 2015). It should be recognized that there are procedural and legal limitations to implementing an ILIA that runs fully independently of the Crown or proponents. But these will be discussed in Section 6.4.3. Similarly, to the SN and TWN assessments, the SSN Assessment Process was designed as an assertion of SSN’s jurisdictional authority to make informed decisions about project impacts and provide SSN with direct input into the provincial EIA decision-making process (SSN, 2017a). The main difference here is that SSN worked collaboratively with the Crown assessment agencies to co-manage the EIA, as initiated by the Ajax Mine G2G discussion table, a G2G Framework, and Ajax EA Collaboration Plan (EAO and SSN, 2015). The agreements between SSN and the Crown illustrate the recognition of SSN’s legal systems and political rights by the Crown, as the integration of an ILIA into the Crown assessment process was not required under the 2002 EAA or CEAA 2012. Through co-developed processes, MCFN and KNC both led components of proponents EIA applications which assessed anticipated project impacts on Mikisew and Ktunaxa culture, rights, and interests (Candler, Gibson, and Malone, 2015; Firelight Group, 2014). While MCFN and KNC both asserted their jurisdictional authority to assess project impacts, the integration of their ILIA into the proponents EIA applications required the recognition of Indigenous legal systems and political rights, providing increased participation in the assessment process beyond the standard Crown assessment requirements under the 2002 EAA, CEAA 2012, and Alberta EPEA. For both the MCFN and KNC co-developed processes, the proponent was Teck Resources Limited (these were two separate projects and EIA applications). The recognition of MCFN and KNC capacity to make informed decisions in regard to project impacts by Teck exhibits that corporate social responsibility can be a foundational component to the integration of ILIA into proponent EIA applications. 6.2.2 Current State of Territory The current state of territory is an important consideration when analyzing how ILIA processes reflect aspects of location, history, natural resource issues, and governance approaches of the Indigenous Nation/group undertaking the assessment. The Chapter 5 case studies exhibit that the current state of territory (as related to ILIA) is described through the history of past development, connection to the site (i.e., the land base which would be impacted by the proposed development), and land-use planning/objectives. 99 6.2.2.1 History of Past Development Indigenous territories throughout Canada have undergone significant changes since colonial contact (Kapell, 2019). Sources of change include, but are not limited to, industrial and residential development, forestry, agriculture, recreation, pollution, wildfire suppression, and climate change. These land use changes and impacts have made it increasingly difficult to practice and uphold Indigenous traditional ways of life and culture (Candler, Gibson, and Malone, 2015; Kapell, 2019). The practice of EIA has often focused on the changes or impacts that occur in the present, which ignores the history of past development and associated cumulative impacts (O’Faircheallaigh and MacDonald, 2020). This reflects the assumption that the current situation is satisfactory, and that the goal of EIA is to prevent the deterioration of the contemporary practice of Indigenous ways of life, culture, and rights (O’Faircheallaigh and MacDonald, 2020). In contrast to this assumption, the Chapter 5 case studies exemplify that the contemporary situation is not meeting Indigenous Nations/groups needs. As a result, ILIA emerges as a tool to assess and manage proposed land use changes and developments that can contribute to restoring, and overcoming impacts to, traditional ways of life, cultural practices, and rights which have been eroded by the history of past development (O’Faircheallaigh and MacDonald, 2020). The need to address past development/impacts is reflected in the intent driving the completion of ILIA and through the mitigation measures produced as a result of ILIA. For example,10: • The SNP was developed to assess whether project impacts are acceptable in light of SN’s present and future goals and desires (Bruce and Hume, 2015). In determining how proposed land use changes (i.e., projects) and associated impacts can contribute to SN’s future goals and desires, while simultaneously addressing the history of past development, a number of mitigation measures were developed by SN through the completion of the SNP (Bruce and Hume, 2015). For example, one agreed upon condition for approval developed through the SNP was for proponent Woodfibre LNG to fully fund a Squamish Nation Marine Use Plan designed to address the cumulative impacts of industrial developments in the Howe Sound (SN, 2015). In addition, an agreed upon condition for approval bound the Province of BC to initiate and follow through with a Government-to-Government discussions in regard to marine use planning to mitigate the cumulative impacts of industrial development in the Howe Sound (SN, 2015). • Review of proposed activities by TWN is guided by the TWN Stewardship Policy, which establishes that any decisions or activities that may potentially impact TWN rights, title, or interests must undergo a process of review and consultation (TLRD, 2015). TWN rights and interests requiring review and consultation under the Stewardship Policy are confirmed by the 10 The SSNAP was not included in the examples, as it was designed to protect the current ecological integrity of Pipsell, rather than restoring it to pre-contact status. 100 TWN Marine Stewardship Program. The TWN Marine Stewardship Program seeks to restore Burrard Inlet to a condition where wild marine foods are abundant and safe to eat; a subsistence economy may be re-established; and where cultural work may occur in clean water at a site that is physically intact and free from impaired views, violations of privacy, and noise intrusions (TLRD, 2015). The goals set out by the Marine Stewardship Program exemplify that the current status of the Burrard Inlet is not meeting TWN’s needs in order to practice their traditional ways of life, cultural practices, and rights. The TWN assessment considers the potential impacts of proposed activities in relation to the design and implementation of restoration objectives, which includes avenues for restoring cultural and health opportunities for TWN members to access and use their lands, waters, and resources (TLRD, 2015). • Significant portions of the MCFN traditional territories have been subject to substantial industrial development, most prominent of which is oil sand mining along the Athabasca River (Candler, Gibson, and Malone, 2015). The scale of industrial developments has created challenges for upholding Treaty 8 rights and Mikisew traditional ways of life (Candler, Gibson, and Malone, 2015). To reflect these challenges, the MCCRA for the Teck Frontier proposal applied thresholds using “Pre-1965” baselines, which is considered by Mikisew knowledge holders as the time when Mikisew peoples were last able to sustain harvesting practices consistent with the those which would have occurred around the time of singing Treaty 8 in 1899 (articulating that the contemporary situation is not meeting MCFN’s historically established rights and needs) (Candler, Gibson, and Malone, 2015). Using this baseline, the MCCRA found that there have already been significant impacts on Mikisew culture and rights throughout their traditional territories (Candler, Gibson, and Malone, 2015). Recognition of existing impacts solidified the importance of protecting remaining area’s ecological integrity to ensure the future practice of Mikisew culture and rights (Candler, Gibson, and Malone, 2015). To accommodate this, a Biological Stewardship Area (BSA) around Wood Buffalo National Park was developed, which would preserve a land base for traditional activities (including bison hunting) to mitigate the erosion of Mikisew harvesting practices (Teck, 2019). • The Ktunaxa Nation Rights and Interests Assessment (KNRIA) articulates Ktunaxa concerns, rights, and interests potentially impacted by projects, and proposes measures to mitigate those impacts (Firelight Group, 2014). Through the identification of relevant issues, concerns, and potential effects of the project, a mitigations table is produced to reduce the impact of potential negative effects, by including ‘Measures’ to increase the impact of positive effects (Firelight Group, 2014). This shows that the KNRIA not only works to identify key issues, but also identifies how positive impacts can be maximized. For example, a key mitigation agreed upon by 101 proponent Teck was to collaborate with the Ktunaxa Nation to ensure protection of Ktunaxa’s cultural and heritage values, obtain input regarding ecological values, and support Ktunaxa’s participation in economic opportunities associated with the project which would help maximize positive impacts of development within their communities (KN and Teck, 2016). 6.2.2.2 Connection to the Site An important consideration in ILIA relating to the current state of territory is connection to the site that would be impacted by a proposed development, including both direct and indirect (cumulative) impacts. The chapter 5 case studies illustrate that connection to the site can be an important factor when determining significance, calculating the acceptability of anticipated impacts, and managing project impacts on environmental and cultural heritage (i.e., development of mitigation plans, etc.). The Chapter 5 case studies illustrate that social and cultural connection to a specific site can influence and guide ILIA process design and findings in the following ways: • Delineates what activities must undergo a process of consultation and review. For example, TWN have an established Consultation Area that outlines their territorial jurisdiction and establishes the land base where any decisions or activities that may potentially impact TWN rights, title, or interests must undergo a process of review and consultation (TLRD, 2015). • Guides ILIA process design and decision making. For example, the Ajax Mine proposal was set in a site known as Pipsell to SSN, which is an area of cultural, spiritual, and physical importance to the peoples of SSN (SSN, 2017a). Due to the nature of SSN’s connection to the site, the SSNAP for Ajax Mine was developed to incorporate the role of Pipsell as a cultural keystone area (SSN, 2017b). Thereby making future project reviews subject to the SSNAP and requiring adjustments to ensure that it reflects SSN’s relationship to the site within the context of another project. In generating recommendations and subsequent decision making through the SSNAP used for the review of Ajax Mine, the SSN Joint Council considered the best use of Pipsell as a cultural keystone area and developed a specific land use objective for the site, communicating that the development of Ajax Mine would result in significant environmental effects and irreversible changes to Pipsell (SSN, 2017b). As a result, SSN withheld their consent for the project to proceed (SSN, 2017b). • Defines areas for baseline data collection. For example, the KNRIA defined the Regional Study Area (RSA) according to culturally relevant areas (qukin ʔamakʔis (Raven’s Land) and portions of ¢am̓na ʔamakʔis (Wood Tick’s Land) and Koocanusa Reservoir) as the boundaries where direct and indirect effects of the project on Valued Components (VCs) may be anticipated (Firelight Group, 2014). 102 • Identification of cultural keystone areas. While ILIA can be designed to incorporate cultural keystone areas from the onset of the assessment (i.e., SSNAP’s integration of Pipsell as a cultural keystone area), cultural keystone areas can be identified and defined as a result of ILIA. For example, a result of the MCCRA and associated research activities, the Peace-Athabasca Delta was defined as a cultural keystone area within the RSA, as a primary location for harvesting, social networking, economic prosperity, and political and cultural activities that are vital to Mikisew communities (AER and CEAA, 2012). By identifying this cultural keystone, MCFN was able to communicate that the ecological integrity criteria of the Peace-Athabasca Delta is no longer meeting the requirements for Mikisew members needs to exercise their asserted Aboriginal and treaty rights (AER and CEAA, 2012). • Guides mitigation plans. For example, in collaboration with the government of BC, SN is a management partner for the Skwelwil’em Wildlife Management Area. The management plan for the Skwelwil’em Wildlife Management Area sets the objectives and planning strategies for maintaining and restoring fish, wildlife, and their supporting habitat, and had been identified as an area with key cultural heritage value, where traditional Indigenous activities take place (Government of BC, 2007). To avoid impacts to the area, which do not meet SN’s management objectives, the SN Environmental Certificate included a number of conditions for approval (mitigation strategies) to address potential impacts to the area (SN, 2015). For example, SN required that the proponent, Fortis BC, must commit to a drilled underground pipeline to avoid industrial impacts on the Skwelwil’em Wildlife Management Area (SN, 2015). 6.2.2.3 Land-Use Planning/Objectives Indigenous land-use planning provides a useful tool for establishing “targets and objectives against which the significance of project impacts can be assessed” (Plate, Foy, and Krehbiel, 2009; A16). For the use of this analysis, land-use planning will be used broadly to describe land-use plans specifically designated as such, but also stewardship programs and land-use objectives. The chapter 5 case studies indicate the land-use planning has been utilized by Indigenous Nations/groups, with significant influence over ILIA process design, or can be created as a result of the ILIA, for example: • Identification of high value areas that prescribe what kinds of land uses are permitted. For example, following the completion of the SSNAP, the SSN Joint Council considered the best use of Pipsell as a cultural keystone area and developed a specific land use objective for the site (SSN, 2017b). The Pipsell land use objective determined that the land uses of Pipsell must be consistent with the principle of culturally enriched sustainable use, therefore all uses of the lands and resources within Pipsell must be approved by SSN (SSN, 2017b). As an additional example, 103 prior to the SNP, SN implemented their Xay Temixw (Sacred Land) land-use plan which describes the communities’ vision for the future of forests and wilderness in their traditional territories (SN, 2020b). The land-use plan included designation of 4 key area land-use zones, including Forest Stewardship Zone, Sensitive Areas, Restoration Areas, and Kwa kway welh-aynexws (Wild Spirit Places) (SN, 2020b). Each land-use zone is prescribed specific management priorities, reflected through the SNP conditions for approval (SN, 2020b; SN, 2015). • Identification of areas where past development has resulted in unacceptable environmental impacts, which includes objectives for revitalization and restoration of past impacts. For example, TWN determined that the cumulative impacts of industrial development and urbanization have compromised the environmental integrity of the Burrard Inlet (TLRD, 2015). Through the TWN Marine Stewardship Program, TWN has established goals to restore the Burrard Inlet to acceptable levels of ecological integrity. These goals include “restoring Burrard Inlet to a condition where wild marine foods are abundant and safe to eat and a subsistence economy may be re-established” and “restoring Burrard Inlet to a condition where cultural work may occur in clean water, without exposure to contaminated sediment, at sites that are physically intact and free from impaired views, violations of privacy, and noise intrusions” (TWN, 2015; 40). • Recognition, assertion, and, protection of Aboriginal rights and title, including territory specific areas required to maintain the natural processes required for traditional activities associated with Aboriginal rights and title. For example, through SSN’s land-use objective for Pipsell, SSN “asserts their right to maintain and ensure the continuity of [their] traditional cultural heritage and practices, exercise [their] traditional and cultural heritage and practices and carry on [their] traditional customs and spiritual activities in the historical location where those activities where and are traditionally carried on” (SSN, 2017; 21). • The utilization of baseline studies, when completed prior to the ILIA, provides efficiencies throughout the ILIA process. For example, the MCFN land-use plan initiated a number of Traditional Land Use surveys, mapping projects, collection of oils sands mining information, and identification of areas needing further protection and those suitable for development (Candler, Gibson, and Malone, 2015). The pre-existing data was used throughout the MCCRA research activities and informed the ILIA. 104 6.3 ILIA processes will have unique data management requirements, administrative support, communication and decision-making tools, and funding mechanisms Case study analysis has identified ‘resource requirements’ as the primary theme illustrating the unique data management requirements, administrative support, communication and decision-making tools that accompany ILIA processes, and funding mechanisms. Resource requirements which emerged through the Chapter 5 case studies relate to internal staffing, community member, and leadership requirements; external technical support requirements; and access to proponent or Crown funding (which can either enhance or limit recourse capacity). 6.3.1 Resource Requirements The design, implementation, and completion of ILIA is accompanied by many resource requirements. Resource requirements can change depending on the ILIA process model, design, scope, and methods. Here I highlight the various resource requirements which have been fundamental to Chapter 5 ILIA case studies. 6.3.1.1 Internal Staffing, Community, and Leadership Requirements Identification of the internal staffing, community member, and leadership requirements is an important consideration when evaluating the amount of human resource capacity required to undertake an ILIA. The following discussion identifies the internal human resource requirements and associated leadership structures within the Chapter 5 ILIA case studies, including some of the data management, administrative support, communication, and decision-making responsibilities assigned to staff, community members, and leadership in ILIA. The Chapter 5 case studies indicate that the internal staffing requirements to undertake an ILIA are moderate to very high. This is largely related to the ILIA process model utilized and the extent to which the Indigenous Nation/group undertaking the ILIA is involved in the Crown EIA process. Variance in internal staffing requirements is best described by comparing the independent TWN assessment for the Trans Mountain pipeline and tanker expansion (TMEX) proposal and the co-managed Mikisew Cree First Nation-Canadian Environmental Assessment Agency Methodology for Assessing Potential Impacts on the Exercise of Aboriginal and Treaty Rights of the Proposed Frontier Oil Sands Mine Project (MCFN-CEAA Methodology). In the case of the TWN assessment, TWN used staff members from its Treaty, Lands, and Resource Department (TLRD) to carry out the bulk of responsibilities pertaining to consultation and assessment of the anticipated impacts of the TMEX proposal on TWN rights, title, and interests (TLRD, 2015). This reflects the governance structure of TWN, as the TLRD is responsible for the implementation 105 of the TWN Stewardship Policy, which includes the assessment and review of any decisions or activities that may potentially impact TWN rights, title, and interests (TLRD, 2015). For the TWN assessment, the main objective assigned to the TLRD staff included participating in Crown consultation as an intervenor and conducting the TWN assessment of the TMEX proposal according to TWN legal principles (TLRD, 2015). Duties associated with the TWN assessment carried out by TLRD staff included, but were not limited to, review of available information and reports, answering key assessment questions, hosting community meetings to gather relevant information, and providing TWN Chief and Council with their findings on whether or not the TMEX proposal was an appropriate land-use decision in accordance with their Stewardship Policy (TLRD, 2015). As such, the internal staff human resource capacity requirements were very high. In comparison, the development of the co-managed MCFN-CEAA Methodology offers an example of an alternative approach to ILIA that can be utilized when only moderate levels of internal staff capacity is available. It should be noted that the MCFN-CEAA Methodology was not the result of a lack of internal staff capacity but was an additional assessment methodology for the Teck Frontier Project for the use of, and application by, the Joint Review Panel, separate from the MCCRA. For example, the MCFN-CEAA Methodology was created for the use of Crown consultation independent of the EIA, while also supporting the mandate of the Review Panel with respect to the assessment of the potential effects of the Frontier Project on the exercise of Mikisew Treaty and Aboriginal rights (CEAA, 2018). The MCFN-CEAA Methodology was intended to be used by the Review Panel for assessment of Aboriginal and Treaty rights, as the Review Panel is mandated to accept information on possible adverse environmental effects that the project may have on asserted or established Aboriginal or Treaty rights (including any information regarding measures that can be taken to avoid or mitigate potential adverse effects on established Aboriginal or Treaty rights) (CEAA, 2018). This provides an example of moderate staff resourcing needs, as beyond the development of the methodology itself, staff were not responsible for its application. Similarly, to internal staff capacity, the Chapter 5 case studies illuminate that ILIA’s require considerable community involvement, ranging from moderate to very high. On the moderate end of the spectrum is the co-managed MCFN-CEAA Methodology. While carrying out the procedural aspects of the Methodology were assigned to the Review Panel, community involvement was important in the completion of the 3 steps of the MCFN-CEAA Methodology. For example, in Step 1, community members were involved in communicating the conditions needed for the exercise of their rights; communicating how the historic, contemporary, and approved activities have affected the conditions that support their exercise of rights; and identifying how the Frontier Project’s location would be significant in relation to the exercise of community rights (CEAA, 2018). This illustrates how community involvement 106 is important in defining key interests (including VCs) and determining significance. This is further confirmed by the SNP, TWN assessment, and KNRIA- all of which relied on community input when determining key areas of interest throughout the respective ILIA’s. Very high requirements for internal community human resource capacity are displayed through the SSNAP, where SSN used a customized review panel (SSN Review Panel) to carry out community-based assessment procedures (SSN, 2017a). For the assessment of the Ajax Mine Project, the SSN Review Panel was made up of Tk’emlúps te Secwépemc and Skeetchestn Chief and Councils, two family appointed representatives from each of the 13 families in the SSN communities, consisting of 42 panel members (EAO and SSN, 2015). The panel was put together to include family, Elder, and Youth representatives, who would be involved throughout the entire assessment process in reporting back to their respective families and communities (EAO and SSN, 2015). The composition of the SSN Review Panel highlights the unique governance structure of SSN, as it was designed to provide equal representation from the two communities which comprise SSN, ensuring collaboration and continuity between the Tk’emlúps te Secwépemc and Skeetchestn Indian Bands throughout the review process. In doing so, the SSN Review Panel was responsible for a range of activities including, but not limited to, participating throughout the entire assessment process, and to conclude, the delivery of the SSN Review Panel Decision Package (EAO and SSN, 2015). In the SSN Panel decision package, they had to evaluate the potential impacts of the project, and providing recommendations for SSN Chief and Council on whether or not the project should proceed (EAO and SSN, 2015). In ILIA, internal leadership refers to Indigenous Nations’ elected Chief and Council. It should be noted that in each of the Chapter 5 case studies, an elected governance/leadership system (i.e., Chief and Council) was utilized, as opposed to the hereditary governance/leadership system (i.e., Hereditary Chiefs). The composition and development of each case study indicated that hereditary leadership was not heavily involved throughout each ILIA review process. There are additional nuances, however, in how Chief and Council are organized within each Nation/group mentioned in the case studies. For example, both SN and TWN rely on the standardized model of Chief and Council- as set out by the Indian Act, for natural resource management and land use decisions throughout their territories. SSN uses the SSN Joint Council, comprised of the elected leadership of the Tk’emlúps te Secwépemc and Skeetchestn Indian Band for natural resource management and land use decisions throughout their territories, as set out by the by the 2007 SSN Moratorium of Understanding. As MCFN are a Treat 8 First Nation, they use the Chief and Council system set out by Treaty 8 in 1899 for natural resource management and land use decisions throughout Treaty 8 territories. Lastly, for the management of natural resources and land use decisions, the Ktunaxa Nation uses the Ktunaxa Lands and Resources Council, which is a standing committee of the Ktunaxa National Chiefs Council, which includes one member of each Ktunaxa 107 communities elected Chief and Council (Firelight Group, 2014). The differences in governance/leadership structures illustrate that the roles and responsibilities of Chief and Council within each Nation/group is highly variable and is dependent on the internal structure of the Indigenous Nation/group undertaking the assessment. Aside from the nuances and differences in the governance structures of each Nation/group, the case studies (Chapter 5) indicate that elected Chief and Council play an essential role throughout the completion of each ILIA process, with very high participation requirements and responsibilities. The roles of elected Chief and Council include: • Participation in ILIA customized Review Panel. For example, for the assessment of the Ajax Mine Project, the SSN Review Panel included Tk’emlúps te Secwépemc and Skeetchestn Chief and Councils (EAO and SSN, 2015). This illustrates that SSN Chief and Council participated deeply (very high participation requirements) throughout the entire SSNAP as participants in the SSN Review Panel. • Participation in the procedural steps of the ILIA process. For example, SN elected Chief and Council provided input throughout the 6 structured steps of the SNP (Bruce and Hume, 2015). This include, but is not limited to, reviewing all relevant information collected throughout the SNP, asking question/identifying information gaps and providing feedback, designing mitigation measures, and final decision making (Bruce and Hume, 2015). • Working with community members, staff, and external technical support to determine the conditions for approval. For example, SN Chief and Council worked with SNP participants to determine the 25 ‘stringent’ conditions of approval required under the SN Environmental Certificate (SN, 2015). • Communication with the Crown and relevant assessment/regulatory agencies throughout the completion of the ILIA and Crown EIA. For example, the SSN-BC Government-to-Government framework implemented several structures for the Ajax Mine assessment. Included in these structures was a Chief-to-Chief Table, which consists of SSN Chief and Council and the assistant Deputy Ministers of each relevant regulatory agency and ministry for the purpose of the Crown EIA process (EAO and SSN, 2015). The Chief-to-Chief Table was established to meet as required for dispute resolution throughout the Ajax Mine assessment (EAO and SSN, 2015). • Final ILIA decision making on the determination of significance of anticipated impacts and providing or withholding Consent to project proposals. For example, following the assessment of impacts by TWN TLRD staff through ‘lens 1’ (i.e., assessing anticipated impacts), TWN Chief and Council decided whether they would accept the impacts and significance of impacts 108 determined throughout the lens 1 assessment, and either withhold or provide consent for the assessment to proceed to ‘lens 2’ (i.e., assessing how the proposed project may contribute to TWN goals)- as guided by the TWN Stewardship Policy (TLRD, 2015). For the TWN assessment of TMEX, TWN TLRD staff recommended that TWN Chief and Council withhold support for the TMEX proposal (TLRD, 2015). Based on the findings and recommendations made by TLRD staff, TWN Chief and Council decided to reject the project by withholding TMEX authorization under Tsleil-Waututh law for the project to proceed (which ended any further assessment by TWN under lens 2), thereby withholding TWN consent to the project proceeding in their territory (TLRD, 2015). 6.3.1.2 External Technical Support Requirements Identification of the external technical support requirements is an important consideration when evaluating additional ILIA needs extending beyond the internal human resource capacity available. The ILIA case studies included in Chapter 5 commissioned external technical support for a number of key activities, including: • Technical analysis of anticipated environmental impacts. For example, TWN commissioned five experts who produced reports for TWN on the TMEX proposal, which exceeded the capacity of TLRD staff. These included an Oil Spill Risk Assessment, Oil Spill Trajectory Analysis, a report on Behavior, Fate, and Consequences of Spilled Dillbit, Oil Spill Response Gap and Capacity Analysis, and an Oil Spill Air Quality Assessment (TWN, 2015). • Avoiding duplication between Crown EIA and ILIA. For example, SN used external consultants to coordinate with the Crown during their EIA to gather technical information by participating in the EAO Technical Working Group on behalf of SN for the project assessment (Bruce and Hume, 2015). The sole purpose of this was to keep the SNP independent of Crown EIA activities, while obtaining relevant studies for use within the SNP and seek clarity (information requests) in regard to the studies produced throughout the Crown EIA process (thereby avoiding unnecessary duplication). • Completion of ILIA research activities and providing administrative support throughout the assessment. For example, both MCFN and KNC hired consultants for the completion of main assessment tasks and associated research activities for the MCCRA and KNRIA. Duties assigned to the external consultants included, but were not limited to, work planning and assessment methods design, aid in determining key interests (VCs), defining significance in collaboration with the Nation/group, baseline data collection (i.e., review of past studies to compile pre-existing 109 data), knowledge holder interviews, territorial visits/observation, and technical writing for the production of the final ILIA reports (Candler, Gibson, and Malone, 2015; Firelight Group, 2014). 6.3.1.3 Access to Proponent or Crown Funding Access to and availability of external funding is an important consideration when conducting ILIA. A report by the First Nations Major Projects Coalition (2018) has shown that in Canada, the guaranteed funding to support Indigenous participation in provincial/federal EIA commonly covers only a small portion of their EIA costs. With increased levels of participation required in ILIA (i.e., staff, community member, leadership, and external support requirements), access to additional proponent or Crown funding may be an enabling factor of ILIA, by either partially or fully funding the assessment. Analysis of the Chapter 5 case studies indicate that securing funding for ILIA is often formalized through agreements with proponents and/or the Crown. For example,11: • As SN did not formally participate in the Crown EIA process, they relied upon a contractual Framework Agreement with proponents, which guaranteed their financial support to fully fund the entirety of the SNP (Bruce and Hume, 2015). As agreed upon by the terms and conditions set out by the SNP Framework Agreement, proponents fully funded the SNP (Bruce and Hume, 2015). • SSN received capacity funding from the EAO for their participation in provincial EIA activities, the Provincial Ministry of Indigenous Relations and Reconciliation to support the EIA co-management plans (i.e., the EIA Collaboration Plan), the CEAA Participant Funding Program, and through a number of agreements with KGHM to contribute funding for the SSNAP and SSN’s participation in the Crown EIA (CEAA and EAO, 2017). Through these agreements, SSN received funding for the completion of the SSNAP. • TWN received funding for their participation in the Crown EIA process through NEB participant funding, Federal Major Projects Management Office participant funding, and EAO capacity funding (BC Legislative Library, 2017). Although TWN received Crown funding for their participation in the EIA, TWN independently funded the majority of the work required for the TWN assessment. This is largely due to the fact that binding agreements were not established with either the proponent or Crown for assessment conducted by TWN an independent jurisdiction (as discussed in more detail in Section 6.4.3). 11 Financial dollar amounts have not been included in this discussion, as it only sets out to identify funding sources and availability of Crown or proponent funding to support the completion of ILIA. In addition, funding dollar amounts are relative, as the costs associated with the completion of each ILIA process included in Chapter 5 have remained confidential. 110 • MCFN received participant funding from CEAA for their participation in the Crown EIA process (CEAA, 2019). Through a detailed work plan and joint instruction letter, Teck agreed to fully fund the completion of the MCCRA (Candler, Gibson, and Malone, 2015). • KNC received capacity funding from the EAO for their participation in provincial EIA activities (EAO, 2015). Through ongoing relationships and previous agreements, Teck provided funding to KNC for the development and completion of the KNRIA (EAO, 2015). The greater the engagement in an EIA, the greater Indigenous Nations/groups internal, legal, and consulting costs will be, which is the case when completing an ILIA (O'Faircheallaigh and MacDonald, 2020). Unless adequate funding can be leveraged from the Crown or proponents, it is be more difficult to conduct an ILIA, as it places increased strain on the Nation/group through significant internal funding requirements (O'Faircheallaigh and MacDonald, 2020). For example, although TWN received participant funding from the Crown, this dollar amount did not accommodate the financial and human capital required to carry out the TWN assessment process. As a result, TWN funded the majority of the work required for the completion of the TWN assessment independently. 6.4 ILIA processes have variable degrees of control, including control over how the assessment is conducted, what is being assessed (i.e., values), and decision-making. Case study analysis has identified ‘Indigenous control’ and ‘ILIA influence’ as the two main themes which illustrate how ILIA processes have variable degrees of control over how the assessment is conducted, what is being assessed, and decision making (i.e., rejection or approval). In addition, there are a number of procedural and legal obstacles which impact the degree of control which Indigenous Nations/groups have while conducting an ILIA. This includes control over how the assessment is conducted (i.e., scope of the ILIA) and Proponent and decision-making by the Crown (i.e., use of the ILIA in a proponent’s EIA applications or for Crown EIA activities; including the design/implementation of mitigation measures and Crown approval or rejection for the project to proceed). 6.4.1 Indigenous Control Foundational to ILIA is Indigenous control over how the assessment is conducted. Analysis of the Chapter 5 case studies indicates that cooperative or joint management agreements and the three ILIA process model provide variable degrees of Indigenous control over several aspects of ILIA. This section highlights how cooperative or joint management agreements, and the three ILIA process models provide variable degrees of control over how the assessment is conducted, what is being assessed, and decision-making. 111 6.4.1.1 Cooperative or Joint Management Agreements As discussed in chapter 4, cooperative and joint management agreements vary considerably, but broadly refer to decision-making structures of shared power or responsibility. The chapter 5 case studies illustrate that in ILIA, there are various cooperative and joint management agreements that are both pre-cursers to (i.e., EIA framework agreements, collaboration plans, or working protocol agreements) and products of (i.e., Participation Agreements or Impact Benefit Agreements) ILIA (see table 19). The degree to which power and responsibility is delineated through the agreements guides many aspects of the ILIA, including the ILIA process model, scope, and how it will be considered by proponents or the Crown. ILIA Case Studies Associated Cooperative and Joint Management Agreements ILIA Process Model Squamish Nation Process • Squamish Nation Process Framework Agreement (2014) • Squamish Nation Environmental Certificate (2015) • Squamish Liquefied Natural Gas Benefits Agreement (2019) • Independent ILIA Tsleil-Waututh Nation Assessment • There were no cooperative or joint management agreements with either the Proponent or Crown for the TWN Assessment. • Independent ILIA Stk’emlu’psemc te Secwepemc Nation Assessment Process • Government-to-Government Framework Agreement (2015) • SSN-EAO Ajax Mine EA Collaboration Plan (2015) • Co-managed ILIA Mikisew Cree First Nation Culture and Rights Assessment • Joint Instruction Letter for the assessment of potential effects of the Frontier Mine on Mikisew rights and culture (2014) • Teck and MCFN Participation Agreement (2018) • Co-developed ILIA Ktunaxa Nation Rights and Interests Assessment • KNC and Teck Working Protocol Agreement (2007) • KNC and Teck Consultation Protocol (2010) • KNC and Teck Elk Valley Impact Management and Benefits Agreement (2016) • Co-developed ILIA Table 18: ILIA Cooperative and Joint Management Agreements Implementing an ILIA process that is guaranteed adequate consideration within the provincial/federal EIA activities requires a framework and priority setting with proponents, or the Crown, or both, prior to the start of the assessment. For example, SN, SSN, MCFN, and KN each signed cooperative or joint management agreements prior to carrying out their assessments, which guaranteed that their assessments would be considered as intended within Proponent and Crown EIA activities. As a result, in the cases of the SN, SSN, MCFN, and KN ILIA’s, each Nation/groups concern were addressed through the associated EIA processes, therefore influencing accommodation, mitigation, and final decision making in regard to each project. An effective example to illustrate the effectiveness of pre-112 established cooperative or joint management agreements is seen by comparing the SNP and TWN assessment, as they are both utilize an independent ILIA process model. When implementing an independent ILIA process that could operate outside of both federal and provincial EIA legislation, SN used a contractual Framework Agreement with project proponents (Bruce and Hume, 2015). The Framework Agreement was used to outline the terms and conditions of operating within the SNP legal process, providing SN with both legal and political leverage (Bruce and Hume, 2015). A cooperative Proponent is key to the success of the Framework Agreement, as entering into a legally binding agreement with an Indigenous Nation was not a legal requirement (Bruce and Hume, 2015). By agreeing to the terms and conditions of the SNP Framework Agreement, proponents agreed to: allow SN to undertake their own assessment of impacts of their Aboriginal rights and title; seek SN’s consent on any submissions to the Crown regarding SN rights and title; allow SN external consultants to collect relevant information for the SNP to avoid duplication; provide supplemental information to SN through information requests, even if this information is not required under Crown EIA; fully fund the SNP; and, if approved, sign a legally binding agreement with SN in the form of the SN Environmental Certificate, which requires proponents to meet the SNP conditions for approval (i.e., accommodation and mitigation measures) (Bruce and Hume, 2015). In comparison to the cooperative agreements that facilitated the SNP, TWN implemented an independent ILIA process without agreements being reached with the Crown or Proponent prior to the completion of the TWN assessment. The absence of cooperative agreements is largely the result of procedural and legal obstacles (discussed in more detail in Section 6.4.3), but also a lack of cooperation on the part of the Crown. For example, although TWN filed their assessment with National Energy Board (NEB) to be used in parallel to the Crown assessment, the absence of an agreement pre-determining how the assessment would be considered resulted in their ILIA not being used as intended (Clogg et al., 2017). Here, the TWN assessment was dismissed as a Traditional Land and Resource Study, without addressing or acknowledging the application of TWN laws and jurisdiction, which were asserted through TWN’s rejection of the TMEX proposal (Clogg et al., 2017). This resulted in the conflicting Crown approval of the project despite lack of consent from TWN, which led to a series of legal challenges and litigation. As an example of a cooperative/joint managements that followed the completion of ILIA, SN and KN both signed Impact Benefit Agreements (IBA) as a condition for their support for project approval, solidifying compensation and mitigation measures. For example, the IBA signed between SN and Woodfibre LNG solidified SN’s role as a project regulator, ensuring that future collaboration “is grounded around the Nation’s principles of responsible land and marine stewardship and that the benefits to the Squamish people will remain active throughout the life of the project” (Squamish Nation and Woodfibre LNG, 2019). Additionally, the IBA signed between KN and Teck “sets out commitments and 113 obligations for both parties that supports continued, sustainable mining in the Elk Valley” (KN and Teck, 2016). This formalized greater cooperation and clarity on topics related to consultation and engagement; environment and land stewardship; cultural resource management; and employment and business opportunities for Ktunaxa citizens (KN and Teck, 2016). 6.4.1.2 ILIA Process Model As discussed throughout this thesis, ILIA process models can be categorized according to who the Indigenous Nation/group partners with. These include independent, co-managed, and co-developed ILIA. Each ILIA process model offers variable degrees of control over what is being assessed, assessment methods, and how the Crown and proponents consider or accept the assessment. ILIA Case Studies ILIA Process Model Opportunities for Control Degree of Control12 • SNP • TWN Assessment Independent ILIA What is being assessed High Assessment methods High ILIA Findings High How the assessment is considered by the Crown and Proponents Variable • SSNAP • MCFN-CEAA Methodology Co-managed ILIA What is being assessed Variable Assessment methods High ILIA Findings Variable How the assessment is considered by the Crown and Proponents Variable • MCCRA • KNRIA Co-developed ILIA What is being assessed Moderate Assessment methods High ILIA Findings High How the assessment is considered by the Crown and Proponents High Table 19: ILIA Process Model Degrees of Control The Chapter 5 case studies indicate that there are variable degrees of control across each ILIA process model, but also within each process model category dependent on the individual ILIA (see table 20). This variance is largely related to the various cooperative or joint management agreements which set out the terms, conditions, and scope of each ILIA. 12 High is used to describe control in ILIA without any external influence. Moderate describes control over aspects of ILIA pre-determined by agreements with the Crown or proponents. Variable describes situations where control is dependent on the individual ILIA process design, cooperative or joint management agreements, etc. 114 In independent ILIA, the degree of control over what is being assessed, assessment methods, and findings is high. This can be attributed to the fact that there is no external influence from the Crown or proponents in independent ILIA, as it is a fully Indigenous controlled process. As I noted in Sections 6.4.1.1 and 6.4.3, consideration of the ILIA by the Crown and Proponents is variable, as it largely depends on pre-established agreements in the form of cooperative or joint management agreements to guarantee that the assessment will be considered and used as intended by the Indigenous Nation/group who conducted the ILIA. In co-managed ILIA, the degree of control over assessment methods is high, as both the SSNAP and MCFN-CEAA Methodology were designed with each Nation’s input. When compared to the MCFN-CEAA Methodology, the SSNAP displays high degrees of control over what is being assessed, assessment methods, and findings- as the SSNAP was specifically created to “facilitate informed decision-making by the SSN communities in a manner consistent with [their] laws, traditions, and customs”13 (SSN, 2017a). Control over how the assessment is considered by the Crown is also high, as the SSN’s formal decision package was provided to the EAO and CEAA, which was considered in the Joint Assessment Report and included in the referral package for the responsible Ministers (EAO, 2017). There is significant variance in the degree of control achieved through the MCFN-CEAA Methodology, as it was created with the intention of being used by the Review Panel for their assessment of Aboriginal and Treaty rights. Therefore, control over what is being assessed is moderate, as the scope of the methodology was to provide a framework for assessing impacts on established Aboriginal and Treaty rights (which can be narrowly defined by the Crown- as discussed in Chapter 3). Control over findings and how the assessment is considered by the Crown and proponents is low, as it is submitted to the Review Panel for their use, where the Review Panel controls how findings are generated and how the methodology itself is applied (confirming that Indigenous consultation remains a Crown controlled process- as discussed in Chapter 3). In co-developed ILIA, the degree of control over assessment methods, findings, and how the Crown and proponents consider the assessment is high. For example, under the MCCRA and KNRI, both MCFN and KNC controlled research activities (i.e., methods, including determining valued components, research activities, etc.) and significance of impacts (i.e., ILIA findings, including significance of anticipated impacts) (Candler, Gibson, and Malone, 2015; Firelight Group, 2014). In addition, each assessment was to be submitted as a part of a respective proponent’s EIA application submitted to the 13 The SSNAP displays many similarities to independent ILIA, but for the use of this analysis and discussion is considered a co-managed ILIA, as it was developed to run alongside the Crown EIA rather than completely independently. For example, the SSNAP set out specific collaboration points with the Crown, dispute mechanisms, and was included within the Crown assessment agencies referral package which was provided to decision makers to support their determination of whether or not the project should proceed. 115 Crown for their process, without a dispute of findings by proponents (as intended) (Candler, Gibson, and Malone, 2015; Firelight Group, 2014). Control over what is being assessed is moderate, as the scope of both the MCCRA and KNRI focused on the assessment of Mikisew and Ktunaxa rights and interests within Proponent EIA applications, which does not extend their control over Proponent biophysical technical studies, etc., also included within their EIA applications. 6.4.2 ILIA Influence The influence of ILIA illustrates how Indigenous values/interests and decision making are integrated into and reflected by Proponent and Crown decision making. Thereby providing Indigenous Nation/groups with greater control over the decisions that will affect their rights, interests, and lives. The Chapter 5 case studies indicate that ILIA can provide Indigenous Nation/groups with influence over project design, mitigation plans, accommodation, and Proponent and Crown decision-making. For example: • ILIA influence over project design: As a result of the Squamish Nation Process, Proponent Woodfibre LNG agreed to use an air-water cooling system opposed to the originally proposed seawater cooling system (SN, 2015). The Squamish Nation (SN) Environmental Certificate required the use of air-water cooling system to avoid anticipated impacts to the marine environment which SN associated with the use of seawater cooling (SN, 2015). • ILIA influence over mitigation plans: As a result of the Mikisew Cree Culture and Rights Assessment, associated research activities, and past knowledge and use studies, Mikisew Cree First Nation (MCFN) articulated that increased protection measures were required in order to maintain the existence of wood bison within their preferred locations (i.e., key habitat, travel corridors, winter range, etc.) at levels which support the practice of Mikisew harvesting rights (Candler et al., 2015). To mitigate both existing and anticipated impacts of Mikisew harvesting rights, MCFN reached an agreement with the Government of Alberta, Teck Resources Ltd., Imperial Oil, and Cenovus Energy for impacts on the sustainability of the wood bison harvest (Teck, 2019). The agreement included the establishment of a Biodiversity Stewardship Area around Wood Buffalo National Park, which would preserve a land base for traditional activities (including wood bison harvesting) and maintain ecological integrity of key habitat (Teck, 2019). • ILIA influence over accommodation: Following the Ktunaxa Nation Rights and Interests Assessment (KNRIA), Teck and Ktunaxa Nation Council negotiations for an Impact Benefit Agreement (IBA) (KN and Teck, 2016), the IBA included accommodation measures to provide certainty for the Ktunaxa Nation that their key interests of land and water stewardship, reclamation planning, business and employment development, and cultural resource management would be 116 addressed (KN and Teck, 2016). One way (among others) that this would be achieved is through the formation of a KNC-Teck Procurement and Employment Operational Working Group (KN and Teck, 2016). • Influence over Crown decision-making: The Fording River Operations Swift Coal Mine Expansion approval (by Responsible Ministers’) integrated the key mitigations set out by Ktunaxa (BC Gov News, 2015). Among these conditions was a requirement for Teck to “collaborate with the Ktunaxa Nation to ensure protection of Ktunaxa’s cultural and heritage values, obtain input regarding ecological values, and support Ktunaxa’s participation in economic opportunities associated with the project” (BC Gov News, 2015). This condition mirrored the KNRIA recommended measures and mitigations that Teck agreed to meet by signing the KNC-Teck IBA (KN and Teck, 2016). 6.4.3 Procedural and Legal Obstacles The most significant finding regarding procedural and legal obstacles to ILIA is the absence of legal requirements for the integration of ILIA as apart of Crown EIA and subsequent decision making. As each ILIA process mentioned in Chapter 5 was completed prior to the updated BC Environmental Assessment Act (EAA) and Federal Impact Assessment Act (IAA) (which creates legislated opportunities for ILIA as apart of Crown reviews), the Crown’s use of the ILIA as intended by the Indigenous Nation/group completing the assessment was not guaranteed. As a result, as seen in both the SNP and TWN assessment, the Crown failed to recognize both Nation’s jurisdictional authority in the following ways: • The SNP originally intended to facilitate dialogue between SN and the Crown for the integration of SN’s proposed conditions and mitigation measures into the BC EA Certificate and federal Environmental Assessment Decision Statement (Bruce and Hume, 2015). This did not occur, as both the Canadian Environmental Assessment Agency and the BC Environmental Assessment Office failed to recognize the jurisdictional authority of SN enacted through the SNP, resulting in inconsistencies between the SN and Crown conditions for approval (Papillon and Rodon, 2019). SN overcame this, as proponents were legally bound to the SN Environmental Certificate, thereby requiring them to uphold SN conditions for approval by applying for Crown amendments to their EIA Certifications (British Columbia, 2017). • In implementing the TWN assessment, TWN applied to National Energy Board (NEB) to be treated as an independent jurisdiction holding responsible authority with respect to the TMEX proposal (TLRD, 2015). As NEB did not have a legal obligation or process for engaging with ILIA completed by an independent jurisdiction, NEB received and considered the TWN 117 assessment as a traditional land and resource study, without addressing or acknowledging the application of TWN laws and jurisdiction enacted through the review and rejection of the project (Clogg et al., 2017). Although TWN concluded that the TMEX proposal did not represent the best use of Tsleil-Waututh territory, both NEB and the EAO advised that the project should be approved, therefore the proposal was later approved by Crown decision makers (NEB and EAO, 2016). Even when ILIA is recognized by the Crown (as seen in the SSNAP) or the Proponent (as seen in the MCCRA and KNRIA), there are a number of procedural obstacles that Indigenous Nation/groups must consider when designing and implementing an ILIA process. As indicated by both the Chapter 5 case studies and Chapter 3 and 4 literature reviews. These include: • Difficulty meeting Crown imposed timelines: While agreements were reached between SNN and the Crown for the integration of the SNNAP into the EIA Crown review, SSN communicated difficulties meeting Crown imposed timelines (CEAA and EAO, 2017). Even with new opportunities for ILIA as apart of Crown EIA under the EAA and IAA, procedural timelines for EIA still remain rigid14. As Indigenous Nations/groups participation requirements are increased through ILIA, meeting timelines may continue to be difficult. • Multiple consultation processes and approaches: MCFN and KNC both collaborated with proponents to complete portions of the proponents EIA applications related to impacts on Indigenous rights and interests. MCFN and KNC both simultaneously participated in Crown consultation activities throughout the EIA (Candler, Gibson, and Malone, 2015; Firelight Group, 2014). As ILIA is adopted by more Indigenous Nations/groups, this is an important consideration, as it can place strain on both the financial and human resource capacity of the Nation/group if they are pulled into multiple Crown and Proponent consultation processes. • Final decision-making is Crown controlled: As seen in both the SN and TWN case studies, the Crown maintained control over the required mitigation measures, conditions for approval, and final decision making to approve or reject the project (Clogg et al., 2017; Papillon and Rodon, 2019). As indicated the updated EAA and IAA, final decision-making is still controlled by the Crown (EAO 2020b; IAAC 2020b). There are however new opportunities for conflict resolution where Crown decision-making contradicts the decisions of participating Indigenous Nations/groups (EAO 2020b; IAAC 2020b). 14 As indicated by the EAO User Guide (2020) and IAAC Guidance for Indigenous Participation in Impact Assessment (2020), the timelines for EIA under both the EAA and IAA both remain bound to a pre-determined process schedule. 118 6.5 Summary This research was designed to address the management and planning needs of Tsilhqot’in National Government (TNG) related to ILIA. In doing so, this research explores ILIA process design options, which can help to advance its implementation on Tsilhqot’in lands. Generating results relied on three main phases. First, I conducted a literature review of the evolution of Indigenous involvement in EIA (Chapter 3) and the emergence, opportunities, and obstacles of ILIA (Chapter 4). Information was collected within the current state of knowledge pertaining to Indigenous involvement in EIA, how ILIA provide a useful tool for advancing Indigenous environmental management and jurisdictional authority, and the obstacles/limitations associated with provincial/federal approaches to EIA and new approaches to ILIA. The second phase was completed through the development of 5 ILIA case studies which have been implemented throughout Western Canada, four of which were in BC, and one of which was in Alberta (Chapter 5). The goal of case study development was to outline various options in ILIA which have been utilized by Indigenous Nations/groups. The final and third stage of this research analyzed the Chapter 5 case studies in relation to the information contained in Chapter’s 3 and 4. In doing so, the results were communicated across the three theoretical propositions which have guided the investigation of ILIA throughout the entire research process. This uncovered how ILIA processes reflect aspects of location, history, natural resource issues, and governance approaches of the Indigenous Nations/groups undertaking the assessment; the data management, administrative support, communication and decision-making, and funding mechanisms required in ILIA; and the variable degrees of Indigenous control achieved through ILIA. 6.6 Conclusion This research project had three research objectives. These were collaboratively developed with TNG to help provide useful information about ILIA approaches – information that can help in defining options as TNG considers what a Tsilhqot’in specific assessment process could look like. The research objectives were: 1) Identify the various ways in which Indigenous Nations/groups have chosen to implement their own assessment processes that reflect their unique locations, histories, natural resource issues and governance approaches, 2) Determine the information, data management, and administrative support requirements, communication and decision-making tools, and funding mechanisms or needs of ILIA, and 3) Describe the variable degrees of control achieved through ILIA. To meet the research objectives of this study, a literature review was used to identify the current state of knowledge as it pertains to provincial/federal EIA and ILIA, case studies were developed to outline how ILIA has been implemented to date, and an analysis of the case studies was completed to highlight key themes of interest which illustrate the research propositions (i.e., re-phrased research 119 objectives as statements). Based upon the literature review, analysis and results of this thesis, the following conclusions outline the key findings of this research. The first objective (identify the various ways in which Indigenous Nations/groups have chosen to implement their own assessment processes that reflect their unique locations, histories, natural resource issues, and governance approaches) was achieved by outlining why ILIA has emerged and how ILIA has been applied to reflect the current state of the Indigenous Nation/group’s territory undertaking the assessment. The results of this research illustrate that ILIA has emerged in two ways. First, as an effective tool for overcoming the inadequacies of provincial/federal EIA and Crown-led consultation, which have simultaneously provided new opportunities for Indigenous, federal, and provincial governance and interests to converge. When ILIA is completed alongside or collaboratively with Crown/Proponent EIA activities, a venue for Ethical Space is created- where different world views and knowledge systems can collaborate to achieve shared outcomes (BC First Nations Wildlife Conservation Forum, 2020). Within an Ethical Space setting, Indigenous knowledge and values can be considered equally with other (i.e., western) knowledge systems (Ermine, 2000; Morgan, 2007). ILIA is also be based upon Indigenous knowledge and legal systems which integrate environmental, social, and cultural inputs of increased timescales and scope, where considerations of cumulative effects in project-based assessments is enhanced (O’Fiarcheallaigh and MacDonald, 2020; Crawford, 2018). This helps overcome a persistent challenge of federal/provincial EIA, which has struggled to account for the cumulative effects of development- culturally, socially and environmentally on Indigenous peoples, communities, and Nations/groups (Arnold, 2018; Kapell, 2018; Stevenson, 1996). The second way ILIA has emerged is through the assertion and recognition of Indigenous legal systems and political rights. This research indicates that ILIA is implemented through the assertion of Indigenous Nations/groups inherent legal systems and obligations/responsibilities to their lands and communities. Through this assertion, ILIA can be utilized to integrate Indigenous Nations/groups specific laws and stewardship responsibilities into both Crown and Proponent activities. Simultaneously, Indigenous legal systems and political rights have gained recognition from the Crown and Proponents in recent years. For example, the current legal and political environment within Canada (i.e., the adoption of United Nations Declaration on the Rights of Indigenous Peoples and the updated federal IAA and BC EAA) appear to recognize overlapping jurisdiction and facilitate collaborative approaches to natural resource management and regulation. ILIA can be framed and implemented to reflect the current state of Indigenous Nations’ territory by integrating the history of past development, connection to the site of proposed development, and as a precursor to, or as a result of, land use planning or objectives. The results of this research illustrate that Indigenous Nations/groups emphasis on the current state of their territory uses Indigenous defined 120 indicators that present shifts from the dominant rhetoric of western value systems within provincial/federal EIA (SSN, 2017; Hanson, 2018). Western value systems have historical commodified natural resources based upon their economic value (Hanson, 2018) - Indigenous inputs differ, as they consider social, cultural, and environmental health as well as economic opportunity (O’Fiarcheallaigh and MacDonald, 2020). To communicate these often-substantial differences in value systems, Indigenous land-use plans/objectives can be a powerful statement when implementing ILIA and working within Crown EIA regimes, as they clearly define goals for cultural, social, and environmental protection, restoration, and revitalization (Stevenson and Webb, 2003). The second research objective (determine the information, data management, and administrative support requirements, communication and decision-making tools, and funding mechanisms or needs of ILIA) was achieved through outlining some of the common resource requirements associated with conducting an ILIA. Resource requirements include increased demands for internal staff, community member, and leadership capacity; external capacity support; and financial support from Proponents or/and the Crown for the completion of ILIA. Compared to Indigenous participation in provincial/federal EIA, the participation and human capacity requirements from internal staff, community members, and leadership while completing an ILIA increase significantly (O’Fiarcheallaigh and MacDonald, 2020). The design and implementation of an ILIA process will require building internal capacity for assessment activities such as completing technical, cultural, and social studies, communicating with the Crown and Proponents, creating mitigation and accommodation measures, and contributing to final decision-making. While the increased demands of ILIA can place strain on Indigenous Nations/groups internal capacity, it also provides a positive opportunity to build internal unity and EIA capacity that has benefits beyond the particular project assessment (O’Fiarcheallaigh and MacDonald, 2020). For example, through the completion of an ILIA, information is gathered which can be used both within and outside of the project-specific context. This information can be used to leverage additional funding, inform government-to-government discussions, and aid in the development of new policies and plans which consider and protect Indigenous values and territories (O’Fiarcheallaigh and MacDonald, 2020). The second resource requirement for ILIA are the relative needs for external capacity support for administration, technical analysis, completion of research activities, and working within the parallel Crown EIA activities. External technical support requirements largely depend upon the internal capacity of the Indigenous Nation/group undertaking an ILIA- and are not always required. When required, Indigenous Nations/groups are able to select the team which will undertake assessment activities with them (O’Fiarcheallaigh and MacDonald, 2020). This ensures that the external support team involved understand Indigenous values and requirements, which can foster effective and trusting working relationships. 121 Overcoming the inherent challenges associated with the increased demands for internal and external support resource requirements associated with ILIA can both be enhanced and limited by proponent or Crown funding. Throughout the history of provincial/federal EIA, Crown funding for Indigenous participation, in most cases, has been inadequate (First Nations Energy and Mining Council, 2019). Research results indicate that this is a persistent challenge, as funding to support the completion of ILIA was often leveraged through negotiations with Proponents, rather than the Crown. Under circumstances where an Indigenous Nation/group is unable to negotiate funding with Proponents or the Crown, the Nation/group may be forced to self-fund the ILIA. As ILIA becomes more widely practiced throughout Canada, this will be a limiting factor to its successful utilization and implementation. The third research objective (describe the variable degrees of control achieved through ILIA) was achieved through the generation of results that describe the levels of Indigenous control achieved through cooperative or joint management agreements and the three ILIA process models, the influence of ILIA (i.e., on mitigation/accommodation measures, project design, and Proponent or Crown decision-making), and the legal and procedural obstacles associated with the implementation and completion of ILIA. The first factor influencing Indigenous control in ILIA are the presence or absence of legally binding cooperative or joint management agreements between the Indigenous Nation/group undertaking the assessment and Crown or Proponents. This research indicates that cooperative or joint management agreements play a key role in establishing the terms and conditions for collaboration between the Indigenous Nation/group undertaking the assessment, Proponent, and Crown. The terms and conditions set out through collaborative or joint management agreements establish funding, scope of the assessment, timelines, and integration (i.e., into Crown or Proponent decision-making). In the absence of cooperative or joint management agreements, ILIA may not be received by the Crown or Proponents as intended by the Indigenous Nation/group who undertook the assessment- which will not deliver desired outcomes. As this research focused on ILIA experiences which took place prior to the implementation of the updated federal IAA and 2018 BC EAA, the success of leveraging cooperative or joint management agreements was dependent on the willingness of the Proponent or Crown to engage with ILIA. With the updated federal IAA and 2018 BC EAA, this should no longer be an issue, as opportunities for ILIA are built into each updated EIA regime. The second factor influencing Indigenous control in ILIA is the process model which has been utilized. ILIA process models include co-managed, co-developed, or independent ILIA. This research shows that the defining factor within each ILIA process model is who the Indigenous Nation/group undertaking the assessment partners with (i.e., the Crown, Proponents, or neither). In terms of who Indigenous Nations/groups partner with, it should be noted that this is not necessarily been a clearly defined choice. Instead, this has been dependent on who is available or willing to partner with the Nation. 122 There are variable levels of control achieved through each ILIA process model. Out of the three ILIA process models highlighted through this research, independently conducted ILIA provides the highest levels of control over what is being assessed, assessment methods, and findings - as assessment activities are fully controlled and conducted by the Nation/group without any external influence from the Crown or Proponents. The limiting factor to an independently conducted ILIA is how the assessment is considered by the Crown or Proponent following its completion. How ILIA is considered in independent ILIA is fully dependent on pre-established agreements in the form of cooperative or joint management agreements which set out how the ILIA will be considered. On the other hand, co-managed and co-developed ILIA process models require the Indigenous Nation/group undertaking the assessment to partner with the Crown (co-managed) of Proponent (co-developed). As partnerships with either the Crown or Proponents are the defining factor of co-managed and co-developed ILIA, cooperative or joint management agreements should be a precursor to these partnerships. Cooperative or joint management agreements will set out how these partnerships will take place and will help facilitate more positive and productive relationships. The terms and conditions established through the cooperative or joint management agreements, co-managed or co-developed ILIA process models may provide Indigenous Nations/groups with less control over what is being assessed, assessment methods, and findings (although variable) - but provide a greater level of certainty that that the ILIA will be used and considered as originally intended. ILIA can also have variable influence over project design, mitigation/accommodation plans, and proponent or Crown decision-making. As noted above, the variable influence of ILIA is largely dependent on cooperative or joint management agreements and the ILIA process design utilized. When cooperative and joint management agreements are established which guarantee the integration of ILIA into Crown and proponent activities as intended by the Indigenous Nation/group undertaking the assessment, ILIA can hold significantly more weight in Proponent and Crown decision-making. For example, results of this research indicate that where cooperative or joint management agreements have been established, ILIA contributes to the implementation of culturally appropriate management strategies in terms of both project design and mitigation measures. This is a positive development, as recommendations for project design and decision-making developed through ILIA more effectively recognize and respect Indigenous rights, title, and jurisdiction. When both implementing and completing an ILIA, there are a number of legal obstacles and procedural challenges that may limit Indigenous control in ILIA. The largest legal obstacle presented in this research is the absence of legislation supporting the use of ILIA within the Crown EIA regime. In the absence of supportive legislation, ILIA may be subject to proponent or Crown reinterpretation (O’Fiarcheallaigh and MacDonald, 2020) - running the risk of an ILIA not being received and utilized as 123 intended. It should be noted however that within the updated federal and BC EIA processes, ILIA is recognized as a legitimate component of Crown assessment activities, and therefore, this should no longer be an issue. Although ILIA will be included within Crown and proponent assessment activities under the updated federal and BC EIA processes, final decision-making for project approval still remains the responsibility of the Crown. Indigenous Nations/groups working to design and implement an ILIA should be aware of this reality, as their aspirations should be reconciled against the reality that the Crown still views themselves as the legal authority for land-based decision-making (O’Fiarcheallaigh and MacDonald, 2020; Hanson, 2018). In jurisdictions outside of BC, where the federal EIA process is not triggered, the use of ILIA within provincial EIA may be a persistent issue if supportive legislation for does not exist. If ILIA is used more often within Crown EIA activities, Indigenous Nations/groups will have to overcome challenges associated with Crown controlled EIA regimes- including, timelines and consultation approaches. As many Indigenous communities have informal processes for understanding and evaluating environmental change/effects that take place on their lands - aligning these with the procedural requirements of Crown controlled EIA regimes will require adapting Indigenous processes with the processes of Crown governments (Kapell, 2018). For example, in provincial/federal EIA, deadlines for assessment activities are limited and strictly bound the Crown dictated timelines. As communication, engagement practices, and timelines for articulating impacts through ILIA may require more time than those of provincial/federal EIA, this can present an enduring challenge for Indigenous Nations/groups as they engage with the Crown and proponents. 6.6.1 Recommendations for ILIA Informed by lessons learned and experiences of the Indigenous Nations/groups mentioned within the chapter 5 case studies, this research offers four recommendations for Indigenous Nations/groups who are working to design or implement an ILIA process. As guided by pragmatism, these recommendations are focused on supplementing discussions and strategic thinking prior to the implementation of an ILIA process, aiming to provide Indigenous Nations/groups with leverage to design an ILIA which achieves their desired levels of control and influence. The recommendations generated through this research include: • Establish consistent approaches to working with either proponents and/or the Crown. For example, this includes, but is not limited to, clearly articulated timeline and funding requirements, pre-establish revitalization or land-stewardship objectives which clearly articulate land-based goals and objectives, and pre-determined and clearly articulated expectations for the Crown or 124 proponents who will be engaged in consultation. For example, the KNC-Teck Working Protocol Agreement which outlines protocols for communication and cooperation. • Build internal capacity among internal staff, community members, and leadership. This includes, but is not limited to, identifying and designating the Indigenous governance sector primarily responsible for ILIA activities, identifying key knowledge holders within the community to participate throughout ILIA, building community-based land-use plans which can guide ILIA, and developing thresholds and indicators which can be used to identify values, determine significance, and guide decision making in ILIA. For example, the TWN Stewardship Policy. • Facilitate accessibility and connectivity of existing data sources within the Indigenous government. This can be achieved by compiling existing data (i.e., baseline data, etc.) which can supplement ILIA. This includes land-use plans, past assessments, or any information related to knowledge and use (i.e., harvesting practices/preferred sustenance species/preferred harvest locations, cultural/spiritual practices, etc.). For example, MCFN’s use of previously completed studies which supplemented the MCCRA. • Explore legally binding cooperative or joint management agreements that provide leverage when working with proponents or the Crown. This can take form as contractual agreements which outlines the terms and conditions of participating in ILIA, which guarantee that the ILIA will be used as intended and given adequate consideration. For example, the SNP Framework Agreement and SN Environmental Certificate. 6.6.2 Recommendations for Future Research This research analyzes and generates results of Indigenous-led impact assessment (ILIA) that have been conducted and completed outside of the recently updated BC and Federal environmental impact assessment (EIA) laws. As such, ILIA as a part of the new BC and Federal EIA legislation was not included in this research. This is a limitation as it leaves a knowledge gap in understanding how the research objectives would be achieved by analyzing ILIA and EIA reviews under the new federal and BC EIA Acts, which will be an important objective of future research. With this, I suggest that the research objectives of this study are rephrased to investigate the effectiveness of the updated BC EAA and Federal IAA, in both integrating and considering ILIA, within the context of the updated Crown EIA regimes. This will be useful, as it will provide policy analysis of the effectiveness of the new BC and Federal EIA legislation in achieving goals of reconciliation, while also aligning with UNDRIP (as intended). As the updated BC EAA and Federal IAA are new, this evaluation will take time, as ILIA processes as part of these new sets of legislation has yet to occur, and therefore, will be the task of future researchers in the field of policy evaluation and integrated resource and environmental management. 125 Bibliography Alberta Energy Regulator (AER) and Canadian Environmental Assessment Agency (CEAA). (2019). Report of the Joint Review Panel: Teck Resources Limited Frontier Oil Sands Mine Project. Retrieved from https://aer.ca/documents/decisions/2019/2019ABAER008.pdf Allard, C. (2018). The Rationale for the Duty to Consult Indigenous Peoples: Comparative Reflections from Nordic and Canadian Legal Contexts. 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(2016). “They could take you out for coffee and call it consultation!”: The colonial antipolitics of Indigenous consultation in Jasper National Park. Environment and Planning
Thesis/Dissertation
eng
Interdisciplinary Studies
Vancouver : University of British Columbia Library
Attribution-NonCommercial-NoDerivatives 4.0 International
Graduate
Hanna, Kevin
Indigenous-led impact assessment : approaches, requirements, and degrees of control
Text