Eight things you need to know about Indigenous Engagement and Canada’s Impact Assessment Act

By Chelsie Klassen | November 27, 2019

On August 28, 2019, the new Impact Assessment Act (IAA) came into effect, rendering changes to Canada’s environmental legislation. The IAA replaces the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and presents significant differences that will impact the scope of Indigenous Engagement and delivering energy, infrastructure, and mining projects.

Concurrently, the Impact Assessment Agency of Canada (the Agency) replaces the Canadian Environmental Assessment Agency as the single regulatory body responsible for managing Impact Assessments and allocating accordingly to either a provincial government or Indigenous governing body. As a result, the Agency has increased autonomy from the Ministry of Environment and Climate Change.

Here’s what you need to know:

What are impact assessments?

Impact Assessments (IAs) are formal evaluations that measure the economic, health, social, and environmental impact of projects and/or policies. Indigenous rights are also assessed.

What are impact assessments used for?

Aside from considering and informing all stakeholders and communities of potential consequences, IAs improve transparency into the interests of regulations and project goals. They indicate priorities, improve public participation, and discourage special-interest politicization.

Under the IAA, an IA is required for all designated projects.

How are designated projects determined?

Designated projects are determined in two ways: (1) by regulation and (2) through Ministerial discretion.

Overall, the projects that were deemed reviewable by the CEAA 2012 continued to be reviewed under the IAA. Some new project types, such as offshore wind energy projects, have been added.

Similarly, under the IAA, the Minister has the discretion to designate projects not included in regulations, so long as the Minister is of the opinion that there are sufficient adverse effects to consider, specifically to Indigenous communities, and will determine whether the project impacts Indigenous rights.

So, what’s different with the new Impact Assessment Act?

A new Planning Phase

The IAA introduced a new Planning Phase, and Indigenous groups are involved in the following ways:

  • The Agency must offer consultation with any affected Indigenous group.
  • A summary of issues provided by the Indigenous group must be given to the project proponent as part of the summary of relevant issues.
  • When the Agency determines whether an IA is required, they will evaluate any adverse impact that the designated project may have on the rights of the Indigenous Peoples of Canada. This is a big change from CEAA 2012, which only had to determine if the project had significant environmental impacts.

Additionally, under the IAA, the pre-planning phase now takes 180 days, with the potential to extend another 90 days by the Minister, as opposed to the 45 days of screening as in the CEAA 2012.

What can you do?

Understand the impacts of your project. Have answers for the following four-prong test before your project description is submitted as to the extent the project:

  • has adverse effects on Indigenous groups and their rights;
  • hinders the government’s ability to meet climate commitments;
  • contributes to sustainability; and
  • has adverse environmental impacts.

Indigenous authority and parallel review process

The IAA builds in more authority for Indigenous groups and includes a new term–Indigenous governing body–and removed any reference to Aboriginal as in the CEAA 2012.

Indigenous groups, as defined in the IAA, now have an expanded scope and can run their own parallel environmental review process and conduct their own assessment. Overall, there are two committees–the Expert Committee and an Advisory Committee (which looks at Indigenous issues specifically). Both committees must have at least one Indigenous representative, though that representative doesn’t necessarily need to be Indigenous.

What can you do?

Have a clear understanding of “jurisdiction” and “Indigenous governing body” as defined by the IAA. Additionally, there is no mechanism that currently enforces funding of the parallel process from the government or proponent, but this could be an industry ask.

Indigenous engagement in the final decision

Under the IAA, Indigenous impacts are to be considered in the final decision and there’s now a sharper focus on two areas: (1) the mandatory inclusion of traditional knowledge and (2) Canada’s commitment to reconciliation and a working partnership with Canada’s Indigenous Peoples as in Section 35 of the Constitution Act, 1983.

What can you do?

Understand whether the project has any adverse impacts on an Indigenous group and be deliberate about mitigating or limiting that impact throughout the IA. Adhere to Canada’s commitment to reconciliation and respect your working partnership with Indigenous communities.

And what’s the same with the new Impact Assessment Act?

Two impact assessment processes

Both the IAA and the CEAA 2012 contain two IA process options: standard assessment and review panel.

Both processes take the following into account:

  • Physical and cultural heritage.
  • The current use of lands and resources for traditional purposes.
  • Any structure site or thing that is of historical, archaeological, paleontological, or architectural significance.
  • Any change occurring to the health, social, or economic conditions of the Indigenous Peoples of Canada.

Federal lands

Federal lands (i.e., reserves) are treated the same as CEAA 2012 and under the Indian Act.

To be determined…

While an advisory panel for Indigenous issues still exists and the new IAA defines the incorporation of traditional knowledge as mandatory, it lacks in the incorporation and clarity on how to fill adequacy. A refusal from Indigenous groups doesn’t necessarily mean a “no” for the project if the Minister deems it in the best interest of the general public.

Overall, the new IAA takes a stronger focus on the rights and culture of Indigenous groups to ensure those rights are considered across the various stages of an IA. Through cooperation, respect, and promoting awareness and understanding, we can develop projects that limit or mitigate the impact on Indigenous rights.