Lands & Resources Department Fort Nelson First Nation RR#1, Mile 295, Alaska Highway Fort Nelson, B.C., V0C 1R0 Phone: (250) 774-6313 Fax: (250) 774-6317
Fort Nelson First Nation’s Submission to the Federal Environmental Assessment Review Panel December 23, 2016 Table of Contents 1. Introduction: About Fort Nelson First Nation ...................................................................... 1 2. The Critical Need to Create a New Nation-to-Nation Relationship in Federal Environmental Assessment (EA)................................................................................................... 2 2.1 Issues with the Current Proponent-Centric Federal EA System .........................................2 2.2 Proposed Solutions For Refocusing Away From A Proponent Driven System .............3 3. Improving the Federal EA Process Structures for Indigenous People: Better Funding and Embrace of Traditional Knowledge and its Holders .................................... 5 3.1 Improved Funding ..................................................................................................................................5 3.2 Overcoming the Currently Alienating Nature of the Federal EA Process: Engaging Traditional Knowledge and its Holders ................................................................................................6 4. Refocusing Federal EA to Consider All Impact-Causing Physical Works and Activities ................................................................................................................................................ 7 4.1 Determining Which Projects Go to EA ...........................................................................................7 4.2 Avoiding Project Splitting and Expanding Consideration of Upstream Effects ............8 4.3 Conducting Regional Studies .......................................................................................................... 11 4.3 Vastly Improving the Conduct of Cumulative Effects Assessment in Federal EA ..... 12 5. Improved Assessment of Traditional Land Use (TLU) and Aboriginal and Treaty Rights ................................................................................................................................................... 13 6. Improved Post EA Compliance and Enforcement ............................................................ 14 7. Other FNFN Recommendations to Improve the Federal EA Process ........................ 16 8. Conclusions ................................................................................................................................... 17 Appendix 1: FNFN Metrics to Assess Success of Improvements to the Federal EA System and Nation-to-Nation Relations in General ............................................................. 18 Appendix 2: Potential Criteria and Considerations for Project Screening ................. 19 Appendix 3: Recommended Improvements to Federal EA Guidance ........................... 21
1. Introduction: About Fort Nelson First Nation We are the Dene and Cree people of southern Denendeh, now known as the Fort Nelson First Nation (FNFN). We are the People of the Land and the Rivers and we have lived in our homelands in northeast British Columbia since time immemorial. We are protectors and stewards of this land and we honour our obligation to care for the land and water for future generations. We are also Treaty people. Treaty No. 8, a Nation-to-Nation treaty with Canada signed in the spirit of peace and sharing in 1910, affirms our established Aboriginal Rights and Title to our lands and our Nation-to-Nation relationship to the Crown and confirms our mutual responsibility to protect our treaty lands and “mode of life” “for as long as the sun shines, the grass grows and the rivers flow.” Our traditional territory includes, but is not limited to, almost all of the Liard River Basin in northeast British Columbia. Many of our members still have strong desire to engage in practice of our Treaty rights and practice of our traditional mode of life on the land, which requires access to large areas of forest within which to conduct our seasonal rounds. In recent years, however, our members’ ability to meaningfully practice their harvesting and incidental rights have been increasingly constrained by increased industrial development, especially in the natural gas sector. Our territory is underlain by four different major gas basins that have been promoted by the federal and territorial governments as the economic breadbasket for the future of this country, especially with the potential development of a Liquefied Natural Gas (or LNG) export system. Natural gas exploration and extraction-related activities, including hydraulic fracturing (or “fracking”), pose a very serious threat to the land and water in FNFN territory. The environmental impacts of natural gas extraction activities are deep and far-reaching, including massive landscape disturbance, threats to wildlife, risks to water quality and quantity, and high levels of greenhouse gas emissions and potential air pollution and increased particulate matter. Over the last decade, these activities and impacts have rolled out across our territory at a rapid pace and scale and without a regulatory framework capable of understanding, assessing or monitoring the extent of the potential impacts to the health and resilience of the land, water, and animals, and in turn, the health and resilience of our community. These changes are rarely properly assessed in the current environmental assessment system, either because most projects don’t even require an EA (they are considered “sub-threshold”), or because upstream effects of major projects are not comprehensively assessed. This leaves FNFN and the resources we rely upon in a highly vulnerable state. That state can be exemplified by the plight of the boreal caribou (Medzih in our language). FNFN territory covers 85% of boreal caribou territory in BC. In recent years, the numbers of these animals in our territory have shrunk considerably. This is especially notable because they were a Species at Risk even prior to these new
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reductions. Caribou, a species that used to be critical for harvesting and widely distributed across FNFN’s cultural landscape, can no longer be harvested. Due in large part to habitat fragmentation and disturbance effects from the gas sector, their numbers are now so perilously low that they are at risk of herd extirpation even in the case of one hard winter; a disease or pest infestation. Caribou are the “canary in the coal mine” of habitat and harvesting area loss for our Nation; a sensitive species that is a clear sign that we are on the brink of major, potentially permanent loss of adequate area within which to practice our way of life on the land and meaningfully practice our Treaty 8 rights. It is time for the federal government to take notice and take action through federal process and legislative changes if the caribou and indeed, our culture is to survive.
2. The Critical Need to Create a New Nation-to-Nation Relationship in Federal Environmental Assessment (EA) Environmental stewardship/governance and shared decision making on lands and resources is a critical concern for FNFN. Making decisions about land, water, and other resource use in our territory is a fundamental element of our mode of life, which is protected by Treaty No. 8. However, existing laws, regulations, and policies do not seriously consider FNFN rights and traditions and do not offer FNFN a meaningful role in the strategic and operational decisions that determine how our territory is used, developed, impacted, restored, and compensated for. 2.1 Issues with the Current Proponent-Centric Federal EA System The federal EA process is unfortunately a good example of this Crown-enforced alienation of FNFN from our stewardship rights and responsibilities. Our Nation has been involved in multiple federal environmental assessments (EAs) over time, including Site C and many National Energy Board run according to the dictates of the federal CEAA 2012 legislation. Our experience has been that the federal EA process is primarily focused on the wrong relationship – the one between the federal government as a decision-maker, and the Proponent, as the primary information provider and, amazingly inappropriately, the primary impact assessor. The current federal model where this is a proponent driven process not merely at the outset, but throughout much of the EA, is fundamentally flawed. As it is currently run, the process is driven by Proponents, decisions are made almost exclusively by the Canadian Environmental Assessment Agency (CEAA) and federal Ministers, and priority rights holding (and highly vulnerable) Indigenous peoples, including FNFN, are left out of the decision-making process almost completely. We are almost always on the outside looking in at the federal EA process.
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Under the current federal system, the Proponent is the primary information provider, the primary impact assessor, and the primary designer of the environmental impact statement. This “choose your own adventure” model for Proponents means that the system is effectively weighted in favour of outcomes agreeable to Proponents rather than the most affected parties – Canadian indigenous groups. Having the party that wants to develop the Project, be the initial assessor of the significance of effects leads to self-fulfilling prophecy – of course the proponent will find a way to suggest there will be no significant adverse effects. And since the Proponent is not required under the current system to adequately fund Indigenous peoples to conduct their own independent impact assessment studies, it is the Proponent’s assessment that makes for the primary (often due to capacity constraints for First Nations – the sole) substantive information inputs to the federal government. This is not conducive to informed decision-making. 2.2 Proposed Solutions For Refocusing Away From A Proponent Driven System At base, a fundamental re-visioning of the federal EA process is required, to be between the federal government and indigenous governments. For example, Proponents should be asked to provide information and initial effects characterization, but not allowed to estimate the significance of these effects. This task is a subjective, value-laden determination1 that must occur in a consultation process between parties with responsibilities to uphold: First Nations with their stewardship and Treaty/Indigenous rights and responsibilities; and the federal government with its environmental mandate and responsibility to protect priority Aboriginal and Treaty rights under the Constitution. This joint significance determination process must be built into the federal EA system.2 1. If the federal government is serious about its promise to create a new Nation-to-Nation relationship with us, joint decision-making and comanagement of federal-FNFN environmental assessments is a nonnegotiable starting point. Some of the features required for a comanaged EA process in FNFN territory include:
Specific Nation-to-Nation Project assessment teams set up at the outset of a federal EA, with Project-specific terms of reference modified to the Project and situational context; Provision of adequate funding for the First Nation to fully engage in technical (review and independent studies) and consultation aspects of the EA;
This reality is recognized by EA practitioners the world over – see Erlich, A. & W. Ross (2015). The significance spectrum and EIA significance determinations. Impact Assessment and Project Appraisal, 33(2), 87-97. 2 The following recommendation and all subsequent FNFN recommended solutions are numbered sequentially for ease of reference. 1
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Joint scoping of the EIS Guidelines, including determination of the development to be subject to assessment, and the temporal, spatial and issues scope of assessment; First Nations access to staff of federal responsible agencies (e.g., CEAA, Department of Fisheries and Oceans, Transport Canada, Environment and Climate Change Canada) to gather or understand information about the receiving environment and Project interactions; Nation-to-Nation co-drafting of deficiency statements for EIS’ (e.g., Completeness and Adequacy Reviews), Information Requests, and Report of Environmental Assessment to the Minister(s), including joint significance determinations; and Where disagreement emerges in assessment of effects and recommendations between the First Nation(s) and the federal assessment agency, the issue will first be subject of a pre-defined dispute resolution mechanism agreed to by the parties, and if issues remain, outstanding issues tabled in any report to the Ministers and subject to further consultation and accommodation discussions prior to Ministerial decisions being made.
Appendix 1 includes a list of the metrics against which FNFN proposes to assess the success of any new Nation-to-Nation relationship. Assessing the effectiveness of outcomes is critical; without it, the new words of the new government will not ring true in the ears of our people. The rest of this submission focuses on issues that need to be corrected in order to build and support a higher-functioning, Nation-to-Nation relationship driven, federal EA system. Issues discussed include:
Improving Federal EA Process Structures: Improved funding and engagement of Traditional Knowledge and its holders (Section 3) Re-visioning What Gets Assessed in Federal EA and How: Screening “subthreshold” projects, avoiding project splitting, increased use of regional studies, and improved cumulative effects assessment in EA (Section 4 and Appendix 2) Improved assessment of traditional land use and Treaty rights (Section 5) Co-management of post-EA compliance and enforcement (Section 6) Other improvements to a revamped system (Section 7; Appendix 3)
Our submission is solution-oriented; each issue includes FNFN’s proposed solutions in bold text.
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3. Improving the Federal EA Process Structures for Indigenous People: Better Funding and Embrace of Traditional Knowledge and its Holders Both of the above-noted themes must be improved upon in order for Canadian Indigenous people to have more meaningful input into federal EA. 3.1 Improved Funding The current weak federal EA funding envelope for capacity stricken First Nations is totally inadequate for meaningful engagement and independence. We often receive $25,000 or less to engage in multi-year EA processes, leaving no capacity to conduct any studies, or even engage substantively in review of thousands of pages of Environmental Impact Statements (EIS). Proponents on the other hand have millions to tens of millions of dollars to conduct their studies. And when we are provided funds by Proponents, it is often very late in the process and may come with conditions on what we do, and we spend valuable time and energy negotiating for the opportunity to protect our own rights and interests. In the current system, we are effectively forced to ask for funds to afford ourselves the ability to protect our supposedly Constitutionally-protected and prioritized Treaty rights, from the very parties whose actions are likely to infringe on those rights. We do not feel this is either fair or reasonable. Only through provision of meaningful and “untied” funds an order of magnitude higher to indigenous groups, as early as possible in the Project-planning process, can we break free from this current system. Proponents know the cost of doing business in Research and Development, exploration, and capital construction. Having them cover the costs of assessing their proposed damage, independently and jointly by our two levels of government, is part of the cost of doing business in a future with Free, Prior and Informed Consent. FNFN proposed solutions for dealing with Federal EA funding issues include: 2. Development of User Pay System in law that requires Proponents to more extensively fund EAs for their proposed Projects, guaranteed proportions of which will be redistributed to affected indigenous groups. This User Pay system should be predicated on the assumption that approximately a ten-fold increase in federal funding to Indigenous groups is required for federal EAs, and should become an adequate source of funds so that an Indigenous group can engage in the EA without Proponent support if they so desire.
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3.2 Overcoming the Currently Alienating Nature of the Federal EA Process: Engaging Traditional Knowledge and its Holders The current federal EA process is alienating to Indigenous people. This, along with other preconceptions that make western scientific knowledge prioritized over indigenous ways of knowing, has rendered impotent the stated federal goal of incorporating traditional knowledge into decision-making. The current federal EA system is not adequately designed to facilitate oral testimony, so critical to our oral rather than written-focused culture. For example, under the highly legalistic federal hearing process, some of our members have refused to testify or become highly emotional because the forum was seen as confrontational. The current process is too adversarial and legalistic, alienating many community members, and has few community-level face-to-face opportunities at the Nation-to-Nation level. In addition, incorporation of TK into decision-making is not simply the addition of written information from traditional knowledge holders into the process as socalled “anecdotal” inputs, as refusable advice; it by definition requires the inclusion of TK holders into decision-making itself. This has never occurred in the federal system. Changes to federal hearing process are require so that FNFN members and other Indigenous peoples feel supported and listened to. We recommend the Panel look to the example of our neighbours to the north, both in the Yukon and the NWT, where co-management boards have been set up for many years and have much higher credibility with Indigenous peoples and frankly, get much better engagement and inputs because Indigenous people feel their voices make a difference. FNFN Proposed Solutions for Making the EA Process Accessible for Indigenous Peoples include: 3. The federal EA process to require, not merely encourage, the integration of traditional knowledge and traditional land use data, into federal EIS’;3 4. Formation of regional Elders Advisory Committees that can inform CEAA on proper conduct of EAs in those areas; 5. More face-to-face hearings/meetings with actual decision-makers at the community level, adopt a “Mackenzie Valley Model” more welcoming to TK holders, and utilizing less formal and more comfortable community hearings; Old concerns that this would somehow constitute a veto for First Nations reluctant to bring this information forward, are trumped by the federal government’s commitment to Free, Prior and Informed Consent of First Nations, which necessitates the gathering of this type of information. 3
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6. Have TK/TLU advisors, experts in these topics, either on Panels or directly advising Panels and/or CEAA on interpretation of oral history/testimony; and 7. The adoption of more panels with First Nations people on them, so that our members feel supported and listened to during environmental assessments, is critical.
4. Refocusing Federal EA to Consider All Impact-Causing Physical Works and Activities Currently, federal EA focuses the vast majority of its efforts on assessing the likely future changes that will be specifically caused by relatively large individual projects. However, this is an unrealistic way to assess what both indigenous groups and EA practitioners agree truly matters most – total cumulative effects loading on the biophysical and human environments and the acceptability and manageability of these effects loads.4 To improve the ability of federal EA to assess what matters most, better systems need to be in place to determine that the right projects go to EA, to assess regional effects of multiple smaller projects, and establish cumulative effects assessment as a critical part of federal EA. 4.1 Determining Which Projects Go to EA The federal EA system’s current focus on arbitrary “Designated Physical Activities” thresholds (e.g., tonnes per year of material extracted in the federal Regulations Designating Physical Activities), without examination of a deeper context and the potential for environmental harm from a project or clearly related projects in combination, are both leading to fewer federal EAs being conducted than there should be, and underestimation of effects when they are. Such use of set and singular thresholds by definition invites production scale "gerrymandering" by proponents, where (for example) they will propose to mine and amount of material up to the threshold and not above. This arbitrary set of boundaries by definition doesn't take into account the context of either the See for example, Noble (2013, 2, all references in original), who states: “Individual actions or disturbances, regardless of their magnitude, can represent a high marginal environmental cost. Cumulative effects assessment must be approached from the perspective of the receiving environment – i.e., the affected environmental components(s). In other words, cumulative effects assessment is focused on the condition of environmental receptors and whether the total effects via all stressors in the project’s regional environment are acceptable, including the potential additional stress caused by the proposed project. This is the expected industry standard for cumulative effects assessment, as described in federal guidance (see Hegmann et al. 1999), and is a consistent message in the scientific literature (see Ross 1994; Baxter et al. 2001; Duinker and Greig 2006; Canter and Ross 2010).” Noble, B. 2013. Review of the Consideration of Potential Cumulative Effects on the Tsea Watershed. Report submitted to the Environmental Appeal Board for the Water Act Appeal – Environmental Appeal Board File 2012-WAT-013, July 18, 2013. 4
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vulnerability of the receiving environment, or any connections to a larger set of activities. This is a great example of the flaws of the current proponent-driven system. For projects that do not exceed the Regulations Designating Physical Activities thresholds, the CEA Agency does have the discretion to decide whether to send a project to EA. However, this is absolute and singular discretion; the Agency does not have to listen to feedback from the affected First Nations even if they desire the Project be sent to EA The lack of a Nation-to-Nation approach to determination of whether otherwise sub-threshold projects should go to EA is an ongoing concern. A combination of thresholds that are clearly connected to the physical harm likely to be caused by the changes contemplated, as well as the application of deeper, more nuanced factors, and a clear oversight power for a joint mechanism that has impacted indigenous groups involved, is critical to more meaningful project screening. Appendix 2 outlines a more nuanced set of criteria that should be considered when making decisions on which projects go to federal EA. FNFN proposed solutions to make sure the right projects go to federal EA include: 8. Federal government to revise the Regulations Designating Physical Activities in a consultative process with indigenous groups, within the next year, considering the need for additional criteria beyond physical project size (see Appendix 2); 9. The federal EA system develop regional screening boards, including First Nation members, in regions of intensive development, which consider whether any "sub-threshold" projects merit an environmental assessment based on a mixture of locational sensitivities, nature of Project, induced effects, ancillary facility requirements, vulnerability of the overall receiving environment, potential for impacts on Aboriginal and Treaty rights, and public concern. These Screening Boards will make recommendations on these files and provide reasons for decision to the federal Crown; and 10. The federal EA system to build in a dispute resolution mechanism for Screening Board decisions, and where the Crown seeks to deviate from a Screening Board recommendation, prior to decision the Crown would seek consensus with affected indigenous nations. 4.2 Avoiding Project Splitting and Expanding Consideration of Upstream Effects A key aspect of good environmental assessment is making sure that the entire project – all physical works and activities required for that project to occur - are
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included collectively in project planning and assessment. While this might seem like common sense, there is ample evidence that in many cases, “project splitting” occurs. Project splitting occurs whenever only one portion of a larger project is subject to EA. There are a variety of forms of project splitting, including for example where only certain elements of a project would be subjected to EA,5 or the lack of integration of all ancillary features of a project into an EA. In the case of pipelines, for example, there may be a large number of roads, laydown sites, camps, borrow sites, and other cleared areas required during construction. In many cases, the locations of these physical works and activities are not determined prior to the EA process, meaning that their potential effects are not characterized or put in locationspecific context during the assessment. Another example of project splitting is when multiple EA certificates and/or permits are requested for what is really one project and seeks to assess them independently from one another. Overall, project splitting must be avoided because assessing a series of smaller projects may:
Underestimate total project-specific effects on key valued components; Underestimate both project contribution to and, more importantly, total cumulative effects on key valued components; Lead to a much higher burden for First Nations having to assess these multiple “projects” instead of one integrated assessment.
Nonetheless, the federal systems currently allow for “project splitting”. The LNG sector is one of the more recent examples, with downstream liquefaction facilities assessed separately from midstream mainline pipelines, and with upstream facilities often not subject to any environmental assessment whatsoever. This has resulted in the separation of effects between the three main elements of the LNG production system. How can project splitting be avoided in the future? We can learn from other regulators how to define when a project has been improperly split. The Mackenzie Valley Review Board’s 2004 Environmental Impact Assessment Guidelines6 identified the following tests to determine whether or not a physical work or activity is an accessory development, and therefore should be included in the development [part of the project being assessed]. The first test is dependence: that is, if the principal development could not proceed without the undertaking of another physical activity, then that work or activity is considered part of the scoped development. The second test is linkage: if a decision to undertake the principal development makes the decision to undertake another physical work inevitable, then the See for example, MiningWatch v. Canada (Fisheries and Oceans), accessible at https://scccsc.lexum.com/scc-csc/scc-csc/en/item/7841/index.do 6 http://www.reviewboard.ca/upload/ref_library/1195078754_MVE%20EIA%20Guidelines.pdf, pg. 28. 5
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linked or interconnected physical work or activity will be considered part of the scoped development. The third test is proximity: if the same developer is undertaking two physical works or activities in the same area, then the two may be considered to form one development. To this list FNFN would add that common ownership/control/funding is a fourth major test. Where for example a company owns/controls the upstream source of gas supply, funds the building of the pipeline (directly or through guaranteed revenue streams to a pipeline service provider), and builds and owns the liquefaction facility – in other words where the chain of custody over the product being produce never fundamentally changes from one actor to another – these “discrete” projects should be treated as an integrated production system. When projects are found to be linked, there must be either:
A single EA for the entire joint project; or A much higher degree of consideration of the joint effects of all components of the Project in their discrete EAs than we currently see in the federal EA system.
If the latter option is chosen, upstream effects assessment must be exponentially expanded in federal EA. To date, the federal Crown, through Environment and Climate Change Canada, has committed to only one form of production system level cumulative effects assessment (i.e. from “ship to shale”). That is by assessing the GHG emissions implications of LNG facilities, including upstream (gas field), midstream (pipeline) and downstream (LNG facility) GHG emissions of an individual LNG production system. This is not nearly enough, but a step in the right direction and more than the Province of BC has committed to. Not included in this current equation is any discussion on the midstream and upstream implications for:
land and water use: clearing of trees; habitat and landscape fragmentation; impacts on wildlife and fish; and Treaty Rights infringements.
Limiting the focus to GHGs fundamentally underestimates total integrated “Project” effects, especially in the upstream (gas fields). Only by looking at the liquefaction facility, shipping effects, pipeline effects, ancillary facility development, and well development effects can the total effects of LNG on B.C. First Nations be properly assessed.
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This is particularly troubling because the bulk of the developments in the upstream, in particular, are subject to little if any assessment –gas wells, feeder pipelines and many facilities are "below threshold" and therefore do not lead to environmental assessments and are instead subject only to minimal regulatory review under the B.C. Oil and Gas Commission. Thus, the most land and water use intensive elements of the LNG production system are not subject to any form of comprehensive environmental assessment at all. FNFN proposed solutions re: avoidance of project splitting and consideration of upstream effects in federal EA include: 11. Federal legislation is required to reduce “project splitting”, by requiring the assessment of all physical works and activities required for a Project to proceed, including, as necessary, upstream and downstream, direct and ancillary required facilities, and inclusion of the four relationship tests described above; and 12. The federal government to expand the scope of its upstream assessments during EA beyond GHG emission. Equally important are the widely distributed and potentially significant impacts of upstream gas activities on wildlife, water, habitat and Aboriginal and Treaty rights effects. 4.3 Conducting Regional Studies Even with improvements in the “capture” of relatively smaller projects with relatively high impact potential into the federal EA system through a revamped and co-managed screening level of assessment, there will still be a critical need for federal Regional Studies, as already allowed at law under CEAA 2012 (Sections 73 and 74). 7 It is only through regional studies that we can start to seriously consider the implications of the hundreds of sub-threshold projects that are impacting our cultural landscape in the gas sector, but are not subject to any form of environmental assessment. This is leading to “death by 1000 cuts” in FNFN territory. FNFN proposed solutions re: federal Regional Studies include: 13. The federal government to actually exercise its capacity as per Section 74 of CEAA, 2012, to “conduct a study of the effects of existing or future physical activities” in a region, even if it is partially or wholly outside federal lands, as is the case in FNFN territory; and Sections 73 and 74 of CEAA, 2012 allow for more strategic forward looking "regional studies" both on and off federal lands, and such a strategic EA has been called for by FNFN and multiple First Nations for the LNG sector (in Fueling Change; see also http://northwestinstitute.ca/images/uploads/ELC-2013Aug1-Aglukkaq-Polak-Request.pdf). 7
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14. FNFN calls for such a regional study to be conducted by the federal Crown, in a tripartite relationship with affected First Nations and the Province, prior to the expansion of upstream demand and effects loading of a functioning LNG export sector. FNFN recommends a Section 74 Regional Study of likely future expansion of natural gas development in the Liard Basin as a pilot Regional Study. 4.3 Vastly Improving the Conduct of Cumulative Effects Assessment in Federal EA We note that many different groups have already highlighted to the Panel their concerns about cumulative effects assessment in federal EA. FNFN suggests it is a well-known fact that the conduct of cumulative effects assessment in Canadian EA (federal and otherwise) is fundamentally broken. Rather than reiterate this truism, we will focus our discussion points here on what we think are necessary improvements, notwithstanding FNFN’s position that cumulative effects assessment and management is something that needs to be accomplished far beyond the boundaries of Project-specific EA. Proposed solutions for effective cumulative effects assessment in EA include: 15. The federal EA system needs to be revised to adopt a focus on total cumulative effects loading in its decision-making. This requires: a. development of meaningful thresholds of acceptable change which cannot be exceeded (e.g., linear disturbance thresholds); b. more focus on examining change over time from pre-industrial conditions, not adoption of a current, or “damaged” baseline; and c. Serious consideration of the fundamental cumulative context question, in the pre-Project case, of whether there are preexisting significant adverse cumulative effects, and how they must be overcome before “piling on” new development. 16. The federal EA system should require the building of climate change and future landscape level development scenarios into CEA, in order to meaningfully consider “reasonably foreseeable future development”; 17. Build climate change scenarios and a range of future landscape level development scenarios8 into cumulative effects assessments. The latter is critical in a widely spread industry like upstream natural gas, where literally thousands of development activities across the landscape are required. Fort Nelson First Nation’s own Fueling Change study from 2014 is one of the only to look at the upstream implications of the LNG sector. A summary of the two-part study can be accessed at http://lands.fnnation.ca/sites/default/files/Firelight%20FNFN%20LNG%20Summary%20May%20 8%202014.pdf. 8
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5. Improved Assessment of Traditional Land Use (TLU) and Aboriginal and Treaty Rights In our experience, traditional land use (Current Use of Lands and Resources for Traditional Purposes – or CULRTP - in the current CEAA 2012 language) and Aboriginal and Treaty rights are not appropriately characterized or subject to adequate, rigorous assessment in federal EAs, and effects on rights are not even subject to proper significance assessment. As a result of this inadequate assessment, CULRTP and rights effects management schemes are not developed through Proponents commitments or federal conditions for approval. This leaves our rights and cultural and harvesting practices largely unprotected and exposed to ever more risk of degradation, to the point where in the near future our rights and cultural continuity may be at the same risk as caribou – of actual extirpation. This certainly is far beneath the honour of the Crown and the promises of Treaty. An example of the need to go “beyond the biophysical” and properly consider impacts on both Treaty rights and traditional use is in the way impacts related to caribou are assessed versus the question of caribou harvesting. Currently caribou harvesting, a traditional activity for our members, cannot be conducted, because boreal caribou are a federal Species at Risk. In federal EA, impacts on caribou are typically assessed against the federal Recovery Strategy requirement to have selfsustaining populations at the herd range. However, we know that even at a selfsustaining population level, boreal caribou would not be harvestable; they would still be at risk. Therefore, the assessment of impacts to rights in relation to caribou needs to have a higher standard/threshold – in this case tied to a defensible population number that would represent a harvestable surplus of animals to support the meaningful practice of our Treaty rights. At present, this is not the standard of assessment, meaning our harvesting rights are effectively ignored in relation to this species. FNFN proposed solutions for the effective Assessment of TLU and Aboriginal and Treaty rights in federal EA include: 18. The federal government to build greater requirements for assessment of CULRTP – and especially Aboriginal and Treaty rights – into federal legislation and process, with funding for indigenous groups to assess the vulnerability and resilience of both factors, and a Nation-to-Nation process for the effects assessment and significance estimation on these two assessment realms; and 19. The federal government to expand the scope of assessment for effects on Indigenous peoples’ well-being and way of life to include not only indirect effects caused by environmental changes (currently assessed under section 5(1)(c) of CEAA 2012), but also direct changes to the social, economic and cultural environment we live in, caused by effects
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such as but not limited to in-migration and changes in economic structure and access to social infrastructure.
6. Improved Post EA Compliance and Enforcement While a great deal of improvements need to occur in the conduct of EA’s themselves, we would also like to touch on is the “gray zone” of what happens after an EA is completed. Enforcement and compliance of EA conditions has received a failing grade in BC9 and FNFN would like to see the federal government take a leadership role in improving the actual implementation of monitoring, conditions and adaptive management, for projects that are allowed to proceed. For FNFN, involvement in Project monitoring and management is both a right and a responsibility. We are the longstanding stewards and guardians our cultural landscape and the withholding of this right over recent years by Crown actions has not eroded this fact. How can our stewardship be renewed and revitalized and better Post-EA compliance and enforcement occur? FNFN proposed solutions for improving post-EA compliance and enforcement include: 20. The federal government to invest in training up First Nations members in three areas: a. Major Project Coordinators b. Environmental assessment conduct c. Environmental monitoring, including compliance monitoring The federal government also needs to provide adequate funding to actually staff these positions in individual First Nations. In the end, as our own people become skilled in environmental assessment and engaged in environmental monitoring and management, there will be greater incorporation of traditional knowledge, better understanding and credibility of EA processes at the community level (our people trust our people!), and less reliance on costly external consultants in EA and post-EA environments. This mixture of sustainable jobs with transferable skills in non-destructive occupations, and upholding of stewardship responsibilities, will truly be a win-win situation for First Nations and the federal government.
See, for example, the Auditor General report of 2011: https://www.bcauditor.com/sites/default/files/publications/2011/report_4/report/OAGBCEnvironmental-Assessment-Office.pdf 9
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21. The federal government must build minimum indigenous monitoring, reporting, compliance and enforcement, and adaptive management requirements into law and practice. In other words, all Decision Statements and other regulatory instruments must include these conditions for all projects in indigenous territories. 22. The federal government needs to ensure (through legislation and policy) that indigenous guardian programs are required for all major projects for pre-, during and post –construction phases of projects, that they are staffed by trained environmental monitors, and that those monitors have the power to stop work and to initiate proceedings toward adaptive management where thresholds are breached. Currently, we have to fight just to get our people on the ground to be environmental monitors. This right and responsibility is treated as a negotiable item, which it is not. 23. Thresholds of acceptable change need to be built into conditions for approvals by the federal Ministers, based on solid and precautionary science. Things like maximum linear development thresholds need to become part of EA decision-making. This is especially important in relation to species at risk like caribou, where the lack of effort by the Province and its regulators (especially the Oil and Gas Commission) have left caribou in a state where for the foreseeable future, the Province admits that it cannot reach the habitat protection requirements set out by the federal government (Environment Canada) in its Federal Recovery Strategy. The Province’s primary solution? To adopt different, weaker metrics, so that the situation doesn’t look as dire and gas development can continue to occur. This is clearly beneath the honour of any level of the Crown. The federal government clearly has a leadership role in the setting of enforceable thresholds of acceptable change, in consultation with First Nations. 24. Federal conditions need to clearly state the triggers that would initiate an adaptive management response, build in monitoring and reporting requirements that will allow for timely and transparent flagging of these situations, and define the response requirements – what actually needs to happen when acceptable impact loads are exceeded. Federal conditions also need to clearly address the commonly used, but rarely enforced, concept of “adaptive management”. Currently, Proponents are largely left to self-regulate.
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25. There is a need to build a joint federal-First Nations Compliance and Enforcement Division into the federal post-environmental assessment process. Indigenous guardians, Major Projects Coordinators, and Lands Departments, may all have key roles to play in this system. Proponent-funded, First Nations member and federal responsible authority-staffed, and communityaccessible standing committees and monitoring and adaptive management teams need to be in place, ensuring that the environmental effects estimated for the Project are not being exceeded, and the commitments made by (and conditions required of) the Proponent are being complied with.
7. Other FNFN Recommendations to Improve the Federal EA Process Appendix 3 identifies a series of areas where new or updated federal guidance – developed through meaningful consultation with affected Indigenous peoples – is required to fuel this improved federal EA system. In addition, other issues and proposed solutions are included in the numbered items below. The federal government should, in revising its EA system: 26. Require wherever possible greater time depth in establishing environmental benchmarks, rather than the currently accepted present conditions, also called a “damaged baseline”; 27. Increase and make more concrete expectations for meaningful engagement of Proponents and the Crown with First Nations in the preApplication period of EA, when the EA is not “on the clock”; 28. Improve the information request and response process so that Proponents actually provide substantive responses to First Nations; 29. Require consistent inclusion of semi-tangible and intangible elements of First Nations culture, as well as traditional land and resource use, and Valued Components (VCs) in federal EA; 30. Provide greater guidance and require additional rigour in the conduct of assessments of effects of the Project on Aboriginal and Treaty rights, with a central role for the First Nations themselves; 31. Require disaggregation of socio-economic effects between Indigenous and non-Indigenous sub-populations, which face entirely different levels of risk and opportunity as a result of proposed Projects; and
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32. Remove the artificial current 365-day “federal clock”, and replace it with a co-managed process where decisions on timelines are based on the complexity of issues and the quality of inputs, where effectiveness is more important than expedience. For example, decisions on information adequacy and when to “stop the clock” should be made jointly between affected indigenous groups and the federal government.
8. Conclusions There is a Dene term for balance – eh’thee oh t’deh. We call for the federal government to work with us to seek this balance between non-renewable resource development and protection of our priority rights and the resources they rely upon by revamping federal environmental assessment legislation and practice in the ways we have described in our submission. In order to do this, the federal EA system needs to move to one of co-management between the federal government and indigenous groups in their respective territories. Only through joint assessment and decision-making, and subsequent joint enforcement of the conditions of projects that are allowed to proceed, with the transparency, accountability, and stewardship responsibilities required by indigenous groups be adhered to. Fort Nelson First Nation calls for the new federal government to live up to the spirit and intent of its promises to include traditional knowledge in decision-making, to consult with the intent of accommodating infringements of our Treaty rights of projects that do proceed, and to develop a Nation-to-Nation decision-making framework that does not “restore” our faith in environmental assessment, but in fact establishes it for the very first time.
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Appendix 1: FNFN Metrics to Assess Success of Improvements to the Federal EA System and Nation-to-Nation Relations in General The following metrics should be used to determine whether federal EA process improvements can be called successful:
EA co-management mechanisms are developed that confirm the priority of our Nation-to-Nation relationship to the federal Crown; Crown decision-making powers over land and resources are reconciled with Aboriginal Treaty Rights through joint, government-to-government decisionmaking; Effects on our Treaty rights, as we understand them, are assessed and avoided, minimized or meaningfully accommodated for, through federal EAs; The federal EA process allows us to live up to our inherent responsibility as stewards of the land, both in decision-making on land use and implementation of protective and rehabilitative measures; Balancing the best available western scientific and indigenous knowledge in decision-making; Clear evidence that proposed Projects that makes use of or otherwise impacts FNFN treaty rights and territorial lands and waters, will maximize benefits to FNFN members; Investment in upstream offsets, including habitat restoration, data collection, monitoring, and traditional economy support as accommodation measures; Effects assessment will focus on the cumulative landscape level. Natural gas impacts are deep and widespread, affecting land, water, wildlife and air. The only way to manage this is at a landscape level; Protection of wildlife and other biotic resources so that preferred species are available in adequate numbers for harvesting by our members, without fear of resource or population degradation; EA decisions will be made with consideration to a long-term planning horizon for resource development and economic diversification decisionmaking; in other words, avoidance of mortgaging the future for immediate benefits; Appropriate compensatory/accommodation measures for adverse biophysical impacts that allow for the land and waters to heal/restore at the regional level even during intensive resource development periods; Adoption in every case of adaptive management systems, tied to thresholds of acceptable change, so that unacceptable levels of adverse change will be counteracted; and Meaningful and life-of-Project involvement of FNFN in all facets of monitoring and management.
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Appendix 2: Potential Criteria and Considerations for Project Screening FNFN has been grappling for some time with the question of what size of a project should constitute a major project and therefore be subject to EA. We have long since realized that while physical project size is a critical, it is not the only piece of the puzzle; the federal EA system needs to realize this as well. The criteria listed below may assist in defining whether or not a project merits referral to a federal in different situations.
Physical extraction amount: This is the primary (often sole) measure used in current federal regulations10 Amount and implications of by-products and waste materials Power requirements and sources: High levels of localized emissions may also push a project up in effects loading, as might extensive clearing for transmission lines to the facility Capital cost: a useful proxy for project complexity Degree of areal disturbance (total hectarage of clearing and land usage): Must always include all areal disturbance causing factors, including main and ancillary features Degree of linear disturbance, as measured by: o Total km of disturbance; or km/km2 within a defined area o Number or density of water crossings o Total km of new cut in forested areas (non parallel with existing linear disturbance) o >Total km of new road Proximity to First Nation community, reserves or finalized or candidate protected areas Proximity to First Nation priority values/resources, for example: o Proximity to key watercourses o Proximity to gathering sites o Proximity to traplines, cabins, key harvesting locations o Areas of high archaeological potential or central to cultural landscape o Intensity of TLU activities in Project area Proximity to sensitive habitat or wildlife features Temporal scope of effects: How long will adverse effects last? The length of construction period and length of operations period are some proxies, but the critical question is whether effects will last more than one human generation Water withdrawal requirements Employment requirements and proportion likely to come in from outside
The federal Regulations Designating Physical Activities, SOR/2012-147, under the Canadian Environmental Assessment Act, 2012, (http://laws-lois.justice.gc.ca/eng/regulations/SOR-2012147/page-1.html). 10
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Existing Landscape Condition: i.e. the Cumulative effects context/degree of cumulative loss in the pre-project condition (the higher this is, the less resilient to further change the First Nation or resource is) Project complexity Project potential to induce further development or adverse change: “Can opener” style projects that have the potential to increase (induce) development pressures in their vicinity include mines, roads, gas pipelines Worst case scenario severity: Separate criteria to measure the effects of failure modes may include: temporal scope, area of land and waters affected, clean up costs, alienation potential, psycho-social effects Level of First Nations’ concern: This involves actively gauging community comfort levels with this type of Project Degree of likely alienation from land and water base: This measures how much area currently used or available for traditional use is likely to be alienated; can be measured during normal course of operations and in failure mode scenarios
The potential criteria identified above are examples only. FNFN does not presume to have all the answers for what constitutes appropriate thresholds or indicators for each of the criteria. What constitutes an extremely large pipeline, mine, or other industrial facility differs from place to place based on contextual factors such as those listed above. The key is that criteria and thresholds should be co-developed and collectively agreed to at the Nation-to-Nation level, and be relevant to the regional context in which they are to be applied. It is absolutely critical that not any single criterion be treated as an automatic threshold. In FNFN’s experience, this has led to selective project size alterations by proponents to keep projects from being subject to EA, most recently in relation to the proposed Komie North frac sands mine.
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Appendix 3: Recommended Improvements to Federal EA Guidance 33. A revamped federal EA process needs better guidance in the following areas, developed through Nation-to-Nation consultation:
Incorporation and respectful treatment of traditional knowledge (TK), including in effects assessment, threshold development, significance determinations, and design of monitoring and mitigation;
Requirements for Project-area specific traditional land use (TLU) information, currently treated as an optional element of federal environmental assessment, including controls over re-interpretation of TLU data outside its cultural context (the same is required for TK);
Cultural impact assessment, including better guidance on consideration of semi-tangible and intangible elements of indigenous cultures, including but not limited to language, knowledge transfer, connection to cultural landscape and other cultural continuity issues;
Rules for assessment of indigenous rights, including prohibitions on Proponents weighing in on the seriousness or significance of impacts on rights, but requiring adequate information for joint federal-indigenous assessment of those impacts;
Expectations for information on subsistence and mixed economies of indigenous peoples, project effects on same and on food security;
The need to disaggregate baseline conditions and effects between indigenous and non-indigenous sub-populations;
The need to consider CEAA, 2012 Section 5(1)(c) effects on a Nation-byNation basis;
Expectations for engagement of affected indigenous groups in the consideration of alternative means to undertake a Project, including development of criteria (beyond technical and economic feasibility) and engagement in multiple accounts evaluations of alternatives;
Federal expectations for early indigenous groups engagement, including federal responsible authority engagement requirements; and
The level of detail required in environmental impact statements for Environmental Management Plans. Currently, the level of detail is so inadequate as to make it impossible to assess the likely effectiveness of said plans. 21
