Canadian Environmental Assessment Act Regulatory Review Magnetawan First Nation
Contents Contents .....................................................................................................................................i Introduction ................................................................................................................... 2
Key Issues for Magnetawan First Nation ...................................................................... 6
Summary ...................................................................................................................... 18 References ................................................................................................................... 18
Table of Contents | i
Introduction 1.1.
Context
The Canada Environmental Assessment review panel in-person consultation panel activities commenced on September 19, 2016 and as part of a larger review of Canada’s environmental regulatory regime. The Expert Panel on the Environmental Assessment Review is currently soliciting feedback on the following:
Restoring robust oversight and thorough environmental assessments of areas under federal jurisdiction Ensuring decisions are made in the public interests and are based upon facts and evidence Providing ways for Canadians to express their views and meaningfully participate in the Environmental Assessment process Methods for requiring projects to choose the best technology available with respect to reducing environmental impacts Ensuring environmental assessment legislation is amended to enhance the consultation, engagement, and participatory capacity of Indigenous peoples in reviewing and monitoring.
The Expert Panel will accept written submissions until December 23rd, 2016 and have been conducting panel sessions across Canada; Magnetawan First Nation presented at the panel session in Sudbury, Ontario that took place on November 4,2016. The Panel will then submit a report to Catherine McKenna, the Minister of Environment and Climate Change on March 31, 2017. Magnetawan First Nation is utilizing the opportunity provided to put forth perspectives regarding the Canadian Environmental Assessment Act 2012 and EA process overall and speaking to how processes can be more inclusive of First Nations voices. Unfortunately, this regulatory review process put in place to improve Canada’s environmental legislation has, to date, been mired in shortcomings that limit its potential to meaningfully engage Indigenous peoples, including Magnetawan First Nation (Magnetawan). The opportunity to engage in the Environmental Assessment Review process and provide perspectives from our community has included the same fundamental flaws that limit many other consultation processes in our experience- specifically the consultation that occurs is superficial because there is not enough time or support to allow Indigenous groups such as our community to effectively participate in the process. For example, Magnetawan First Nation received notification of participant funding on October 27, 2016 and our panel presentation was scheduled for November 4, 2016. This provided our community a little over 1 week to assemble and submit comments and a presentation from Magnetawan people, a task that is incredibly difficult to complete and do in a meaningful way. These
Magnetawan First Nation – Submission to the EA Review Panel | 2
timelines suggest to Magnetawan that the Federal Government is more interested in the appearance of consultation with First Nations than truly engaging in any meaningful dialogue.
1.2.
Background on Magnetawan First Nation
Magnetawan First Nation is located a small Anishnabek community located along highway 69 and the shores of Georgian Bay. We are signatories to the Robinson-Huron Treaty of 1850. Magnetawan people are governed by a constitution called Gichi-Naaknigewin which is regarded as supreme law by Magnetawan people and states: “We are the Magnetawan Atik Anishnaabe. We are the indigenous peoples of the Magnetawan River Watershed and surrounding area. We are descendants of the original peoples on this land and we identify our citizenship. We are not a creation of the Government of Canada or its Indian Act. We are a treaty nation with several treaties in a treaty relationship with the Crown. We have lived on and exercised jurisdiction within the Magnetawan River Watershed and surrounding area for thousands of years. We also have traditional territory including on Manitoulin Island and elsewhere on Georgian Bay. In the nineteenth century, our head Chief Councillor was known as Paimauquineshcum. Paimauquineshcum is a spirit name for one who flies throughout the territory as guardian of the people, lands and resources. Chief Paimauquineshcum was an important leader of the Reindeer or Caribou clan, and was influential throughout Anishinaabe territories on both sides of what is now the Canadian – US border. The Vidal-Anderson Report of 1849 identifies Magnetawan's territories extending from the southeast shore at the mouth of the French River down the coast of Georgian Bay to Head Island at the mouth of the Magnetawan River. The Report also identifies Magnetawan territories as extending three days’ travel, or about one hundred kilometres, back into the interior. Along with Head Island, Magnetawan occupied many other islands in northeastern Georgian Bay as fishing stations, and for berry picking and other purposes. The caribou clan was very widespread in the northeastern Lake Huron region, as well as among the Ojibway speakers who had moved into southern Ontario in the later seventeenth century.
Magnetawan First Nation – Submission to the EA Review Panel | 3
The name recorded in the historical record for clan contains the root word atik, or caribou in our language. Chief Paimauquineshcum was born about 1801 and lived well into his seventies. He signed not only the 1836 Bond-Head Treaty, but the Robinson-Huron Treaty of 1850 and the Manitoulin Island Treaty of 1862. In 1836, at the invitation of Lieutenant Governor of Upper Canada (Ontario), Sir Francis Bond Head, Chief Paimauquineshcum moved to Manitoulin Island for at least part of every year, along with most of his band members. Magnetawan GichiNaaknigewin Chief Paimauquineshcum signed the Robinson Huron Treaty in 1850 on behalf of the Magnetawan First Nation He Withheld lands on the Magnetawan River from the Treaty to be aboriginal title Lands, for his people for all time. Crown Surveyor Dennis surveyed Chief Paimauquineshcum’s Reserve (No 1 in the Robinson Huron Reserve List) on the Magnetawan River in late July of 1853 Chief pointed out part of the bay west of the mouth of the river he wanted included in the Reserve, because it covered “certain planting grounds formerly occupied”. Our oral traditions and history tell us of the time of the great flood, and that Ojibway lands were among the first lands to emerge after the waters receded. This of course, is consistent with the geological history of the area, as the Canadian Shield includes the highest elevations in the Province of Ontario. We are accordingly mentioned by name in the earliest records of the Europeans who first ventured into the vicinity of Lake Huron in the 1600`s. Magnetawan First Nation is the Indigenous nation that interacts with the Government of Canada through Canada’s Indian Act legislation and colonial policy structures. Ironically, this level of recognition by the Crown was actually subsequent to the creation of the Canadian state, even though we have been here since time immemorial. The Magnetawan First Nation is an Indigenous Nation in this territory and is currently comprised of the citizens who are Indians under the Indian Act of Canada. This Magnetawan Gichi-Naaknigewin includes the rights, responsibilities and freedoms of First Nation’s Citizens, its government and its governing institutions in relation to the jurisdictions set out in this Gichi-Naaknigewin as confirmed by the ratification by its Citizens. United Nations Declaration on Rights of Indigenous Peoples (UNDRIP) The Minister of Indigenous and Northern Affairs Canada, the Hon. Carolyn Bennett announced May 10, 2016 at the United Nations Headquarters in New York City, N.Y., that Canada has
Magnetawan First Nation – Submission to the EA Review Panel | 4
officially removed its objector status and now a full supporter of the United Nation's Declaration on Rights of Indigenous People, without qualification. The United Nation Declaration recognizes Indigenous People's basic human rights, as well as rights to self-determination, language, equality, land and helps to ensure our survival, dignity and well-being. The United Nations Declaration on the Rights of Indigenous Peoples, more importantly, affirms a right to Free, Prior and Informed Consent with regards to any development on our Magnetawan Gichi-Naaknigewin Treaty Lands, that will provide a new roadmap for interactions between nations and indigenous peoples. Declaration of the Anishinabek Nation, the Magnetawan First Nation supports and affirms the Declaration of the Anishinabek Nation. We are Indigenous Nations. We have always been Indigenous Nations. We have voluntarily entered into a relationship of friendship and protection with the Crown, which we have for two centuries referred to as the Covenant Chain. In placing ourselves under the Crown’s protection, we gave up none of our internal sovereignty. We have never concluded any Treaty with the Dominion of Canada, nor have we ever expressly agreed to accept the Dominion of Canada in place of Great Britain as the party responsible under the British obligation to protect us. We retain the right to choose our own forms of Government. We retain the right to determine who our citizens are. We retain the right to control our lands, water and resources. We retain our rights to those lands which we have not surrendered. We retain the use of our languages and to practice our religions and to maintain and defend all aspects of our culture. We retain those rights which we have in Treaties with other Nations, until such time as those Treaties are ended. We retain the right to choose our own future, as peoples. The only process known to international law whereby an independent people may yield their sovereignty is either by defeat in war or by voluntary abandonment of it formally evidenced. Our Nations have never yielded our sovereignty by any formal abandonment of it. We have never been conquered in war by any power on earth of which there is a record or tradition.” (Magnetawan First Nation, 2016).
Magnetawan First Nation – Submission to the EA Review Panel | 5
In addition to the Gichi-Naaknigewin on June 21, 2015 Magnetawan First Nation voters cast ballots to ratify our Land Code, becoming the 56th First Nation in Canada and the 11th First Nation in Ontario to ratify the Framework Agreement on First Nation Land Management and as a result, Magnetawan will implement land governance, assume jurisdiction over our reserve lands and resources, and opt out of 34 land-related sections of the Indian Act (Magnetawan First Nation, 2015). The First Nations Land Management Act was the first real recognition that First Nations have an inherent right to govern their own reserve lands and resources. This First Nation-conceived Framework Agreement with Canada has expanded from the original 14 First Nation signatories in 1996, to 118 First Nations signatories in 2015 (Magnetawan First Nation, 2015). Members of our community continue to practice traditional land-use and traditional livelihoods in our territory- hunting, fishing, trapping, and gathering. The viability of land and aquatic ecosystems in our traditional territory and Treaty area is critical both to the health and well-being of our community members, but also to our traditional knowledge and our culture. Conservation was a way of live for our people, preserving and protecting the environment to ensure the survival of future generations. We continue to take our stewardship responsibilities over our traditional territory and Treaty lands seriously. We participate in forums at all levels of First Nations governance in our region to discuss and seek to influence environmental management and use of these lands in areas such as forestry, wildlife management, Species-at-Risk conservation and others. We regularly engage with proponents and Crown regulators in seeking to ensure the health of our watershed because our community is at the very downstream end and rely on the watershed for clean drinking water. We have participated actively in provincial and federal environmental assessments such as for the Highway 69 Four-Laning project. We are also in the process, under the provisions of the First Nations Land Management Act, in developing our own environmental laws and environmental assessment regime for our reserve lands. We take these stewardship responsibilities for the health of our lands very seriously, and expect the Crown to do the same.
Key Issues for Magnetawan First Nation The following are the key issues of importance for Magnetawan First Nation as they relate to the Canadian Environmental Assessment Act (2012), associated regulations, and the federal environmental assessment process more broadly
2.1
The Role and Jurisdiction of First Nations
Currently the Act does not provide or prescribe the basis for a collaborative approach to EA involvement by Indigenous peoples or for acknowledging a nation-to-nation relationship in areas where land claims
Magnetawan First Nation – Submission to the EA Review Panel | 6
remain unsettled. The Government of Canada should establish the framework for such collaboration in a new Environmental Assessment Act. Such collaboration should include membership on EA review panels and government review teams for those communities potentially affected by a designated project, and participation in writing key EA documents including the EIS guidelines and final government EA report to inform government decisionmakers. The Act should also include the basis and provisions for an Indigenous agency or body outside of those identified in the current definition of “jurisdiction” under section 2(e) and (f) to be recognized as having the authority to conduct an EA by substitution if it meets the requirements of equivalency as specified in section 37 of the Act. In addition, the 2014 Fall Report of the Commissioner of the Environment and Sustainable Development (Office of the Auditor General, 2014) found that the Canadian Environmental Assessment Agency’s use of memoranda of understanding as a framework for federal substitution. The federal government should use memoranda of understanding as a tool for enabling substitution with Indigenous communities. Indigenous communities should be properly resourced to participate in discussing and negotiating such memoranda of understanding. The Minister of the Environment may refer an environmental assessment to a review panel if the Minister believes it is in the public interest to do so. A review panel is a group of independent experts appointed by the Minister of the Environment to conduct an environmental assessment. When a proposed project requires an environmental assessment by both the federal government and a province or another jurisdiction, a “joint review panel” can be established to avoid duplication. A “joint review panel” agreement can be negotiated between the federal government and other jurisdictions, and this provision should include Indigenous communities with jurisdictional rights and interests. Such agreements should include provisions for Indigenous communities to appoint joint panel members. In reference to s.2(1)- definition of “jurisdiction”; s.22(b); s.32(2); s.37; s.42(1) in the Act, currently, CEAA 2012 does not provide for situations where a First Nations community in an operational community under the First Nations Land Management Act adopts their own EA regime as per the provisions of that Act. In such cases, the community should be able to apply their EA law as a substitute for CEAA 2012, but it is not clear in these cases if the community would be recognized as a jurisdiction as defined in section 2 of the Act. This should be clarified, either in specific written guidance or in amendments to the Act. Currently, the federal Crown does not actively and meaningfully consult affected Indigenous communities at all applicable stages of the EA process. The federal Crown must ensure that a meaningful consultation process is offered at all of the following stages of the process, and ensure that results of such consultation are incorporated meaningfully into the EA process:
Magnetawan First Nation – Submission to the EA Review Panel | 7
1. 2. 3. 4. 5. 6. 7.
Determination of whether an EA is required, and what type (screening) Draft and final EIS guidelines (scoping) Assessment of alternative means (alternatives evaluation) Draft and final EIS Sufficiency and completeness determinations (review panels and NEB/CNSC processes) Draft and final Crown EA report Prior to final decision by the Minister or GIC, including any determination of whether a project is in the public interest despite significant residual effects.
2.2
Consideration of Indigenous Traditional Knowledge in EAs
Currently, the Act does not adequately consider Indigenous knowledge in determining the need for the use of the precautionary principle. The Canadian Environmental Assessment Agency Guide on Biodiversity and Environmental Assessment states “Where an activity raises threats or harm to the environment or human health, precautionary measures should be taken even if certain cause and effect relationships are not established scientifically.” Indigenous knowledge must be considered in determining if an activity raises threats or harm to the environmental or human health. Where Traditional/Indigenous knowledge identifies a potential effect not established scientifically the precautional principle should be applied. In addition, with respect to traditional lands and resource use CEAA 2012 prescribes that an EA must take into account effects of changes to the environment caused by a project on the current use of lands and resources for traditional purposes by Indigenous peoples (section 5 (1)(c)(iii)). The application of this area of effects assessment has in our experience been shallowly, inconsistently and inadequately applied. Proponents and the Crown often discount impacts to traditional use of species that are not rare and endangered by assuming or implying that indigenous people can and should simply go elsewhere to harvest such species. In particular, the Government of Canada must make the following changes to address these shortcomings: 1) The integrated importance of land-use, specific geographies, access to those geographies, traditional knowledge, and the resources being used within those geographies need to be considered together when making recommendations in EIS guidelines for baseline studies and in assessing effects on traditional use. In our experience, the following are all important in this respect: a. The abundance and quality of the land/resource being used b. Ease of access to and/or transport of the land/resource to be harvested or used c. Tenure over (in a traditional or contemporary sense) the specific geographic area for land or resource use.
Magnetawan First Nation – Submission to the EA Review Panel | 8
d. Proximity to a "home base" or central location for harvesting efforts- be that a house, seasonal cabin, camp site, etc. e. Traditional knowledge of the area and ecology where the land/resource is being used. 2) Effects to traditional use need to be assessed and reported on an individual community basis in EAs, and not on an aggregated basis. While there may be common elements to the activities, resources, and locations where individual Aboriginal communities use lands and resources for traditional purposes, each community may be differentially and specifically impacted relative to the location of a proposed project. Individual communities may also have different preferences for mitigation approaches. 3) Specific study area boundaries for assessing traditional use must be set based on sensitive receptors to project effects identified in traditional use baseline studies, and/or a composite of the study areas for aquatic/fish and fish habitat and terrestrial ecology/wildlife value components of the EA. A combination of both is most preferred. 4) It is critical that Indigenous communities including Magnetawan First Nation be able to provide informed consent for the collection, analysis, and incorporation of traditional use information into the EA process. Ideally, the community has complete control over the collection of baseline information on traditional use, and is empowered to provide and have accepted by the proponent and the Agency, specific guidance for its use in the EA process. 5) Pathways to secondary effects on Indigenous peoples’ socioeconomic conditions and health as a result of effects on traditional uses need to be included in the scope of factors prescribed in EIS guidelines, and in evaluating the significance of residual effects related to such changes. Such secondary effects may result from changes in diet, changes in income, increased cost of living, loss of culturally important traditional knowledge, changes to community social fabric associated with sharing the proceeds of traditional use amongst community members, etc. 6) The emphasis on current use of lands and resources for traditional purposes by Indigenous peoples is wrong. Indigenous communities typically look forward seven-generations and have plans, desires and perspectives on their use of lands and resources beyond current uses. By assessing project impacts only on current use of lands and resources, Indigenous peoples are denied the opportunity provided to other jurisdictions (e.g. municipalities) that can seek to determine impacts on future uses of lands and resources. Furthermore, the term “traditional purposes” implies an archaic view of Indigenous peoples as hunters and trappers, and not as modern peoples who see a wide variety of lands and resource uses as appropriate to their Indigenous ways of life. Going forward, legislation must be adapted to include current AND future use of lands and resources by Indigenous peoples,
Magnetawan First Nation – Submission to the EA Review Panel | 9
and not be encumbered by external definitions of what appropriate uses, traditional or otherwise, might be. For any project within or near the Magnetawan traditional territory, Magnetawan traditional knowledge must be included in determining if an environmental effect will occur. The Act should also consider “with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment” that affects indigenous rights, interests, or way of life. The description of and results of any early engagement and information-sharing undertaken with aboriginal peoples should include a description of how aboriginal traditional knowledge was solicited, considered and included prior to submitting the project description. A description should be included that acknowledges worldviews that arose during early engagement process and how the indigenous worldview was or will be incorporated into project or EA process design. In addition, the consideration of Aboriginal traditional knowledge (ATK) in environmental assessments should not be discretionary. Proponents should be required to take Aboriginal traditional knowledge into account and to describe how this knowledge has been considered and incorporated into each section of the EA. The consideration of aboriginal traditional knowledge cannot simply be a paper exercise and must include sincere efforts to understand Magnetawan’s worldview, perspectives and existing and potential rights related to the proposed development. Specifically, meaningful and sincere efforts must be made to facilitate dialogue and solicit ATK sharing between Magnetawan First Nation and the proponent in the determination of environmental effects, and any ATK provided by the community throughout the course of such dialogue must be considered and integrated into the following aspects of an EA: 1) Effects assessments, including but not limited to potential effects of the environment on the project, effects of accidents and malfunctions, and cumulative effects. 2) Criteria for the determination of significance of adverse and residual adverse effects 3) Mitigation measures 4) Follow-up programs.
2.3
Socioeconomics and Sustainability Assessment
With regards to the integration of socioeconomics and sustainability assessment in federal environmental assessments there is major room for improvements in better assessing these outcomes within the EA process. To start, federal environmental assessment legislation should include an approach to assessing the sustainability of proposed projects. Indigenous Peoples, including Magnetawan citizens require an understanding of the net contribution of a project to environmental, social and economic wellbeing of their territories and their regions. Such an approach should include
Magnetawan First Nation – Submission to the EA Review Panel | 10
methods to assess the net contribution of a project to Indigenous livelihoods and community/regional wellbeing. Sustainability assessment should include a strong focus on ways to improve the positive elements of a project, such as improvements to local and regional energy services and costs, improvements to local and regional water and wastewater infrastructure and water quality, improvements to local and regional health and education services and access, improvements to local and regional environmental monitoring and management services and governance, and improvements to area transportation systems and networks valued by Indigenous communities. Legislating sustainability assessment will require additional consultation with Indigenous communities and groups, with reasonable participant funding for interested Indigenous participants. Consultation should include methods to assess the net contribution of a project to Indigenous livelihoods and community/regional wellbeing, including contributions to infrastructure and services valued by Indigenous communities. Magnetawan First Nation has inequitably borne the negative effects of resource sector and public infrastructure development for too long with few or no benefits. We understand that in rare cases (Voisey’s Bay Nickel Mine, White’s Point Quarry and Marine Terminal, Kemess North Copper-Gold Mine), the Agency has applied a Contribution to Sustainability test to the determination of whether a project is in the public interest. The Government of Canada must ensure that this test is applied to and be integral to all federal EA processes and decisions within our territory, and that it specifically consider the socioeconomic benefits and costs of the project for Indigenous communities using the “seven generations” concept of intergenerational responsibility. The Government of Canada must ensure that that proponents be required to demonstrate such a contribution to sustainability by laying out its requirements in EIS guidelines, with sustainability factors used to: 1) Describe the purpose of the project 2) Describe and assess alternative means, including those that may offer infrastructure, water quality and energy opportunities in local and regional contexts, 3) Assess the significance of socioeconomic effects and Indigenous livelihood effects of the project on our community, and Ensure appropriate follow-up to confirm that the project did contribute to our community sustainability. The legislative framework for assessing sustainability should be derived from a general “sustainability lens”, inclusive of Indigenous perspectives and a seven-generation approach, and applied to all federal legislation, policies and programs, as well as to environmental assessments. Such a general “sustainability lens” would be legislated, and aligned with the Auditor-General Act and the Federal
Magnetawan First Nation – Submission to the EA Review Panel | 11
Sustainable Development Act. Developing a general “sustainability lens” in conjunction with Indigenous peoples will assist the federal government in fulfilling its mandates for reconciliation. The federal government has used two basic approaches to trigger the application of environmental assessment legislation to a project: 1) Where a project requires a federal decision, or is receiving federal funding, subject to specific exclusions, it requires an environmental assessment (CEAA) 2) Where a project falls within a list stipulated by regulation it requires an environmental assessment (CEAA 2012) Notable examples of types of projects that are not mentioned as requiring an assessment in the current Act include new roads in National Parks, aquaculture facilities, oil or gas fracking, heavy oil and oil sands processing facilities, and different types of electricity-generating facilities. Given the importance of the duty to consult and accommodate regarding Crown decisions, the approach used under the previous (1992) version of the Act is most appropriate for Indigenous communities. As such, federal environmental assessments would be triggered when: a project requires a Crown regulatory decision (including authorizations, permits or licences); a project is funded by a Crown agency of Crown corporation; a project is to be sited in any federally protected area, any area where there are Crown-Indigenous land use agreements or joint management agreements, or internationally recognized areas of natural significance; or a major project is of significant national AND Indigenous interest identified by regulation or a Ministerial order. In all cases projects that enter consideration for triggering an environmental assessment will include Crown consultation with potentially impacted Indigenous communities and groups. Potentially impacted Indigenous communities and groups will also have a clear mechanism for petitioning the Minister to consider a project as a trigger for an environmental assessment, with appropriate consultation prior to any Crown decision to trigger or not trigger an environmental assessment for such a project. However, there are other approaches that could be used in conjunction with 1) above: a) Strategic environmental assessment of federal programs (e.g. infrastructure) that will create impacts on the environment and on lands and resources used by Indigenous peoples. Once complete, smaller projects funded under such a program might not require much, if any, additional impact assessment if participating Indigenous communities agree to an initial agreement on a strategic environmental assessment approach. b) Sustainability assessments of proposed federal policies, legislation, programs or plans requiring a Cabinet or ministerial decision where those Crown decisions will create impacts on the environment and on lands and resources used by Indigenous peoples. c) Projects that require the disposition of federal lands or that are carried out via collaboration or joint management agreements with Indigenous communities could be subject to specific
Magnetawan First Nation – Submission to the EA Review Panel | 12
sustainability assessments developed between cooperating Indigenous parties and federal agencies. There is no process within the Act to consider the potential socio-economic adverse effects on indigenous peoples that are not necessarily tied to the land but interact with the proposed development’s human resources, employment and wage investments in a region. It is recommended that there be a requirement to meaningfully consider the potential socio-economic benefits or positive effects in a systematic way so that
The project’s risks and benefits can be weighed within the EA process itself and First Nations leadership and communities may also have a way to carefully assess the risks in relation to the opportunities;
Related to this issue is a need for regulatory required socio-economic management, monitoring and/or enhancement measures to address socio-economic effects so that positive and negative effects may be monitored over the construction, operations and closure and decommissioning of the project. The Agency currently does not have expertise on the panel for the regulatory review of the Act to reflect the complex social and economic aspects that inter-connect with natural resource development. Appropriate expert, governmental and independent representation is needed to meaningfully assess the social and economic adverse and negative effects of a proposed project. This includes representation from the Centre for Aboriginal Health Research; Employment and Social Development Canada; Council on Corporate Aboriginal Relations; Indigenous and Northern Affairs; and most importantly, regional Indigenous organizations with an in-depth understanding of the socio-cultural and socio-economic context of the communities that may be potentially affected by the proposed development. The current EA process creates barriers to a holistic understanding of effect implications due to a silo approach to assessing effects. Socio-economics are typically limited to labour, employment and housing; Indigenous knowledge and land use information is typically put in an Appendix section. No explicit linkages nor analysis is done to accurately reflect the implications to socio-economic and community wellbeing. An integrated approach to presenting information is therefore required, such is the expectation and practice in other regulatory contexts and development contexts (e.g. Nunavut Impact Review Board; Mackenzie Valley Environmental Impact Review Board; use of the Equator Principles in internationally financed projects; the Sustainable Livelihoods Framework, or the Millennium ecosystem assessment) which could also fully describe the link to community wellbeing and sustainability.
Magnetawan First Nation – Submission to the EA Review Panel | 13
2.4
Wildlife
Under the current CEAA (2012), there are significant limitations to the protections afforded to species at risk (SAR) and species that are culturally important to Indigenous communities, including Magnetawan First Nation. Where SAR are concerned, only aquatic species are considered “components of the environment” under Section 5(1)(a) of the current CEAA (2012), whereas non-aquatic species are not. This means that the Act does not explicitly require consideration and assessment of the effects of a proposed project on SAR beyond those classified as aquatic. Although the Species at Risk Act (SARA) does stipulate that potential effects of projects on species at risk and their habitat need to be assessed in environmental assessments it is not explicit in the current CEAA (2012). Additionally, it is limiting to rely on this connection to the provisions outlined in SARA because it only grants automatic protection to migratory birds, aquatic species, and species on federal lands. For example, in conjunction with Species at Risk biologists, representatives from Magnetawan First Nation have been involved in conservation efforts surrounding three SAR in their region, the Massasauga rattlesnake, the Blanding’s turtle and the snapping turtle. If a potential project was going to have potentially adverse effects on the latter two SAR which are aquatic species, this would trigger an environmental assessment, however, this would not apply to the Massasauga rattlesnake (which is also a culturally important species). This has the potential to threaten critical habitat for the Eastern Georgian Bay Population of Massasauga and undermine existing conservation efforts conducted by Magnetawan First Nation community members that represent important employment and land use enjoyment opportunities. The protection of species at risk is not adequately addressed in CEAA 2012 and culturally significant species are disregarded altogether. Subsequently, if a culturally significant species has the potential to be adversely impacted by a proposed project, but it is not a federally listed species at risk, it will not warrant an assessment. In a 2012 Traditional Land Use study conducted in Magnetawan First Nation, nearly all participants indicated that they have successfully hunted during their lifetimes, with moose, white-tailed deer, and ruffed grouse identified as the most important species. None of these species are federally listed species at risk, and would subsequently not trigger an environmental assessment if they were to potentially be adversely affected by a proposed project. Since Magnetawan First Nation relies on hunting these species, this represents a significant oversight of the importance of traditional food sources, land-use practices, and connection to the land. CEAA 2012 also limits the ability to properly account for adverse effects on species with large home ranges, like moose and white-tailed deer. These species may move to other habitats or expand their
Magnetawan First Nation – Submission to the EA Review Panel | 14
ranges to cope with the effects of a project and this may cause them serious problems (i.e. energy loss leading to increased risk of predation). Project-specific assessments do not necessarily account for these impacts. Additionally, cumulative effects thresholds that do exist as part of the EA process do not necessarily address effects on wildlife with large home ranges either, because specific objective cumulative effects thresholds do not exist for many species. In their stead, decisions about the significance of effects are often based on how the project’s potential effects compare to total cumulative effects. This is determined subjectively, making it possible to conclude that project effects are not considerable, without knowing whether a threshold has already been reached. These limitations of CEAA (2012) would further disregard potentially adverse effects of a proposed project on species that are of high cultural importance to Magnetawan First Nation. Considering these shortcomings, the Government of Canada must implement the following changes to the Act: 1) All federally and provincially listed species at risk should be listed as “components of the environment” in the Act. Proposed projects with potential effects on any of these federally or provincially listed species at risk should trigger an environmental assessment. 2) Any culturally significant species, as identified by Indigenous communities during the collection of Aboriginal Traditional Knowledge (ATK) should be listed as “components of the environment” in the Act. Proposed projects with potential effects on any of these culturally significant species should trigger an environmental assessment. 3) Regional environmental assessments, not just project-specific assessments, should be required in cases where there are species at risk and/or culturally significant species that have large home ranges and may be impacted by the proposed project. In these cases, potential impacts of the proposed project must be considered in conjunction with other projects, effects, and stressors throughout the species whole home range, not just within the project development area. 4) In situations where an assessment is needed for a proposed project that may impact species at risk or culturally significant species, it should be a legal requirement that scientists establish cumulative effects thresholds for that specific species at risk or culturally significant species. Projects occurring within the home range of a species at risk or culturally significant species that are migratory birds or that have large home ranges must be assess per these thresholds.
2.5
Fisheries
Under CEAA (2012), the regulations of fisheries require revisions to better address the needs and traditional uses of fish and their habitats by Magnetawan First Nation. Issues and recommendations from Magnetawan First Nation are provided as follows.
Magnetawan First Nation – Submission to the EA Review Panel | 15
While CEAA (2012) does require that proposed projects must consider any effects related to Indigenous People’s “current use of lands and resources for traditional purposes” (i.e. fishing), there is no explicit guidance for how this will be determined. It is becoming commonplace to conduct Aboriginal Traditional Knowledge (ATK) studies (widely considered a “best practice”) as part of the federal environmental assessment process, but this is not mandatory. Subsequently, a variety of methods may be used which do not necessarily incorporate genuine consultation and/or community-driven research into decisionmaking processes. Ultimately, this can lead to setbacks in avoiding, mitigating, monitoring, and compensating Indigenous Peoples for project effects. Magnetawan First Nation has previously participated in a Traditional Land Use study to incorporate Traditional Knowledge into environmental planning for the Ministry of Transportation (MTO) Ontario highway 69 widening project. This study provided important insights regarding community fishing practices, such as the longstanding significance of spearfishing pickerel/walleye as a community gathering ritual. The connection between fish harvesting and cultural heritage may not have been highlighted without this community-driven study, and thus may not have been considered during the planning process for this development. Currently CEAA (2012) defines fish and fish habitat as “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas on which fish depend directly or indirectly to carry out their life processes”, as outlined in Section 2(1) of the Fisheries Act. This means that areas that may provide benefits for fish (e.g. wetlands, riparian zones) are not considered when accounting for the environmental effects of a project or activity. Members of Magnetawan First Nation fish for largemouth bass, smallmouth bass, pickerel/walleye, and northern pike mainly along the Magnetawan River between Byng Inlet and Miner’s Lake. While these species do not depend directly or indirectly upon the riparian zone of this river, it can benefit them by trapping sediment and pollutant runoff from developments and/or providing nutrients from overhanging vegetation. Failing to consider beneficial habitat like the riparian zone of the Magnetawan River may end up negatively affecting these species that Magnetawan First Nation relies upon as a traditional food source and site of cultural recreation. Considering these shortcomings, the Government of Canada must implement the following changes to the Act: 1) To improve consideration of effects on Aboriginal peoples’ land and resource use, the CEAA should include mandatory requirements for meaningful incorporation of Aboriginal Traditional Knowledge (ATK)
Magnetawan First Nation – Submission to the EA Review Panel | 16
2) A more useful definition of fish habitat would include protection for the ecosystems and habitats that provide important services for supporting fish habitat. This would allow for consideration of habitats such as riparian zones.
2.6
Human Health
Under CEAA (2012), there are a variety of regulatory steps that do not account for human health risks specific to Indigenous communities due to a strong reliance on the environment for food, recreation and cultural practices. Specifically, these steps include the collection of baseline data, consideration of cumulative effects, and site-specific assessments. First, the measurement of human health risks in baseline and future scenarios is directly related to the quality and relevance of baseline data. Subsequently, it is important to collect representative data to effectively assess human health risks. It is not currently stipulated that baseline data should be gathered in conjunction with Aboriginal communities, despite the fact that they rely heavily on the environment for their food, recreation, and cultural practice. In addition to this, there is not enough emphasis on the importance of collecting samples of wildfoods and medicinal plant (in addition to typically employed predictive modeling techniques) in the assessment of potential human health risks. This leads to increased uncertainty around the calculation of predicted risks to human health. Second, human health risk assessments do not clearly require inclusion of the impact of potential cumulative effects on human health, in addition to project-specific effects. Because of this, it is often concluded that no significant adverse effects to human health are due to the phases of the project, specifically (construction, operation, decommissioning). This is often misleading and can leave nearby residents with an incomplete understanding of potential risks to their health related to the proposed project. In a 2012 Traditional Land Use study conducted with Magnetawan First Nation, many research participants reported gathering plants for food and ceremonial purposes. A smaller proportion reported gathering plants for medicinal purposes, as well. Fruits and grains such as blueberry, cranberry, wild rice and other berries were cited as highly important food sources. Since these foods aren’t explicitly required to be part of baseline data or as the result of cumulative effects in human health risk assessments under the current CEAA (2012) Magnetawan First Nation’s consumption of these culturally important foods is vulnerable under the current CEAA (2012). Considering these shortcomings, the Government of Canada must implement the following changes to the Act:
Magnetawan First Nation – Submission to the EA Review Panel | 17
1) The Act should stipulate that the collection of baseline data used to assess human health risks must be completed in collaboration with Indigenous communities so it reflects their circumstances. 2) The Act should include clear direction to use data from collected wildfoods and medicinal plant samples, rather than predictive modeling alone, to assess potential risks to human health 3) The Act should explicitly require the analysis, description, and communication of the cumulative effects of a proposed project that may pose a risk to human health, in addition to the projectspecific risks to human health.
Summary The issues and recommendations articulated in this submission should be thoughtfully considered by the Environmental Assessment Review Panel to ensure the perspectives of Magnetawan First Nation are adequately accounted for in this review process. It is crucial that Indigenous perspectives be thoughtfully considered and integrated into this process if the Government of Canada intends to fulfil on its commitment to collaboration and reconciliation with Indigenous Peoples of Canada both in regards to environmental regulatory processes as well as reconciliation more broadly speaking.
References Fontaine, P., Phare, M.A., Miltenberger, M. (2015). Collaborative Consent: A Nation-to-Nation Path to Partnership with Indigenous Governments. Ishkonigan Inc., The Phare Law Corporation, & North Raven. Retrieved from: http://aptn.ca/news/wp-content/uploads/sites/4/2016/05/Collaborative-ConsentNation-to-Nation-Path-to-Partnership-with-Indig-Govts-Ishkonigan-et-al-Dec-20-15.pdf Gibson, R. (2013). Preparing a sustainability-based argument for environmental assessment proceedings in Canada. School of Environment, Resources, and Sustainability, University of Waterloo. Retrieved from: https://uwaterloo.ca/sustainability-assessment-project/sites/ca.sustainability-assessmentproject/files/uploads/files/Preparing%20sust-based%20EA%20subs.pdf Kirchhoff, D., Gardner, H.L., Tsuji, L.J.S. (2013). The Canadian Environmental Assessment Act, 2012 and Associated Policy: Implications for Aboriginal Peoples. The International Indigenous Policy Journal. Retrieved from: https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1139&context=iipj Magnetawan First Nation. (2015). Through a Historical Vote, Magnetawan First Nation approves its Land Code, Community to Govern Reserve Lands and Resources. Retrieved from: http://www.magnetawanfirstnation.com/index.php?option=com_content&view=category&layout=blog &id=23&Itemid=43
Magnetawan First Nation – Submission to the EA Review Panel | 18
Magnetawan First Nation. (2016). Magnetawan Gichi-Naaknigewin. Retrieved from: http://www.magnetawanfirstnation.com/Final_Draft_September_1_2016.pdf Office of the Auditor General of Canada. (2014). Fall Report of the Commissioner of the Environment and Sustainable Development: Chapter 4 – Implementation of the Canadian Environmental Assessment Act, 2012. (2014) Retrieved from: http://www.oagbvg.gc.ca/internet/English/parl_cesd_201410_04_e_39851.html United Nations General Assembly (2008). United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
Magnetawan First Nation – Submission to the EA Review Panel | 19
