ABS and TK Governance Implications of Environmental Assessment Act Review

By Chidi Oguamanam, Andrea Lesperance, and Chris Koziol

In June 2016, the Government of Canada launched a comprehensive review of federal environmental and regulatory processes, including a review of federal environmental assessment processes under the Canadian Environmental Assessment Act, 2012. One stated reason for this review was that to better include the voices and perspectives of Canada’s Indigenous peoples as part of Canada’s broader effort at reconciliation.  The Principles of the Environmental and Regulatory Reviews are listed below, with our emphasis:

  1. Fair, predictable and transparent environmental assessment and regulatory processes that build on what works;
  2. Participation of Indigenous peoples in all phases that advances the Government’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples and reconciliation;
  3. Inclusive and meaningful public engagement;
  4. Timely, evidence-based decisions reflecting the best available science and Indigenous knowledge;
  5. One project – one assessment, with the scale of assessment aligned with the scale and potential impacts of the project.


Under the current federal environmental assessment legislation, responsible authorities “may take into account community knowledge and Aboriginal traditional knowledge” in conducting environmental assessments. This discretionary power is unsatisfying to Indigenous peoples who request that their full, prior and informed consent be obtained before a project where their lands or rights are engaged by a major resource project. In addition, the current federal guidance limits consideration of Aboriginal traditional knowledge to knowledge about changes to the environment due to the proposed project which would lead to environmental effects on Aboriginal peoples’ (a) health and socioeconomic conditions, (b) physical, archaeological, and cultural heritage, or (c) traditional land use.


It is promising that the Government understands and is attempting to correct the shortcomings in its current process. The meaningful consideration Aboriginal laws, customs, and perspectives in environmental assessments are a helpful step down the road of reconciliation. The federal government must, however, do so in a way that respects Indigenous peoples’ rights to maintain and develop their traditional knowledge. This means that the way traditional knowledge is used in these assessments must be sensitive to Aboriginal concerns that their TK could be misunderstood, mishandled, or appropriated – whether intentionally or not – by regulators and other stakeholders.


For an environmental review process to truly respect Indigenous peoples’ inherent rights (as articulated in UNDRIPs) and to promote reconciliation, that process must be governed by the principles outlined in the Convention on Biological Diversity and, more specifically, the Nagoya Protocol. These include:

  1. Proceeding only with the full, prior, and informed consent (PIC) of the Indigenous peoples on whose lands the resources are located, and/or whose traditional knowledge is required to access, understand, or exploit that resource;
  2. When consent has been obtained, the resources should only be accessed or used in accordance with mutually agreed terms (MAT) that clearly spell out the various proprietary interests of all project stakeholders – but Indigenous people in particular;
  3. Finally, any benefits that are produced by the approved project (defined broadly to include not just financial compensation but intellectual property rights, including patents, and other social benefits, including jobs, infrastructure investments, etc.) must be shared equitably and transparently between all stakeholders, with a particular emphasis on proper compensation for the Indigenous peoples on whose lands the resources are located, or whose knowledge is essential for accessing, understanding, or exploiting the resource (our emphasis).


Beyond these core principles, a renewed environmental assessment and regulatory process must emphasize and deliberately affirm Indigenous self-government by including Indigenous representatives at every stage and by taking their input, advice, and objections seriously at every stage. These recurring concerns include the issue of full, prior, and informed consent, the need to protect the confidentiality of TK, and the issue of funding supports to protect TK.


Full, Prior, and Informed Consent

Article 23 of the UNDRIP states:

  1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
  2. States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
  3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact [our emphasis].


While project proponents have been encouraged to obtain free, prior and informed consent before a project is approved, this has not been a legal requirement in the Canadian environmental assessment framework to date. According to the federal government’s recent discussion paper on proposed changes to the environmental assessment process, free, prior and informed consent will also not be required before a project can be approved under the new CEAA legislation. This omission is deeply problematic and undercuts the Government’s assertion that it is actively listening to Indigenous concerns regarding the proposed assessment framework. After all, if there had been a free, prior and informed consent requirement in place, Indigenous nations would not be forced to fight the government’s approval of the Trans Mountain Expansion (TMX) Project through 15 consolidated Judicial Reviews; a protracted, expensive, and adversarial process that undermines trust between all parties while directing resources away from other pressing community needs.


Confidentiality of TK

The 2015 Reference Guide for project proponents requires an evaluation of whether traditional knowledge used in the assessment can be protected, given the provisions of Canada’s Access to Information Act, and the corresponding privacy laws of other jurisdictions involved in the project. The 2017 Environmental and Regulatory Reviews: Discussion Paper noted that under new CEAA legislation, Indigenous Knowledge would be incorporated into the environmental assessment process and the government would “protect the confidentiality of Indigenous knowledge where appropriate (e.g. sacred site locations).”


We caution against the specific proposal that Indigenous knowledge be made “open, accessible and transparent.” We are also concerned about the Government’s consideration of “making use of a proposed integrated open science and data platform to inform environmental frameworks and regional assessments and to enable ongoing additions to the knowledge base.” This language is concerning because Indigenous traditional knowledge is often closely guarded; many Indigenous communities are highly distrustful of online databases, as their use requires the ‘translation’ of knowledge maintained via oral tradition into written knowledge that is then susceptible to misunderstanding, misuse, or outright theft. Indeed, our own consultation work has revealed the extent to which many Indigenous communities would resist the manipulation or use of their traditional knowledge in this way. As noted in Article 12 of the Nagoya Protocol, states must give careful consideration to Indigenous communities’ customary laws, protocols and procedures with respect to the management of any traditional knowledge associated with genetic resources. While Canada has yet to adopt the Nagoya Protocol, we encourage the Government to see this approach as a best practice for any resource located on Indigenous lands or accessed with their traditional knowledge, as it is informed by Indigenous sensitivities and consistent with the Government’s goal of reconciliation and a renewed, nation-to-nation relationship.


Funding for Development and Collection of TK

We also suggest that consideration should be given to how development and collection of Indigenous traditional knowledge will be funded. Under the principles of the Nagoya Protocol, Indigenous peoples must gain benefits from “providing” traditional knowledge. In this context, what are the benefits which will flow from sharing traditional knowledge as the Government considers the impact of a particular project? We suggest a framework be implemented to finance development of Indigenous traditional knowledge in a similar manner as that of the science currently incorporated into the environmental assessment process. We also support the suggestion that the Government of Canada increase flexibility to defer or harmonize its own assessment processes with those environmental assessments conducted by Indigenous levels of government.


A Final Note on Environmental Assessment Purposes and Priorities

Notwithstanding the specific concerns I have outlined here, a broader point about Canada’s environmental assessment regime needs to be made. The stated objectives of the new process include advancement of “reconciliation with Indigenous peoples, protection of the environment” and allowing “resources to get into the market. This language reflects Canada’s lengthy colonial history of subjugating Indigenous peoples, by leaving the distinct impression that Indigenous peoples are obstacles to “Western” constructs of progress, as defined by the industrialization and commercialization of natural resources. Merely affixing the word “reconciliation” does not change the fact that the overriding public policy objective is “getting resources to market,” a focus which sustains and perpetuates Canada’s historical pilfering of Indigenous resources, and the subsequent legitimization of this theft with the language of jobs, growth, and economic development ‘for all.’


If Canada truly wishes to advance its stated goal of reconciliation with Indigenous peoples – and rightly so – it should elevate Indigenous perspectives on environmental ethics and Indigenous ecological worldviews so that these inform assessments in the same way that Western, capitalist notions of development and growth do under the existing framework. To put it simply, reconciliation does not mean merely continuing as we have before, while encouraging greater “consultation” and “feedback.” It means fundamentally re-working our environmental assessment process to value, in a truly equitable way, the views, knowledge, and wisdom of the original stewards of this land.


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