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Bulletin

Bill C-68 and Bill C-69 Propose Bigger Role for Indigenous Groups in Environmental Review

Fasken
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Indigenous Law Bulletin

On February 6 and February 8, 2018, the Government of Canada introduced Bill C-68 and Bill C-69, which propose sweeping changes to Canada’s environmental legislation, as described in our first bulletin in this series. Among other things, these new laws would change the way fisheries and navigable waters are regulated, would impact decisions made with respect to large, interprovincial energy projects, and would result in an overhaul of Canada’s environmental assessment regime.

A common thread identifiable in both Bills is the requirement for engagement with Indigenous groups, and the creation of opportunities for involvement of Indigenous groups. This bulletin outlines some of the more notable changes proposed in Bill C-68 and Bill C-69 with respect to Indigenous peoples.

Bill C-68 - Amendments to the Fisheries Act

As described in our recent bulletin, Bill C-68 outlines a number of major amendments to the Fisheries Act (R.S.C., 1985, c. F-14). Canada has described the purpose of this Bill as to “restore lost protections” for fish and fish habitats. Other purposes of the Bill are to incorporate additional safeguards for fisheries, increase transparency, and enhance enforcement and monitoring.

The Bill includes a number of provisions relating to the rights of Indigenous peoples and the incorporation of Indigenous traditional knowledge into decision-making under the Fisheries Act. Specifically it outlines:

  • When making a decision under the Act, the Minister is required to consider any adverse effects that the decision may have on the rights of Indigenous peoples, as recognized and affirmed by section 35 of the Constitution Act, 1982.
  • Before recommending to the Governor in Council that a regulation be made under the Act, the Minister must consider, among other things, the traditional knowledge of Indigenous peoples that has been provided to the Minister. Any traditional knowledge that is provided to the Minister under the Act in confidence remains confidential.
  • The Minister is granted the authority to enter into agreements with “Indigenous governing bodies” relating to fisheries and fisheries management (which was previously restricted to Provinces and Territories). An “Indigenous governing body” is defined to include a council, government, or other entity authorized to act on behalf of an Indigenous group, community, or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. Depending on the nature of the regulations, such an agreement could result in the Indigenous governing body being the sole manager of a fishery.

Bill C-69

Impact Assessment Act

Under Bill C-69, the Canadian Environmental Assessment Act is replaced by the Impact Assessment Act. Project review under the new legislation goes beyond environmental issues to a wider range of effects, including impacts to health, gender, climate change, the economy, and the rights of Indigenous peoples.

An assessment conducted under the Impact Assessment Act must incorporate the participation of Indigenous communities at an early stage. During a 180-day early planning phase, which begins when an initial project description is submitted by the proponent, the Impact Assessment Agency is required to consult with Indigenous groups that may be affected by the project, although the Bill does not explain the way in which these consultations will be carried out, the role of the project proponent, or how the feedback received will be incorporated into the later stages of the assessment.

When the early planning phase is complete, the Agency will determine whether an impact assessment of the project is required. In making that determination, the Agency must take into account any adverse impact that the project may have on the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982. If the project does proceed to an assessment, the Act requires that the assessment take into consideration the impact that the project may have on Indigenous peoples generally (positive or negative), and specifically any adverse impact on the rights of Indigenous peoples with respect to the project, and considerations related to Indigenous cultures raised with respect to the project.

The final determination of whether the adverse effects of a project are in the public interest must include a consideration of, among other things, the impact that the project may have on any Indigenous group, and any adverse impact that the project may have on the rights of Indigenous peoples.

A stated “object” of the Agency is to engage in consultation with Indigenous peoples on policy issues relevant to the Act. As part of this object, the Agency may establish a research or advisory body with respect to the interests or concerns of Indigenous peoples, and must establish an expert committee to advise on issues related to impact assessments. Both bodies must include at least one Indigenous person. The Agency is also required to establish a committee to advise it with respect to the interests and concerns of Indigenous peoples in relation to assessments conducted under the Act.

Like Bill C-68, the Act allows the Agency to enter into agreements with Indigenous governing bodies to authorize that body to exercise powers or perform duties related to an impact assessment. Depending on the nature of the regulations, such an agreement could result in the Indigenous governing body being the sole regulatory body undertaking all aspects of the impact assessment.

Canadian Energy Regulator Act

As described in our recent bulletin, under Bill C-69, the National Energy Board (NEB) is replaced by the Canadian Energy Regulator (CER). Like the NEB, the CER will regulate interprovincial pipelines, international and interprovincial power lines, and offshore renewable energy projects and power lines. At least one of the Directors of the CER Board of Directors, and at least one full-time Commissioner of the CER, is required to be an Indigenous person.

Decisions made under the Canadian Energy Regulator Act must consider any adverse effect that the decision may have on the rights of Indigenous peoples. Similarly, recommendations made by the Commission must take into account the interests and concerns of Indigenous peoples, including with respect to their current land and resource use for traditional purposes.

The Act also allows the CER to establish committees or programs to enhance the involvement of Indigenous peoples and Indigenous organizations in projects regulated by the CER. Like other legislation proposed under Bill C-68 and Bill C-69, under the Canadian Energy Regulator Act the Minister may enter into agreements with Indigenous governing bodies to carry out the purposes of the Act, which could lead to the Indigenous governing body being the sole regulatory body undertaking the decision-making under the Act, depending on the regulations.

Canadian Navigable Waters Act

Lastly, as described in our recent bulletin, Bill C-69 proposes to change the Navigation Protection Act to the Canadian Navigable Waters Act. The revised legislation is intended to enhance the regulation of activities that interfere with travel or transport on navigable waters in Canada.

Similar to the proposed legislative amendments outlined above, when making a decision under the Canadian Navigable Waters Act, the Minister must consider any adverse effects that the decision may have on the rights of Indigenous peoples that are recognized and affirmed by section 35 of the Constitution Act, 1982. When deciding whether to issue an approval under the Act, the Minister is required to consider any traditional knowledge of Indigenous peoples that has been provided to the Minister. The aim of these provisions appears to be to create additional protections for waterways of significance to Indigenous peoples.

Looking Forward

Although Bill C-68 and Bill C-69 increase the number of statutory references to consultation with Indigenous peoples, much of what is in Bill C-68 and Bill C-69 reflects the reality of impact assessment practice and consultation practices already implemented on the ground. In keeping with  the Supreme Court of Canada’s decision in Haida, and policies adopted by regulators, project proponents have for some time involved Indigenous people in consultation from very early in the review of projects, and assessed the effects of projects on Indigenous peoples. 

What is notable is the absence of any reference to the United Nations Declaration on the Rights of Indigenous Peoples or the principle of “free, prior, and informed consent”. It is likely that the Federal Government considers that these Acts are consistent with those principles and they will be interpreted accordingly.

One addition is the ability for Canada to enter into agreements with Indigenous governing bodies. These agreements would allow for Indigenous governing bodies to take on regulatory authority - although the scope of the authority remains to be determined.  The coming regulations will reveal whether this is intended to be co-management or a full delegation of decision-making authority. It also remains to be seen how Canada’s recently announced framework for the recognition and implementation of Indigenous rights will factor in to these processes. It will also be interesting to see how, practically speaking, the Crown’s obligation to consult, as described under the legislation, will be delegated to project proponents.

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