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ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS AGREEMENTS MARCH 21, 2013

ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS AGREEMENTS MARCH 21, 2013

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ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS AGREEMENTS MARCH 21, 2013. Overview. Land Claims EA Regimes Grand Council of the Cree (JBNQA) Dene First Nations Agreements (MVRMA) Yukon First Nations Agreement (YESSA) Application of CEAA 2012. Modern Comprehensive Claims. - PowerPoint PPT Presentation

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Page 1: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS

AGREEMENTS

MARCH 21, 2013

Page 2: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Overview

• Land Claims EA Regimes

• Grand Council of the Cree (JBNQA)

• Dene First Nations Agreements (MVRMA)

• Yukon First Nations Agreement (YESSA)

• Application of CEAA 2012

Page 3: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Modern Comprehensive Claims

Page 4: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Comprehensive Claims Agreements

• Modern era of aboriginal claims settlement dates from 1973 Canada policy

• Comprehensive vs. specific claims

• Comprehensive claims based on assertion of continuing Aboriginal rights and/or title to lands and natural resources

• Achieve certainty of land tenure

Page 5: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Comprehensive Claims Agreements

• Agreements provide rights and benefits (title to some land, rights to other lands, financial benefits, joint management regimes for resources

• Joint management (co-management) regimes (wildlife, water, land use planning and management, environmental assessment)

Page 6: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

James Bay and Northern Quebec Agreement (JBNQA) and EA

• Canada, Quebec, Cree, Inuit signed JBNQA in 1975

• JBNQA paramount over all other laws of general application

• Established governance framework for social, economic development, environmental protection

• Environmental assessment process for Cree traditional territory – s. 22,23

Page 7: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

James Bay and Northern Quebec Agreement (JBNQA) and EA

• Cree agreed to construction of La Grande project

• Separate process for federal or provincial assessment of projects depending on constitutional jurisdiction within which project falls

• But SCC in Moses decides CEAA EA also required; Fisheries Act authorization required, triggers CEAA EA; Duplication?

Page 8: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Great Whale Project

• Methylmercury contamination of reservoirs and fish was key unanticipated impact of La Grande project

• Great Whale proposed in 1986, first major project to be assessed under JBNQA

• 3,060 MW complex of dams, dikes river diversions located north of La Grande

• Projected cost: $48 billion • Impacted Inuit and Cree lands

Page 9: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Great Whale Project

Page 10: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Great Whale Project

• Reservoirs of 3000 sq km, plus 865 sq km flooded land to existing water bodies

• Third large hydro project (Nottaway Broadback Rupert) also announced for region south of La Grande

• Cree concerns: fish, beluga whales, polar bears, threatened freshwater seals, aquatic balance along Hudson Bay coast, ice regimes in rivers and ocean, traplines

Page 11: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Great Whale Project

• In 1990, before EA started, Hydro-Quebec called for tenders to construct access road

• Federal government states it has no authority over road construction

• In 1991, Cree apply for mandamus compelling federal government to comply with federal environmental and social impact assessment and review procedures (ss. 22, 23 of JBNQA)

Page 12: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Great Whale Project

• Canada/Quebec argue that joint EARP study underway (without Cree), results to JBNQA provincial administrator (thus eliminating federal review under s.22)

• Federal court said this could happen but only if it did not prejudice Cree rights under JBNQA (which it did)

• Mandamus ordered, upheld on appeal

• Cree Regional Authority v. AG Quebec (1991)

Page 13: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Great Whale Project

• Panel review established with Canada, Quebec, Cree and Inuit representation

• Scoping hearings held

• Panel did not complete its work as a result of political events

Page 14: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Great Whale Project • Cree campaign to oppose Great Whale River

Project wins in 1992 when New York State withdrew from a multi-billion dollar power purchasing agreement

• Quebec/Hydro-Québec suspend Great Whale Project indefinitely in 1994

• Quebec and Cree agree in 2002 on new relationship and on environmental rules for 3 new power stations on Eastmain River, diversion of Rupert River

Page 15: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Environmental Assessment under MVRMA

• MVRMA enacted in 1998 following completion of land claims agreements with Gwich’in, Sahtu Dene, later Tlicho Dene

• Mackenzie Valley Environmental Impact Review Board - co-management EA board

• Seven or more members appointed by Minister, half (excluding chair) nominated by aboriginal groups, four by governments, chair nominated by Board s. 112

Page 16: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Purposes

• Establish Review Board as main instrument for EA in Mackenzie Valley

• Ensure environmental impact of developments carefully considered before actions taken

• Ensure concerns of aboriginal people and general public are taken into account

s. 114

Page 17: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Guiding Principles

• Timely and expeditious

• Have regard to: – protection of environment from significant

adverse impacts of developments– protection of social, cultural and economic

well-being of residents and communities– Importance of conservation to well-being and

way of life of aboriginal people s. 115

Page 18: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Preliminary Screening

• Applies to proposed developments requiring permit by Mackenzie Valley Land and Water Board or other regulator s. 124

• Quick review of application to determine if project might have significant adverse impacts on environment or be of public concern s. 125

• If yes, refer for EA by MVRMB• If no, issue permits

Page 19: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Environmental Assessment

• EA by MVRMB a more thorough study to decide if development likely to have significant adverse impacts on environment, cause public concern s. 126

• If yes, MVRMB may recommend Minister issue permit(s), issue permits subject to mitigation measures, or reject s. 128

• Alternatively, MVRMB or Minister(s) may order panel review s.129, 130

Page 20: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Environmental Impact Review

• Review conducted by an independent panel, consisting MVRMB and non-MVRMB Board members

• Review provides more focused study of issues raised during EA s.132

• Review panel issues report with recommendations to federal Minister, responsible Ministers, regulatory agencies for decision s. 136, 137

Page 21: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Application of CEAA 2012

• Minister may refer a project to a panel review under CEAA 2012 where in national interest s. 130

• Otherwise CEAA 2012 does not apply in Mackenzie Valley s.116

• MVRMB did EA of Mackenzie Gas Project prior to Joint Panel Review

Page 22: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Yukon Environmental and Socio-economic Assessment Act

Purposes•Provide a comprehensive, neutrally conducted assessment process •Require consideration of environmental, socio-economic effects before projects undertaken •Ensure projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend s. 5

Page 23: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Trends in Aboriginal Claims EA

• EA regimes co-managed with aboriginal communities

• Assessing sustainability, nor just environmental effects

• CEAA 2012 doesn’t apply except for large, transboundary projects in Mackenzie Valley, Yukon and Nunavut

• CEAA 2012 limited application in northern Quebec, Inuvialuit region of NWT

Page 24: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

Application of CEAA 2012

• Minister may refer a project to a panel review under CEAA 2012 s. 62

• Otherwise CEAA 2012 does not apply in Yukon s. 6

Page 25: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

CEAA 2012 Application to Aboriginal Lands/People

• CEAA 2012 has purpose to promote communication/cooperation with aboriginal peoples with respect to EA s.4.(d)

• CEA Agency has similarly stated object s. 15.(g)

• CEAA 2012 applied to virtually all federal decisions relevant to First Nations; CEAA 2012 doesn’t—potential gap in coverage in relationship to Crown consultation?

Page 26: ENVIRONMENTAL ASSESSMENT  UNDER  ABORIGINAL CLAIMS AGREEMENTS    MARCH 21, 2013

CEAA 2012 Application to Aboriginal Lands/People

• Are changes to “environmental effects” definition important?

• What if designated projects screened out of CEAA 2012 EA process? How will Crown meet its Crown consultation duties?

• S.19 allows consideration of community/ Aboriginal traditional knowledge in EA