EAGLE LAKE FIRST NATION Where the Eagle will continue to soar and develop with the Ojibways of Eagle Lake

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1 EAGLE LAKE FIRST NATION Where the Eagle will continue to soar and develop with the Ojibways of Eagle Lake P.O. Box 1001 Migisi Sahgaigan Ontario P0V 3H0 Tel Fax LETS TALK EA EAGLE LAKE FIRST NATION S COMMENTS ON BUILDING COMMON GROUND: A NEW VISION FOR IMPACT ASSESSMENT IN CANADA I. INTRODUCTION May 5, 2017 Eagle Lake First Nation (also known as Migisi Sahgaigan) is an Anishinabe community located in northwestern Ontario on the shores of Eagle Lake. We are a signatory to Treaty No. 3, along with 27 other First Nations and share a 55,000 square mile tract of land and water that we care for and call home. Approximately 370 of our community members live on reserve, while another 243 live off reserve. Eagle Lake First Nation possesses a unique kinship with the lands and waters within the areas traditionally used by our families. Our lands hold places of historical, cultural, and spiritual significance that continue to exist today. The land is the source of all life and teachings. Therefore, ensuring the continued health of the lands is our ongoing responsibility and is a central component of our Anishinabe culture and life. A central component of our ongoing caretaking role is to follow good management practices and use of the resources on the land to maintain a harmonious natural cycle. To do so, we follow Migisi Sahgaigan s Maanachi Totaa-aki Declaration and work closely with our Elders and community members to make sound decision-making about how our lands and waters are cared for. Eagle Lake has participated throughout the Expert Panel s review of environmental assessment processes. The Expert Panel s recommendations are a step in the right direction. The Report recommends deeper Indigenous involvement and engagement throughout the entire impact assessment process. Further, the Report importantly recommends providing more resources and capacity to First Nations and recommends fulsome inclusion of Indigenous knowledge in the impact assessment process. The following outlines our additional comments on Building Common Ground: A New Vision for Impact Assessment in Canada. 1

2 II. COMMENTS ON SECTION 2: DEVELOPING THE VISION What the Expert Panel Said: In this section, we outline recommendations about the purpose of impact assessment, the importance of co-operation among jurisdictions, integrating Indigenous considerations into impact assessment processes, enabling meaningful participation and ensuring evidence-based decision-making. Each of these aspects is fundamental to ensuring that federal impact assessment is robust and responds effectively to what we heard across the country. 2.1 Purpose of Federal Impact Assessment Impact assessment aims to identify and address potential issues and concerns early in the design of projects, plans and policies. In so doing, it can contribute to the creation of positive relationships among various interest groups, including reconciliation between Indigenous Peoples and non-indigenous peoples. We agree that purpose of an impact assessment should include reconciliation between Indigenous and non-indigenous peoples a fundamental part of this is meaningful consultation and engagement where we are engaged in all aspects of project s assessment, including decisionmaking, throughout all stages of the project s lifespan (from proposal to decommissioning). IAs should also include assessments on all levels such as strategic IAs, regional IAs and project IAs. We must understand how a project will impact cumulative effects and future generations. We live in a region where a regional assessment of cumulative impacts is needed before any other projects are approved or subject to the IA process. We believe that there is an interconnection between humanity s well-being and the environment this is connection is essential to the well-being of ourselves and our communities. Our law, Maanachi Totaa-Aki Declaration, describes the responsibility of the Anishinaabe to protect our traditional lands and resources to ensure the health of future generations. We support the Panel s recommendation to broaden the scope of environmental assessment to include all indicators of sustainability. ELFN is concerned that the cumulative impacts of smaller projects might not be considered within the IAs as there is not a direct link to federal interests. We believe within our Treaty Territory that the cumulative impact of projects currently not under federal jurisdiction have an impact on the Aboriginal and Treaty rights of our members and should be considered within a robust impact assessment framework. A factor in whether a project is subject to an IA should be an assessment of the existing impacts and potential cumulative impact of the project on a regional basis. The recommendations put 2

3 forward do not provide concrete examples or clarity on potential testing for consequential impacts to federal interest and how these would be used to trigger an IA. Further, First Nations should be actively engaged in the decision-making process about whether a project requires an IA. What the Expert Panel Said: 2.2 Co-operation among jurisdictions Impact Assessment creates challenges for Canada s system of government, with the requirement that a broad range of information be collected and evaluated but with no government having full authority to regulate all impacts. Federal, provincial, territorial, municipal and Indigenous governments may each have responsibility for the conduct of Impact Assessment, but each level of government can only regulate matters within its jurisdiction. Cooperation among jurisdictions is challenging. We are concerned that Indigenous jurisdiction in our traditional Territories is not currently recognized by the Crown. We want to have a decisionmaking role in how our lands are used. The environment is paramount to our well-being. We believe that the Anishinaabe Nation in Treaty #3 should have its own environmental assessment process for major projects in our territory. First Nations in Canada cannot be treated as another stakeholder group. For example, the Stk emlupsemc te Secwepemc Nation (SSN) completed its own hearings on the Ajax Mine and rejected the project, yet the review process is still going forward under CEAA Cooperation among jurisdictions needs to be laid out early in the process and should not limit parallel processes when needed. It is considered best practice for an Indigenous Nation to develop its own review and assessment process. Any collaborative process must ensure Indigenous groups receive sufficient support and resources to conduct their own evaluation of project impacts based on technical and Indigenous knowledge. Any parallel Indigenous assessment must also receive sufficient weight in the IA decision-making regime. In projects under CEAA 2012, much of the information needed to determine a project s potential impact on Aboriginal and Treaty rights is not easily accessible and is not also presented in userfriendly and plain-language formats. There should be a centralized database where information about a project assessment can be accessed. Overall, there should be greater sharing of the information that is in the Impact Assessment. 3

4 What the Expert Panel Said in Section 2.3: Indigenous Considerations: Reflecting UNDRIP Principles in Impact Assessment We agree that discussions on UNDRIP between the Government of Canada and Indigenous Nations needs to be a prerequisite for the consideration of Indigenous rights into the UNDRIP framework. However, discussions regarding the meaning and implementation of FPIC are required with each First Nation. We have existing laws and jurisdiction with respect to lands and resources in our territory. Aside from Eagle Lake s Maanachi Totaa-Aki, at the Treaty level, we also have Manito Aki Inakonigaawin the Great Earth Law. This was developed into written law with approval of the Elders and validation through traditional ceremony. In our Maanchii Totaa-Aki Declaration, we accept and affirm the principles set out in UNDRIP. To support the concept of FPIC, it is important that any IA process ensures we can participate in decisions according to our own decision-making processes. The Panel s Report supports this principle by acknowledging that Indigenous peoples must have the ability to maintain and develop internal decision-making institutions and distinctive customs (p. 29). The Panel further importantly stated: Recognition of and support for Indigenous laws and inherent jurisdiction should be built into IA governance processes. IA should not be a process designed and imposed from afar, Indigenous Peoples should have the ability to adapt the process to reflect their own traditions, customs, law and aspirations (p. 29). We are concerned that the Impact Assessment Commission [ IAC ] would be responsible for first conducting consultation and accommodation and determining whether these are adequate or whether veto power was exercised in a reasonable manner. Further consultation with First Nations is required to develop an appropriate conflict resolution process that aligns with our understanding of the concept of free, prior, and informed consent. It may be appropriate that this conflict resolution process be developed on a project-by-project basis to reflect the unique circumstances and interests engaged by each project. For example, according to our Maanachi Totaa-Aki Declaration, preserving areas of cultural and spiritual significance is a foundation of our laws and customs. Any IA process must ensure our concerns with respect to these areas and implementation of Maanachi Totaa-Aki are respected and addressed. The Report acknowledges that Indigenous peoples must be consulted and included at every stage of the IA process. We support a collaborative process, but we are concerned that our views will not be followed if we did not want the project to go ahead. We want to ensure that it is possible that our right to say no is followed, and not always subject to an appeal that simply replaces our no with a yes. There should be an independent body that can deal with these conflicts, and to address the adequacy of consultation within this collaborative model. 4

5 Further, ensuring First Nations are engaged at every stage of the IA process is also important where projects pass through many different Indigenous jurisdictions. It is important we work together to determine how consent we will approach decision-making. Too often First Nations are divided through industry and government - the IAC could facilitate collaboration between First Nations rather than creating divisions. Assessing impacts to Aboriginal and Treaty Rights in Impact Assessment Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights. It is now firmly entrenched in case law that governments have a duty to consult and accommodate Indigenous peoples whenever they make a decision that could infringe on Indigenous rights. It is important to know that our Aboriginal and Treaty rights are specific to our First Nation in Treaty #3. We agree with the report that consultation should consider accommodation measures that can be incorporated. The Crown s unilateral selection and perception of potential impacts to our Aboriginal and Treaty rights does not accurately reflect how our members exercise our rights over lands and waters. We believe that when development occurs within Treaty 3 territory, all Treaty 3 First Nations are potentially impacted. This is a different mindset than the current system, which identifies impacted First Nations that are in close proximity to a project regardless of land use or watersheds. We need to consider impacts to Aboriginal and Treaty rights from the Anishinaabe perspective. The concept of Aboriginal rights and Treaty rights is often derived from the Canadian legal perspective rather than from an Anishinaabe legal perspective. Our rights pre-exist Canada s Constitution Act, 1867, and exist in Canadian law regardless of governmental recognition. We should be assessing impacts on rights from the perspective of inherent and Treaty rights taken from the Anishinaabe understanding of the Treaty, Manitou Maznigai'gan. A full scope of rights need to be considered. We are encouraged that the impact to Aboriginal and Treaty rights will be considered across the five pillars of sustainability. Capacity We agree capacity is needed to effectively participate in lengthy and technically complex assessments. We agree long-term sustained funding is needed to increase our capacity, as well as additional project-specific funding. Both First Nations and Treaty-level organizations need technical teams in place to participate in assessments. For example, we need capacity and resources to develop consultation frameworks to support the Panel s recommendation to provide long-term capacity funding. There needs to be funding to operationalize these frameworks across different jurisdictions. 5

6 We also support the Panel s recommendation that any IA authority improve its capacity to meaningfully engage with and respect Indigenous peoples. Capacity needs to go both ways. In our Maanachi Totaa-Aki Declaration we explain the importance of educating all people about the teachings, culture and history of Anishinaabe. We currently experience that federal officials do not have an appreciation or understanding of Anishinaabe legal traditions or our rights as affirmed in Section 35. Indigenous Knowledge In addition to a collaborative model of decision-making, the Panel recommends that Indigenous peoples design how Indigenous knowledge is gathered and considered in IAs, as well as plan and complete studies evaluating how proposals may impact rights and title. We agree with the Panel s recommendation that Indigenous governments should be involved in preparing technical studies using Indigenous knowledge; for example, the collection of baseline data. We agree that Indigenous knowledge should not be confined to traditional knowledge like modern scientific knowledge, our knowledge is not static and continues to evolve. There needs to be a transparent process through which all forms of information are integrated into decision making and at what stage of the project this integration happens. Central to applying indigenous knowledge for ELFN is the application of our traditional laws including Maanchii Totaa-Aki Declaration and Manitou Aki Inakonigaawin. The Panel recognized this in saying that Indigenous knowledge systems also include Indigenous laws and governance.... Further, Indigenous laws and governance as they relate to Indigenous knowledge should be recognized and upheld to support a new IA sustainability model (p. 33). As Indigenous knowledge is scientific knowledge, we may have recommendations based on our own science that differs from the recommendations put forward by western technical science. An example of this is the Mining Effluent Regulations, the levels of dissolved minerals in the water might be acceptable and considered within Canadian law, however the Anishinaabe laws and values might recommend lower levels due to high importance we put on ecosystem impacts. Further consultation is required to determine how differences in technical perspectives are reconciled. III. COMMENTS ON SECTION 3: IMPLEMENTING THE VISION From the Expert Panel's report: In this section, we explain how our recommended vision can be put into practice. Our recommendations cover the assessment regime and its governance structure. They seek to ensure that the process, the resulting decisions and their implementation are inclusive, transparent and fair. We explain how assessment processes would start earlier and result in better and more-informed decisions. Our recommended approach seeks to build public confidence in the assessment 6

7 process. We believe that public trust can lead to more efficient and timely reviews. It should also support getting resources to market. 3.1 Governance Model To restore public trust and confidence in assessment processes, the conduct of impact assessments must respect the principles of being transparent, inclusive, informed and meaningful. Any authority given the mandate to conduct federal assessments should be aligned with these principles and: be open in process and decision-making; encourage participation from all corners; strive to ensure that participants feel engaged and their concerns have been considered; ensure decisions take into account science, facts and evidence; and ensure that the outcomes of the process are protective of future generations. We are interested in a framework that supports preparing our own environmental assessment based on Treaty #3 s Manitou Aki Inakonigaawin. This could be realized through a co-operative approach to integrating processes under the Impact Assessment Commission. The Panel recommends that both full-time members and rosters of the IAC must meaningfully include Indigenous appointees (p. 53). We believe that the leadership positions within the Commission and the Commission s decision making structure should be representative of Indigenous Nations. Although engagement of Indigenous communities may happen through the co-operative process, we are afraid that this does not necessarily lead to direct involvement in the decision-making authority of the Impact Assessment Commission. Trust and relationship building are important and we advocate for regional representation. Having a position for an Indigenous Liaison between First Nations and the Commission would be important step going forward. From the Expert Panel s Report: 3.2 Project Impact Assessment Project impact assessment is the cornerstone of the proposed impact assessment regime. These assessments should protect the physical and biological environment, promote social harmony and generate economic opportunities. A rigorous assessment process should achieve decisions that are considered fair to all parties. A new process should reflect the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and advance reconciliation with Indigenous Peoples. Properly structured, a new project assessment process would meet these goals and contribute to a sustainable future for Canadians. 7

8 We are encouraged by the opportunity to provide studies relevant to the project impact and would need both the capacity and funding to conduct these studies. Studies should not be limited to Indigenous knowledge but should have oversight on technical and baseline studies. We would like to see a Treaty level assessment process involving affected First Nations as a part of the one project one assessment approach. The project planning phase should consider Indigenous laws and jurisdictions. In Treaty #3 Territory, the IAC needs to work with First Nations to implement and follow Manitou Aki Inakonigaawin as appropriate. This customary law is currently not recognized by CEAA. We are encouraged by the recommendation to collaboratively design plans to guide Indigenous Crown consultation. For example, issues that may be outlined in a consultation protocol include funding and capacity, roles and responsibilities of all parties, protection of intellectual property and dispute resolution procedures. Although cumulative effects have been mentioned in this report, we want to emphasize that there should be a cumulative effects mindset for all subject areas under review for all projects whether a regional assessment is triggered. We need a cumulative effects mindset and the assessment of cumulative impacts should lead to the foreclosing of some projects, if it is clear that the cumulative impact of a project is too damaging to the pillars of sustainability. From the Expert Panel s Report: 3.3 Monitoring, Compliance and Enforcement As the Decision Phase completes the assessment part of the IA process, there is need for a post-impact assessment phase to address monitoring and follow-up related to conditions, as well as compliance and enforcement. These post-impact assessment elements are equally important to restore trust in assessment processes and ensure robust oversight. When proponents fail to comply with laws and regulations there is currently very few consequences. Proper compliance mechanisms need to be put in place. The Report recommends that Indigenous Groups and local communities be involved in the independent oversight of monitoring and follow-up programs established by the IA authority. Every project should require an independent monitoring body. First Nation communities should lead the monitoring phase. Our Anishinaabe law Migisi Maanachi Totaa-Aki Declaration explains that it is the role of the Anishinaabe to enforce laws based on the principle of respecting the land. We are looking 7 generations into the future. We must promote responsible stewardship and taking care of the land. Indigenous law and protocols must also be incorporated into any monitoring framework. 8

9 From the Expert Panel s Report 3.4 Discipline in Impact Assessment Time and Costs A well-designed and successful impact assessment process must provide clarity to all parties through predictable requirements and timelines. These attributes are essential to ensure that projects providing a net benefit to the country are approved and built. To avoid conflict, early engagement from the Crown, any IA authority, and proponent is required. Timelines must be flexible to respect and engage with Indigenous Nations under their own laws and customs. From the Expert Panel s Report: 3.5 Regional Impact Assessment Regional impact assessment is used to assess baseline conditions and the cumulative impacts of all projects and activities within a defined region. In addition to being well-equipped to address the sustainability of development in various regions, particularly in relation to cumulative impacts, regional Impact assessment can also streamline project impact assessment to the benefit of proponents and communities alike. We believe that any IA authority must work with Treaty #3 First Nations to determine thresholds as to where and when development can or cannot occur. There needs to be a consideration of Indigenous peoples and their traditional territory when scoping a regional impact assessment. We live in Treaty #3 Territory which is 55,000 square miles in Ontario and Manitoba. We are encouraged by the regional assessment approach, as we know we need to look at cumulative effects of projects; for example, within a watershed. However, the Report is unclear as to when or at what scale these regional assessments will be applied and how they will be used to decide on whether projects should go forward. There are several watersheds in our Territory that cannot withstand any more contamination. It is uncertain as to when and how regional assessments would inform IAs of individual projects or if cumulative effects assessment would be considered. As Anishinaabe and as stated within our Declaration, it is our responsibility to understand and know the land and to give warning about what is detrimental to our sacred resources. Accordingly, Indigenous participation in any regional IA process is critical. 9

10 From the Expert Panel s Report 3.6 Strategic Impact Assessment The federal government has established plans, programs and policies (together, initiatives ) to achieve goals in matters of national interest. Many of these matters have implications for projects and affect project impact assessments. Currently, however, very few of these national initiatives provide clear direction for project impact assessments. In addition to incorporating federal initiatives into project planning, there are several issues facing our community that need to be considered strategically and regionally. Strategic IAs should be triggered by Indigenous Nations regardless of their jurisdiction. For example, our Territory would benefit from a strategic IA on the cumulative impact of projects on moose populations in our Territory. Many of the impacts to our lands and resources are currently under provincial jurisdiction. How do provincial policy directives factor into the assessment process? There should be strategic IAs done to understand how provincial policies impact federal interest and on cumulative effects. From the Expert Panel s Report: 3.7 Climate Change and Impact Assessment Climate change is one of the biggest challenges of our time, and Canada has committed to take action to reduce its greenhouse gas (GHG) emissions by 30 per cent below 2005 levels before To achieve this objective, Canada s First Ministers developed a comprehensive plan, the Pan-Canadian Framework on Clean Growth and Climate Change (the Pan-Canadian Framework ), which includes several initiatives to reduce emissions, build resilience to adapt to a changing climate, and accelerate innovation and adoption of clean technologies. Climate change is one of the greatest challenges facing humanity and impacts Indigenous Nations. We believe every project needs to be assessed on its impact to greenhouse gas emissions both upstream and downstream from the project. Indigenous Nations need to be involved in developing adaptation plans and advising on climate change should be integrated into impact assessment. Impact Assessment methodology regarding climate impacts should reflect the climate change strategies and policies already set out by the federal government and the recommendations put forward by the International Panel on Climate Change. Proponents should also fund mitigation and adaptation measures, along with long-term energy planning. 10

11 Thank you for considering our comments we look forward to further consultation on this important matter. 11