Urgent: Funding deadline approaching for Indigenous communities who want to make representations to federal Environmental Assessment Review Expert Panel

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Funding is available for Indigenous communities to participate in the Government of Canada’s review of its environmental review processes, but time is running out to apply. The deadline is September 9, 2016 for (arguably the most important) parts of the process, and September 23, 2016, for other parts. If you would like to apply for funding but do not think you will be able to meet the deadline, you may want to consider sending a placeholder letter to the Canadian Environmental Assessment Agency (PFP.PAFP@ceaa-acee.gc.ca) explaining that you are unable to meet the deadline but that you intend to finalize an application for funding. You also may want to contact CEAA by phone (1-866-582-1884 – ask for the Participant Funding Program) and advise them of your situation to see if they can assist.

Earlier this summer, the Government of Canada announced that it would be putting together an independent expert panel to make recommendations about how to improve environmental review processes, the Environmental Assessment Review Expert Panel. You can read the panel’s draft terms of reference here. The Government of Canada states that the goal of the panel is, “[…] to develop new, fair processes that are robust, incorporate scientific evidence, protect our environment, respect the rights of Indigenous peoples, and support economic growth.” The panel will be releasing an Indigenous Engagement Plan to suggest topics on which the panel would be particularly interested in getting input on from Indigenous communities and groups. We will update the blog when the Indigenous Engagement Plan is released.

Environmental reviews are processes by which ostensibly independent panels or individuals, usually appointed by the government, will review a project such as an oil pipeline or a mine to determine if it meets environmental criteria. The panels or individuals can decide whether to approve or reject the project (or to recommend the government approve or reject the project), or they can often impose or recommend conditions on the project. Some projects will require just a provincial/territorial environmental review, other projects will require a federal environmental review, and some projects will require both. In an environmental review, different groups may be able to participate and present evidence to the panel or individual about the potential effects of the project on their rights or interests. Indigenous communities often can, and frequently do, participate in environmental reviews. Examples of environmental reviews are the National Energy Board’s recent review of the Trans Mountain Pipeline and the ongoing environmental review of the Energy East Pipeline.

Indigenous communities often face many barriers to participating fully in environmental reviews. This is a massive burden considering that it is often the constitutionally protected rights of Indigenous people that are put most in jeopardy by development projects. The common problems that Indigenous communities face in engaging with the environmental review process include:

• Inadequate funding to allow them to hire independent experts and thus to meaningfully review and understand the project
• Indigenous communities are often treated as regular stakeholders rather than Indigenous governments with constitutional rights
• Indigenous groups are often left out of the monitoring processes for projects
• Traditional knowledge is often not weighted as heavily as “western” evidence is
• The environmental review is often used by the Crown and proponent as a way of attempting to fulfill the duty to consult, in lieu of real engagement
• Timelines are often very short, making them unmanageable for under-resourced communities
• Environmental review legislation does not incorporate the concept of Free, Prior, and Informed Consent, or other principles from the United Nations Declaration on Indigenous Peoples
• There is confusion over federal/provincial processes and their interaction

The Environmental Assessment Review Expert Panel is going to be writing a report with recommendations to the federal government for how to make the environmental review process better. Funding is available for Indigenous communities to take part in this review process and to share their ideas with the Expert Panel. This is a unique opportunity to have an independent panel that could make bold recommendations on these issues consider the perspectives of Indigenous groups and communities. Please feel free to give me or any of the OKT lawyers a call if your community would like our help with any part of the application or review process.

By Michael McClurg