Law Times

Law Times • apriL 30, 2018 Page 9 www.lawtimesnews.com Proposed legislation now before Parliament Federal bill aims to improve environmental assessments BY MARG. BRUINEMAN For Law Times T he federal government has proposed reforms to environmental laws that address major issues around the impact of develop- ment on Indigenous culture. The proposed Impact Assess- ment Act, which was introduced in January following 14 months of consultations with the Indig- enous community, companies, provinces and territories and en- vironmental groups, is designed to replace the Canadian Envi- ronmental Assessment Act. Its more comprehensive as- sessments would show how a company's proposed project could affect the environment, health, society and the economy, as well as how the development would impact Indigenous peo- ple over the long term. Former Ontario premier Bob Rae, a senior partner with Olthuis Kleer Townshend LLP, says the proposed legislation re- quires that a company wanting to develop property in a First Nations territory conduct an assessment identifying any im- pacts it might have on the people as well as the land. But instead of examining the individual impact of just one in- dividual project, the lens would widen to look at the cumula- tive effect a number of projects would have over a period of time. "There's been a tendency in the law up until now to simply look at one single project and say: 'Is this project likely to have an impact?' Whereas I think the bigger issue is: 'Well, if there's one, aren't there more likely to be others following?' And so the real issue is: 'What is the overall impact of development going to be?' That's the big issue," says Rae. "I think when you look at where a lot of development is be- ing proposed, it's often in remote areas where communities do not have road access and where there's not a lot of deep familiar- ity with the impact that a mining or forestry [project] could have. That's the basis for it." Cultural heritage needs to be considered when companies conduct environmental assess- ments, says Julie Abouchar, a To- ronto partner at Willms & Shier Environmental Lawyers. That involves including the elders through interviews, incorpo- rating oral histories and getting traditional knowledge by the people impacted by the project and including their feelings of the land. She says that's also connect- ed with Indigenous legal order — that is the way First Nations have always thought of the land, their connection with the land and some of that traditional knowledge. That could include hunting, trapping and berry- gathering practices. "You might also get stories about the spiritual nature of the landscape or the connection of the land with the people," says Abouchar. She points to Ktunaxa Na- tion v. British Columbia (For- ests, Lands and Natural Re- source Operations), a British Columbia case recently heard by the Supreme Court of Canada in which the Ktunaxa Nation felt disturbed by the impact a proposed ski hill would have on the great bear spirit using the freedom of religion argument. While the First Nation was not successful, the case highlights the importance of intangible im- pacts. The challenge is to figure out how to assess those intan- gible impacts, says Abouchar. Charles Birchall, a Willms & Shier Environmental Lawyers LLP partner based in Ottawa, points out the proposed legisla- tion aims to foster sustainabil- ity and promote communication and co-operation with Indig- enous people. He believes it aims to ensure and respect Indigenous rights and that the impact assess- ments take into account Indig- enous traditional knowledge and that follow-up programs are in- cluded in the planning process. "The bill is clearly looking to ensure that designated projects, accurately considered, capture the effects of projects on Indig- enous peoples," says Birchall, including cultural impact as- sessments. A proponent of a project has to prepare an assessment that looks at the effect of the project on the Indigenous people's phys- ical and cultural heritage, the use of land and resources for tra- ditional purposes, architectural, archeological, historical and pa- leontological significance. The assessment must also look at any change to the health, social and economic condition of Indig- enous people. The idea is that by looking at several projects instead of just one individually, the impact of the physical activities could show significant adverse effects on the culture of an Indigenous community. The bill also contains provi- sions to ensure the confidenti- ality of information provided through the sharing of cultural knowledge. Birchall says that could include information such as important fishing areas to en- sure that they aren't overfished. "What [the proposed legisla- tion] clearly does is underscore the importance of cultural im- pact assessments, the effects on Indigenous peoples," he says. As part of the overall initia- tive, the Canadian Environmen- tal Assessment Agency will be re- placed by the Impact Assessment Agency of Canada to lead all fed- eral reviews of major projects and work with other federal bodies. The Canadian Environmen- tal Law Association announced that it is generally supportive of certain elements of the proposed impact assessment law. But it identified some shortcomings, including the absence of cross- referencing the United Nations Declaration on the Rights of In- digenous Peoples. Rae says it stops short of providing the clear guidance that many are seeking. He says it doesn't go far enough from the perspective of First Nations because it fails to deal directly with the issue of free, prior and informed consent identified in the United Nations Declaration on the Rights of Indigenous Peo- ples, which describes individual and collective rights of Indig- enous peoples around the world. "It's a little strange to me that the federal government would announce with a great deal of fanfare that it's adopting the UN declaration as its benchmark and not put it into the major piece of environmental and impact assessment legislation. I find it, frankly, quite strange," he says. "It certainly doesn't clarify what Indigenous people have been saying for some time is re- f lecting their concerns about the nature of development." The proposed legislation is now before Parliament. The government is also seek- ing input on regulations and policy changes to accompany the legislation. According to the government, there is in excess of $500 billion in major resource projects planned across the country over the next 10 years. The goal of the legisla- tion is to protect the environment and communities while ensuring good projects are built. LT FOCUS Julie Abouchar says cultural heritage needs to be considered when companies conduct environmental assessments. It's a little strange to me that the federal government would announce with a great deal of fanfare that it's adopting the UN declaration as its benchmark and not put it into the major piece of environmental and impact assessment legislation. Bob Rae © 2018 Thomson Reuters Canada Limited 00251LD-92563-NK Get the latest insight on construction law trends and issues Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8629-65203 $194 Hardcover May 2018 approx. 250 pages 978-0-7798-8629-6 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. The new 2018 edition of this annual journal includes insightful articles, each covering current issues in construction law. New in this edition • Net Profit or Gross Profit? by Jasmin Lefebvre, LL.M. and Guy St-Georges, CPA, CA, CFF, CFE • Summary Judgment in Construction Cases – Has the Culture Shifted? by Brendan Bowles and Markus Rotterdam • Regulating Project Risk: Project Development in the Regulatory State, by Allan Wu, with assistance from Stuart B. 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