ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS AGREEMENTS MARCH 21, 2013

1. ENVIRONMENTAL ASSESSMENT UNDER ABORIGINAL CLAIMS AGREEMENTS MARCH 21, 2013

2. 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

3. Modern Comprehensive Claims

4. 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

5. 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)

6. 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

7. 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?

8. 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

9. Great Whale Project

10. 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

11. 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)

12. 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)

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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?

26. 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