The role of indigenous people in the Canadian EA process explored.

Environmental Impact Assessment Nathalie Houtman 3476723 21-03-2011

Contents list
Introduction..............................................................................................................................................3 Results ......................................................................................................................................................3 Discussion .................................................................................................................................................4 Conclusion ................................................................................................................................................5 References ................................................................................................................................................6

Introduction
Natural resources exploitation and development has significant consequences for indigenous peoples, particularly for those choosing to maintain a traditional relationship with their land (Booth and Skelton 2010). Above all, historically indigenous people are marginalized or excluded from environmental management of resource projects located on their ancestral lands (OFaircheallaigh 2007). Environmental assessment (EA) processes in many countries, therefore, make some effort to include indigenous peoples in those processes. In Canada, indigenous peoples, also called First Nations or Aboriginal people, are acknowledged to have particular rights through the Canadian Constitution and, in many cases, through legal treaties, which confer specific considerations with regard to the impacts of development (Booth and Skelton 2010). So the Canadian EA process operates on the national as well on the regional level. One of these regional treaties will be discussed shortly at the beginning of this paper. Further, case law has upheld the requirement that government both consult with and accommodate First Nations regarding proposed developments (Booth and Skelton 2010). Although the Canadian EA process now seeks to involve Aboriginal People, their participation is often not reflected in practice (OFaircheallaigh 2007). This paper will explore the difficulties that arise with the implementation of Aboriginal participation, including the role of traditional environmental knowledge (TEK) in it. First, the results about constraints in the EA process considering Aboriginal participation and TEK will be presented. Next there will be a discussion with some suggestions for improvement, followed by the conclusion.

Results
All articles studied in this paper more or less conclude that in theory First Nation participation is arranged, but in practice isnt functioning. There are different reasons for this and these will be presented below. This section will also contain a part on traditional environmental knowledge. Constraints in the EA process: The James Bay and Northern Qubec Agreement gives a clear example of the gap between theory and practice (Lajoie and Bouchard 2006). Although the environmental assessment procedure described in this Agreement clearly defines direct involvement by Cree members (the local indigenous community) on the EA commissions and committees or boards, it provides no welldeveloped rules regarding consultation or public hearings as part of the EIA. The practical effect has been too considerably restrict. Difficult access to information, the lack of public consultation in a neutral framework and the lack of written communication in the Native language or even in English are some of the acknowledged weaknesses. The committees operate with budgets that are far too modest given the scope of the development projects, to fill this information gap or to take it upon themselves to conduct comprehensive studies. So although the environmental and social regime set out in this Agreement gives the indigenous people special status, there is still a need for significant improvement in the formal conduct of public consultation (Lajoie and Bouchard 2006). Many of the problems described here are common for the rest of Canada as well. Additionally, Whitelaw et al. (2009) see restrictive scoping as one of the main problems leading to the failure of Aboriginal participation. Restrictive scoping potentially leads to the exclusion of potentially affected stakeholders, constrained impact assessment, and inadequate collection of baseline information and traditional knowledge. Another issue involves the degree to which EAs recognize or help to establish the legal standing, interests and expertise of indigenous landowners (OFaircheallaigh 2007). While most literature has indicated failures in EA processes from the perspective of the First Nations 3

Booth and Skelton (2010) show that Aboriginal participation in the EA processes is failing according to the proponents, consultants and government agents as well. A significant finding in their research is that several issues that were raised by the industry proponents and their consultants are congruent with issues raised by the First Nations, such as a lack of capacity. Capacity issues begin with the fact that, although the outcome will affect the entire community, the vast majority, if not the entire First Nation community, might lack sufficient understanding of a complex process to meaningfully participate. The proponents also cited their own lack of knowledge when consulting with the First Nations. However, while the need to engage with Aboriginal people was raised by proponents and consultants, much of the discussion focused on the fact that consultation was an obligation that had to be met, rather than something sought out for positive industry benefit. The failure of relationships has been identified by all participants as being at the heart of why the EA process fails, even if the EA itself receives government approval (Booth and Skelton 2010). The research of Booth and Skelton (2010) indicates that creating positive relationships might go a long way towards resolving the failures in the EA process. However, in general the First Nations do not trust the federal or provincial government or their agencies and in turn the governments do little to acknowledge or repair that breech in trust. As a result, this lack of trust colours relations between the First Nations and the industry proponents, who must struggle to establish their own working relationships with the First Nation. Traditional ecological knowledge: Indigenous people often hold intergenerational knowledge that spans long time frames, have an understanding of causal processes based on a depth of experiential learning, and have survived in these environments because of their highly-developed capacity for problem-solving and adaption (OFaircheallaigh 2007). Use of traditional ecological knowledge is more often a requirement of many environmental review panels. However, there frequently is a mismatch between the narrow, often technical, treatment of TEK and the broader, more cultural comments of the Aboriginal people (Wiles et al. 1999). Further, issues arise in relation to its mobilisation and application in non-indigenous context. Here we see similar issues as in general Aboriginal participation. These include: fundamental differences in the philosophies, cosmologies and methodologies that characterise western and indigenous sciences, failure to provide financial and other resources to support participation by holders of TEK, inability of existing institutional structures to facilitate the application of TEK and the reluctance or inability of indigenous people to release TEK into the public domain, particularly when they may feel they lack the power to ensure that it is not misused (OFaircheallaigh 2007). Still Wiles et al. (1999) argue that TEK can relate to EA on three levels: first, to supply detailed baseline information from local people on the environment and wildlife, second by gaining insight in to sociocultural effects of a project and third to notice changes to a landscape or a peoples relationship with it that may threaten their deep identification with their environment. Additionally, TEK could be a good tool in EA to identify (cumulative) effects, because it has a more holistic approach compared to the traditionally fragmented nature of management responsibility over lands and resources (Tollefson and Wipond 1998).

Discussion
Governments can give First Nations a better opportunity to actively participate in the EA process. When Aboriginal participation isnt effectively integrated and functioning, it might not influence decision-making as was intended. Baker and McLelland (2003) give a clear suggestion of how this can be achieved. First, the government and the proponent need to provide, convey, and clarify how the 4

results of First Nations participation in the process will be used to affect the decision-making. Once this is done, First Nations must have the opportunity to become involved and provide input for decision-making. This includes the distribution of clear information about how and when to participate and supplying resources and providing funds. Second, First Nations must be asked what participation techniques they prefer, rather than what techniques are acceptable. Third, the government needs to find a way to minimize potential for preferential treatment of groups of First Nations by the proponent. The cost of First Nations participation in the EA process is not limited to the monetary costs incurred by the government/proponent, but must also include the monetary and non-monetary costs to First Nations (Baker and McLelland 2003). In addition, the following the issues require attention. Firstly, clear rules or guidelines need to be developed to coordinate how indigenous people can be integrated into the EA process. Secondly, the government must ensure that indigenous people get access to information and data that are critical for the communities. This information should be of good quality, meaning that its written in a language spoken by the indigenous people and that technical aspects are explained. Moreover, indigenous people usually lack the resources to participate, so unless resources are provided by government or/and the proponent, effective Aboriginal participation is unlikely to occur. Therefore continuing sources of funds are essential to support on-going indigenous participation (OFaircheallaigh 2007). Another key issue is trust. This however might be harder to establish since trust is something embed over time. Government could try to acknowledge and repair that breech in trust, because its seems essential for a good working participation process. Better mutual education on participation would be beneficial for all participants involved. For instance, greater knowledge in working with First Nations would allow industry proponents to understand the importance of developing on-going relationships between industry and First Nations (Booth and Skelton 2010). Next, the Government should make sure that EA processes engage First Nations in the collection and application of TEK (Whitelaw et al. 2009). In this way, First Nations get involved in the EA process by gathering useful information and in this manner get to know the project. Using TEK in the EA might also make indigenous people start to feel more respected. However, it should be apparent that First Nations are not clients or stakeholders with respect to some expert service provider. Instead, it is theorized that the process of gathering environmental knowledge is complementary to on-going social processes, and the application of TEK in environmental assessment is mutually beneficial to all parties involved (Paci et al. 2002). As Paci et al. (2002) state it: TEK requires changing the way things are done, envisioning knowledge as a quilt made up of many smaller cognitive maps, possibly representing more closely ecosystems thinking. Finally, this paper tried to examine the most fundamental constraints in the implementation of Aboriginal participation. However, it doesnt claim to be exhaustive, more factors might play are role.

Conclusion
Concluding, this paper found the following main constraints in Aboriginal participation: the absence of clear rules and guidelines, insufficient access to and unsuitable information for the indigenous people, lack of resources, knowledge and funding, restrictive scoping and finally lack of trust. To improve the current situation the government could put more effort into strengthening these aspects. For some aspects, like trust, this might be harder to achieve than others, like the language barrier. Gathering and applying TEK may also help to improve the EA process along with Aboriginal participation. All this could give First Nations a better access to the EA process and let them successfully participate in it. 5

Reference list:
Baker C. D., McLelland, J.N., Evaluating the effectiveness of British Columbia's environmental assessment process for first nations' participation in mining development, Environmental Impact Assessment Review, Volume 23, Issue 5, August 2003, Pages 581-603. Booth, A.L., Skelton, N.W, Industry and government perspectives on First Nations' participation in the British Columbia environmental assessment process, Environmental Impact Assessment Review, November 2010, Pages 1-10, not yet published but available online, doi: 10.1016/j.eiar.2010.11.002. Lajoie, GA, Bouchard, M.A., Native involvement in strategic assessment of natural resource development: The example of the Crees living in the Canadian taiga, Impact Assessment and Project Appraisal, Volume 24, Issue 3, September 2006, Pages 211-220. OFaircheallaigh, C., Environmental agreements, EIA follow-up and aboriginal participation in environmental management: The Canadian experience, Environmental Impact Assessment Review Volume 27, Issue 4, May 2007, Pages 319-342. Pacia, P.,Tobin A., Robbc,P., Reconsidering the Canadian Environmental Impact Assessment Act: A place for traditional environmental knowledge, Environmental Impact Assessment Review, Volume 22, Issue 2, March 2002, Pages 111-127. Tollefson, C., Wipond, K., Cumulative environmental impacts and aboriginal rights, Environmental Impact Assessment Review, Volume 18, Issue 4, July 1998, Pages 371-390. Whitelaw, G.S. , McCarthy, D.D. , Tsuji, L.J.S., The Victor Diamond Mine environmental assessment process: A critical First Nation perspective, Impact Assessment and Project Appraisal , Volume 27, Issue 3, September 2009, Pages 205-215. Wiles, A., McEwen, J., Sadar, M.H. Use of traditional ecological knowledge in environmental assessment of uranium mining in the Athabasca Saskatchewan, Impact Assessment and Project Appraisal, Volume 17, Issue 2, 1999, Pages 107-114.