11. INDG

Question 1

duty to consult

Answer 1

Section 35 Overview: Section 35 of the Constitution Act guarantees existing
Indigenous rights, reinforcing legal recognition for self-determination.

“The Crown has a duty to consult and, where appropriate, accommodate
Indigenous peoples when it considers conduct that might adversely
impact potential or established Aboriginal or treaty rights. Meaningful
consultation entails early and ongoing engagement in good faith, with
the intent of securing free, prior and informed consent (FPIC).”

Question 2

legal precedents duty to consult

Answer 2

The Haida Nation v. British Columbia case established
the Crown’s obligation to consult with Indigenous peoples effectively.

Court cases affirming Indigenous rights enhance frameworks
for impactful project assessments tailored to community needs.

Question 3

Standard public consultation
processes … the duty to consult

Answer 3

do not
satisfy

Question 4

proponents obligations

Answer 4

1. Notification of Project Details: formally inform INDG
   the proposed project, including its purpose, scope, and anticipated impacts.
2. Notification of Regulatory and Approval Processes: Ensuring communities understand the process (proponent
   and regulators).
3. Engagement: Understanding community concerns and priorities, enabling a more tailored approach to addressing
   impacts.
4. Funding Participation: Proponents may need to provide financial support to facilitate community involvement in
   the process.
5. Responding: Proponents must actively address questions and concerns raised by the community, particularly
   those related to rights.
6. Collaborative Impact Identification and Mitigation:
   Work collaboratively to identify potential project impacts on
   communities, including effects on land, resources, values.
7. Reporting Consultation Results: Document and report the outcomes of the consultation process to both the
   community and relevant federal or provincial review bodies.

Question 5

issues with litigation process

Answer 5

a. Uncertainty and Investor Confidence: Litigation creates uncertainty and can deter investors,
who will worry about the project’s stability and long-term viability.

b. Lengthy Process: Legal disputes are often prolonged, delaying project timelines and increasing
costs.

c. Investment Patience vs. Community Resilience: While communities may have the patience to
engage in lengthy processes, investments typically require a quicker return, making extended
conflict, disagreements, or legal battles unsustainable.

d. Impact on Project Viability: Regardless of the outcome, litigation ultimately represents a loss for
the project, either through financial strain, reputational damage, or delays that may undermine
project success.

Question 6

why Indigenous-led impact assessments (ILIA) emerged?

Answer 6

Conflict: lack of consent, treatment of cultural values, and land use changes that
have made it difficult to uphold Indigenous ways of life.

Emerging Jurisdiction: Indigenous jurisdictions are increasingly recognized,
highlighting self-governance amidst evolving legal frameworks and international
standards.

UNDRIP Implementation: The United Nations Declaration on the Rights of
Indigenous Peoples fosters frameworks endorsing Indigenous authority in
impact assessments.

Provincial Legislative Changes: Legislative changes in Canada’s and BC’s EIA laws
support Indigenous-led assessments.

Question 7

Indigenous-Led Impact Assessment (ILIA)

Answer 7

emphasizes Indigenous
governance and methodologies in evaluating project impacts and assessing
impacts (benefits and costs, and rights), mitigations.

serves to uphold self-determination, integrating
Indigenous values for comprehensive evaluations of community impacts.

‘Indigenous’ acknowledges diversity, inclusivity, and
respects cultural identities across various communities.

Question 8

key concepts of ILIA

Answer 8

1. Holistic Framework:
   encompasses cultural, spiritual, and social dimensions,
   recognizing the interconnectedness of community well-being and natural
   systems.
2. Jurisdictional Authority: Indigenous communities may assert jurisdiction,
   enabling governance in project assessment processes exemplified by successful
   initiatives.
3. Cultural Application: Incorporating Indigenous knowledge enhances decision-
   making, fostering environmentally sustainable practices rooted in Indigenous
   approaches to stewardship, land use, and resource management

Question 9

Define FPIC

Article 32 of UNDRIP emphasizes the necessity of obtaining
FPIC for projects impacting Indigenous lands and resources.

Answer 9

The concept of Free, Prior, and Informed Consent ensures Indigenous communities are fully
informed before project decisions.

Free = Without force, coercion, intimidation, manipulation, or pressure from the government or company
seeking consent.

Prior = With sufficient time to review and consider all relevant factors, starting at the inception stage, in
advance of any authorization for and continuously throughout the planning and implementation of activities
(prior).

Informed = Based on an understanding of adequate, complete, understandable, and relevant information
relative to the full range of issues and potential impacts that may arise from the activity or decision.

Consent = Only from the legitimate representatives of the people affected, with any caveats or conditions
stipulated by the people whose consent if given.

Question 10

FPIC in ILIA

Answer 10

ILIA provides a tool, by which Indigenous peoples can define
and articulate their interests, while simultaneously asserting authority to
influence and make free and informed decisions about projects which affect
them.

FPIC upholds Indigenous rights, fostering trust and cooperation between
developers and affected communities during assessments.

Question 11

Lacking consent consequences (historically)

Answer 11

Projects implemented without Indigenous
consent can incur legal disputes, legacy social and environmental impacts,
cumulative effects, create uncertainty for investment and decision-making.

Lack of consultation can result in unrealistic
project scopes and timelines that disregard community needs and impacts.

Question 12

… exacerbates
challenges in ensuring adequate participation and safeguarding traditional uses
and values, and rights.

Answer 12

Insufficient funding for Indigenous involvement

Question 13

Crown’s Legal Consultation Duty:

Answer 13

The Crown must engage meaningfully with
Indigenous communities, ensuring their rights and interests are respected.

Question 14

Proponent’s Engagement Role:

Answer 14

Project proponents must actively involve
Indigenous rightsholders early, fostering genuine collaboration and understanding
throughout assessments

Question 15

Knowledge-Sharing Responsibility:

Answer 15

Indigenous communities hold critical
knowledge that should inform impact assessments (advising baselines and impact
identification, mitigation options, concepts of benefits and costs).

Question 16

3 models for ILIA

Answer 16

1. Collaborative Model:
   –> process innovatively integrates with
   Environmental Impact Assessments, balancing Indigenous needs alongside
   regulatory requirements.
   –> Utilizing IBAs TO
   effectively manage impacts, ensuring benefits align with community
   priorities and values.
   –> Robust community engagement strategies essential in ILIA process to uphold transparency and
   collaborative governance.
2. Independent Assessment:
   –> Threshold-based decisions facilitate proactive
   measures, allowing communities to assess potential impacts before projects
   commence
3. Co-Management Frameworks:
   –> collaborative formal decision-making process
   emphasizes shared authority, enhancing trust and cooperation among
   stakeholders involved

–> Establishment of an internal review panel
facilitates thorough examination and assessment of project implications for
communities.

–> Framework Agreement with BC
formalizes the collaborative approach, ensuring mutual recognition of
Indigenous rights.

Question 17

2 challenges ILIA

Answer 17

1. Legal Obstacles: Inconsistent recognition and enforcement of Indigenous
   rights poses challenges within legal systems, limiting effective participation
   in assessments.
2. Resource Access: Lack of financial resources hampers comprehensive
   Indigenous involvement, affecting capacity to influence environmental
   decisions significantly.

Question 18

1 opportunity for ILIA

Answer 18

Self-Determination Opportunities: Legal frameworks increasingly support
Indigenous self-determination in impact assessments, emphasizing
community-led evaluations and governance.

Question 19

“Consent” refers to the explicit agreement of Indigenous communities to a project or activity
that may affect their lands, rights, or resources.

Consent is not merely a procedural formality but an ….

Consent must be a clear, affirmative agreement, and Indigenous communities should have the
ability to withhold or withdraw consent if the project fails to respect agreed-upon conditions or
causes unanticipated harm.

Consent goes beyond mere consultation. It implies that Indigenous communities have the right
to say “yes” or “no” to a project.

Answer 19

affirmation of an Indigenous community’s
sovereignty and self-determination, providing control over decisions that impact their territories
and rights.

Question 20

But, the absence of consent does not necessarily mean that the project will not be approved. is is a veto?

Answer 20

FPIC advocates generally support Indigenous consent as crucial to self-determination. Consent
under FPIC is often framed as shared decision-making and collaborative agreement.

A veto is a more absolute power that gives Indigenous communities the right to reject a project
outright, which some legal and policy frameworks may or may not grant explicitly.

A veto power depends on specific legal contexts and the recognition of Indigenous sovereignty
in a jurisdiction.

For EIA? Veto implies a unilateral, absolute power to reject or stop a project. If an Indigenous
community has a veto right, they can block a project entirely, regardless of modifications,
compromises, negotiations, or another government’s (including Indigenous) interests.

Question 21

legislation support federal + BC

Answer 21

Impact Assessment Act Overview: authorizes the creation of an
agreement with an Indigenous governing body to perform duties or functions in
relation to impact assessments under the Act.

BC Environmental Assessment Act: reinforces Indigenous
engagement, requiring consultation throughout the assessment process for
meaningful participation. The Act authorizes collaboration with Indigenous
Nations in relation to project reviews.

–>Both acts create a legislative framework that enhances self-
determination, enabling Indigenous oversight of impact assessments. Both Acts are aligned.

Question 22

7 key principles

Answer 22

1. Indigenous values and interests
   are forefront.
   based on Indigenous
   values, interests, and priorities
2. Interdisciplinary and holistic.
   methods and information
   provided by Indigenous knowledge
   systems+ western science
   .
3. Comprehensive.
   range of assessment methods and
   tools, such as cumulative effects,
   regional, strategic, risk, disaster, and
   health assessments.
4. Values-based triggers. The
   triggers (requirements) for conducting
   an assessment are values-based and
   use criteria that reflect community
   values and needs, and the cultural use
   of places and resources.
5. Control over process. It
   provides IGBs with control over
   how the assessment is conducted,
   including over what is being assessed,
   how it assessed, what information
   and knowledge is used, and who
   undertakes the assessment and its
   related activities.
6. Control over the use of findings.
   IGBs apply their own interpretations
   of ILIA findings, including communitydefined interpretations of what are
   significant impacts.
7. Supports sustainability. It will
   be inter- and multi- generational in its
   perspective on change, its attention to
   impacts and benefits, and use of land
   and resources.

Question 23

Traditional
knowledge is transmitted through oral tradition and fi rst-hand observation. It includes a set
of

Answer 23

empirical observations about local environment and a system of self-management that
governs resource use. Ecological aspects are closely tied to social and spiritual aspects of
the knowledge system. With its roots based in the past, it is both cumulative and dynamic,
building upon the experience of earlier generations and adapting to the new technological
and socioeconomic changes of the present

Question 24

Framework agreements can move beyond preestablished consultation plans towards ..
Such agreements can help Indigenous Nations establish …

However, the
degree to which power and responsibility are shared
is variable and depends on …

Answer 24

integrative plans centered around cooperation, collaboration,
and shared responsibility

land use decision-making authority

the exact terms and
conditions of the agreement itself

–> However, want assessment recognized by CEAA/EAO as an independent and binding process, BUT
CEAA and the EAO did not recognize the authority of the Squamish Nation Process. Crown failed to include conditions of approvals of INDG within their separate conditions of approval through BC’s Environmental Assessment
Certificate. inconsistency between Squamish Nation and Crown
approval conditions, an example of a potential legal
risk created by separate processes

Question 25

Customized review
panels are a tool that can be applied in the context of ILIA, where …

Answer 25

selected community members, leadership, and/or staff are tasked with deep engagement throughout an assessment to ensure that the team involved – and the work they produce – understands
and incorporates Indigenous values, interests, and principles

–> (CEAA) and (EAO) would coordinate their assessments by preparing a joint federal comprehensive study/provincial assessment report. However, the project still required separate EIA decisions by federal and provincial decision-makers

Question 26

policies can be applied to
guide compliance with or facilitate the implementation of existing laws.

Development of land use and consultation policy is increasingly being used as
a tool by IGBs to communicate their governance and implement Indigenous legal orders and systems in
practice

Answer 26

Policy provides guiding principles,
values, and intent that outline expectations for consistent decision-making and allocation of resources to
specific issues or situations.

Land use and consultation policy
developed by IGBs can be used to reflect and implement jurisdiction and land use decision-making
authority, providing a tool for articulating expectations
for how IGBs expect to be recognized and interacted with by Crown governments

employed for articulating the jurisdictional boundaries
and rights-based criteria for when ILIA is required.

Land use and consultation
policy also provides a framework for transparent and
consistent decision-making prior to the start of an
assessment, rather than a process which is ad-hoc on
a project-by-project basis.

By establishing a guiding
consultation and land use policy for ILIA, consistent
procedures for decision-making are communicated to
the Crown and proponent who will be engaging with
ILIA

wanted to use the TWN assessment in parallel to the Crown assessment as a basis
for a government-to-government discussion and to
help reconcile the conflicting views TWN and the
Crown held towards the project, but this did not
occur.

–>no process in place for engaging with Indigenous Nations as separate jurisdictions and received the
TWN Assessment as a ‘traditional land and resource use study’, without addressing or acknowledging the application of TWN laws and jurisdiction enacted
through the review and rejection of the project

Question 27

Impact and benefit agreements (IBAs) as legally binding arrangements between IGBs
and proponents to …

Answer 27

establish compensations and benefits that Indigenous governments and their communities will receive in exchange for their support for
a project proposal

tool by
which IGBs can negotiate compensations that provide
positive impacts. Proponents often use IBAs as an indicator of Indigenous consent to the project

Question 28

Land use plans can be used by Indigenous Nations and
their communities to …

Answer 28

predict and accommodate
a multitude of human impacts, while simultaneously
articulating a vision for land uses within their territories

Visions of land uses articulated through Indigenous land use plans often incorporate the collective social, cultural, economic, and
ecological components of the environment as
a continuation of the practice of both affirmed and
asserted Aboriginal rights and title

Land use plans can be
a powerful statement in dealing with provincial and
federal governments within an EIA context, as they
help assert land governance and self-determination,
control how natural resources are managed, and
articulate values about land and water use