Indigenous peoples require unique consideration within the impact assessment framework. Commonly, development projects occur in territories that are occupied for traditional lifestyles of the indigenous people; development projects will have significant impacts on their daily lives. Impact assessment must effectively consider the impacts the project will have on these communities.
Indigenous communities possess Traditional Knowledge (TK) which can augment scientific data related to the development project and the identifications of impacts. TK is particularly significant because it is inter-generational information that has come from societal living in an environment that utilizes resources in a sustainable and spiritual manner. More and more, TK is being recognized as an integral component of development projects. TK can provide further insight into potential impacts.
Indigenous communities rely on a unique relationship with the land and resources. They require a healthy environment in order to sustain their cultural, economical, political and spiritual aspects of their lives. Projects located within or near indigenous communities will need to proactively consult the communities impacted by the project. This may involve extensive communication strategies, developing agreements such as Memorandums of Understanding (MOUs) or Impact Benefit Agreements (IBAs), and developing mitigation measures related to indigenous concerns. Requirements regarding prior informed consent of indigenous peoples cannot be considered as being achieved through environmental assessment processes.
Historically, indigenous peoples have been subject to surrender and assimilation in relation to their traditional territories and development. More recently, indigenous communities are recognizing the importance of participating within development projects in order to ensure their traditional lifestyles are sustained and that project impacts are adequately mitigated. Various fora within impact assessment provide opportunities for indigenous participation. Most often, indigenous communities directly affected by project development, require special consideration, over and above considerations provided to the general public.
Quebec – James Bay and Northern Quebec Agreement (JBNQA)
In Canada, specifically in Quebec, the James Bay and Northern Quebec Agreement (JBNQA) provides the regulatory regime for environmental and social protection within the Eeyou Istchee Cree territory. While the Canadian (federal) and provincial governments each have legislation stipulating environmental assessment processes and requirements, the JBNQA is unique as it was the first piece of legislation within Canada to identify a specific environmental and social impact assessment process. Lajoie and Bouchard (2006) state that “the JBNQA and its environmental and social protection regime were approved, given effect and declared valid by an act of the federal Parliament almost 30 years ago. The procedure set out in the JBNQA therefore takes precedence over all federal legislation”. The JBNQA is perceived as a modern treaty tied to the Canadian Constitution and identifies responsibilities of the Government of Canada, the Government of Quebec and the Indigenous people living within the 900,000 km2 territory. The Cree of Northern Quebec are one of the indigenous groups who were signatories to the JBNQA. The Cree occupy 500,000 km2 in the southern portion of the territory. The JBNQA was signed on November 11, 1975 and includes “various fundamental components including an ‘environmental and social protection regime’ specific to this sub-territory” (Lajoie & Bouchard, 2006); Section 22.
Section 22 of the JBNQA discusses Environment and Future Development Below the 55th Parallel and includes schedules of projects that are subject or exempt from impact assessment. Schedule 1 lists future development automatically subject to assessment, while Schedule 2 lists future development exempt from the requirement for impact assessment. The territory of Northern Quebec has been subdivided into Category 1, 2, and 3 Lands.
- Category 1 lands surround indigenous communities and are for the exclusive use of indigenous individuals.
- Category 2 lands are public lands where indigenous peoples have the exclusive right to hunt, fish and trap.
- Category 3 lands are public lands which indigenous communities can use for their traditional activities.
The JBNQA was signed in 1975, prior to the development of the Canadian Environmental Assessment Act. The regime specifies environmental and social impact assessment enforcing the link between social aspects and the environmental concept. The JBNQA has delineated an impact assessment process that includes federal and provincial avenues, dependant on jurisdictional authority. Projects that require provincial authorization are required to utilize the provincial process outlined in the JBNQA. Similarly, projects that require Federal authorization are required to utilize the federal process outlined in the JBNQA. The JBNQA is a monumental agreement, as it is perceived as the first modern day treaty to be negotiated with Indigenous people in Canada.
Section 22 of the JBNQA was intended to include social aspects within the context of environmental concepts. Within the agreement, “consultation and environmental assessment mechanisms were set up to ensure the Crees’ direct involvement in decisions affecting projects and development. [This meant] consultation and representation of the Crees to ensure protection of their rights and guarantees. Beyond mere public consultation, as it is generally understood, these mechanisms were to give the Crees special status and representation (Lajoie and Bouchard, 2006). The mechanisms identified include Cree representation on joint environmental boards. This clearly provides a forum for the Cree to participate directly in the federal and provincial decision making processes; an authority lacking for many First Nations within Canada and in fact the world over. Cree representatives are appointed by the Cree Regional Authority; an administrative organization representing the Cree First Nation of Eastern James Bay, as recognised in the 1975 Treaty. Although, Cree representation is evident in environmental boards and committees, this should not be construed as replacing public participation practices. Public participation activities are not clearly defined in the JBNQA, however, are still required to inform, consult, and accommodate the concerns of the local community populations (Lajoie and Bouchard, 2006). Comprehensive public hearings for instance were held during the coordinated federal-provincial review of the Eastmain 1A-Rupert River Diversion project between 2003 and 2005, both at the stage of the scoping exorcize, the conformity analysis and the review of impacts.
Beyond environmental assessment, the Crees are entitled to be directly involved in the development of environmental policies and legislations affecting all of their ancestral lands. The James Bay Advisory Committee on the Environment (JBACE) plays a vital role in advising the three governments regarding policies, laws, regulations and measures related to environmental or social consequences for the Cree of Northern Quebec. The JBACE is comprised of representatives of three governments: Canada, Quebec and the Cree Regional Authority. The JBACE is responsible for overseeing the administration and management of the environmental and social protection regime identified in the JBNQA, providing special status and involvement for the Cree in the impact assessment of development projects within the Eeyou Istchee territory. The JBACE ensures that emphasis is placed on the rights guaranteed to the Cree under the JBNQA, which are focused on traditional way of life and traditional land ownership based on hunting, fishing and trapping (JBACE, 2009).
Ashley Iserhoff Presentation to UN Permanent Forum on Indigenous Issues Eighth Session http://www.gcc.ca/newsarticle.php?id=167
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Special thanks to Cheryl Recollet, Environmental Analyst Intern, in collaboration with Ginette Lajoie, for providing initial content for this IAIA Wiki topic.