MAJOR PROJECT OF RECONCILIATION: LOCATING AN INDIGENOUS CONSENT STANDARD WITHIN THE BC ENVIRONMENTAL ASSESSMENT ACT, 2018.

• Author: Friedman, Josh

INTRODUCTION

Rights afforded to Indigenous nations in BC under section 35 of the Constitution Act, 1982 ("section 35") form an incomplete package of governance entitlements and, on their own, are insufficient to entrench Indigenous legal sovereignty into Canadian law. Aboriginal rights under section 35 have not been interpreted by the Supreme Court of Canada (SCC) to contain broad Indigenous self-governance rights greater than the sum of the specific practices, customs, and traditions proven to be integral to pre-contact Indigenous societies under the narrow Sparrow/Van der Peet test. (1) Section 35 Aboriginal title is a proprietary interest lacking express entitlement to legislative authority of a constitutional nature. (2) It is restricted as a vehicle for advancing Indigenous self-governance by the inherent limitations of the land-use rights it confers and is vulnerable to justified Crown infringement. (3) The modern treaty process, under which the Crown confers limited property, self-governance, and Aboriginal rights to Indigenous groups offers significant powers but over relatively confined spatial areas. (4) The Crown's duty to consult and accommodate (DCA) Indigenous nations when contemplating decisions which may affect claimed or established Aboriginal rights or title flows from section 35 to offer procedural protections against Crown unilateralism but fails to ensure consensus is established before Crown actions are taken. (5)

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), (6) binding in BC only insofar as it has been incorporated into domestic legislation or to the extent that it codifies customary international law, (7) has realizable potential to reconcile competing state and Indigenous claims to legal sovereignty. (8) UNDRIP outlines the standards to which Indigenous sovereignty in BC should be elevated and, by applying the norms of international relations to domestic Indigenous-state relations, provides a framework to achieve such elevation. (9) The "sui generis status [of Indigenous peoples in settler states], arising from their prior occupancy... and their continuity with pre-contact communities", (10) distinguishes the nature of Indigenous rights from those of civil rights claimed by other minority groups and arises a need for political resolution of jurisdictional claims. (11) Embedded within the contemporary Canadian constitutional order is a latent and unresolved contest between settler governments and Indigenous nations over legitimate legal authority. (12) Indigenous peoples in BC, subjected to centuries of colonization and forced displacement without clear legal abdication or extinguishment of jurisdiction, have been brought into formal horizontal and vertical jurisdictional relationships with the contemporary state. (13) These relations are "are governed by mechanisms that are recognizably 'quasi-international' in character, bearing many of the hallmarks of international relations". (14) The similarities between Indigenous-state relationships and international relations (though the former's location lies wholly within the domestic sphere, thus creating its inability to trigger the equalizing international norms of sovereign equality and comity) (15) necessitate the development of normalized terms of engagement. UNDRIP, in reconceptualizing Indigenous-state relationships to realize the self-determining rights of Indigenous peoples, strives to allocate greater force of law to Indigenous sovereignty by restraining state unilateralism. (16)

The ability for UNDRIP to advance Indigenous self-determination in BC is especially salient in the context of environmental assessment (EA). Indigenous nations, who often must bear and adapt to impacts of major project development within their traditional territories, (17) have historically been inadequately included in major project decision making and have experienced systemic disregard for their interests and perspectives in EA processes. (18) Principal among the protections available to BC Indigenous groups under UNDRIP, if it were fully implemented in the province, is the requirement for governments to obtain "free and informed [Indigenous] consent prior to the approval of any project affecting their lands or territories and other resources". (19) Section 35 rights per se, including the Crown's DCA flowing therefrom, (20) are non-synonymous with UNDRIP's proclaimed entitlements and fail to satisfy UNDRIP requirements for free, prior, and informed Indigenous consent (FPIC). (21) Moving the Indigenous-Crown relationship in major projects planning beyond mere consultation and accommodation towards true collaboration consistent with an UNDRIP FPIC standard will require proactive EA policies which give greater force of law to Indigenous decision-making systems.

When read in combination with other recent BC legislation, the 2018 BC Environmental Assessment Act (EAA18) signals the provincial government's intention to reconcile inconsistencies between UNDRIP and BC's EA law. (22) EAA18 does not give express force of law to an UNDRIP FPIC standard but instead requires that EA decision makers seek to achieve consensus with Indigenous nations at multiple steps along the EA process. (23) In guidelines issued by the BC Environmental Assessment Office (EAO), the government organization tasked with administering EAA18 (24) consensus-seeking is described as a consultative and informative process focused on dialogue. (25) Consensus-seeking of this type, interpreted by the EAO as being "consistent with the United Nation's interpretation of [FPIC] which emphasizes the importance of the process of dialogue and negotiation over the course of a project from planning to implementation", (26) is claimed to be "foundational to [FPIC]." (27)

As I will explain below, EAA18's novel employment of consensus-seeking terminology in the EA context creates significant interpretive space to define the exact legal contours of this new Indigenous-Crown EA relationship. I seek to guide potential interpretations of EAA18's consensus-seeking mandate by outlining the impetus for EAA18's enactment, highlighting the risk that a narrow understanding of EAA18's consensus seeking mandate could result in a limited departure from the status-quo, and finding a pathway for an FPIC standard to be nested within BC's new UNDRIP-affirming legislation. Positing that any proper construction of EAA18's consensus seeking mandate must arise from Indigenous laws and Indigenous conceptions of FPIC, I conclude that EAA18's consensus-seeking approach requires the Crown to maintain a forum for EA negotiation with the fullhearted intention of reaching mutually consensual agreement with Indigenous nations.

UPDATING THE INDIGENOUS-CROWN RELATIONSHIP UNDER ENVIRONMENTAL ASSESSMENT

From the BC government's perspective, the 2002 BC Environmental Assessment Act (EAA02) (28) created significant legal uncertainty regarding the defensibility of EA decisions. EAA02 EA, an already imperfect vehicle through which to implement the DCA, (29) excluded Indigenous perspectives and fostered dissatisfaction among Indigenous groups by failing to adequately understand or address their concerns in major projects development. (30) This discontent fuelled the appeal of EA decisions by Indigenous groups on section 35 grounds. The Crown, attempting to meet bare minimum DCA requirements but unable to pronounce upon the scope or existence of section 35 rights, could not determine whether they had adequately discharged the DCA and did not know if their decisions met the minimum requirements to survive judicial review. (31) They were thus making decisions which were at risk of being overturned, (32) necessitating the creation of highly defensible Indigenous consultation records to support EA decisions.

EAA18 attempts to reduce EA's legal uncertainties by advancing Indigenous reconciliation (33) and mandating a consensus-seeking approach to the Crown's relationship with Indigenous communities. (34) When introducing EAA18 for its first reading in the BC Legislative Assembly as Bill-51, Honourable Minister of Environment and Climate Change Strategy George Heyman proclaimed that the changes to the EA framework:

focused on enhancing public confidence, transparency and meaningful participation; advancing reconciliation with Indigenous nations, including supporting the implementation of the United Nations declaration on the rights of Indigenous peoples in the act through environmental assessment processes; and protecting the environment while offering clear and efficient pathways to sustainable project approvals. (35) Reading Bill-51 for a second time in the BC Legislature, Minister Heyman reiterated that his government intended for EAA18 to:

reduce the uncertainty and consequent expenditure by project proponents [through] the early engagement phase and [ensure] that what needs to be addressed in a project design is identified early, before a lot of money is spent, before suspensions of the process are asked for and granted, and then proponents have to go back and redesign a process almost from stage one... We want to reduce uncertainty by requiring the environmental assessment office to seek consensus with Indigenous nations at numerous points throughout the process. We believe that by this consent-based process that involves both the environmental assessment office and the proponent, we will build lasting and durable project certainty, as well as partnerships with Indigenous nations. (36) Statutory requirements for the Crown to employ such reconciliatory tools as consensus-seeking, if they exceed the Crown's minimum DCA requirements, would reduce the grounds on which to appeal EA decisions and thus reduce uncertainties regarding their legality.

EAA18 also contains other reconciliatory provisions which have potential to make EA decisions more mutually agreeable between the Crown and participating...