INDG. CONSULTATION

UNDRIP parts and how it reates to EIA

not formally binding, just a instrument that sets up minimum standards of wellbing for IP

• free prior and informed consent

  • govs shall consult and coperate in good faith, gaining consent before approving projects

Constutuion s.35

• has legal teeth

• Affirms the exisitng aborignal and treaty rights of aboriginal peopls of cnada - bed rock is consultation.

• baked into IAA 2019- act itsef, one of the factos that must be considered is the impact of the rights of IP - key purpose of act is to promote communiaction with IP and ensure EA thakes into account IK

• You cant do a EA without consultation of Indingeipous poeples

practical imperatives

• informed project design

  • feedbaack = more sustainble project

• new knowledge

  • understand potential imapcts from indingeous perspective

• innovation mitigiation

  • collabrate to find solutiosn to adverse impacts

• incresed legimacy - social licence

DUTY TO CONSULT

most important leegal concept

• a formal legal oblication that rest with the government -

• a legal duty,e ssgablished by the courts based on s. 35 of consittuion

duty to consult trigger and goals

• trigger

  • when crown action ( like project approval)may adversely impact potential or established aboriiginal or treaty rights

• goal

  • To adress the concerns of the affected group and if theres a serious poetneial for impact, then crown has a duty to ACCOMDATE THOSE CONCERN

what isnt DTC

• a veto power

• a duty to reach an agreemnt

• an obligation held by the proponent

  • its the crowns but propoents are given procedural aspects

EA engagment and DTC

• see a large practical overalap 

• EA

  • focus - values and environomental protection

  • goal = find balance, mange techn. impacts and inform project design

  • Q- what are the impacts of my project

• DTC

  • focus = rights and crown reconcilation

  • goal= roconcile indigneous pre-existence with crown sovernighty

  • Q- how do the impacts of the prject infringe on Indingeous rights to land and resoruces and how can we accomdate that infringment

Propoents ask technical questions

Duty to consult - Not about the technical -- but a constutional one

Indingeous and local knowledge (ILK)

cumulative body of knowedge evolving by adaptive processes and handed down through genratiosn bu cultura transmision about the relathonsp of living bings with one anothe rand thier infiroment

epistomolgoies vs ontologies

• epis

  • how you know and interact wiht the world

• ontologies

  • ways of being in the world

  • Deeply held, ontotlogies of how the world is and how it works, and is bieng transmitted often through oral traditons, for time in memorial

• ILK not just another opinion, its a differnent way of understanding the world

benefits of using ILK

• functions at differnt spaital and temporal scales

• capture longperiods of enviormental observation - INTERGENEARTIONAL

• can validate scientific data

• provides crucial understanding of the sig. of impacts and how they accumulate

challenges of meaniguful engagment for indingeous peoples

• late timing - go to nations with draft of EA = consult not coplanning,

• misalighned expecattions 

  • Propeont wants ot deal with the project, the indigneous community wants to deal with systemic issues realted to the project

• limited capcity -

  • Size and technical complexity of EA’s creates sig. barriers

• particaption fatigue

  • many problems and projects- Communites face an overwhelming number of demands, requireing time and resources

results of late engagment

• decisosn on project already made - desing, location, and mitigation

• IP react to predetermine plan rather than coplan

process becomes negative and feels DISTRUSFUL

Results of misaligned expectations

• The community being consulted brings much bigger, fundamnetal and systemic quesitons,

• single project scope is small

  • issues like land titile, treaty implentation, cum. effects are beyond scope

• these issues are larger land use, policyu and constituional issues

communites feel thier most important, systemic concerns are being ignored

results of limtied capacity

• lack fincial, tehcnical and human resoruces to menaigully particapte

• cant conduct thier own traditional use studies

• cant hire indpendnet legal and technical experts

• cant engage indata collection, analyssi and regulator hearings

result of particaption fatigue

capicty constrainst are exasturabed by large number of simulantoeus projects

• communties orverwlmend and requiring more time and resources

solution of gov. leadership - most important

• misaligned expectations

  • Gov. must lead on stragetic rights based issues BEFORE PROJECT SPEICIFC EA BEGINS

    • Handle issues in the approporitate venue

  • Crown has to step up before a proepoent does- has to stop down loading this process

  • ex.s

    • conduct land use planning

    • complete traditonal use studies before pronents aply

    • claify crown vs propoent roles

soluton of early planning

• adreses late timing

  • engage communties in EA planning process

  • co develop ToR

= effiencent and mutallys upported process where values informe the EA from the beginning

solution of providing resources

• adresses limited capcity

  • give particpnt funding so communties can engage and hire indpenent experts 

• ADRESSES ACESS TO INFORMATION

  • info must be accesible no tjust avialbe- provide plain language summaries

solutin of continued engagment

• adresses distrusut

  • menaiful engament has to continue after prject aproval

    • requies fuding to cntiue past the decsion point

  • INVOLVE COMMUNTIS IN ROLE IN ONGOING MONITORING AND FOLLOW UP