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Avoiding Indigenous Impact by Failing to Understand: Case Comment on Ref re Impact Assessment Act.

Updated: Dec 7, 2023



This week’s post is a comment on the recent Supreme Court Decision in which the Indigenous consultation provisions of the Impact Assessment Act were held to be outside the jurisdiction of Parliament and, therefore, unconstitutional. For this week’s post, Bex and Michael wanted to highlight how this outcome is based on a difference in worldview.


Western Perspectives

Western perspectives view land as separate from humans. Conversations about land frequently originate by considering the potential for extraction, insofar as the yield can be put to beneficial use. Land is something to be conserved by putting fences around it, establishing wildlife sanctuaries or protected areas. Conservation is an exercise in maintaining a boundary between people and the land they occupy.


Indigenous people are familiar with boundary maintenance as an exercise in so-called conservation. The creation of reserves was another exercise in pulling a boundary from the abstract space in the minds of European men and setting it out across the land. The prevalence of boil-water advisories on reserves is one effect of this imposition that can still be felt today. When land is viewed as separate from people, and racialized people are seen with less humanity, racialized people often end up on a different side of the boundary than white people.


For instance, in 1982, polychlorinated biphenyls (PCBs) were illegally dumped beside a community in Warren County, NC. The selection of this dumping site was chosen based on the racial makeup of the human population. This action led to a federal report that recognized the unequal burden of pollutant exposure as a "subtle and systemic form of racism."[1]


The Brundtland Commission’s definition of sustainable development describes the desire to “meet the needs of the present without compromising the ability of future generations to meet their own needs.”[2] This definition holds more promise of environmental justice on Indigenous peoples’ terms.


Indigenous

Indigenous people are not a monolithic group. The Cree and Dene may have divergent views even though their territory overlaps. That being said, there are some commonalities. Namely, Indigenous worldviews see land as more than just a stage where plants grow, and creatures roam; land is a living network of relationships where the land is viewed as a living relative. One example of this worldview is in the Cree meta-principle wahkohtowin.[3]


Indigenous communities typically hold the belief that the land possesses its own spirit, and by granting it equal significance to their own existence, they demonstrate a deeper level of respect, recognizing the land's inherent soul. This belief triggers obligations to consult and consider the land as a relative. For instance, in the Haida case, Terri-Lynn Williams Davidson’s submissions opened with, “We believe the Trees are our sisters.”[4]


Overlap

The Commission’s definition intersects with the Haudenosaunee Seventh Generation principle, in which the Nation considers how their decisions will impact those seven generations in the future.[b] This principle is rooted in respect, as Nations view the land as something they are borrowing or holding for those yet to be born.[5]


However, the Brundtland definition does not directly inform decision-making, nor does it hold governments accountable like the Seventh Generation principle does.


Even though Indigenous communities hold a profound reverence for the land, Canadian legal principles have historically failed to honour this connection. Recently, the Supreme Court of Canada heard a case that will make Indigenous consultation, and involvement in environmental Impact Assessments unpredictable.



Reference re Impact Assessment

On October 13th, 2023, a decision by the Supreme Court of Canada was released regarding the IAA’s constitutionality.[6]


The IAA authorizes projects with potential for adverse effects under areas of federal jurisdiction cooperatively with other jurisdictions, if said project is in the public interest.[7]


The court, led by Chief Justice Wagner, held that designated projects under the IAA were unconstitutional.


This decision is saturated in the Western conservation-style worldview. Many cases dealing with constitutional matters are brought before the Supreme Court, potentially hindering the implementation of robust environmental protection measures.


The Impact

The IAA decision has introduced an element of doubt into a previously established collaboration with Indigenous Nations. A constitutionally questionable Act fails to adequately protect their rights and could diminish the level of engagement and consultation with Indigenous communities. The overturned provisions of the IAA suggest that required engagement with Indigenous people, law and knowledge systems is constrained insofar as that engagement exceeds what is required by the duty to consult. [8]


Section 91(24) grants the federal government “exclusive jurisdiction” over Indigenous lands.[9] This places the Federal Crown in a dominant position when determining how Indigenous lands should be utilized, now potentially allowing it to disregard Indigenous viewpoints. Yet this dominant position is constrained by Wagner CJ’s vague reading of the scope of s 91(24). It was held that the IAA overshot the scope of s. 91(24) without actually articulating what that scope is. This is a stark contrast to other areas of the decision, where he outlines some of the jurisdictional contours the Federal government must stay within to avoid stepping into provincial jurisdiction.


Wagner CJ’s reasons cite cooperative federalism as an effective mechanism for regulating the environment. But can this really be taken seriously as an effective model when Indigenous partners to confederation are ignored? Provincial governments routinely argue that they are not subject to the same fiduciary obligations as the federal crown, the fiduciary duties did not transfer to the provinces with constitutional authority over natural resources. It is possible (though unlikely) that the parameters in this position will achieve the goals of sustainability and conservation. But this effort to maintain a boundary will stifle approaches that consider the relational nature of land.


Why there is hope

Moving forward together in the spirit of reconciliation requires the coordination of efforts and the thoughtful consideration of all perspectives. Sometimes, hope is hard in this work, especially when understandings of Indigenous perspectives are so limited in the highest court in the land. In order to find hope, we must look to the work of Indigenous people in how they care for the land and for each other.



[1] National report: <https://www.nrc.gov/docs/ML1310/ML13109A339.pdf>; Report of the World Commission on Environment and Development: Our Common Future: <http://www.un-documents.net/our-common-future.pdf>.




[4] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 SCR 511 <https://www.canlii.org/en/ca/scc/doc/2004/2004scc73/2004scc73.html?autocompleteStr=haida&autocompletePos=1>




[7] Impact Assessment Act, SC 2019, c 28, s 1 [IAA]; Physical Activities Regulations, SOR/2019-285.


[8] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 SCR 511 <https://www.canlii.org/en/ca/scc/doc/2004/2004scc73/2004scc73.html?autocompleteStr=haida&autocompletePos=1>


[9] Constitution Act 1867, s 91(24)




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