Tansi Nîtôtemtik,
Today, we talk about Canada’s new impact assessment legislation and its potential to positively influence the missing and murdered Indigenous women and girls (MMIWG) crisis.
According to the Native Women’s Association of Canada (NWAC), while impact assessments cannot solve the epidemic of violence, they can “play a pivotal role” in reducing violence.[1]
When the final report on MMIWG was released in 2019, it directly linked the MMIWG epidemic and the resource extraction industry. The report provided substantial evidence that some characteristics of the resource extraction industry, like rotational shift work and transient workers, can exacerbate violence against Indigenous women and girls.[2] Having transient workers driving up and down the highway of tears in British Columbia, unchecked and unmanaged for many years, without cell coverage, comes to mind as a perfect example.
The MMIWG final report has several calls to action speaking to resource development.[3] Call to action 13.1 calls upon all resource extraction industries to consider the safety and security of Indigenous women, as well as their equitable benefit from development. Call to action 13.2 calls on all governments (or mandated bodies) to complete gender-based socio-economic impact assessments on all projects prior to approval. Call to action 13.5 calls upon industry and all governments and service providers to anticipate higher demand for social infrastructure, such as policing, social services, and health services, due to projects, and for mitigation measures to be identified as part of the planning and approval process.
Canada’s new Impact Assessment Act came into force on 29 August 2019.[4]
The new legislation brings sweeping changes to how impact assessments are conducted on designated projects in Canada. This includes significantly expanding the scope of impact assessments on major projects.[5] If done properly, these changes can ensure that the impact of projects on Indigenous women are contemplated, and that Indigenous women’s knowledge is considered in some decision making.[6]
In addition to environmental effects, the new framework requires that impact assessments consider the positive and negative effects of projects on economic, health and social conditions.[7] Other new factors for consideration include any concerns raised with respect of Indigenous cultures, any assessment of the effects of the project conducted by Indigenous governments, and the intersection of sexual and gender with other identity factors.[8] It is now also mandatory to consider Indigenous knowledge.[9]
While only time will tell how successful it is, Canada’s new impact assessment framework seemingly codifies many of the MMIWG calls to action.
The new legislation has been criticized by provincial governments and found to be unconstitutional by Alberta’s Court of Appeal (ABCA). In its 2022 decision, the ABCA said the legislation is a “clear and present danger” to Canada’s division of powers.[10]
The ABCA found that the new framework’s new power to consider a wide range of economic, social, cultural and heritage impacts, or “the entire biosphere known to mankind … [and] all aspects of human life within [it]” is simply too untethered from federal heads of power to be constitutional.[11] It was particularly concerned that the federal minister can now use these broad powers to require impact assessments of projects that do not require any other federal permits or approvals to go ahead otherwise.[12]
The ABCA also rejected the idea that the federal government could rely on section 91(24) of the constitution (giving the federal government exclusive authority over Indians and lands reserved for Indians) as a head of power giving it authority to review “any effect”, positive or negative, on the economic conditions of Indigenous groups, or impacts to the use of lands and resources for traditional purposes, anywhere in a province.[13]
The federal government has asked the Supreme Court of Canada (SCC) to rule on the constitutionality of the new legislation, commonly referred to as Bill C-69.[14] If ruled constitutional, it will likely be seen by many as a win for Indigenous women.
Until next time,
The Reconcili-ACTION YEG Team
[1] Native Women’s Association of Canada, “Indigenous Women and Impact Assessment Final Report” (March 2020) at 42, 47, online (pdf): Government of Canada <https://www.canada.ca/content/dam/iaac-acei/documents/research/nwac-impact-assessment-final-report-en.pdf> [NWAC].
[2] National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the Inquiry into Missing and Murdered Indigenous Women and Girls, vol 1a (Canada: National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019) at 584, online: <www.mmiwg-ffada.ca> [https://perma.cc/38A2-3PZC]; see also Emilie N. Lahaie & Grace Wu, Called to Action: Impact of the National Inquiry into Missing and Murdered Indigenous Women and Girls on the Resource Extraction Sector in Key Developments in Aboriginal Law Vol.2 by Thomas Isaac (Toronto: Thomson Reuters, 2021) at 1.
[3] National Inquiry into Murdered and Missing Indigenous Women and Girls “Calls for Justice” (2019) at 196, online (pdf): National Inquiry into Murdered and Missing Indigenous Women and Girls <www.mmiwg-ffada.ca> [https://perma.cc/HB6V-NJTS].
[4] Impact Assessment Act, SC 2019, c.28, s.1 [Impact Assessment Act].
[5] Martin Z Olszynski, Environmental Law and Policy, 4th ed by Tilleman et al (Toronto: Emond, 2020) at 455.
[6] NWAC, supra note 1 at 5.
[7] Impact Assessment Act, supra note 4 at s 22(1)(a).
[8] Ibid at ss 22(1)(l), 22(1)(q), 22(1)(s).
[9] Ibid at s 22(1)(g).
[10] Ref re Impact Assessment Act, 2022 ABCA 165 at paras 3-4, 6 [Ref re Impact Assessment].
[11] Ibid at para 16.
[12] Ibid at para 15.
[13] Ibid at paras 231, 301-316, 443.
[14] Meghan Grant, “Supreme Court asked to rule on environmental impact legislation after Alberta ruling” (7 July 2022), online: CBC <www.cbc.ca> [https://perma.cc/YS2Y-5FZE].