ENVIRONMENTAL ASSESSMENT UNDER

ABORIGINAL LAND CLAIM AGREEMENTS

FEBRUARY 23, 2012

Overview

• Historical Overview of Treaties

• Modern Treaties (Claims Agreements)

• Land Claims EA Regimes after JBNQA – Inuvialuit Final Agreement– Dene First Nations Agreements (MVRMA)– Yukon First Nations Agreement (YESSA)– Nunavut Inuit Agreement – Labrador Inuit Agreement

• Application of CEAA

First Nations Treaties

First Nations Treaties• Royal Proclamation of 1763• Friendship treaties• Southern Ontario/Robinson treaties • Numbered treaties • Most purported to surrender aboriginal title• Established small land reserves• Provided harvesting rights to unoccupied

Crown Lands• Governance by Indian bands under Indian

Act (minor environ. role)

Modern Comprehensive Claims

Comprehensive Claims Agreements

• Modern era of aboriginal claims settlement dates from 1973 Canada policy

• Comprehensive vs. specific claims • Comprehensive claims based on assertion

of continuing Aboriginal rights and/or title to lands and natural resources

• Achieve certainty of land tenure through surrender of title to Crown (recent approaches differ)

Comprehensive Claims Agreements

• Agreements provide rights and benefits (title to some land, rights to other lands, financial benefits, joint management regimes for resources

• Joint management (co-management) regimes (wildlife, water, land use planning and management, environmental assessment)

Environmental Assessment under MVRMA

• MVRMA enacted in 1998 following completion of land claims agreements with Gwich’in, Sahtu Dene, later Tlicho Dene

• Mackenzie Valley Environmental Impact Review Board - co-management EA board

• Seven or more members appointed by Minister, half (excluding chair) nominated by aboriginal groups, four by governments, chair nominated by Board s. 112

Purposes

• Establish Review Board as main instrument for EA in Mackenzie Valley

• Ensure environmental impact of developments carefully considered before actions taken

• Ensure concerns of aboriginal people and general public are taken into account

s. 114

Guiding Principles

• Timely and expeditious

• Have regard to: – protection of environment from significant

adverse impacts of developments– protection of social, cultural and economic

well-being of residents and communities– Importance of conservation to well-being and

way of life of aboriginal people s. 115

Preliminary Screening

• Applies to proposed developments requiring permit by Mackenzie Valley Land and Water Board or other regulator s. 124

• Quick review of application to determine if project might have significant adverse impacts on environment or be of public concern s. 125

• If yes, refer for EA by MVRMB• If no, issue permits

Environmental Assessment

• EA by MVRMB a more thorough study to decide if development likely to have significant adverse impacts on environment, cause public concern s. 126

• If yes, MVRMB may recommend Minister issue permit(s), issue permits subject to mitigation measures, or reject s. 128

• Alternatively, MVRMB or Minister(s) may order panel review s.129, 130

Environmental Impact Review

• Review conducted by an independent panel, consisting MVRMB and non-MVRMB Board members

• Review provides more focused study of issues raised during EA s.132

• Review panel issues report with recommendations to federal Minister, responsible Ministers, regulatory agencies for decision s. 136, 137

Application of CEAA

• Minister may refer a project to a panel review under CEAA where in national interest s. 130

• Otherwise CEAA does not apply in Mackenzie Valley s.116

Yukon Environmental and Socio-economic Assessment Act

Purposes•Provide a comprehensive, neutrally conducted assessment process •Require consideration of environmental, socio-economic effects before projects undertaken •Ensure projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend s. 5

Application of CEAA

• Minister may refer a project to a panel review under CEAA s. 62

• Otherwise CEAA does not apply in Yukon s. 6

Trends in Aboriginal Claims EA

• EA regimes co-managed with aboriginal communities

• Assessing sustainability, nor just environmental effects

• CEAA doesn’t apply except for large, transboundary projects