Traditional Ecological Knowledge and the Law: The Canadian Case (Part II)

Wednesday, December 12, 2018
Cynthia R. Harris

Staff Attorney; Director of Tribal Programs; Deputy Director of the Center for State, Tribal, and Local Environmental Programs

Continuing from ELI’s December 10 post on the legal authorization and applications of TEK in the United States, today, we explore incorporation of TEK into Canadian law.

Around the world, decisions impacting indigenous peoples’ traditional territories historically have been made without the participation, input, and consent of the indigenous communities themselves. Natural resource management relied solely on Western science, excluding rich knowledge gained over centuries of direct experience and practice.

This is changing, thanks to activism, advocacy, and a growing acknowledgement of indigenous rights—along with recognition of the value of traditional ecological knowledge (TEK) in developing sustainable practices and promoting sound resource management.

Yet, formal law can be slow in adapting to changing trends, particularly where skeptics continue to resist leveraging TEK in environmental decisionmaking. This post continues our exploration of the current legal and institutional mechanisms that facilitate incorporating TEK into environmental review, pollution prevention, and natural resource management. We also ask: What changes and opportunities are on the horizon?

TEK, Eh?

Let’s turn to Canada as a case study. Canada has made recent strides in embracing TEK—although there is still much to do. This discussion focuses on how federal statutes and treaties governing environmental assessment and wildlife management incorporates TEK held by Canada’s First Nations, Inuit, and Metís. We also look at how TEK can drive establishment and stewardship of protected areas.

Canadian landscapeIn evaluating the law, we consider two aspects. First, is there a requirement to incorporate TEK? Second, what is the scope of TEK incorporation? The second inquiry is key to understanding how much weight TEK is given, particularly when compared to Western scientific information.

First, a Note on Consultation

We set the stage with a brief explainer on the common-law duty of consultation—critical to understanding federal/indigenous relations in Canada.

This duty is grounded in the “honour of the Crown,” and is a necessary step toward the ultimate goal of reconciliation: both between the Crown and Canada’s indigenous peoples as sovereign governments, and between the rights of indigenous peoples and the rights held by other interests. Governmental authorities are obliged to consult treaty-rights holders in good faith before adopting any measure susceptible of negatively affecting the treaty holders’ rights. The basic framework of the duty to consult and accommodate is laid out in the 2004 companion cases before the Supreme Court, Haida Nation v. British Columbia and Taku River Tlingit First Nation v. British Columbia. Consultation provides a structure for incorporating TEK into assessing potential environmental impacts of a proposed federal action on land and resources to which indigenous parties have recognized or claimed rights.

TEK in Environmental Assessment: Mandatory or Discretionary?

Canada’s Parliament is currently in the midst of updating the statutory framework for environmental impact assessment—with TEK auditioning for a larger role under the proposed new regime.

The Canadian Environmental Assessment Act of 2012 (CEAA) requires federal authorities—departments, agencies, and Crown corporations—to conduct environment assessments of certain “designated projects” before project proponents can carry them out, and before a government agency may take any action (such as issuing a license or permit) necessary for a project to proceed.

The first step is screening a project to determine if the CEAA applies. If so, the responsible agency (or a substituted jurisdiction or a review panel) conducts an assessment that culminates in a report. The final decision rests with the Minister of the Environment and Governor in Council: whether a project would have significant adverse effects and, if so, whether such impacts are justified. Environmental assessment includes certain impacts on indigenous peoples—health and socioeconomic conditions, physical and cultural heritage, current use of lands and resources for traditional purposes, and items of historical, archaeological, paleontological, or architectural significance.

The entity conducting the assessment has discretion to take into account aboriginal traditional knowledge. As the CEAA puts it, “[t]he environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge.” General provisions also permit the use of any available information.

The House of Commons passed the Impact Assessment Act (Bill C-69) (IAA) this past June. The IAA proposes repealing and replacing the CEAA. It would consolidate most assessments under a new Impact Assessment Agency and introduce a broader public interest test—and the public interest factors would include any impact on an indigenous group and any adverse impacts on the rights of indigenous peoples. The assessment process would go beyond a designated project’s environmental effects to include health, social, and economic impact, as well as gender-based impacts and long-term impacts on indigenous peoples. The IAA would require more cooperation with indigenous peoples for review and advice, and greater consideration of Indigenous Knowledge (IK).

Significantly, the IAA would mandate consideration of impacts on the rights of Canada’s indigenous peoples and of IK provided during the assessment process. The assessing entity would also be required to consider assessments conducted by or on behalf of an indigenous governing body or jurisdiction; these assessments could incorporate IK. The resulting report must set out how, in determining a designated project’s likely effects, any IK provided was taken into account and used; this is also required for agencies and committees conducting regional and strategic assessments. However, the Minister or agency would still determine the scope of each factor taken into consideration during assessments.

The IAA proposes new protections on IK used in impact assessments. This is critical, because records—including scientific information received from proponents and federal authorities—would be posted to the Canadian Impact Assessment Registry. IK holders are concerned their knowledge could be exploited (such as for commercial gain), misused, or misunderstood. The IAA would prohibit IK disclosure without written consent, subject to three exceptions: where the IK is publicly available, where disclosure is “necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings,” and where it is authorized in the prescribed circumstances. In the second situation, the IK holder must be consulted and conditions may be imposed on disclosure. Disclosure may be forbidden, even where these exceptions apply, if it would cause “specific, direct and substantial harm” to a person or indigenous group.

The Canadian Bar Association issued a set of recommendations and critiques on the IAA. The CBA cautioned against “integrating” scientific information and traditional knowledge, advising that equal weight be given to both systems. The CBA further recommended that disclosing IK under the second assumption should be limited to the proponent, and that any conditions should be subject to input from the IK-holding community, allowing the IK holder to withdraw their evidence if dissatisfied with the terms of disclosure.

What if an indigenous group wishes to challenge an assessing entity’s failure to comply with the IK requirement under the proposed IAA? Recent case law states that assessment reports themselves are not justiciable. Plaintiffs would need to challenge the decision of the Governor in Council, who relies on the presumably defective report.

The decision rendered this year in Tsleil-Waututh Nation et al. v. Canada arose out of the proposed expansion of the Trans Mountain Pipeline System, which required assessment under both the CEAA and the National Energy Board Act. The National Energy Board’s report recommended the Governor in Council approve expansion of the Trans Mountain Pipeline system. The Governor in Council accepted the Board’s recommendation and issued an Order in Council directing the Board to issue the necessary certificate of public convenience and necessity.

Several indigenous governing bodies and two municipalities applied for judicial review of the Board’s report and the Order in Council. The judge held the federal government failed to fulfill its duty to consult but stated that Canadian law did not permit challenging the Review Panel’s report under CEAA. The reports constituted a set of recommendations, lacking independent legal or practical effect. However, the plaintiffs could seek remedy in challenging the decision of the Governor in Council.

Species at Risk: Advising on Animals

The Species at Risk Act (SARA) governs Canada’s process for assessing a species’ status. A species at risk is designated as extirpated, endangered, or threatened, and the federal government implements conservation measures through a combination of critical habitat protection, restoration, and prohibitions on certain activities.

SARA incorporates TEK in two ways. The first is through specialized subcommittees that provide input into selecting and classifying candidate species. The second is through the compilation of status reports, which are used to inform the classification of each species.

caribouThe Committee on the Status of Endangered Wildlife in Canada (COSEWIC) plays a key role as the main advisory body to the Minister. COSEWIC’s major function is to assess the status of a species, to identify existing and potential threats to that species, and to classify the species for the Minister’s consideration. Member expertise may be drawn from aboriginal traditional knowledge (ATK). COSEWIC includes the Aboriginal Traditional Knowledge Subcommittee (ATK SC), whose chairperson and members are appointed by the Minister after consultation with aboriginal organizations. Notably, COSEWIC developed ATK guidelines, with a particular focus on the ethics of gathering and using ATK.

Along with the Species Specialist Subcommittees, ATK SC identifies candidate wildlife species (noting that any person may apply to COSEWIC for an assessment). COSEWIC (or a contractor) then compiles all available data, knowledge, and information in a status report, a summary of the best available knowledge that, under SARA, includes ATK. The draft and interim reports are distributed to several parties, including any relevant Wildlife Management Boards (indigenous/federal co-management bodies) and ATK SC. ATK SC reviews and comments upon the ATK content of draft reports.

COSEWIC then classifies the species: either placing it in an at-risk category, determining there is insufficient information to make a classification, or deciding the species is not currently at risk. If COSEWIC recommends listing the species, the Minister or Governor in Council (on the Minister’s recommendation) may amend the list by adding, removing, or reclassifying a species. The Minister institutes recovery actions for classified species. These include Action and Management Plans, which the Minister prepares in cooperation with wildlife management and indigenous organizations directly affected.

Collaborating on Conservation: Co-Management Agreements

The CEAA may be supplanted in whole or part by environmental impact assessment regimes created under comprehensive land claims agreements. This brings us to co-management bodies formed by these agreements.

What are land claims agreements? U.S. readers familiar with the Alaska Native Claims Settlement Act are ahead of the class—ANCSA served as a template. Land claims agreements are coterminous with treaties. In fact, they are considered “modern” treaties under Section 35 of the Constitution Act of 1982, which recognizes and affirms existing aboriginal and treaty rights, including those under land claims agreements.

A key motivation for indigenous and federal parties to enter in land claims agreements is settling title to lands claimed by both and over rights to both lands and resources, particularly after the 1973 Calder et al. v. Attorney-General of British Columbia decision recognizing aboriginal title. Also significant is the desire to promote indigenous self-government and economic, social, and cultural independence and self-sufficiency. More conceptual is the goal of reconciling preexisting indigenous sovereignty with the sovereignty of the Crown.

Canada and its indigenous peoples executed the nation’s first land claims agreement in 1976 with the James Bay Cree Agreement, which settled claims to aboriginal title in Northern Quebec. There are currently 29 comprehensive land claim agreements settled in Canada; a number of more recent agreements were combined with self-government agreements.

Land claims agreements, like their treaty progenitors, involve indigenous claimants renouncing some or all of their traditional title to the claimed territory as part of an agreed-upon exchange. Indigenous beneficiaries, in return for renouncing traditional title, typically receive fee simple title to portions of land traditionally used and occupied, exclusive or priority hunting, fishing, and trapping rights, and financial compensation.

Land claims agreements often establish co-management bodies that advise the federal government or share in decisionmaking about wildlife management, and that collaborate in carrying out environmental review of proposed development projects. Co-management boards usually are filled by an appointed chair and an equal number of indigenous and government representatives.

As an example, let’s take a look at the Inuvialuit Final Agreement (IFA), which created the Inuvialuit Settlement Region (ISR) in 1984. The IFA established two co-management bodies to screen and review projects.

The first is the Environmental Impact Screening Committee (EISC), which determines whether projects are likely to cause significant negative environmental impacts. The EISC refers such projects to the Environmental Impact Review Board (EIRB), which renders a final recommendation based upon review of an environmental impact statement (EIS). This process occurs separately from any environmental assessment mandated under the CEAA or any other applicable statutes, although the EISC determines whether a project is subject to a sufficiently adequate governmental environmental review process. In either case, the federal government makes the ultimate decision on whether the development proceeds.

Both the EISC and EIRB utilize TEK in reviewing proposed projects, as described in their guidelines, which specifically define TEK as “the knowledge, innovations and practices of the Inuvialuit and other aboriginal peoples embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.” The EISC Guidelines advise proponents to gather relevant local and traditional knowledge as part of public engagement, and direct them to the local Hunters and Trappers Committee as an appropriate source. Screening Panels treat equally submitted information and advice that is based on science, local knowledge, and traditional knowledge. The EIRB expects developers to demonstrate how TEK influenced the planning, design, and implementation phases of their proposed development, and how they partnered with TEK holders to improve the proposal.

Leading the Way: Protected Areas

TEK today also drives the formation of protected areas.

The Anguniaqvia niqiqyuam Marine Protected Area (ANMPA) is Canada’s largest Arctic MPA, an ocean region under special protection covering 2,400 square kilometers of critical beluga habitat. Most notably, ANMPA is the first Oceans Act MPA to have a conservation objective based solely on traditional and local knowledge.

A new development in Canada is Indigenous Protected and Conserved Areas (IPCAS), which offer the same protection as a National Wildlife Area. The federal government hopes IPCAs will assist Canada in meeting Target 1 of its 2020 Biodiversity Goals and Targets, which the nation adopted in 2015 in response to the Aichi Targets, a set of 20 global biodiversity targets. IPCAs represent, among other things, “a modern application of traditional values, Indigenous laws and Indigenous knowledge systems.”

This October, Canada and the Dehcho K’éhodi designated Edéhzhíe, Canada’s first Indigenous Protected Area—14,000 square miles of mineral-rich land, home to boreal forests and species at risk. Edéhzhíe will be managed by a consensus-based management board, comprised of federal and indigenous members. Guardians from the Dehcho First Nations, under the Dehcho K’éhodi Stewardship Program, are responsible for much of the monitoring and management, and combine traditional knowledge with western science in their activities.

Next Steps: Keeping Tabs on TEK

Canada has taken steps beyond those of its southern neighbor of acknowledging—even proposing to mandate the use of—TEK in key environmental statutes and treaty provisions. First Nations, Inuit, and Metís have a greater voice in environmental decisionmaking impacting the land and resources that they have inhabited, utilized, and effectively managed for generations.

But the proof, as they say, is in the pudding. Notably, the duty often is to consider TEK under both CEAA and SARA, and the federal government retains the ultimate say over most decisions. Co-management institutions and recent endeavors to establish protected areas bring indigenous and federal agencies together at the table as partners—but again, the final decision rests with the federal government. And while black-letter law may spell out requirements, on-the-ground implementation depends to a great degree on the regard and respect agencies have for TEK—and the continued advocacy and activism of indigenous groups.

Canada’s future holds great opportunity for TEK in environmental decisionmaking. Much depends on whether the IAA is enacted and in what form, Canada’s commitment to involving indigenous groups in species conservation, and whether momentum continues for TEK-driven establishment of protected areas. Just as significant are protections against the misuse and misappropriation of TEK, an ongoing challenge for indigenous peoples across the globe.

All eyes are upon our northern neighbor.