Let’s talk Indigenous Impact Assessment Co-Administration Agreements

Preamble

Indigenous Peoples have constitutional rights reflected in section 35 of the Constitution Act, 1982, which recognizes and affirms Aboriginal (inherent) and treaty rights. We are aware that historical and ongoing colonization of the environment, natural resources, and Indigenous lands have negatively impacted the rights of Indigenous Peoples. The Impact Assessment Agency of Canada (IAAC) is required as legislated in the Impact Assessment Act (IAA) to

• Promote cooperation with Indigenous Peoples of Canada with respect to impact assessments; and
• Ensure respect for the rights of the Indigenous Peoples of Canada as recognized and affirmed by section 35 of the Constitution Act, 1982, during impact assessments and decision-making under the IAA.

IAAC has emphasized the important role Indigenous Peoples play in impact assessment processes and that the assessment process must acknowledge and respect their Indigenous laws, customs, and governance processes. The assessment process must also be informed by, and aligned with, the Truth and Reconciliation Commission of Canada: Calls to Action and the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).

The Indigenous Advisory Committee would like to acknowledge the commitment and hard work of the Indigenous Circle of Experts and IAAC staff in drafting the discussion paper. We further acknowledge that this paper represents a starting point for dialogue, and we strongly support Indigenous Peoples' engagement on the issues and approaches raised by the topics in the paper. The purpose of the paper is to generate discussion and response on the issues of how IAAC can cooperate with Indigenous Peoples respecting impact assessment, and we believe this discussion is essential to Indigenous Peoples exercising self-determination and building economic reconciliation in Canada for meeting its obligations under the UN Declaration and the stated commitments of the Government of Canada to the Indigenous People of Canada.

Table of Contents

Preamble

Glossary

Executive Summary

1. Introduction

• 1.1 Context
• 1.2 A New Tool in the Toolbox
• 1.3 Considerations

2. Governance

• 2.1 Who Can Enter into a Co-Administration Agreement with the Minister?
• 2.2 Where Would Co-Administration Agreements Apply?

3. Sharing Decision-Making in Impact Assessment

• 3.1 Issues / Objectives / Opportunities
• 3.2 Potential Roles
• 3.3 Review Panels
• 3.4 Cooperation and Coordination with Other Assessment Processes

4. Regulatory and Policy Framework

5. Agreements

• 5.1 How Would Agreements be Developed?
• 5.2 Contents of a Co-Administration Agreement

6. Readiness

• 6.1 Capacity Requirements
• 6.2 Adequate Resourcing
• 6.3 Options for Supporting Readiness

7. Path Forward

• 7.1 The Circle's Perspective
• 7.2 A Roadmap for IAAC

Annex A – Discussion Guide

Annex B: Circle of Experts Members

Glossary

Executive Summary

This paper was co-developed by the Impact Assessment Agency of Canada (IAAC) and a Circle of Experts (the Circle). The Circle is a sub-committee of IAAC’s Indigenous Advisory Committee and is made up of First Nations, Inuit and Métis individuals, as well as experts recommended by Indigenous individuals and organizations. IAAC is grateful for the Circle’s time, expertise and thoughtful discussion in co-developing this paper.

IAAC is committed to delivering high quality, efficient, predictable and timely assessments of designated projects under the Impact Assessment Act (the IAA). Maximizing partnership with Indigenous Peoples is critical to achieving that outcome, and to ensuring alignment with the United Nations Declaration on the Rights of Indigenous Peoples (the UN Declaration).

At the time this discussion paper was being written, the government was developing proposed amendments to the IAA to align with guidance from the Supreme Court of Canada[i]. Hence, certain sections of the IAA that are referenced in this discussion paper might have changed due to the amendments. However, the UN Declaration is and will remain integral to the IAA. The IAA and accompanying policies provide a framework and tools that can be utilized to maximize partnership and leadership by Indigenous Peoples with the aim of securing free, prior and informed consent. Indigenous impact assessment co-administration agreements, as detailed in this paper, would be one tool for working in partnership with Indigenous Peoples to achieve these goals. Specifically, such agreements would facilitate sharing responsibilities and decisions during the impact assessment process with Indigenous governing bodies and other eligible bodies such as co-management boards set up under land claims agreements. Before entering into co-administration agreements, regulations must be in place. The commitment to advance a regulatory and policy framework for co-administration agreements is part of the Government of Canada’s broader priorities.

At present, decisions or recommendations during a federal impact assessment process are made by IAAC, a Review Panel, the Minister of Environment and Climate Change (the Minister), or the Governor in Council, as specified under the IAA. When conducting assessments, Canada actively seeks to cooperate and coordinate with provinces and territories, as well as Indigenous jurisdictions that have existing environmental assessment powers, who are carrying out assessments of the same projects under their own laws. However, only a small number of Indigenous governing bodies currently have environmental assessment powers that are recognized and enforceable in Canadian law.

The IAA provides a new opportunity for Indigenous governing bodies to enter into agreements with the Minister to be considered as jurisdictions for the application of the IAA, and to exercise specific impact assessment powers, duties or functions related to the federal impact assessment of designated projects. Such agreements would not be specific to projects. Rather, they would apply to assessments of any proposed projects on the lands specified in the agreements.

There is a broad spectrum of decisions made throughout the impact assessment process that shape the assessment and the final outcome. They include decisions about the issues that must be addressed, the information that must be collected and whether the information provided is sufficient, how that information is assessed and how it is presented in the impact assessment report, as well as the final determination. The process also involves duties and functions that include consultation with Indigenous Peoples and the public, posting required information to a public registry, and providing the proponent with plans for cooperation with other jurisdictions, within established timelines.

Previously referred to as “Cooperation Agreements”, the name proposed by the Circle for these agreements is “Indigenous Impact Assessment Co-Administration Agreements”. This reflects that, in practice, the Circle and IAAC anticipate that Indigenous governing bodies and the federal government would share decision-making and other responsibilities throughout the federal impact assessment process.

Purpose of the discussion paper and current engagement

A regulatory proposal and accompanying policy framework for co-administration agreements would be developed in cooperation and consultation with Indigenous Peoples, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA), and in consideration of feedback from provinces, territories, industry and other stakeholders.

This discussion paper opens that dialogue, exploring the potential benefits, limitations, and challenges of co-administration agreements, and options for regulations, policy, and other initiatives that would support implementation of this new mechanism.

In co-developing this discussion paper, IAAC and the Circle sought consensus, aiming to work together to find common ground to the extent possible. Where consensus could not be achieved, or where either the Circle or IAAC has not yet formed an opinion on a matter, the views of each party have been set out separately. Where IAAC’s position on a particular matter is not given, it is not meant to imply that IAAC disagrees with the Circle.

The IAA frames what is possible under co-administration agreements. The Circle’s work began after the IAA was already enacted and the parameters of co-administration agreements had been set out in the law. For the purposes of this discussion paper, the Circle has provided guidance on ways to maximize leadership by Indigenous Peoples within the scope of section 114.

The paper is intended to provide a basis for conversation and further engagement to inform next steps and development of IAAC’s regulatory proposal and policy framework.

IAAC is seeking feedback to:

• gauge feasibility and interest in this mechanism,
• understand viewpoints and perspectives regarding the options and considerations presented,
• identify any considerations that may not have been included, and
• receive any other information to shape the drafting of the regulatory proposal and policy framework or complementary guidance to maximize Indigenous leadership in impact assessment.

A series of questions to support the discussion have been developed but are not intended to be limiting and all input is welcomed.

What we have learned

The Circle and IAAC agreed that the primary benefits of co-administration agreements would include:

• Enabling Canada and Indigenous governing bodies to formally share governance and decision-making at key points throughout the impact assessment process;
• Increasing certainty in impact assessment processes by providing formal assurances of decision-making roles in future impact assessments within specified lands;
• Facilitating the exercise and advancement of Indigenous self-determination in the impact assessment process by offering a new option for partnership; and
• Enabling Indigenous governing bodies that do not already have recognized environmental assessment powers to be considered as jurisdictions under the IAA on the lands specified in the agreements for the application of the IAA.

The Circle and IAAC recognize that, while co-administration agreements would provide a new opportunity for participation in the federal impact assessment process, some First Nations, Inuit or Métis may wish to participate in other ways in order for Canada to seek their free, prior and informed consent, and in order to uphold their environmental and stewardship responsibilities. To be clear, co-administration agreements will not be mandatory and other options for collaboration and partnership will continue to be available.

In determining their interest in co-administration agreements, Indigenous groups may take into consideration:

• A co-administration agreement would enable an Indigenous governing body to exercise certain powers or perform duties or functions in relation to federal impact assessments under the IAA.
• In practice, this is likely to involve working alongside IAAC throughout the process. The Indigenous governing body could adopt its own approach to implementation of the impact assessment process under the IAA, and that approach could be guided by Indigenous laws and perspectives, while meeting the legal requirements of the IAA and regulations. (The Circle and IAAC acknowledge that this does not address calls to recognize completely independent Indigenous processes based on Indigenous laws.)
• An Indigenous jurisdiction’s decision-making could be subject to litigation, similar to the way federal decisions are sometimes challenged in court.
• Being considered as a jurisdiction through a co-administration agreement would apply narrowly to the application of the IAA and would not carry over to the application of provincial or other federal legislation or have implications for rights recognition processes. Nor would they affect agreements or negotiations between Indigenous groups and the Crown outside the scope of impact assessment. Similarly, these agreements are not land claim agreements and do not represent a recognition or denial of land rights, exclusive or otherwise.
• Co-administration agreements, and what they contain, are subject to negotiation between Indigenous governing bodies and the Minister. As required by the IAA, agreements will be publicly available.
• There are decisions to be made at key points throughout the impact assessment of a designated project – the particular powers authorized could be determined on a case-by-case basis when negotiating the agreement.
• IAAC’s view is that, in most cases, the power to make the final determination would rest with the Minister or Governor in Council. If the final determination were to be included in a co-administration agreement, it is more likely that an agreement would authorize an Indigenous jurisdiction to exercise the final determination jointly with the federal decision maker, rather than independently, and that certain criteria would need to be in place. (For example, one of the criteria might be that a project is proposed to be located on lands where a single Indigenous jurisdiction has a clear and strong rights-based connection.)

IAAC and the Circle have outlined some other considerations, and options to consider in developing a regulatory and policy framework:

• Parties to a co-administration agreement would have a shared interest in ensuring that processes and timelines in the IAA are followed, that impact assessment powers are carried out in a way that meets the Purpose section of the IAA (including fair, predictable and efficient processes) and that decisions are defensible. Regulations could require that agreements are negotiated to ensure alignment with the IAA, and supporting policy would guide this process.
• While co-administration agreements would not change provincial jurisdiction, provinces and territories share jurisdiction and responsibility for the environment and have their own environmental assessment legislation. Successful implementation of co-administration agreements will require effective cooperation and coordination with provinces and territories, and they will need to be engaged during negotiation. The Circle’s view is that IAAC has a responsibility to protect Indigenous interests even while coordinating with provinces and territories.
• Indigenous groups are diverse, and capacity for co-administration will grow over time as both IAAC and Indigenous governing bodies gain experience with this new mechanism. The regulatory and policy framework for co-administration agreements will have to be flexible and supportive of evolution to allow maximum participation by Indigenous governing bodies in impact assessment in ways that are a best fit for their interests and readiness.
• One way of doing this is through developing regulations that are more enabling in nature rather than prescriptive, with the majority of more detailed criteria and processes spelled out in policy. In general, policy is more flexible and can be updated in a shorter time frame than regulations.
• Negotiating and implementing co-administration agreements could be resource-intensive for Indigenous governing bodies. Territorial issues would have to be addressed and technical and governance measures (e.g. procedures and division of impact assessment responsibilities, information management systems, administrative and secretariat support) would have to be in place.
• The Circle felt that the framework must include processes and adequate funding for capacity.
• In order to support readiness and to limit demands on their resources, Indigenous jurisdictions could seek to:
  • Leverage capacity and technical and scientific subject matter expertise (related to specific environmental components, for example) from the federal government, Indigenous organizations, or other sources to the extent possible,
  • Find opportunities to collaborate with other Indigenous governing bodies or organizations during impact assessments, and/or
  • Focus on aspects that carry the most discretion and influence over the process and final outcomes, instead of taking on all the responsibilities throughout the impact assessment process.
• Determining how to specify the lands in an agreement could prove complex, particularly in cases of territorial overlap. Therefore, roles would have to be negotiated in a coordinated way. For example, multiple Indigenous governing bodies might agree to collaborate through a tribal council or other entity.
• In considering eligibility, the Circle urges the Government of Canada to respect diverse Indigenous governance models, which might include elected councils, hereditary chiefs, family or clan systems, as well as multiple layers of governance, each with its own clearly defined space within the governance system.
• There is agreement that a transparent process would have to be established for determining eligibility. The Circle recommends this be done through a combination of Indigenous self-assessment, and an advisory body to make recommendations to IAAC and the Minister.
• Co-administration agreements are just one, specialized, optional tool. IAAC recognizes that Indigenous groups may prefer to participate in other ways, and is committed to maximizing Indigenous leadership in impact assessment whether through co-administration agreements or other collaboration mechanisms.

Path forward

IAAC is committed to taking the time needed to advance this work in consultation and cooperation with Indigenous Peoples, informed by feedback from provinces and territories, industry and other stakeholders. Feedback from this discussion paper will inform next steps, including work with Indigenous partners towards a policy and regulatory framework for co-administration agreements, and other efforts to support maximizing Indigenous partnership in impact assessment.

Figure 1: Potential Steps Towards Development of Regulations and Supporting Policy.

1. Introduction

Strong collaboration and partnership between the federal government and Indigenous Peoples is critical to achieving the best possible outcomes of assessments under the IAA, and to ensuring alignment with the UNDA. The IAA provides space for a wide range of tools for collaboration and partnership with Indigenous Peoples. IAAC is committed to maximizing those partnership opportunities and seeking the consent of potentially impacted Indigenous groups in a manner that aligns with Indigenous governance and stewardship rights and responsibilities.

This discussion paper focuses on a potential new mechanism for Canada-Indigenous partnership in impact assessment: Indigenous co-administration agreements[i]. These agreements, provided for in paragraphs 114(1) (d) and (e) of the IAA, would add to existing partnership opportunities outlined in the Practitioner’s Guide to Federal Impact Assessments. Once regulations are in place, an Indigenous governing body[ii], or other eligible body such as a co-management board set up under a land claims agreement, could enter into an agreement with the Minister to formally exercise responsibilities and make decisions at key points throughout the impact assessment of a designated project under the IAA. This does not include the decision around whether an impact assessment is required. These agreements, which are being referred to as co-administration agreements, would not be project-specific; rather, they would apply to impact assessments of designated projects on lands set out in the agreements.

Co-administration agreements would also have implications related to jurisdiction under the IAA. The Government of Canada in the Principles respecting the Government of Canada's relationship with Indigenous peoples affirms the inherent right of self-government as an existing Aboriginal right within section 35 of the Constitution. However, the specific self-government powers that are recognized and enforceable under Canadian law can vary. Some Indigenous governing bodies or co-management bodies have existing environmental assessment powers under a land claims agreement or other federal or provincial legislation and are already considered jurisdictions under the IAA by virtue of having these powers. For Indigenous governing bodies that do not already have recognized environmental assessment powers, co-administration agreements would also provide that these bodies be considered jurisdictions for the purposes of the IAA. This would align with the Government of Canada’s commitment to seek a renewed nation-to-nation, Inuit-Crown, government-to-government relationship between Canada and First Nations, Inuit and Métis, and would provide more even footing among Indigenous groups and other jurisdictions during federal assessments. The definition of jurisdiction in section 2 of the IAA applies strictly to the implementation of this IAA and not to other federal or provincial legislation.

Governor in Council regulations must be put into place to enable the Minister and Indigenous governing bodies to enter into co-administration agreements. This discussion paper explores options and considerations to inform discussion around developing these regulations and supporting policy. Feedback will also help IAAC identify and prioritize ways to maximize Indigenous leadership in impact assessment in parallel, without the need of co-administration agreements.

1.1 Context

The lands, waters and ice of this continent were Indigenous homelands for millennia before Canada existed as a country. While Indigenous cultures are diverse, sustainability and respect for the natural environment are embedded in all Indigenous ethics, knowledge and laws. Through colonization and harm, Indigenous Peoples have been denied the ability to exercise cultures and rights over lands and territories. For Indigenous Peoples, this historical and present-day harm has created skepticism and mistrust in all levels of government and in industry activities on Indigenous lands.

A renewed relationship

The Government of Canada, through its commitment to Crown-Indigenous reconciliation, is seeking to create a renewed relationship based on recognition of rights, respect, cooperation, and partnership. With that in mind, the Government of Canada enacted the UNDA, which requires that the government work in consultation and cooperation with Indigenous Peoples to take all measures necessary to ensure that the laws of Canada are consistent with the UN Declaration. In alignment with that goal, Canada has committed in its UNDA Action Plan to advance the regulations that enable the development of co-administration agreements.

The Circle points out that there are limitations under the IAA. In particular, co-administration agreement provisions in the IAA would not directly permit the Minister to authorize an Indigenous governing body to undertake federal assessments under separate Indigenous legal systems. Nevertheless, the Circle sees promise in this new mechanism as another potential tool for exercising self-determination in impact assessment.

“Be realistic. Acknowledge that it’s under Canada’s system. But this is another tool to exercise self-determination; a step forward in decolonization.”

Taiaiake Alfred
Circle of Experts

Principles

IAAC and the Circle recognize that work to develop the framework for Indigenous co-administration agreements could be well-supported by establishing some key guiding principles. The Circle drew upon the Indigenous Advisory Committee’s Principles to Inform Collaboration Agreements Between Indigenous Peoples and the Impact Assessment Agency of Canada in developing these guiding principles:

• Reflect good processes that are relationship-based and ensure good decision-making outcomes: Co-development of the framework and the negotiation of Indigenous co-administration agreements should create meaningful content that reflects the perspectives of both Indigenous Peoples and IAAC.
• Be broad and flexible while honouring Indigenous Peoples’ capacity and empowering Indigenous governments: The framework should meet Indigenous Peoples where they are at and allow for opportunities for review and adjustment as readiness changes.
• Advance decolonisation of law and policy and reflect advancement toward self-government throughout the impact assessment process: The framework should be an expression of self-determination of Indigenous Peoples and enhance Indigenous governments’ authorities to govern.
• Demonstrate consistency with Canada’s constitutional obligations and its commitments to the UN Declaration: The framework should facilitate real and measurable changes and outcomes.
• Recognize relationships with provinces and territories and their roles in meeting impact assessment obligations: The framework should support cooperation between Indigenous jurisdictions and other jurisdictions.
• Support self-determination and environmental stewardship by Indigenous Peoples: The framework should provide for a greater ability for Indigenous Peoples to influence how lands and resources in their territories are used.
• Power Sharing: The framework should reflect a meaningful sharing of power with Indigenous governing bodies.

Existing opportunities under the IAA

The IAA governs how impact assessments of certain major projects[iv] are conducted. The IAA sets out the process for identifying the positive and adverse effects of a project – taking into account factors including cumulative effects and the intersection of sex and gender with other identity factors – and for preventing and mitigating adverse effects within federal jurisdiction. The IAA affirms the Government of Canada’s commitment to respect the rights of Indigenous Peoples and the importance of promoting cooperation and coordinated action between the federal government and other jurisdictions, including Indigenous jurisdictions. The IAA aims to establish fair, predictable, and efficient assessment processes that encourage innovation and foster sustainability.

The Crown has a duty to consult and, where appropriate, accommodate Indigenous Peoples when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. IAAC has been engaging and consulting with Indigenous communities on major projects for many years. IAAC is committed to meeting and exceeding the legal duty to consult by moving towards stronger partnerships and collaboration through the assessment process with the aim of maximizing leadership by Indigenous Peoples in impact assessment. IAAC is guided by Canada’s commitment to implement the UN Declaration, which includes the acknowledgement that Indigenous Peoples have the right to determine the development of their lands. Current opportunities for collaboration between Canada and Indigenous Peoples on impact assessment are broad and flexible, depending on the interests and priorities of a particular community. They are typically project-specific and may include actions such as collaborating on the assessment of the impacts of a project on the exercise of Aboriginal and/or treaty rights, co-drafting the Impact Assessment Report, establishing joint Indigenous-IAAC committees that collaboratively undertake parts of the federal process, and co-development of mitigation measures that may address a project’s potential impacts on an Indigenous community’s rights or interests. Section 22(1)(q) of the IAA also requires that if an Indigenous governing body undertakes its own impact assessment with respect to a designated project, it must be taken into account in the federal impact assessment. In cases where an Indigenous governing body has undertaken its own assessment, IAAC has made efforts to align the federal assessment with the Indigenous process to the extent possible.

Figure 2: Options for Involvement in Impact Assessment

IAAC seeks the participation of Indigenous groups in impact assessment with the aim of securing consent through processes based on mutual respect and dialogue. For groups interested in taking on a greater role, there are many opportunities to collaborate with IAAC on a project-by-project basis. Partnership may include working through co-administration agreements to share certain responsibilities and decisions.

Strong partnership and collaboration with Indigenous Peoples are key to achieving the shared goal of free, prior and informed consent at key decision-points throughout the process, and the best possible outcomes. The following examples illustrate strong collaboration and partnership between IAAC and Indigenous groups during impact assessment.

1.2 A New Tool in the Toolbox

While there are many opportunities for collaboration between IAAC and Indigenous groups during impact assessments, they tend to be negotiated project-by-project and do not provide formal assurances about an Indigenous group’s role or authority to make decisions in future impact assessment processes. Indigenous co-administration agreements would be a new, optional tool to add to the partnership toolbox to address this gap.

Paragraphs 114(1)(d) and (e) of the IAA enable the Minister, once regulations are in place, to enter into agreements with Indigenous governing bodies and other entities such as co-management bodies established under land claims agreements. The agreements would set out which powers, duties and functions they would be authorized to exercise in relation to impact assessments of designated projects, on the lands specified in the agreements. The agreements would also provide that an Indigenous governing body would be considered a jurisdiction for the application of the IAA on the specified lands. The IAA provides that most powers, duties, or functions during the planning, impact statement, impact assessment, and decision phases, including the final determination, could potentially be conferred through a co-administration agreement, with the exception of IAAC’s decision under section 16 as to whether an impact assessment of a designated project is required. Post-decision phase authorities (i.e., follow-up, monitoring, compliance and enforcement), are not within the scope of a co-administration agreement, although there may be consultation requirements and opportunities to collaborate during this phase. Depending on Indigenous priorities, interests, and readiness, there could be significant flexibility in how powers and decision-making during the applicable phases are negotiated and shared. In all cases, it is anticipated that there would need to be a significant degree of cooperation and coordination between IAAC and the Indigenous jurisdiction. (See the Sharing Decision-Making in Impact Assessment section for a more detailed discussion of how shared decision-making could work.)

Subject to regulations and the co-administration agreement negotiated between the Minister and the Indigenous jurisdiction, there could be flexibility around how powers are executed (that is to say, the Indigenous jurisdiction could establish its own policies and procedures to guide implementation). In any scenario, the requirements set out in the IAA and regulations, including with respect to timelines, must continue to be met.

One of the things that would set this new, specialized tool apart is that Indigenous jurisdictions would make specific, binding decisions at certain points throughout the IAA process either jointly with IAAC or independently. For Indigenous governing bodies with the desire and readiness, co-administration agreements would provide an optional tool for exercising leadership. By setting out decision-making roles in a formal, non-project-specific agreement, co-administration agreements would also provide certainty to all parties about Indigenous governing bodies’ roles in administering the impact assessment process.

Co-administration agreements that authorize an Indigenous governing body to take on powers, duties and functions would be different in a number of ways from an assessment conducted independently. For one, co-administration agreements would authorize an Indigenous governing body to undertake parts of the federal impact assessment process. In addition, the Indigenous governing body’s authority to carry out powers described in the agreement would be recognized in Canadian law. Third parties (such as proponents) would have to abide by the decisions and comply with the requirements set by Indigenous jurisdictions (i.e., through the Tailored Impact Statement Guidelines), just as they must for IAAC.

Implications for Modern Treaty Partners and Self-Governing Partners

Canada is committed to meet its obligations under modern treaties and to fully embody true nation-to-nation, government-to-government, and Inuit-Crown relationships with Indigenous Modern Treaty Partners.

Treaties and treaty-making between Indigenous Peoples and the Crown are foundational to the establishment of Canada. Treaties, historical and modern, are constitutionally protected under section 35 of the Constitution Act, 1982[v], carry the force of law and are fundamental elements of Canada's constitutional fabric. As a constitutionally entrenched commitment, co-administration agreements could neither abrogate nor derogate from a treaty, as the treaty would prevail.

Modern treaties (those entered into since 1975), as well as stand-alone self-government agreements, may contain specific provisions or chapters related to environmental assessment, and may include the power to enact laws with respect to environmental assessment. Those Modern Treaty and Self Government Partners that have powers, duties or functions in relation to the environmental assessment of a designated project under a land claim agreement or federal or provincial legislation are already considered jurisdictions under paragraph (f) of the definition of jurisdiction in the IAA. For these Indigenous jurisdictions, a co-administration agreement could provide additional specificity on how they would work together with IAAC during an impact assessment under the IAA in the spirit and intent of the treaty or agreement. A co-administration agreement could authorize them to take on specific powers, duties, or functions under the IAA on lands where they already have environmental assessment powers, as well as on other lands specified in the co-administration agreements.

In cases where a Modern Treaty Partner or other Indigenous governing body has already agreed how to work together with Canada during environmental assessments, and/or where there are clearly defined lands, it may be possible to enter into agreements comparatively quickly once regulations are in place, as many of the potential challenges may have already been addressed through years, often decades, of negotiation and discussion.

Implications for provinces, territories and stakeholders

Projects that require impact assessment under the IAA may also require assessment under a provincial regime. Federal and provincial governments work together, aligning requirements and processes to the extent possible. The goal is to respect the jurisdictional powers of each order of government while efficiently and effectively working together for environmental protection.

Indigenous co-administration agreements are a means to share federal powers only. However, it is important to acknowledge that the landscape where co-administered assessments will be taking place is an area of shared jurisdiction and responsibility. Provinces and territories have their own direct relationships with Indigenous Peoples with respect to environmental and impact assessment. Even though co-administration agreements would only apply to federal (and not provincial) powers, IAAC emphasizes that they be negotiated so as to ensure coordination and cooperation with provinces and territories, and to take into account agreements that are already in place with other jurisdictions (and other Indigenous governing bodies).

Even as coordination of federal and provincial assessments continues to progress, it will no doubt take time to reimagine the provincial-federal-Indigenous relationship in circumstances where Indigenous jurisdictions are sharing federal decision-making at points throughout the federal impact assessment process. IAAC is committed to exploring with provinces and territories[vi] areas of potential common interest, bringing them into the conversation to inform next steps in the development of a regulatory proposal and policy framework, and working together, along with Indigenous partners, toward successful implementation of potential co-administration agreements.

For proponents and assessment participants, it will be important to know that assessments where Indigenous jurisdictions exercise powers may, in many cases, look different from other assessments. IAAC acknowledges that there could be a learning curve for proponents and all parties when we first undertake assessments under co-administration agreements. However, the processes and timelines under the IAA would still be mandatory and additional expectations or requirements that are not consistent with the IAA could not be imposed. IAAC wants to work with proponents and assessment participants to understand challenges, potential impacts, and perspectives on how to successfully implement co-administration agreements.

For all parties, including project proponents, co-administration agreements would bring greater certainty about Indigenous jurisdictions’ roles in the process. They could decrease the likelihood that a project decision will be challenged by ensuring that Indigenous rights holders have had a decisive role in the assessment. Maximizing Indigenous leadership supports impact assessments that are thorough, predictable, and robust.

1.3 Considerations

The Circle and IAAC talked through a great many issues that might be raised with respect to the development of co-administration regulations and policy and implementation of agreements, including how to establish the lands where an agreement will apply, eligibility and readiness, and considerations related to negotiating agreements. The results of these discussions are set out in the remainder of this discussion paper.

From the Circle’s perspective, Indigenous co-administration agreements, if resourced appropriately, could provide an opportunity for ready and interested Indigenous governing bodies to have more influence on assessments, and to have formal assurance of decision-making roles. These agreements could enhance the ability of Indigenous Peoples to exercise the right of self-determination on their territories; in particular, if the agreements include the authorization to make the final determination.

At the same time, the Circle cautions that co-administration agreements are related only to the federal process under the IAA and would provide limited space for Indigenous processes. Depending on the specific agreement, co-administration agreements could require significantly more responsibility and resources from an Indigenous governing body, compared to participation in impact assessment in other ways, to ensure that the legislative processes and timelines under the IAA are met. IAAC is committed to maximizing opportunities for Indigenous leadership while also acknowledging that since, in most cases, the final determination would still rest with the Minister or Governor in Council, this will likely not be entirely satisfactory to Indigenous groups.

In addition, despite co-administration agreements filling the gap for some rights-holding collectives in terms of who is considered a jurisdiction under the IAA, they would not fill that gap for groups who are not able to enter into this type of agreement because they are not ready in terms of capacity, do not wish to take on powers, or there are other challenges such as working out arrangements with other Indigenous groups with whom territories overlap.

While acknowledging those challenges, the perspective of IAAC and the Circle is that co-administration agreements are a step along the journey toward true partnership, an opportunity to work with Indigenous governing bodies as another order of government, thus deepening mutual understanding and relationships. As Indigenous governing bodies take on specific decision-making roles in impact assessment (i.e., powers, duties and functions throughout the federal impact assessment process), IAAC would also be learning how impact assessment can be approached differently within the existing regime of the IAA, with new ways to recognize and respect Indigenous self-determination in this area.

2. Governance

The IAA specifies the types of entities with which the Minister may enter into agreements. It also requires that agreements specify the lands on which the agreements would apply.

2.1 Who Can Enter into a Co-Administration Agreement with the Minister?

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions.

UN Declaration, Article 18

Under the IAA, the Minister may, if authorized by regulations, enter into co-administration agreements with:

1. An Indigenous governing body, which is defined as a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution. Under the IAA, there are two categories of Indigenous governing bodies, both of which can enter into co-administration agreements:

(a) Some Indigenous governing bodies have environmental assessment powers under a modern treaty, self-government agreement, or provincial or federal law. These Indigenous governing bodies are already defined as “jurisdictions” under the IAA. Entering into a co-administration agreement would allow these Indigenous governing bodies to be considered jurisdictions for the purposes of impact assessment wherever the co-administration agreement applies, which might be broader than reserve or treaty lands.

(b) Other Indigenous governing bodies that do not already have environmental assessment powers are also eligible to enter into co-administration agreements and will be considered jurisdictions for the application of the IAA upon entering into agreements. These could include authorized representatives of First Nations under historic treaties or in unceded territories; Métis governments, organizations or settlements, whose governance may include national, provincial or regional organizations and whose citizens fit the national definition of Métis; and Inuit, represented by land claims organizations in northern Canada.

2. Any body – including a co-management body – established under a land claims agreement referred to in section 35 of the Constitution that has powers, duties or functions in relation to the environmental assessment of a designated project.

• This would include co-management bodies in northern Canada made up of Indigenous, federal and provincial/territorial representatives. One complexity in the north is that each of the northern territories has its own regulatory regime, based on a unique co-management approach, rooted in the legal and cultural frameworks of land claims agreements with Indigenous Peoples. The IAA only applies in some regions or in specific circumstances. For example, the IAA does not apply in the Eeyou Marine Region, where the impact assessment regime of the Eeyou Cree Marine Land Claims Agreement applies. Nor does it apply in the Mackenzie Valley, where the Mackenzie Valley Resource Management Act’s assessment regime applies, except where it is agreed that it is in the national interest to refer a proposal to a joint review under the IAA. Co-administration agreements would only apply where the IAA applies.

Figure 3

Things to think about

“This is a time of nations realizing and exercising their inherent powers and responsibilities again. This paper is an opportunity to show what is possible today and going forward

Circle of Experts

“Determining who is ‘authorized to act on behalf of’ rights holders should be read pursuant to Indigenous legal processes and standards, consistent with the UN Declaration.”

Pailin Chua-oon Rinfret,
Circle of Experts

Prior to entering into a co-administration agreement, there will need to be clarity and certainty as to which body speaks for a collective of rights holders for the purposes of impact assessment. The Circle feels it is important to ensure that language around eligibility is interpreted in a way that recognizes Indigenous inherent jurisdiction and the right to self-determination and is consistent with the UN Declaration. As well, the mechanism for identifying the authorized representative of rights holders must be flexible enough to be culturally appropriate and should minimize “hoops to jump through.” Agreements must be with the authorized representatives of First Nations, Inuit, and Métis groups, communities or people that hold rights under the Constitution. An Indigenous governing body could be a chief and council or government, for example, but could also include a designated entity authorized to represent the collective, as long as it meets the definition of an Indigenous governing body in the IAA.

The Circle urges the Government of Canada to respect diverse Indigenous governance models, which might include elected councils, hereditary chiefs, family or clan systems, as well as multiple layers of governance, each with its own clearly defined space within the governance system. In some (uncommon) circumstances, there could be disagreement about who is authorized to act on behalf of the same group of rights holders. In these circumstances, the Circle believes that the role of IAAC should be limited to facilitating discussions among potential governing bodies if it is asked to do so, and that IAAC itself should not be the arbiter of internal governance questions.

As part of understanding who an Indigenous governing body is, it was agreed that IAAC should work closely with the rights-holding collective. A good resource would be records of Indigenous governing bodies with whom the Government of Canada already consults (for example, through the Crown-Indigenous Relations and Northern Affairs or Indigenous Services Canada departments). If there is any uncertainty, a resolution or motion, a referendum, member list, or other evidence could be provided to demonstrate to the Minister that an entity has the authority to represent a collective of rights holders for the purposes of entering into a co-administration agreement.

“The difficulty is not in identifying whether a governing entity exists, but rather, in identifying their legitimacy, who they speak on behalf of, and what is the source of their authority.”

Circle of Experts

Where more than one body claims authority to act on behalf of the same group of rights holders for the purposes of federal impact assessment, one idea is for the parties to jointly appoint a mutually acceptable entity that meets the definition of Indigenous governing body to enter into the co-administration agreement.

2.2 Where Would Co-Administration Agreements Apply?

Under the IAA, a co-administration agreement must specify the lands where an agreement will apply. The IAA does not require that the lands specified in the agreement be reserve or treaty settlement lands. The boundaries for the specified lands will need to be determined during negotiation of an agreement.

Establishing lands

In negotiating the lands where agreements would apply, the starting point could be boundaries “agreed to” in treaties, agreements or legislation. In other cases, the Indigenous governing body and the Minister may rely on consultation or engagement boundaries that have been used in past assessments. The Circle feels it will be important to consider boundaries proposed by Indigenous governing bodies that are based around cultural values and Indigenous Knowledge (that factor in sacred areas, for example, or stewardship, harvesting, settlement and assembly areas or clan or family territories).

“Where there are great disparities in capacity, level of organization and size, how do we ensure all voices are heard and respected?”

Taiaiake Alfred,
Circle of Experts

Both IAAC and the Circle acknowledge that there could be significant challenges in negotiating the boundaries of lands where an agreement would apply in situations where Indigenous groups have a history of shared use and occupation, and in areas where some Indigenous groups have defined territorial boundaries and others do not. In some cases, territorial disputes have gone as far as litigation and have held up other kinds of agreements and assessments. Part of the challenge will be to ensure that the territorial interests of those Indigenous governing bodies that currently have less organizational capacity are heard and respected in these discussions.

The Circle felt that it would not be realistic (nor in good faith) to expect Indigenous groups to quickly arrive at a permanent settlement of their territorial issues in order to enter into co-administration agreements. However, the Circle believes that interim arrangements among Indigenous groups that allow for co-administration agreements may be possible (even if there are some outstanding territorial claims). There are many examples to consider where Indigenous groups have successfully managed overlapping territories in order to work together toward shared objectives. Indigenous groups might draw inspiration from such examples to craft interim arrangements that would allow them to enter into co-administration agreements.

In situations where territories overlap, the Circle feels that the best approach would be for Indigenous governing bodies to come together to work out amongst themselves a proposed arrangement for exercising impact assessment powers. The Circle has worked with IAAC to put forward some options for Indigenous groups to consider. These include:

1. Multiple Indigenous groups could agree to work through a single body, such as a regional body, tribal council, corporation, or national government. This body could either carry out procedural aspects of the agreement on behalf of one or more Indigenous governing bodies each with their own co-administration agreements, or this body could be the Indigenous jurisdiction itself, with its own co-administration agreement (if it meets the definition of an Indigenous governing body in the IAA). There might be a range of flexible and/or novel arrangements amongst Indigenous groups for how to work together.
2. The parties could agree that one Indigenous governing body would have a co-administration agreement on a particular territory. Other Indigenous groups in the area would be consulted or could collaborate in other ways.
3. If multiple groups seeking co-administration roles cannot come to an agreement for joint representation or collaboration through a single body, multiple Indigenous governing bodies might enter into co-administration agreements covering the same lands. This would require a coordinated approach to negotiation. It is also possible that some groups might enter into agreements earlier and some later, depending on interest and readiness, which would require cross-referencing of existing agreements with new ones and perhaps even revisiting existing agreements. The Circle cautions that this could result in a more limited role (fewer opportunities throughout the process for decision-making) for each of the Indigenous groups. For example, each Indigenous jurisdiction might only take on the duty to assess the impacts on their own rights and to write the relevant sections of the impact assessment report.

3. Sharing Decision-Making in Impact Assessment

There are many decisions that are made throughout the impact assessment process. Each of these decision-points influences the final outcome and is an opportunity to exercise governance and stewardship. Existing opportunities for Indigenous groups to collaborate with IAAC on those decisions, outside of the need for co-administration agreements or regulations, include:

• Indigenous groups may work with IAAC to draft parts of the Tailored Impact Statement Guidelines, which set out the required information or studies that the proponent must provide for the conduct of the impact assessment process;
• IAAC ensures that it understands the views of Indigenous groups to inform IAAC’s decision as to whether the proponent’s Impact Statement is sufficient;
• Indigenous groups are encouraged to draft the parts of the Impact Assessment Report that relate to their knowledge and rights, and to collaborate with IAAC to identify mitigation measures and follow-up program requirements that could be incorporated into proposed federal conditions if the project goes ahead; and
• Indigenous groups can enter into an agreement to jointly carry out some or all of an assessment by establishing a joint assessment committee.

In most of these cases, IAAC remains responsible for coordinating the process, preparing the final documents, and ensuring timelines are met, although there are also cases where a joint assessment committee works collaboratively.

For some communities, existing opportunities to be consulted or to collaborate with IAAC may strike a desired balance between influence and responsibility. Other communities may wish to pursue co-administration agreements, which would allow them to formally make or share decisions or responsibilities at key points throughout the federal process.

How would co-administration agreements facilitate shared decision-making?

Co-administration agreements would authorize Indigenous governing bodies to exercise powers and perform duties and functions under the IAA in relation to impact assessment (see paragraphs 114(1) (d) and (e)). An Indigenous governing body would effectively be able to take on the authority and responsibility for making decisions at key points throughout the process. Powers, duties and functions would need to be undertaken in the manner and circumstances set out in the agreement and exercised in accordance with the IAA.

Figure 4: Impact Assessment Process

The powers, duties, and functions that may be authorized through a co-administration agreement range from those during the planning phase to the decision phase (see Figure 4). The only power the IAA explicitly excludes from sharing is IAAC’s decision under section 16 regarding whether an impact assessment is required.

The Circle acknowledges that, initially, there may be very few Indigenous groups seeking to take on full responsibility for all the decision-making roles under the IAA, along with all administrative duties and functions. Rather, the preference may be to focus on powers, duties, and functions with the most influence on the process and its outcomes.

3.1 Issues / Objectives / Opportunities

It must be understood that co-administration agreements relate to the federal impact assessment process under the IAA. In exercising any power or duty or performing any function related to an impact assessment, the Indigenous jurisdiction must do so in a manner that meets the requirements of the IAA. In other words, it would be bound by the requirements set out in the IAA, just as IAAC is when exercising these powers, duties, or functions.

The Circle and IAAC acknowledge that this does not address calls to recognize completely independent Indigenous processes based on Indigenous laws. Still, within the structure of the IAA, and subject to negotiation, there would be flexibility in terms of policies and procedures to carry out powers. IAAC follows its own policies and procedures, but an Indigenous jurisdiction could adopt a different approach to implementation that is guided by Indigenous laws and perspectives, as long as the process meets the legal requirements of the IAA and supporting regulations, and the terms of the co-administration agreement.

Administrative law, litigation and economic benefit

Co-administration agreements could have certain legal implications for Indigenous jurisdictions, notably where they are involved in decision-making. That is because impact assessment decisions are susceptible to court challenges, including applications for judicial review by a project proponent, Indigenous group, or other interested party. Therefore, an Indigenous jurisdiction’s decision-making could be subject to litigation, similar to the way federal decisions are sometimes challenged in court.

The Circle and IAAC felt it would be important for Indigenous governing bodies to consider these implications when deciding whether to enter into a co-administration agreement, and for both IAAC and the Indigenous governing body to consider how principles of administrative justice, such as procedural fairness, would be upheld when negotiating and implementing a co-administration agreement.

Another question relates to economic benefits. The Circle notes that, when federal or provincial governments allow a project to proceed, they stand to benefit through taxation from the project and associated economic activity. In some cases, a project that is being assessed may even be owned by the government. Indigenous governing bodies generally do not have comparable taxation powers, and associated economic activity would not automatically benefit the Indigenous community. Therefore, groups often enter into arrangements with proponents, such as impact benefit agreements that provide monetary payments, training, contracts, or employment, to mitigate impacts and ensure that their communities benefit from projects on their lands. Depending on the circumstances and the powers, duties or functions that an Indigenous jurisdiction is authorized to exercise, it may establish separation between the entities within the administration that undertake assessment powers and those negotiating benefits. They may also establish in advance a formula for quantifying appropriate benefits. Such actions would be solely within the purview of the Indigenous jurisdiction.

3.2 Potential Roles

It will be important for the policy and regulatory framework for co-administration agreements to be flexible to allow maximum participation by Indigenous governing bodies in impact assessment in ways that are a best fit for their interests and readiness.

The IAA does not require an Indigenous governing body to take on all of the powers, duties and functions available, nor is there any specific or minimum amount that must be included in a co-administration agreement. The particular powers authorized could be determined on a case-by-case basis when negotiating the agreement and could potentially be flexible enough to allow for increased responsibility as experience and capacity grow – subject to any requirements or considerations in regulations or policy.

In considering which decision-making roles to seek, Indigenous governing bodies may want to consider what will be of interest in future impact assessment processes. For example, is it important to ensure that the specific information relevant to the Indigenous group is collected? Are there specific cultural or environmental areas that require protection? Is there a particular interest in considering the need for the project, or potential alternatives to the project? What level of influence is desirable and how much time and resources are available to devote to the process? Having identified a preferred role, Indigenous governing bodies can explore the powers, duties, and functions that would be needed to carry out that role.

The Circle suggests that Indigenous governing bodies may want to focus on aspects of the impact assessment that carry greater discretion and that are more likely to influence the assessment and the final outcomes. The Circle identified the following potential decision points where Indigenous groups may be interested in sharing powers through co-administration agreements:

• The Tailored Impact Statement Guidelines (TISG) provide direction to the proponent on the factors to be considered in the impact assessment process, the methodology to be followed, and information requirements – all tailored to the specific project. In practice, one possibility is that a co-administration agreement could be structured so that both IAAC and the Indigenous jurisdiction would have to approve and issue the TISG.
• Determining the sufficiency of the proponent’s Impact Statement (IS), which involves receiving and reviewing the proponent’s impact statement to determine if it includes all the information and studies required, as set out in the TISG, and issuing information requests where requirements are not met.
• The Impact Assessment Report summarizes the impact assessment process, taking into consideration information provided by the proponent, expert federal departments, Indigenous Peoples, the public, and other jurisdictions. The report must provide sufficient information, including the identification of likely adverse effects within federal jurisdiction and the extent of their significance, for the decision-maker to make the final determination.
• Project conditions are the requirements included in the Decision Statement with which the proponent of a designated project must comply if the project goes ahead. Among other requirements, conditions must be enforceable, and they must relate to adverse effects within federal jurisdiction or adverse direct or incidental effects – which limits the kinds of conditions that can be imposed. In accordance with the IAA, IAAC must make recommendations to assist the Minister in establishing project conditions. A co-administration agreement could formally establish how an Indigenous jurisdiction and IAAC would work together to co-develop and co-recommend project conditions for future assessments. The Circle advised that Indigenous governing bodies would likely also be interested in co-administration agreements that enable them to formally establish conditions jointly with the Minister.
• The final determination is the determination as to whether activities that are likely to cause significant adverse effects within federal jurisdiction can proceed. Although referred to as the “final” determination, there are generally provincial or territorial assessment processes and other federal requirements such as permitting that must be in place before a project may proceed.
• The Decision Statement informs the proponent of the final determination, the reasons for the determination, and the established conditions. If an Indigenous jurisdiction makes or shares the final determination, its reasons for the determination would need to be included in the Decision Statement.

There are many other steps to the impact assessment process, and administrative duties and functions that go along with each of the powers, including for example the power to suspend time limits at certain clearly prescribed stages of the impact assessment process, for the reasons set out in the IAA or in regulations. Assessments also involve consultations with section 35 rights holders impacted by a project, and that could potentially include groups that are not party to the co-administration agreement. The Indigenous jurisdiction or IAAC could undertake that consultation – depending on the terms of the agreement – while keeping in mind that the Crown is ultimately responsible for ensuring that the duty to consult and, where appropriate, accommodate is fulfilled. In most cases, IAAC and the Indigenous jurisdiction will need to work together to fulfill these responsibilities and make joint decisions. For example, both parties could share authority to issue the TISG. There would be only one TISG issued to the proponent, but there might be a process whereby both IAAC and the Indigenous jurisdiction must agree on the contents. In some circumstances, in accordance with what is negotiated, an Indigenous jurisdiction could make a decision or carry out a certain power, duty or function on its own.

Depending on the particular context, priorities, and readiness of an Indigenous governing body, the types of powers negotiated, and the manner in which they would be exercised alongside IAAC would differ. In order to give some idea of potential “packages” of powers that could be negotiated, the images below illustrate potential roles along a spectrum from IAAC-led, to shared leadership, to Indigenous-led assessments.

Figure 5: A Spectrum of Opportunities

Many potential arrangements and combinations of powers, duties and functions exist along the spectrum of shared decision making, including the specific examples in this figure. Moving from left to right, an Indigenous jurisdiction’s degree of control, and the resources required, increases. This list of powers, duties and functions is not meant to be an exhaustive list of what could be negotiated in a co-administration agreement, only to present some ideas. Both the Circle and IAAC recognize that there may be additional powers and combinations of powers not listed here that could be of interest.

Final determination

IAAC’s view is that the final determination could potentially be shared in limited circumstances through a co-administration agreement, subject to any limitations in regulation or policy. For members of the Circle, sharing this power would be key to aligning co-administration agreements with the UN Declaration. Sharing decision-making throughout the impact assessment process moves us forward. However, the Circle’s view is that transformative change in impact assessment requires a federal willingness to allow an Indigenous jurisdiction to make the final determination. Decision-making is a key element of self-determination.

If an Indigenous jurisdiction were authorized to make the final determination, this decision must be based on the parameters, and taking into consideration the factors, set out in the IAA. Whether a co-administration agreement confers the authority to make the final determination will be negotiated on an agreement-by-agreement basis, and subject to any requirements or considerations in regulations or in policy. IAAC’s view is that arrangements to confer the final determination must take into account the need to respect the Purpose section of the IAA, in addition to ensuring that the factors that must be considered when making the final determination are considered from the perspective of the national public interest. These legislative considerations would need to be addressed by the Indigenous jurisdiction and/or shared with the federal decision-maker.

IAAC’s view is that certain criteria would need to be in place to support conferring the final determination through a co-administration agreement. These could include:

• Readiness and agreement by the Indigenous jurisdiction to collaborate throughout the entire impact assessment process to ensure adequate information is included in the Impact Assessment Report, and to support consideration of all the factors required to be considered in making the final determination;
• Specification that the project is proposed to be located on lands where a single Indigenous jurisdiction has a clear and strong rights-based connection; and
• Specification that the project is proposed to be located on lands where any territorial overlaps have been addressed.

IAAC’s view is that it is more likely that a co-administration agreement would authorize an Indigenous jurisdiction to exercise the final determination jointly with the federal decision maker, rather than independently. How that authority could be shared would have to be negotiated. For example, sharing the final determination could mean that, if it is determined that there are likely to be significant adverse effects in federal jurisdiction, both the federal decision-maker and the Indigenous jurisdiction would have to decide that those effects are justified in the public interest for the project to proceed. Although co-administration agreements are intended to be long term, and not project-specific, agreements could be structured in a way that specific decision-making roles, including the power to make the final determination, would only be authorized in specific circumstances. For example, it may depend on the location and scale of the potential project, and therefore the potential impacts for other Indigenous groups; or whether there are other processes in place to address specific federal interests (e.g., regulatory processes to protect environmental values within federal jurisdiction).

The Circle feels it is important to distinguish the concept of an Indigenous group consenting to a project, from the concept of making the final determination under the IAA. There are different definitions of consent, and rights holders will have diverse perspectives on how consent should be operationalized in impact assessment.

3.3 Review Panels

Impact assessments may be conducted by an independent review panel instead of IAAC. The Minister may refer an assessment to a review panel if the Minister is of the opinion that it is in the public interest. That determination includes consideration of factors set out in paragraph 36(2) of the IAA, such as the extent to which the effects within federal jurisdiction or the direct or incidental effects that the project may cause are adverse, public concerns related to those effects, and any adverse impacts on the rights of Indigenous Peoples. In addition, when an impact assessment is required for a designated project that is regulated by a lifecycle regulator, such as under the Nuclear Safety and Control Act or the Canadian Energy Regulator Act, the Minister must refer the assessment to what is commonly referred to as an Integrated Review Panel. In such cases, the impact assessment will integrate the requirements of those Acts into the panel process to the greatest extent possible. In addition to IAAC, lifecycle regulators, which include the Canadian Nuclear Safety Commission and the Canada Energy Regulator, have specific responsibilities with respect to integrated review panels (and would need to be engaged in any co-administration agreement that contemplated conferring powers, duties or functions with respect to the impact assessment of designated projects that they regulate).

A review panel is typically made up of three to five individuals who must be unbiased and free from conflict of interest relative to the project and must have knowledge or experience relevant to the project or potential effects. The Minister establishes the terms of reference for the panel and IAAC appoints its members.

The information that must be included in an impact assessment by review panel is the same as for an impact assessment conducted by IAAC, but the process is different. Once established, review panels operate independently from government. IAAC staff support the work of independent review panels, providing technical, procedural and logistical support through a secretariat, but the Government of Canada cannot direct or influence the work of the review panel, beyond setting its terms of reference.

A review panel will hold public hearings and must prepare a report for the Minister that describes the effects that are likely to be caused by the project. The report must also include the review panel’s rationale, conclusions, and recommendations, including recommendations with respect to any mitigation measures and follow-up program requirements. For assessments by review panel, the Governor in Council (Cabinet) is responsible for making the final determination.

The Circle identified that certain powers related to review panels (including integrated review panels) would likely be of greater interest to Indigenous governing bodies because of the extent of influence and discretion involved. Specifically, the Circle was of the view that, in any case where a project would be located on lands covered by a co-administration agreement, and where the Minister has the discretion to refer a project to a review panel, the Minister’s decision should be made by, or jointly with, the Indigenous jurisdiction. The Circle also felt that Indigenous jurisdictions would have an interest in adding Indigenous value principles into the development and operation of review panels, and, in particular, in the powers to set the terms of reference and establish panel membership. The Circle also identified that, as with an IAAC-led assessment, once the review panel has issued its report, Indigenous jurisdictions would have an interest in sharing the final determination.

3.4 Cooperation and Coordination with Other Assessment Processes

The Government of Canada is committed to meeting the objective of “one project, one assessment” in its review of projects. In addition to undergoing assessment under the federal IAA, projects may also be reviewed under a provincial, territorial, or Indigenous regime. In such cases, IAAC aims to reduce duplication and increase efficiency and certainty about the process by cooperating and coordinating with other jurisdictions.

Project-by-project jurisdictional cooperation

During the planning phase in the federal process, IAAC offers to consult with other jurisdictions (including provinces/territories and Indigenous jurisdictions with assessment powers) on ways to cooperate on the assessment and develops a Cooperation Plan for the assessment.

There are several mechanisms under the IAA for cooperation with other jurisdictions on a project-by-project basis. These are described in the table/figure below, and more information can be found on IAAC’s web site: Cooperative Impact Assessments. (The options below are available now to those Indigenous jurisdictions with existing environmental assessment powers as outlined in section 2 of the IAA. When co-administration agreements are in place, they would also be available to Indigenous governing bodies that are considered jurisdictions because they have entered into co-administration agreements, subject to the requirements and provisions of each mechanism.)

Table 1: Cooperation Mechanisms under the IAA

Substitution allows the Minister to replace the conduct of a federal assessment with that of a provincial, territorial or Indigenous jurisdiction where there is alignment with federal standards. Requests for substitution must be made on a project-by-project basis, and the IAA requires that there be an opportunity for public comment for each request. Since substitution was introduced in 2012, the only province to which the federal impact assessment process has been substituted is British Columbia.

When there is a proposal to substitute a provincial assessment process for the federal process, IAAC invites comments from the public and Indigenous groups. When the project is proposed on lands covered by an Indigenous co-administration agreement, the Circle’s view is that Indigenous jurisdictions must have a role in making the decision on whether to substitute. The Circle noted that an Indigenous jurisdiction might have views about whether a project should be substituted, depending on the context and circumstances. Considerations could include the laws and policies of the province, the views and interests of the community, and the relationship between the provincial and Indigenous governments. To be clear, the Indigenous jurisdiction would have a role in decision-making only with respect to a substitution decision for a project proposed within the lands specified in the co-administration agreement.

An assessment may also be substituted to an Indigenous jurisdiction. That has not happened under the IAA, in part because substitution can be a very resource-intensive undertaking, but also because there are currently few Indigenous governing bodies that are considered jurisdictions under the IAA. Once regulations are in place, Indigenous governing bodies that enter into co-administration agreements would be considered jurisdictions, and that would also, indirectly, make them eligible for substitution – providing that their assessment processes fulfill the requirements for substitution under the IAA. Substitution may be more attractive than co-administration for some groups who would prefer to undertake assessments under their own processes. On the other hand, substitution only applies to parts of the process and would not include the final determination.

The Circle called for more work to be done to flesh out the requirements for substitution to Indigenous jurisdictions, including whether the Indigenous process would need to be enacted under the Indigenous jurisdiction’s internal legislation, and how it would be determined whether the Indigenous process meets the conditions for substitution. The Circle would like to see flexibility to make a range of substitution options available depending on the readiness and interest of Indigenous jurisdictions.

Formalizing cooperation

An Indigenous co-administration agreement is one example of long-term coordination and cooperation that is specific to Indigenous jurisdictions. IAAC also enters into cooperation agreements with provinces and territories, as part of its commitment to advance the objective of “one project, one assessment,” reduce duplication and increase efficiency. These agreements outline the mechanisms and approach that will be used to cooperate when an impact or environmental assessment is required by both the federal government and a province or territory. Canada and British Columbia entered into a cooperation agreement in 2019.

The Circle noted that harmonization of federal and provincial assessment processes has benefits, but can also pose potential challenges for Indigenous Peoples, and that the federal government should continue to engage with Indigenous jurisdictions whenever a cooperation agreement between Canada and a province or territory is contemplated in order to determine how the cooperation agreement would align with co-administration agreements.

4. Regulatory and Policy Framework

Before Indigenous co-administration agreements are signed, Governor in Council regulations that authorize the Minister to enter into these agreements must be in place. While regulations cannot require the Minister to enter into agreements, they could include factors that the Minister must consider, or be satisfied of, ahead of signing an agreement.

IAAC and the Circle agree that regulations should be flexible enough to allow the parties to negotiate, on a nation-to-nation basis, agreements that are tailored to the diverse and evolving needs and interests of rights holders. At the same time, it is agreed that the regulations should provide certainty around some important matters. For example, the regulations could require the Minister to be satisfied that:

• The Indigenous governing body entering into the agreement is authorized to represent the Indigenous rights holders for the purposes of impact assessment; and that
• Impact assessment powers will be carried out in a way that meets the requirements of the IAA and furthers elements of the Purpose section of the IAA (e.g., establishing fair, predictable, and efficient impact assessments, and promoting cooperation with provincial, territorial, and Indigenous jurisdictions).

Further policy would be developed to guide implementation of the regulations and could elaborate on the factors that the regulations require the Minister to consider. Policies are more easily amended than regulations and can be more easily updated as we all gain experience with co-administration agreements. The Circle felt that the policy should be co-developed, and that shared decision-making should be required to amend the policy. The Circle also felt that the federal government should ensure there is financial capacity support for Indigenous governing bodies to negotiate and implement co-administration agreements, and for ensuring that technical scientific support is also available. Policy could include criteria to guide negotiation of certain powers, duties and functions, and the process for assessing whether an Indigenous governing body is eligible to enter into an agreement.

5. Agreements

A co-administration agreement would be between the Minister and an Indigenous governing body, or between the Minister and another eligible entity such as a co-management board (see the Governance section for who is eligible to enter into an agreement). These would be the parties to the agreement. Together, they would negotiate the agreement and be responsible for fulfilling the terms of a finalized agreement. The terms of the agreement would only apply to the parties who sign the agreement, as it is a record of what they have promised to do. However, an agreement could have implications for others who are not parties to the agreement. Subsection 114(3) of the IAA requires that the Minister provide reasonable public notice and a reasonable opportunity for anyone to comment on draft agreements, including co-administration agreements. Thus, proponents, provincial and territorial governments, other Indigenous groups and jurisdictions, and the public, would have an opportunity to share their views.

5.1 How Would Agreements be Developed?

Approach to negotiating powers, duties, and functions

Both the Circle and IAAC agree that there needs to be criteria and/or conditions to support the negotiation of co-administration agreements, in a manner that is consistent and transparent. Having clear policy would ensure that all parties know what to expect from the process and trust that it is consistently administered. As noted earlier in the paper, agreements must be negotiated in a way that respects the Purpose section of the IAA.

The limits of the present, rooted as they are in Canada’s colonial past, should not define the limits of the future.

Taiaiake Alfred
Circle of Experts

While the process should be predictable, the Circle recommends that the approach to negotiation be flexible because of the wide diversity of Indigenous Peoples and regional contexts. The Circle also recommends making space for agreements to evolve over time as both Indigenous governing bodies and IAAC gain experience and increase capacity. This would support ongoing growth and re-establishment of Indigenous governance.

Readiness and Eligibility

Before entering into negotiations, one of the first things to consider is eligibility. As noted earlier in the section on governance, in order to be eligible to enter into a co-administration agreement, an Indigenous governing body must be authorized to represent a group of Indigenous rights holders. The viability of entering into a co-administration agreement would also depend on practical considerations, including the readiness of both parties.

The Circle has recommended that IAAC, in collaboration with Indigenous Peoples, establish a clear process and guidance for assessing the eligibility and readiness of an Indigenous governing body for a co-administration agreement. There will also have to be a process for identifying which lands to set out in the agreement.

The Circle recommends a process whereby an Indigenous governing body would carry out its own self-assessment of eligibility and readiness, supported by IAAC’s expertise as needed, and that an advisory body made up of Indigenous individuals could be established by IAAC to verify the self-assessments and make recommendations to IAAC and the Minister. The goal would be to design a process that best supports self-determination and helps to ensure consistency, transparency, and fair implementation of assessment criteria.

Process

Figure 6: General Process to Develop an Agreement

The Circle and IAAC recommend the following general process to develop an agreement (See figure 6). Throughout, the decision to proceed with the next step would require agreement of both parties.

0. Self-assessment:

An Indigenous group conducts a self-assessment to determine whether it is eligible and has the capacity and resources to enter into a co-administration agreement. It identifies the territory where it is seeking to exercise jurisdiction under the IAA, working with other Indigenous groups as appropriate. The Circle suggests that an Indigenous-led third party could be established to review the self-assessment and provide advice to the Indigenous group and the Minister on eligibility, readiness and lands. This third party could have a role throughout the negotiation process in assessing readiness to take on certain powers.

1. Dialogue:

IAAC and the Indigenous governing body would discuss their objectives, requirements, priorities, and readiness for a potential co-administration agreement. The purpose would be to determine whether to proceed with negotiations to develop an agreement, or whether another form of collaboration would be more appropriate.

2. Confirmation of intent and process:

At this stage, both parties confirm their intent to enter into negotiations, based on mutual understanding of objectives, and agree to a process for developing the agreement.

3. Public notice and consultations:

Canada and the Indigenous governing body would issue a public notice of their intent to negotiate a co-administration agreement and consult with potentially impacted Indigenous Peoples and stakeholders.

4. Negotiation of draft agreement:

Representatives from Canada and the Indigenous governing body would negotiate terms and develop a draft agreement.

5. Consultation and public comment:

Draft agreement would be posted online, and the parties would consult with Indigenous Peoples and stakeholders to identify issues or concerns.

6. Finalization of agreement

Canada and the Indigenous governing body would work together to revise agreement text as needed based on consultation. Both parties would sign the final agreement.

7. Implementation

An agreement would come into force on the date specified in the agreement. The implementation phase would include preparation and capacity building as required.

5.2 Contents of a Co-Administration Agreement

There are limits on what a co-administration agreement can and cannot contain.

Table 2: What a Co-Administration Agreement Can and Cannot Do

To meet the requirements of the IAA, at minimum, a co-administration agreement must:

• Be signed by the authorized representative(s) of the Indigenous governing body (or other eligible body) and the Minister;
• Specify lands where the agreement applies; and,
• Specify what powers, duties or functions the Indigenous governing body is authorized to exercise or perform.

The Circle and IAAC agree that an agreement could also include elements or terms to support co-administration agreements. These could include:

• Guiding principles for implementation;
• References to specific Indigenous laws and precepts of Indigenous Knowledge;
• Scope of application provisions (the types of projects to which the agreement would or would not apply and how much flexibility an Indigenous governing body would have to choose, on a project-by-project basis, whether to exercise powers);
• Provisions for when and how authorized powers, duties or functions are exercised or performed;
• Protocols for implementation, such as for coordination among parties and with other jurisdictions during an assessment, time limits, deliverables, etc.;
• Backstop provisions (see below);
• A decision-making framework or process;
• A process for resolving disputes; and
• Confidentiality provisions with respect to some aspects of the negotiations between parties (for example, protecting community maps of sacred areas that may have been referenced in negotiations).

Backstop provisions

Backstop provisions would detail how the parties have agreed to proceed in the event that one of the parties is unable to fulfill its responsibilities (or if there is disagreement about whether the responsibilities are being fulfilled). The Circle and IAAC recommend that backstop provisions be established to ensure that legal requirements are met. This is important for ensuring that Canada continues to have a fair and transparent regulatory regime consistent with federal and international laws, as well as for protecting the interests of all parties to the agreement. Backstop provisions are like a safety net to be used only as a last resort. Specific backstop provisions (including transparency requirements, or rules around when it could be used) could be included in regulations or policy or negotiated on an individual agreement basis, based on context and the specific powers, duties and functions included in an agreement.

Implementation and/or project-specific annexes

Once agreements are negotiated between Indigenous governing bodies and the Minister, there may still be administrative details to work out. The Circle and IAAC agree that Ministerial agreements could be high-level and used to outline the general terms. They would specify the lands where the agreement applies, the impact assessment-related powers, duties, and functions the Indigenous jurisdiction may exercise, and potentially other provisions. These could be supported by annexes that contain administrative details needed to support implementation of the agreement, such as processes and procedures for working together.

Deferring some terms to annexes could make it easier to negotiate the main co-administration agreement, since it would reduce the level of detail that would need to be worked out at the outset. In order to support the objective of establishing clear and predictable impact assessment processes, it would be important for Canada and the Indigenous governing body to establish these more administrative and process-related details as early as possible, in advance of the start of an impact assessment.

6. Readiness

IAAC and the Circle agree that administration of the federal impact assessment process is resource intensive. IAAC has the benefit of funding, many staff members, organizational expertise, and access to subject matter experts in other federal government departments in order to carry out high-quality impact assessments. The Circle acknowledges and respects that Indigenous governing bodies will have varying levels of capacity and readiness to take on roles in co-administering the process, and that capacity and readiness will be considerations for both the Indigenous governing body and IAAC in determining which tool (collaboration opportunity or co-administration agreement) would be the best fit for each community.

6.1 Capacity Requirements

In thinking through what an Indigenous governing body would have to have in place to negotiate agreements and take on impact assessment powers, the Circle and IAAC identified elements of:

• Technical capacity, including professional and technical expertise, tools, information management systems, administrative and secretariat support, potential transportation requirements and other equipment, logistical systems to gather, store, and share the information and knowledge required for impact assessment, documentation systems; and

• Governance capacity, including a framework for management and administration, legal support, identification of boundaries where an agreement could apply, and rules, policies, procedures, and a division of responsibilities in the carrying out of impact assessment powers, duties and functions. Such Indigenous processes could serve a similar purpose to IAAC’s Practitioner’s Guide to Federal Impact Assessments.

6.2 Adequate Resourcing

The Circle believes that it will be important for IAAC to work with Indigenous communities to identify gaps in readiness, and to develop a framework for addressing them in the short and long term. The Circle recommends that IAAC ensure adequate resourcing to both negotiate co-administration agreements and carry out the powers, duties, and functions set out in the agreements.

6.3 Options for Supporting Readiness

The Circle has identified some options to address readiness gaps to support implementation of co-administration agreements:

• The Circle suggested that IAAC could facilitate access to federal resources, including scientists, technicians, and subject-matter experts in various fields related to impact assessment, and to the specialist information offered by federal authorities.
• Indigenous communities or organizations could come together to carry out powers, duties and functions collaboratively. Tribal Councils or regional or national Indigenous organizations or coalitions may also be in a position to lend expertise and resources.
• Federal funding could assist with capacity development. This is typically a longer-term strategy to build community-specific impact assessment processes, carry out internal staff training, develop tools and systems, and work with other communities and organizations to identify areas for collaboration and address territorial overlaps.
• Technical capacity could be developed through Agency or other training programs, participation or collaboration with IAAC on impact assessments, the undertaking of Indigenous-led impact assessments, and the procurement of equipment such as Geographic Information Systems.
• Governance capacity could be advanced through development of consultation protocols, internal policies and procedures, decision-making matrices, partnerships, streamlining decision-making, clarifying roles and responsibilities, and clarifying laws related to the environment.
• Territorial identification could be advanced through development of land-use studies and territorial maps, protocols with other Nations for shared/overlapping territory, modern treaties and self-government agreements, and for a such as Chiefs’ tables or tribal councils.
• The Circle felt that it will be important to ensure that capacity supports are available to support the participation of Indigenous women, girls, Two-Spirit, transgender, and gender-diverse+ people.

Figure 7: Some of the Potential Resources for Co-Administration

7. Path Forward

Co-administration agreements would serve as a new optional tool for Canada-Indigenous partnership during the federal impact assessment process. This discussion paper has provided an overview of considerations for implementation of this new tool and how it could be used to support and advance Canada-Indigenous partnerships in impact assessment. IAAC will be engaging with rights holders and partners, provinces, territories, industry and other stakeholders, about the potential for co-administration agreements within the broader context of other opportunities for Indigenous partnership in impact assessment. These discussions will be captured in a “What We Heard” report that will be published and shared. What we learn will inform co-development of proposed regulations and policies, and help IAAC identify and prioritize work to be done going forward to ensure that it best meets the needs of Indigenous communities in impact assessments.

7.1 The Circle’s Perspective

The Circle believes that co-administration can be an effective tool for Indigenous governing bodies with experience in impact assessment. The key feature of a co-administration agreement is that it can give the Indigenous governing body the same legal authority as the federal regulator to make specific decisions related to a federal impact assessment. This would allow them to exert a degree of influence and leadership in the conduct of an impact assessment that, within the laws of Canada, has largely been inaccessible to Indigenous governments until now. However, the Circle recognizes that this authority is limited to following and complying with the federal law. It is not the same as an Indigenous governing body having the authority to conduct its own assessment process under Indigenous law.

The Circle recognizes that even with the expansion of leadership potential being proposed through the concept of co-administration, the legislation does not allow for a full nation-to-nation relationship and continues to empower the Government of Canada with decision-making powers, which both respect and deny the inherent rights of Indigenous governing bodies. What is being proposed is a step forward, but it does not satisfy or fully respect Indigenous governmental responsibilities as stewards of the lands and resources in Indigenous homelands. The framework must be flexible and open to evolution in order to be viable as a pathway forward in realizing the objectives of reconciliation and decolonization of the relationship between the Government of Canada and Indigenous Peoples. The Circle encourages Indigenous governing bodies and the Government of Canada to make use of the opportunities available with this tool to build innovative and flexible arrangements that drive change and help to meet community needs. What we learn from having the courage to innovate and challenge the status quo today will help us to continue to improve and build constructive Indigenous-Crown relationships in the future.

7.2 A Roadmap for IAAC

Right now, we are at an early stage in this initiative. Much work needs to be done before co-administration agreements become available. The work that lays ahead includes developing regulations, policy, guidance, and procedures to guide how co-administration agreements will work.

Co-administration agreements would be just one of the mechanisms under the IAA that IAAC is using to maximize partnerships with Indigenous Peoples, and it is acknowledged that some Indigenous groups may prefer to participate in impact assessment in other ways. Both the Circle and IAAC therefore emphasize that negotiating co-administration agreements would always be optional.

Indigenous groups would continue to have the option to collaborate or engage with IAAC on a project-by-project basis, without the additional responsibility for co-administering the process. Additionally, the availability of this new type of agreement would not preclude an Indigenous group from carrying out an independent Indigenous-led assessment outside of the IAA.

IAAC is committed to exploring all of the ways these tools can be used to advance the power and decision-making authorities of Indigenous governing bodies in impact assessment. IAAC’s goal is to maximize Indigenous partnership and leadership in impact assessment.

IAAC proposes that once regulations are in place, an incremental approach should be taken to negotiating and implementing co-administration agreements. We will learn and adapt together as we grow the number of agreements and increase the degree to which administration and decision-making during the impact assessment process is shared.

What we learn together through dialogue during this engagement process will help to determine how IAAC proceeds with the next steps for making these tools available. We are embarking on an iterative process and recognize that neither IAAC nor Indigenous groups have experience building the kind of partnerships that will emerge in this new era. Thus, we are committed to taking the time needed to advance this work in collaboration with Indigenous Peoples, to remain flexible in our responses to what we learn along the way, and to respect that whatever comes out of the work we do in this phase will not be final and will remain changeable to meet the evolving needs of Indigenous communities.

Annex A - Discussion Guide

We are interested in your views on the options and considerations presented in this discussion paper. Your input will inform next steps towards co-development of a regulatory and policy framework for Indigenous co-administration agreements under the Impact Assessment Act. This dialogue will also inform other policies or guidance to maximize Indigenous partnership in impact assessment that do not require a co-administration agreement. The overall objective is to deliver high-quality impact assessments, while promoting cooperation with Indigenous Peoples, respecting rights, and ensuring consideration of Indigenous Knowledge.

The Circle of Experts and the Impact Assessment Agency of Canada developed th­­e questions below to support discussion with Indigenous Peoples, as well as industry, environmental groups, other stakeholders and the public. While some questions are directed at Indigenous audiences, most questions are general. Questions are not intended to be limiting and all views and input are welcomed.

Maximizing Indigenous partnership in impact assessment

1. For members of Indigenous groups, how could a co-administration agreement help to advance your leadership in impact assessment?

2. Conversely, do any of the options discussed in this paper risk limiting the ability of Indigenous Peoples to carry out their responsibilities to protect the environment in their territories?

3. Do you think that an overall approach to partnership with Indigenous Peoples that includes Indigenous co-administration agreements along with other collaboration opportunities is a viable long-term path for Indigenous governing bodies to actualize their governing authorities in impact assessment?

4. Taking on or sharing decision-making or other responsibilities related to impact assessment provides opportunities, but also comes with associated responsibilities and potential legal implications. There are also many opportunities for Indigenous groups to participate in or partner with the Impact Assessment Agency of Canada during impact assessments that are already available, without needing a co-administration agreement.

1. What are some key impact assessment responsibilities or decisions that your community would be interested in taking or sharing responsibility for undertaking through a co-administration agreement?
2. What are some key areas where you see your community preference to be collaboration with the Impact Assessment Agency of Canada, rather than taking on formal responsibilities or decisions during impact assessments?

Building capacity and readiness

5. For members of Indigenous communities that anticipate an interest in co-administration agreements, do you see this as a tool that you could use immediately? Or a future objective to work towards? In your reflection, are there any additional 'readiness' considerations that were not reflected in the paper?

6. What are some measures that could help to support the readiness of Indigenous governing bodies to negotiate and implement co-administration agreements?

Regulations and policy framework

7. Implementation of co-administration agreements would require both a supporting policy framework and regulations. Regulations are a legal instrument, so they create legal requirements, but it is generally a long process to amend them. Policy, although not legally-binding, can generally be developed and amended in less time. It is therefore more flexible and adaptable, although the Circle of Experts cautions that policy should be co-developed, and that shared decision-making should be required to amend the policy. In addition to enabling the Minister of the Environment to enter into agreements, the paper proposes that regulations require consideration of the Indigenous governing body's authorization to represent rights holders, and readiness to exercise powers in a way that is consistent with the Impact Assessment Act. Policy could guide negotiation and implementation of agreements, including establishing criteria for sharing certain powers.

1. What are the types of legal requirements that you see being included in the regulations themselves?
2. What types of criteria or considerations are better suited to a more flexible, but less binding, policy instrument?
3. The Impact Assessment Act only allows powers to be shared that are between the planning phase and the decision-making phase, with the exception of the decision on whether an impact assessment is required (under section 16). Other authorities such as post-decision follow-up, monitoring, and enforcement are outside the scope of what can be included in a co-administration agreement. Are there any other powers, duties, or functions in relation to impact assessment that should not be possible to include in a co-administration agreement?

Negotiating agreements

8. As an Indigenous group, proponent, or stakeholder, would having formal agreements negotiated ahead of assessments increase certainty in the process for you?

9. Co-administration agreements must specify the lands where the agreements will apply. On lands where there is a history of shared use and occupation, it will be important to identify who exercises which powers on those lands and how jurisdictions will work together. The discussion paper identifies options to address this: joint representation through a tribal council or other joint entity, having an agreement with only one Indigenous governing body (with consultation/collaboration of others), or having agreements with multiple Indigenous governing bodies on overlapping lands.

1. What option(s) for managing this type of scenario do you think are most workable?
2. What could the Impact Assessment Agency of Canada do to support Indigenous governing bodies who want to work together during assessments?
3. Do you have other recommendations for managing impact assessment processes in overlapping territories?

10. The Circle suggests establishing an Indigenous third party who would make recommendations to the Impact Assessment Agency of Canada and the Minister of the Environment about the eligibility and readiness of an Indigenous governing body to exercise specific impact assessment powers, and the lands where a co-administration agreement would apply.

1. Do you see this as a reasonable way to help ensure a fair and transparent process? Do you have alternative suggestions to ensure equity in this process?
2. What would be an appropriate role for an Indigenous third party during the negotiation process?

Implementing agreements

11. Do you have ideas for how federal, provincial and Indigenous jurisdictions could work together effectively during impact assessment processes?

12. What challenges do you see in the implementation of co-administration agreements? Do you have suggestions on how to avoid or overcome these challenges?

13. How can the Impact Assessment Agency of Canada work with proponents and other assessment participants to address challenges and support successful implementation of co-administration agreements?

Next steps

14. What should next steps be for working in consultation and cooperation with Indigenous Peoples to advance this work and to maximize Indigenous partnership broadly?

Other

15. Please share any additional reactions or suggestions.

Annex B – Circle of Experts Members

Taiaiake Alfred

Taiaiake Alfred is a Kahnawà:ke Mohawk philosopher and governance consultant. He has a degree in history from Concordia University and a Ph.D. in political science from Cornell University and has been advising First Nations governments and organizations for over three decades. Taiaiake is a National Aboriginal Achievement/Indspire laureate and the author of four acclaimed books on Indigenous governance.

Walter Andreeff

Walter Andreeff lives in Métis Nation of Alberta (MNA) Region 5 at Slave Lake. He is a member of the MNA and a harvester and hunter. He currently works for Region 5 as the Consultation Coordinator. He has knowledge and experience in Indigenous-led land use assessments, knowledge of best practices for Indigenous participation, collaboration, and partnership in environmental/impact assessments. Walter has a science degree in Environmental Geology and has worked with Alberta and British Columbia Indigenous communities over many years.

Aaron Bruce (Kelts'tkinem)

Aaron is a member of the Squamish Nation and has been practicing law since 2004 including as a partner at one of the leading aboriginal law firms in Canada. He has recently started his own law firm, Aaron Bruce Law, continuing to represent Indigenous Nations regarding aboriginal rights & title, natural resource law, and Indigenous jurisdictional and governance issues. He has represented First Nations in litigation, regulatory hearings, and negotiations with other levels of government and industry.

Gordon Grey

Gordon Grey is a member of Pilick the Wolastoqey community of Kingsclear. He has a western science degree from the University of British Columbia in Earth Ocean and Atmospheric science. His Grandfather is Samaqan Wimpie Charles Solomon, a medicine man. Gordon spent his youth on the land. He recognizes the importance of protecting Wolastoqey and Indigenous ways of life and continuing the connection to the land and non-human relations. Gordon works for the Wolastoqey Nation in New Brunswick (WNNB) as the Impact Assessment Manager.

Nalaine Morin

Nalaine Morin is a nationally recognized professional with extensive technical experience in mining and environmental assessments. She has recently joined the executive team with Skeena Resources Limited as the VP Sustainability. She provides services in third party technical review, impact benefit agreement negotiations, community engagement, and natural resource management. She holds a Bachelors of Applied Science degree from UBC and a Mechanical Engineering Technology Diploma from BCIT.

Stanley Oliver

Stanley Oliver is an Inuit outdoorsman and well-known volunteer through-out Labrador, with over 35(+) years of work experience and knowledge in natural resources, he has held senior management and leadership positions with the Nunatsiavut government and the Atlantic Policy Congress of First Nations Chiefs Secretariat. Stanley holds a Diploma from Memorial University of NL in Natural Resources, has several Certificates in Indigenous Governance and is a Certified Engineering Technician. He values positive collaborative partnerships with government and business while prioritizing grassroots concerns. He currently holds the position of Manager for the Indigenous Office of Trades NL.

Marci Riel

With more than 20 years of experience working with governments and Crown corporations, Marci Riel is the Senior Director of Energy, Infrastructure and Resource Management at the Manitoba Métis Federation, the national government of the Red River Métis. As the former Indigenous Co-Chair of the Line-3-Indigenous Advisory and Monitoring Committee and the Red River Métis representative on the Canada Energy Regulator’s Indigenous Advisory Committee, her role is to best represent the needs of Red River Métis citizens and to ensure project impacts to rights, claims and interests are considered.

Pailin Chua-oon Rinfret

Pailin Chua-oon Rinfret is the Director of the Eeyou Marine Region Impact Review Board, responsible for the environmental and socio-economic Impact Assessment of projects in the Eeyou Marine Region. Her research in New Zealand investigated the quality of Cultural Impact Assessment (CIA) reports, and the differences in practice between CIA in Indigenous communities and other forms of Impact Assessment. She is dedicated to improving Impact Assessment by enabling Indigenous participation and adequately considering Indigenous values, needs, perspectives, and aspirations.

Footnotes