Stoney Nakoda Nations Review of the Discussion Paper on Indigenous Impact Assessment Co-Administration Agreements

These comments are submitted to the Impact Assessment Agency of Canada (IAAC) by the Stoney Consultation Office. The Stoney Consultation Office works with Stoney Tribal Administration on behalf of the Stoney Nakoda Nations (“Stoney”), comprising Bearspaw First Nation, Goodstoney First Nation, and Chiniki First Nation.

The Stoney Nakoda Nations are self-governing bodies under the authority of Treaty No. 7 and provide leadership and direction through the duly elected Chiefs and Councils of the member Nations, collectively known as the Stoney Tribal Council. The Stoney Nakoda have constitutionally recognized Treaty and Aboriginal rights and interests (“Section 35 rights” and/or “Inherent rights”) within Îyãħé Nakoda Makoche (Stoney Traditional Territory). Stoney Nakoda reside mainly on Indian Reserve Lands at Mînî Thnî (Morley) Alberta (I.R. #142, #143, #144), Eden Valley (I.R. #216), Rabbit Lake (I.R. #142B), and Bighorn (I.R. #144A).

Background

The Impact Assessment Act, 2019 (“IAA”) includes mechanisms for Indigenous-Canada partnerships in the development and execution of impact assessments.

Within paragraphs 114(1)(d) and 114(1)(e), which outline the Minister’s powers, the IAA allows the Minister to:

“enter into agreements or arrangements with any jurisdiction referred to in paragraph (e) or (f)”.

Paragraph (e) further stipulates that the Minister can:

“enter into agreements or arrangements with any Indigenous governing body not referred to in paragraph (f) of the definition jurisdiction in section 2 to:

• Provide that the Indigenous governing body is considered to be a jurisdiction for the application of this Act on the lands specified in the agreement or arrangement, and
• Authorize the Indigenous governing body, with respect to those lands, to exercise powers or perform duties or functions in relation to impact assessments under this Act – except for those set out in section 16 – that are specified in the agreement or arrangement”

The Discussion Paper on Indigenous Impact Assessment Co-Administration Agreements (“Discussion Paper”) was co-developed by the Impact Assessment Agency of Canada (IAAC), and a Circle of Experts (“Circle”) made up of First Nations, Inuit, Métis, and experts recommended by Indigenous individuals or organizations. The Discussion Paper is meant to initiate consultation on proposed co-administration agreements, as referred to above.

Co-administration agreements, negotiated with the Minister of Environment and Climate Change, would allow Indigenous or co-management bodies to take on certain duties under the IAA for federal impact assessments on specifically defined lands. However, regulations and guiding policies must be established before these agreements can be initiated with Indigenous groups.

It is thought that co-administration agreements could offer an enhanced framework for collaboration with Indigenous Peoples, more accurately reflecting their governance, stewardship rights, and responsibilities. These long-term agreements could ensure clarity for all stakeholders regarding the roles of Indigenous decision-making during future impact assessments.

Stoney has completed this review and consideration of the Discussion Paper with a focus on Stoney’s Section 35 rights and/or Inherent rights, and other areas of interest to Stoney. The review relied on the following documents, including:

• The Discussion Paper on Indigenous Impact Assessment Co-Administration Agreements,
• The Impact Assessment Act, S.C. 2019, c. 28, s. 1,
• The Regulatory and Policy Framework Timeline,
• Circle of Experts website,[1] and
• Indigenous Impact Assessment Co-Administration Agreement Regulations website [2]

The Discussion Paper’s Appendix A included specific questions for comment. Further, within the Discussion Paper it was noted that consultation was targeted to understand Indigenous viewpoints and perspectives, feasibility and interest, identify any new consideration, and maximize Indigenous leadership in impact assessment. Stoney’s response keeps the questions in Appendix A and these additional considerations in mind.

Overall, the concept of Stoney having more legislative power over projects proposed within the Îyãħé Nakoda Makoche is positive. However, for co-administration agreements to have real, transformative action for Stoney, there must be the ability to guide the assessment process and make informed decisions based on outcomes. While these decisions can be grounded in Canadian acts, regulations, or policies, the decisions must be allowed to equally rely on Stoney principles and cultural values.

Clarity of Concept

While, as noted, the concept of co-administration agreements is promising, there is a lack of detail on the impetus for initiating these types of agreements with Indigenous groups.

Stoney is primarily located in an area where there are limited projects navigating the IAAC process. Instead, Stoney primarily deals with Canadian Energy Regulator (CER) projects, projects approved by Parks Canada, and provincial approval processes.

Additional clarity is required on how Stoney could be prioritized for a co-administration agreement for CER approvals, how Parks Canada may be made aware of processes/requirements under co-administration agreements and to adhere to them, and how cooperation with the provincial Crown may interact (see below section on Cooperation Agreements).

In addition, further discussion and clarity is required on how co-administration agreements could shape Stoney’s involvement in the development and operation of review panels. The bulk of processes which Stoney is involved in include review panels.

Context

The abbreviated context section does not include details about historic and contemporary cumulative effects which are at the forefront of Stoney’s considerations when dealing with projects that trigger an impact assessment process.

Additional clarity is required on how co-administration agreements can improve assessment considerations of cumulative effects through increased Indigenous oversight.

Stoney sees value in greater involvement in planning phase activities such as development of Stoney directed Tailored Impact Statement Guidelines to facilitate this greater consideration.

Circle of Experts

The Circle of Experts is noted to be a sub-committee of the Indigenous Advisory Committee (IAC). The Circle and IAC do not have representatives from southern Alberta, Treaty No. 7, nor from Stoney. Further, there was no early engagement with Stoney on concepts or details contained within the Discussion Paper.

Stoney feels that commenting on concepts is different than developing them; further, consensus from the Circle of Experts and IAAC does not equal consensus from Stoney.

As this process progresses and the regulations and/or policies are being developed, Stoney requires more fulsome involvement in the development stages to ensure principles related to Stoney’s Section 35 rights and/or Inherent rights, and culture, are considered.

Cooperation Agreements

While it is understood by Stoney that the Government of Canada is committed to meeting the objective of “one project, one assessment”, this, in relation to cooperation agreements and potential conflicts with co-administration agreements, must be considered.

When an impact assessment is required, the IAAC may enter into cooperation agreements with provinces or territories to reduce duplication and increase efficiency. This could create conflicts between Stoney and provincial jurisdictions as some jurisdictions, including Alberta, require a less rigorous consideration of Indigenous rights than is required by Stoney.

This item was noted as a challenge by the Circle within the Discussion Paper and needs further clarification prior to regulation and policy being developed.

If a project occurs within an area covered by the future potential Stoney co-administration agreement, whose approach and requirements would prevail, Stoney’s or those of the provincial Crown? Would Stoney be forced to adhere to limiting provincial requirements, or would the province be required to adhere to Stoney’s more robust requirements for assessment of Stoney’s Section 35 rights and/or Inherent rights, and culture?

Territorial Overlap

Territorial overlap exists. This is particularly true for Stoney, a Treaty No. 7 Nation who, owing to the nature and content of the Treaty, share their Treaty lands with other Treaty No. 7 Nations, including Siksika, Kainai, Piikani, and Tsuut’ina.

The Discussion Paper includes punitive language in relation to unresolved territorial overlap, indicating that:

“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.”

Requiring joint representation of sovereign Indigenous Nations or collaboration through a single body, where this type of representation is not typical or preferred, minimizes the interests of these individual Nations and infringes on Stoney’s governance rights. Not all Indigenous Nations have the same priorities or interests. Stoney is concerned that larger entities, like for example the Blackfoot Confederacy, or Otipemisiwak Métis Government, may make decisions in favor of their constituencies at the expense of smaller Nations like Stoney.

The issue of territorial overlap must be considered from a Treaty Nation-based lens and must have flexibility in approach to allow for multiple co-administration agreements to ensure various cultural and rights-based considerations are included, where required.

Type of Decision Making/Involvement

There are aspects within an impact assessment process that are directly linked to Indigenous rights and interests, and other aspects that are more indirectly linked.

More clarity is required on whether co-administration agreements allow for Indigenous decision making over aspects of the IAA process that is not directly linked to Indigenous rights.

Post-Decision Activities

As noted by the Circle and within the Discussion Paper, Stoney involvement in post-decision activities is a crucial aspect to ensuring lifecycle consideration of Stoney’s Section 35 rights and/or Inherent rights, and culture.

The Discussion Paper specifies that involvement in the conditions of approval are considered. This would allow for appropriate conditioning to require collaboration with government departments or agencies during lifecycle regulation of projects. Stoney looks forward to this concept being carried forward into regulation and/or policy development.

Economic Benefit

Within the Discussion Paper, 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.”

This does not highlight the important consideration of Crown accommodation. Crown accommodation and considerations from both Stoney and IAAC perspectives must be considered prior to regulation and/or policy development.

Final Determination

The Discussion Paper specifies that the:

“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.”

This is not full authority to make a final determination. Stoney agrees with the Circle that decision-making is a key feature of self-determination and must be a part of co-administration agreements with Stoney.

Additionally, there must be future discussions with Stoney on what will happen when there are differing opinions on the final determination, if it is to be shared between Stoney and the IAAC. This is important as Stoney’s cultural values and approach may lead to differing conclusions. In particular, the IAAC feels that the final determination must be considered from the perspective of the national public interest, which can conflict with Stoney cultural priorities. Public interest determinations chronically undervalue impacts to Indigenous rights and bind Stoney to a framework that would unduly limit the interests of Stoney leadership and members.

Duty to Consult

Currently, language within the Discussion Paper introductory sections is soft in relation to the Duty to Consult, which is the ultimate driver of Indigenous involvement in assessment processes to date. Currently, the Discussion Paper indicates that the IAAC must:

“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.”

This does not speak to the Crown’s Duty to consult, and where appropriate, accommodate Indigenous groups when the Crown considers a decision or action that may adversely impact potential or established Aboriginal or treaty rights.

While it is acknowledged that this Discussion Paper is attempting to broaden the conversation beyond the Duty, this Duty should still be reflected as it speaks to the legislative framework within which the IAAC operates.

Consent

In numerous instances, the Discussion Paper refers to the concept of Free, Prior and Informed Consent (FPIC). For example:

“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.”

And

“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 contrasts with positioning that:

“IAAC’s view is that, in most cases, the power to make the final determination would rest with the Minister or Governor in Council.”

In Stoney’s view, FPIC centres on obtaining Stoney’s permission for activities undertaken in the Îyãħé Nakoda Makoche – consent meaning authorization or voluntary agreement for something to occur. Expressing that consent is a commitment, but not actually allowing for consent to alter the outcome, is meaningless.

The IAAC must grapple with the potential outcome of projects where consent is not provided by Stoney, and how they will proceed prior to entering into co-administration agreements. The current approach experienced by Stoney, of evaluating Stoney’s input, and determining that the public interest is weighted more heavily, does not support Reconciliation.

While it is understood that co-administration agreements must be bound by the requirements set out in the IAA, the agreements must also include Stoney’s cultural values and governance principles to be successful. This means properly weighting Stoney’s FPIC in contrast to public interests for projects in the Îyãħé Nakoda Makoche, as project approval is not a requirement in the IAA.

Limiting Language

As noted within the Discussion Paper, the Circle notes 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.”

This concept of the development of co-administration agreements ‘not being enough’ is reinforced throughout the Discussion Paper and is emphasized through quotes from the Circle members:

“Be realistic. Acknowledge that it’s under Canada’s system.”

While Stoney acknowledges the current colonial system impedes the full realization of Indigenous governance systems, Stoney will not proceed with co-administration agreements that do not respect Stoney’s Section 35 rights and/or Inherent rights and cultural considerations. Any co-administration agreement contemplated must concede Canadian authority, in some instances, to allow for exertion of Stoney authority.

A co-administration agreement with Stoney must be just that, an agreement. This means alignment on how Stoney Section 35 rights and/or Inherent rights and cultural considerations will be interwoven in the process, as well as agreement, and where applicable, adjustment, of processes and timelines to ensure they are not only in alignment with the IAA but also in alignment with Stoney’s needs as part of a nation-to-nation understanding.

Capacity

Capacity was touched upon within the Discussion Paper with acknowledgment that Indigenous groups are diverse, and their capacity for co-administration may increase over time. The Discussion Paper acknowledges that:

“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.”

However, Stoney is concerned there will be barriers to Stoney’s ongoing involvement through the contemplated layered regulation and policy development.

As these regulations and policies are being developed, Stoney will be required to review and comment on multiple iterations, follow progress through approval processes, and ensure the interests of Stoney’s members are upheld.

This will all be completed without core capacity from the IAAC for ongoing involvement. Instead, Stoney is typically expected to develop and submit numerous funding applications, track these funding applications following approval of the funding application, retain necessary expertise, and have internal capacity to manage these processes. Furthermore, this does not touch upon the required resources for negotiating and implementing the co-administration agreement itself, which the Discussion Paper acknowledged would be resource intensive.

The Circle noted:

“…that the framework must include processes and adequate funding for capacity.”

Stoney agrees with this recommendation.

Adequate funding, as defined by Stoney, and not the IAAC, must be provided both for capacity for the regulation and policy development, as well as ongoing core capacity for co-administration negotiation and implementation.

Stoney notes that the issue of core capacity is one Stoney experiences relative to all federal government departments. Stoney notes that submission of federal funding applications, including those to the IAAC, does not guarantee Stoney the funding required to participate in federal government initiatives. Stoney notes instances where Stoney expended significant time and effort to develop and submit funding applications, where funding was not subsequently approved. Stoney is then forced to use its limited resources to participate. Annual core capacity allocations from all federal government departments, including the IAAC, would enable Stoney’s participation in all areas of federal government initiatives with the potential to impact Stoney Section 35 and/or Inherent rights.

Timing of Process

There is no set timeline for consideration of feedback on the Discussion Paper or development of associated regulation/policy. Stoney is concerned about the uncertainty of this process going forward with potential impending political change following a federal election. Stoney hopes movement towards co-administration agreements can continue regardless of political upheavals and urges the IAAC and Circle to consider steps to solidify this process.

Conclusion and Next Steps

Stoney expects the information and feedback in these comments to provide the foundation for further consultation with the IAAC and the Circle to reflect Stoney priorities in future stages of co-administration agreement regulation/policy. We look forward to your consideration of our suggestions and future dialogue.

Sincerely,

William Snow

Acting Director of Consultation

Stoney Tribal Administration

[1]https://www.canada.ca/en/impact-assessment-agency/advisory/advisory-groups/indigenous-advisory-committee/circle-experts.html

[2]https://www.canada.ca/en/impact-assessment-agency/programs/participation-indigenous-peoples/indigenous-cooperation-agreement-regulations.html