Let’s talk Indigenous Impact Assessment Co-Administration Agreements

Discussion paper on Indigenous Impact Assessment Co-Administration Agreements

Strong collaboration and partnership between the federal government and Indigenous Peoples is important for achieving the best possible outcomes for impact assessments. This discussion paper focuses on a potential new mechanism for partnership under the Impact Assessment Act (IAA) — Indigenous co-administration agreements. Through these agreements, Canada and Indigenous governing bodies or other eligible entities could formally share decision-making at key points throughout the federal impact assessment process.

Before entering into these agreements, regulations must first be in place.

This discussion paper was co-developed by the Impact Assessment Agency of Canada (IAAC)

Discussion paper on Indigenous Impact Assessment Co-Administration Agreements

Strong collaboration and partnership between the federal government and Indigenous Peoples is important for achieving the best possible outcomes for impact assessments. This discussion paper focuses on a potential new mechanism for partnership under the Impact Assessment Act (IAA) — Indigenous co-administration agreements. Through these agreements, Canada and Indigenous governing bodies or other eligible entities could formally share decision-making at key points throughout the federal impact assessment process.

Before entering into these agreements, regulations must first be in place.

This discussion paper was co-developed by the Impact Assessment Agency of Canada (IAAC) and the Circle of Experts made up of First Nations, Inuit and Métis, and experts recommended by Indigenous individuals and organizations. It is meant to open the national conversation about co-administration agreements. The paper explores potential benefits, limitations, challenges, and options for regulations and policy. Input will also inform other initiatives that would support the implementation of this new mechanism.

Have your say

We are seeking feedback from First Nations, Inuit and Métis, provinces and territories, industry stakeholders, environmental non-governmental organisations, other stakeholders, and interested public on the discussion paper. The comment period starts July 30, 2024, and ends October 28, 2024.

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Read the discussion paper and then answer the discussion guide questions or provide your own comments or upload your submission.

Submissions may be made public in the official language in which they are received. You can consult French submissions on the French page.

We will consider all feedback received to inform potential next steps towards co-development of a regulatory and policy framework for Indigenous co-administration agreements.

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    **Submissions can be uploaded below the discussion guide questions**

    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.

        a) 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?

        b) 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.

        a) What are the types of legal requirements that you see being included in the regulations themselves?

        b) What types of criteria or considerations are better suited to a more flexible, but less binding, policy instrument?

        c) 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.  

        a) What option(s) for managing this type of scenario do you think are most workable?

        b) What could the Impact Assessment Agency of Canada do to support Indigenous governing bodies who want to work together during assessments? 

        c) 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.   

        a) 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? 

        b) 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.

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