Impact Assessment Act: More direction is needed
We need to know how the Crown will fulfill its duty to consult with Indigenous people.
Bill C-69, the awkwardly named Impact Assessment Act and Canada Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, has been reviewed and amended in the House and is now making its way through the Senate.
The CBA’s Environmental, Energy and Resources Law Section, as well as the Aboriginal Law Section, commented on the bill when it was before the House, and have added further comments following from the amendments made there.
In a letter to the Senate Committee on Energy, the Environment and Natural Resources, the Sections say they are pleased with some changes made by the House, such as adding “scientific integrity, honesty, objectivity, thoroughness and accuracy” to the principles applicable to the exercise of power by the Minister, and the amendments requiring the Impact Assessment Agency to give the public the opportunity for “meaningful” participation.
Other changes may not have gone far enough. For example, the CBA Sections recommended that the impact assessment process include a consultation plan to indicate, among other things, how the process is aligned with the government’s duty to consult with Indigenous people. The amendments “hint at our recommendation that a consultation plan is necessary,” the Sections say, “but it does not require or even recommend a plan.”
“The change does not mandate that the impact assessment process be informed by clear and unequivocal directions on how the Crown will fulfill its duty to consult and accommodate.”
As well, while the government has made its commitment to the UN Declaration on the Rights of Indigenous Peoples clear in the preamble, the bill lacks concrete directions to demonstrate how that commitment will materialize in the impact assessment process.
The Sections note that while the bill has been amended to require that the Agency “take into account” comments received from Indigenous groups that had been consulted, it doesn’t require consultation or sharing information on known potentially unacceptable effects.
Based on these and other shortcomings, the Sections recommend the Senate make further changes to improve the bill.