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TOOLKIT MENU

Canadian Legal Systems Module

This Module outlines tools for First Nations to participate in federal and provincial environ- mental assessments (EAs). Canada and Ontario each have their own laws that govern how they conduct EAs, which projects require an EA and what the EA will examine. This Module does not include details about the EA laws of Canada and Ontario, as these laws change from time to time. If a project is being proposed on your lands or waters, it is a good idea to consult with a lawyer to find out more about the specific legal requirements and the EA process.

Instead, this Module focuses more generally on the best practices for participating in EA. For all EAs, the purpose of the process is to identify and assess potential impacts of a proposed project on the surrounding environment. This Module goes into detail about how First Nations can participate in and direct EAs.

There are three sections in this Module (click the links below to download each section):

Section 1 – Getting to Consent: UNDRIP, Inherent Jurisdiction and Impact Benefit Agreements

This section provides a summary of rights under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including free, prior and informed consent (FPIC); how those rights should inform EA; and how First Nations can leverage these rights in an EA to exercise their inherent jurisdiction and get to consent.

Section 2 – Duty to Consult and Accommodate

This section includes an overview of the Crown’s duty to consult and accommodate First Nations about potential impacts on their existing and asserted Aboriginal and treaty rights. The Module includes checklists and helpful tips about key elements of the duty to consult and accommodate, and about how to build a good consultation record in case the EA decision is challenged.

Section 3 – Advancing Indigenous Jurisdiction by Participating in EAs

This section outlines the many opportunities for First Nations when it comes to participating in EAs. Opportunities can include accessing funding for studies, ensuring that projects are only proceeding with accurate information, and influencing conditions on projects that do go ahead. There are also challenges, such as encounter- ing tight timelines or disagreements about the scope of an EA. This section summarizes tips for dealing with and pushing back against those challenges, such as checklists and strategies for participating in all stages of an EA.

Traditional Knowledge and Environmental Assessments Module

This Module assists in decision making regarding a determination of if and under what conditions Traditional Knowledge (TK) should be shared
as part of a public impact assessment process. This module emphasizes self-determination and governance over your own knowledge. You are caretakers of the knowledge that has been passed on from generation to generation to support the well-being of your Nation, your community and future generations. It is important to employ strategies to ensure you maintain sovereignty over your own knowledge, data, information, maps, etc. that will be generated from your participation in impact assessment processes. The impact assessment is a public process, which means the information generated from it becomes accessible to the public, proponents, governments and others. It is advisable to be cautious when deliberating about what knowledge you will share, when it will be shared, and under what conditions.

The first part of this Module is focused on assisting you in conceptualizing TK on your own terms and assessing the value of sharing your knowledge for the purposes of an environmental assessment (EA). This section offers key considerations to assist with your decision to share and/or protect TK based on a risk assessment.

The second part of this Module guides you through a flexible process for leading and conducting your own TK study. It is important to maintain authority and jurisdiction over your own knowledge, just as you do of your lands and territories.

The third part of the Module assists you with developing your own TK protocol to guide decision making. First Nations are increasingly developing their TK policies, protocols and guidelines to assist them in maintaining governance and management over their own knowledge. These guidelines are intended to not only protect your knowledge but your knowledge holders. This TK Module includes the following topics:

  • Considerations in Indigenous/Traditional Knowledge and EAs;
  • Conducting an Indigenous/Traditional study for the purposes of EAs; and
  • Developing your own TK protocol.

Indigenous Laws Module

This Module deals with how First Nations use their own laws in the environmental assessment (EA) process. It includes information and discussion about the revitalization and application of Indigenous law to EA processes, drawing on the work of Indigenous scholars and Knowledge Holders, including lawyers and academics, who have focused on identifying and asserting Indigenous laws in the Canadian legal system. Those Indigenous laws are based on knowledge provided by Elders, Indigenous lawyers and academics, and Knowledge Holders. This Module also considers sources and historic interpretation of Indigenous law, and sets out examples of how some First Nations have revitalized and applied Indigenous law in an EA context.

What is included in this Module is not an exhaustive list of Indigenous law sources or practices First Nations can draw on. Many First Nations may find their laws rooted in other processes and sources, which do not necessarily fit neatly within the frameworks and categories that are discussed here. There are multiple sources for Indigenous laws and they can be ex- pressed in different forms and structures. First Nations should consider the following information as offering some tools that can help First Nations structure their own unique laws, but they are not the only tools that are available.

With that in mind, the Module offers several methods and sources that First Nations may consider in identifying their own laws for the purpose of participating and asserting their laws in EA processes. This Module is divided into the following sections:

As discussed in the Canadian Legal System Module, when we talk about EA, we are referring to processes required under federal and provincial law to review the possible environmental impacts of a project before it is approved. The focus is on EA under federal and provincial laws. However, many First Nations across Canada have conducted their own EA for a project, whether by asserting jurisdiction over projects proposed in the First Nation’s traditional territory or EAs for projects on reserve, and we include examples of these types of EAs in this Module too. The focus of the Indigenous Laws Module is about how First Nations have guided and informed, and can continue to guide and inform, the EA process based on their own laws.

SUPPLEMENTARY TOOLS & RESOURCES

Developing Your Own TK Protocol

This section in the Traditional Knowledge (TK) Module offers you guidance for how to develop your own TK protocol, based on similar initiatives taken by other Indigenous peoples in Canada (First Nations, Inuit and Métis). Ideally you would have a TK protocol already in place before being approached by external interests for your knowledge. Developing a TK protocol ensures that you are in a position to assess the risk and benefit of sharing your knowledge as part of a public impact assessment
process.

It is important for you to convey or define your own concept of TK. It will not be the same as proponents’ or governments’ ideas of what this knowledge is. It is also important to represent your TK in your own language. It is important to represent your knowledge according to your own Nation’s cultural understanding, and ideally in your own language.

Note in this section, TK and IK (Indigenous knowledge) are used interchangeably. Both terms are used in Canada. TK is term often used in the United Nations Declaration on the Rights of Indigenous peoples. IK is the term used in the Impact Assessment Act and other federal legislation.

SUPPLEMENTARY TOOLS & RESOURCES

Conducting a First Nations Traditional Knowledge (TK) Study for the Purpose of Environmental Assessment

This module of the Toolkit is intended to guide you through potential approaches to lead your own Traditional Knowledge (TK) study for the purposes of an environmental or impact assessment process. “Indigenous Knowledge” or IK is another term that is broadly used, including by the Impact Assessment Act. It is important that you use the terminology that your community or organization is most comfortable with.

As noted in the Environmental Assessments Module, environmental assessments (EAs) are public processes legislated through federal, provincial or territorial governments in Canada. EAs are intended to support government planning and decision making. It is important to keep in mind, as you work your way through the EA process, that whatever information you share, even if confidential, can still be made public in particular circumstances. There are also growing trends and developments in the broader context that can inform your TK approach in EAs, especially in protecting your knowledge from misuse.

The TK study will generate documents, maps and databases of knowledge that was primarily held and expressed orally and through lived experience. Once documented, they can become “knowledge” or “data.” You may decide it is important to share your knowledge, but it is equally important to know how to protect or govern how that knowledge will be utilized by others for the benefit of your community. Many First Nation share this concern and have developed protocols to protect knowledge from misuse. Indigenous data sovereignty is an important idea and practice that has emerged in recent years to guide the protection of your knowledge.

SUPPLEMENTARY TOOLS & RESOURCES

References & Resources

NOTE: All URLs listed were active at the time of writing this publication. If any URL listed is no longer active, search the document’s name online, or contact the organization directly.