In our post dated June 27, 2012: Canada’s Federal Budget: Sensible Streamlining or Unwarranted Removal of Environmental Protection we discuss the implications of the recent federal budget bill for environmental protection in Canada.
Aboriginal groups are among several who have voiced the concerns referenced in our post about the bill’s removal of environmental protections. Even where the changes ostensibly retain protection for Aboriginal interests, the precise scope of that protection remains unclear.
So, for example, protection under the Fisheries Act will still apply to fish that support Aboriginal (along with commercial and recreational) fisheries. An Aboriginal fishery is defined as one where fish are “harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food or for subsistence or for social or ceremonial purposes”.
It is unclear however that this definition includes commercial but unlicensed fisheries that operate pursuant to an Aboriginal or treaty right. (Commercial fisheries are only protected where they operate under a license).
The Act also empowers the government to exempt waters from the definition of “Aboriginal fishery” and, so, from the protection of the Act.
Bill 38 also replaces the Canadian Environmental Assessment Act, with the Environmental Assessment Act 2012, which is limited, at its narrowest, to an assessment of environmental impacts on fish, aquatic species, and migratory birds.
However, these impacts are extended with respect to Aboriginal peoples, to an effect occurring in Canada of any change that may be caused to the environment on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
On the face of it Aboriginal interests are protected but it is unclear, for example, that “the current use of lands and resources for traditional purposes” encompasses all Aboriginal and treaty rights.
More insidious perhaps than the reduction in direct statutory protection, is the associated potential reduction in Aboriginal consultation where there is no longer a requirement for an approval that triggers the Crown’s duty to consult. The Crown must contemplate conduct that may affect an Aboriginal claim or right for the duty to arise.
The grant of an approval is a clear-cut example of such conduct and, usually a transparent process in which adequacy of consultation may be assessed. Often, the approval procedure (or the appeal procedure for such approval) will be the forum in which the adequacy of consultation can be challenged and adjudicated.
The process becomes opaque where the requirement for an approval is lost. So, for example, Bill C-38 removes decisions on major pipelines from the National Energy Board to the Cabinet. While this should still engage the honour of the Crown and the duty to consult, it becomes a political decision lacking the transparency and the due process of an approval. It also lacks a process for challenge save through the potentially expensive and difficult recourse of a challenge in the courts.
For those projects that need neither permit nor Cabinet approval, it becomes even more difficult to identify Government conduct that triggers the duty to consult, save perhaps where there is a “strategic, higher level decision” such as that found to trigger the duty by the Supreme Court of Canada in Sekani.
Some may argue that there are “strategic, higher level decisions” behind Bill 38 itself, which engage the honour of the Crown and which in turn required consultation before implementation.