Supporting Indigenous communities with environmental management plans
9 August, 2019 | Blog
Indigenous rights were formally enshrined in Section 35 of Canada’s Charter of Rights and Freedoms, but the courts have come to clarify Indigenous rights and the government’s fiduciary duty to consult under the Constitution Act, 1982
Internationally adopted by the General Assembly in 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) set a benchmark for governments to employ when addressing Indigenous rights and title. Canada voted against the declaration largely because it is a natural resource economy. Recent governments, including the B.C. government and the Government of Canada, have come to understand the value of UNDRIP and have since drafted enabling legislation that is likely to pass.
Governments for multiple jurisdictions are now committed to addressing the interests of Indigenous communities through reconciliation. Adopting and legislating UNDRIP comes with an obligation to uphold the internationally accepted notion of “free, prior, and informed consent” (FPIC).
The role of environmental management plans
Environmental management plans (EMPs) can allow Indigenous groups to best understand how their rights stand to be affected, both in terms of impacts and benefits. Plans are a key means of addressing social and ecological risk uncertainties associated with development proposals located on ancestral lands and within unceded traditional territories.
An effective EMP addresses development activities during the project construction, operational, decommissioning and closure phases. It prescribes measures to avoid, mitigate or effectively manage residual effects to valued ecosystem components (VECs). Use of standard best management practices (BMPs) and best available technologies (BATs) is essential for environmental protection. When avoidance and mitigation measures are not sufficient to prevent residual effects, proponents must undertake legal responsibilities to compensate or offset residual effects. Monitoring is critical to all project phases.
Developing uniquely structured EMPs also ensures community involvement in the decision-making process. This expertise in adaptive management employs various other disciplines during Crown consultation proceedings and proponent engagement processes through to project development activities. Indigenous communities help identify environmental risks so we can more rigorously examine the potential of VEC effects through focused monitoring and structured evaluation. What is learned through environmental monitoring under adaptive management principles fosters informed consent. This ensures projects move forward responsibly in a manner that benefits Indigenous communities while respecting their inherent rights and title.
A seven-stage approach for seven generations
Indigenous governing bodies are taking a more prominent role in setting project approval conditions within their territories. The language of UNDRIP and use of FPIC more directly considers the Indigenous view of sustainability under the principle of seven generations. Adaptive management is a seven-stage decision process to help Indigenous communities resolve uncertainties through scientific monitoring programs. Successful EMPs therefore involve a dynamic, iterative approach staged throughout project development phases:
- Stage 1 – Identify risks to VECs through community workshops.
- Stage 2 – Establish objective hypotheses for resolving uncertainties.
- Stage 3 – Monitor VEC effects in response to project management actions.
- Stage 4 – Test objective hypotheses with the VEC data.
- Stage 5 – Learn from the results generated.
- Stage 6 – Adjust based on what is learned and community input.
- Stage 7 – Repeat the process until VEC risk uncertainties have been resolved.
This approach facilitates learning and promotes continual involvement of Indigenous communities while advancing projects through a process of informed consent from community leadership.
Throughout Canada, BBA works with both its Indigenous and non-Indigenous clients to collaborate in mutually beneficial ways.
As Canada moves forward on the path of reconciliation, BBA strives to improve its understanding of what matters to our valuable clients. Thanks to its work with Indigenous communities, the firm’s experts are able to see each project from various angles. This indispensable knowledge is applied to find solutions that benefit all parties.
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