British Columbia is rewriting its environmental assessment act to require a commitment to seek free, prior and informed consent from Indigenous communities for major resource projects, but the new law stops short of allowing them a veto if consent cannot be reached.
The change is based on the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Environment Minister George Heyman said the new law reflects the reality that the success of any major industrial project in B.C. rests on meaningful partnerships with Indigenous communities.
“What people need to understand about this process is, it is consent-based,” Mr. Heyman told reporters.
The legislation also requires, for the first time, that greenhouse gas emissions be considered in the assessment process, and paves the way for the cumulative impact of industrial development in a region to be factored into decisions about individual projects.
The legislation says achieving consent is the objective, however, it is strictly needed in only very limited circumstances: when a nation has a treaty or final agreement on a treaty that spells out consent as a requirement. Only a few Indigenous communities in British Columbia have settled treaties. “In all other cases, we are focused on getting consent,” Mr. Heyman said, "but the final decision does rest with the minister.”
The provincial environmental assessment process typically applies to the development of large ventures such as mines, energy, waste disposal and transportation projects, although cabinet decides which projects are subject to review.
A statement from the First Nations Leadership Council called the changes significant, but said amendments are needed to bring the law fully into compliance with UNDRIP, because as it stands, projects can continue without Indigenous consent.
“The First Nations Leadership Council points out that the act does not go far enough in meaningfully implementing the minimum standards affirmed within the UN Declaration, as the act still allows for projects to proceed if consent is withheld by Indigenous nations. Key amendments are needed so that the act is in full alignment with the UN declaration,” the news release said.
The new Environmental Assessment Act, which will replace a set of rules written in 2002, promises to speed up the approval process by ensuring that potential hurdles are identified early. It also will provide funds for Indigenous communities to participate.
The environmental assessment law would not take effect until regulations are passed and that is expected to take another year, Mr. Heyman said.
Top Indigenous leaders in B.C. called the changes a good step toward reconciliation.
“The environmental assessment legislation tabled today recognizes First Nations' inherent jurisdiction,” Grand Chief Ed John of the First Nations Summit said in a statement. He said the law will ensure compliance with Indigenous engagement standards that have been upheld in the courts. “Indigenous peoples' consent for a project impacting their rights is essential.”
Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, also welcomed the proposed law. “I am relieved that the day has finally come when we are beginning to see the legislative and policy shifts that are necessary and essential to facilitate genuine reconciliation.”
The federal and B.C. governments have made political commitments to embrace UNDRIP, but neither level of government has defined how its requirement of free, prior and informed consent will co-exist with Crown jurisdiction.
Although the B.C. government under Premier John Horgan has avoided any suggestion that adopting UNDRIP amounts to giving First Nations a veto over resource development, the declaration provides a way for projects to move forward if consent cannot be achieved.
“Indigenous peoples have the right to redress,” the declaration states, “by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.” The new law does not mention redress, but provides a dispute-resolution mechanism.