SUBMISSIONS OF THE ATHABASCA CHIPEWYAN FIRST NATION ...

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Page 4 April 28, 2009 which the Crown makes decisions does not accord with the honour of the Crown, then permits, licenses and approvals can be struck down quite apart from the potential impacts on our rights. We are concerned that the federal government often ignores its “process-related” obligations. We are often told that the Crown does not have to consult until applications for development are filed. The Dene Tha’ case makes it clear that the filing of an application, particularly on large projects, is not the trigger for consultation. Consultation is required when the federal government is designing processes for regulatory and environmental reviews of projects. That work often begins long before an application is filed. The case law makes it clear that offering us no more in the way of input than processes that afforded to the public will not meet the Crown’s onerous obligations. Moreover, telling us that we can participate in public hearings is also not sufficient for the Crown to meet its duties, particularly since those tribunals are quasi-judicial and do not, themselves, consult. (b) Steps that can be taken to address some of our concerns We wish to focus on some ways in which the federal government could do a better job of meeting its process-related obligations, which would help to protect our section 35 rights. Our focus will be on the federal environmental assessment process. We note that failure to consult with us on the issues set out below can lead to litigation, disputes, and project delays. On the other hand, working cooperatively with us can lead to the opposite result. 3393259.1 i. Consultation on CEEA Triggers In environmental assessments, the role or lack of role of the federal government is largely determined based on decisions about whether there are federal “triggers” for a particular project. Those decisions are made without consultation with First Nations. This is troubling to us because First Nations have important knowledge and information about potential social, cultural, economic and environmental impacts of projects on our section 35 rights which fall under federal legislation: navigable waters, fisheries, potential impacts on reserve interests. As in much of federal decision making, it is difficult for us to understand how the federal government can determine the existence or lack of existence of CEEA triggers without consulting with us. How, for example, can the federal government determine, on its own, whether fisheries habitat could be destroyed pursuant to section 35 of the Fisheries Act, one of the common CEEA triggers, if they do not speak to us? This is particularly hard to understand when we have
Page 5 April 28, 2009 fished since time immemorial and can observe and describe the impacts of development on our ability to fish. Recommendation: 3393259.1 The federal government needs to consult with us prior to determining whether a federal environmental assessment is required, because many projects have adverse impacts on our rights which may not be understood by decision makers who do not seek our views ii. Consultation on Project Scope We are concerned that many projects are scoped too narrowly. This creates the potential for EAs to miss the direct, indirect and cumulative impacts of those projects on our section 35 rights. The case law in relation to aboriginal consultation makes it clear that it is not only the “sitespecific” impacts of projects that is required in consultations; rather, it is the direct, indirect and cumulative impacts on our rights, including injurious affection related thereto. There seems to be a disconnect between the legal requirements for consultation on the one hand, and the scoping of projects on the other. Although we have hunted, fished, gathered and trapped since time immemorial within our Traditional Lands, we are not asked about whether the scoping of projects for EA purposes would be sufficient to consider patterns of wildlife movement, habitat, traditional travel routes and impacts of projects on our access to our traditional hunting and trapping grounds, among other things. The need for proper scoping is particularly important since EAs are one of the major ways in which the federal government makes decisions about issuing permits, licenses and approvals. Recommendation: The federal government should consult with First Nations when determining the scope of a project for EA purposes. iii. Consultation on required level of CEEA assessment Once it is determined that there are one or more federal triggers under CEEA, the federal government must determine the proper kind of assessment for a particular project: the options range from screening through to a full joint review panel assessment. The level of assessment,
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