Cumulative environmental impacts and aboriginal rights

Abstract

Over the past two decades, increasing attention has been devoted to the concept of cumulative environmental effects. Cumulative effects are the additive and interactive impacts that may result from human activities that are repeated over time and space. In many cases, numerous small, independent actions considered to be individually insignificant can eventually lead to substantial and sometimes irreversible changes in the environment. Public awareness of such impacts is often minimal, until such time as a critical point or threshold is exceeded. By this time the environmental and social consequences may be considerable. Habitat loss and fragmentation, climate modification, soil loss, declines in water quantity and quality, and pesticide accumulation are just a few of the areas in which cumulative effects have become a major concern. Recently proclaimed Canadian environmental assessment laws impose new requirements to identify and address cumulative effects. So far, however, considerable uncertainty exists as to how these statutory requirements will or should be carried out. This uncertainty is compounded by the constitutional requirement to recognize and protect various traditional aboriginal rights. The Canadian Constitution recently has been interpreted to protect the right of aboriginal people to engage in traditional sustenance-oriented hunting, fishing, trapping, and gathering activities. Moreover, following a landmark decision of the Supreme Court of Canada in late 1997, aboriginal people are now entitled to assert rights of exclusive use and occupation to land under the emerging legal concept of aboriginal title. The struggle by aboriginal peoples for legal recognition of these rights has been long and difficult. A growing number of aboriginal communities have voiced concerns that these newly recognized rights are being threatened by the cumulative environmental effects of resource development and human settlement. Paradoxically, just as the quest for traditional rights recognition is coming to fruition, the ability of aboriginal peoples to exercise these rights appears to be eroding. The purpose of this article is to examine how the concept of cumulative effects, together with the legal imperative to protect traditional aboriginal rights, can and must transform environmental decision-making. It is in four parts. Part I explores the meaning and policy implications of the concept of cumulative environmental impacts. Part II is an introduction to the legal and historical basis for aboriginal rights. Part III seeks to illustrate the challenges, and the necessity, of reforming environmental decision-making by use of a case-study involving a controversy over logging in traditional aboriginal territory. In Part IV we offer some concluding observations in the implications of our analysis for environmental assessment and decision-making.