The Limitations and Transformative Potential of Indigenous‐Led Environmental Impact Assessments in Canada

Legal review of the Impact Assessment on the Environment, Disaster and Traffic Related to Urban Development

The Environmental and Social Impact Assessment: a further step towards an integrated assessment process

"Environmental impact assessment" denotes the attempt to predict and assess the impact of development projects on the environment. A component dealing specifically with human health is often called an "environmental health impact assessment." It is widely held that such impact assessment offers unique opportunities for the protection and promotion of human health. The following components were identified as key elements of an integrated environmental health impact assessment model: project analysis, analysis of status quo (including regional analysis, population analysis, and background situation), prediction of impact (including prognosis of future pollution and prognosis of health impact), assessment of impact, recommendations, communication of results, and evaluation of the overall procedure. The concept was applied to a project of extending a waste disposal facility and to a city bypass highway project. Currently, the coverage of human health aspects in environmental impact assessment still tends to be incomplete, and public health departments often do not participate. Environmental health impact assessment as a tool for health protection and promotion is underutilized. It would be useful to achieve consensus on a comprehensive generic concept. An international initiative to improve the situation seems worth some consideration.

The proposal to create a Northern Corridor that would allow for cross-country, multi-modal infrastructure development is an ambitious vision (Sulzenko and Fellows 2016; Standing Senate Committee 2017). This proposed infrastructure corridor would incorporate multiple uses, from pipelines to railways, roads, telecommunications, electricity infrastructure and more. Its geographic scale stretches continuously from coastal B.C. across Canada to the Atlantic coast, with spurs running northward to the Arctic Ocean through the Northwest Territories, Nunavut and via Manitoba to Hudson’s Bay. A critical foundation for its successful development will be the ability to appreciate and incorporate the rights of Indigenous peoples affected by the project (Wright 2020; Newman 2022). The goal of this research paper is to outline the law of Indigenous peoples’ land ownership rights, including proven and asserted title, Crown-Indigenous treaty relations and obligations and Indigenous land claims agreements, and to consider the implications for a large-scale infrastructure project like the Northern Corridor.1 The focus is on the legaland regulatory aspects of Indigenous peoples’ land rights within the non-Indigenous Canadian legal system.2 The research paper uses standard legal methods to assess the land ownership rights of Indigenous peoples, drawing on relevant constitutional and statutory provisions, leading cases and secondary literature. The paper proceeds with a brief overview of these distinct types of Indigenous land rights, then provides a more detailed account of the legal content of s. 35 constitutional Aboriginal title, historic and modern treaty rights. This includes discussion of government’s legal duty of consultation and accommodation, and the requirements for constitutionally justified limitation of these rights. Indigenous land ownership rights in reserve lands are also discussed. A series of case studies more fully illustrates the implications of these varied Indigenous land rights for a project like the Northern Corridor. Finally, the paper turns to the dynamic nature of Indigenous rights and the potential influence of the UNDRIP. The implications of Indigenous peoples’ land rights for the proposed Northern Corridor are extensive. While many of the legal obligations fall on the Crown, as represented by provincial, territorial and federal governments, industry proponents must also play a role. Project proponents engage directly with Indigenous land-rights holders and are crucial to the exchange of information, mitigation of project impacts and creation of benefits for Indigenous communities. Successful development of the Northern Corridor infrastructure project requires a partnered approach with affected Indigenous rights- holding communities. Portions of the proposed corridor traverse the traditional territories of Indigenous peoples over which Aboriginal title is claimed. Where Indigenous claimants demonstrate sufficient, exclusive use and occupation of the land prior to Crown claims of sovereignty, title will be established. The legal test for recognizing title is one that reflects both the common law and Aboriginal perspectives, and is sensitive to context. The geographic scope for successful Aboriginal title claims that overlap with the Northern Corridor is significant. Where Indigenous peoples hold title to the land, they are collectively entitled to exclusively enjoy the benefits of that land, and to decide on its uses. Governments or third parties seeking access to the land require consent from the title holders. In the period before title is established, governments authorizing projects like the Northern Corridor, that could negatively impact Aboriginal title, must consult with Indigenous peoples and, when appropriate, accommodate their interests. This is required to maintain the Honour of the Crown. While the legal duty falls on government, project proponents working directly with Indigenous peoples are an important part of the consultation and accommodation process. Governments do retain a legal ability to justifiably limit Aboriginal title. They can pursue projects in the public interest that are consistent with s. 35’s reconciliation purpose, if they meet the requirements of their unique obligations to and relationship with Aboriginal people (the fiduciary duty and Honour of the Crown). This means satisfying the procedural duty to consult and accommodate Aboriginal title holders, pursuing only limits on title that do not damage their long-term relationship with the land, as well as meeting a recently outlined requirement for proportionality. Proportionality means that limits on Aboriginal title must be necessary to achieve the public purpose and must be as minimal as possible, and that the overall public benefit must not be outweighed by negative impacts on title holders. Projects that go forward with participation and consent of Indigenous title holders will meet these requirements. There is also potential for the Northern Corridor to cross reserve lands. Where these remain subject to the Indian Act, one of the relevant statutory mechanisms for access must be used. These require consent from the band and federal government. For bands that have transitioned to management of their reserves under the First National Land Management Act (FNLMA), only consent of the band as set out in its Land Code is required. The Northern Corridor also crosses lands over which Indigenous people hold land rights under the historic “Numbered Treaties.” While the treaties appear to include formal surrenders of Aboriginal title (an interpretation that is contested), continued rights of use over traditional territories are critical elements of these constitutionally binding agreements. Although governments can “take up” surrendered lands for development, this right is subject to a duty to consult Indigenous parties and accommodate impacts on their treaty rights. Governments can justifiably infringe historic treaty rights. This can be done when a permissible objective is pursued in a way that meets government’s fiduciary duty and upholds the Honour of the Crown. The specific requirements can vary, but generally the test is more restrictive when non-commercial treaty rights are at stake and requires some form of priority to be given to these Aboriginal rights. The requirement for justification is triggered when treaty rights are infringed — when a group is deprived of a meaningful ability to exercise its treaty rights within its traditional territory. Recent developments suggest this threshold should be assessed looking to cumulative impacts and that a process for monitoring and addressing these is part of justified limits on these historic treaty rights. Finally, the Northern Corridor also intersects with lands covered by modern treaties. These agreements provide detailed guidance about the specific rights Indigenous parties enjoy, processes for consultation and co-management of the treaty lands as well as interactions between jurisdictional decisions under the treaty and by other levels of government. Courts have outlined a distinctive approach to the modern treaties that recognize their sophistication and the efforts to negotiate these modern governance frameworks to advance reconciliation. Courts would pay close attention to the relevant treaty terms and processes in any dispute over development of the Northern Corridor. Relatively minimal supervision of the modern treaty relationships should be expected from the courts, although the Honour of the Crown and the obligations it places on governments still apply. It is unclear whether justified infringements of modern treaty rights are possible, and whether a stricter constitutional standard would be required. Case studies of recent infrastructure and resource development projects show that while much of the law is clear, outstanding issues remain, and the practical application of the law can be challenging. The sufficiency of consultation can be in doubt on complex projects involving multiple Indigenous communities. Basic issues such as who to consult can emerge when there is overlap between traditional and Indian Act governance structures and both reserves and other land rights are involved. The applicability of Indigenous laws to traditional territories under claims of Aboriginal title and interactions between Indigenous law and jurisdiction and non-Indigenous law and government authority can also be unclear. Many modern projects proceed with the consent and participation of Indigenous peoples, for example, through benefit agreements. These agreements, because of their link to the underlying Aboriginal rights, can engage the Honour of the Crown and the duty to consult if subsequent developments negatively affect benefits under the agreements. In practice, meeting the legal obligations triggered by Indigenous land rights requires direct, good faith engagement with affected Indigenous communities. The best-case scenario is partnered development that proceeds with the consent of Indigenous rights holders. Current case law suggests that projects like the Northern Corridor might go ahead without full consensus, since there is no “veto” implicit in s. 35(1) Aboriginal rights. However, legal requirements for justified infringements, if possible, still require adequate consultation and accommodation of the rights of Indigenous peoples, and support only necessary, minimal limits on their rights. Overall benefits must outweigh negative impacts on Indigenous communities, and their ability to benefit directly from projects or be compensated for harms is generally part of justifying limits on their rights. On the ground, project proponents will be deeply involved in the relationship-building and engagement that is needed to support consensual development, or will meet the high bar for constitutional justification. Determining whether governments’ legal obligations ultimately have been met is done at a detailed, fact-specific level — not in the abstract. There are no leading cases that support constitutional justification of hypothetical, indeterminate public uses such as the proposed Northern Corridor. The law of Indigenous rights is constantly evolving. Over the lifespan of a project like the Northern Corridor, change would be certain. Canadian approval of the UNDRIP and recent federal and provincial legislation committing to bring Canadian law into compliance are important signals of future development. The UNDRIP embraces a model of Indigenous rights grounded in self-determination and its standard of “free, prior, informed consent” appears to reflect the ability of Indigenous peoples to make their own decisions about projects that impact their rights. The legal implications of the UNDRIP for s. 35 and Indigenous land rights in Canada remain to be seen. As with modern treaties and the FNLMA, it represents a resurgence in Indigenous peoples’ rights to play a direct role in governing their traditional lands and bringing their own laws to bear on developments that impact their lands and rights. Co-management and shared governance frameworks that integrate Indigenous rights holders will likely be key to successful future project development. For a proposal like the Northern Corridor, further study is required to fully appreciate the implications of these nascent developments and consider how they should be reflected in the project proposal.

BackgroundSince the 1960s, environmental impact assessments (EIAs) and recently, social impact assessments (SIAs), have been conducted during the planning stages of large development projects to identify potential adverse effects and propose mitigation measures to ameliorate these impacts. EIAs and SIAs should outline all possible positive and negative effects of a proposed action or development on ecological and social systems, respectively, including biodiversity, flora and fauna, abiotic components (such as air quality), human health, security and wellbeing. The work outlined herein aims to generate a list of all possible direct and indirect effects of metal mining (including gold, iron, copper, nickel, zinc, silver, molybdenum and lead) along with the impacts of mitigation measures proposed, that are mentioned in EIAs and SIAs in Arctic and boreal regions of the following countries/regions: Canada, Alaska (USA), Greenland, the Faroe Islands, Iceland, Norway, Sweden, Finland and Russia.MethodsWe will conduct searches for environmental and social impact assessments in Swedish and English, and until theoretical saturation is reached (i.e. no new action-impact pathways are identified). We will perform searches of specialist websites (e.g. public repositories of environmental and social impact assessments) and Google Scholar. We will also contact relevant stakeholders (that have been identified in the wider 3MK project https://osf.io/cvh3u/) and make a call for additional information. Eligibility screening will be conducted at two levels: title and full text. Meta-data will be extracted from eligible studies including type of mining activity, location of mine, type of impacts, and planned mitigation measures. Findings will be presented narratively, in a searchable relational database and in an evidence altas (a cartographic map). We will produce a framework of different mining impacts and related mitigation measures from practitioners’ knowledge reflected in EIAs and SIAs. This framework will further form the basis of a multiple knowledge base on mining impacts and mitigation measures generated from different knowledges including scientific, Indigenous, and practitioners’ knowledge.

Avoiding or minimizing potential environmental impact is the driving idea behind protecting a population’s health via Environmental Impact Assessments (EIAs) and Strategic Environmental Assessments (SEAs). However, both are often carried out without any systematic approach. This paper describes the findings of a review of HIA, EIA and SEA experiences carried out by the authors, who act as institutional competent subjects at the national and regional levels in Italy. The analysis of how health is tackled in EIA and SEA procedures could support the definition of a protocol for the integration of HIA with EIA and SEA. Although EIA and SEA approaches include the aim of protecting health, significant technical and methodological gaps are present when assessing health systematically, and their basic principles regarding assessment are unsatisfactory for promoting and addressing healthcare concepts stated by the WHO. HIA is still poorly integrated into the decision-making process, screening and monitoring phases are only occasionally implemented, and operational details are not well-defined. The collaborative approach of institutions involved in environment and health is a core element in a systematic advancement toward supporting effective decisions and effective protection of the environment and health. At the Italian national level, the definition of guidelines and tools for HIA, also in relation with EIA and SEA, is of great interest.

Local participation is always beneficial for sustainable action and environmental problems resulting from urban implementation due to the failure of social and institutional change necessary for a successful transformation of rural life to urban life ahead of the rapid movement of the population. Despite good legal practice and comprehensive guidelines, evidence suggests that Environmental Impact Assessment (EIA) or more broadly Environmental, Social and Health Impact Assessment (ESHIA) have not yet been found satisfactory in Nigeria, as the current system amounts to duplication of efforts and cost. However, ESHIA has been developed and integrated to help manage project activities, facilities, and operations sustainably, so that both economic and ecological profits are accrued (sustainable development) or ensure that any development project does not result in excessive deterioration of and/or the irreversible adverse effect on any component of the environment – a recite for sustainable development. A literature review was done by using a variety of search engines including Research Gate, Google Scholar, Academia, Mendeley, SSRN search strategy to retrieve research publications, “grey literature” and expert working group reports. The thrust of this study is to evaluate the potential benefits of ESHIA as a tool for sustainable environmental development. The evaluation and implementation of EIA are one of the strengths of these tools. Indeed, EIA is the first and foremost management tool employed to help mitigate adverse, potential, and associated impacts of proposed major developments in our environment. EIA is a regulatory requirement that is efficiently used to improve performance, project design, enhancing decision-making, and facilitating policy programs in a sustainable environment. An evaluation of the EIA systems reveals several weaknesses of the EIA system. These include the inadequate capacity of EIA approval authorities, deficiencies in screening and scoping, poor EIA quality, insufficient public participation, and weak monitoring and erratic government policies. Overall, most EIA study rarely meets the objectives of being a project planning tool to contribute to achieving sustainable development and mitigate the impact of the development project. The study recommends some directions for the future to ensure that entire content of the EIA are religiously implemented, review the existing EIA act, increase the expertise of EIA consultants, create a liaison office with an international organisation and with sister agency, ESHIA must enjoy Improved budgetary provision, time latitude, spatial contexts and methodological improvements for outcome measures to achieve results that are relevant to sustainable development by improving project design, enhancing decision making and facilitating policy programs.

Environmental impact assessment practices of the federative republic of Brazil: A comprehensive review

Culturally sustainable environmental impact assessment (EIA) requires consideration of the impact of development on local people's cultural activities, including holding ceremonies, collecting resources, and learning skills, which are fundamental essences of Indigenous rights. While culturally sustainable EIA has become a common practice when a development project involves an Indigenous community, it is still argued that Indigenous cultural heritage is not adequately protected. This is due to the fact that Indigenous people do not always keep power in the post‐approval stage of EIA, or the lack of practical measures to minimise the impact of development projects on Indigenous cultural heritage and to enhance the possibility of reaching a consensus among stakeholders. The Cultural Impact Assessment of the Saru River Region in Japan was the first investigation of a site to preserve an ethnic minority culture, with regard to a dam construction. In the second phase of the assessment project, research staff members, some of whom are of Ainu ethnicity, suggested alternative ceremony sites and conducted experimental transplants to protect the local cultural activities. The long‐term investigation by research staff, in fact, influenced the direction of the dam construction. The developer agreed not to proceed with the construction until measures were taken to minimise the impact on cultural activities that would satisfy residents in the construction area. While still early to conclude that Indigenous participation in this assessment project has been successful, Indigenous participation has clearly enhanced the possibility of reaching a consensus. The project should be considered with other published EIA reports, in demonstrating a return from investing in EIA with Indigenous participation, with a practical means for realising Indigenous rights.

Environmental impact assessment (EIA) performance has remained of interest, and over the past ten years, the evaluation technique has evolved. Thailand implemented an EIA with a health impact assessment (HIA) as an environmental health impact assessment (EHIA), which necessitated investigating and developing these instruments; however, its implementation performance has been questioned. The main goal of this study is to comparatively assess how well EIAs and EHIAs are performed in projects in an area in Thailand. Six projects in various sectors that were implemented in Eastern Thailand were studied. The 162 residents (nine local authorities and 153 villagers) closest to the project completed a survey and evaluated the performance according to three aspects (i.e., substantive, procedural, and transactive), using a rating scale and evaluation checklists. The results were presented as a percentage of the total scores and interpreted according to the five scales. The overall performance reached a satisfactory level, albeit not significantly different between cases; however, it was pointed out that the shortcomings of EHIAs and EIAs, particularly their dependability, lack of public involvement, and the need for more transparency, could be addressed through the establishment of an open access database, which would help to simplify the assessment of all stages of EIAs and EHIAs.

O OTHER FIELD OF IMPACT assessment has been so popular in recent years as health impact assessment (HIA). The last five years, in particular, have seen a surge in published papers, reviews, guidelines and websites related to HIA. Such increasing popularity makes one ask: Has HIA in its development come closer to environmental impact assessment (EIA)? What challenges face the integration of EIA and HIA? What are the opportunities for such integration and what lessons, if any, can HIA and EIA learn from each other’s research and practice? In the development of HIA, two main trends may be distinguished. The first, called environmental health impact assessment (EHIA), was initially promoted by the World Health Organisation (WHO) in the 1980s to address neglected health considerations in conventional EIA. EHIA is based on the biomedical model of health, illustrated in changes of mortality, morbidity and injuries. Here, similar to EIA, the prospective nature has been emphasised. First applied to large infrastructure projects, such as dams or large irrigation schemes, in developing countries, EHIA is now practised in developed countries such as Australia, New Zealand and Canada. Additionally, the African and Eastern Mediterranean Regional Offices of the WHO funded a number of projects involving workshops and guidelines on EHIA during the 1990s in some of the countries of the regions concerned. The second trend of HIA evolved from the concept of ‘healthy public’ policy. Influenced by a number of fields allied to public health such as health promotion, health needs assessment and evidence-based medicine, this trend emphasises the participatory nature of HIA and its role in reducing health inequalities and forming partnerships. It is based on a ‘socio-environmental’ model of health, where population health is determined by a wide range of factors (that is, the determinants of health): individual (for instance, age); social (for instance, crime); economic (for instance, unemployment rate) and institutional (for instance, public policy and capacity, and capability of a wide range of services). This trend has been hugely popular in developed countries such as Canada, the UK, Sweden and the Netherlands, although some developing countries such as Thailand have also found it very relevant to their needs (Phoolcharoen et al, 2003). It is this trend of HIA that has captured the imagination of public health professionals and spurred publications and wider debate in public health literature and circles in the last few years.

GreAT (Greener Air Traffic Operations) is a project funded by the European Commission under the H2020 framework programme. The overall objective is to reduce the fuel consumption and gas emissions during “gate-to-gate” flight phases through developing and assessing environment-friendly air traffic operational concept, adaptive airspace and green trajectory optimization technologies, and supporting avionic systems. Based on the scientific description of the impact of aviation emissions on the climate, the work within GreAT is seeking the key factors of the impact about aviation emissions on climate change characteristics by using sensitivity analysis, such as greenhouse gases, pollutant gases and condensation, and then select these factors as environmental impact assessment indicators, including fuel consumption, aviation emissions, air quality and greenhouse effect, establishing a calculation model for evaluation indicators using the fuel consumption model, gas emission model and climate change model. System analysis methods are used to build an aviation emission environmental impact (EIA) assessment index system structure, apply environmental impact assessment indicators, construct a general environmental impact assessment index system, and propose a comprehensive assessment method for aviation environmental impact. The following step in the project is the environmental impact assessment of air traffic operations to determine how green air traffic performs. According to the existing air traffic operation patterns, the flight characteristics and trajectory characteristics of the aircraft are determined, and the environmental impact assessment index system is used to evaluate the environmental impact under the air traffic operation plan and the impact and improvement effect on climate change.

This study aims to understand how the health dimension is integrated into four impact assessment tools used in Geneva, Switzerland: environmental impact assessment (EIA), strategic environmental assessment (SEA), sustainability assessment (SA) and health impact assessment (HIA). We have chosen as a case study greenhouse gas (GHG) emissions reduction policies chosen by the city of Geneva. The methodological approach consists in analysing EIA, SEA, SA and HIA conducted on three projects in three topic areas: urban planning, heating and transportation. These projects are: a complex urbanisation plan in an urban neighbourhood in Geneva (the Gare des Eaux-Vives project), a sustainable transportation plan for a central district in Geneva (the St-Gervais transportation project) and a strategy to encourage the City's employees to use sustainable transport for local business travel. The results show some shortcomings in the consideration of health in SEA, EIA and SA. This work highlights a narrow vision of health in SEA and EIA, limiting itself to a review of the effects of projects on the determinants of the physical environment as required by the legislation relating to these tools. EIA does not require the integration of the health dimension. As for SA, our research found that health is treated much more superficially than in HIA and primarily through the analysis of 'health and safety' criteria. It appears from this work that HIA is the tool which provides the most elaborate assessment, compared to SA, SEA or EIA, of the consequences for health of the GHG reduction policies chosen by the local decision-makers of a city. However, our study suggests that the HIA community should identify the situations in which HIA should be carried out and in which cases it is better to include health issues within an integrated analysis.

Environmental economic impact assessment in China: Problems and prospects

The purpose of this study is a systematic analysis of the features of the environmental impact assessment of surface waters. The article is a continuation of a series of publications on environmental impact assessment of water resources. Method. In the scientific study on the peculiarities of surface water environmental impact assessment, a systematic approach was used to analyze the characteristics of surface water environmental impact assessment (EIA) in the following areas: surface water EIA procedures, terminology, nature and documentation; assessment of the impact of planned (economic) activity on surface water; description of activities related to surface water. In order to achieve this goal, the following tasks were performed: the procedures, duration, nature and documentation of ATS for surface waters were studied and characterized; the assessment of the impact of the planned (economic) activity on surface water was investigated and discussed; the description of activities related to surface water was analyzed. The results. The regulatory and legal aspects of the issue (laws, DBN, methodological recommendations), procedure, term, nature, materials of surface water EIA were considered. The total term of EIA can be from 60 to 120 days. The EIA report includes a variety of materials that reflect the study of the given territory; materials provided by the customer; information of the State reporting balance of surface water use in the relevant district, etc. It should be noted that EIA includes the study of the territory of surface water in the process of preparatory and construction works, during the exploitation of surface water, description of the resources that will be used, SPZ, water use and drainage. Assessments of the impact on surface water of planned (economic) activities have been studied, as well as a description of measures regarding surface water have been analyzed. The study was carried out on the basis of reports from EIA for planned activities on surface water bodies. The probable impact on surface waters is recommended to be carried out according to biological, hydromorphological, chemical and physicochemical indicators, as well as the general level of clogging and silting at the local level. The assessment includes contamination of the massif of surface waters by household and other garbage. A description of the environmental factors that are likely to be affected by the planned activity and its alternative options is carried out, including the health of the population, the state of fauna, flora, biodiversity, land, soils, water, air, climatic factors, material objects, including architectural, archaeological and cultural heritage, landscape, socio-economic conditions and relationships between these factors. And an assessment of the possible impact on the environment of the planned activity is also carried out, in particular, the magnitude and scope of such impact. An assessment is carried out according to the types and amount of expected waste. It is also necessary to evaluate the activities of companies, enterprises, institutions, etc., which are in the zone of influence of such planned activities. It is necessary to take into account the existence of an approved river basin management plan, dangerous geological processes to which the morphological effects of waters can lead when assessing the EIA. When evaluating, it is recommended to use modern research methods. The study did not consider the issue of the results of the public discussion regarding such planned activities with surface water. The scientific novelty consists in the systematic analysis of the features of the environmental impact assessment of surface waters. The study was conducted for all participants who can study and perform EIA. Practical significance. The results of the research can be used in the educational process of the National university of water and environmental engineering, in particular, in the specialty 103 "Earth Sciences" and other institutions of higher education when teaching hydrological, natural, geographical, economic, ecological and geological disciplines. The results will find their application in the legislative and executive work of local self-government bodies when developing programs for the socio-economic development of territorial communities. Research materials will contribute to the rational use of water resources in the regions of Ukraine.