Resolving Disputes with Participating Indigenous Nations: the BC Environmental Assessment Process

CCEAM’s Mission Statement is clear:

To make available the knowledge and expertise of Leading Canadian Environmental Lawyers to assist in the expeditious and private resolution of environmental disputes.

The First Nations chiefs from Hul'qumi'num Treaty Group (Courtesy of Charles Dharapak of the Associated Press)

Yet, increasingly, many environmental disputes involve issues of Aboriginal rights and title. The constitutionally protected rights of the Indigenous peoples of Canada are frequently implicated. 

Is there a way to do justice to these concerns, and still harness the evident benefits of mediation and other forms of dispute resolution, particularly in disputes involving the land base and natural resources of Canada?

CCEAM believes the answer is yes. 

As Roshan Danesh and Jessica Dickson note in their 2015 article “Alternative Dispute Resolution and Aboriginal-Crown Reconciliation in Canada” :

The achievement of reconciliation between the Aboriginal peoples of Canada and the Crown, and more broadly between the Aboriginal and non-Aboriginal populations, is one of Canada’s central legal, social, political and economic challenges. The placement of the project of reconciliation at the heart of the public ordering and constitutional jurisprudence of the Canadian legal system would seem to be fertile ground for the deep development and use of methods of alternative dispute resolution. (…) Despite this, the Courts have remained a central pathway for resolution of disputes over Aboriginal rights. And surprisingly, despite many useful and sometimes quite productive efforts, the use of ADR has relatively speaking remained somewhat constrained.

To date, the history of mediation and other forms of dispute resolution in the environmental assessment process has been somewhat constrained.

The Overview of The Impact Assessment Act by the Canadian Environmental Assessment Agency

While the current federal Impact Assessment Act no longer contains the explicit provision relating to mediation that were found in the former Canadian Environmental Assessment Act, 1992, it does contain several important references to Indigenous peoples of Canada.

An example of mediation under previous legislation related to the Sandspit Small Craft Harbour Project on Haida Gwaii, BC: the Haida were very much involved in that multi-party mediation.

Quebec’s environmental legislation also contemplates mediation, as does legislation in several other provinces and territories. However, to date there has been little application of these provisions; few contain reference to Indigenous peoples.

British Columbia government's Environmental Assessment Process

British Columbia’s Environmental Assessment Act, 2018 is an exception.

It is in many ways pioneering legislation, as it is the only statute outside of the federal realm referencing both “mediation” and “Indigenous” peoples. 

It is premised on efforts to achieve consensus with “participating Indigenous nations” that are potentially affected by reviewable projects. 

The First Nations that are “rights and title holders” have constitutional rights under s. 35 of the Constitution Act, 1982.

Indeed, the “purpose clause” of the Act proclaims that among the purposes of the Environmental Assessment Office are the following:

• support reconciliation with Indigenous peoples in British Columbia by

  • supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples,

    
    

  • recognizing the inherent jurisdiction of Indigenous nations and their right to participate in decision making in matters that would affect their rights, through representatives chosen by themselves,

    
    

  • collaborating with Indigenous nations in relation to reviewable projects, consistent with the United Nations Declaration on the Rights of Indigenous Peoples, and

    
    

  • acknowledging Indigenous peoples' rights recognized and affirmed by section 35 of the Constitution Act, 1982 in the course of assessments and decision making under this Act

    
    

Under s. 16;

The chief executive assessment officer, in relation to a project, must seek to achieve consensus with participating Indigenous nations before exercising [certain powers]. 

If that consensus-seeking process has "broken down", then under s. 5, either the participating Indigenous nation or the chief environmental assessment officer can send the matter to an independent “dispute resolution facilitator”.

In July 2024, a novel regulation was enacted to implement this requirement.

In any of these circumstances, the clock statutorily stops for a 90-day period, while the dispute resolution process is underway. There is no similar requirement with respect to other participants.

Before the Regulation was enacted, there were lengthy dispute resolution processes that proved largely unsatisfactory.

The effort to achieve “free prior and informed consent” as set out in The United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP) is a core value of the legislation. The process was co-developed with Indigenous leadership, and the terms of reference for the resolution of disputes reflect this co-developed process.

British Columbia's First Nations Leadership Council works together to develop coordinated approaches to issues relevant to First Nations communities throughout the province. (Courtesy of British Columbia Assembly of First Nations)

The First Nation Leadership Council and many specific First Nations "consulted and cooperated" in creating the dispute resolution regulation, and a more adjudicative process was rejected, although with lawyers participating in some processes, it may often appear more adversarial than intended.

There are few specific requirements set out in the Regulation:  there is deliberately a great deal of discretion available to the facilitator.

As in the usual mediation process, sometimes shuttle diplomacy between the parties is required as the facilitator “caucuses” with one party or the other.

Bilateral meetings can take place so long as all participants agree. As in the usual interest-based model, the goal is to move the parties away from adversarial positions and to lower the emotional temperature, in an effort to delve into the issues at the heart of the dispute and to achieve collaborative problem-solving.

However, Aboriginal rights are sui generis: sometimes fundamental world views collide, and accommodation can be difficult in cross-cultural settings.

Yet we believe that mediation and other forms of dispute resolution have an important role to play, as a key tool in our efforts to achieve reconciliation in Canada.

In the words of the Supreme Court of Canada :

[t]rue reconciliation is rarely, if ever, achieved in courtrooms.

While the BC Dispute Resolution Regulation is very recent, it promises to be useful in resolving at least one form of environmental dispute in British Columbia. 

Ideally, it will lead to the application of mediation and other forms of dispute resolution involving Indigenous peoples in other contexts and in other jurisdictions.