Canada’s Impact Assessment Act, 2019: Indigenous Peoples, Cultural Sustainability, and Environmental Justice

Abstract

It is well documented that the colonizers of Canada have long coveted the ancestral homelands of the Canadian Indigenous peoples for settlement and development. With this end goal in mind, it is not surprising that there exists an extensive history of assimilative efforts by the colonizers with respect to the Indigenous peoples of Canada—for example, legal assimilation through enfranchisement (voluntary and involuntary) and blood quantum requirements, and cultural assimilation through residential schools and the “sixties scoop”. Another form of assimilation is environmental assimilation, that is, colonial development on Indigenous homelands to the extent whereby Indigenous cultural activities can no longer be supported in the development-transformed environment. Herein, I examine Bill C-69, a Government of Canada omnibus bill, through an environmental justice lens in the context of development across Canada on Indigenous homelands and impacts on Indigenous cultural sustainability. Specifically, Part 1 (i.e., the Impact Assessment Act, 2019) and Part 3 (i.e., the Canadian Navigable Waters Act, 2019) of Bill C-69 pose significant threats to Indigenous cultural sustainability. Through an environmental justice lens, procedural aspects include the use of the project list and scheduled waterways, the discretionary decision-making powers of the Government of Canada representatives, and the lack of acknowledgement of procedural elements of the environmental assessment processes that are constitutionally protected in comprehensive land claims. While, distributive justice aspects consist of unsustainable development from an Indigenous perspective, whereby environmental costs and benefits have been (and will be) distributed inequitably. Bill C-69 is a flawed statute that reinforces the colonial policy of assimilation.

1. Introduction

In North America, there exists an extensive history of colonial efforts to assimilate Canada’s Indigenous peoples (First Nations, Inuit, and Metis) to allow for the development of their ancestral homelands; this is well documented [1,2]. Prior to the confederation of Canada, legal assimilative efforts consisted of voluntary and involuntary enfranchisement of First Nations people with the associated loss of “Indian” status [2,3,4]. The term “Indian” was erroneously used by the colonizers to identify Canadian First Nations peoples. It is important to note, each enfranchised male would receive an allotment of 50 acres (~20.2 hectares) carved out from the First Nations communal-reserve lands in a colonial effort to dismantle reserve lands set aside for exclusive use by First Nations peoples [2,5,6,7]. At confederation, sole jurisdiction over “Indians, and Lands reserved for the Indians” was given to the Dominion of Canada, as described in the Canadian Constitution Act, 1867 [8] (Section 91(24)). Thus, in the post-confederation era, the Dominion of Canada was solely responsible for “Indian” assimilative policies [9], which reaffirmed voluntary enfranchisement for “Indian” males and introduced the involuntary enfranchisement for “Indian” women who married non-Indian men [2]. Other legal assimilative tools employed by the Canadian government included the use of a blood quantum certificate to define who was an “Indian” [2]. The unilateral setting of blood-quanta standards have been used in an effort to assimilate Indigenous people around the world by colonial governments [10,11,12].

The Canadian government also employed the infamous residential school system as a cultural assimilative tool. Indigenous children were removed from their families, communities, homelands, and culture [1,13]—and totally immersed in the colonizers’ culture—with any cultural anchors (e.g., Indigenous languages, dress, etc.) forbidden [1,13]. Nonetheless, the residential school initiative was a failure [1,13]. Thus, another approach was initiated, referred to as the “sixties scoop”, whereby Indigenous children were forcibly removed from their homes and communities by Canadian child welfare organizations and fostered-cared in non-Indigenous homes [14,15]. Indigenous child abductions were not unique to Canada and occurred worldwide in countries such as the United States of America, Australia, and New Zealand, in a concerted effort to assimilate Indigenous people into non-Indigenous homes and colonial society [16].

In spite of Canada’s aggressive assimilative efforts, Indigenous cultures continued (and continue) to survive [17]. Canada was unsuccessful in trying to dismantle and develop on the reserve-land system and turned its assimilative attention more fully to development on non-reserve Indigenous homelands [2]. In this context, it is noteworthy that many Indigenous peoples hold the belief similar to that of the Nishiiyuu Council of Elders [18] (p. 1): “what is done to our land is done to our people”. From this perspective, colonial development on Indigenous homelands is an assimilative process that has been termed environmental assimilation [2]. Tsuji [2] (p. 2) defined environmental assimilation as: “changes to the environment through development, to the extent whereby the environment can no longer support Indigenous cultural activities either partially or fully” (see Figure 1 and Figure 2 for examples). As emphasized by the Truth and Reconciliation Commission of Canada [1] (p. 205): “In Canada, law must cease to be a tool for the dispossession and dismantling of Aboriginal societies”.

Unfortunately, for the First Nations of the Far North of Ontario, including the subarctic, Treaty No. 9 [19] and recent statutes enacted by the Government of Ontario are a threat to their ancestral homelands and cultural way of life [2]. Specifically, colonial development can override Indigenous rights and treaty rights when in the best interests of the Government of Ontario and/or “in the public interest” of Ontarians (which does not include Indigenous peoples by definition) [2]. Specifically, passages are contained in Treaty No. 9 [19] and Ontario’s laws that allow for this occurrence. For example: “the “taken-up” clause in Treaty No. 9 [19], the “Exemption Orders” in the Far North Act, 2010 [21], the “Except” stipulation in the Mining Amendment Act, 2009 [22], and the unilateral streamlining or exemption of development projects” in Schedule 6 of the COVID-19 Recovery Act, 2020 [23] (i.e., Ontario’s Environmental Assessment Act, 2020) [2]. Evidently, in Ontario, Treaty No. 9 [19] and existing legislation allow for the continuation of Canada’s colonial assimilative processes through environmental assimilation.

This paper extends the above-mentioned work in subarctic Ontario by examining Bill C-69 (An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts) [24] through an environmental justice lens in the context of development across Canada on Indigenous homelands and cultural sustainability. In particular, the examination of Part 1 (i.e., the Impact Assessment Act, 2019) [25] and a brief discussion of Part 3 (i.e., Canadian Navigable Waters Act, 2019) [25] of this federal statute will illuminate whether the federal environmental assessment processes in Canada—similar to Ontario’s recent Environmental Assessment Act, 2020 [23]—represents a typically unrecognized form of ongoing colonial assimilation. First, a brief background section is presented containing subsections on treaties and environmental assessments, the Canadian Environmental Assessment Act, 2012 (hereafter referred to as CEAA, 2012) [26], and the need for a new generation federal environmental assessment process. Then, the methods of the study are described, including the geographical and cultural scope of the study, as well as data collection and analyses. Next, results are examined through an environmental justice lens, and finally, the conclusions of the study are presented.

Briefly, the concept of environmental justice had its beginnings in relation to inequities with respect to environmental contamination exposure in racialized communities [27,28,29]. Typically, environmental justice includes a distributive dimension of environmental costs and benefits [30]. Environmental justice issues are often “associated with environmental policy and natural resource development decisions, and the extent to which the decision-making has meaningfully included the participation of affected communities [procedural dimension]” [30] (p. 3). The procedural dimensions of environmental justice also include full access to information and a transparent decision-making process [31]. In short, the procedural dimensions examined in the present study as related to environmental/impact assessment included the exemption of proposed projects from the assessment process, and the circumvention of the duty to consult with Indigenous peoples on projects potentially impinging on constitutionally-entrenched inherent and treaty rights. Other procedural elements evaluated were the use of the discretionary decision-making powers by the Government of Canada representatives throughout the assessment process, and the lack of transparency in the decision-making process. Importantly, environmental justice has also been described as an Indigenous social movement that emphasizes the interconnectedness of Indigenous peoples and their environments [30] and “a reciprocal set of duties and responsibilities [Indigenous laws and codes of conduct] between humans and the rest of the natural world” needed to maintain a harmonious balance [32] (p. 35).

2. Background

2.1. Treaties and Environmental Assessments

In 1763, the British Crown formally recognized that Indigenous peoples of North America held land rights [33]; thus, Indigenous homelands needed to be surrendered (i.e., ceded or purchased) through treaties prior to settlement and development by the colonizers [34,35]. Importantly, the Canadian Constitution Act, 1867 [8] under Section 92A(1), the “Non-Renewable Natural Resources, Forestry Resources and Electrical Energy”, bestowed upon the provincial governments of Canada exclusive powers with respect to resources (and development) on Indigenous ancestral homelands not included in First Nations-reserve lands. From 1870 to 1930, 11 treaties were signed between the Government of Canada and many First Nations groups from across Canada [35,36]; these agreements would become known as the numbered treaties. The treaties divided Indigenous homelands into two types of spaces: treaty-created reserve lands, known as First Nations, where First Nations people had exclusive use of the land, and Indigenous ancestral homelands where development would occur [34,35]. In 1975, the first of the modern treaties or comprehensive land claims—that is, the James Bay and Northern Quebec Agreement [20]—was negotiated and signed. In the James Bay and Northern Quebec Agreement [20], the first environmental and social impact assessment framework in Canada was introduced with respect to development in First Nations and Inuit homelands of northern Quebec.

At approximately the same time, in 1974, the Government of Canada formally established the Environmental Assessment and Review Process to evaluate the environmental impacts of Canada’s federal programs and policies [37]. Environmental assessment can be defined as: “a process to predict the environmental effects of proposed [development] initiatives before they are carried out. An environmental assessment…identifies possible environmental effects; proposes measures to mitigate adverse effects; and predicts whether there will be significant adverse environmental effects, even after the mitigation is implemented” [38] (p. 3). Since the Canadian Constitution Act, 1867 [8] did not mention the environment per se with respect to jurisdictional authority, the environment became the shared responsibility of the federal and provincial governments in Canada’s federated system of government [2,39]. The result has typically been separate environmental assessment processes at the federal, provincial, and territorial levels [40]. Thus, a development project may have to undergo several environmental assessments—that is, multijurisdictional environmental assessments—to gain approval to proceed [40]. However, governments have tried to avoid independent and separate environmental assessment processes through various mechanisms [40]. These mechanisms have been described as follows: 1. Harmonization coordinates and integrates federal and provincial (and/or territorial) environmental assessment processes so that the different levels of government commit to carrying out a single environmental assessment. 2. Substitution allows one jurisdiction to substitute their process for another jurisdiction, resulting in only one law or process being followed. 3. Equivalency is determined when a law or process of one jurisdiction is deemed equivalent to another jurisdiction. 4. Delegation whereby a federal responsible authority delegates to a person, body or jurisdiction authority to carry out any part of an environmental assessment [40]. Lastly, the environmental assessment process is not unique to Canada; almost every country in the world employs some type of environmental assessment with respect to development projects [39,41].

2.2. The Canadian Environmental Assessment Act, 2012

In 2008, the world was plunged into a financial crisis [42]; as noted by several researchers [43,44], governments respond to financial crises by stimulating economic development and creating jobs. Thus, it is not surprising that in 2012, the Government of Canada passed Bill C-38 [45], which contained the new Canadian Environmental Assessment Act, 2012 (hereafter referred to as CEAA, 2012) [26] and Bill C-45 [46]; these omnibus bills fundamentally changed the federal environmental assessment process [39,47,48]. Omnibus bills are considered in their entirety through a single vote [49] and are generally regarded as problematic due to the complexity of the changes made to a number of laws [50]. Bill C-38 [45] and Bill C-45 [46] streamlined the federal environmental assessment process by exempting many projects, which reduced or eliminated opportunities for public consultation as well as consultation opportunities with Indigenous peoples through the environmental assessment process [39,49].

Although the CEAA, 1992 [51] was criticized as being ineffective, inefficient, inequitable, and without a viable path towards sustainable development, the CEAA, 2012 [26] was viewed as a major regression in comparison [41]. Under the CEAA, 1992 [51], all projects involving federal lands, funding, initiatives, or permitting were required to undergo environmental assessments [48,49]—that is, “all in unless exempted out” [48] (p. 181)—with exemptions from the process mainly through regulations [47] (Figure 3). Under the CEAA, 2012 [26], the process was reversed, whereby no project required an environmental assessment unless included on a project list of designated projects [52] or designated through discretion by the Minister of Environment and the Canadian Environmental Assessment Agency [48,49,53]. In other words, “all out unless specifically included” [48] (p. 181). Thus, the environmental assessment legislated process moved from a legal test with exclusions to a discretionary process involving a project list and no judicial oversight [47,53]. Environmental assessment decision-making became opaque, less predictable, and more open to political lobbying [48,49,54] (Figure 3).

After the CEAA, 2012 [26] became law, approximately 3000 ongoing federal environmental assessments were immediately cancelled, and the number of projects required to undergo a federal environmental assessment was substantially reduced, from thousands per year to less than a hundred per year [41,49,55]. Since only major projects would undergo a federal environmental assessment, the cumulative effects of small and/or medium-sized projects would not be considered [41,48]. With the majority of development projects exempted from federal environmental assessments, the Government of Canada essentially circumvented the environmental assessment consultative process with the Canadian public, and consultation with Indigenous communities on proposed projects that could potentially affect Indigenous and/or treaty rights [49,54]. Additionally, the way in which the CEAA, 2012 [26] was fast-tracked through the legislative process with little debate has been highly criticized [47,49]. Specifically, some individuals and groups who requested to testify in front of the Government of Canada’s Standing Committee on Environment and Sustainable Development [56] were denied; testimonies were limited [57,58]. The hearing process was truncated, resulting in limited testimonies from First Nations organizations and none from Inuit and Metis leadership [56,58]. The Canadian Constitution Act, 1982 [8] defined First Nations, Inuit, and Metis peoples of Canada as the “Aboriginal” peoples of Canada. Further, not enough time was allotted to allow groups time to prepare written submissions and/or oral presentations [58]. Thus, it was not surprising that a First Nation took the Government of Canada to court with respect to the CEAA, 2012 [26].

2.3. An Indigenous Court Challenge to the Canadian Environmental Assessment Act, 2012

In Canada, Indigenous and treaty rights were entrenched in the Canadian Constitution Act, 1982 [8] (Section 35(1))—making these rights constitutionalized—while Crown treaty rights were not [59]. Case law in Canada has clarified to a point, the extent of these rights with the emergence of the duty to consult doctrine [60]. The nature and scope of the Crown’s duty to consult varies with the situation [61] and continues to evolve [44,62]. Prior to the CEAA, 2012 [26], the Supreme Court of Canada (SCC) had not defined whether the duty to consult doctrine was applicable to legislative activities [63,64]. In this context, it was asserted by Mikisew Cree First Nation that the Crown had a legal duty to consult with them during the legislative process, prior to Royal Assent. They asserted that there was the potential for the enacted legislation to negatively impact Mikisew Cree First Nation’s Treaty No. 8, 1899 [65] rights to hunt, trap, and fish, which were constitutionally entrenched [66]. At the level of the Canadian Federal Court, it was ruled that the Crown should have consulted with Mikisew Cree First Nation during the legislative process; however, the Federal Court of Appeal disagreed in that the Federal Court acted outside its jurisdictional power [67].

The Federal Court of Appeal’s decision was appealed to the highest court in the land, the Supreme Court of Canada, where it was ruled unanimously that the Federal Court did not have jurisdictional authority over the activities of the Ministers [66] who drafted Bill C-38 [45] and Bill C-45 [46]. Nevertheless, there was disagreement about the honour of the Crown and the duty to consult: “a total of seven [of the nine SCC judges hearing the case] said there was no binding duty to consult before a law was passed” [67] (no pagination). The two dissenting opinions, SCC Judges Abella and Martin [66] (p. 818) stated that: “Commonly observed duties of consultation such as notice to affected parties and the opportunity to make submissions are hardly foreign to the law-making process”. Meanwhile, SCC Judges Moldaver, Cote, and Rowe [66] (pp. 854–855) were of the opinion that:

As a matter of practice and in furtherance of good public administration, consultation on policy options in the preparation of legislation is very often undertaken. But, it is not constitutionally required…If Parliament or a provincial legislature wishes to bind itself to a manner and form requirement incorporating the duty to consult Indigenous peoples before the passing of legislation, it is free to do so…But the courts will not infringe.

Thus, the legal fiduciary responsibility to consult with Indigenous peoples on matters impacting their inherent rights and/or treaty rights, the duty to consult, does not apply during the law-making process [44]. The duty to consult as ruled by the SCC only applies after a Bill becomes law [66].

2.4. The Need for a New Environmental Assessment Process

Implementation of the CEAA, 2012 [26] led to a loss of the public’s and Indigenous peoples’ trust in the environmental assessment process [68]. As a result, an Expert Panel in environmental assessment was mandated by the Minister of Environment and Climate Change to consult with Canadians and Canada’s Indigenous peoples: “to review federal environmental assessment processes…[and make] recommendations to restore the public’s trust and confidence in these processes…[and] adopt ‘next generation’ environmental assessment” [68] (p. 1). After extensive consultation across Canada through a variety of outreach activities with the Canadian public and Indigenous peoples, the Expert Panel recommended that the process move from one based on significant adverse environmental effects to one based on impact assessment with sustainability at its core [68]. The proposed sustainability framework would incorporate the five pillars of sustainability (i.e., environmental, health, social, economic, and cultural): all “five pillars are interrelated, and all five must be examined to assess impacts to Aboriginal [First Nations, Inuit, and Metis] and treaty rights and interests” [68] (p. 20) and “integrate Indigenous knowledge, laws and customs into the process” [68] (p. 19). Furthermore, it was recommended that to ensure the transparency of the impact assessment decision-making process, the criteria used and the trade-offs made to achieve sustainable outcomes must be specified and accessible [68].

Unfortunately, the lofty sustainability goals of the Expert Panel’s report were altered in the Government of Canada’s discussion paper based on the Expert Panel’s report that followed [69]. Notably, there was no mention of the fifth pillar of sustainability related to culture in the discussion paper [69]. It was very surprising to see the cultural pillar removed from the Government of Canada’s discussion paper, especially since the cultural pillar of sustainability was a major theme throughout the Expert Panel’s report based on extensive consultation with the Canadian public and Canadian Indigenous peoples. Acknowledging that when sustainability was first described [70,71], the ecological pillar was the focal point of discussion, over the years other pillars were added: social and economic pillars in 1987 [72], then the health pillar, and finally the cultural pillar [73,74] in 2004 [75]; thus, an explanation of why the cultural pillar was not included as a pillar of sustainability in the discussion paper should have been given, at the very least.

2.5. Bill C-69, an Act to Enact the Impact Assessment Act and the Canadian Energy Regulator Act, to Amend the Navigation Protection Act and to Make Consequential Amendments to Other Acts

In 2019, Bill C-69 [25] became law; however, Bill C-69 [24] went through unprecedented governmental review [76], and of the 188 proposed amendments, approximately half were adopted before assent [77]. Furthermore, Bill C-69 [25] was an omnibus bill that introduced the Impact Assessment Act, 2019 [25] and the Canadian Energy Regulator Act, 2019 [25], and retitled the Navigation Protection Act [78] the Canadian Navigable Waters Act, 2019 [25] with associated changes. The Impact Assessment Act [25] fundamentally altered environmental assessment at the federal level to an impact assessment process [79], which was defined as “an assessment of the [positive and negative] effects of a designated project that is conducted in accordance with this Act” [25] (p. 6). Specifically, decision-making by the Minister of the Environment and the Governor in Council (i.e., the Cabinet Ministers of Canada) [80] moved from preventing or minimizing significant adverse environmental effects as described in the CEAA, 2012 [26] to an impact assessment based on a public interest determination reported in the Impact Assessment Act [25]. The determination of whether a development project is in the public interest takes into consideration five components: significant adverse environmental effects; mitigation measures; impacts on Indigenous peoples and their rights; climate change; and sustainability [25]. In the Preamble to Bill C-69 [25] (p. 1), the Government of Canada states that it is “committed to using transparent processes” and “committed to achieving reconciliation with First Nations, the Métis and the Inuit through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, co-operation and partnership”.

The lack of mention of the cultural pillar of sustainability in the Government of Canada’s discussion paper [69] was foreshadowing its omission in the Impact Assessment Act [25]. Further, the definition of sustainability in the Impact Assessment Act [25] was different from the CEAA, 2012 [26] (Section 2(1)) definition: “sustainable development means development that meets the needs of the present, without compromising the ability of future generations to meet their own needs”. To the point, the definition section of the Impact Assessment Act [25] (p. 8) did not mention cultural sustainability and changed the focus to “benefits”: “sustainability means the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations”. Similarly, throughout the Impact Assessment Act [25], culture was never explicitly referred to in conjunction with sustainability (e.g., Purposes section and Mandate section). This was contrary to what was stated in the Purposes section that impact assessments were to “take into account all effects—both positive and adverse—that may be caused by the carrying out of designated projects” [25] (p. 9). Additionally, if cultural sustainability was not accounted for in the impact assessment process, another purpose of the act—that is, “to ensure respect for the rights of the Indigenous peoples of Canada recognized and affirmed by Section 35 of the Constitution Act, 1982, in the course of impact assessments and decision-making under this Act” [25] (p. 10)—could not be met.

3. Methods

3.1. Geographical and Cultural Scope

Canada is the second largest country in the world with a land mass of approximately 9,984,670 km² [81]. The country is a federation of 10 provinces and 3 territories (Figure 4 [82]) under federal jurisdiction. Canada’s economy is heavily reliant on natural resources, with other sectors, such as agriculture, manufacturing, and technology also being of importance [83]. Thus, overall, development projects on Indigenous homelands contribute significantly to the Canadian economy. However, development must be sustainable from an Indigenous perspective or else it is another form of cultural assimilation [2].

In Canada, Indigenous peoples each have their own distinctive culture based on their relationship with their homeland [84]. In particular, Indigenous homelands do not strictly follow Canadian provincial and territorial boundaries [34]; even international boundaries with the United States of America impinge on Canadian Indigenous peoples’ homelands. Adding to the confusion, historical treaties and some modern treaties between the Indigenous peoples of Canada and the Government of Canada do not follow the boundaries of Indigenous peoples’ homelands. Of importance for the present paper, when treaties were signed between Canada and specified First Nations people—historically, First Nations’ peoples were erroneously referred to as “Indians”—small areas of “reserve” lands were set aside through the treaty for the sole use by the “Indians”. Reserve lands are now referred to as First Nations; the First Nations’ reserve lands are only a small fraction of the First Nations’ ancestral homelands [34,35].

First Nations people inhabit more than 600 unique First Nations [84] with the majority of First Nations people living off-reserve, that is, not in a First Nation [85]. The Metis population is concentrated in the western provinces of Canada, and in Ontario, with approximately two-thirds of the population living in an urban setting [84]. The majority of Inuit inhabit the North American arctic region in their homeland of Inuit Nunangat [84]. Inuit Nunangat is composed of four regions: Inuvialuit; Nunavut; Nunavik; and Nunatsiavut [86].

The total population of Indigenous peoples in Canada was recently estimated at 1,673,785 [84,87]. Of this total, First Nations people made up the largest group (977,230), followed by the Metis (587,545), and then the Inuit (65,025); people of multiple Aboriginal identities included 21,310 people, while there were 22,670 individuals of Indigenous ancestry not accounted for in the other categories [84]. As a percentage of the total Canadian population, Indigenous peoples comprise approximately 4.6% of the total [84,87]. Although the Canadian Indigenous population is growing relatively rapidly [84,85,87], immigration to Canada [88] will keep the proportion of Indigenous people in Canada at approximately the 4% level into the near future [2].

3.2. Data Collection and Analyses

The Canadian federal environmental assessment process must be informed by multiple perspectives to be effective and equitable [89,90]. To obtain a Canadian pan-Indigenous perspective on the environment, development on their homelands, sustainability, and other important issues with respect to Bill C-69 [24], submissions to the Standing Committee on Environment and Sustainable Development were examined in their entirety. In addition, the Hansard verbatim transcripts of the Standing Committee on Environment and Sustainable Development public hearings for Bill C-69 [24] were examined. The Hansard transcripts constitute another source of primary data, and the public hearing transcripts provided further insight into how Indigenous leadership and organizations from across Canada viewed the environment, development on their homelands, and sustainability. Primary data were analyzed using a thematic approach. This approach is more appropriate for use with Indigenous peoples than other qualitative methods because a thematic analysis allows for the evaluation of longer passages to ascertain meaning, which is especially important in Indigenous cultures based on oral traditions. This approach is not about counting the absolute number of times (or frequency) a word or phrase appears but disentangling the actual meaning of what was said in a culturally appropriate manner. Additionally, it would have been erroneous to use a strict content analysis because the 10-page limit for the committee submissions and the 10 min hearing limit for presentations constrained what could be presented to only what was deemed the most important by the people and organizations. Other issues may have been of importance but not as important as the ones presented. Furthermore, Indigenous leadership and organizations represented more than just a single voice: some organizations, such as the Assembly of First Nations represented 634 member nations from across Canada, and the Makivik Corporation spoke on behalf of 14 Inuit coastal communities in northern Quebec; absolute counts and frequencies would have been misleading.

Themes were first organized utilizing a deductive framework approach informed by the framework developed by Tsuji [2] for how First Nations’ leadership of northern Ontario viewed the environment, development on their homelands, and the Government of Ontario’s unilateral decision-making power in the context of Ontario’s environmental assessment process. Specifically, for the present study, the organizing framework for how Canadian Indigenous leadership and organizations viewed their relationship with the environment included these themes: inherent rights; protection of land and water; the land and water are not untouched; and the importance of the environment. Likewise, the organizing themes for a Canadian pan-Indigenous perspective on development across Canada included the following: consequences of development; not against development; and sustainable development. This was followed by an inductive analysis that identified the valued components of the cultural sustainability pillar from an Indigenous perspective, with particular emphasis placed upon the impacts to Indigenous and/or treaty rights and interests [68]. Lastly, an environmental justice lens was incorporated into the analysis. In particular, procedural justice aspects, such as meaningful consultation, duty to consult, and discretionary decision-making power of the Government of Canada were evaluated. In the same way, distributive justice aspects were examined in the context of non-monetary costs and unsustainable development.

4. Results

Herein, I present the results of the thematic analysis; please note that supplementary material is provided in

Table A1. Canadian pan-Indigenous relationships with the environment as described by their leadership and organizations (bold used for added emphasis).

Themes	Representative Quotes
Inherent Rights	“The Wolastoqey are signatories of Peace and Friendship Treaties [i.e., historical treaties], which did not involve or purport to involve the ceding or surrendering of our rights to lands, waters or resources that were traditionally used or occupied. As such, we retain Aboriginal title to our lands, waters and resources. These rights have the potential to be impacted by development, energy regulation and the regulation of navigable waterways. We are entitled to have a say in matters affecting our lands, waters and rights”. (Wolastoqey Nation in New Brunswick [128] p. 1)
	“Inherently, our lands and waters are part of the Anishinaabe Aki, a vast territory [of unceded land] surrounded by the Great Lakes in North America. For centuries we have relied on our lands and waterways for our ability to exercise our inherent rights under our own system of customary law and governments known as Ona’ken’age’win. This law is based on our mobility on the landscape, the freedom to hunt, gather, and control the sustainable use of our lands and waterways for future generations”. (H. St-Denis, Chief of Wolf Lake First Nation [106] p. 12)
Protection of land and water	“Our traditional perspective and world view that all aspects of the natural world, of which people are part, need to be respected and cared for” (E. Bellegarde, Tribal Chief of Files Hills Qu’Appelle Tribal Council [116] p. 2)
	“Continue to rely extensively on the resources in our Traditional Territory to feed themselves and their families, maintain their culture, and live as Dene Tha’ people. As Dene Tha’s people, it is our responsibility to take care of the lands and resources within our traditional Territory for current and future generations”. (Dene Tha First Nation [97] p. 1 cover let)
	“It’s inherent. It’s within us to be stewards of our land. We’re here to protect it. We’re here to ensure that it’s there for our grandchildren down the road. There is nothing that is going to stop us from protecting it…When things come into our territory, we have to ensure that what is brought there doesn’t leave a lifelong risk that is going to extinguish our being on that territory for my children and grandchildren down the road”. (M. Thomas, Chief of Tsleil-Waututh Nation [110] p. 13)
	“Akikodjiwan is a key sacred site to our peoples. Here in Ottawa, it is also known as Chaudière Falls. Akikodjiwan was, and continues to be, a site of prayer, offerings, ritual, and peace. These activities are important work for us as custodians of our waterways and communities, as we redefine and reconcile the interrelationship between our people and the river…a much higher priority must be given to recognize and preserve Akikodjiwan as a key healing point for Algonquin peoples and all cultures here in the national capital region”. (L. Haymond, Chief of Kebaowek First Nation, Wolf Lake First Nation [106] p. 15)
Land and water are not untouched	“Fort McKay’s Traditional Territory comprises over 3.5 million hectares of land… Fort McKay members have used these lands for millennia; lands that are rich in the cultural heritage of the Fort McKay people…Cultural preservation and the transmission of traditional knowledge includes but is not limited to hunting, fishing, trapping and gathering on those [culturally-designated] Reserves and the surrounding lands”. (Fort McKay First Nation [111] pp. 1–4)
	“Our people have sustained themselves through time immemorial through relying on and taking care of the lands, waters and other aspects of creation”. (Duncan’s First Nation [104] p. 1)
Importance of the environment	“The economies and cultures of Indigenous peoples is inseparably woven with their lands and natural resources and the assessment processes and decision-making authority applicable to industrial projects under IA legislation may have significant impacts on the lands and resources of Indigenous peoples. Land lies at the heart of social, cultural, spiritual, political, and economic life for Indigenous women. The survival of Indigenous communities, their well-being and empowerment depend on their relationship to the land and waters, and the environmental abilities of Indigenous women to transmit their knowledge. Any changes to the environment will directly affect Indigenous women’s and girls’ health, wellbeing, and identity, including national and international policies and regulations on lands and resources…Indigenous women’s relationship to the environment is inseparable from their cultural knowledge, teachings, and identity. Their unique identities are often shaped by time spent, knowledge learned, and gifts given from the land. Environmental degradation and extractive industries influence their ability to be able to carry out their responsibilities to the land or engage in land-based activities integral to their cultural identities. Violence on the land often translates directly into violence against Indigenous women and their ability to carry out and transmit culture. Effectively, denying Indigenous women the equal opportunity to self-determination is allowing systemic cultural genocide to progress”. (Native Women’s Association of Canada [102] p. 7)
	“The Metis Laws of the Harvest combined with [case law]…and the Canada-MMF Framework Agreement all work together to ensure that the Manitoba Metis Community’s rights are upheld, enabling the Metis to maintain an important aspect of their cultural identity and connection to the land while ensuring the natural environment is protected and species are conserved”. (Manitoba Metis Federation [112] p. 6)
	“the Draft Act [ignores the]…indigenous perspectives on this critical resource [i.e., water]...and ultimately views Canada’s waterways as highways that must be regulated, rather than considering the broader values associated with waterways…BC First Nations depend on water-based travel to access places where they harvest traditional resources. The inability, or an impeded ability, to access harvesting areas by water means that fishing rights are degraded and infringed. From an indigenous perspective, the ability to travel by water to access fishing areas is inextricably linked to the health of those waters. Activities that impact navigation and the ability to fish have cascading effects that reverberate through a community: impacting the spirit of the water; the ability of the water to support aquatic and terrestrial species, including plants that are harvested or used in traditional activities; travel through First Nations’ territories; the ability to pass along cultural and ecological knowledge accumulated over generations; and undermining trading and family relationships among First Nations. In failing to recognize this connection the Draft Act inherently limits the scope of engagement and excludes issues and concerns that are critical to the meaningful exercise of Indigenous rights to navigate waterways and otherwise use water”. (First Nations Fisheries Council [140] pp. 2–5)
	“We always identify ourselves as to where we’re from. That is our connection to the land and the water, and that’s our jurisdiction. That’s who we are. We’re part of our ancestors”. (Tsleil-Waututh Nation [109] p. 22)

,

Table A2. A Canadian pan-Indigenous perspective on development across Canada, as described by their leadership and organizations (bold used for added emphasis).

Themes	Representative Quotes
Consequences of development	“Throughout the 20th century and continuing today, there has been significant industrial development…including open pit and in-situ oil sands mining, uranium mining, sand and gravel mining, forestry, and pulp and paper mills…provincial and federal environmental assessment and protection laws have failed…these activities have degraded the natural environment, reduced or extirpated numerous species of wildlife, brought sickness to our communities, and infringed upon our Treaty and Aboriginal rights…[our] territory is being destroyed, habitat fragmented, species are being lost, watersheds depleted, and water and air contaminated”. (Athabasca Chipewyan First Nation [107] pp. 1–4)
	“Over the past several decades our Traditional Territory has been subjected to waves of successive development that have heavily impacted our lands, waters, fish and animals that we have a relationship and rely upon. The cumulative impact of agriculture, hydro projects, oil and gas, oil sands, mining, forestry and over hunting and fishing have impacted the ecology of our lands and has made it difficult to impossible for our people to meet their livelihood and cultural needs and exercise their rights”. (Duncan’s First Nation [104] p. 1)
	“Today you can no longer take a drink out of the Ottawa River. Agricultural farms using fertilizers and pulp and paper mills and the Chalk River nuclear facility dump toxic compounds without oversight as pollution by dilution into the waterway”. (Kebaowek and Wolf Lake First Nations [101] p. 7)
	“Industrial projects in or near Indigenous communities can result in increased rates of violence against women…in the form of physical or sexual violence, but also takes the form of environmental violence…Indigenous peoples tend to have a greater risk of exposure to toxic heavy metals…because of their cultural, economic and spiritual relationships with nature with proximity to industrial waste and other ecological contaminants having a direct impact on health. Indigenous women and children are particularly vulnerable to industrial toxins…[this] constitutes a form of environmental violence that can have serious, potentially fatal, consequences”. (Native Women’s Association of Canada [102] p. 8)
	“[M]assive hydroelectric and resource development over the past 40 years…extremely rapid and disruptive cultural, social, and environmental changes. These changes have caused enormous stress on the Cree in terms of our traditional way of life and culture”. (B. Namagoose, Executive Director, Grand Council of the Crees (Eeyou Istchee), [117] p. 3)
	“Kichisippi Pimisi (American eel) is considered sacred to the Algonquin people and has been a central part of our culture for thousands of years…Hydroelectric dams have caused a catastrophic decline this culturally significant species in our traditional watershed…The Lake Sturgeon too is a species culturally significant to the Algonquin…also suffered major decline from dams…Fluctuating water levels and unnatural water flows have significantly impacted fish spawning” (Algonquins of Ontario [105] pp. 3–4)
	“If you come to our territory, you’ll hear everyone talk about impediments to navigation…Activities that change the flow of rivers is what impacts navigation most heavily in our region…If you want to make a difference to our way of life and inland navigation, fix these provisions…All that is needed is to add a small list of legislative triggers to provide a backstop to the project list”. (M. Lepine, Director, Government and Industry Relations, Mikisew Cree First Nation [133] p. 16)
Not against development	“The fact is that when you’re talking about project development and economic development, our people need to work too, you know” (H. St-Denis, Chief of Wolf Lake First Nation, [106] p. 16)
	“In fact every one else will benefit from a project except the First Nations peoples that have Aboriginal Title to the lands affected by a project. And yes There maybe a few Aboriginal jobs or a procurement process maybe in place, but when the project has come and gone there is usually no significant changes to First Nations communities affected by a project...There has to be forms of revenue sharing processes brought into place, as everyone else makes money on a project but the people that are directly affected and further to that they loose opportunity to continue to practice their traditional pursuits on the land. In some instances the land or sources of water are destroyed and not available to provide sustenance to the local FN peoples after the project is complete and long gone”. (Peguis First Nation [118] p. 4)
	“While we are not opposed to all forms of development…[governments need] to ensure that all developments are sustainable and to ensure that there enough lands of sufficient quantity and quality to sustain our rights, way of life, culture, livelihood and to ensure the health and safety of our people and our friends and neighbours of the Peace River country”. (Duncan’s First Nation [104] p. 1)
	“Ensure that Aboriginal peoples have equitable access to jobs, training, and education opportunities in the corporate sector, and that Aboriginal communities gain long-term sustainable benefits from economic development projects…This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism… Benefit from effective and special measures to improve the economic and social condition of Indigenous women and children”. (Native Women’s Association of Canada [102] p. 3)
	“Fort McKay is not opposed to oil sands development. We are, in fact, among the most proactive of first nations with respect to oil sands development. Working in the oil sands sector has brought to the first nation and its members opportunity, economic self-sufficiency, stability, and prosperity that are inaccessible to many first nations people across the country, but as I said earlier, Fort McKay is also surrounded by oil sands development…Working with industry to advance shared objectives requires mutual respect and an acknowledgement that Section 35 grants to all first nations the right to continue a way of life. It also demands that we identify the full range of impacts to first nations and take action to mitigate and accommodate our concerns”. (J. Boucher, Chief of Fort McKay First Nation [114] p. 18)
	“We occupy and intensively use the entire area of Eeyou Istchee, both for our traditional way of [life]…and trapping, and increasingly, for a wide range of modem economic activities”. (B. Namagoose, Executive Director, Grand Council of the Crees (Eeyou Istchee) [117] p. 3)
Sustainable development	“Nunavik Inuit are not opposed to development. They recognize that large-scale development projects can represent significant economic potential for our regions and our communities. However, we also recognize that even the smallest projects can have significant impacts on the environment and on the Inuit way of life…there is an expectation within our communities that development projects will not be allowed to proceed unless every precaution has been taken to ensure that they are compatible with our understanding and respect for the environment, and that they uphold the maintenance of Inuit livelihoods, traditional practices, and the cultural identity”. (M. O’Connor, Resource Management Coordinator, Resource Development Department, Makivik Corporation [135] p. 5)
	“Indigenous peoples have a tradition of sustainable, respectful development and use of the land and resources in their traditional territories. For the federal government to fully partner with indigenous peoples, there must be a shift from mitigating the worst negative impacts toward using impact assessment as a planning tool for true sustainability”. (A. Hoyt, Nunatsiavut Government [127] p. 4)
	“[P]ractices of sustainability that we have practiced for thousands of years on our territories. Indigenous institutions are essential for future prosperity and participation in evolving targets for sustainability, biodiversity and climate change under agreements to which Canada is signatory”. (Kebaowek and Wolf Lake First Nations [101] pp. 9–10)

,

Table A3. Several relevant sections of the Impact Assessment Act, 2019 (Bill C-69, Part 1) [25] illustrating the unilateral decision-making power of the Minister and Governor in Council (bold used for added emphasis).

Section	Relevant Quotes from the Impact Assessment Act (2019)
Designation of Physical Activity Minister’s power to designate (9)	(1) The Minister may, on request or on his or her own initiative, by order, designate a physical activity that is not prescribed by regulations made under paragraph 109(b) if, in his or her opinion, either the carrying out of that physical activity may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects warrant the designation. Factors to be taken into account (2) Before making the order, the Minister may consider adverse impacts that a physical activity may have on the rights of the Indigenous peoples of Canada…recognized and affirmed by Section 35 of the Constitution Act, 1982 as well as any relevant assessment referred to in Section 92, 93 or 95. (2019:13)
Decisions Regarding Impact Assessments (16)	(1)…the Agency must decide whether an impact assessment of the designated project is required. Factors (2) In making its decision, the Agency must take into account the following factors: (c) any adverse impact…[on] Section 35 [rights] (2019:16)
Factors To Be Considered Factors—impact assessment (22)	(1) The impact assessment of a designated project, whether it is conducted by the Agency or a review panel, must take into account the following factors: (a) the changes to the environment or to health, social or economic conditions and the positive and negative consequences of these changes that are likely to be caused by the carrying out of the designated project… (b) mitigation measures that are technically and economically feasible and that would mitigate any adverse effects of the designated project; (c) the impact that the designated project may have on…Section 35 [rights]… (f) any alternatives to the designated project that are technically and economically feasible and are directly related to the designated project…(l) considerations related to Indigenous cultures raised with respect to the designated project…(q) any assessment of the effects of the designated project that is conducted by or on behalf of an Indigenous governing body and that is provided with respect to the designated project (2019:20–21)
Substitution Minister’s power (31)	(1)… the Minister may, on request of the jurisdiction…approve the substitution of that [EA] process for the impact assessment. (2019:25)
Impact Assessment by a Review Panel General Rules Referral to review panel (36)	Public interest (1) Within 45 days…a designated project is posted on the Internet site, the Minister may, if he or she is of the opinion that it is in the public interest, refer the impact assessment to a review panel. (2) The Minister’s determination regarding whether the referral…is in the public interest must include a consideration of the following factors…(b) public concerns related to those effects…(d) any adverse impact…[on] Section 35 [rights](2019:28)
Decision-Making Minister’s decision (60)	(1) After taking into account the report with respect to the impact assessment of a designated project that is submitted to the Minister…or at the end of the assessment under the process approved under Section 31, the Minister must (a) determine whether the adverse effects within federal jurisdiction—and the adverse direct or incidental effects—that are indicated in the report are, in light of the factors referred to in Section 63 and the extent to which those effects are significant, in the public interest; or (b) refer to the Governor in Council the matter of whether the effects referred to in paragraph (a) are, in light of the factors referred to in Section 63 and the extent to which those effects are significant, in the public interest. (2019:42)
Referral to Governor in Council (61)	(1) After taking into account the report with respect to the impact assessment of a designated project that the Minister receives…the Minister, in consultation with the responsible Minister, if any, must refer to the Governor in Council the matter of determining whether the adverse effects within federal jurisdiction—and the adverse direct or incidental effects—that are indicated in the report are, in light of the factors referred to in Section 63 and the extent to which those effects are significant, in the public interest. (2019:42)
Governor in Council’s determination (62)	If the matter is referred to the Governor in Council under paragraph 60(1)(b) or Section 61, the Governor in Council must…determine whether the adverse effects…that are indicated in the report are, in light of the factors referred to in Section 63 and the extent to which those effects are significant, in the public interest. (2019:43)
Factors—public interest (63)	The Minister’s determination…in respect of a designated project…and the Governor in Council’s determination…in respect of a designated project…must be based on the report with respect to the impact assessment and a consideration of the following factors: (a) the extent to which the designated project contributes to sustainability; (b) the extent to which the adverse effects…are indicated in the impact assessment report in respect of the designated project are significant; (c) the implementation of the mitigation measures that the Minister or the Governor in Council, as the case may be, considers appropriate; (d) the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by Section 35 of the Constitution Act, 1982; and (e) the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.
Conditions—effects within federal jurisdiction (64)	(1) If the Minister determines under paragraph 60(1)(a), or the Governor in Council determines under Section 62, that the effects that are indicated in the report that the Minister or the Governor in Council, as the case may be, takes into account are in the public interest, the Minister must establish any condition that he or she considers appropriate in relation to the adverse effects within federal jurisdiction with which the proponent of the designated project must comply. (2019:44)
Decision statement issued to proponent (65)	(1) The Minister must issue a decision statement to the proponent of a designated project…Detailed reasons (2) The reasons for the determination must demonstrate that the Minister or the Governor in Council, as the case may be, based the determination on the report with respect to the impact assessment of the designated project and considered each of the factors referred to in Section 63. (2019:45)
Minister’s power—decision statement (68)	(1) The Minister may amend a decision statement, including to add or remove a condition, to amend any condition or to modify the designated project’s description. However, the Minister is not permitted to amend the decision statement to change the decision included in it. (2019:47)
Designation of class of projects (88)	(1) The Minister may, by order, designate a class of projects if, in the Minister’s opinion, the carrying out of a project that is a part of the class will cause only insignificant adverse environmental effects. (2019:54)
Referral to Governor in Council (90)	(1) If the authority determines that the carrying out of a project on federal lands or outside Canada is likely to cause significant adverse environmental effects, the authority may refer to the Governor in Council the matter of whether those effects are justified in the circumstances…Governor in Council’s decision…(3) When a matter has been referred to the Governor in Council, the Governor in Council must decide whether the significant adverse environmental effects are justified in the circumstances and must inform the authority of its decision. (2019:55)
Regional Assessments and Strategic Assessments (92)	Regional assessments—region entirely on federal Lands The Minister may establish a committee—or authorize the Agency—to conduct a regional assessment of the effects of existing or future physical activities carried out in a region that is entirely on federal lands. (2019:55)
Strategic Assessments (95)	(1) The Minister may establish a committee—or authorize the Agency—to conduct an assessment. (2019:57)
Administration Regulations—Governor in Council (109)	The Governor in Council may make regulations…(a) amending Schedule 1 or 4 by adding or deleting a body or a class of bodies; (b) for the purpose of the definition designated project in Section 2, designating a physical activity or class of physical activities and specifying which physical activity or class of physical activities may be designated by the Minister under paragraph 112(1)(a.2) [designating a physical activity]…(d) varying or excluding any requirement set out in this Act or the regulations as it applies to physical activities to be carried out…(i) on reserves, surrendered lands or other lands that are vested in Her Majesty and subject to the Indian Act (2019:63)
Amendment of Schedule 2 (110)	The Governor in Council may, by order, amend Schedule 2 by adding, replacing or deleting a description of lands that are subject to a land claim agreement referred to in Section 35 of the Constitution Act, 1982. (2019:64)
Minister’s powers (114)	(1) For the purposes of this Act, the Minister may…(e) if authorized by the regulations, enter into agreements or arrangements with any Indigenous governing body not referred to in paragraph (f) of the definition jurisdiction in Section 2 to (i) provide that the Indigenous governing body is considered to be a jurisdiction for the application of this Act on the lands specified in the agreement or arrangement, and (ii) authorize the Indigenous governing body, with respect to those lands, to exercise powers or perform duties or functions in relation to impact assessments under this Act—except for those set out in Section 16—that are specified in the agreement or arrangement; (2019:87–88)

and

Table A4. Canadian pan-Indigenous concerns with the Canadian Navigable Waters Act [25] including the continued use of the Schedule, the unilateral powers given to the Minister and the Governor in Council if in the public interest, and the constitutionally-protected rights of Indigenous peoples being considered just another factor in the public interest determination (bold used for added emphasis).

Themes	Representative Quotes
Add Waterways	“The Bill should expand protections under the Act to include all navigable waters, not just those on the Schedule. If the Minister decides whether the project interferes with navigation and an approval is required, the Minister wields very broad discretionary power…The only way to preserve, protect, and respect inherent and Treaty rights is to amend this Bill to protect all waterways”. (Federation of Sovereign Indigenous Nations [95] pp. 6–7)
	“Add Waterways to the Schedule and Respect Dene Governance and Uses The only way to preserve, protect, and respect Dene rights and protocols is to protect all waterways. This would ensure that the federal government is involved every time a proponent’s work potentially infringes a Dene right of navigability, or other s 35 rights”. (Dene Nation [100] p. 5)
	“Further, we continue to disagree with the decision to maintain a Schedule of navigable waters. This was contrary to the recommendation of most Indigenous Groups who made submissions in this process…In our view, all navigable waters are deserving of protection. The listing process, while somewhat clearer, remains entirely discretionary, and puts the onus on the person seeking to protect the waterway to justify its inclusion, rather than requiring proponents or the Minister to justify why a waterway should not be included in the Schedule”. (Mi’gmawe’l Tplu’taqnn [123] p. 9)
	“CEAA 2012 changes and as it is still today the Feds only have the responsibility of 2 bodies of water in Mb [Manitoba} and 2 major rivers and these are: Lake Manitoba, Lake Winnipeg, the Churchill River and Nelson River. There are 100,000 lakes in Mb not counting all the rivers and streams, First Nations in Mb do not have a good working relationship with the Province when it comes to “First Nations Rights to Water” (Peguis First Nation [118] p. 5)
Discretionary decision-making power	“Bill C-69 remains overly politicized, with the minister making final decisions on the scheduling of waterways or designation of projects, and the cabinet making final project decisions after a full impact assessment process…Prime Minister Trudeau specifically promised to return lost protections to waterways in this country…We are requesting that the act guarantee…it will schedule any waterway that first nations request to be scheduled. Without this amendment, we have little choice but to pursue legal identity for the Ottawa River watershed…in our view all protections have effectively been lost…assessments and decisions be based on the broader scope of indigenous social, ecological, and cultural knowledge”. (H. St-Denis, Chief of Wolf Lake First Nation [106] p. 15)
	“Overly broad discretion to exempt waters from dumping and dewatering restrictions. The proposed s. 24 allows the Governor in Council to make orders exempting any water from the application of ss. 21 to 23. The only limit on this discretion is that it be in the undefined “public interest”. This does not give sufficient guidance or protection for First Nations…“Public interest” does not include protection of Section 35 rights… In several places, the Minister or the Governor in Council may make decisions or take action if it is in the “public interest”. If “public interest” is not defined to make reference to Section 35 rights, then there is a concern that Section 35 rights will not be considered at all when these decisions are made”. (Atlantic Policy Congress of First Nations’ Chiefs Secretariat [98] pp. 6–7)
	“All First Nation Waterways Must Be Formally Recognized, Included, and Protected The Dene Nation has stressed throughout the legislative review process that Canada must respect and acknowledge that water is the richness of the North and of Denendeh. We submit that the discretionary powers of the Minister should be informed by the Dene Nations and ultimately limited…We suggest that regulatory instruments must require the Minister to consider Indigenous rights and uses of waterways when assessing whether a project may interfere with navigation”. (Dene Nation [100] p. 5)
	“the CNWA continues to provide too much unfettered discretion to the Minister to make a number of critical determinations, including designating both major works and a minor works. Such a determination should not be purely discretionary”. (Mi’gmawe’l Tplu’taqnn [123] p. 10)
	“It should be explicitly specified that the public interest requires the protection of Section 35 rights…There continues to be little direction on how the Minister or Governor in Council exercises discretion under the CNWA. Section 28(1)(g.1) allows the Governor in Council to make regulations “excluding any body of water from the definition of navigable water in Section 2”. Under this provision the Governor in Council can make regulations to exclude any waterway as a navigable water. Section 24 also allows the Governor in Council to make orders exempting any water from the application of Sections 21 to 23. The only limit on this discretion is that it be in the undefined “public interest”. These powers are exercised without any public or Indigenous consultation or Parliamentary oversight”. (Wolastoqey Nation in New Brunswick [128] pp. 8–9)

in Appendix A, before the References section. First, it is important to present a pan-Indigenous perspective on the environment in Canada, followed by a Canadian pan-Indigenous perspective on development in their homelands. Next, a pan-Indigenous perspective on the Impact Assessment Act, 2019 is presented in the subsections entitled: Cultural Sustainability; Discretionary Decision-Making Power and the Public Interest Determination; the Designated Project List; Cumulative Impacts and Regional/Strategic Assessments; Substitution (One Project, One Review); and Reconciliation. Finally, a pan-Indigenous perspective is given with respect to the Canadian Navigable Waters Act, 2019.

4.1. A Pan-Indigenous Perspective on the Environment in Canada

Mikisew Cree First Nation [91] (p. 5) has noted that there has been “a lack of respect for Indigenous perspectives”, while the Lower Fraser Fisheries Alliance [92] and Okanagan Nation Alliance [93] asserted that equal weighting must be given to the Indigenous perspective in impact assessments. Further, T. Teegee, Regional Chief of the British Columbia Assembly of First Nations [94] (p. 17), emphasized that the federal and provincial governments “need to understand the Indigenous world view prior to any major project being given the green light”. The “plurality” of Indigenous nations and peoples across Canada must also be taken into account [95], because it cannot be assumed that “all Indigenous peoples of Canada have a common understanding of [all Indigenous] cultures, traditional knowledge or perspectives in particular areas” [96] (p. 11). Habitation and/or cultural ties to a specific geographical area is an important underlying identity factor [93,97]. Nevertheless, consistent general themes emerged from Bill C-69′s written submissions and committee hearing testimonials from national, regional, and community-level Indigenous leaders and organizations (see Appendix A, Table A1). For example, Indigenous leadership and organizations emphasized the importance and continuation of inherent Indigenous rights over their homelands [95,98,99,100,101,102]. Specifically, the Assembly of First Nations [103] (p. 9) asserted that:

First Nations are rights holders, who hold inherent and constitutionally-protected rights set out in their own governance and legal systems, as well as under Section 35 of the Constitution. In practice, this means that First Nations rights cannot be undermined by colonial interpretation of their rights (i.e., s.35). Instead, First Nations must first interpret and describe their inherent rights, grounded in Indigenous law, Indigenous legal traditions, and customary law. These legal orders, which lay the foundation for First Nations’ concepts of self-determination and sovereignty, are essential to starting true “Nation-to-Nation” dialogues and expressing the respect for our rights and title. For the millennia, prior to contact with European explorers, First Nations exercised control over their territories through their own governance authorities.

For “millennia” [92,97] or “time immemorial” [101,104], Indigenous peoples of Canada have protected and cared for their homelands in accordance with their “natural” laws”, “teachings”, and codes of conduct [105] (Table A1). North America was never “discovered”, contrary to the colonizers’ assertions, because Indigenous peoples already inhabited the land in well-established societies [106] governed by their own laws of land stewardship [95,100,101,107] (Table A1). Indigenous peoples were also “custodians” of the waterways [106,108,109] (Table A1). By respecting and caring for the environment, Indigenous peoples of Canada preserved the environment for future generations [91,97,105,106] (Table A1). As eloquently stated by M. Thomas, Chief of Tsleil-Waututh Nation [110] (p. 1):

Our people occupied, governed, and acted as stewards of our territory prior to contact, at contact (AD 1792), at the British Crown’s assertion of sovereignty (AD 1846), and continue to do so today… Tsleil-Waututh holds a sacred, legal obligation and responsibility to our ancestors, current, and future generations to protect, defend, and steward the water, land, air, and resources of our territory. Our stewardship obligation includes the need to maintain and restore conditions that provide the environmental, cultural, spiritual, and economic foundation for our nation and community to thrive. The Tsleil-Waututh Nation does this through actively asserting and exercising its stewardship and governance rights.

Clearly, the environment was utilized extensively (Table A1) but also sustainably by Canadian Indigenous peoples. Lastly, Indigenous peoples are “inseparably woven” (Table A1) or “connected” to the land [111,112] and water [112,113] for sustenance, cultural identity, health, and wellbeing (Table A1).

In accordance with this Indigenous perspective, resource development proponents must not solely rely on “biophysical indicators as proxies” of impacts on Indigenous inherent rights and treaty rights [92,96,97], because this is a “false equivalency” [92,93]. In particular, as elucidated upon by the Okanagan Nation Alliance [93] (p. 7), a strictly biophysical non-Indigenous perspective “ignores the interrelated nature of the environment from the Indigenous perspective, and the cultural and spiritual aspects of our rights”. A related issue is the erroneous assumption that Indigenous and treaty rights can be exercised elsewhere in “alternative areas” to mitigate the negative impacts of a proposed project [92,96,97]. The use of an alternative area is often not possible and assumes that all land is equivalent space [92,96,97], which it is not. A special relationship exists between Canadian Indigenous peoples and their homelands; the land is not just space, the land is a place of cultural importance (Table A1) and healing [106]—“It is our home. It is sacred to us” [114] (p. 18). As such, the Okanagan Nation Alliance [93] (p. 11) has proposed “a requirement for the proponent to submit a Suxwxtm (taking care of the land) plan at the planning phase of an IA [Impact Assessment]...A Suxwxtm plan that assesses the environmental, health, cultural and heritage, and socio-economic impacts of a proposed project on Aboriginal and Treaty rights is more comprehensive”, while renewed relationships between the Crown and Indigenous people must be “inextricably tied to the environment” [115] (p. 3). Lastly, from a pan-Indigenous perspective, lands and waters were never owned by the Indigenous peoples of Canada (Table A1); thus, Indigenous peoples have always maintained that treaties and other agreements have always been about sharing the land with the non-Indigenous Canadians [106].

4.2. A Canadian Pan-Indigenous Perspective on Development in Their Homelands

The status quo of pretending that major projects are being proposed in a pristine environment that result in zero impacts and play no role in shaping upstream and downstream impacts is fanciful and self-deluding.

[116] (p. 2)

Of similar concern, as elucidated by the Native Women’s Association of Canada [102] (p. 2): “While the benefits of federally regulated projects tend to formulate at the national level, most of the risks and deleterious effects tend to materialize at the local or regional scales”. The negative consequences caused by unsustainable development in Indigenous homelands were mentioned extensively in the written submissions and during hearing presentations. The negative impacts described included environmental, social, and cultural changes (Table A2); these changes typically occur rapidly and disrupt the societies and cultures of Canadian Indigenous peoples [105,117,118]. In particular, environmental contamination of the land, water, and airshed [91,93,114] was described, along with habitat fragmentation, physical and sexual violence against women, and other health and wellness concerns (Table A2). At the Standing Committee hearings, R. Willson, Chief of West Moberly First Nations [119] (p. 10), gave a powerful presentation about what his people and homelands have endured:

“Air We Cannot Breathe”…we have signs up all over the place about sour gas, and oil and gas activities…“Fish We Cannot Eat”…All of the fish in the reservoir system have high concentrations of methylmercury…“Land we Cannot Use to Hunt or Trap”…There are signs throughout the whole area that restrict our activity…“Animals We Cannot Eat”…a female caribou…a species-at-risk animal…was eating contaminated soil in a lease site that hadn’t been cleaned up. She died…“Water We Cannot Drink”. Areas…not affected by the Williston Reservoir and the methylmercury have coal mines on them, with high levels of selenium being dumped into them. There are signs…[warning] not to drink the water or eat the fish…“Forests we Cannot Use To Camp”…signs are up that restrict us from camping…sloughing has been happening since they flooded and went to full pool on the Williston Reservoir…It has been 40 years and it’s still sloughing there.

Other Indigenous groups have also identified that their basic human rights—access to clean water, uncontaminated food, breathable air, and shelter—are being negatively impacted due to development on their homelands [113,114] (Table A2).

This is not to say that all Indigenous groups are against development in their homelands per se [97,116,118] (Table A2). E. Crey, Chief and Indigenous Co-Chair, Indigenous Advisory and Monitoring Committee for the Trans Mountain Pipelines and Marine Shipping [120] (p. 25) gives one point of view:

Here’s my observation. At this time in Canada…often Aboriginal people are cast in the role of folks adamantly opposed all the time to development. As we know…Canada is a resource rich nation and…a leading nation at a high level of development…and yet at the same time has certain values that it wants to protect and uphold around the environment …If there isn’t any investment in Canada in major projects…[the result] plays out in our community in high levels of unemployment, poor housing…a lack of infrastructure improvement and maintenance in our communities…we want to make sure that they [Indigenous children] enjoy the same living standards…along with other Canadians.

Moreover, benefits to the Indigenous peoples impacted by the development must be both short- and long-term [102,106,118]. Development must also be informed by sustainable practices [93,96,121] (Table A2). In addition, stewardship responsibility for the environment must be shared [122,123] with shared decision making between the Government of Canada and Canadian Indigenous peoples [124]. Unfortunately, the sharing of Indigenous homelands through treaties with the European settlers “has been abused. Our ancestors never contemplated our territories to be industrial, nor has government legislation ever adequately protected us from industrial development” [106] (p. 12). Consequentially “Indigenous peoples, our cultures, territories and rights, have been rendered less and less sustainable through the advancement of the economic and social interests of Canada as a whole” [125] (p. 8). To end this section, sustainable development can be defined as “economic opportunity, but more important, it also means passing on our traditional lands and the traditional use of those lands to future generations, just as they were passed to us” [114] (p. 18). While the Mohawk Council of Kahnawake [126] (p. 5) asserted that the “actions taken today should not negatively impact on the following seven generations to come”.

4.3. Enactment an Act Respecting a Federal Process for Impact Assessments and the Prevention of Significant Adverse Environmental Effects (Short Title: Impact Assessment Act, 2019)

4.3.1. Cultural Sustainability

‘Sustainability’ is a modern term, but sustainability was long in practice by our people and our ancestors. There were consequences that occurred when we strayed from our natural teachings, instructions, laws…It was (and is) a matter of survival. We had, and continue to have, deep connections to the land…the arrival of Europeans to our territory…has dramatically impacted our way of life.

[105] (p. 3)

As mentioned by E. Bellegarde, Tribal Chief of Files Hills Qu’Appelle Tribal Council [116] (p. 2): “Civilized societies have a duty to think about and take actions that consider the long-term implications of their major projects”. Acknowledging that sustainability was a core principle of the Impact Assessment Act [24], the definition of sustainability in the Act was insufficient, with A. Hoyt of the Nunatsiavut Government [127] (p. 4) stressing during her presentation that: “Our rights and cultures are not to be sacrificed to sustain others”. Similarly, the British Columbia Assembly of First Nations [99] noted that the definition of sustainability in the Impact Assessment Act [24] needed to be more robust. Culture needed to be included in the definition of sustainability [92,127], and culture should have been “given the same attention” as the other pillars of sustainability, namely, the environment, health, social, and economic pillars [128] (p. 4). Culture should have been elevated in importance and given its own sustainability pillar [98] (p. 4): “It is not enough that ‘impacts related to Indigenous culture’ is listed as one of the many factors to consider in impact assessment”. Culture is foundational to Indigenous peoples’ identity and wellbeing [92,98,104,125]. Fort McKay First Nation [111] (p. 7) elaborated further that Indigenous “culture includes physical cultural sites, cultural practices, cultural landscapes, cultural values and well-being”.

Importantly, Indigenous culture is “not frozen in time” [96,97]. Furthermore, “to properly assess impacts, it is necessary to see Aboriginal and Treaty rights as dynamic geographically, culturally and temporally” [93] (p. 7). It is not adequate to only consider “current uses for traditional purposes” with respect to potential effects [97] (p. 10). This viewpoint “does not take into consideration the will of Indigenous peoples to resume traditional activities in locations that may have been impacted by previous development and/or locations where barriers to the exercise of traditional activities may be removed or mitigated in the future” [126] (p. 9). In addition, “current and future use of lands and waters for socio-economic and livelihood purposes” [105] (p. 8), including “a wide range of modem economic activities” [117] (p. 3) on Indigenous homelands, needs to be accounted for in impact assessments. Of particular relevance in any discussion of Indigenous cultures is the fact that: “Indigenous knowledge, traditional and contemporary, is at the heart of our identity and culture and must therefore be protected” [129] (p. 10).

Indigenous knowledge, like culture, is not “frozen in time” [96,97,98,128] and evolves “over time in response to new circumstances and changes in the environment” [103] (p. 16). It is a misnomer to use the term “traditional” to describe Indigenous knowledge [98,99,128]. Some have advocated the use of the term “Indigenous knowledge systems” to mark this distinction [130] (p. 16). Additionally, “Indigenous Knowledge belongs to those who are the guardians of it, be it the Nation or individuals within a Nation” [98] (p. 2). Even though Indigenous knowledge systems were “undervalued for hundreds of years”, they are now being used in environmental assessments and recognized in judicial proceedings [107] (p. 2). Moreover, the respect for Indigenous knowledge systems continues to evolve with the Expert Panel suggesting that the proposed new impact assessment process should give it equal weight to western knowledge [94].

4.3.2. Discretionary Decision-Making Power and the Public Interest Determination

Canadian pan-Indigenous concerns with the Impact Assessment Act [24] included: the opacity of the decision-making process and the unilateral decision-making powers given to the Minister and the Governor in Council if in the public interest [99,103,110,125,127,130]; as well as the constitutionally protected rights of Indigenous peoples and treaty rights being considered just another factor in the public interest determination [99,110,123,125] (Table A3). Specifically, the Mohawk Council of Kahnawake [126] (pp. 2–4):

does not believe that the Minister’s obligation to consider project impacts on Indigenous “groups” as part of a public interest determination (Section 63) is sufficient…this approach does not respect Indigenous consent or decision making as to what is an “acceptable” impact to Indigenous rights and lands. The Act only acknowledges Canada as the exclusive decision making authority to make such a determination as part of the public interest test…impacts to the rights of Indigenous Nations should not be weighed against other interests (economic interests of Canada or local communities, etc.) in a manner that does not respect the very nature of the Indigenous rights which are at stake…the Act should…separate impacts to established Indigenous rights from the public interest test of Section 63.

Meanwhile, the Makivik Corporation [131] (p. 3) voiced their concerns as follows:

there is a general lack of transparency and accountability on how decisions are made…in Sections 60–64…there is no requirement for the Minister to state how these rights have been considered in relation to the other considerations listed in s.63 or the “public interest”…the Minister, or Governor in Council, can trade off s. 35 Indigenous rights, but he/she has no requirement to state how or why these rights have been traded off to the “public interest”. Leaving discretionary power in the hands of the Minister or Governor in Council is certainly not transparent nor accountable, is prejudiced against the Indigenous peoples of Canada…not in the spirit of reconciliation.

Adding to the discourse, the Assembly of First Nations Quebec-Labrador [129] (p. 9) noted that “the public interest….[test] would be to our disadvantage. Our rights are unique and constitutionally protected, and cannot be viewed as less in the face of other rights and interests, and above all, in the face of a short-term vision of economic development”. Particularly with respect to the public interest test: “there needs to be clear provisions outlining how the decision-maker (i.e., Minister or Agency) plans to balance constitutionally-protected rights with economic benefits” [103] (p. 19), because “Indigenous peoples know that encroachments on their territories, resources and rights are always justified as being in the Canadian public interest” [125] (p. 8). It was emphasized that there needs to be “real clarity on what the public interest test is” [132] (p. 12) or else project approval “appears to remain a ‘political decision’” [111] (p. 5). The use of a “public interest test and the regulatory choice of a project list” would lead to judicial reviews [130] (pp. 14–15).

4.3.3. The Designated Project List

One of the main concerns identified with the Impact Assessment Act [24] was that it maintained the project list introduced in CEAA, 2012 [26] and all the associated issues [91,126,130]. The Atlantic Policy Congress of First Nations’ Chiefs Secretariat [98] (p. 4) acknowledged that while the federal government was consulting on changes to the designated project list, First Nations were still “concerned about having a list as the sole determiner of whether a project receives a federal impact assessment”. Questions persisted, such as, “What gets on a project list? What’s on schedule 2 remains a mystery” [132] (p. 12). In addition, the Athabasca Chipewyan First Nation [107] (pp. 2–3) reiterated “the importance of incorporating statutory thresholds or statutory criteria into the IAA [Impact Assessment Act] to determine what type of projects will be included on the project list and that can designated by the Minister upon request or upon her own discretion”. Some First Nations viewed the project list suspiciously because, from experience, “not a single request we have ever made for an activity to be added to the project list or its predecessor has ever been accepted” [133] (p. 15). Unsurprisingly, many Indigenous groups called for the abandonment of the project list [129].

The project list was referred to as a “blunt tool” [133] (p. 15). This description was appropriate, because the project list only included larger projects and excluded smaller projects that, by themselves and/or cumulatively have significant environmental-cultural impacts now and/or in the future [91,98,103,107,123]. Since each development-project decision is made independently, “the likelihood of there being a determination that a lesser project or activity’s impacts will be “significant” is almost non-existent” [99] (p. 9). As well, even though cumulative effects were mentioned in the Impact Assessment Act [24], it was not clear how cumulative effects/impacts informed whether a project would be subject to an impact assessment [92,93,97]. At last, some Indigenous groups suggested an adaptive management approach for approved projects “to amend project approvals if necessary, including suspension of approvals if significant threat to Indigenous people and lands persist” [111] (p. 9).

4.3.4. Cumulative Impacts and Regional/Strategic Assessments

Duncan’s First Nation [104] (p. 1) articulated their experience with cumulative impacts:

Over the past several decades our Traditional Territory has been subjected to waves of successive development that have heavily impacted our lands, waters, fish and animals that we have a relationship and rely upon. The cumulative impact of agriculture, hydro projects, oil and gas, oil sands, mining, forestry and over hunting and fishing have impacted the ecology of our lands and has made it difficult to impossible for our people to meet their livelihood and cultural needs and exercise their rights.

Indigenous peoples also referred to cumulative impacts as “death by a thousand cuts” [92,93,97,119]. Also, as purported by Fort McKay First Nation [111] (p. 6): “when negative impacts are incremental, no one is responsible, even when the cumulative impacts have dramatic consequences to the environment, culture, social structure, health, traditional economies and Rights of Indigenous peoples”. In their experience: “The cumulative effects in the oil sands region are likely reaching, or may have exceeded, environmental and cultural thresholds” [111] (p. 10). Similarly, the Mohawk Council of Kahnawake [126] (p. 5) identified the need to evaluate the “carrying capacity” of the environment and establish through the use of regional and strategic assessments: “Thresholds beyond which serious ecological or social damage is predicted…[taking into account] cumulative effects in ecologically and socially relevant spatial and temporal scales”. In summary, the use of regional and strategic assessments would “allow for the assessment of cumulative impacts, and can be a key planning tool to allow for sustainable development within a landscape” [125] (p. 10) and “with strong sustainability provisions will improve both the process and outcomes of impact assessments” [110] (p. 7).

Accounting for the fact that the Impact Assessment Act [24] mentions the possibility of conducting regional and strategic assessments, this is only through Ministerial authorization (Table A3); there were no requirements or thresholds to trigger such assessments in the Act, as noted by many Indigenous groups [104,126,134]. Further, there is some disagreement as to what constitutes a regional assessment:

The Expert Panel suggests the Lower Athabasca Regional Plan (LARP) is a regional assessment. Fort McKay disagrees. LARP does not acknowledge the impact of industrial development on Aboriginal and Treaty Rights. It is incomplete and was not developed with reference to any baseline assessments. At best, it is a regional land use plan…LARP was developed without meaningful consultation. LARP was intended to manage industrial development effects but projects continue to be approved without systems to acknowledge, understand, or manage cumulative effects arising from these approvals.

[111] (p. 10)

In sum, it should be emphasized that regional assessments need to include the entire Indigenous homeland as defined by the Indigenous people in question [92,111,114]. Some Indigenous people may not live in close proximity to a proposed project; thus, not consulted, but they may live in the larger Indigenous homeland and hold some sites as sacred (e.g., petroglyphs in Manitoba) [118].

4.3.5. Substitution (One Project, One Review)

The [Federal] Minister continues to have broad discretionary powers under the Bill [C-69]—the power of substitution…does not lead to predictability and credibility especially when those decisions impact First Nations rights.

[116] (p. 11)

Thus, it is understandable that the Federation of Sovereign Indigenous Nations [95] (p. 3) believed that “environmental assessments should not be designated to the provinces or regulatory authorities”. In the Province of Saskatchewan, First Nations worried about a “limited impact assessment process under provincial legislation combined with the callous attitude of the Province of Saskatchewan” [116] (p. 9). Likewise, in Quebec the shortcomings in provincial environmental assessment processes have been noted, which “results in concrete and significant differences between the federal and provincial review processes” [126] (p. 8). Moreover, “the new consolidated version of the EQA [Quebec’s Environment Quality Act] makes no reference whatsoever to the rights of First Nations in Québec” [101] (p. 11). Correspondingly, in Alberta, there existed a great deal of distrust with the provincial environmental assessment process [111]. Particularly:

It would be of significant concern…if the federal process was substituted for the provincial process…[should] require that substituted assessments meet the same standard as federal assessment.

[107] (p. 4)

It is with regret that we must state, that the Government of Alberta has not acted honorably in its dealings with the DFN and has allowed our territory, our livelihood rights and our ability to feed our families to be heavily impacted.

[104] (p. 5)

Meanwhile in British Columbia, the principle of one project, one assessment review was supported, but “only where Indigenous groups are a full partner” [99] (p. 7). Others asserted that “substitution with the provinces must not be allowed without an agreement ensuring respect for Indigenous rights and the highest standards of evaluation” [129] (p. 10), while other Indigenous peoples recognized that having an agreement was not enough; it was the honouring of the agreement that was of importance. For example, in 1975, the James Bay Northern Quebec Agreement (JBNQA) [20] established the following:

Any federal legislation providing for environmental or social assessment of development projects in the JBNQA [First Nations’ Cree] territory of Eeyou Istchee must ensure that the assessment is conducted by the federal environmental and social impact review panel, known as the COFEX, established under Section 22 of the JBNQA.

[117] (p. 3)

[L]aid a framework for environmental, social, and impact assessments to be conducted by bodies whose members give Inuit a direct role in the assessments…in a culturally appropriate way… [through] Section 23 of the agreement…the main difference [compared to the Crees] being that the body responsible for assessmentsis called the COFEX-North and applies to the Inuit territory

[135] (p. 5)

To achieve what was agreed upon in the JBNQA, the Impact Assessment Act [24] must provide for a “carve-out” that addresses the Cree territory specified in the JBNQA [117]. At the committee hearings B. Namagoose of the Grand Council of the Crees (Eeyou Istchee) [117] stated that:

One of the main objectives of the regime is to ensure that the Crees are active participants in the orderly development of the resources in Eeyou Istchee so as to safeguard their hunting, fishing, and trapping rights, as detailed in Section 24 of the treaty.

The Makivik Corporation [131] also noted compatibility issues between the Impact Assessment Act [24] and their modern Land Claims Agreements. Therefore, a similar request for a carve-out of Inuit territory was made with respect to Section 23 of the JBNQA [20] and the process in Sections 6 and 7 of the Nunavik Inuit Land Claims Agreement [135,136]. As elaborated upon by M. O’Connor, Resource Management Coordinator, Resource Development Department, Makivik Corporation [135] (p. 5) at the committee hearings:

the impact assessment regimes that are included within our land claims agreements are the outcome of extensive and careful negotiations. They are sensitive to the particular circumstances of the region and have been constructed with the rights of Nunavik Inuit in mind. Perhaps more importantly, they are relevant to and trusted by Nunavik Inuit.

Throughout the years, the James Bay Cree “have been involved in litigation regarding Section 22 of the JBNQA [20] and the various federal assessment processes external to the JBNQA, including the environmental assessment and review process” [117] (p. 4). The Cree refer to the recent Moses judgement [137] to bolster their position that impact assessments in their territory should be conducted through COFEX and the non-application of the Impact Assessment Act [24] (Sections 4 and 110) in Cree Territory without their consent [138].

In the same way, K. Darling, General Counsel of the Inuvialuit Regional Corporation [121] (p. 8) recommended during her presentation “a specific carve-out is what Inuvialuit has been advocating for” with respect to the Inuvialuit Settlement Region [122]. The Inuvialuit Final Agreement [139] was structured “to preserve Inuvialuit cultural identity and values in a changing northern society, to enable Inuvialuit to be equal and meaningful participants in a northern and national economy and society, and to protect and preserve the Arctic wildlife, environment, and biological productivity” [121] (p. 3). With these objectives in mind, the Inuvialuit Final Agreement [139] described “a robust impact assessment process” when enacted in 1984 [122] (p. 3). However, “parallel impact assessment systems, both of which involve federal representatives, are a recipe for confusion, delay, and expense...[Furthermore] under proposed Section 31 of the proposed bill, which leaves substitution to the discretion of the minister on a case-by-case basis, introduces uncertainty and likely delays” [121] (p. 2).

To conclude this section, the Nunatsiavut Government has jurisdiction over the environmental assessment process for “projects on Inuit-owned lands in northern Labrador and a role to play in environmental assessments of projects in the Labrador Inuit Settlement Area outside Labrador Inuit Lands as well as projects that occur outside our Settlement Area that have impacts on our rights and territory” [125] (p. 2). However, there was no process described in their lands claim agreement to harmonize environmental assessment processes [127]. Thus, Nunatsiavut Government was concerned that “a substitution of Part X of the Newfoundland and Labrador Environmental Protection Act (NLEPA) for an impact assessment under the IAA [Impact Assessment Act] can be nothing other than prejudicial to any Indigenous people, including the Labrador Inuit, who may be affected by the project. The NLEPA contains no reference to Indigenous peoples…Its only references to Inuit are to repeat the paramountcy rule in the event of a conflict between the Land Claims Agreement and the NLEPA” [125] (pp. 6–7).

4.3.6. Reconciliation

This is not a time to tweak legislation that doesn’t work, but an opportunity to create something that truly works toward reconciliation…move toward an economy that meets the needs of the current generation without compromising future generations’ ability to meet their own needs. The legislation must integrate free, prior, and informed consent in order to work toward reconciliation with Canada’s Indigenous peoples. The legislation must allow treaties and land claim agreements to be respected and fully implemented. Indigenous peoples have a tradition of sustainable, respectful development and use of the land and resources in their traditional territories…must be a shift from mitigating the worst negative impacts toward using impact assessment as a planning tool for true sustainability.

[127] (p. 4)

There was disappointment when Bill C-69 [24] went to First Reading in the Canadian parliament because the key messages from Indigenous peoples in the Expert Panel review were not included; the Government of Canada “resorted to a matter of tweaking CEAA 2012 over modernization” [108] (p. 13). Reconciliation ultimately requires “that the decision-maker understands the perspective and the views of those who may be adversely impacted, and specifically rights holders” [121] (p. 7). Reconciliation cannot be achieved:

if the final decision to approve a project can be made unilaterally by one party without confirmation from an affected First Nation that its views and concerns have been addressed. First Nations’ inherent jurisdiction must be recognized—including the ability to make final decisions at all stages of impact assessment in accordance with their own laws and customs… when the Government of Canada begins respecting and fulfilling commitments made in treaties, both historic and modern. This is important work in the journey of reconciliation and is essential to enable us to move forward together in a good way.

[130] (p. 16)

For reconciliation, the United Nations Declaration on the Rights of Indigenous Peoples’ principles of free, prior, and informed consent must be incorporated into the Impact Assessment Act [24,100,102,103,107,115,125,140]. As noted in the presentation of L. Haymond, Chief of Kebaowek First Nation, Wolf Lake First Nation [108] (pp. 13–14):

there is a strong link between reconciliation and environmental assessment and the protection of our rights on our territories, a link that is becoming clearer to us every day…The problem is that government is defining what reconciliation relations are…First Nations’ rights and title cannot be undermined by the colonial interpretation of reconciliation.

Finally, Indigenous peoples were dissatisfied with Bill C-69′s [24] written submission and hearing processes itself for a variety of reasons [117,141]. Some procedural concerns included the following: “short notices, insufficient funding, and very tight timelines” [108] (p. 13). There was insufficient time “to provide a rigorous analysis of such an important and lengthy [412 pages] piece of legislation” [123] (p. 3), and page restrictions made it impossible “to provide fulsome submissions…[on] a conception of public interest that incorporates Indigenous rights and norms” [99] (p. 14).

4.4. An Act Respecting the Protection of Navigation in Canadian Navigable Waters (Short Title: Canadian Navigable Waters Act, 2019)

The cultural importance of water and waterways to the Indigenous peoples of Canada is immense [91,103] (Table A4). For instance:

Since time immemorial, the Algonquin or Anishnabeg people have occupied a territory whose heartland is Kitchisibi or Ottawa River watershed. Traditionally, our social, political and economic organization was based on watersheds, which served as transportation corridors for our family land management units. We continue to regard ourselves as ‘keepers of the waterways.’ while continuing to promote ‘seven generations’ worth of responsibilities regarding livelihood security, sacred sites, cultural identity, territorial integrity and biodiversity protection. We have accumulated local, historic and current traditional knowledge and values, customary laws and wisdom that relate to the sustainable environmental management of the lands and waterways we occupy.

[101] (p. 7)

Navigation was identified as “integral to the exercise of all other rights of Indigenous peoples throughout their territories, from harvesting and spiritual practices to resource governance” [140] (p. 9). The amendments in 2012 severely impacted Indigenous peoples from across Canada in their ability to engage in cultural activities and their “ability to exercise a range of s.35 rights” [101] (p. 8). For example, H. St-Denis, Chief of Wolf Lake First Nation [106] (p. 14) during his presentation described:

how navigation was impeded on not one, but two, locations on our territory since 2013. These cases were not on unprotected waterways, but…were on an actual scheduled [CEAA, 2012 protected] waterway…the Ottawa River, the main highway of our nation. The following examples demonstrate that this new idea of scheduling waterways really provides no protection for navigation under the act…We ask this government, why was our navigation impeded under the Navigation Protection Act on a scheduled waterway?

As a further matter, “Bill C-69 does not restore the protection that was lost for most lakes and rivers in Canada” [129] (p. 11); specifically, environmental/impact assessment triggers needed to be restored [98]. Unsurprisingly, Indigenous leadership and organizations consistently indicated that there was a need to “protect all waterways” or, at the very least, add more to the Schedule (Table A4). Relatedly, the discretionary decision-making powers that the Government of Canada officials wielded in the public interest were of great concern (Table A4). Another issue with the Canadian Navigable Waters Act [24] was the retention of the “minor works” designation that exempted “many projects from the application of the CNWA that impact Aboriginal and Treaty rights” [92] (p. 11). Furthermore, the use of the minor works approach does not account for cumulative effects of projects on Indigenous rights and culture [92,129,142]. The Dene Nation [100] (p. 2) wanted “all development projects that change the lands and waters, regardless of size, undergo a preliminary impact assessment that includes Dene rights and interests”.

In this context, Algonquin leaders started to explore “all possible options that can address the legislative shortcomings impacting the protection of our sacred waterways and jurisdiction, including but not limited to the pursuit of separate legal rights for the waterways” [106] (p. 15). Consequentially, Kebaowek and Wolf Lake First Nations introduced to the Assembly of First Nations a resolution (#93/2017) [143] “to give legal recognition for the Kitchissippi River, the Ottawa River, that explores the concept of legal identity for the watershed as a means of protection” [106] (p. 15). The resolution was passed [143] and included in the written submission [108] to the committee presiding over Bill C-69 [24] as Annex A [101].

Ultimately, as elucidated upon by H. St-Denis, Chief of Wolf Lake First Nation [106] (p. 12) during his presentation, he was concerned:

that various pieces of legislation, including this current proposal [Bill C-69] to combine previous legislation under an impact assessment act, will come together as an assault on Indigenous sovereignty and protection of our land, air, and water. This cumulative policy effect could intentionally strip environmental protections across the country as resource development proceeds and colonialism completes itself.

Equivalently, A. Hoyt of the Nunatsiavut Government [127] (p. 3), gives her opinion:

To be blunt about it, this bill continues the practice of using the power of laws to license the slow and steady genocide of Canada’s Indigenous peoples in the name of the public interest. We are asking you to stop that, here and now, in this bill.

5. Discussion

5.1. A Pan-Indigenous Perspective on the Environment in Canada

To summarize, Indigenous leaders and organizations from across Canada noted a lack of respect for Indigenous perspectives, particularly with respect to worldview. They suggested that non-Indigenous people need to gain a better understanding of the Indigenous worldview, and advocated for equal weighting for the Indigenous perspective in impact assessments. Essentially, they held the position that when there are multiple perspectives, all perspectives need to be utilized to allow for better planning and sustainable development on Indigenous homelands [89,144]. In the Far North of Ontario, the James Bay Moose Cree in their joint Environmental Assessment Study Report with Ontario Power Generation articulated these multiple perspectives:

our [Cree] worldview…is intended to provide counterpoise to the western concept of the environment that is statistical and quantitative in nature and does not by itself adequately capture the spiritual, cultural and physiological connection of the Moose Cree people to nature and our deep rooted sense of reciprocity with the land, water and animals…We believe that a western-scientific view of the environment is important, but equally valuable, is our unique way of perceiving, knowing and describing our environment.

[144] (pp. 4-1 to 4-9)

As pointed out in the results earlier, Indigenous peoples of Canada had already inhabited their homelands for millennia in well-established societies with their unique cultures, governed in compliance with their “natural laws”, “teachings”, and codes of conduct that protected and cared for the environment, prior to the arrival of the colonizers; this has often been unrecognized by the colonizers [145,146,147,148]. The non-Indigenous assumptions of northern Canada being untouched, a wilderness, and the last frontier to be developed and exploited is a fallacy [2,18,32]. These Indigenous homelands and pre-colonial inherent Indigenous rights over these lands continue to this day, and since the repatriation of the Canadian Constitution Act, 1982 [8], these inherent (or “Aboriginal” in the document) rights have been constitutionally-protected. Similarly, Tsuji [2] reported that First Nations’ leadership in the Far North of Ontario asserted an inherent right and duty to protect their homelands: “Since time immemorial, our people have exercised our inherent right and protected the lands [waterways]. That is why they are still in pristine condition. And we will continue to protect our lands for future generations…the Far North…We have lived there for close to 10,000 years and…will continue to protect the natural environment” (S. Beardy, Grand Chief of Nishnawbe Aski Nation [149], pp. 828–831). Since the Creator bestowed these inherent rights to the Indigenous peoples [149], these rights were (and are) inalienable [2]. There has been a movement in Canada to revitalize Indigenous laws in protections of the environment [150], while, worldwide, Indigenous peoples contend that, like in Canada, colonial government recognition is not required for these inherent Indigenous rights to exist [151].

In brief, Indigenous peoples of Canada described themselves as “stewards” of the land and “custodians” of the waterways or something to that effect, with governance rights respecting and caring for the environment for present and future generations. The environment was utilized extensively and sustainably by the Indigenous peoples of Canada, and the importance of the environment was always respectively acknowledged. In keeping with this viewpoint, the Okanagan Nation Alliance [93] even suggested that taking care of the land (Suxwxtm plan) should be part of the planning of an impact assessment. Similar sentiments about how land stewardship was an inherent right given by the Creator has been reported elsewhere [149,152]. In particular, the First Nations’ leadership of Ontario’s Far North communities described their interconnectedness with the land, how the land is important to their identity as Indigenous peoples, and how they must care for the land as it has cared for them [2]. In other words, reciprocity relationships with the land and water are foundational for First Nations’ cultures and their ways of life, being one with the land and water that sustains them, as espoused by the northern Ontarian First Nations’ leadership and communities [2,153,154]. In the same way, Canadian Inuit who rely on the water landscapes (water, sea ice, and land) were (and are) governed by similar codes of conduct with place-based connections being of primacy [155]. The primary importance of landscapes and waterscapes to Indigenous peoples’ health, wellbeing, and culture has been widely documented, globally, for other high-latitude countries (e.g., the United States of America, Russia, Greenland, Sweden, and Finland [156]), along with southern hemisphere countries (e.g., Australia [157,158,159,160]; New Zealand [161,162]). Recently, despite the heterogeneity of Indigenous peoples globally, there has been growing attention being given to Indigenous management systems with respect to potential sustainability applications in light of climate change [163,164].

Canadian pan-Indigenous leadership and organizations, in short, also emphasized that developers and the governments must not assume that biophysical indicators are proxies for impacts on Indigenous inherent and treaty rights, because this approach does not account for the interrelated nature of the environment and the cultural and spiritual aspects of Indigenous rights, leading to a “false equivalency”. Relatedly, it is erroneous to assume that Indigenous and treaty rights are space-based and can be exercised in “alternative areas” to mitigate negative impacts of a proposed project; Indigenous and treaty rights are placed-based rights, specific landscapes and waterscapes are places of cultural importance with a history and obligations, not just space [18,155,165,166]. The difference in perspectives is between Indigenous homelands versus resource hinterlands [167]. In Canada, the importance of land-based and water-based Indigenous cultural activities to health and wellness [154,168,169] has been recognized. These benefits have also been reported in American Natives [170,171], the Maori of New Zealand [172], and in systematic reviews on the benefits of land-based activities to Indigenous peoples worldwide [173,174].

Lastly, from an Indigenous worldview, Indigenous peoples have never owned their homelands. It follows that if Indigenous peoples never owned their homelands, they could not have ceded or surrendered their homelands through treaties [175]. Nevertheless, sharing is foundational to Canadian Indigenous cultures [145,154,156,176,177,178]; this is why Indigenous peoples maintain that they only agreed to share the land with the colonizers through treaties and agreements [34,35,179,180,181], but reserve lands were excluded [59]. In Canada, there are Indigenous homelands covered by treaty, others covered by modern treaties or comprehensive land claims, and other Indigenous lands that are not covered by treaty or comprehensive land claim (e.g., most of British Columbia; Peace and Friendship Treaties).

5.2. A Canadian Pan-Indigenous Perspective on Development in Their Homelands

In summary, from a Canadian pan-Indigenous perspective, it is not that Indigenous peoples are against all development in their homelands per se, because economic opportunities have the potential to address their community needs and aspirations. However, at present, benefits are typically realized at the national or regional level—advancing the economic and social interests of Canada and/or provinces—with little benefit at the local-level, where all the environmental risks are burdened. Across Canada, Indigenous peoples have experienced major environmental, social, and cultural changes due to unsustainable development; environmental contamination of the land, water, and airshed associated with development was not an unusual occurrence with development. Development has also resulted in habitat fragmentation, physical and sexual violence, especially against women, and health and wellness concerns. Basic human rights, such as access to potable water, uncontaminated food, breathable air, and shelter have been violated, because government legislation never adequately protected Indigenous peoples and their homelands from unsustainable development. From a pan-Indigenous perspective, stewardship responsibility for the environment must come with shared decision-making responsibilities between the Government of Canada and Canadian Indigenous peoples, as agreed upon in the treaties and agreements.

In a similar way, First Nations of northern Ontario have emphasized that they are not against sustainable development, but they have seen the consequences of unsustainable development practices where First Nations disproportionately or entirely shouldered the burden [182]. Pointedly, since southern Canada has been developed close to its capacity, developers have looked towards the northern Indigenous homelands for future projects—if they have not already initiated development projects in subarctic and arctic Canada. For example, First Nations’ leadership from the near-north of Ontario that has experienced unsustainable development firsthand gave warning to the Far North Chiefs [182]: “European people have come here, and look what they’ve developed; they’ve developed a land of disaster. They take all the revenues and whatever and leave, and leave us with nothing. Then we have to do the cleanup” (Chief David Babin of Wahgoshig First Nation [183] p. 955), and “you polluted everything; you polluted all south of 50 [parallel]…and still you want more. You want to go north of 50 now” (Chief Keeter Corston of Chapleau Cree First Nation [184] pp. 955–956). Sadly, Moose Cree First Nation Elders have lamented [182]: “what good is money when the land is ruined” and “nothing will replace the land”.

Looking through an environmental justice lens [185], there is a distributive justice issue in that unsustainable development projects on Indigenous homelands result in Indigenous peoples burdened with the environmental-social-cultural costs of the project with limited benefits [2]. Commentary by academics [41] and lawyers [186] on Bill C-69 [24] have also noted how Indigenous peoples bear the disproportionate burden of pollution and environmental destruction from development projects, with a disproportionate lack of benefits. In spite of this, many non-Indigenous people have asserted that hydroelectric power generation is a clean-green source of energy compared to carbon-based energy alternatives, and helps to mitigate climate change through a decrease in the production of greenhouse gases and helps to mitigate climate change [182]. This type of green energy rhetoric [187] underlines the assumed low environmental impact of hydroelectric power, while not accounting for the fact that Indigenous communities are typically located in close proximity with hydroelectric projects’ catchment areas [182,188,189,190]. There is a disconnect between public perception and the actual environmental and social-cultural consequences of hydroelectric projects [182,191]. Hydroelectric development is far from benign with several notable impacts other than habitat fragmentation [192]. For example, greenhouse gas emissions [193,194,195,196] have been reported for up to 10 years post-flooding in Canada [194,197,198], and sometimes significant CO₂ emissions (up to 6000 mg CO₂/day) can occur after 20 years post-flooding, as reported in northern Quebec [194]. Another notable impact relates to elevated methylmercury concentrations in fish [199] that decrease over time [200] if there is no additional flooding [199]; however, methylmercury concentrations in fish remain elevated for ~30 years post-impoundment [200]. Ultimately, hydroelectric power generation projects have several negative impacts on Indigenous peoples, including: displacement of Indigenous people through flooding, alterations to their ability to practice their culture, worry about pollution, and the loss of income from traditional activities (e.g., fishing, trapping, etc. [168,182,183,188,189,201]).

5.3. Impact Assessment Act

5.3.1. Cultural Sustainability

In summary, Indigenous leadership were vocal that sustainability was practiced for millennia by the Indigenous peoples of Canada, even though the term “sustainability” is somewhat new in the non-Indigenous sphere. Exceptionally, the definition of sustainability in the Impact Assessment Act [24] was identified as being insufficient, especially taking into account that culture was (and is) foundational to Indigenous peoples’ identity and wellbeing. From one perspective, Indigenous culture was said to include “physical cultural sites, cultural practices, cultural landscapes, cultural values and well-being” (Fort McKay First Nation [111] p. 7), and it was stressed that Indigenous rights and cultures were not to be sacrificed to benefit others. Although “Indigenous culture” was mentioned in the Impact Assessment Act [25], culture was not included in the definition of sustainability let alone given its own sustainability pillar. Moreover, the Government of Canada consciously omitted the cultural pillar from the Impact Assessment Act [25] definition of sustainability, because the five sustainability pillars (which included culture) were emphasized throughout the Expert Panel report. Another concern with the Impact Assessment Act [25] was the perpetuation of the non-Indigenous misconception that Indigenous cultures were static rather than dynamic; the use of lands and waters must be considered in the context of past, current, and future “traditional” activities, including the resumption of traditional activities in areas previously impacted by development and/or where barriers have been removed.

In the same way, non-Indigenous organizations [202,203,204] noted that the Impact Assessment Act [24] changed the definition of sustainability to “the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations” [25] (p. 8). This contrasted sharply with the definition found in CEAA, 2012 [26]: “sustainable development means development that meets the needs of the present, without compromising the ability of future generations to meet their own needs”. While some commentaries on Bill C-69 assumed that “cultural well-being” [205] (p. 11) and “cultural considerations” [206] (p. 12) would be included in assessments along with environmental, economic, social, and health factors, others noted specifically that only four pillars were to be considered [207]. One person even suggested that “a new environmental assessment framework should mandate a complete intangible cultural heritage (ICH) inventory” [208] (p. 1). Intangible cultural heritage has been defined by the United Nations Educational, Scientific and Cultural Organization [209] (p. 5) as:

the practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts and cultural spaces associated therewith—that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.

Intangible cultural heritage is manifested, among other things, in oral traditions, language, social practices, and knowledge [209]. Expressively, Indigenous peoples from across Canada have maintained that Indigenous knowledge in all its forms is foundational to their identity and culture and must be protected. Indigenous knowledge systems are dynamic and evolve to meet new challenges in a changing environment. Indigenous knowledge belongs to guardians of the knowledge, whether it be Indigenous nations or individuals within a nation, whose duty is to safeguard the knowledge. In addition, there was a note of caution that not all Indigenous peoples possess the same type or level of Indigenous knowledge, and this has also been reported in the academic literature [145,176,210]. Although Indigenous knowledge was “undervalued” for many years by non-Indigenous society, the use of complementary knowledge systems has been gaining traction, with more weight being given to Indigenous knowledge systems, especially in health research [211] and environmental change research [82,212]. Nevertheless, there exists doubt about whether the Canadian federal environmental/impact assessment process can ever fully embrace equitably, Indigenous knowledge systems, because of inherent political inflexibility in the government due to colonial undertones [90]. However, in the Impact Assessment Act [25], the taking into account of Indigenous knowledge became mandatory compared to optional in CEAA, 2012 [26,76].

As mentioned previously, sustainability was practiced for millennia by Canadian Indigenous peoples governed by their laws and codes of conduct; sustainability was not a term used, but a way of life at the grassroots level. By contrast, the sustainable development concept made its first formal appearance in the 1980s, being a top-down process that emerged from governmental and non-governmental organizations, including think tanks [213]. However, the concept of pillars of sustainability was first described at the United Nations (UN) Stockholm Conference in 1972 [70,71]. Although the ecology/environmental pillar was the focal point of interest at the beginning, society and economy were added as sustainability pillars during the World Commission on Environmental Development [72]. In 1987, the United Nations World Commission on Environment and Development presented the most quoted definition of sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” [214] (c.2 (1)). In 2002, there was a movement to include culture as a pillar of sustainability during the World Public Meeting on Culture [73], in the context of Agenda 21 [74]. In 2004, culture officially gained recognition as a pillar of sustainability [75]. In contrast to the Indigenous concept of sustainability that always existed as a whole, the non-Indigenous concept of sustainability and sustainable development was constructed piecemeal, with the addition of more pillars with the passage of time. The concern with the non-Indigenous approach is that the definition of sustainability is fluid. Therefore, to meet a political agenda, the definition of sustainability can be manipulated by either adding or removing a sustainability pillar from the definition.

It should also be noted that in the United Nations General Assembly’s resolution (A/70/1; 2015) [215]—“Transforming our world: the 2030 Agenda for Sustainable Development”—in the Preamble, the “three dimensions” of sustainable development were identified as environmental, economic, and social. Even though health and culture were missing as a dimension of sustainable development, health was specifically mentioned as 1 of the 17 goals of sustainable development (e.g., Goal #3—Good Health and Well-being), while culture was not. Reference to culture was only made in the UN Resolution A/70/1 [215] in the context of “cultural diversity” (p. 10) and “cultural and natural heritage” (p. 23). In this way, UN Resolution A/70/1 [215] was similar to the Impact Assessment Act [25]—culture was not identified on its own as important to sustainable development. This should not be surprising when the historical top-down perspectives of governments, and governmental and non-governmental organizations are taken into account with respect to “sustainable development” [213] and, in the case of the Impact Assessment Act [25], the Canadian-colonial-historical policy of settlement, development, and assimilation. As recent as 1969, the Government of Canada tried to assimilate the Indigenous Peoples of Canada in one fell swoop through the Statement of the Government of Canada on Indian Policy [216], also known as the “White Paper”. The White Paper would basically transform Indigenous peoples into just ordinary citizens of Canada without any special rights [2]. The Indigenous peoples’ response to the White Paper was the “Red Paper” [217]. The Red Paper, in keeping with the Hawthorn reports [218,219], asserted that Indigenous peoples should be considered “Citizen Plus” as charter members of Canada. The Indian Chiefs of Alberta [217] in the Red Paper (Section B.2) forcibly espoused: “To preserve our culture it is necessary to preserve our status [Indigenous identity], [inherent and treaty] rights, lands [reserves and Indigenous homelands] and traditions”. Clearly, a definition of sustainability that does not include a cultural sustainability pillar is not acceptable to the Indigenous peoples of Canada from a historical and contemporary perspective.

5.3.2. Discretionary Decision-Making Power and the Public Interest Determination

In brief, Indigenous leadership and organizations wanted transparency in the decision-making process and the removal of the unilateral decision-making power bestowed upon the Minister and the Governor in Council by the Impact Assessment Act [25] if in the public interest. Furthermore, the constitutionally-protected rights of Indigenous peoples and treaty rights should not have been included as just another factor in the public interest determination, if reconciliation was an end goal of this piece of legislation. There needed to be clarification on how decision-makers (i.e., Minister Governor in Council or Impact Assessment Agency) planned to balance constitutionally-protected rights with economic benefits, because encroachments on Indigenous homelands and resource development have always been justified as being in the Canadian public interest.

Unfortunately, the discretionary decision-making powers of the Minister and the Governor in Council detailed in CEAA, 2012 [26] remained the same in the Impact Assessment Act [25]. Thus, all the issues with the CEAA, 2012 [26], as detailed earlier, remained. As mentioned by Wright [76], the Impact Assessment Act [25] was a retrofit of the CEAA, 2012 [26]. The promise of a new environmental/impact assessment process detailed in the Expert Report remained unfulfilled. As Mascher [53] astutely noted, if the impact assessment process was not initiated, the rest of the process becomes immaterial; effective and transparent triggers were needed. In other words, there would be no duty to consult with Indigenous peoples with the exemption of development projects from the impact assessment process. The Government of Saskatchewan [220] added that without clear criteria for how decisions would be made and how sustainability factors would be weighed against one another, bias would be introduced into the process, making the investment climate unpredictable. In R v. Sparrow (1990) [221] (p. 1079), it was asserted that in general: “The ‘public interest’ justification is so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights”. In sum, Indigenous peoples suggest that the public interest test and the use of the project list will end in judicial reviews, counter to the end goal of reconciliation.

Similarly, Ontario’s Environmental Assessment Act, 2020 [23], introduced in omnibus Bill 197, the COVID-19 Economic Recovery Act, 2020 [23], gave sweeping discretionary powers to the Government of Ontario’s Minister of Municipal Affairs and Housing if “in the public interest” [2]. Additionally, Ontario’s Lieutenant Governor in Council was granted extensive powers in Schedule 6 to designate which projects would require an environmental assessment—that is, a project list—and which would be exempt [2]. The Government of Ontario wanted to remove ‘red tape’ [222] because Ontario’s slogan was ‘Open for Business’ [223]. If most development projects were exempted from environmental assessments [224], there would be no public consultation [225,226,227] and the duty to consult with Indigenous peoples would never be triggered [44]. This was concerning because some exempted projects, such as those that are forestry-based, can have devastating contamination impacts on waterways (e.g., mercury) [228,229]. Furthermore, as noted by Tsuji [2], two fundamentally different political parties in Ontario passed similar-sounding pieces of legislation—the Liberal Party of Ontario enacted the Mining Amendment Act, 2009 [22], the Green Energy and Green Economy Act, 2009 [230], and the Far North Act, 2010 [21], while the Conservative Party of Ontario passed the COVID-19 Economic Recovery Act, 2020 [23]. This suggests that language of this type may be institutionalized in Ontario’s legislation and maintains an injustice with respect to Indigenous people of Ontario. In the same way, two fundamentally different political ideologies—that is, the federal Conservative Party, who passed CEAA, 2012 [26] with little consultation, and the federal Liberal Party, who recently enacted the Impact Assessment Act [25]—both enacted pieces of legislation that had fundamental similarities. Clearly, this type of language was (and is) institutionalized in both provincial and federal statutes, perpetuating the colonial perspective and furthering the assimilation of Canadian Indigenous peoples.

5.3.3. The Designated Project List

Summarily, the Indigenous peoples of Canada were concerned that the project list introduced in CEAA, 2012 [26] was maintained as the main determiner of whether a proposed project would undergo a federal assessment in the Impact Assessment Act [25]. Criteria for what gets on the project list was lacking, other than the project list included only larger projects. Not surprisingly, incorporating statutory thresholds into the Impact Assessment Act [25] to determine what type of projects were included on the project list, and that could be designated by the Minister was requested. From Indigenous experiences, not a single request to have a project added to the project list had been fruitful. Thus, many Indigenous peoples called for the abandonment of the project list after acknowledging that a process of consultation with respect to revising the project list was underway (Government of Canada, undated). The Physical Activities Regulations (SOR/2019-285) [231] or project list was last amended on 28 August 2019 and is current to 20 April 2021.

Similar sentiments with respect to the Impact Assessment Act [24] were voiced by academics, lawyers, and non-governmental organizations. Some examples are presented forthwith: (1) Olszynski [232] argued that impact assessment should be triggered by federal decision-making. Mascher [53], in a similar vein, specifically called for a statutory threshold to determine what type of projects will undergo (or not undergo) federal impact assessment. (2) West Coast Environmental Law [233] noted that under a project list, a significant proportion of federal projects will not be assessed. (3) Nature Canada [234] emphasized that the assessment process has been politicized in that even projects on the list may be exempted from an assessment at the discretion of the Minster and Impact Assessment Agency of Canada. (4) Although the Impact Assessment Act [25], like CEAA, 2012 [26], allows the Minister to designate projects not on the list, a new feature, as noted by Wright [76], is that the Minster must account for potential adverse impacts that the project may have on Indigenous rights. Under CEAA, 2012 [26], this discretionary power was rarely if ever used [205]. (5) Winfield [235] suggested that there was a high risk that smaller projects that would not be assessed under the project list could cumulatively cause significant impacts.

5.3.4. Cumulative Impacts and Regional/Strategic Assessments

In short, allowing for the fact that cumulative effects were mentioned in the Impact Assessment Act [24], Indigenous leadership and organizations were unclear on how cumulative impacts would inform whether a project would be subject to an impact assessment. Development was described as waves of successive impacts that did not allow the impacted Indigenous peoples to meet their livelihood and cultural needs through the exercising of their rights. In particular, cumulative effects in the oil sands region were said to have likely reached or exceeded environmental and cultural thresholds; others described development as exceeding the “carrying capacity” of the environment and “death by a thousand cuts”. Although regional and strategic assessments were viewed in a positive light, there was some disagreement about what governments and non-Indigenous peoples believed constitutes a regional assessment. The Lower Athabasca Regional Plan was given as a specific example of this disconnect. From an Indigenous perspective, regional assessments need to acknowledge impacts on Indigenous rights, historical baselines, include the entire Indigenous homeland as defined by the people, and have a system in place to mitigate cumulative effects that may arise. To finish, unfortunately the possibility of conducting regional and strategic assessments is only through Ministerial authorization in the Impact Assessment Act [25].

In the Expert Panel report, the use of strategic and regional impact assessments were recommended to inform lower-level project impact assessments, streamlining the process to benefit both proponents and communities, moving towards more sustainable development projects [68]. These next-generation assessment approaches [236] were included in the Impact Assessment Act [25]. However, as Boyd [41] points out, the Minster held discretionary decision-making authority to initiate regional and strategic impact assessments, which was problematic, because historically, these provisions were rarely used. Encouragingly, the Minister of Environment recently determined that a regional assessment would be conducted in the Far North of Ontario centred on the “Ring of Fire” mineral deposits [237]. In 2020, the Minister directed the Impact Assessment Agency of Canada to engage with Indigenous groups, the Province of Ontario, other federal departments, and non-governmental organizations to discuss various topics, such as identifying spatial and temporal regional assessment boundaries [237]. In November 2020, the Impact Assessment Agency of Canada initiated a series of engagement sessions virtually and by teleconference [238]. In a synthesis report [239] and follow-up request to the Impact Assessment Agency of Canada [240], it was noted that due to the Ring of Fire’s remoteness, lack of infrastructure, and most importantly, the lack of support from all First Nations in the region, the Ring of Fire remains underdeveloped. Of significance, the Indigenous-led Regional Assessment model for the Ring of Fire developed in partnership with Neskantaga First Nation [240] included many of the Indigenous-identified valued components identified in the submissions and Bill C-69 [24] hearings, for example: respect for Indigenous governing authority; the inclusion of free, prior, and informed consent; and the setting of social, cultural, and environment thresholds in the context of cumulative impacts [240]. It was also acknowledged that the model put forward was only one possible option for a regional assessment of the Ring of Fire [240]. It should also be highlighted that other scenario planning tools have been developed and show some promise for the future of regional assessments in Canada in partnership with Indigenous peoples [178].

Similar to regional assessments, strategic assessments have been said to exist along a spectrum; this may account for the wide array of sometimes conflicting literature on the topic [241]. In Canada, there are several examples of strategic environmental assessments [241]. For example, the Mikisew Cree First Nation petitioned the UNESCO World Heritage Committee to have Wood Buffalo National Park—part of their Indigenous homeland—be added to the List of World Heritage Sites in Danger due to concerns over cumulative impacts from development (e.g., hydroelectric power generation, oil sands activities, etc.) [241,242]. The World Heritage Committee asked Canada to conduct a strategic environmental assessment—the resultant strategic assessment had overall goals related to maintaining and/or restoring environmental integrity, and maintaining and/or restoring Indigenous cultural practices—was completed in 2018 [241,242]. This strategic assessment was identified as innovative because it went beyond a compliance-based model, but the utility of this strategic assessment at meeting the needs of the Mikisew Cree First Nations remains to be seen.

5.3.5. Substitution (One Project, One Review)

In brief, Indigenous peoples from across Canada had concerns that the federal Minister of the Environment continued to have broad discretionary authority under the Impact Assessment Act [24], including the power of substitution. Indigenous leadership and organizations from several provinces (e.g., Saskatchewan, Quebec, Alberta, and British Columbia) voiced their distrust of the provincial environmental assessment processes and their relatively low standards of evaluation, especially when there would be no federal-level assessment with substitution.

In the Expert Panel report, the principle of “one project, one assessment” was touted as being central to implementing impact assessment around the five pillars of sustainability; however, substitution was supported under the caveat that the highest standard of impact assessment would apply [68]. Substitution even gave pause to industry in that no clear criteria were established in the Impact Assessment Act [24] that explicitly outlined when and how the Minster would delegate impact assessment duties to other jurisdictional bodies, in particular Indigenous governing bodies [243]. Non-governmental organizations [244] also expressed concern with substitution, such as, with Ontario’s environmental assessment processes, because an evaluation of cumulative effects or provisions for regional or strategic assessments were not part of the Environmental Assessment Act, 1990 [245]. Ontario’s new Environmental Assessment Act, 2020 [23] is even more problematic with the introduction of a project list, discretionary decision-making processes, public interest determinations, and the streamlining and exempting of most projects from environmental assessment [2,182]. As purported by the Environmental Law Centre [246], substitution should be used only as a last resort, because the jurisdictional oversight of a level of government is removed. West Coast Environmental Law [233] had similar concerns, and held that if substitution was employed, the higher standards of the federal process should be upheld, and that substitution should be prohibited unless approved by potentially impacted Indigenous groups. One of Canada’s multijurisdictional impact assessment experts stated with respect to the Impact Assessment Act [24]: “substitution is problematic and unnecessary…the IAA [should] instead promote and facilitate cooperation and harmonization. Harmonization can rely almost exclusively on one jurisdiction’s processes, and therefore integrate the benefits of substitution, without suffering from its shortcomings” [247] (p. 7). Further, some organizations viewed the Impact Assessment Act [24] as restrictive and colonial in its defining of the Indigenous groups to be recognized as jurisdictions with respect to multi-jurisdictional matters, such as harmonization and substitution [248].

Of particular concern to Indigenous peoples from across Canada that had signed modern treaties or comprehensive land claim agreements, there was no accommodation in the Impact Assessment Act [24] for existing, constitutionally-protected impact assessment processes in these nation-to-nations agreements. It should be emphasized that these modern agreements were negotiated when Indigenous leadership and organizations could read, write, and speak English and had legal counsel—in contrast to what occurred with the numbered treaties [34,35]. Therefore, unsurprisingly, the James Bay Cree of subarctic Quebec and the Inuit of the subarctic and arctic regions of Quebec who signed the James Bay Northern Quebec Agreement (JBNQA) [20] wanted a “carve-out” of their respective territories. Specific sections of the JBNQA described negotiated impact assessment processes, that is, Section 22 for the Cree, and Section 23 for the Inuit [131]. Likewise, the Inuvialuit Regional Corporation requested a carve-out for their western arctic homelands. These requests were well-founded, especially taking into account that the Impact Assessment Act [25] had already made a carve-out for the Mackenzie Valley Resource Management Act (40 (1)) [249]. The Nunatsiavut Government was not part of this conversation because no process was described in their lands claim agreement to harmonize environmental assessment processes. Meaningfully, during the hearings for Bill C-69, even Members of Parliament, such as Linda Duncan (National Democratic Party of Canada [250] p. 8), queried:

One thing that puzzles me…why in Bill C-69 we only somewhat carve out the Mackenzie Valley Resource Management Act, completely ignoring all the other First Nation self-government and land claim agreements and impact assessment processes of the north.

This was an important question that was also expressed by Indigenous representatives, but unfortunately, no real answer was forthcoming.

5.3.6. Reconciliation

In short, Indigenous peoples did not want a tweaking of the CEAA, 2012 [26], as it was flawed from the beginning, being litigated extensively. There was a feeling of a missed opportunity to modernize the impact assessment process and create something that would truly promote reconciliation between the colonizers and the Indigenous peoples of Canada. From an Indigenous perspective, reconciliation fundamentally requires that decision-makers and non-Indigenous Canadians understand and respect the Indigenous worldview and the myriad of perspectives, especially as related to Indigenous and treaty rights. As such, reconciliation cannot be achieved when decision-makers unilaterally approve or exempt projects without taking into account the principles of free, prior, and informed consent. Other procedural issues, such as short notices, insufficient funding, page restrictions on committee submissions, and very tight timelines to read and comment on a massive piece of legislation—Bill C-69 [24] was 412 pages long—were described as problematic. Bill C-69 [24] was clearly not reconciliatory from a pan-Indigenous perspective, and there was the major concern that the Government of Canada was trying to define reconciliation relations only from their non-Indigenous perspective. Canadian Indigenous peoples’ specific worldviews and rights—must not be undermined and undervalued—by the colonial interpretation of reconciliation. In considering reconciliation, as stressed by the Supreme Court of Canada, Indigenous peoples were in Canada prior to the Europeans and were never conquered by the Crown [63]. In fact, Indigenous peoples were important allies of the Crown in their military campaigns against the French and Americans in North America, and shaped the country today known as Canada [251,252,253]. Reconciliation must be reflected upon in this context, beyond the non-Indigenous Canadian remorse for historical assimilative policies.

5.4. Canadian Navigable Waters Act

Briefly, in 2012, Canada’s Navigation Protection Act, 1985 [78] was significantly amended, whereby 99% of waterways lost their protection with respect to navigation; that is, protected waterways went from 40,000 to 94 lakes, and from ~2 million to 62 rivers [49]. Under this Act, only scheduled waterways were protected. Unsurprisingly, Bill C-69 [24] was a disappointment to the Indigenous peoples of Canada, because Part 3 of Bill-69 [24], that is, the Canadian Navigable Waters Act [24], did not restore the definition of navigable water to the “canoe test” nor restore assessment triggers lost in the CEAA, 2012 [26]. The protection of all waterways or, at the very least, the addition of more waterways to the Schedule in the new bill would have been a step forward. However, as mentioned by H. St-Denis (Chief of Wolf Lake First Nation [106]), even the scheduling of waterways provided no real protection, citing the example of the Ottawa River, a scheduled waterway under the CEAA, 2012 [26], where navigation was impeded at two locations since 2013. Other issues of considerable concern raised with the Canadian Navigable Waters Act [24] included the discretionary decision-making powers wielded in the public interest by the Government of Canada officials. The retention of the “minor works” designation that exempted many projects from impact assessment was considered problematic, due to the cumulative effects of smaller projects on Indigenous rights and culture.

Summarily, the cultural importance of water and waterways (in all its forms) to the Indigenous peoples of Canada was emphatically expressed, because their social, political and economic organization were based on watersheds, which served as transportation corridors and land management units. As keepers of the waterways, Indigenous peoples protected sacred sites, and maintained cultural identity along with territorial integrity. Indigenous sustainable environmental stewardship required (and still requires) the use of Indigenous knowledge in all its forms. Navigation was essential to exercise the rights of Indigenous peoples from harvesting and spiritual practices to resource governance throughout their homelands. In the same way, the significance of water landscapes has been reported worldwide as being important to Indigenous wellbeing. Examples include the sacredness of water landscapes to Australian Indigenous peoples, and the connection between Indigenous wellbeing and the health of the country (i.e., land, water, and air) [150]. In New Zealand, the waterways (water, banks, and bed), such as the Whanganui River, were central to the Maori lives and provided sustenance, transportation, and spiritual mentorship [161,162]. In other words, the watersheds and Maori people were indivisible; reciprocal relationships were integral to Maori (and river) health and wellbeing [161,162]. This is why the Maori pursued and were successful in gaining legal rights for the Whanganui River [161,162]. From a common law perspective, it is not unusual to grant inanimate objects, such as, corporations, trusts, and municipalities rights giving them legal entity [254] or legal personhood [255,256]. Nevertheless, this issue has been controversial [257] and the case of the Whanganui River with human guardians created novel legal questions [258]. As suggested by Strack [259], this new form of tenure where the natural feature owns itself may be the best conventional common law can do in the replication of customary tenure.

In Canada, Algonquin leaders wanted to explore all possible options to address the legislative shortcomings with respect to the protection of their sacred waterways, including the legal rights of waterways, but not limited to this one approach [143]. Perhaps the extension of the country of India’s common-law precedents with respect to the Ganges River and the Yamuna River or the implementation of the constitutionally-based rights of nature, as seen in Ecuador and Colombia, will prove fruitful in Canada, but there are several barriers [256]. Even the European Parliament [260] explored the rights of nature concept and found it to be mostly symbolic from their Eurocentric perspective but conceded that it still offered new ideas that could be adapted into the European Union system (e.g., basic principles of ecological integrity).

6. Conclusions

For the Government of Canada to move forward on the road to reconciliation—and away from its colonial path of assimilation—multiple perspectives have to be accounted for and employed in a complementary fashion [2,89,144], particularly with how the government narrowly defined sustainability and removed the cultural pillar. There must be more than just acknowledgement of different knowledge systems; respect has to be given, and it must be accepted that no knowledge system is greater or less than the other, just different [144]. The environment must be viewed as more than something to be owned and exploited; it must be acknowledged that the land, waterways, and airshed have only been shared by the Indigenous peoples of Canada and must be used sustainably to ensure prosperity for future generations [144,153]. Furthermore, the land and waterways must be seen as more than just space; the environment is a place where Indigenous knowledge can be transmitted, social linkages strengthened, culture practiced (e.g., sharing), and wellness cultivated [153,154].

6.1. Procedural Justice Aspects

Through an environmental justice lens, the concerns with the present impact assessment process had its foundation in the CEAA, 2012 [26] where there was lack of meaningful involvement by Indigenous peoples in the legislative process. As mentioned earlier, the Mikesew Cree First Nation lost their case at the level of the Supreme Court of Canada, highlighting that there was no legal fiduciary responsibility to consult during the legislative process [66]. However, this was not a unanimous decision, as two SCC Judges (J. Abella and J. Martin) [66] argued that the honour of the Crown needed to be upheld and gives rise to the duty to consult with Indigenous peoples even during the lawmaking process [66]. It has also been suggested that there was an ethical fiduciary responsibility to consult during the legislative process [44,187]. The main point is that the CEAA, 2012 [26] and associated legislation significantly changed environmental impact assessment in Canada, whereby most small-to-medium-sized development projects were exempted from the environmental assessment process without meaningful consultation with the Indigenous peoples of Canada. Moreover, these small-to-medium-sized development projects were not included in the project list; thus, these projects would never invoke the duty to consult, because the environmental assessment process had been circumvented through legislation, as statutory triggers for assessment were discarded. In other words, Indigenous peoples would not be consulted on most if not all proposed projects in their homelands, dependent on the size of the project. Relatedly, projects could be exempted from the assessment process through the discretionary decision-making power of the Government of Canada representatives. All the criticisms levied against the CEAA, 2012 [26] were also applicable to the Impact Assessment Act [25] with the maintenance of the project list, and discretionary decision-making powers. In fact, the decision-making process became even more opaque under the Impact Assessment Act [25] with the introduction of the nebulous public interest determination. In reality, the Government of Canada could be compliant with the procedures detailed in the Impact Assessment Act [25], but how the actual decisions were made, and the criteria used to inform the decisions would not be evident.

Under the Impact Assessment Act [25] it should have been specified that substitution should only be employed if agreed upon by the potentially affected Indigenous group. Existing and constitutionally-protected assessment processes detailed in comprehensive land claims and agreements had been carefully negotiated and agreed upon by the Indigenous groups in question; thus, to not account for this context in drafting Bill C-69 [24] was an egregious assault on Indigenous peoples rights and misguided, especially taking into account the end goal of reconciliation. In essence, the Impact Assessment Act [25] discarded procedural elements of the environmental assessment processes that were constitutionally entrenched in the comprehensive land claims and agreements. One positive was that at least the potential for Regional and Strategic Assessments remained from CEAA, 2012 [26] in the Impact Assessment Act [25]—albeit at the discretion of federal government officials—and cumulative impacts were now mentioned in the Act [25]. Encouragingly, a regional assessment has been initiated under the Impact Assessment Act [25] for the Ring of Fire, but enthusiasm has to be tempered until further along the regional assessment process, because these types of assessments occur along a continuum, so it remains to be seen the form this regional assessment will finally take.

6.2. Distributive Justice Aspects

The environmental costs and benefits of development projects across Canada have not been experienced equitably—and this inequitable distribution of cost and benefits would not be addressed in the Impact Assessment Act [25]—with Indigenous peoples’ homelands, its peoples, and cultures burdened with the brunt of all the non-monetary costs with typically little or no benefits [2,190]. Indigenous peoples across Canada voiced their concerns about the continuation of unsustainable development in their homelands under the Impact Assessment Act [24] and associated legislation. Taking into account that Bill C-69 [25] was passed before the COVID-19 pandemic, it must be recognized that the creation and application of regulations associated with the Act [25] will be made in the context of a world economic crises. Moreover, during and after financial crises, recovering governments have (and will) streamline and/or exempt development projects from the assessment processes to allow for a more rapid economic recovery [43]. For instance, after the 2008 worldwide financial crisis, the Government of Ontario enacted a series of laws to exploit the natural resources of Ontario’s Far North region [182]. In a similar manner, during the COVID-19 pandemic [261,262], the Government of Ontario enacted the COVID-19 Economic Recovery Act, 2020 [23] that streamlined the environmental assessment process in Ontario through the introduction of a project list, the addition of the “in the public interest” stipulation, and the granting of extensive decision-making powers to government officials [2]. Indigenous peoples across Canada must be vigilant, because COVID-19 economic recovery legislation and initiatives are coming. The governments will be looking to the resource-rich subarctic and arctic regions of Canada for salvation, incorporating a streamlined (or totally exempted) impact assessment process. Unfortunately, all of this will be happening when Canadian Indigenous peoples are at their most vulnerable, since Indigenous peoples have been disproportionately impacted by COVID-19 due to greater pre-existing vulnerabilities [83].

One area of resource development that is particularly concerning from a distributive justice perspective is the development of green-and-clean power and technologies; this sector has been identified by the Government of Ontario [182,263], and the Government of Canada as an important avenue for growth during the post-COVID-19 economic recovery phase [83,264]. In a similar manner, a recently published Organization for Economic Co-operation and Development discussion paper mentioned lessons learned from the financial crisis of 2008, and the ‘greening’, specifically, of the COVID-19 economic recovery [265]. Others have also suggested the green-and-clean energy pathway forward [44], with the post-COVID-19 period being touted as an opportunity to correct for past missteps [266,267,268,269,270]. However, as reported by numerous Indigenous groups who have experienced the impacts of hydroelectric development—a purported source of green-and-clean electricity—the impacts of hydroelectric power generation were severe and burdened by the Indigenous peoples whose homelands were developed, while the developers prospered but were not burdened with non-monetary impacts.

6.3. The Way Forward

The Impact Assessment Act [25] is a flawed statute that reinforces colonial undertones of the CEAA, 2012 [26]. Perhaps a new government will enact a new assessment statute that is more conducive to the cultural sustainability of the Indigenous peoples of Canada. If not: “the practice of using the power of laws to license the slow and steady genocide of Canada’s Indigenous peoples in the name of the public interest” continues (A. Hoyt, Nunatsiavut Government [127] p. 3), and “resource development proceeds and colonialism completes itself” (H. St-Denis, Chief of Wolf Lake First Nation [106] p. 12). Development must be sustainable from an Indigenous perspective, or else development is, in essence, environmental assimilation that perpetuates the historical colonial policy of assimilation in Canada [2] and worldwide in other countries with a colonial history (e.g., the United States, Australia, etc.).

Perhaps joint ventures will become more commonplace in the future with respect to development projects in Canada. In northern Ontario, once past hydroelectric development grievances were settled [271], Ontario Power Generation entered into a partnership with Moose Cree First Nation and refurbished old hydroelectric power generating facilities on the Mattagami River [272], and initiated a partnership with Lac Seul First Nation and developed a new hydroelectric station on the English River [272,273]. On a cautionary note, the Kabinakagami River Waterpower Project in northern Ontario, which was a joint venture between Northland Power Inc. and Constance Lake First Nation, was very divisive for the community, and the Ontario Water Power Association’s Class Environmental Assessment was never completed [182]. Perhaps the Rights of River approach will be fruitful, while there are also other possibilities.

It should be mentioned that the Government of Canada has initiated a relatively new Indigenous Rights process that “will recognize Indigenous lawmaking power; their inherent rights to land; and, in many instances, title within their traditional territories” [274] (no pagination). Furthermore, there has been significant interest in this Government of Canada initiative, with ~80 Recognition of Indigenous Rights and Self-Determination Discussion Tables and the involvement of more than 390 Indigenous communities [275]; this initiative may provide a viable way forward for Indigenous people with unceded homelands [2,34,35]. In brief, the policy [274,275] has the potential to support the implementation of the Government of Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act [276] that received Royal Assent on 21 June 2021 [276]. The United Nations Declaration on the Rights of Indigenous Peoples Act [276] has the potential to contribute to an improved relationship between the federal government and the Indigenous Peoples of Canada [277,278]. Lastly, perhaps Canada will heed the call of the United Nations Human Rights Council to implement the newly recognized right [279]—“the human right to a clean, healthy and sustainable environment” [279] (p. 1)—to the benefit of the Indigenous peoples of Canada, in support of reconciliation.