Aboriginal Consultation in Federal Environmental Assessment

The Government of Canada consults with Aboriginal people as part of the environmental assessment (EA) process for a variety of reasons, including: statutory and contractual obligations, policy and good governance, and the common law duty to consult.

The Government of Canada takes a "Whole of Government" approach to Aboriginal consultation in the context of environmental assessments to ensure that Aboriginal groups are sufficiently consulted when the Crown (federal government) contemplates action(s) that may adversely impact potential or established Aboriginal or Treaty rights. These rights are recognized and affirmed in Section 35 of the Constitution Act, 1982.

The Canadian Environmental Assessment Act, 2012 provides for environmental assessment by a responsible authority and environmental assessment by a review panel (including by a joint review panel). The Canadian Environmental Assessment Agency (the Agency) conducts most environmental assessments and provides support to review panels.

The Agency acts as the Crown Consultation Coordinator to integrate the Government of Canada's Aboriginal consultation activities into the EA process to the greatest extent possible. This applies to all EAs for which the Agency is the responsible authority, including review panels.

Opportunities for Aboriginal Consultation

As Crown Consultation Coordinator, the Agency coordinates federal Aboriginal consultation activities and provides Aboriginal groups with an opportunity to comment on:

• Potential environmental effects of the project and how they should be included in the environmental assessment;
• The potential impacts of a project on potential or established Aboriginal or Treaty rights;
• Mitigation measures; and
• Follow-up programs.

Agency Approach to Aboriginal Consultation

As Crown Consultation Coordinator, the Agency:

• Identifies Aboriginal groups whose potential or established Aboriginal or Treaty rights may be adversely affected by the proposed project;
• Invites identified Aboriginal groups to provide comments in relation to the EA;
• Provides Aboriginal groups with information about the proposed project and the EA process;
• Provides funding to assist eligible Aboriginal groups in preparing for and participating in consultation activities  through the Agency's Participant Funding Program;
• Considers the feedback provided by Aboriginal groups during the consultation process, including any concerns or issues raised, prior to any decisions being final; and
• Identifies mitigation and accommodation measures that may be required to address issues raised during the consultation process.

The nature and level of consultation activities undertaken by the Agency will vary on a project-by-project basis and are dependent on the nature of the potential or established Aboriginal or Treaty rights, and the extent and severity of the potential adverse impacts of the proposed project on those rights. A step-by-step approach to federal Aboriginal consultation is articulated in the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, 2011.