Engaging Indigenous Environmental Governance


Engaging Indigenous Environmental Governance

With the coming into force of the United Nations Declaration on the Rights of Indigenous Peoples Act1 in 2021 and the ongoing implementation of the Declaration on the Rights of Indigenous Peoples Act (Declaration Act),2 Canada and British Columbia have sought to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the Canadian legal framework. Central to this is the recognition of Indigenous jurisdiction over environmental governance.

The jurisdiction of Indigenous peoples to steward and manage their lands, waters, and resources is derived from their own legal orders, which have existed since time immemorial and are recognized under UNDRIP. The environmental governance practices of modern Indigenous governments are often directly informed by their respective Indigenous legal orders. In the Canadian legal context, there is increasing certainty regarding the role of Indigenous nations in regulating activities within their territories pursuant to their own Indigenous legal orders.

For example, in British Columbia, the provincial government is currently undertaking measures pursuant to the provincial Declaration Act Action Plan to give force and effect to Indigenous legal orders and jurisdiction over environmental governance. Such measures include, among other things, aligning provincial laws with UNDRIP, entering into relationships with Indigenous governments that recognize legal pluralism and cooperative federalism, and co-developing clear frameworks for shared decision-making.

Section 7 of the Declaration Act enables the Province to enter into agreements with Indigenous governments to jointly exercise statutory decision-making power and/or to obtain their consent prior to the exercise of statutory decision-making power. The first decision-making agreement under Section 7 was signed in June 2022 by Tahltan Central Government and the Province to support the Tahltan Nation’s consent-based process regarding the environmental assessment of the proposed Eskay Creek Mine.

In addition to Section 7 agreements, the Province has entered into several other agreements with Indigenous governments, including co-management and reconciliation agreements, which recognize and give effect to Indigenous jurisdiction and environmental governance.

For private entities, it is important to understand this shifting regulatory landscape, particularly, with respect to environmental impacts. Increasingly, proponents are prioritizing relationships with Indigenous nations and recognizing their jurisdiction and environmental governance, including through stronger commitments to partnership and respect for Indigenous jurisdiction. Under the current landscape of UNDRIP implementation, the content of such relationships generally includes commitments to implement forms of Indigenous environmental governance, parallel to British Columbia or Canadian regulatory law, such as:

  • Processes that respect the free, prior, and informed consent standard under UNDRIP;
  • Enhanced project oversight and management roles for Indigenous governments;
  • Permitting processes that flow through Indigenous governments; and
  • Commitments to implement Indigenous-led assessment and management practices.

There are several recent examples highlighting such relationships between Indigenous nations and industry participants in British Columbia. Notably, the recent agreements between the Squamish Nation and Woodfibre LNG; the St’kemlúpsemc te Secwepemc Nation and New Gold Inc; and the Yaq̓it ʔa·knuqⱡi'it Nation and NWP Coal Canada Ltd each demonstrate commitments by each proponent to implement decision-making processes to align their projects with the environmental governance standards expressed by each respective partner Indigenous nation.

From a practical perspective, building such relationships not only provides a strong basis for development within Indigenous territories, but also bolsters regulatory certainty for proponents navigating a legal environment that increasingly emphasizes reconciliation with Indigenous peoples.

  1. SC 2021, c 14. |
  2. SBC 2019, c 44. |