Consideration of Indigenous Knowledge in federal impact assessments affecting major projects has been required since passing of legislation in 2019 relating to the Impact Assessment Act, the Canadian Energy Regulator Act, the Fisheries Act and the Canadian Navigable Waters Act (the "Acts").
To guide how federal officials consider and protect Indigenous Knowledge in project reviews and regulatory decisions under the Acts, on September 26, 2022, the Impact Assessment Agency of Canada (the "IAAC") released the "Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions" (the "Framework"), which was developed in partnership with Indigenous Peoples. In its announcement of the Framework, the IAAC stated the Framework "provides a foundation for stronger relationships between the Government of Canada and Indigenous Peoples based on respect for different worldviews and sources of knowledge. It will better enable the inclusion of Indigenous Knowledge in the impact assessment process to improve project design, strengthen mitigation and accommodation measures, and make sound regulatory decisions for sustainable resource development."
The Framework is a first step toward developing guidance on consideration of Indigenous Knowledge in federal impact assessments and an example of how the IAAC is implementing the objectives of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP").
Indigenous Knowledge in Federal Impact Assessment
Indigenous Knowledge is not universally defined, and is community and location specific. The Framework describes Indigenous Knowledge as being "generally understood to be collective knowledge that encompasses community values, teachings, relationships, ceremony, oral stories and myths", and as being "complex knowledge systems embedded in the unique cultures, languages, values, and worldviews of Indigenous Peoples".
Federal government officials, in conducting project reviews and rendering regulatory decisions under the Acts, must, among other things:
- consider Indigenous Knowledge when provided, along with other factors;
- treat Indigenous Knowledge as confidential when provided in confidence; and
- protect Indigenous Knowledge from unauthorized disclosure when provided in confidence, subject to certain exceptions.
The Government of Canada's legal duties are informed by UNDRIP and the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples.
Five Guiding Principles of the Framework and Related Guidelines
The purpose of the Framework is to "support consistent application of provisions dealing with Indigenous Knowledge in the Acts". The Framework introduces five principles and related guidelines to achieve this purpose, which we summarize below.1
i. Respect Indigenous Peoples and their knowledge
The Framework recognizes the value that Indigenous Knowledge brings to project reviews and assessments and that Indigenous Peoples may have established protocols and processes governing matters related to their Indigenous knowledge.
Federal officials will recognize and respect the expertise of Indigenous Knowledge holders, and ensure interactions with Indigenous Peoples are respectful of their governance, guidance, protocols, ceremonies and processes. Indigenous Peoples will guide the interpretation of the Indigenous Knowledge, and determine how Indigenous Knowledge can be collected and shared.
ii. Establish and maintain collaborative relationships with Indigenous Peoples
The Framework recognizes that collaborative and respectful relationships foster the sharing, understanding and consideration of Indigenous Knowledge in project reviews.
Federal officials will engage early with Indigenous Peoples, inform them of the proposed project, the processes and policies associated with the project review, the opportunities to share Indigenous knowledge, and respect Indigenous Peoples' right to maintain, control, protect and develop their Indigenous Knowledge.
iii. Meaningfully Consider Indigenous Knowledge
The Framework recognizes the role Indigenous Knowledge plays in understanding project impacts, and requires that it be considered when provided. Each of the four departments and agencies related to the Acts are expected to establish clear guidance, processes and policies to ensure meaningful consideration of Indigenous Knowledge.
Indigenous Nations and communities will decide who provides and verifies Indigenous Knowledge, and how permissions to incorporate Indigenous Knowledge will be obtained.
iv. Respect the Confidentiality of Indigenous Knowledge
Indigenous Knowledge is confidential under the Acts, subject to certain exceptions. The Framework requires that officials communicate any exceptions to confidentiality and how knowledge provided in confidence will be safeguarded. Indigenous Nations can in turn determine whether to share their knowledge and what aspects are to be provided in confidence.
v. Support Capacity Building Related to Indigenous Knowledge
The Framework recognizes the need for capacity building for federal officials and Indigenous Peoples to participate and engage in this process. It therefore highlights the need for cultural competency and awareness training for federal officials, and support to Indigenous Peoples where they have identified capacity needs for their nation or community related to sharing Indigenous Knowledge.
Why This Matters
Indigenous Knowledge is considered alongside Western scientific knowledge throughout a federal impact assessment. It is expected to inform various aspects of technical assessment by project proponents and may provide helpful insights as to project design, baseline data collection, identification of mitigation measures, among other things. While the Framework provides relevant guidance to Indigenous nations and project proponents as to how Indigenous Knowledge is considered and treated by federal officials during federal impact assessments of designated projects, in reality it is really a gathering of first principles on the use of Indigenous Knowledge. The Framework provides little in terms of actual guidance on the practical aspects of how to gather, evaluate, assess and utilize Indigenous Knowledge. Further guidance applicable to each of the reviewing federal departments and agencies is expected as they develop their own policy and guidance documents.
1 For a more complete review of the principles and guidelines, refer to the Framework.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
