“Revitalizing” environmental assessment : interpreting the Environmental Assessment Act in light of the United Nations Declaration on the Rights of Indigenous Peoples
University of British Columbia
Master of Laws - LLM
It has been five years since British Columbia passed the Environmental Assessment Act, 2018 (EAA). The EAA was passed amid provincial representations that it would help bring the principles of the United Nation’s Declaration on the Rights of Indigenous Peoples into effect through British Columbia’s environmental assessment process. In this thesis, I investigate to what extent this is the case. To do so, I outline a series of interpretive frameworks for three of the United Nations Declaration’s core concepts, and apply those interpretive frameworks to the EAA to see which interpretations the Act most embodies. I begin the thesis by introducing the history of environmental assessment, and outlining its procedures, its intersection with Aboriginal and Constitutional law in Canada, and the EAA’s reform process. In the second chapter, I outline different interpretive frameworks relating to the United Nations Declaration’s concepts of self-determination, Free, Prior and Informed Consent, and Indigenous territorial and resource control. For each of these concepts, I present a conservative and expansive interpretation, drawn from Canadian and First Nation’s scholarship, jurisprudence, and government writings. In the third chapter, I apply these frameworks to the EAA, and find that generally the Act’s provisions and attendant policy guidelines espouse a conservative interpretation of the Declaration. While expansive interpretations of the Declaration are possible through, for example, the EAA’s consent agreement, and Indigenous Led Impact Assessment regimes, these things are exceptions under the EAA’s general framework, rather than the rule. Finally, in the fourth chapter I demonstrate an expansive reading of the EAA through applying an expansive interpretive framework to the EAA’s dispute resolution provisions. Ultimately, I encourage further critique of attempts to legislate the United Nations Declaration. How the Declaration is represented by legislatures and in policy guidelines critically affects how its implementation plays out in practice. It matters how jurisdictions like British Columbia or Canada implement the Declaration, and whose understandings of it become most embodied in the resulting domestic legal framework.
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Law, Peter A. Allard School of