Indigenous Dispute Resolution Survey 2020

Indigenous Dispute Resolution Survey

Dave Porter, the CEO of the BC First Nations Energy and Mining Council has requested a survey be made available for First Nations interested in providing input on impact assessments.

The First Nations Energy and Mining Council is collaborating with the Impact Assessment Agency to better understand the wishes of Indigenous communities with respect to dispute resolution in impact assessments under the new Impact Assessment Act. The goal is to identify ways to support nations when these federal processes occur.

As you may know, the Federal and Provincial governments have passed new environmental assessment laws last year. Of interest to FNEMC is to understand what types of dispute resolution mechanisms are of interest to First Nations. A report will be developed and posted on the FNEMC website in the second quarter of 2021 for First Nations.

The survey will close at 12 noon on Day 2 of the BCAFN AGA (November 18th) and the goal is to have the draw for a MacBook Air Computer near the end of the day.

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* 1. Has your Indigenous community participated in a federal impact assessment (IA) process where a dispute with the Impact Assessment Agency of Canada (IAAC) occurred?

Yes

I don't know

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* 2. If you answered yes to question 1, please explain what the dispute was about. If your Indigenous community has participated in more than one federal IA process and a dispute occurred in any of those IA processes, please list those disputes as well.

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* 3. If you answered yes to question 1, was the dispute resolved:

Satisfactorily

Unsatisfactorily

Was not resolved

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* 4. If the dispute was resolved satisfactorily, please explain how it was resolved.

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* 5. If the dispute was unsatisfactorily resolved, please explain why.

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* 6. Has your Indigenous community had a dispute with another Indigenous community regarding conflicting Indigenous rights and title claims to a project area subject to an IA process?

Yes

I don't know

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* 7. If you answered yes to question 6, how was the dispute addressed?

IAAC facilitated process

Indigenous Nation to Nation process

No process

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* 8. If you answered yes to question 6, was the dispute resolved:

Satisfactorily

Unsatisfactorily

I don't know

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* 9. If the dispute was resolved satisfactorily, please explain how it was resolved.

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* 10. If the dispute was unsatisfactorily resolved, please explain why.

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* 11. Under the new federal Impact Assessment Act, when the Minister makes a decision to either approve or not approve a designated reviewable project in an IA process the Minister must determine whether Indigenous consent is achieved throughout the IA process. Currently, there are no clearly identified Indigenous consensus decision points in the IA process. Should there be clear Indigenous consensus decision points identified throughout the IAAC process?

Yes

I don't know

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* 12. If you answered yes to question 11, do you think that consensus decision points should occur at the:

Pre-IA stage to determine whether a project should or could be reviewable in an IA.

Pre-IA stage to determine what Indigenous communities should participate in the IA.

Pre-application stage to determine whether the information in the project proponents Impact Statement is sufficient.

Pre-recommendation stage to determine whether the proponents Impact Assessment report sufficiently includes the Indigenous communities information.

Pre-Ministerial decision stage to determine whether there is consensus by the Indigenous community on the decision to be made by the Minister.

Post-decision phase to determine whether environmental conditions are being implemented in line with terms and conditions.

All of the above.

None of the above.

I don't know

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* 13. If you answered no to question 11 or none of the above to question 12, please provide reasons.

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* 14. If an IAAC project lead makes a decision during the IA process without the Indigenous participant’s consent, should there be a designated dispute resolution process to address the disagreement at that point in the process?

Yes

I'm neutral

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* 15. If you answered yes to question 14, what is most important for you to be included in the dispute resolution process.

Neutral facilitator

Quick resolution

Reasonable cost

Transparency on how resolution is achieved

All of the above

None of the above

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* 16. If you answered “no” to question 14, please share your reason below.

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* 17. Do you think that any of the following dispute resolution processes are appropriate to resolve a dispute within the IAA process?:

Mediation/Conciliation: A 3rd party facilitates the resolution process but does not impose a resolution on the parties. Parties come to agreement on resolution together.

Negotiation: No 3rd party involved in the resolution process and the parties come to agreement on the resolution together.

Arbitration: A 3rd party acts as a judge and imposes a resolution on the parties.

None of the above

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* 18. If you answered “None of the above” in question 17, what is an appropriate dispute resolution process to resolve disputes in an IAA process?

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* 19. Should a dispute resolution process reflect Indigenous values, laws and processes?

Yes

I'm neutral

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* 20. If you answered yes to question 19, what is most important to you?

Indigenous facilitator

Indigenous protocols

Process takes place in an Indigenous community

Indigenous language

None of the above

All of the above

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* 21. If you answered “None of the above” to question 20, please tell us what is most important to you to be included in the dispute resolution process.

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* 22. 1. Would you support a dispute resolution process developed collaboratively by Indigenous communities and IAAC?

Yes

I'm neutral

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* 23. If a process is to be developed to resolve disputes between IAAC and Indigenous communities in the IA process, should the dispute resolution process be:

A predictable process framework to provide certainty of process to all participating.

A flexible process to provide the parties the ability to adjust to different projects, specific communities and unique circumstances.

Some aspects should be predictable and some aspects should be flexible.

None of the above.

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* 24. If you answered, “None of the above” in question 23, please explain.

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* 25. If a dispute resolution process requires a 3rd party to resolve the dispute, what qualifications are most important to you?

Technical environmental experience.

Experiential knowledge of Indigenous communities.

Legal experience.

Alternative dispute resolution experience.

All of the above.

None of the above.

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* 26. If you answered “None of the above” in question 25 or if we missed a qualification that is important to you, please explain.

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* 27. If there is a risk that participating in a dispute resolution process within the IA process could compromise a future legal claim against the Crown on the project being assessed in the IA process, would you participate in the dispute resolution process?

Yes

I don't know

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* 28. Do you have any concerns with a dispute resolution process being used in the IA process? What are they?

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* 29. Do you have any final thoughts on dispute resolution in the IA process?

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* 30. OPTIONAL: Please feel free to provide us with your name and contact information if you want to participate in the draw.

Name

Nation

Address

ZIP/Postal Code

Email Address

Phone Number