Supplementary Information for Licensees: Aboriginal Consultation

• Introduction
• Pre-application phase
• Environmental Assessment (EA) and licensing review phases
• Post EA and licensing renewals

Introduction

It is important that CNSC staff, licence applicants (Licensees) and Aboriginal groups are all aware of the CNSC’s expectations for Aboriginal consultation and approach to it, when working together for safe, effective regulation of the nuclear sector.

The CNSC’s Codification of Current Practice: Canadian Nuclear Safety Commission (CNSC) Commitment To Aboriginal Consultation outlines the organization’s commitment to upholding the honour of the Crown and to considering Aboriginal peoples’ potential or established Aboriginal or treaty rights before making licensing decisions under the Nuclear Safety and Control Act and Environmental Assessment (EA) decisions under the Canadian Environmental Assessment Act (CEAA).

Licensees of nuclear projects do not bear the Crown’s legal obligation to consult Aboriginal peoples under section 35 of the Constitution Act, 1982. However, where appropriate Licensee engagement with Aboriginal groups is significant because consultation activities can inform and assist those of CNSC staff and help the CNSC make effective decisions.

The outcomes of consultation activities, including any proposed mitigation and accommodation measures by the Licensee, may also form part of the evidence presented by Licensees for consideration by the Commission Tribunal or Designated Officer, as both have authority to make decisions on licence applications. Licensees are therefore encouraged to provide the CNSC with all information gathered through consultation.

The CNSC encourages Licensee interaction with Aboriginal groups throughout all project planning phases and the entire regulatory review. A consultation plan that includes early engagement sets the stage for developing relationships and can result in benefits that may extend well beyond a project’s planning and design phases. These may include — but are not limited to — enhancing a project’s positive impacts while eliminating possible adverse consequences and project delays. Records management is another important aspect of the consultation process, and Licensees are encouraged to thoroughly document all consultation activities (i.e., letters, phone calls and meetings) conducted with Aboriginal groups. This includes identifying issues and concerns raised during project planning and the entire regulatory review – EA, licensing and licensing renewals, as the CNSC will likely ask this information to be provided for review throughout the process.

Note: There are a number of sophisticated and useful consultation checklists available and in use by industry, and applicants are at liberty to select the approach and guidance from whomever/whichever source they choose.

Some important considerations when developing an Aboriginal consultation plan are:

• Engage Aboriginal groups early in the project planning phase to avoid future delays.
• Create a consultation plan that is transparent and flexible.
• Contact the CNSC early to share information and/or seek clarification on CNSC processes and policies.
• Record all consultation activities, including issues and concerns raised by Aboriginal peoples.
• Continuous communication throughout the life of the project builds strong relationships.

When developing Aboriginal consultation plans, Licensees may use the following information for guidance.

Pre-application phase: Before submitting a licence application to the CNSC

Experience has shown that early engagement with Aboriginal peoples on a proposed project can benefit all concerned. The CNSC encourages Licensees to develop a consultation plan and to engage and build ongoing relationships with Aboriginal peoples early in the planning and design phase of a project – before submitting the project description or licence application. Early engagement helps:

• build relationships and trust with Aboriginal groups
• improve the understanding by Aboriginal groups of the proposed project
• identify issues or concerns related to impacts to known or potential Aboriginal rights that need to be addressed during the planning phase, thereby reducing the potential for project delays
• Aboriginal groups prepare to participate in the consultation activities and regulatory review processes, which may include hiring subject matter experts if required, and consulting with elders and community members
• the Licensee can develop a more informed project work plan by understanding the interests and concerns of Aboriginal people living in the proposed project area, and this may require time to collect traditional ecological knowledge

Key Activities

Preliminary identification of Aboriginal Groups

If a project/activity is proposed in an area where there are potential or established Aboriginal rights, the CNSC encourages the Licensee to identify, contact and inform the Aboriginal groups in the area of the proposed activity.

Engagement of Aboriginal Communities

Once contact is established with Aboriginal groups, it is recommended that the Licensees ask them how they would like to be consulted, as preference may vary by community. The CNSC encourages the development of a consultation plan that is reasonable to both parties. There may also be a need, when engaging with Aboriginal groups, to address different linguistic, cultural, geographic or informational needs.

At this stage, Licensees can provide Aboriginal groups with preliminary information on the nature and scope of the project and its potential impacts on the environment, possible mitigation measures and employment and business development opportunities. Early engagement, in turn, provides Aboriginal groups with an opportunity to share important information on local and traditional knowledge about a proposed activity’s site and potential effects on the environment, and any potential or established Aboriginal or treaty rights that can be considered throughout the development of the proposed project.

Consideration of Traditional Ecological Knowledge

Aboriginal traditional ecological knowledge (TEK) is knowledge held by Aboriginal peoples who live in the area of a proposed project, and who have a long relationship with the lands and resources likely to be affected. The CEAA states that Responsible Authorities may consider TEK in EAs, but it is not a legislated requirement. TEK is increasingly being recognized as an important part of project planning and resource management.

Contact with the CNSC

During the pre-application phase, Licensees may contact the CNSC’s Director of Policy, Aboriginal and International Relations Division to seek additional information or clarification on the CNSC’s Aboriginal consultation processes and policies.

For projects under the Major Project’s Management Office Initiative, additional information can also be found in The Major Project Management Office’s Early Aboriginal Engagement: A Guide for Proponents of Major Resource Projects.

Environmental Assessment and licensing review phases: Submitting the project description and/or licence application 

The CNSC’s EA and licence application review processes provide mandated or established opportunities for Aboriginal groups (and other parties) to submit their views to the CNSC in writing or in person. During this phase, Licensees’ consultation efforts may provide additional information and assist the CNSC’s Aboriginal consultation activities.

Key Activities

Contact with the CNSC

After submitting the project description or licence application, the CNSC encourages Licensees to contact the appropriate licensing divisions for licensing projects as soon as possible, and to share information on their Aboriginal consultation plan including:

• a list of Aboriginal groups that may be interested in, and/or potentially affected by the project, including contact information (group name, contact name, address, e-mail/fax and telephone numbers)
• a description of the methodology used to identify the Aboriginal groups
• the project information that was provided to the Aboriginal groups
• a description of the engagement/consultation activities carried out to date, including the names of the Aboriginal groups and representatives, and the date(s) each Aboriginal group was engaged/consulted, as well as the format (e.g., community meetings, mail or telephone) of this information sharing
• issues or concerns raised by the Aboriginal groups with respect to impacts to the environment and to potential or established Aboriginal or treaty rights
• how the Licensee has responded to or plans to respond to any concerns raised by the Aboriginal groups, if possible at this stage (mitigation measures identified in the Licensee’s Environmental Impact Statement may be incorporated as conditions in future licensing decisions)

Note: There are instances where Aboriginal groups may request confidentiality. The CNSC is bound to various laws relating to confidentiality and personal information, and all those who participate in matters before the CNSC should be aware of these laws.

Participation in the CNSC’s Aboriginal Consultations

Licensees are encouraged to participate in the CNSC’s Aboriginal consultation activities, where appropriate. The coordination of consultation efforts can provide Aboriginal groups with an additional opportunity to understand the proposed activity and roles and responsibilities of the Licensee and the CNSC, and to raise questions and/or concerns with the Licensee and the CNSC.

Contribution to Ongoing Efforts and Accommodation of Aboriginal Interests

A Licensee’s relationship with Aboriginal groups can assist the CNSC’s overall consultation accommodation efforts, where appropriate. Licensees are often in the best position to accommodate an Aboriginal group if there are adverse impacts on its potential or established Aboriginal or treaty rights; for example, by modifying the design or timeline of the project.

Post-EA and licensing renewals: After a CNSC decision

The CNSC is authorized to attach any conditions to licences that it deems necessary to meet the NSCA’s requirements; therefore if it approves a licence application, Licensees are encouraged or may be required to maintain engagement with Aboriginal groups, as appropriate. This effort will help:

• build relationships and trust with Aboriginal groups, that will help strengthen future ongoing consultations
• share information from follow-up programs and/or monitoring activities throughout the project’s lifecycle
• keep the CNSC informed of any continued engagement activities and their outcomes

Key Activities

Maintenance of relationships with Aboriginal groups

Licensees are encouraged to maintain relationships with Aboriginal groups, as appropriate, over the course of the project’s lifecycle. In some cases, the EA or technical review of a project may have indicated potential adverse impacts on Aboriginal rights or treaties. If so, the Licensee may be required to consult with the potentially affected groups about the project, and, if necessary, develop practical strategies to avoid or mitigate the impact.

Even in the absence of adverse impacts, regular communication between the Licensee and Aboriginal groups with an interest in the project will help build mutual trust and strengthen future consultations.

Keeping the CNSC informed

Licensees may be required under conditions attached to their licence(s) to update the CNSC about engagement activities. They are advised to contact the appropriate licensing divisions and the Province (if it is involved) during this phase, as appropriate, and to share information about issues raised by Aboriginal groups with respect to impacts to potential or established Aboriginal or treaty rights, which could affect future operations of the project or a future licence application.