Laying the Groundwork for a Community Risk Assessment of the Ring of Fire and Related Infrastructure
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Laying the Groundwork for a Community Risk Assessment of the Ring of Fire and Related Infrastructure by Amanda Spitzig supervised by Dayna N Scott A Major Research Project submitted to the Faculty of Environmental Studies in partial fulfillment of the requirements for the degree of Master in Environmental Studies York University, Toronto, Ontario, Canada March 29, 2019 FOREWORD My time in the JD/MES program has been a period of immense growth – personally, academically, and professionally. Upon entering the program, I knew I was committed to pursuing environmental and Aboriginal law as the core focus of my studies. I imagined a career spent advocating against major projects such as the Keystone XL pipeline, and the field of environmental assessment was on my radar at an early stage. During the very first month of my time at Osgoode Hall, I participated in the Anishinaabe Law Camp held at Neyaashiinigmiing, where an entire world opened to me. Listening to incredible scholars and lawyers including John Borrows, Lindsey Borrows, Hannah Askew, and Heidi Kiiwetinepinesiik Stark, I began to learn about Indigenous legal orders, and about different perspectives and worldviews regarding environmental governance. Following the camp, which I also attended in both my second and third years at Osgoode, I became immersed in working to understand concepts like treaty relationships and obligations, learning about Canada’s colonial history, and trying to figure out what was meant by the term “reconciliation.” Throughout all of this work, I kept returning to the concept of land and governance over land. While many disputes between Indigenous communities and the settler government revolve around land and natural resource development, I began to learn that the roots of this conflict have their origins in jurisdiction and sovereignty, and in competing views about governance authority over the land. The area of concentration that I settled on for my MES was “environmental policy and Indigenous legal traditions.” In exploring this topic, I worked to weave together three components: 1) Canadian environmental law and policy; 2) Indigenous peoples in Canada, and 3) environmental justice. In addition to both law and environmental studies courses, I was fortunate to spend my summers gaining practical experience understanding the operationalization of environmental, Aboriginal and Indigenous law in the field. At both the Ontario Ministry or Environment and Climate Change in Toronto, ON, and the Pacific Centre for Environmental Law and Litigation in Victoria, BC, I worked to learn about the strengths and weaknesses of our settler current environmental law regime. My placement with West Coast Environmental Law through Osgoode’s Environmental Justice and Sustainability Clinical Program was foundational in cementing i the foundations for this Major Research Project, as I dove deeply into debates about approaches to environmental assessment, was directly involved in the ongoing federal environmental law reform, and completed a research paper examining how Indigenous inherent jurisdiction could be recognized in environmental assessment law. The more I learned about environmental governance and Canada’s settler history, the more I felt I had an obligation to act positively, and take advantage of my opportunity as a graduate student to engage in beneficial research work. I indicated an interest to engage in a research project in fulfillment of my MES, and my supervisor Professor Dayna Scott graciously assisted in connecting me with the Neskantaga First Nation, who was interested in exploring the possibility of engaging in an Indigenous-led assessment of the Ring of Fire region in Treaty 9 territory. This MRP also works to fulfil a number of learning objectives I have set for myself in completion of the MES program. These include, but are not limited to: • Gaining a thorough knowledge of the laws and policies governing environmental management and protection in Canada today, with particular emphasis on those governing natural resource developments; • Evaluating the effectiveness of Canada’s environmental law and policy regime, and understanding strengths, weaknesses, and areas for improvement; • Gaining an understanding of Indigenous legal traditions, including how the principles drawn from these legal traditions guide environmental management and protection; and • Understanding how environmental policy decisions impact Aboriginal rights, and how Indigenous communities defend their rights and inherent jurisdiction when governments fail to uphold and implement them. In environmental law, we often speak about the shortcomings or the failures of the law in adequately protecting our environment, which often stem from inadequate political will to enact laws. For many, the field can often feel hopeless and overwhelming, with victories few and far between. What I adore about the intersection of environmental and Indigenous law is the endless opportunity to craft creative solutions by engaging aspects of each legal tradition. This field is rapidly changing and evolving, and through this MRP, I hope to move beyond the theoretical towards the practical by working to imagine ways that the strategic intersection of Anishininuwug law and conventional environmental assessment models can result in a consent-based approach to natural resource development for the Ring of Fire. ii ACKNOWLEDGEMENTS Throughout the past four years at Osgoode Hall Law School and the Faculty of Environmental Studies, I have been fortunate to cross paths with so many wonderful individuals who have each played a commanding role in shaping my path through the JD/MES program. I would like to first thank my supervisor Professor Dayna Scott. Without your support and guidance, this research project would not have been possible. Thank you for trusting in me, for constantly challenging my perspectives, and for your mentorship, both academically and professionally, over the past several years. I admire your dedication and critical approach to your work, and I hope I can replicate a fraction of this as I transition out of the JD/MES program into professional practice. To my advisor, Professor Mark Winfield, thank you for your guidance throughout the JD/MES program. Since day one, you’ve helped to me to shape and tailor my research, always offering advice and encouragement. I admire your enthusiasm for your work, and your enduring commitment to student success. I would also like to acknowledge the community of Neskantaga First Nation. It has been a privilege to learn from you during your time spent in Toronto, and I admire your commitment and resilience in working to defend your land. I wish you continued strength on the long road that lies ahead. I would also like to acknowledge several other individuals who have had an immeasurable impact on this research project. To David Peerla, thank you for all of your advice, suggestions, numerous conversations, and your time spent reviewing drafts of this project. To Professor McGregor, your courses at FES and Osgoode Hall have been transformational in helping me understand my role both as a treaty partner and as a researcher. Thank you for your guidance and patience as I worked to locate myself in this field. To Anna Johnston, I’ve learned so much from you over the past couple of iii years, and I appreciate your continued support and willingness to help me understand the complicated field of environmental assessment. Additionally, I would like to thank the participants in my research – Ugo Lapointe and Joan Kuyek. Thank you for sharing your wealth of knowledge and experience, and for helping shape the direction of this Major Research Project. Finally, thank you to the unwavering support of my family, friends and colleagues for their constant support and reassurance over these past four years. In particular, to my partner Trevor, for all of the sacrifices you’ve made, and the miles driven down the 401 as we both worked to finish our degrees in different cities. Thank you for constantly lifting me up, and letting me know how proud you are. iv TABLE OF CONTENTS FOREWORD .................................................................................................................................... I ACKNOWLEDGEMENTS ............................................................................................................. III TABLE OF CONTENTS ................................................................................................................. V LIST OF ABBREVIATIONS ........................................................................................................ VIII EXECUTIVE SUMMARY ................................................................................................................ 1 1 INTRODUCTION .................................................................................................................... 3 1.1 INTRODUCTION .............................................................................................................................................. 3 1.2 OVERVIEW OF THIS RESEARCH PROJECT................................................................................................ 7 1.3 METHODOLOGY ............................................................................................................................................. 8 1.4 THEORETICAL FRAMEWORK: LEGAL PLURALISM .................................................................................. 8 2 OVERVIEW OF THE RING OF FIRE REGION