Consultation and the Terms of Reference
The intent of our project newsletter is to describe and explain current and ongoing activities being done by the Marten Falls First Nation (MFFN) Community Access Road Project Team, and to answer common questions that come up as the environmental assessment (EA) moves forward.
Glossary of Terms
Proponent: A person, group or organization that proposes to carry out a project or is the owner or person in charge of managing or carrying out the project. The proponent of the Community Access Road Project is Marten Falls First Nation.
Statutory Consultation: Consultation required by law under environmental assessment legislation. Generally, the government regulator assigns the responsibility for statutory consultation to the proponent or its agents completing the project.
Duty to Consult: The Crown has a legal obligation to consult with Indigenous peoples when it contemplates decisions or actions that may adversely impact asserted or established Aboriginal or treaty rights. Boards, tribunals, regulatory authorities and proponents all play a role in the consultation process; however, the Crown retains the responsibility to ensure that the necessary consultation and, if appropriate, accommodation has occurred.
The following are a few of the most common questions we’re hearing right now:
Q1: Are the meetings hosted by the Community Access Road Project Team with MFFN, neighbouring First Nations and public considered consultation?
A1: First off, the Community Access Road Project Team wants to thank everyone who participated in our May consultation events. Your input is much appreciated.
As the EA proponent, MFFN is required to complete the statutory requirements for consultation. Simply put, we need to make reasonable efforts to inform, collect and respond to feedback from those who may be impacted by the project. As part of this process, we must record all engagement efforts to include in the regulatory reports required by the EA legislation. Project proponents—like MFFN—typically consult on their projects because they are better able to describe project specific details and answer questions. Statutory consultation refers to consultation activities that are required by EA legislation.
Statutory consultation is different from the Duty to Consult with First Nations. Duty to Consult—under Section 35 of the Constitution—considers Aboriginal Treaty Rights and Interests, and remains the responsibility of the Crown. As part of the EA process, the Crown decides whether Duty to Consult has been met. In doing so, the Crown considers the level of the proponent’s effort to consult and whether consulted First Nations met their responsibility to participate.
What are the main points to take away?
- The Duty to Consult remains with the Crown, and
- The Community Access Road Project Team—acting on behalf of MFFN (the proponent)—must make reasonable efforts to give people an opportunity to learn about the project and give feedback.
Want to learn more and provide your input? Participate in community meetings and public information centres, and sign-up for email notifications. You can also contact the Project Team directly at 1-800-764-9114 or firstname.lastname@example.org.
Q2: What is a Terms of Reference?
A2: In past newsletters, we described the Terms of Reference (ToR) as a ‘road map’ that describes the work that the proponent has planned through the provincial EA Process. We also told you that the proponent (MFFN) must consult when preparing the ToR, and submit it to the Provincial government regulator—the Ministry of Environment, Conservation and Parks or MECP—for decision. If the decision is to approve the ToR, the ToR must be followed by the proponent through the EA process. This is important because, once approved, MECP has agreed to what will and will not be studied during the EA. If legal challenges are presented through the EA process, the ToR will then serve as a key legal document to assess whether the EA meets MECP’s requirements. The completion of the ToR has been a focus of the Community Access Road Project Team.
Q3: Why do we consult on the ToR and how can you participate?
A3: We consult on the ToR because it is a statutory consultation requirement of the EA process. Feedback received from meetings with MFFN membership, neighbouring Indigenous communities and the public in May has already been reviewed, and considered in developing our plans for the EA. In keeping with our community led process, MFFN community members will have an opportunity in June to provide input on the draft ToR through one-one discussions with the Project Team; before releasing the document to a wider audience.
Later this summer, although not a requirement of the EA process, neighbouring First Nations, regulators and the general public will also have the opportunity to review a Draft Terms of Reference document and to provide feedback. MFFN intends to host meetings with interested neighbouring First Nations and other persons, and public information centres will be held to discuss the project. Be in touch if you would like to learn more.
Q4. Other than hosting consultation events, what has the Community Access Road Project Team been doing?
A4: A team of technical experts with lots of experience on large, complex EA projects has been working hard to create workplans for field and engineering studies, and to prepare draft technical documents like the ToR to meet the requirements of the government regulators. The ToR document itself is over 50 pages long and is designed to meet provincial standards. It is also written in a manner that makes it easy for the regulators to review. In other words, it is not an easy document for someone without technical knowledge to fully understand. That’s why we’re developing a document that you don’t need an engineering or planning degree to understand. This will be available later in July. For those curious people who would like to review the full Draft ToR, this is what you can expect to find inside. The first few sections of the ToR describe the overall EA process and the need for and purpose of the project. The ToR then describes the reasons why the Community Access Road is needed, the activities that will need to take place to build and maintain an all-season gravel road, and the alternatives to the project as it is proposed. Other sections describe the existing environmental characteristics (based on a literature review and past studies) and the potential effects, positive or negative, that might happen if the community access road is constructed. Some of the benefits of the community access road are pictured here on our benefits tree diagram.
The last few sections of the ToR give more information on the EA process, and discuss how environmental impacts will be assessed and mitigation and monitoring measures established. The ToR also outlines how new and changing conditions will be accommodated through the EA process, and what other permits and approvals are likely to be needed before construction can happen. A plan for how consultation will be done is also provided in the ToR.
Q5: What is a Project Description? Is the ToR the same thing?
A5: No, the ToR is not the same as the Project Description. The Project Description is part of the Federal environmental assessment process and is used by the Canadian Environmental Assessment Agency (CEAA) to determine if a Federal Environmental Assessment is required. The Community Access Road Project Team has already prepared a Project Description for submission to CEAA in June.
Upcoming Participation Opportunities
- Submit photos or artwork to tell the story of why the community access road is important to you. We’d love to use these for our website and newsletter.
- Attend Public Information Centers to be held later in late summer 2019.
- Be in touch with the Project Team to book a one-one-one meeting. We want to hear from you.
Activities to Look Out For:
- Field studies around the project area begin in June (until Fall 2019). Notices have been posted.
- More information on the public release of the Draft ToR will be provided soon.
Are you an artist or do you have beautiful landscape photos? We are looking for photos or artwork that show community values, the natural environment or benefits of an access road to Marten Falls.
To submit a photo or artwork contact us.