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Consequences and implications of British Columbia's failed cumulative effects assessment and management framework for Indigenous peoples

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Download Link: https://authors.elsevier.com/a/1egxDiZ5t92ci ---- Legal challenges have played an important role in shaping the practices and policies of impact assessment (IA) for more than half a century. Early cases provided the impetus to the development of initial approaches upon which conventional cumulative effects assessment and management (CEAM) frameworks are based. Outcomes of these challenges, when examined from IA perspectives such as CEAM, often serve as important learning opportunities for jurisdictions updating policies and practices in addition to those considering (or needing to undergo) a paradigm shift. Failures and consequences identified therein and the associated implications provide important insights for both decision-makers and those adversely affected. This paper examines the Yahey v. British Columbia (2021) legal decision by a Canadian court that concluded British Columbia's provincial government failed to implement a credible CEAM framework and protect the cultural sustainability of Indigenous peoples. The paper summarises the deficiencies and consequences of the provincial CEAM framework based on the analysis that the court provided in its reasons for decision. These are followed by a critical viewpoint of the current practices concerning the key implications associated with the legal requisite to integrate the cultural ways of life into CEAM and IA more broadly. This discussion combines the extant literature with the findings and conclusions of the court. Each tier (i.e., policy, plan, programme, project) of environmental decision-making contributed to these failures, which makes the decision the most critical analysis and a potentially trans-formative ruling for project and regional assessments that involve Indigenous peoples.
Environmental Impact Assessment Review 95 (2022) 106764
0195-9255/© 2022 Published by Elsevier Inc.
Consequences and implications of British Columbia's failed cumulative
effects assessment and management framework for Indigenous peoples
Bruce R. Muir
Senior Environmental Planner, Lands and Resources Department, West Moberly First Nations, PO Box 90, Moberly Lake, British Columbia V0C 1X0, Canada
ARTICLE INFO
Keywords:
Law
Threshold
Cultural effects
Rights
Theory
Indirect effect
ABSTRACT
Legal challenges have played an important role in shaping the practices and policies of impact assessment (IA) for
more than half a century. Early cases provided the impetus to the development of initial approaches upon which
conventional cumulative effects assessment and management (CEAM) frameworks are based. Outcomes of these
challenges, when examined from IA perspectives such as CEAM, often serve as important learning opportunities
for jurisdictions updating policies and practices in addition to those considering (or needing to undergo) a
paradigm shift. Failures and consequences identied therein and the associated implications provide important
insights for both decision-makers and those adversely affected. This paper examines the Yahey v. British
Columbia (2021) legal decision by a Canadian court that concluded British Columbia's provincial government
failed to implement a credible CEAM framework and protect the cultural sustainability of Indigenous peoples.
The paper summarises the deciencies and consequences of the provincial CEAM framework based on the
analysis that the court provided in its reasons for decision. These are followed by a critical viewpoint of the
current practices concerning the key implications associated with the legal requisite to integrate the cultural
ways of life into CEAM and IA more broadly. This discussion combines the extant literature with the ndings and
conclusions of the court. Each tier (i.e., policy, plan, programme, project) of environmental decision-making
contributed to these failures, which makes the decision the most critical analysis and a potentially trans-
formative ruling for project and regional assessments that involve Indigenous peoples.
1. Introduction
Cumulative effects assessment (CEA) emerged in a legal context
(Council on Environmental Quality, 1978) due to criticisms that project-
based assessments ineffectively accounted for the negative inuences of
surrounding land uses and activities on the environment (Connelly, 2011;
Ross, 1998; Spaling et al., 2000). As one of the analytical processes of
impact assessment (IA) science (Morrison-Saunders et al., 2014), CEA
entails the systematic identication of changes to valued components (VC)
that multiple human activities and natural processes induce over space and
time (Canter, 2015; Hegmann and Yarranton, 2011; Noble, 2015; Spaling,
1994). These can be assessed with either an effects-based (examines the
potential changes of a project proposal in the environment) or stressor-
based (examines multiple sources of change to the environment)
approach (Noble, 2015). While the regional and stressor-based approach is
considered more effective at dealing with CEA and management (CEAM)
compared to those which are project and effect-based, both approaches are
generally considered necessary for sustainable development to be ach-
ieved (Hegmann and Yarranton, 2011; Noble et al., 2017).
Canter (2015), Noble (2015), and others (Atkinson and Canter, 2011;
Bidstrup et al., 2016; Bonnell and Storey, 2000; Canter and Atkinson,
2011; Damman et al., 1995; Dub´
e, 2003; Duinker and Greig, 2005), have
identied various CEAM approaches and methods. For example, Gunn
and Noble (2012) describe the general composition of a CEAM frame-
work for both project and regional assessments, which can be presented
as ve sequential phases. The rst is scoping, which centres on selecting
VCs and identifying the spatial (geographic nature of VCs and extent of
effects) and temporal (how far to look into the past and future)
boundaries (Canter, 2015). The second phase is a retrospective analysis;
more specically, the characterisation of the baseline conditions (i.e.,
the historical reference point of VCs) from which changes in the present
and future can be observed and predicted as part of subsequent analyses,
such as establishing thresholds and trends.
Analysing the effects and stressors on the present-day conditions of
VCs is the third phase, the results of which, for example, contribute to
the trend analysis (Krausman, 2011). The fourth is a prospective analysis
that, in part, involves assessing the future effects and stresses through
analysing various scenarios (Duinker and Greig, 2007). The fth, and
E-mail address: enviro.planner@westmo.org.
Contents lists available at ScienceDirect
Environmental Impact Assessment Review
journal homepage: www.elsevier.com/locate/eiar
https://doi.org/10.1016/j.eiar.2022.106764
Received 29 October 2021; Received in revised form 18 February 2022; Accepted 21 February 2022
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