Mi'gmawe'l Tplu'taqnn Inc. comments on the draft Agreements and Terms of Reference for the Regional Assessment of Offshore Wind Development in Newfoundland and Labrador and Nova Scotia

Please accept this submission on behalf of Mi’gmawe’l Tplu’taqnn Incorporated (MTI) in regards to the Draft Agreements to Conduct a Regional Assessment of Offshore Wind Development in Nova Scotia and Newfoundland and Labrador (the “Draft RA Agreements”) and the related draft Terms of Reference (the “TOR”). 

Draft RA Agreements 

The Preambles in both draft RA Agreements acknowledge that portions of their respective offshore areas are used by Indigenous peoples to exercise their Aboriginal or Treaty rights, and that there is potential for offshore wind development to impact those rights. However, the combined Study Areas exclude parts of Mi’gma’qi (Mi’gmaq Territory) that stand to be adversely impacted by future offshore wind development. While we understand that setting boundaries for the Study Areas is necessary, the result of these draft boundaries is that the RA runs the risk of failing to consider the potential effects on all impacted Indigenous peoples and their rights; as the assessment of impacts will not consider impacts from offshore development projects that cross the established Study Area boundaries. 

Even though New Brunswick and Prince Edward Island are not parties to a RA agreement, which is likely why the waters surrounding these Provinces are excluded from the Study Areas, input from potentially impacted Indigenous peoples should have been sought prior to developing the draft Study Areas. In a July 2022 presentation for a Regional Assessment Planning Workshop, it explains that when initiating the RA, the Minister of ECCC directed the Agency to work with various governments, organizations and Indigenous groups “…to plan the Regional Assessment, including defining its goal, objectives, geographic boundaries, activities, outcomes and governance structure.” Despite that, MTI is only now given the opportunity to provide feedback on the draft RA Agreements and TOR, which have already set out important aspects of the RA, such as the geographic boundaries.

It is important that any potentially impacted Indigenous group be given the opportunity to participate fully in the planning of the RA, including its geographical boundaries and objectives, and have representation on the governance structure; not only due to the potential impacts on their rights, but because the RA may have overlap / interactions with other important existing initiatives, such as DFO Marine Spatial Planning.

Section 2 of the draft RA Agreements explains that a Committee of five members will be established pursuant to ss. 93(1) of the Act to conduct the RA. It is our position that having Indigenous representation on the Committee will ensure that any Indigenous Knowledge (IK) provided by the IK and Perspectives Advisory Group, if established, is not misinterpreted, and to ensure the IK is considered and incorporated in a culturally appropriate manner. The draft RA Agreements seemingly require this, as section 2.6 of both Agreements require that the Committee have knowledge of the “interests and concerns of Indigenous peoples” that are relevant to the RA.

However, concerning section 2.6 in both Agreements, it should be clarified so that at least one Committee member have knowledge and experience regarding offshore development projects and the potential effects on the rights of Indigenous peoples. Having knowledge or experience with respect to the “interests and concerns” of Indigenous peoples is insufficient, as it runs the risk of having a Committee that does not have the ability to appropriately consider and incorporate IK in the RA.  Section 2.7 of the draft RA Agreements does set out a list of areas that Committee members will have knowledge or experience on, but it only requires that the Committee members have knowledge or experience related to “one or more” of those listed areas.  It bears repeating the importance of ensuring that at least one Committee member have knowledge and experience related to IK and including IK in assessments of impacts on Indigenous rights.

Having an IK and Perspectives Advisory Group in place, while beneficial, is insufficient to address these concerns noted above, as section A1.6(e) of the TOR explains that such an advisory group will be comprised of individuals or organizations who have knowledge or experience deemed relevant to the RA by the Committee. Further, section A1.6(c) of the TOR explains that the Committee will develop and implement a Fisheries and an Indigenous Participation Plan with advice from the advisory group, if such advisory group is in place at that time. As such, there is no certainty that an K and Perspectives Advisory Group would remedy the potential inadequacies of the Committee. 

Terms of Reference

Section A1.3 of the TOR is perplexing, as it explains that the Committee is not mandated or empowered to make any determination concerning the probability of adverse impacts on Aboriginal or Treaty rights. If that is the case, then the Committee is essentially just an information gathering body for any comments, concerns, and/or IK submitted by Indigenous groups. Further, that language in section A1.3 seems to be at odds with A1.6(u) of the TOR, which provides that in conducting the RA, the Committee will identify and consider the effects that offshore development activities may have on Indigenous peoples and their rights.

If the Committee is established to conduct the RA, as per section 2.1 of the draft RA Agreements, then the Committee should have the necessary powers and mandate to make determinations concerning the probability of impacts on Aboriginal or Treaty rights. Such determination would be subject to further approval (i.e., the Minister).