A great many First Nations, Métis and Inuit are the victims of environmental racism. There is a legacy of industrial contamination that has been permitted to impact Indigenous communities and other marginalized communities in more severe ways than most settler Canadians. Many such communities are in need of support to remediate lands and waters and compensation is needed. Many others are still experiencing the effects of discriminatory government and industrial decisions that create ongoing contamination issues.
There have been recent legislative changes that are intended to provide progress on these issues. The National Strategy Respecting Environmental Racism and Environmental Justice Act (Environmental Racism Act) became federal law in June of 2024. Along with these legal changes, there were similar changes to the Canadian Environmental Protection Act, 1999 (The National Strategy Respecting Environmental Racism and Environmental Justice Act (CEPA) to recognize the effects of toxic substances on vulnerable communities and recognizing the role of science and Indigenous knowledge in the process of making decisions related to the protection of the environment and human health.
This new legislation recognized the need to eliminate racism and racial discrimination in environmental decisions. The Environmental Racism Act commits the federal government to assess and prevent environmental racism. It also recognizes that Indigenous and racialized communities are more likely to live in hazardous areas. The Environmental Racism Act requires the federal Minister of the Environment to develop a national strategy to assess, prevent and address environmental racism. It also requires the Minister to use the strategy to identify measures that can be taken to address environmental racism, including research and compensation for individuals and communities.
This fall the federal government released a discussion paper on the proposed national strategy. It is light on details and the consultation fails to prompt those participating on the topic of Indigenous rights to comment on research, monitoring and compensation.
Some of the discussion questions include:
- What tools and mechanisms do you believe should be used to support efforts to advance environmental justice?
- what approaches or mechanisms could improve the federal government’s engagement with Indigenous peoples on environmental policies or decisions
Article 29.2 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) provides that “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples without their free, prior and informed consent. Article 29.3 provides that “States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials are duly implemented.” Article 32.3 provides that: “States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”
Canada has committed to the implementation of UNDRIP through the federal United Nations Declaration on the Rights of Indigenous Peoples Act. The UNDRIP Action Plan, developed under that legislation was underwhelming in its commitment to implementing these provisions, limiting its proposed action on Article 29 to supporting the environmental integrity of reserve lands by addressing and preventing the contamination of reserve lands.
Similarly, the annual report under the CEPA which was required to address the administration of Canada’s key toxic substances legislation in respect of Indigenous peoples and UNDRIP made only vague commitments to prepare an implementation framework on the right to a healthy environment. That implementation framework identified the need to identify impacts on section 35 rights, and cumulative effects and using indigenous knowledge. However, the government has not fully committed to seeking the free, prior and informed consent of First Nations in the regulation and authorization of toxic substances that are likely to lead to exposure in Indigenous communities. Moreover the vulnerable populations risk assessment document fails to identify in a clear way how the differential exposures of First Nations are accounted for in toxic chemical risk assessments, nor how the effects on Treaty rights of First Nations are affected by the proliferation of toxic substances.
Some considerations for responding to the discussion paper for First Nations include:
- The need for significant support for First Nations-led research into the effects of legacy and ongoing contamination;
- The need for First Nations-led environmental monitoring and biomonitoring and exposure modeling;
- The need for Indigenous laws and cultural values to inform the understanding of the effects of contamination on First Nation communities;
- The need for a significant investment in cumulative effects studies, monitoring and modeling on the effects of toxic substances on the exercise of Treaty and inherent Aboriginal rights.
- The need for a compensation program to provide expedient redress for the legacy and ongoing contamination of Indigenous communities, extending into traditional lands and treaty territories.
- The need for consultation and informed consent under UNDRIP to prevent and end the forced ongoing contamination of First Nations peoples.
Currently, there isn’t a dedicated fund or program specifically for Indigenous engagement in developing the National Strategy.
First Nations can submit feedback by December 12, 2025.
Does your Nation need advice on how to respond to legacy or ongoing contamination and how environmental racism and UNDRIP legislation can be used to address this contamination? Contact DWF.
