Episode 036: Dayna Scott

Prof. Dayna Scott, of York University’s Osgoode Hall Law School, holds a Canada Research Chair in Environmental Law & Justice. Her work examines the problematic jurisdictional reality that shapes the transition to a green economy, as Canadian mining companies seek to develop resources on land belonging to the First Nations.

Transcript

Cameron: My guest today is Dr. Dayna Scott of Osgoode Law School at York University. Dr. Scott holds a York Research Chair in Environmental Law and Justice in the Green Economy. Her research looks at how the rights of Canadian mining companies to develop resources interact with the rights of First Nations to their own land. This is not a simple topic. I hope you enjoy our conversation.... All right. Dayna, welcome to the podcast!

Dayna: Thank you. Nice to be here.

Cameron: Your work is looking at this intersection between mining companies and First Nations very broadly. This idea that the rights that various peoples have and various corporations have is not something that's so clearly defined, we can just spell it out. It's actually a very contested and evolving notion. How do you go about approaching that topic? You're coming at it from a legal scholar kind of an angle?

Dayna: Yeah, I'm characterizing it as an encounter between two legal orders. So we can think about what we have started to call at the law school "Canadian law" or "settler law" -- those common-law and civil-law systems that we have seen as the guiding legal traditions in Canada now -- as coming into contact with or into conversation with Indigenous legal traditions, that of course preexisted those in Canada, preexisted contact, and are still alive and are still thriving and are still capable of guiding people's decisions and actions, especially Indigenous people's on their own territories. And so I try to characterize that as an encounter and then think about the way that each legal order is forced to respond or react to the interventions of the other.

Cameron: So this goes much further than simply a contest in a courtroom between two sides. This is actually an encounter between two completely different orders of justice, orders of law.

Dayna: Yeah. So it's beginning to happen in courtrooms, but of course, it's also happening in all of these routine interactions, negotiations, consultations, phone calls, e-mails between Crown officials and First Nation representatives every day.

Cameron: What is shaping the overall approach to environmental law here? You've got a regime of legal precedent around the environment that probably, I would imagine, began to be challenged back in the 1960s with the rise of the environmental movement. Is what you're seeing a continuation of that, or is it shifting ground in new directions?

Dayna: Well, I guess there would be some continuity for sure, but I do think we're seeing a number of new or different strands taking prominence in the past few years. And I'll just give you the example in terms of inherent jurisdiction. This is the kind of language that First Nations have been using for decades to describe their authority to make decisions on their own territories. But we're really starting to see, I think, is a resurgence of that idea that the Crown or Canada or Canada's National Energy Board, for example, just doesn't have the jurisdiction to make certain kinds of decisions in certain territories. And that direct challenge to the Crown's authority to make those decisions is really becoming amplified right now. And I think we see it with respect to these kinds of really important and explosive issues like oil and gas developments and in respect of pipelines, especially with the climate impacts. But I do think we will start to see it even more with respect to mining in Canada, as we have seen elsewhere in the world.

Cameron: Mining is inherently a very messy operation, and the consequences environmentally are huge. You're also looking beyond just the impact on the environment as an abstract concept, and you're looking at the impact on communities. So we have, for instance, what's happened to the water supply at Attawapiskat and in other First Nations. How do you move from that abstract notion of the environment to the concrete in your research?

Dayna: Yeah, well, I think, the social impacts of extraction are really starting to be much more understood, and we can think about assessing them in the parallel way to how we've thought about environmental impacts in the past. So the new legislation we have in Canada, the Impact Assessment Act, really is looking at social and cultural impacts on communities in relation to these big mega projects or contested development projects in the same way that we would've more traditionally thought about impact assessment as being about impacts to water quality or air quality or soil, for example. So yeah, we can start to think about gender-based impacts, social and cultural impacts related to developments, and really to put them into that same framework.

Cameron: When I think of the work of corporations in society and in the environment, from an accounting perspective, we're often thinking of what happens after the fact, how do you hold the corporation accountable for what it's done? You're talking about encounters between mining companies and the First Nations before the work begins. So how does that change your approach from a legal point of view?

Dayna: Well, yes. And in theory, something like environmental assessment or impact assessment is supposed to be forward-looking, right? It's supposed to be predicting the impact of an activity before we decide to undertake it, right? So looking at costs and benefits, weighing them, and then taking the decision. Part of the difficulty with respect to mining, in particular, is that we have what's called a free entry system. So this means that mining companies can state claims to particular mineral deposits just remotely. It's through the internet these days, right? And then there's a legal effect as soon as those stakes are claimed. And so that means it's really hard to get out in front of this exploration activity. And it's the exploration activity that immediately is having impacts on Indigenous peoples in their territories. And so whether or not a mine is ever approved, whether an environmental assessment ever happens, in many cases, the impacts are already being felt before those mechanisms can even really get going.

Cameron: Can you tell me a bit more about those kinds of impacts? Are you talking about environmental impacts or social impacts of the exploration? What does an exploration activity look like then for a mining company up north?

Dayna: It's drilling, mainly, like test holes and that kind of thing, but of course, because the territories are very remote, it requires a lot of infrastructure in order to pull it off. And so it's partly the case that First Nations are experiencing these incursions into their territory that even they don't necessarily know what the extent of it is or whether culturally significant artifacts are being disturbed or whether spiritually significant sites are being desecrated, right, because some of the locations are very remote, right, and there are no roads. So it's quite hard to figure out what's going on on the ground.

Cameron: Who has jurisdiction over this sort of thing from Canada's point of view? Because it seems to me you've got quite a contradiction between the role of the federal government and the role of the provincial government in regulating this activity.

Dayna: Well, in our constitutional structure, the conventional understanding of that is that the provinces, you now have jurisdiction over natural resources and local economies and those kinds of things. And so the provinces really control the permitting and are understood to sort of own the resource wealth of the territories on Crown lands. And yet, as you say, the federal government obviously has jurisdiction over -- the language of the constitution is "Indians" -- lands reserved for Indians, right? So we would say, really, an area of constitutional jurisdiction around Indigenous peoples' health and welfare and well-being, also obvious areas of jurisdiction relating to climate change and species at risk and migratory birds and a bunch of different areas of environmental jurisdiction that we understand to be shared but that we also understand the federal government to have a significant role in. So an example would be with respect to the Ring of Fire mining area, the federal government, the impact assessment agency of Canada has established this regional assessment, right? And yeah, I think, maybe we can think about the way that that's going to open up questions of central significance to the provinces, for sure, in terms of what kinds of resource extraction activities will be allowed on what lands.

The Ring of Fire on Treaty 9 territory in Northern Ontario (click for related Canadian Geographic article)

Cameron: It seems we're living in an age of contradictions in many ways. There's not just the interaction of provincial and federal jurisdictions in this. There's the interaction between the mining companies and the First Nations, and there's this whole aspect of what you, I think, call the politics of refusal. How do we begin to say no to development projects? What's the legal angle on this for you? How do you begin to approach this as a legal scholar, this idea of saying no to possible development?

Dayna: Right. Well, we have a couple of frameworks that are a little bit in conflict with each other. So within Canadian law or settler law, we have, what we call, the duty to consult and accommodate. So this is meant to be obligations on the Crown to consult with and, where appropriate, to accommodate the interests of Indigenous peoples, where the Crown is allowing activities or permitting activities on their territories that will have an impact on their treaty rights, right, because those treaty rights are meant to be enshrined within Section 35 of the constitution. But we also have in international law, the United Nations Declaration on the Rights of Indigenous People, which establishes a right of FPIC, which stands for "free prior and informed consent." And there, the right is given to Indigenous peoples to either provide or withhold their consent with respect to major developments that will affect their territories. And so that's where this kind of conflict is coming up within Canadian law, is to try to understand the extent to which we can comply with UNDRIP, given the constitutional structure we have and the court's interpretations of what it requires over the years. We now have the federal government's new legislation that is meant to implement the UNDRIP, as we call it, or the United Nations Declaration on the Rights of Indigenous Peoples. And it's unclear still what the effect of that will be. We know that they intend to study how to implement it. We know that they're saying they intend to align Canadian law with the declaration, but we don't know how that's going to affect decisions happening tomorrow and the next day and in especially where projects are contested and Indigenous people are saying, "We don't provide our consent."

Cameron: The statement that the government "intends to study something" is not very confidence-inspiring for me.

Dayna: Well, the fact that we would have so much debate over a piece of legislation that says, "We will study how to do this," yeah, it is a little bit frustrating.

Cameron: You're looking at mining that's taking place in the context of some shifts in our technology, and you've got this phrase, critical minerals. What do you mean by critical minerals?

Dayna: Well, it's not my term, but there's a lot of governments speaking about different things. Critical infrastructure is one of them, and now critical minerals is slight variation on it. But the idea is that there's certain kinds of material resources that are potentially strategic in terms of a country's interests. So Canada and the US have come to this agreement about critical minerals. It includes a list of certain minerals that the countries agree are going to be important in the future or are already important for that making the transition to a green economy. So they've listed metals that they think are going to be important for building wind turbines and solar panels and especially batteries and electric vehicle components, etc., as well as smartphones and a bunch of other things. And the idea is that there's maybe a geopolitical element to this, right, that countries should strategically guard their access to these material things that will become important in the future. And so we're starting to see critical minerals spoken about in that language where the government is thinking about the strategic importance, for example, of nickel. That would be an important component in electric vehicle batteries, as an example.

Cameron: There's all kinds of things that are defined as critical. Oil pipelines are defined as critical to the tune of billions of dollars that the federal government has been willing to spend to purchase oil pipelines. So it seems like we're at a transition point where it's almost like you've got a foot on two different ice flows, one in the old oil economy and the other, the future so-called "green" economy. And I put green in verbal quotation marks there because we're talking right now about the impact of mining to get all the elements that are needed for that green economy. You're looking at these conflicts that arise because of this, and I'm wondering what your approach is. How do you actually go about the work that you do as a legal scholar? Do you talk to people? Do you interview people? Do you visit the First Nations communities? What's your work look like?

Dayna: Yeah. It's really community-based research and trying to work alongside Indigenous communities in usually where there's a political alignment between our interests, our purposes. So for me, I've been working for the past several years with Neskantaga First Nation who are trying to regain some control and authority over the decision-making on their territories and are really asserting the right to decide the pace and the scale and the location of any extraction that's going to happen within their territories. Yeah. And that involves all of those things, the visits to the community, workshops, meeting with elders, interviewing folks one-on-one, lots of focus groups in town hall, community center settings, and feasts, and those kinds of things. But also, over the past two years, it's really been a lot of Zoom calls and phone calls and texts and those kinds of interactions. I'm really trying to make myself useful to those communities. So it can involve legal research that I or my students undertake. It has involved access to information requests to try and get documents to help us understand things better. It involves letter writing often to try and make a point to some Crown official a little bit more pointedly, for example. But yeah, it involves a number of different methods depending on the community's priorities at the time.

Cameron: It sounds like trust must be a very important element of your research.

Dayna: Yeah. I mean, it's relationship building. It should be important in all research, I think. And it takes a lot of time and commitment, and it takes some attention to accountability. And I certainly am not claiming to have it completely figured out. It's always a work in progress, but I think to be reflecting on that, who am I accountable to in doing this work and how do I make sure I'm doing it with integrity, and that's something that I'm continually returning to and maybe never fully satisfied with. But it's an orientation that can make the research a little bit more rewarding, I think, as well.

Cameron: Do you identify as a settler-

Dayna: Yes.

Cameron: ... like me?

Dayna: Yes.

Cameron: I'm trying to think of how to ask this question. Do you have involvements with the mining companies as well? And if you do, how does that affect your ability to be in this space between the mining company and the First Nations?

Dayna: Yeah. Good question. I don't, in this particular project, have any engagements with the mining companies in terms of research collaboration, or I haven't even conducted any interviews, etc. of officials. We collect that side of the picture from documentary sources or other official statements. Where I would say it is a little bit more tricky is with respect to situations, a little bit like what's happening in Ontario's Far North, where there are Indigenous communities on opposite sides of a particular project. And it is the case that, in the larger analytical picture I'm trying to put together, that it would be useful for me to try and understand the motivations of First Nations that are making agreements with resource companies and with governments in relation to contested projects, but as you can imagine, that there is some difficulty to maintaining relationships in that context of conflict. So I haven't really resolved that dilemma in respect of this particular research. But one way I did try to get at it was I devised a project a couple of years ago, and the article came out in South Atlantic Quarterly called “Extraction Contracting.” And for that one, what I did was interviewed anonymously lawyers across the country who have negotiated impact benefit agreements on behalf of First Nation clients. So it's sort of a side way of trying to understand the motivations of those communities that do enter into agreements with resource companies, and not just the motivations but the constraints also and the tensions within those agreements.

Cameron: It's pretty easy from our settler perspective to reify the First Nations as this is kind of monolithic thing called the First Nations. You're talking about differences between nations, where one First Nation might want a project to go ahead and another might be opposed to it. And then, I imagine, within communities, you also have these conflicts, right?

Dayna: Yeah.

Cameron: So how does that affect your ability to interpret, or what do you do about resolving those many, many contradictions in what you're exploring?

Dayna: Yeah, I guess, I think maybe not to resolve them, right, to recognize that any political community has difference as part of it, and there are tensions, and there's divergence. And I think one of the things I have been trying to understand is, what does it mean for the Crown to take positions that, in some ways, the communities would call it divide and conquer, or we might say, kind of pits one community against the other? I am interested in understanding structurally, how does that happen? What is the Crown's role in creating that situation? And I think there's a lot to learn from looking at that, but I don't think it's necessary to try and make too much sense of some divergence within a political community or between communities. Often, there is an explanation for why particular communities might have ended up in the position of doing an agreement with a resource company where others have stayed away from that. But sometimes it is just a matter of a change in direction from leadership in the same way we see that in electoral cycles within the settler system.

Cameron: The changes in leadership are something that are in part an artifact of the Indian Act because the idea of an Indian band that has legal status within the Indian Act is different than the traditional communities and the traditional leadership. In many instances, these might be in conflict, even. So who has standing in these things, and how do you talk about that in your work?

Dayna: Well, I think it's an issue that many of us really came to understand better in the wake of the conflict over Wetʼsuwetʼen territory and the Coastal GasLink pipeline a couple of years ago, where it became very clear and obvious that the company and the government might be able to do deals with band councils and get their so-called consent to the project. And there were also hereditary systems of leadership that were in play in which people felt that they had more legitimate claims to authority in the particular territory. And a lot of opposition to the projects came out, right? And that may have been the first time that most Canadians really grappled with that idea and the potential for conflict there. And I think we've all begun to learn. Of course, many people understood this before, but there's been a more mainstream grappling with this difficulty and with the way the Indian Act continues to structure those band council elections and creates that dynamic between leadership and government or companies. How do we resolve it? I mean, I think it's really not for us to resolve, perhaps, except to understand it, to try to figure out if Indigenous laws apply. And when people are making claims grounded in Indigenous law, even if it's in Canadian courts or it's more broadly in the public or regulatory sphere, how do we put those on equal footing with the settler legal system? How do we substantively try to engage with them in a way that just doesn't assume that the settler law is dominant or should always be dominant? Those are harder questions going forward, I think, but really necessary ones for us to get our heads around.

Cameron: I keep using the word "resolve" when I should know better. This is an area where you have to keep these tensions alive in your mind and in your writing, in your relationships, and yet we see how these tensions can play out, the way that the state can unify itself in opposition to or in support of something. But then when it's convenient, separate it, say, "Well, no, actually that's provincial authority. No, actually that's federal authority. We're actually not just an entity." And the corporation of course can do this as well because you've got this idea of a unified corporation, but anytime, it would be beneficial to a corporation to delay things. They can always say, "Well, we need to consult with our stakeholders," right, "We need to talk to our union. We need to talk to whatever." So these are very slippery ontologies we're talking about at every level, right? I was going to say, how do you keep track of them, but I guess that's your job. How do you write about them? So you try to work with those tensions in your writing? Or are you trying to simplify in order to communicate?

Dayna: Yeah, I try to describe them. Yeah, describe them, right, and watch how they play out in the social and political context and try to understand if they're changing over time. But you can also see, as you pointed out, in many cases, there's strategic reasons for why any particular actor is trying to be unified or understand the divisions and dissent, right? Just an example that comes to mind right now, the Federal Impact Assessment Agency is being pushed to recognize an Indigenous governing body as a partner jurisdiction for a regional assessment in the Ring of Fire. And under the new legislation, in order to recognize an Indigenous governing body as a partner jurisdiction, they would have to have new regulations in place. And the federal government's position right now is that, well, we don't have those regulations in place right now because it's going to take us some time because we have to do consultations with Indigenous communities across the country before we finalize those regulations. So as you can imagine, eyes rolling across all of Treaty 9 that the government now considers this inappropriate time to do really lengthy and in-depth consultations.

Cameron: They didn't tend to do those consultations earlier in the process where the mines being planned and the-

Dayna: That's right.

Cameron: ... stakes were being claimed. How does your work affect these processes? Are you informing the process around a particular set of mines in some way? Are you stepping back and talking with the whole legal framework and trying to impact that through academic journal articles? What's your connection to what happens next?

Dayna: Yeah, a little bit of both or all, I guess, I would say, trying to both get an understanding of the big picture and the current dynamic and a critical perspective on that maybe through some academic writing, but also staying involved on the ground in terms of the day-to-day stuff that's going down and trying to stay connected to Neskantaga in particular in relation to some translation work in terms of making sure people in the communities understand what the current developments are and the significance of them. We're working mainly around the ongoing environmental assessments and the regional assessment in terms of, those are the stages right now where the regulatory decisions are being made that would guide how those roads and mines come forward in the future.

Cameron: Okay. Do you consider yourself an activist?

Dayna: Yeah, I guess so. On some days, let's say.

Cameron: On your better days.

Dayna: Yeah, maybe

Cameron: So what has to change in order for us, I mean, all parties involved to arrive at a more just and equitable approach to... I don't even want to say development, but what happens on Indigenous lands? I don't want to say development because that's not necessarily the outcome that needs to happen, but it's development and exploitation that seems to be driving things forward. So what has to happen?

Dayna: Yeah, I think, well, maybe the underlying thing though is actually the idea that settler visions can drive, as you say, the future on Indigenous lands. I think maybe that's the deeper problem, that we think it's okay for people... The Ring of Fire in particular, we're talking about lands exclusively occupied by Indigenous people, and yet we entertain a provincial government that will go on about, "In the interests of all Ontarians, we have to undertake this mining here. We're going to get these roads built." And I think, in my view, we should at least consider the possibility that Indigenous peoples can envision for themselves the future on their homelands, and we should be designing legal systems and structures in order to just enable that decision-making rather than all of this talk about consultation and accommodation and more settlers making decisions about what other settlers can do on Indigenous people's lands. And we've gotten ourselves into a whole convoluted knot about what all of those steps are that we have to take in order to make this legitimate, when we might be missing the bigger picture of why other people's priorities always... Why do Indigenous communities always have to be reacting to settlers' ideas or projects or visions for their territories rather than envisioning those for themselves?

Cameron: Speaking of legitimacy, does it change anything that the provincial government is now talking about electric vehicles as some important strategic thing for Ontario?

Dayna: Well, I don't think it changes much for the communities in the region. The difficulty, of course, is that mining is going to have the impacts that it's going to have up there, whether those minerals are going to be used for what we would consider to be green projects or not. Certainly, mining companies and the province are trying to use this new shiny green veneer as a way of legitimating the mining that they were already invested in. And I don't know. I think it's possible, I guess, that there is a stronger rationale for going forward with this mining if it is going to be tied to electric vehicle production in Ontario and battery metals, etc. But there's also a massive problem in relation to disrupting the peatlands and the huge carbon storehouse that we know is there in Hudson Bay Lowlands. So it's never going to be able to come across as a purely positive story for the climate to go on this electric vehicle bandwagon because we know that those roads and those mines are going to disturb the peatlands, and they're going to create carbon release and a number of other impacts totally outside of the cultural and social ones on First Nations communities. So I expect we'll be hearing a little bit more about how green can the mining be in this region.

Cameron: No doubt. Dayna, your Research Chair is in Environmental Law and Justice in the Green Economy. I think environmental law is complicated enough. The concept of environmental justice seems to be even a step further. I wish you all the best in pursuing these questions. It'll be interesting to see how they play out, maybe not even in our lifetime.

Dayna: Yeah. Well, thank you so much. It's been a pleasure talking about it.

Cameron: Thank you so much.

Links

Dayna Scott’s faculty page at Osgoode

Dayna’s article on the Ring of Fire in The Conversation

Dayna’s article on Extraction Contracting

Credits

Host and producer: Cameron Graham
Production assistant: Andrew Castillo
Photos: York University
Music: Musicbed
Tools: Squadcast, Audacity
Recorded: November 10, 2021
Location: Toronto