Environment and Climate Change Canada (ECCC) has released a discussion paper entitled Facilitating Projects on Crown and Public Land in Canada’s Greenhouse Gas Offset Credit System (the Paper). The purpose of the Paper is to gather feedback on preliminary considerations for projects in Canada’s Greenhouse Gas (GHG) Offset Credit System (Offset System) on provincial Crown land or public land administered by territorial governments (Crown or public land).
These considerations include (i) respecting Indigenous rights, (ii) acknowledging the role of provinces and territories in authorizing project activities, and (iii) demonstrating entitlement for offset credits issued for GHG emission reductions. These considerations were formed based on feedback from a 2022 discussion paper entitled Carbon Pollution Pricing: Considerations for facilitating Indigenous participation in the Federal Greenhouse Gas Offset System and ongoing engagement activities. Earlier this year, ECCC published a protocol for improved forest management (IFM) on private land (see our earlier bulletin here). ECCC continues to indicate that it will be initiating the development of a protocol on IFM on public land later this year.
This bulletin briefly summarizes the three key considerations outlined in the Paper:
1. Aligning with the principle of recognizing and upholding Indigenous rights
Requirements for offset projects will be guided by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the right of Indigenous peoples to free, prior, and informed consent (FPIC). ECCC is proposing that projects on Crown or public land must have, as a matter of policy, the consent of Indigenous peoples holding asserted or established Aboriginal or Treaty rights in the project area before they can be registered in the federal Offset System.
Consent must be documented and must reflect support of the rights-holding group in their preferred approach. Depending on the Indigenous nation or community, this could take the form of a Band Council Resolution, Memorandum of Understanding or letter of support from the leadership, or a benefit-sharing agreement. If an Indigenous nation or community is the proponent, then consent of the members may not need to be demonstrated. ECCC proposes to replace the ‘social safeguards measures’ that it proposed in the May 2022 discussion paper with FPIC.
2. Acknowledging the role of provinces and territories in authorizing project activities
To register a project in the federal Offset System:
- Project proponents must have necessary authorizations to carry out project activities;
- Documentation must demonstrate such authorization;
- For projects on privately-owned land not owned by the proponent, landowner(s) must sign a declaration authorizing land use for the project; and
- For projects on Crown or public land, authorization from the (relevant) provincial or territorial authority is required.
ECCC’s intent it to ensure that project proponents have the necessary permissions and approvals to undertake the project, and that landowners and provincial/territorial authorities are involved in the decision-making process.
3. Demonstrating entitlement for offset credits issued for GHG reductions from projects on and public land
Project proponents must attest that they have exclusive entitlement to offset credits to prevent double-counting and ensure clarity on benefits. For projects on Crown or public land, demonstrating entitlement is crucial as multiple parties (proponent, province or territory, Indigenous nations) may claim credits. Provinces and territories may have rules determining entitlement, such as Atmospheric Benefit Agreements. If not, project proponents can agree with provinces and territories on credit allocation or deem entitlement to rest with the proponent until rules are established. ECCC is to continue working with provinces and territories to clarify entitlement options.
Next Steps
The Paper seeks feedback on federal offset projects on Crown and public land, and how to show that:
- Indigenous people with rights in the project area have given their consent;
- the provincial or territorial government has authorized the project activities; and
- the person doing the project is the only one entitled to claim credits for the GHG reductions from the project.
Interested stakeholders are encouraged to submit comments here by November 12, 2024.
Interested stakeholders may also register here for an upcoming webinar to be presented by ECCC on September 10, 2024, providing a high-level overview of the Offset System.
For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.
*Special thanks to Anuja Purohit for her assistance in preparing this bulletin.
