Evidence of meeting #19 for Aboriginal Affairs and Northern Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was provincial.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Marion Lefebvre  Vice-President, Aboriginal Governance, Institute on Governance
  • Laura Edgar  Vice-President, Partnerships and International Programming, Institute on Governance

11:05 a.m.

Conservative

The Chair Chris Warkentin

Committee colleagues, let's begin this 19th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we have two representatives from the Institute on Governance who will bring an opening statement. Of course we'll follow up with questions.

We are scheduled to go for an hour and a half, colleagues. If there are questions to complete that duration we will do that. We'll run until colleagues are finished, and then the subcommittee has a short meeting, at which I'm hopeful we can get through a number of things.

Today we have two witnesses, as I said, from the Institute on Governance. We have Ms. Lefebvre and Ms. Edgar.

Thank you so much for being here. We appreciate your coming on short notice, and we know you have been undertaking some work that will be of interest to our committee, so we would like to turn it over to you for opening statements. Then we will follow up with questions.

11:05 a.m.

Marion Lefebvre Vice-President, Aboriginal Governance, Institute on Governance

Thank you very much for the invitation and for your time today.

My name is Marion Lefebvre. I'm the vice-president for aboriginal governance at the Institute on Governance. I'm going to take a moment to tell you a bit about our organization, and then I will turn this over to my colleague, Laura, who will speak to the paper in which you expressed interest.

The Institute on Governance has existed in Ottawa for over 20 years. As our name suggests, our focus is on governance. We work on the international, domestic, public, and aboriginal arena, and we do some work on corporate governance as well.

We offer three main service lines: policy-based research, advisory services, and training. We hope to be a leading expert in this field across all our subject matter specialties. We believe that improving governance in aboriginal communities is a very large key to unlocking the economic development potential of those communities, and to us that's an important connection to continue to make, given this committee's interest and subject matter specialty.

With that as a general background, we are a not-for-profit. We do projects very regularly. Over our 20-year span of existence we have done approximately 360 projects, which have focused on various elements of aboriginal governance as it relates to both commercial and social service delivery. We hope that through the background we've been able to accumulate through those collective experiences we'll have something to offer you today.

You expressed a specific interest in a paper that my colleague, Laura Edgar, wrote three years ago, and I will turn it over to Laura to take you through her findings in this important area of land management.

Thank you.

11:05 a.m.

Laura Edgar Vice-President, Partnerships and International Programming, Institute on Governance

Good morning, everyone.

As Marion indicated, I'm just going to give a brief summary of the work we did for Aboriginal Affairs and Northern Development. The work was conducted in 2008, so some changes might have taken place since then that are not reflected here, but I will speak to the state at that time.

My presentation is going to be on the paper, “Environmental Protection: Challenges and Prospects for First Nations under the First Nations Land Management Act”. I'm going to describe the environmental management gap that first nations face and some of the potential for first nations under the act and under the agreement to fill some of these gaps.

First of all, the environmental management gap is a result of the interpretation and application on reserves of federal and provincial environmental laws. As you're well aware, for environmental protection there are federal roles and there are provincial roles. A complex set of laws and regulations are at play. Section 91.24 of the Constitution Act, 1867, specifies that legislative authority of Indians and lands reserved for Indians rests with the federal government. As a result, provincial laws relating to lands and their use cannot apply of their own force on reserve land.

Section 88 of the Indian Act specifies that all provincial laws of general application are applicable to and in respect of Indians in the province. However, courts have ruled that provincial laws of general application referring to reserve lands and their use do not fall under section 88. So it leaves a little bit of a gap there in interpretation as to what can actually apply.

In terms of the scope of what we're talking about here, we're talking about waste and the environmental protection of air, of water, and of land. We're talking about resource management, land use and zoning, water use, source protection, and natural resource use. We're talking about environmental assessment, and, finally, we're talking about health, safety, and transportation, including things like ferries, which involve the water. It's a huge range of areas that are impacted and to which regulation may be required. Most of those, I should say, are at the provincial level, though some have a federal counterpart.

In terms of key federal laws that are at play, you do have the Canadian Environmental Protection Act, you have the Fisheries Act—which in particular deals with deleterious substances—the Transportation of Dangerous Goods Act, the Canadian Environmental Assessment Act, the Species at Risk Act, the Migratory Birds Convention Act, and the Indian Act and regulations relating to things like waste disposal, Indian timber and mining, and of course the Indian Oil and Gas Act.

That said, that still leaves a lot of gaps as to what can apply for first nations. Some of these I know the government is working on. At the time of writing this paper, they were doing more work on waste water and how to address some of those issues, as well as fuel tanks, and I think that one has now come into force. So there is work being done in this area.

That said, that still leaves some huge gaps in terms of waste water, source water protection, natural resources—with the exception of fish habitat and oil and gas, which are addressed by regulations—and environmental assessment, particularly when there's no federal trigger. So on reserve lands, if it's federal funding, there is an environmental assessment. That's a requirement. However, if it's private development, it's not a requirement. Then other gaps include health, safety, and transportation—including things like ferries and docks—fire safety, and roads and bridges.

With the First Nations Land Management Act also came agreements that first nations can enter into, which allowed them to fill the principal elements of the environmental management void, but the challenges of developing and operating an effective regulatory regime, which of course is a critical element of any management regime, should not be underestimated.

The act gives the number of law-making powers. Subsection 20(1) of the act provides for the power to enact laws respecting the interests in and licences in relation to first nations land, the development, conservation, protection, management use, and possession of first nations land, and any matter arising out of or ancillary to the exercise of that power.

In addition, subsection 20(2) provides for other particular powers, including the regulation, control, or prohibition of land use and development, including zoning and subdivision control, and, subject to the other sections, the acquisition and granting of interests in and licences in relation to first nations land—and prohibition in relation thereto—environmental assessment and environmental protection, the provision of local services in relation to first nations land, and the imposition of equitable user charges for those services. That's an interesting one, because typically that is not done for first nations, but if you look at Canada more broadly, user fees are a key part of how governments pay for such services.

Finally, the provision of services for the resolution of disputes in relation to first nations land is of course another key governance element. There has to be some sort of appeals mechanism.

Other critical aspects of the act and the agreements force a delegation of powers, so a first nation can delegate its powers to manage first nations land. There are a number of options that I'll get into in a moment.

There's a requirement for enforcement measures that are consistent with federal laws, such as the power to inspect, search and seize, and to order compulsory sampling, testing, or the production of information. Of course, there's environmental protection as well.

The environmental management agreements do actually encourage the participation of the provinces, but it's not a requirement. The environmental management agreements themselves, EMAs, are really plans for how the first nations will enact environmental protection legislation, including timing, resources, inspection, and enforcement requirements. They also identify areas essential for each first nation. These areas are solid waste management, fuel storage tanks and their management, sewage treatment and disposal, and environmental emergencies. There is also room for other areas specific to each first nation that they can also address, given their particular circumstances.

Each plan must include provisions for periodic review and updating, and it notes that federal laws will prevail if there are inconsistencies with first nations law.

I want to speak briefly now about regulation, with which I'm sure you're all very familiar. There are a number of issues around regulation that require a lot of judgment and good management and real capacity. The first is where to allocate scarce inspection resources. There's a risk management issue at play here constantly. There are never enough resources to ensure zero risk in all areas, so you're constantly having to make judgments about where you will put your scarce resources, how you will manage that risk.

The second issue is the development and implementation of a compliance and enforcement strategy and when to apply what enforcement instrument. If you have a series of warnings, and then penalties, what are those levels of penalties? All of those things require a lot of judgment, a lot of consistency, and good management. Avoiding regulatory capture while at the same time maintaining cooperative relationships with the organizations being regulated.... This of course becomes an issue in any small community of any type.

Having in place and managing the necessary scientific, technical, policy, and legal capacity is again a big challenge for smaller communities, as is the need to avoid inappropriate political interference. So a lot of these challenges are not specific to first nations. They exist in any community, but they're things we need to think about when we're talking about a regulatory regime.

Of course, there are additional challenges related to legislation. First of all, legislation reduces flexibility, so one is tied very much to the letter of the law. That has its pros, but it does limit you sometimes. Putting legislation in place is very time consuming and is not a quick fix, by any stretch, and it's costly to actually implement a comprehensive regulatory regime.

The main purpose in giving all that background is to provide you with some options for first nations under the act, and it was our main mandate in writing this paper. The overall goal of the First Nations Land Management Act is to meet first nations environmental needs. That was the primary purpose of the act, and we explored at least six options for exercising regulatory responsibilities for first nations who choose to work under the act.

The first is for the regulatory responsibility to stay with each first nation individually.

The second is the creation of a special-purpose aggregated first nation body. It could be a technical core, it could be a tribal council—something like that.

Third, there could be a contract with a province or even a regional municipal government. There are ways of accessing other resources to enter that regulatory regime. There could be a contract with a province, but through a negotiated agreement actually develop a special first nations body within the government that might eventually become its own governing entity. So there are ways of building capacity within provincial governments. Of course, you could also do nothing and wait for the federal government to fill various voids. As I said, some of those are being worked on, but realistically what we're talking about is some combination of all of the above, depending on what the regulatory object is.

We also created what we thought was a list of criteria for evaluating these options: which one is best for any particular issue, whether it's waste water or ferries or zoning?

Well, first, of course, is the ability to reflect first nations values. In some ways, the values when it comes to regulation are very consistent. Certainly, first nations expect the same level of standards as all Canadians. At the same time, how they deal with certain issues can be quite different, perhaps, from an appeal mechanism, or perhaps the penalties are different. There needs to be an ability to reflect first nations values.

Second is the extent to which the approach builds the governance capacity of first nations or bolsters future self-government initiatives. You want that capacity-building element.

Third—and this one is very key—is the separation of the regulator and the operator. Self-regulation is never a good idea when it comes to public health and safety or the environment. You need to be able to separate out who is doing the oversight, who is doing the enforcement, and who is actually delivering.

There are economies of scale. Of course, when you talk about the scientific expertise, the legal expertise, and all these different things, they're expensive, so the more you can benefit from economies of scale, the better.

Another one is harmony with surrounding jurisdictions. You have first nations with one set of rules and everyone around them with a slightly different set. It can add up to complications.

The other thing is that it's also harder to actually contract resources if they're working from a different regulatory regime, so some consistency is really important. Certainly, regulatory liability is a huge issue for first nations, or for anyone who takes on a regulatory framework: where does the liability lie?

Finally, how fast can the gap be filled? You don't want to be waiting 10 or 20 years for some of these things. You want them more on the ground. Others may be less of a priority.

Using those criteria, we looked at all of the different options for different subject matters, like waste water. For example, with waste water, given the high level of expertise required, the need to separate out the operator from the regulator, the importance of economies of scale, and the importance of the environment in terms of filling the gap quickly, that might be one where you might want the province to become involved. Now, that's a decision to be made, but that was our thinking.

For something like zoning, on the other hand, where the first nation can be a regulator but because they are regulating businesses and other things like that there is still that separation, they can take that on locally. They can build their own capacity and they can get it done quickly.

Our paper goes through an analysis of different options and applies these criteria to figure out which one might work best for which environment, recognizing always that each first nation is a little different and that this is not a one-size-fits-all.

That was the basis of the paper. It was presented to chiefs at a conference in B.C. a number of years ago. That's basically where our involvement with this paper ended.

Thank you.

11:20 a.m.

Conservative

The Chair Chris Warkentin

Ms. Edgar, thank you so much.

Ms. Duncan for seven minutes, please.

December 8th, 2011 / 11:20 a.m.

NDP

Linda Duncan Edmonton—Strathcona, AB

Thank you, Mr. Chair.

These are really quick reviews. I have only seven minutes, so I'm actually going to give you some questions that are connected. They're not terribly complicated, and if you need a reminder, there is no problem. It's just easier, and then you can just address them together.

Thank you for your review. I went to your website to try to find papers and I didn't find this one that you're speaking from, so I will try again. It looks like it will be very useful.

I did a similar review on aboriginal safe drinking water, and I'm quite aware of the areas of federal jurisdiction for environmental protection of first nations lands. It's been an issue for a long time in Alberta, particularly where we have oil and gas development on first nations lands, and there has been a lot of toing and froing. The provincial energy board usually goes on and does the hearing but then refuses to make rulings on aboriginal rights. So it's still very complicated.

We had earlier this week the Land Claims Agreements Coalition presenting. One of the concerns raised by the Nisga'a, who are members of that coalition, is that they are frustrated that they're not getting the contracts to build capacity in their own first nation.

My first question to you would be this. Do you see value in actually engaging first nations and helping to build capacity of first nations so they might be more comfortable? Or do you ever employ and engage first nations lawyers or scientists or toxicologists or health experts in your governance and capacity building?

My second question, which you didn't mention, but it may well be in your paper, concerns benefit agreements. That seems to be an issue that keeps cropping up. At Attawapiskat we don't know what the benefit agreement is between them and De Beers. But that's obviously something that could help in capacity building in your land development, whether it's on reserve or whether it's on your traditional lands. Have you ever worked on providing model agreements? Are you aware if any of that kind of work is done here in Canada or in other countries?

The options that you list are a good beginning, but I'm noticing some that you're missing. One would involve the beginning part of your presentation about the potential in federal law. For example, when the Canadian Environmental Protection Act was first enacted in the mid-1980s, it actually set a whole part on federal and aboriginal land. That part is still there, and there has never been any law or regulation enacted there to in fact regulate environmental impacts on aboriginal land. So certainly there is the ability.

I worked in the Yukon and I'm familiar with Yukon law, and somewhat with that of the Northwest Territories. Those governments, to their credit, actually allow for agreements with first nations governments to deliver responsibilities. Federal laws do not do that. So that would be one mechanism.

You have said that maybe there could be an agreement. The problem is, by and large, that federal law doesn't enable them to enter into agreements with first nations. In some cases, that's allowed for in our first nations final agreements. But I've noted that in the Yukon first nation final agreements and self-government agreements, they don't actually give any power to enforce. You could be appointed as a federal enforcement officer but you don't actually have.... I wonder if you could speak to the limitations in the law and in the agreements to actually transfer those duties.

Plus, what I've noticed in talking to first nations is that they don't like having provinces involved. It's interesting; in B.C. they seem to be moving towards looking into these tripartite or bilateral agreements with the provinces. If you move to the prairies, they're absolutely digging in their heels. In fact, they say they don't even want to deal with Aboriginal Affairs; they just want to deal with the crown. So there is some of this historical reluctance to deal with other orders of government. I wonder if you've run into that.

That's probably plenty of questions, if you could try to speak to those.

11:20 a.m.

Conservative

The Chair Chris Warkentin

There are three minutes left to answer, so take your best shot at that. If not, we'll come back to those questions, I'm sure.

11:20 a.m.

Vice-President, Aboriginal Governance, Institute on Governance

Marion Lefebvre

We'd like to take a shot at some of them at least. I think the first one is the issue of capacity building among first nations. You used the example of the Land Claims Agreements Coalition—the Nisga'a, for example.

You have to bear in mind our organization is very small. We have about 20 people on staff. We do now use associates as a model. In fact, as we speak we are building a team of first nations specialists, who will be our primary lead on most of the government projects we undertake in the future. Generally speaking, I had the very big honour of having worked at one point for the federal government on the Nisga'a land claim. I can understand their frustration completely, in that 10 years after, they are not exercising the jurisdictions they feel they should be, because they don't have the internal capacity at this juncture. Capacity building to exercise the transfer of powers that were embedded in those agreements is going to be the sine qua non of their success.

The Nisga'a, much to their credit, are a people who understand that this is going to be a generation in the making, but they want to see the next 10 years bring that actual capacity into their communities. Due to their relatively isolated location...to exercise those powers they really have to have that capacity there. They don't have a plethora of other partners to build out, let's say, a base for an economy of scale. I can understand their frustration in the capacity building to actually “do”. A portion of the scope of the actual activities that Laura spoke about is absolutely necessary. We couldn't support that notion stronger. In our own practice, we are trying to do exactly the same thing.

On benefit agreements, no, we don't have any direct experience in the negotiation of benefit agreements. We have worked with partners. I'll give you an example. The New Relationship Trust, a first nation organization based in British Columbia, right now is undertaking a study of benefit agreements for the purpose of conducting workshops to help first nations understand what directions have been taken by a number of first nations, what they consider successful, and what they would choose to do differently if they had the opportunity to do it again. That's exactly the kind of learning experience, by first nations for first nations, that will make a difference in making those benefit agreements useful and powerful for the improvement of the community as a whole.

11:25 a.m.

Conservative

The Chair Chris Warkentin

Thank you very much. I hate to interrupt because I know there are many more questions to answer there. We'll move on, and I'm sure that Ms. Duncan will have you return to those questions.

Mr. Payne, for seven minutes, please.

11:25 a.m.

Conservative

LaVar Payne Medicine Hat, AB

Thank you, Chair.

Thank you to the witnesses for coming today. It's important that we hear your work. Certainly, there is lots of it to be done, I'm sure.

Your institute has done some work on options to fill regulatory gaps on reserves with respect to environmental issues. One of those proposals is for the federal government to fill on-reserve environmental management gaps. What kind of federal legislation would you propose? For instance, the First Nations Commercial and Industrial Development Act allows federal regulations to replace provincial regulations, and for those federal regulations to be enforced by provincial bodies, all to fill a gap for regulation of commercial and industrial activity on the reserve. Is that a possibility for a method to look after the environmental gap?

11:25 a.m.

Vice-President, Aboriginal Governance, Institute on Governance

Marion Lefebvre

We can only speak to the generality. It offers a legislative opportunity to do so. I can't speak to the particulars. I'm sorry.

11:25 a.m.

Conservative

LaVar Payne Medicine Hat, AB

Okay.

Is there any existing federal legislation that could be amended to address the issue?

11:25 a.m.

Vice-President, Aboriginal Governance, Institute on Governance

Marion Lefebvre

It's my understanding that the reason the land management legislation was introduced was to provide an opt-in clause for first nations to, in effect, opt out of the Indian Act and move to this specific regime where they would have the opportunity to develop what would work for them.

At this point, it has not had broad-based uptake. Clearly, one of the alternatives would be to try to amend the Indian Act itself. There are a lot of very, very strong reasons for moving to the opt-in process that is embedded in the act we spoke about today. I think creating the capacity to allow more first nations to exercise it is one of the obvious routes that our organization would support.

11:30 a.m.

Conservative

LaVar Payne Medicine Hat, AB

Okay. In your opinion, if a first nations community cannot address all the environmental management gaps at the same time, are there any environmental management gaps that should have priority?

11:30 a.m.

Vice-President, Partnerships and International Programming, Institute on Governance

Laura Edgar

That's a tough one.

As an institute, we have done a lot of work on drinking water, waste water, and runoff and the implications for human health when those systems are not properly regulated. Everyone is aware of the broader Canadian issues that have happened on that front, so I would say that should be a priority area. But I think that's something the first nations, given that they're each distinct, need to have a voice in as well.

11:30 a.m.

Conservative

LaVar Payne Medicine Hat, AB

Okay.

Your institute has proposed a new and comprehensive federal environmental regulatory system to cover areas. Have you or would you?