Evidence of meeting #20 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 reserves.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Ronnie Campbell  Assistant Auditor General, Office of the Auditor General of Canada
  • John Moffet  Director General, Legislative and Regulatory Affairs, Department of the Environment
  • Frank Barrett  Principal, Office of the Auditor General of Canada

11 a.m.

Conservative

The Chair Chris Warkentin

Colleagues, I will call this 20th meeting of the Standing Committee on Aboriginal Affairs and Northern Development to order.

Today, colleagues, in our study of land use and sustainable economic development, we have before us two separate witnesses. We have representation from the Office of the Auditor General. They will be speaking specifically, colleagues, to the report that has been distributed to members, and it is chapter 6 of the 2009 report. We will hear from them with regard to that report. I remind you, colleagues, that this is what they are here for and prepared to speak about.

We have with us as well representatives from the Department of the Environment. They will be answering questions related to the issues we have heard about with regard to the possible legislative gaps and probably additional items on that fund.

We're going to turn it over for opening statements first to representatives from the Auditor General.

I believe, Mr. Campbell, you have an opening statement. We'll turn it over to you.

Thank you.

11 a.m.

Ronnie Campbell Assistant Auditor General, Office of the Auditor General of Canada

Thank you, Mr. Chair.

Thank you for this opportunity to discuss chapter 6—

11 a.m.

Conservative

The Chair Chris Warkentin

Excuse me, Mr. Campbell, I'm just recognizing a point of order.

11 a.m.

Liberal

Carolyn Bennett St. Paul's, ON

I was just wondering when we would deal with the motion that was tabled last week.

11 a.m.

Conservative

The Chair Chris Warkentin

We could do that. If it would please the committee, it would be best that while we have witnesses here, we hear from them and then we will set some time aside at the end of the committee meeting to deal with that, if that is something for which there is all-party support. Is everyone happy with that? I think there is a general consensus. Thank you.

Mr. Campbell, I apologize for that. Please, the floor is yours.

11 a.m.

Assistant Auditor General, Office of the Auditor General of Canada

Ronnie Campbell

Thank you, Mr. Chair.

Thank you for this opportunity to discuss chapter 6 of our November 2009 report—Land Management and Environmental Protection on Reserves. I am accompanied by Jerome Berthelette, Assistant Auditor General, and Frank Barrett, Principal.

Reserve lands are central to first nations peoples' history, cultural identity, and day-to-day activities. Mr. Chair, as your committee probably knows, many aboriginal communities are among the most economically deprived in the country. Their sustainable economic development depends on their access to and control over their land and natural resources, and on a clean and healthy environment.

In this audit, Mr. Chairman, we examined how Aboriginal Affairs and Northern Development Canada and Environment Canada have carried out the federal government's responsibilities for land management and environmental protection on reserve lands. This included looking at regulatory and non-regulatory measures used to manage the environment and at the support that Aboriginal Affairs and Northern Development Canada provides to those first nations wishing to assume more control of their reserve lands.

Provincial and municipal laws and regulations generally do not apply on reserves. Our audit found that there are few federal regulations in effect to protect the environment on reserves. As a result, residents of first nations reserves do not have the same environmental protection as do other Canadians.

While the federal government has the authority to develop regulations on reserves, it has rarely used this authority to mitigate environmental threats that are regulated off reserves by provincial governments.

Mr. Chairman, we also found that Aboriginal Affairs and Northern Development Canada has done little to monitor and enforce compliance with the regulations that do exist. For example, while there are regulations under the Indian Act that require a permit to be issued by the department for anyone wishing to operate a landfill site on reserve lands, we found that the department has issued few permits and is not equipped to conduct inspections, monitor compliance, or enforce regulations.

Mr. Chair, our audit also looked at Aboriginal Affairs and Northern Development Canada's commitment to transfer control of land management to first nations who want it and are ready to take on these responsibilities. This is part of an overall departmental approach to facilitate first nations' control over their communities.

Aboriginal Affairs and Northern Development Canada has provided options since the early 1980s for first nations who considered that the Indian Act regime of land management was not meeting their needs. Aboriginal Affairs and Northern Development Canada has developed legislative and program options to support first nations who wish to assume greater control of land management on their reserves. However, most first nations lands are still managed by the department under the Indian Act.

First nations access to alternative land management regimes established by Aboriginal Affairs and Northern Development Canada does not meet the demand. Two programs that have been in place for decades still operate, with 95 first nations participating. However, they have been closed to any additional first nations since 2004. Instead, the department has developed two other options for first nations to assume more land management responsibilities.

The reserve land and environmental management program has remained a pilot program since its creation in 2005, and access has been limited. Similarly, there is a waiting list for first nations who want to access the other alternative, the First Nations Land Management Act regime.

As well, our audit found that the department provides too little access to training for first nations in comparison with the land management responsibilities it is transferring to them if they operate under either of these regimes.

During our audit, officials from both Aboriginal Affairs and Northern Development Canada and Environment Canada cited a lack of funding as a key reason for not meeting some of their commitments.

Our audit made five recommendations. These included the need for Aboriginal Affairs and Northern Development Canada and Environment Canada to work together and with first nations to develop the means for better environmental protection on reserves, and to assess their funding requirements for fulfilling their land management responsibilities. We also recommended that Aboriginal Affairs and Northern Development Canada provide greater access to its land management initiatives and land management training as required.

I should note that this audit was substantially completed in May 2009, and we have not audited since that time. I want to highlight that point, because we quite often come before the committee six or seven months after the audit work has been completed. So in this case the audit work was completed in May 2009, and we have not done any audit work since that time.

At some point your committee may want to discuss with Aboriginal Affairs Canada and Environment Canada the funding they have currently committed to deliver the programs we discussed in our audit. You may also want to ask these departments to update the committee on actions taken since the audit to address the recommendations in our chapter on progress in addressing the issues we raised in our audit.

Mr. Chair, that concludes my opening statement. We will be pleased to answer your committee's questions.

Thank you.

11:05 a.m.

Conservative

The Chair Chris Warkentin

Thank you, Mr. Campbell. We appreciate your testimony this morning.

Mr. Moffet, I understand you have a submission and opening statement as well. After that we'll have members of the committee ask questions of both of you. I appreciate that you have made yourself available today as well.

Mr. Moffet.

11:10 a.m.

John Moffet Director General, Legislative and Regulatory Affairs, Department of the Environment

Thank you, Chair and committee members, for taking an interest in the work of Environment Canada.

In my opening remarks I'd like to address three issues. First, I'll provide a brief overview of environmental management generally in Canada. Second, I'll outline the nature of the environmental management regime on reserves, and I apologize if I'm duplicating testimony you've already heard. And then third, I'll explain some of the initiatives Environment Canada has taken to strengthen environmental management on reserves and on aboriginal lands.

Environmental management in Canada involves a broad range of activities, including scientific research and risk assessment, the development of standards and regulations, licensing, permitting, monitoring, enforcement, public education, and compliance promotion. Responsibility for environmental management in Canada is shared among the federal, provincial, and municipal levels of government. Provinces and municipalities have primary responsibility for natural resources, land and water use, and local issues including waste management. Through their control of land use planning and facility approval processes, they manage the environmental impacts of a wide range of residential, commercial, institutional, and industrial activities.

Environment Canada is primarily responsible for issues of national concern. Regulations passed under the Canadian Environmental Protection Act, for example, allow the department to manage issues such as the release of toxic substances, the export and import of hazardous wastes, air emissions from fuels, engines, and vehicles, and environmental emergencies. The Fisheries Act prohibits the deposit of deleterious substances into fish-bearing waters. And under the Species at Risk Act, we work with Parks Canada and the Department of Fisheries and Oceans to identify and protect endangered wildlife and their critical habitat throughout Canada. Under the Migratory Birds Convention Act, we regulate the hunting of more than 500 species of migratory birds and put in place measures to ensure these birds remain abundant.

Other federal departments also contribute to environmental management in Canada. For example, Parks Canada protects nationally significant examples of Canada's natural heritage; Fisheries and Oceans is responsible for ensuring healthy aquatic ecosystems and sustainable fisheries; Transport Canada regulates the transportation of dangerous goods and various environmental aspects of rail, ship, and train performance throughout Canada; Natural Resources Canada supports the sustainable development of our natural resources; and of course Aboriginal Affairs and Northern Development Canada, from whom you have already heard considerable testimony, influences environmental performance on reserves and in the north in multiple ways, including through its application of framework legislation, through the development of land claims and self-government agreements, through its participation in the contaminated sites program, and through its extensive programs to enable reserves to manage land use and resource development issues.

There are various environmental management challenges on reserve, some of which stem from the fact that while federal laws apply throughout Canada, including on reserves, provincial laws related to lands and their use generally do not. As a result, reserve lands generally do not benefit from the full range of environmental protection that applies off reserve. Aboriginal Affairs and Northern Development Canada and Environment Canada have worked with aboriginal partners to identify the environmental issues that arise as a result of this gap, to identify which are the most significant, and to address the more difficult question of what is the best way to address these issues.

While circumstances vary greatly from one reserve to the next, the most important environmental issues likely relate to solid waste management, hazardous waste management, waste water discharges, environmental emergencies, and source water protection. The environmental and health consequences of these potential so-called gaps can vary widely depending on the level of development on a reserve, population density, remoteness, and a range of other factors. In addition, the lack of clearly defined rules can undermine economic development by creating investment uncertainty.

So what’s our role? The vast majority of Environment Canada's regulations apply throughout Canada on private and provincial lands, on federal lands, and on aboriginal lands. Some of these regulations, of course, address significant environmental issues on reserves. When that is the case, we spend considerable time and effort consulting with aboriginal partners, both about the standards themselves and about how to ensure their effective implementation on aboriginal lands. For example, we are developing regulations to phase out the dumping of under-treated sewage into our waterways.

In 2010 we proposed wastewater systems effluent regulations and then spent over a year engaging with provinces, municipalities, and aboriginal organizations. We now anticipate publishing the final regulations this coming winter. These regulations will establish clear standards throughout Canada, including on first nations communities, other than small waste water systems, and they will not apply in the north, where we need to do more research to develop cost-effective treatments for extremely cold climates. We're planning significant outreach activities to support the effective implementation of these regulations on reserves.

In addition to these types of specific environmental protection regulations, we also play an important role in supporting conservation. Of course, popular conservation programs can raise a number of challenges, particularly where long-term public interest goals of maintaining biological diversity bump up against private land use and resource development interests. These issues apply throughout Canada, but they can be particularly significant for aboriginal people. On the one hand, traditional environmental knowledge, values, and modes of interaction with the landscape and wildlife mean that many aboriginal lands represent valuable reservoirs of species at risk. On the other hand, in the absence of effective governance regimes and tools, specific restrictions associated with species at risk protections can be seen as impediments to development opportunities on reserves.

Recognizing this challenge, our species at risk program supports capacity-building on reserves. We have a number of stewardship funds, including a dedicated aboriginal fund for species at risk, and a broader habitat stewardship fund, both of which support the development of practical tools to allow aboriginal communities to manage their species at risk obligations in ways that also enable economic development to occur.

We're also working with our colleagues at Aboriginal Affairs and Northern Development Canada to find opportunities to support or leverage other programs to build aboriginal capacity, for example, by linking conservation goals with that department's efforts to strengthen land-use planning on reserves, as land-use planning can provide an important foundation for both economic development and the effective management of conservation objectives.

Although most of our authorities apply nationwide, we also have some authority under part 9 of the Canadian Environmental Protection Act to issue regulations that are specifically focused on federal operations, federal lands, and aboriginal lands.

As the 2009 Auditor General's report noted, studies have consistently identified a number of important issues on reserves. In particular, petroleum fuel storage is one of the key environmental threats on reserves. In response to this concern, the government enacted the storage tank systems for petroleum products and allied petroleum products regulations in 2008. We rarely win prizes for the titles of our regulations. These regulations were promulgated under part 9 of CEPA, and essentially they establish the same standard on federal lands and reserves as applies off federal lands and off reserves by provincial requirements.

In addition to promulgating regulations, an important role of the department is to support capacity to ensure that the regulations targeted on reserves can actually be implemented. As such, we've delivered over 60 information and training sessions to first nations, which have involved more than 200 first nations communities. In addition, we're working with the Department of Aboriginal Affairs and Northern Development, which has committed almost $80 million to help bring storage tank systems on reserves into compliance with the regulations.

Developing practical and properly resourced solutions is significantly more challenging than either identifying the gaps themselves or coming up with a particular regulatory solution. The key issue on reserves, as you've no doubt heard repeatedly, is often capacity development, both in terms of technical skills and in terms of governance authorities.

Environment Canada, as I've described with respect to storage tanks and species at risk, can and does support technical capacity in terms of providing regulatory compliance promotion and skills development. However, the role of our department with respect to governance authorities on reserves is much more limited. We're primarily a regulatory department, and our authority under part 9 of CEPA is just that. It authorizes the department to regulate on reserve those issues that are regulated by provinces off reserve.

This authority is a backstop authority, and there are at least a couple of reasons to consider using it with caution. First, each reserve likely has different challenges and priorities and may be ill-served by the imposition of a series of uniform federal regulations. Second, before imposing new legal obligations it may be more important to ensure that reserves have the legal and institutional capacity to manage their own environmental risks in ways that account for their own land use and commercial and industrial development goals.

In conclusion, there are many federal legislative authorities and programs in place working to address environmental management on reserves. There is no doubt a need to better align these activities and possibly add to them. However, regulations alone are unlikely to solve the environmental challenges on reserves.

Environment Canada is committed to working with our partners to enhance first nations' legal and technical capacity to identify and manage environmental issues, and to enable much-needed environmentally sound investment and development on reserves.

Thank you.

11:20 a.m.

Conservative

The Chair Chris Warkentin

Thank you, Mr. Moffet.

I'll turn to our colleagues for questioning. Ms. Duncan, you'll begin with seven minutes.

11:20 a.m.

NDP

Linda Duncan Edmonton—Strathcona, AB

Thank you, Mr. Chair, and thank you to the witnesses.

First I want to commend the commissioner for sustainable development for the fabulous work you've done in this area. I really appreciate your thorough reports. They provide a good framework for what has been done and what needs to be done.

My first question is to Mr. Moffet. It's nice to see you, Mr. Moffet, and nice to know you're still there at Environment Canada looking after our best interests.

Part 9 of CEPA has been there for a long time--since the mid-1980s, when CEPA was first enacted. It provides federal regulations for environmental management and protection on federal lands, but also for aboriginal lands. Over all the incarnations of CEPA, that part has remained. It very specifically references the power of the government to enact regulations for a myriad list of environmental management matters on first nation lands.

The obvious question is why has the department never enacted any regulations, and are there plans to move in that direction? Are you working with Aboriginal Affairs in that direction?

11:20 a.m.

Director General, Legislative and Regulatory Affairs, Department of the Environment

John Moffet

Although they have been somewhat amended, you're right that these provisions have been in CEPA since its first incarnation in 1988. Under the current part 9 we've promulgated federal PCB regulations--the storage tank regulations I referred to. In addition to authority to develop regulations, part 9 also authorizes a wide range of other activities, such as the development of objectives, guidelines, and codes of practice.

Environment Canada has been and continues to be very involved in supporting the development of guidelines and codes of practice that can be utilized by a variety of parties, including first nations. For example, largely as a result of the surveys that have identified solid waste management as a priority issue on reserves, we have recently focused our attention on the development of municipal solid waste guidelines that can be used on reserves.

There are already regulations under the Indian Act addressing solid waste, and in consultation with Aboriginal Affairs and Northern Development Canada we concluded that rather than imposing an additional regulation, it would be more value-added to provide a guidance document that can be tailored to the needs of specific reserves.

11:20 a.m.

NDP

Linda Duncan Edmonton—Strathcona, AB

Thank you.

In another area, there was a Federal Court ruling just this past summer, where former environment minister Jim Prentice was found to have erred in law because he made the determination that he didn't have to consider first nation rights and titles when he made decisions under the Species at Risk Act.

As a result of that court decision, are changes being made in the practices within the federal government to comply with the law? Are you working with Aboriginal Affairs on that matter?

I'm still waiting for a response to my letter written three months ago to the minister, so I'm wondering if you know what's going on.

11:25 a.m.

Director General, Legislative and Regulatory Affairs, Department of the Environment

John Moffet

Let me commit to try to find out where the response is to your letter.

And yes, the department across all of its programs has taken a look at our obligations with respect to what's known as “duty to consult”. The particular court case applied to the Species at Risk Act, but across the department we have reinforced our basic obligations under the Constitution to discharge that duty to consult across all our programs whenever we are contemplating a decision that might impact statutory, negotiated, or inherent aboriginal rights.

11:25 a.m.

NDP

Linda Duncan Edmonton—Strathcona, AB

Okay, thanks.

I have a thousand and one questions to ask the commissioner's office, but your presentation and your reports themselves stand fairly clear. You have clearly indicated concerns with the environmental regulatory gaps for first nations and with the capacity issue, which I note Mr. Moffet has also raised. You have very honestly said that this was your 2009 audit, and there may have been profound changes since then.

I wonder if you could elaborate a bit more on the issues you saw, both for those nations that have adopted the land code and for those that are still under the Indian Act regime. Is there a need for federal intervention, perhaps, even as a holding pattern, to enact some regulations that could be adopted by the first nation?

I have worked in Environment Canada and I've been engaged in the development of regulations over 40 years. It's a hugely complex area, where you need a lot of experts. You need legal expertise. I'm wondering what your comment would be in your review on the capabilities of the first nations under those respective regimes in moving forward to fill that huge regulatory void?

11:25 a.m.

Assistant Auditor General, Office of the Auditor General of Canada

Ronnie Campbell

Thank you for the question. I'm going to ask Mr. Barrett to help me with some of the details.

First of all, I'm the Assistant Auditor General responsible for our work on aboriginal issues. I'll pass on the member's good wishes to the Commissioner of the Environment. He's a colleague of mine. And yes, he does great work. Thank you for that.