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.