Indigenous and Northern Affairs Committee on Dec. 8th, 2011

[Laura Edgar]

The paper does a brief analysis of some of the inspection-associated costs for a couple of functions in a couple of provinces, just to be illustrative, but we haven't done a comprehensive study on that front.

[Ray Boughen, Conservative, Palliser, SK]

Okay.

Are there challenges with provincial administration and enforcement of regulations on reserves? In other words, do you have a problem with their regulations? You have the reserves over here. Is there a conflict because one does not mesh with the other?

[Laura Edgar]

Definitely they don't mesh well. The provinces do not play a role on reserve, and that is one of the questions and one of the issues, but right now they do not play a role.

[Ray Boughen, Conservative, Palliser, SK]

You're saying that across Canada there is no provincial involvement with reserves.

[Laura Edgar]

There is not on these issues. In other areas there is more collaboration, I believe, but not related to this.

[Ray Boughen, Conservative, Palliser, SK]

Okay. Thank you.

How much time do we have, Mr. Chair?

[The Chair, Conservative, Chris Warkentin]

It's less than a minute, so we wouldn't want you to get started again for fear that we would be pushing over time again.

Mr. Nantel, for five minutes, to end. If you have time, I know Mr. Genest-Jourdain would take any extra time.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Absolutely. It won't be a long answer, I guess.

If my mother were to call me to ask me what is going on in Attawapiskat, I would really not know what to answer her, aside from saying that this is deplorable.

However, given your expertise, when I look at the six options you are proposing to deal with these issues, I wonder if you can tell us, in your opinion, where the problem lies and what the solution is, in your six proposals.

[Marion Lefebvre]

The paper we wrote was with respect to an opt-in piece of legislation. The opt-in legislation has not been broadly taken up because it does represent a huge challenge to most first nations.

The first nation you identify would probably not in the short term look to these kinds of solutions and probably will continue to be more dependent on the solutions available under the current administration of the Indian Act.

I really don't have enough knowledge to speak to what has contributed to the situation they find themselves in or to look at what might represent the best way to achieve long-term solutions for the variety of social and economic challenges they face. I feel that without the kind of specific knowledge that would be helpful, I would not offer any generalization about their situation.

[The Chair, Conservative, Chris Warkentin]

Mr. Genest-Jourdain.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Ladies, you raised the possibility, for the first nations that are signatories of the framework agreement of letting the federal government take over matters relating to environmental management. Could you tell us a bit more about that?

[Laura Edgar]

I don't think I understood the question. I'm sorry.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

I spoke too quickly.

When you spoke, you mentioned the possibility of the federal government taking over responsibilities related to environmental management, at the request of the first nations that are signatories of the framework agreement. Can you tell us more about that?

[Laura Edgar]

I think I understand.

One of the options we did say was that the first nations can continue to work under the federal regulatory regime, where one exists, and then the liability continues to rest with the federal government, which is where it is now.

Where we identified there might be a gap is where there's no federal funding to trigger an environmental assessment for a first nation. If the federal government is funding a building, or waste disposal, or whatever it's funding, there are requirements under federal law. Sometimes that does not apply. I think it was with the gas station that you provide an example of where it's private development. That is a gap right now that needs to be addressed.

[The Chair, Conservative, Chris Warkentin]

You have about a minute left, if there are any additional follow-up questions. I think generally most of the questions have been answered.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'll just add that I really appreciate your paper, and regrettably, I couldn't find it on your website. Mr. Rickford has very kindly given me a copy, and I look forward to going through it.

I think you've done a good job of outlining where the regulatory gaps are.

And I really appreciated, Madame Lefebvre, your comment just now to my colleague's question, that there's a good number of first nations communities that don't even have the option right now of considering doing this. Some who are more advanced could.

It's looking like in fact we're going to have to have two systems. We need federal regulations to fill the gap, and then we also need capacity building for those who want to go their own way. I'm wondering if you would agree with that, that it isn't necessarily that one option is the best. Different options may make sense for different first nations.

[Marion Lefebvre]

I think we would find in this area, as well as in many others, that you might have a common end point, but you have to have transition, measures that will allow for various first nations at their current state of development to access that end point. So capacity building is a definite essential, as well as the regulatory framework.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks so much.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Mr. Rickford is our last questioner.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Laura and Marion.

First of all, I want to say, Laura, please convey my thoughts to John about this paper. There's an abundance of precision here. I always enjoy going to the table of contents and realizing that I already appreciate what's in the paper in terms of the subject matter, and you've broken it down.

I think at this point, as this is the last round of questions, what we understand about the First Nations Land Management Act can at times be a little restrictive in some of the broader economic initiatives that are occurring. Outside of the paper, Laura and Marion, perhaps you could comment on process: practical and overview perspectives on developments that include a group of first nations.

I'm thinking of the Ring of Fire, for example, in northwestern Ontario. Four of the communities that are going to play a pivotal role in that are in my riding in the west corridor. I don't know how much you know about this project, but it's the largest chromite deposit in the world, with a 200-year sustainability capacity, so it's significant. We're just embarking now on the process of working through the environmental assessments, in the context of whether it's a joint panel review or the more standard CEAA process. In my own assessment and knowledge, there is some dispute among communities themselves.

If you have any experience in these regards, I'd appreciate your perspective: how we approach that kind of scenario, because the land management act deals with the specific reserve. I'm not sure this fairly reflects...I'm starting to understand just through the Ring of Fire, for example. The other one I would use is the Whitefeather Forest Initiative, where it's just Pikangikum, and they have their stewardship planning process.

At the same risk Linda had of making this a 10-minute question with a 30-second response—and I mean no offence to my colleague—step outside the box, perhaps this paper, and reflect on that and maybe discuss some approaches or your own experience.

[Marion Lefebvre]

I would say it's an absolute essential to step outside the legislation, because of course you're looking at developments that entail traditional lands, but not necessarily reserve lands. Of course, this legislation is restricted to reserve lands in its application. I would just say—

[Greg Rickford, Conservative, Kenora, ON]

I'm a lawyer, but I don't believe the law is necessarily always, if ever, a solution to things.

[Marion Lefebvre]

The issue of the Ring of Fire is a huge challenge. This has been the experience time and time again; trying to come to grips with even coordinating a joint review with existing provincial bodies and the federal body through CEAA is a challenge in itself. Many provinces do have MOUs with the federal government with respect to joint environmental review planning.

Then you have a huge overlay of the challenge of appropriate consultation and accommodation as it relates to Canada's current understanding of its responsibilities, as was largely developed in the 2004 litigation jurisprudence realm, Taku River Tlingit and Haida. So those standards of consultation are very high. They fall on both crowns. How they are played out in areas such as the Ring of Fire are huge challenges and have to be seen as a huge overlay onto the existing environmental review process. I don't think there is one methodology that's been employed yet in any part of Canada that's the perfect answer.

[Greg Rickford, Conservative, Kenora, ON]

I think the territories were taking us there, and certainly the McCrank report flagged these and dealt with them, but I appreciate what you're saying and I want to hear more about that.

[Marion Lefebvre]

I think you will appreciate, too, that this speaks to quite an extended timeframe for bringing the communities onside with what the potential is and what the implications might be.

A very interesting development, as I understand it, is that the National Centre for First Nations Governance is organizing workshops for first nations within the Ring of Fire area. They want to start building a base of understanding as to how they might approach engagement discussions and how they might approach consultations with both crowns. That kind of information sharing is an excellent first step. It goes without saying that the consultation requirements that flow from our current understanding of the jurisprudence are high. It will demand an excellent effort on the part of both crowns to ensure that the communities are well informed and that their concerns are well understood and accommodated, to the extent possible, within the perspective of a development going forward.