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

[Laura Edgar]

This, again, was based on 2008. There may have been additional rulings since that time that I'm not familiar with.

But based on what we knew at the time.... The court had basically ruled that you can't assume, because it's provincial and because the federal law says provincial laws can apply to Indians, that therefore they apply to Indian lands. So it's in limbo a little bit, in terms of whether it's actually applicable.

I'm not sure it's actually been tested fully in courts. Do you know?

[Marion Lefebvre]

Not on that subject matter. I'm not aware.

[Kyle Seeback, Conservative, Brampton West, ON]

You're not aware of that. Okay.

It's hard. I know you don't have information on cost. Did you look at any other costs associated with...other than water treatment? I did read that part in your paper.

[Laura Edgar]

We have done other work on other areas; I don't have that information with me. But we have done cost analysis for other areas as well.

[Kyle Seeback, Conservative, Brampton West, ON]

Other environmental areas.

[Laura Edgar]

I believe so, yes. I could check our papers for that if you like.

[Kyle Seeback, Conservative, Brampton West, ON]

That would be great.

You talk about the environmental management gap, and it's not just a set of rules. What is really encompassed by the environmental management gap?

[Laura Edgar]

In addition, if you're looking at.... I talked about the various subject matters with regard to land and water and those kinds of things.

But if you look at an effective regulatory regime, it starts with approvals processes. There are certification requirements. Actually, there are many different approvals processes for some of them. There are permits that are issued. There are inspections. There's enforcement. There are appeal mechanisms. It's a fairly comprehensive set of tools that all have to work together effectively for it to be effective.

[Kyle Seeback, Conservative, Brampton West, ON]

Right.

How am I doing for time, Mr. Chair?

[The Chair, Conservative, Chris Warkentin]

You're actually out this second. You are depleted.

Ms. Duncan for five minutes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks, Mr. Chair, and I'll probably share that time.

If we go back to your review of environmental protection law regulations generally, we have to look at it in what the legal framework is right now. For most first nations, particularly under modern treaties, the environmental assessment rules and all those are already prescribed constitutionally. The first nation doesn't have the power to set about enacting its own environmental assessment system. So I'm a little puzzled about the suggestion that they might set about enacting their own environmental assessment and so forth.

Certainly even under the Indian Act, there are some limited rules for dealing with landfills and so forth, and that's been the frustration—that the act is so outdated that it doesn't give those full ambit. Under the land management code, there is some limited capacity, but whatever they enact, they can't override the constitutionally entrenched processes.

I frankly can't conceive of any first nation, even as advanced as they are—and there are a lot of them who are very advanced and have been able to bring back into their community, and keep in their community, lawyers, toxicologist, scientists, and managers and so forth. It's hard enough for a federal or provincial government to enact and cover all regulations needed to manage safe drinking water, source water, environmental impact assessment, and dangerous goods. I'm a little puzzled at your suggestion that they would even begin to be able to promulgate those rules on their own, even if they finalized their treaty, even if finally they received the dollars under that treaty. Is there not some other measure that's needed to fill that gap?

We're stuck in the middle, where with some success the federal government has said, “Yes, we support you moving to self-government”. At the same time, there is this big gap of catch-up, and they want to be able to have this regulatory framework because they're dealing with resource extraction and development opportunities on their lands...and most of them don't want to sign agreements with the province.

My understanding is that one of the options that the Indian Affairs expert panel suggested was under the proposed safe drinking water laws—the federal ones. The option is for a first nation to simply adopt by reference the provincial law. So in fact they're actually applying a federal law, but it's through the federal law.... My understanding is they're not actually going to embrace the provincial law. I don't think constitutionally that's even possible. I wonder if you could speak to that.

[Marion Lefebvre]

I think you are speaking to a means by which provincial standards that flow from that law could in effect be endorsed and adopted, but adopted in a way that does not suggest that the first nations are subservient to the provincial statute.

So what that accommodation achieves is the practical application of comparable standards without a compromise to the legal position that has been adhered to by many first nations with respect to what they would consider to be an undue interference with their jurisdiction by the direct application of provincial statute.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I just wanted to clarify. That's what you're suggesting. You're not suggesting that the first nations will embrace the provincial government coming into it.

Some of them are saying, we don't really carry either way, we just want the assistance. But my understanding is that in a lot of areas they just dig in their heels. So you have to come out with some mechanism. It frankly makes sense because then everybody who lives in Alberta, for example, will all have the same safe drinking water standards, but you have to find a way to do that.

Where it gets more complex is when you're dealing with things like source water protection. Therein lies the problem. As you pointed out, there is a federal legislative gap. I'm just wondering how—if you've talked to first nations in your capacity building and so forth—do they struggle with it, do they want some national standards so that they have the same opportunity to protect, or do they want to just enact their own rules?

Have you had discussions, if you're building capacity and so forth between...? Are they seeing that all the tools, options, and support are being given to them to try to sift through all these alternatives so that they can move forward and have the regime in place, and at the same time have the dollars there so that they can build the capacity to both put in place those rules and to implement them?

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Duncan. You are out of time, but I'd like to give some time for an answer. It's only right.

[Marion Lefebvre]

Unfortunately, my answer is going to be brief, because no, I have not had those discussions on this subject matter. I can say for sure that a number of first nations professionals and technical specialists understand the importance of achieving that, but I haven't talked to any leadership about their current plans to set this as their priority.

I do want to say, as Laura tried to allude to earlier, that the paper was written from the bias of looking at it in terms of its regulatory capacity and not in effect as a reflection of what it can or cannot do from a broader legal perspective with regard to the respect and the exercise of jurisdictions.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Mr. Boughen, for five minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Chair.

Let me take this opportunity to welcome our panel. Certainly I echo my colleagues in suggesting it is very generous of you to share your time with us because your information is vital for our decision-making process.

When we look at foreseeing what's happening at the provincial level in addressing regulatory and environmental issues on reserves, do you have any advice to offer that would set a standard, or that if we looked across the country would be something that would apply to all reserves in the provinces? Do you have a standard set of reference materials that you could use or a standard set that says what should be incorporated to have this come together properly—regulations where there are gaps now?

[Marion Lefebvre]

That wasn't the approach of the paper we did. The approach was to try to say these are the issues you should be concerned about; these are various mechanisms that could be employed to achieve a comprehensive result; and these are the considerations that you should look to around each of these possible options. We looked at it as an opportunity to create options, not to prescribe a specific set of—

[Ray Boughen, Conservative, Palliser, SK]

Are those in the paper?

[Laura Edgar]

Yes.

[Ray Boughen, Conservative, Palliser, SK]

Okay, thank you.

What are methods by which this could be done in terms of federal or first nations legislation or contact? What method do you see would allow this to happen, to shrink this gap and make a standard set of regulations?

[Laura Edgar]

Again, I'm not sure you're ever going to get a fully standard set of regulations across the country. Some of the functions are better served through incorporation by reference to provincial regulations, say for waste water, but with adaptations to meet first nations needs. Zoning bylaws vary across the province or the country, so I'm not sure you're going to get a standard, but I think the provincial regulations are probably where most of the best lessons learned can come from in terms of moving forward more quickly.

[Ray Boughen, Conservative, Palliser, SK]

What would the incremental costs and the resources involved be for the province if they have an established system in place? Have you any idea of numbers there?

[Laura Edgar]

I don't, sorry.

[Ray Boughen, Conservative, Palliser, SK]

In your research do you not tie any cost factors to implementing any of the—