Indigenous and Northern Affairs Committee on Dec. 13th, 2011

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Well, no, I know we can't do that. I just wanted more clarification. The full range of issues provincially typically addresses managing environmental issues, such as enforcement of provincial laws. I'm just wondering what types of gaps there are.

[John Moffet]

That's a good question.

Aboriginal Affairs and Northern Development and Environment Canada have done work to identify this issue in two different ways. One is on what the actual environmental issues are. They really haven't changed since the 2009 Auditor General report that listed the key issues that arise across reserves in Canada. I would say, however, that the major change has been the emergence of the storage tank regulations, which hasn't solved the problem but directly addressed one of those key issues. There is also the forthcoming promulgation of the waste water systems regulations, which again haven't solved the problem but provide part of the solution for one of those key environmental issues.

The other way to look at the problem is to put on my former lawyer's hat and ask what laws, as opposed to what issues, are not addressed. Maybe what I could do is describe what a typical provincial environmental regime covers. It's very extensive.

Most provinces have in place either regulations or a permitting scheme to cover various types of air emissions, ranging from emissions from boilers and other large industrial or commercial facilities to rules around open burning. Typically, a province has in place rules around drinking water quality, discharges to surface water, discharges to sanitary sewers, and the use of septic systems. Most provinces also address solid waste, largely at the municipal level. In addition, most have laws around contaminated sites and hazardous wastes. Some have rules around the application of pesticides.

Also, most municipalities, as creatures of a province, have authorities to put in place land use rules, which may not be directly related to environment but which establish the basis for decision-making, both for commercial development and for environmental protection.

Provinces are primarily responsible for managing extraction and development of natural resources, be it timber, fishing, hunting, extraction of minerals and aggregates, and oil and gas development. In addition, provinces often have in place various rules around regulating transportation of dangerous goods and response to spills, some of which are replicated at the federal level. But not all of these are replicated at the federal level. Therefore, where these are not replicated federally, one can argue that those rules do not apply on federal lands and on reserves. That provides the legal basis for the gap, which in turn gives rise to the various environmental issues I talked about earlier.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Moffet.

Ms. Duncan, you have five minutes.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Could I get a written response to my last question?

[The Chair, Conservative, Chris Warkentin]

Yes, there was a final question. Is there a possibility that we could have a written response to that?

Mr. Clarke, maybe you want to ask your question again so that it's on the record.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

With regard to the Indian Act, what other type of legislation do you think would be of benefit, going forward?

[John Moffet]

I'm going to give you the answer that I may be difficult here, but the Department of the Environment doesn't have a position on what the Indian Act should look like.

We could go out for a beer, but I can't speak for the Department of the Environment on that topic.

[The Chair, Conservative, Chris Warkentin]

We appreciate that. Thank you very much.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

I have three or four questions for Mr. Moffet. I'll put them out and you can answer. You may want to connect them all. This is in follow-up to your testimony.

Mr. Moffet, you mentioned the one-window approach on the new federal regulations, specifically on waste water. That's fine with the provinces, under the equivalency provisions, I presume. But who's going to inspect and enforce those regulations on first nations lands?

Secondly, if that responsibility is going to be transferred to the regional office or to first nations, what capacity is there to deliver that? Has the central office indicated to the regional offices that they should make more intensified monitoring inspection and enforcement on first nations lands, in response to the Auditor General's report?

Thirdly, in the Auditor General's 2009 report, recommendation 6.75 was that Indian Affairs and Environment Canada should work in partnership with the first nations in developing and implementing a strategy to fill those regulatory gaps. How is Environment Canada consulting? You mentioned at the outset your recognition of the constitutional duty to consult. How has Environment Canada consulted the 630-plus first nations in developing those rules and the strategy to enforce them on first nations lands?

[John Moffet]

Thanks for the questions.

I'll respond to the first two together and then treat the third one separately. I take it the first two are about our plans to inspect and enforce the forthcoming waste water system regulations, and particularly how we would manage that on reserves.

We're currently in the middle of negotiations with each province to develop administrative agreements to address the question of precisely how well we collectively implement the regulations, conduct compliance promotion, collect the information, and enforce where necessary. Those discussions include specific discussions about what arrangements will be made on reserves, and the answer may be different from province to province. Some provinces may undertake to conduct the inspections and do the enforcement--

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Have the first nations agreed to provincial officers coming on their land?

[John Moffet]

If provincial officers do that, they will not be acting as provincial officers; they will be acting as federal officers enforcing a federal regulation. They would be agents to the crown, not agents to the provincial government.

Before this happens, of course, the next step to having initial discussions with the provinces will be to have discussions with first nations. Those are planned to occur over the course of the next year.

I want to be really clear there. We're talking about enforcement of federal regulations, and we can designate anybody we want to be an agent of the crown. They may, for the rest of their day job, be a provincial official, but where they are enforcing a federal law they will be acting as a federal agent.

Those negotiations are under way. The initial meeting has been held with each province--just a “get to know you” kind of thing. I can't tell you what they're going to look like. If I had to predict, I'd say the arrangement may differ province by province.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

There will be no delegation to first nations staff to enforce those federal regulations?

[John Moffet]

There may be, but the answer will have to depend jurisdiction by jurisdiction--and in the case of first nations, first nation by first nation. We're just starting the process of those discussions, but we're open to coming up with arrangements that are as streamlined as possible for the affected facilities. That's the goal. It depends entirely on capacity and willingness of the provinces, the Yukon Territory, and the various first nations that are affected.

That's the first set of questions. The second question was whether we are working in partnership with first nations in looking at the broader issue around the gap. Let me speak to two things.

First, in responding to the Auditor General's report, last year the Department of Aboriginal Affairs and Environment Canada established an environmental regulatory gap working group—another very clever name. The first step this group has undertaken is an internal exercise to identify the gaps, as we understand them. The next step will be to start talking to aboriginal partners to verify that those are the gaps and to talk about, on a case-by-case basis, the best way to resolve the gap. The exercise will have to be undertaken in full partnership with affected first nations.

With respect to implementation of the First Nations Land Management Act, we work together with Aboriginal Affairs in close contact not just with individual first nations but also with the Lands Advisory Board, which was the body established under that act to provide the forum for first nations interaction with the government to guide the implementation of that act.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Moffet.

Our last questioner is Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you.

Mr. Chairman, I'm going to defer to my colleague Ray, who has a question he wanted to ask. If there's enough time, I may ask mine.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Mr. Chair.

Welcome to the panel.

In your report, John, you talked about environmental and health consequences and then you have a statement here on page four, the fourth paragraph down: “Environment Canada and Aboriginal Affairs and Northern Development Canada are working together to address these issues.”

Who is taking the lead on this, and what happens when we have issues like in northern Saskatchewan, with billions of dollars of mining and caribou trails clashing with one another and with employment for hundreds of first nations people? How do we resolve those issues?

Right now it seems that issue is locked into never-never land.

[John Moffet]

That's a broad set of questions.

In general, in terms of addressing the environmental management gap as a general issue, Environment Canada sees itself playing a supportive role under the leadership of Aboriginal Affairs and Northern Development Canada, because Aboriginal Affairs and Northern Development has the relationship with first nations, and also has access to a much broader sweep of tools, not all of which may be perfect, but which are explicitly designed to provide governance capacity on reserve.

As I mentioned in my presentation, Environment Canada doesn't have the tools to enable or to change governance capacity on reserves, and I think that has to be a key part of the solution going forward.

As to the specific decisions made around specific proposed development in various areas, including the example that you provided, the federal government's first window onto those activities is via the environmental assessment process, which, as I mentioned earlier, is subject to the Environmental Assessment Act, and is coordinated by the Canadian Environmental Assessment Agency.

Again, I might suggest that it may be useful for this committee to hear from the Environmental Assessment Agency as to how it operates and addresses those sorts of issues from the full range of stakeholders, including the aboriginal people who are affected by proposed development.

[The Chair, Conservative, Chris Warkentin]

Go ahead, Mr. Rickford.

[Greg Rickford, Conservative, Kenora, ON]

Thank you.

Very quickly, Mr. Barrett, you spoke about the audit in 2009 from the Auditor General, and that there were a number of recommendations for us to move forward with. I'm going to lay out a few of them, and I'm going to give you an opportunity to comment on these developments and to give further recommendations

In budget 2011 the government has allocated more than $20 million over two years as part of its ongoing support for the first nations land management regime, the one we spoke of privately as being so critical to this study. At the time of the 2009 report, 22 first nations were operational under the first nations land management regime--clearly, not enough. There are now 35 operational. There's a fundamental issue of capacity to actually go into the regime, and I can appreciate that.

So to that extent, our department and the Lands Advisory Board have been working on potential amendments to that legislation that could help make the legislation operate better, in particular to smooth the transition for new first nations to enter the regime and increase the potential for them to thrive under it.

The government has signed a memorandum of understanding regarding a new funding formula that paves the way for a successful reopening of the first nations land management regime, and our department is currently working with the Lands Advisory Board to finalize prioritization criteria in order to assist in determining which first nations will be best positioned to take advantage of the opportunities this regime can offer in the future.

These are the main ones. How does that sound to you? And in this last minute or two, are there other recommendations we could build on?

[Frank Barrett]

Thank you for the question.

I have just a couple of points. First of all, we haven't done any audit work since 2009, so we can't speak to that. What you're saying sounds encouraging, certainly, and we'd have to see the fullness of it. We'll take some time in looking at it.

Also, our recommendations did focus around the need to transfer control to those first nations that want to move into it. So how that's happening becomes very important.

Training, and specific training for the different types of programs, was a very important aspect.

[Greg Rickford, Conservative, Kenora, ON]

We spoke about it earlier.

[Frank Barrett]

Yes, it is important.

Then, of course, if you're addressing the environmental gaps, and dealing with the contaminated sites, those would be the things that you would want to make sure you're addressing.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Rickford.

I'm going to use the chair's prerogative and be the last questioner.

This is for you, Mr. Campbell. You talked about the need for fundamental change with regard to the control of lands by aboriginal people. You speak very clearly in the report of the control of land being a determining factor for the well-being of these communities. You specify the necessity of using land as collateral and using land for the development of resource extraction and a whole host of other things. Then you point out the difficulty within the Indian Act with regard to the cumbersome requirements for surveying the population of the band, voting on leasing opportunities, and ongoing problems in terms of just getting simple leases signed.

We heard from one person who testified before our committee that it took over seven years to lease a piece of property out to a bank, a chartered bank, when in fact the competitors, which were the adjacent communities, could make this decision in less than 90 days, in many cases.

Are those the transformational changes you are looking for? Many of those issues need to be addressed so that these first nations communities can move at the speed of business that every other municipality moves at. Is it your assessment that the crown is risk-averse?

What we've heard in some testimony at this committee is that the crown, because it has a responsibility, wants to avoid risk at all costs. That's partly the reason for the time it takes for many of the approvals to move forward when it comes to leases and stuff. Is it your assessment that it's the crown's risk-averse nature that drives some of these longstanding wait times?

[Ronnie Campbell]

Thank you, Mr. Chair. Thanks for the question.

I think I would preface anything by saying that there's great variety among first nations. Their sense of risk is what's important to them. We've certainly heard from some who tell the story you've just told, Mr. Chair. They wanted to do something, and it took forever to do it, and they missed the opportunity. Certainly, depending on where first nations are located and what their opportunities are, we've heard those kinds of stories or those views as well from first nations.

The transformative change, I would say, is to get away from this ad hoc, catch-up, “oops, there's a gap here” type of process we've had. Water was one like that. Lots of Canadians, a hundred hundred years ago, carried their own water. Everyone did it, and now we're not like that. We've created those gaps by asking, belatedly, what about first nations?

I think the transformative change is to ask what level of services and protections and program standards Canadians expect will be publicly funded. Then deal with those on reserves on a real-time basis rather than by taking great leaps forward off reserve and then catching up decades later. That would be the transformative change. I think some of that would apply to the issues under discussion today.

Thank you.