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

[Carolyn Bennett, Liberal, St. Paul's, ON]

I'll go back to the Office of the Auditor General. It's sort of an unfunded liability to the planet. This is serious, what you've uncovered. When would you be back in the field to find out if anything has happened?

[Frank Barrett, Principal, Office of the Auditor General of Canada]

Obviously we would not be able to speak to what has happened since 2009 until we've done a follow-up audit. We don't have it on our plans exactly when we're going to do our next follow-up, but certainly every second year we do follow-up audits on various issues, so this would be one of those we'll tend to look at usually four or five years afterwards.

[Carolyn Bennett, Liberal, St. Paul's, ON]

So the relationship is such that you would wait four or five years, even if it looks like there is.... Is there anything flagged in your department when budget after budget comes through, estimates after estimates, where there's nothing dedicated to fix this problem?

[Ronnie Campbell]

Thanks for the question. You raise a very real concern.

We don't follow up every audit report we do, but we try to get the biggest bang for our buck. We invested a considerable amount of effort recently, towards the end of Madam Fraser's term, to follow up a large number of audits we had done in relation to first nations issues. This was not one of them, but I think that the broad observations we have in the chapter 4 we tabled in June are probably worth bearing in mind. Largely those speak to the fact that the system is incredibly broken: there's a lack of service targets for what exactly government is committed to doing, a lack of funding for it that's not just through contribution agreements, and lack of a legislative base behind that, and then the tertiary and secondary support systems that you would expect to see. So we were calling for a completely new approach to how programs are designed and implemented on reserves, bearing in mind how we do them off reserve.

[Carolyn Bennett, Liberal, St. Paul's, ON]

In medicine, when we approach wait times, it usually means you actually have to have more people doing it, or you have to decide on the appropriateness of what it is. The experts say you have to actually drain the pool, because you can never keep on top of wait times unless you get rid of the backlogs, and that usually takes some resources.

It sounds as if you're of the view that moving more and more of the communities into the land management approach would be a good thing, and yet there are huge wait times for that to take place. You've said it needs investments. Do you have any comment about how this could take place, or what would make your heart go pitter-pat at the next audit if it happened?

[The Chair, Conservative, Chris Warkentin]

Mr. Campbell, we have expired in terms of time, but we would like an answer if it could be short.

[Ronnie Campbell]

Thank you, Mr. Chair.

Fundamental change is what would make my little heart go pitter-patter.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Mr. Wilks, you have seven minutes.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

I thank you gentlemen for coming today.

I'll get to specific things in a second here, but with regard to the audit paper, and specifically to the federal and provincial regulations and waste water and water treatment, why does there seem to be an environmental regulatory gap on reserve vis-à-vis off reserve? As you are aware, for off reserve we are required to follow provincial and/or municipal guidelines. It seems to me as though some reserves do hook up to municipal waste water treatment centres, and that resolves that issue.

Is there the potential of reserves that are not formed to any regulatory body, that it would be easier to form to a provincial body than a federal regulatory system? In some instances we do not have federal regulations, especially when it comes to waste water. We do for water systems, but not for waste water.

[Frank Barrett]

Thank you for the question.

I guess the simple answer as to why there is a regulatory gap is that this is an area, as you said, that is typically regulated provincially. Obviously, as we have been saying in many cases, provincial regulations do not apply on reserves.

If we were to have no regulatory gap, it would require that we have consistent federal legislation and regulations that mirror those of the provinces. In some of the priority areas, including waste water, you have certain divisions under the Indian Act, but largely in terms of solid waste, waste water, toxic substances, toxic waste—or hazardous waste, rather. We don't have any federal legislation that is applicable on reserves. That's the reason for the gap. What it would take at this point....

There are situations where some reserves have signed service agreements with the provinces, but we still see, say in the waste water area, that over 200 first nations clearly do not have any permits or service agreements with nearby municipalities. Clearly, we have a gap there. It would take federal government legislation to close that gap.

[The Chair, Conservative, Chris Warkentin]

Mr. Moffet.

[John Moffet]

May I add to that? The question, sir, has two parts.

Generally, on where the gap arises, I take no issue with Mr. Barrett's response. In terms of waste water, the government has promulgated draft regulations, which will apply across Canada, including on reserves. Those regulations will come into force this coming winter. In terms of legal coverage, as of this coming winter there will no longer be a gap.

There will remain an extensive period of time during which investments will have to be made and capacities will have to be developed to ensure that waste water systems across Canada, including on reserves, come up to the appropriate standard. On that particular issue, this is an example of how regulations of national applications promulgated by the government can address an issue both on reserve and off reserve.

[David Wilks, Conservative, Kootenay—Columbia, BC]

If I may just lead into that a little bit then, once that regulatory regime comes into effect, will that supersede provincial regulation?

[John Moffet]

I'm going to duck the term “supersede”. Federal regulations will apply across Canada. Some provinces also have regulations—not all. Indeed, many do not. In many cases, the issue is addressed by means of municipal by-laws. The federal regulations will establish a baseline standard.

If provinces also have a regulation or a program in place, any waste water facility will have to at least meet the federal standard. If the provincial standard is higher, they'll also have to meet the provincial standard. In terms of what the regulatee will see from an administrative perspective, we are currently negotiating administrative agreements with all jurisdictions in Canada to enable a one-window monitoring and reporting approach so that there will be no overlap on the administrative front.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Over the years we've seen millions if not billions of dollars placed into first nations communities across this land. I'm curious to understand the process, from the Auditor General's office. Do they feel that more money needs to be placed into first nations regulatory bodies, or do we need to find better ways for the money being provided to benefit first nations?

It seems to me that at times we're just throwing money, and we believe that throwing money works. Throwing money doesn't work. Where do you see us stopping and saying, “Just a second, there's money there. How do we fix this now? How do we make it work within the means?”

[Ronnie Campbell]

Thank you for the question.

As I mentioned earlier, we tabled a report in June that followed up on a considerable number of audits we did in this area. We're essentially saying that you can't get there from here. We're not producing the results that anybody likes, generally speaking, on reserves. Nobody likes these results, and if we carry on doing the same things we're going to get the same results.

The four things we identified include a legislative base for things that normally require and benefit from a legislative base; support organizations that go along with school boards and health boards; funding mechanisms that suit the purpose; and setting the target for what level and type of service is there to be delivered. Those are the key parts of my response to the question.

Sometimes the question is how long is a piece of string? On what has to happen as part of this discussion, somebody needs to define how long that piece of string should be in terms of what are the services and levels of services. Then the funding will flow. But one has to believe that whatever we're doing now can and should be done much better for people on reserves.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Campbell.

Mr. Genest-Jourdain, you have five minutes, please.

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

Good morning, gentlemen.

Gentlemen, I especially appreciate that your report talks about the training for the two land management regimes. To my knowledge, this is the first time we have received so much information and detail on that training.

I have a few questions. Is the training provided to first nations land managers for the two regimes similar? What kind of prerequisites do people participating in that training need to have? Do they have to be members of the community? Unless I am mistaken, this program is spread out over two years. It is probably provided by a university. Could you tell us more about how it all works?

[Frank Barrett]

Thank you for these questions.

Mr. Chair, I'm very happy to address this question.

There are a couple of things. First of all, it should be noted that the two programs we're talking about are fundamentally different. One of them is a delegated program. The regional land environment management program is a delegated program under the Indian Act, and there they had established a training program.

The other program we're referring to is with respect to the First Nations Land Management Act, and that is a very different regime. It's pulling the first nations out of the Indian Act and giving them very different powers. However, that second program did not have a training program with it. There was a process put in place at one point to develop training. It did not materialize, so the Department of Aboriginal Affairs said the land manager who was in this other program could access the training we have for the RLEMP, the reserve land and environment management program.

The difficulty, first of all, is that it did not have all of the components you would need for an FNLMA community. For example, there was no training on how to develop a land code, on how to develop an environmental management agreement. That's one serious problem. The other one is with respect to access. Again, if you were accepted into the program, which was a whole other major constraint, for those who did receive training the department provided training for one person per first nation. That has proven to be very problematic.

The individual who is the land manager in the first nation would typically be the person designated to receive the training. They would take the training, but two years later they could be in another position or they were no longer living on the reserve or they were no longer available, or in some cases where we conducted interviews the individual may have passed away. Well, now in effect the community is still considered to have this delegated authority but without the trained individuals. So that was a problem for those with the delegated program.

With respect to the First Nations Land Management Act, the issue was that it was better than nothing, but it wasn't at all designed for their needs.

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

I have another question about this.

Regarding the first nations registered under the First Nation Land Management Act, unless I am mistaken, they are not obligated to have a designated first nations land manager. The same goes for someone going through training.

Who manages first nations lands during that training period, which may take several years? In other words, how is the land managed?

[Frank Barrett]

Thank you for the question.

I think the important element here in terms of program design is that it's the first nation that's designated as being an RLEMP first nation, but it's an individual who receives the training.

We speak to this at the end of the chapter, and I think the issue is that there were real funding constraints. I don't believe this is how it was originally envisioned. Again, the RLEMP program was set up first as a pilot program, which was expected to be available broadly to all first nations. We have to keep in mind that more than half of the first nations are still completely under the Indian Act, with no delegation and no opportunity for entering the RLEMP program.

Notionally they would have an opportunity perhaps of entering the First Nations Land Management Act program, except in that program they really don't have the funding to be accepting broad applicants either. So we have the constraints both ways on who can go in.

Given that they're working with what they have, so to speak, what we were seeing, again, going back to the 2007-08 period, was that the department would invite people to come in, but often it would be a last-minute thing because their budgets wouldn't be secure. Maybe a month or less beforehand, they would send out invitations to those they were accepting in--and it's only if they invited you that could you come in; that's how you became an RLEMP program.

Of course the commitment is that one individual who is the land manager on a reserve would have to take two weeks of the training—two weeks in the community, two weeks there—for a whole period of time. Well, if the first nation is swamped and they have lots of land transfers going on, or for personal reasons the individuals may not be able to leave for two weeks a week or two later, they ended up in the last couple of years that we looked at with something like 17 of the 30 people who were able to go. Access became an issue from that perspective, plus you ended up at the end of the day with one person trained.

[The Chair, Conservative, Chris Warkentin]

Thank you very much.

Mr. Seeback is next, for five minutes.

[Kyle Seeback, Conservative, Brampton West, ON]

First I'll go to Mr. Campbell.

You were talking earlier about the gaps with respect to environmental regulations. I noticed when I read through your paper today that until the 1980s all land management under first nation reserves was exclusively the responsibility of the federal government, but that some have opted out, through programs such as first nations land management and self-government and perhaps some other modern treaties.

Is it fair to say that any gaps that exist have existed for a long time on reserve?

[Ronnie Campbell]

Thank you for that question.

Gaps in any walk of life, whether it's environmental or otherwise, rather creep up on you. As life develops off reserve we create expectations—for health, for education—and once we start to supply and provide those services to people off reserve, the question then becomes, what about on reserve?

There was a time when there was no environmental regulation or protection for anybody. Now there is lots of it for those of us who don't live on a reserve, and that's where gaps are created. As we move off reserve, what do we do on reserve?

[Kyle Seeback, Conservative, Brampton West, ON]

These gaps that you're discussing would have existed ten years ago, in most cases, right?