Evidence of meeting #28 for Indigenous and Northern Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was afis.
A recording is available from Parliament.
Chair, National Aboriginal Capital Corporations Association
In Saskatchewan we created the First Nations Bank.
NDP
Chair, National Aboriginal Capital Corporations Association
They do the capital for major infrastructure.
Conservative
The Chair Conservative Chris Warkentin
Thank you, Mr. Bevington.
I'm going to jump in now and ask a couple of questions before Ms. Fry does. I'll make sure that you get five minutes. You'll be the final questioner.
I have a couple of questions in regard to two things.
First, Commissioner, one of the reserves I represent in my constituency has had a real issue trying to enforce compliance with rules set out for people dumping in landfills within their jurisdiction. They tell me that under the Indian Act, they really have no provision for enforceable rules. Clearly, this is a problem. They're saying that people are breaking down the gates and dumping stuff that shouldn't be dumped into a landfill to begin with.
Obviously, if it is a fact that there's no ability to enforce compliance, there have to be some recommendations floating around out there for those who remain under the provisions of the Indian Act. Have you made recommendations with regard to this, or do you have thoughts with regard to what might be done?
Commissioner of the Environment and Sustainable Development, Office of the Auditor General of Canada
Thank you.
First of all, you're quite right. We said in the 2009 audit, on which my colleagues were here before Christmas, that because of regulatory gaps on reserves, there's a considerable amount of confusion. We quoted a first nation chief from Ontario who said that for dumping, landfill, incineration of garbage, waste water, sewage, and other areas it was vague and uncertain which regulations applied and which ones did not.
We also said, in the 2010 audit, that there were responsibilities of the government in enforcing the regulations they knew to be in place, including in the Indian Act and others. They were supposed to have a compliance rate of 60% of inspections for regulations that were in place. We pointed out in our audit that it was 13%. That's what the average rate was. We asked the department if they knew their compliance rates, and they said that they did not.
We pointed that out. We issued a report in the fall of 2011, just about two months ago, looking at enforcement at Environment Canada, NEB, and Transport Canada.
This is just to say that this is an issue that is not unique to first nations reserves or to the Indian Act application of that law. We pointed out that enforcement issues across the board are difficult. We made recommendations on a number of areas. If inspectors find a problem, they should go back and make sure that it's fixed.
We've pointed out in numerous audits the problem of enforcement of the laws that are there.
Conservative
The Chair Conservative Chris Warkentin
Then you're saying that there are laws that would be enforceable and could be enforceable. There simply isn't the provision of....
Commissioner of the Environment and Sustainable Development, Office of the Auditor General of Canada
That's correct. Particularly on reserves, where the Department of Aboriginal Affairs and Northern Development knew the laws they were required to enforce, we pointed out that the difference between what they said they would do in terms of enforcement and what they actually achieved in enforcement was actually a huge order of magnitude.
Conservative
Principal, Office of the Auditor General of Canada
Yes, I'd like to add a little bit to that. First of all, the Indian Act has very minimal provisions. In effect, it's meaningless, basically, to enforce them. It's a $100 fine or something.
Principal, Office of the Auditor General of Canada
That's not a very strong provision. I should also add that we pointed out in our 2009 chapter that, in fact, we have lots of these regulatory gaps.
I think the third element that needs to be understood is that if first nations that could and might and want to be under the First Nations Land Management Act sign an environmental management agreement with the department, they then become responsible for developing their legislation—applying the federal legislation and their own—and enforcing it. That too becomes an inhibitor for them.
Right now we have a gap that really isn't being filled in a lot of respects.
Conservative
The Chair Conservative Chris Warkentin
Thank you.
I'm going to run out of time, so I have to enforce myself here.
Mr. Bombay, you talked about your members. It seemed to me that you were indicating that your members were somehow inhibited from accessing the information that FPInnovations and organizations like that have brought forward, but I can reference many independent sawmills, even in my own community, that have accessed these provisions, and some of them are aboriginal.
Do you have a sense that there's something inhibiting your members from accessing professional services and information from FPInnovations? Was that what you were saying, or is it that you would like to run a parallel organization?
Executive Director, National Aboriginal Forestry Association
FPInnovations is a research and development organization that is primarily controlled by its members. It's a membership-based structure, and the members are the large forest products companies.
Now, there are ways in which you can access some of the information, some of the R and D, but some of the leading-edge stuff coming out of FPInnovations is very proprietary, in the sense that for the companies involved with the research, there's no requirement that they share their research and development with any other party for a certain period of time.
Not only that: the members of FPInnovations pay fees, and first nations don't really have the money to take out similar types of memberships. We could become members provided we had the resources, but it is a membership base.
Conservative
The Chair Conservative Chris Warkentin
Yes. It seems to me that many of my members that are first nation are members of that organization, so that must be how they're getting that information.
My time is up, and I—
Executive Director, National Aboriginal Forestry Association
Well, I don't know of many first nation forest companies that are members of FPInnovations. I know of one or two.
Conservative
Liberal
Hedy Fry Liberal Vancouver Centre, BC
Thank you very much.
Commissioner, in your 2010 audit you talked about land use plans. You also mentioned that there was very little in the Indian Act that provided authority for first nations to begin to plan the use of their lands in terms of commercial, residential, etc.,
We also found that the First Nations Land Management Act came into effect in 1999, yet none—not a single one—of the environmental management agreements have been concluded with first nations.
My question to you is this: what are the challenges? Why has that not been concluded with first nations? What is there preventing this from occurring?
Then you have this double standard. You have modern treaties, such as those we are having in B.C. now, that are comprehensive and that give a lot of authority for management of resources, land, governance, and land management regimes, etc., to those modern treaty holders.
In fact, I would love to go into the issue of the Enbridge pipeline; I won't, because it's not valid here, but there you go.
As well, first nations are talking about the use of their land, etc., so you have these two sets of existing standards. What prevented any first nations under the old regime, under the Indian Act, to be able to effectively get themselves an EMA, and why is it that we have these two standards when you have people who have full authority over the use of their land? What can we do to rectify that? It sounds to me as though it puts one group of aboriginal communities at a total disadvantage.
Commissioner of the Environment and Sustainable Development, Office of the Auditor General of Canada
Let me ask Frank to....
Principal, Office of the Auditor General of Canada
I'd be happy to address that question.
I think there are a couple of things to appreciate. First of all, if the first nation is strictly under the Indian Act, then in effect they don't have the option of creating an environmental management agreement under the formal EMA process. That's INAC's responsibility to enforce.
Keep in mind that outside of reserves, it's generally the municipalities, and in some respects the provinces, that will enforce dumping rules or anti-dumping rules, etc. On reserves, that's federal.
INAC doesn't do a lot of inspections. They would basically handle it through a permitting system, where they give permits to hold the landfill on a reserve. We saw in our 2009 audit that over 200 reserves didn't even have a permit and didn't have agreements with outside municipalities. Obviously the garbage is going somewhere, but it clearly is not being enforced.
That was one issue. In terms—
Principal, Office of the Auditor General of Canada
Fair enough.
Then, when we go broader and ask why there aren't more environmental management agreements under the FNLMA being entered into—
Principal, Office of the Auditor General of Canada
That's right. There are land codes, which is the first step, but at the end of our audit, you're right, there were not any, and I imagine that's still the case.
The issue is that once they do that, they now have to have their own enforcement regime. They have to pass their own laws and regulations over and above the federal laws, and they have to be enforcing what already is there.
In other words, it's asking the first nation to fill a gap, one that the federal government has not itself filled, to meet what would have been provincial standards. Then to have their own enforcement regime around it is not necessarily an easy thing to just turn on.
How would it work? It hasn't really been.... At the conclusion of our audit, that hadn't really been worked out.
Liberal
Hedy Fry Liberal Vancouver Centre, BC
But I'm talking about the disadvantage between that system and the ones with modern treaty negotiations that are going on, because that has a double standard: it puts one group at a total disadvantage vis-à-vis another group.
I'm just asking how you can rectify that, because it's not appropriate to have one set of aboriginal communities with one set of rules while the other ones can have better management options and a better ability to.... What do you do?
