Indigenous and Northern Affairs Committee on May 1st, 2012

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

I'm going to add to that. With regard to the regulatory gap on environmental issues, I'm sure you would agree that just passing legislation is not good enough in itself. It's also necessary to deal with the full range of issues that the provinces typically address in managing environmental issues, such as enforcement of provincial laws, etc.

What role do you see for provinces in addressing the regulatory gap on environmental issues on reserves?

[Warren Johnson]

That would be up to first nations. As governments, first nations would naturally want and need to get into new intergovernmental agreements. On the majority of the research I've seen where first nations have done it, once they have the authorities.... Actually, that's the basic problem. Once there, all the planning that I've seen in fact contemplated referential incorporation, if not by the federal government, then by the first nation itself, of the parts of the relevant regulatory regime that they didn't think they should do themselves. So it's complete harmonization.

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

I guess what you're saying—I believe you alluded to it before—is if we could learn how to get our hands off this, it would work well.

[Warren Johnson]

Yes. Provide the first nations with sufficient authority that they come to the table as equals. The provinces and the municipalities, in any of the cases I've seen where that's occurred, are quite willing to do the deal.

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

Thank you very much. I appreciate that.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Wilks.

Colleagues, that ends our second round of questioning. We're scheduled to go to quarter after five, and I know there are a couple of members who have short questions. We'll go through the speaking list generally for the third round. If members could limit it to fewer than five minutes, that might be helpful to ensure we can get most folks in.

We'll turn to you, Ms. Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

You mentioned the reserve land economic development study. Is that publicly available?

[Warren Johnson]

Yes, with some of the participating first nations. I've been waiting for something to come out on it publicly, and it seems to come out by the participating first nations. They're putting it up on their own websites. I have a website reference.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

It would be very useful if we could get that website reference.

Briefly, back on the environmental piece—

[Warren Johnson]

It's on Chief John Thunder's website, if you already know it. If you don't, then I'll give you the reference.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thanks.

On the whole issue around regulations and the FNLMA, are there other regulations aside from the ones on the environment? Obviously, the environmental gap is enormous. Are there other regulations with regard to the FNLMA that are missing, aside from the ones on the environment?

[Warren Johnson]

Not that I'm aware of.

The first nations have to pass land codes, and then they're applying the laws in whatever way they see fit. I haven't assessed what it is they're doing with their own codes and stuff. That's up to them.

A key component of this is that they can't exercise the environmental authority under the FNLMA without having signed an environmental management agreement with...whether it's both INAC and Environment Canada or just Environment Canada, I'm not sure, but none has been signed. No authority has been exercised. Environment Canada withdrew from its partnership agreement with the department because nobody has any money.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Okay. Just to be clear about this, even though in theory, under the FNLMA first nations can assert their authority with regard to environmental regulations, they can't do it because these agreements aren't signed.

[Warren Johnson]

Yes, without a legislative change—

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

That's crazy.

[Warren Johnson]

—but that would just legalize a regulatory gap.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Right.

In your view, before first nations engage in the FNLMA, is there adequate assessment done about the state of the environment on the reserves? You pointed out in your paper that there are 2,500 contaminated sites that have been identified on various reserves.

[Warren Johnson]

I'm not sure it's safe to say there's an adequate assessment done ahead of time. I haven't looked at that in detail.

The first nations got the assurance legally. It's in the act. The liability is federal.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

The federal government is responsible.

[Warren Johnson]

How much of the assessment that needs to be done is done before the transition as opposed to after, I'm not sure.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Then 10 or 15 years down the road, when a piece of land is determined to be contaminated, the question becomes, when did the contamination happen? It's no wonder that some first nations are now raising concerns about getting involved in this when they could be on the hook. They could be liable.

[Warren Johnson]

Yes, and there are other first nations that aren't worried about the historical liability but are worried about the future liability, because the contemplation they have for the land they want to use the FNLMA for is environmentally sensitive, and they know they're not going to have any authority over the environment because they can't get the authority over the future operation either without the environmental management agreement.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Right, so that's a real—

[Warren Johnson]

It's not just the past; it's the future.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

It's the future as well.

It sounds like that's something else we might need to follow up on as a committee.