Indigenous and Northern Affairs Committee on Oct. 6th, 2011

[Kris Johnson]

Let me add to his response that another point was mentioned that I think is quite important to the conversation, and that's on the issue of regulatory gaps.

One of the large impediments to economic development on reserves is that the way projects are regulated on those reserve lands is dramatically different from the way they would be regulated on lands next door. Potential investors or industry partners are sometimes quite concerned about that difference. Under the Indian Act we have very limited tools—or,to use your word, archaic tools—to address those concerns. FNLM first nations, with their scope of law-making powers, have much more scope and authority to address those concerns, respond to them, and attract that investment.

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

From what I've seen, there is a development in southern Saskatchewan in which the great gaps in the federal laws and provincial legislation are going to have to be addressed in the development of a potash mine. That's a huge issue. Could you help clarify how the environmental portion would be addressed?

[Andrew Beynon]

Just expanding upon Kris Johnson's answer, there are two things.

One is that when you look at the terms of the Indian Act, there clearly is a regulatory gap. For example, the Indian reserve waste disposal regulations are one of the only environmental controls for development, and as I recall, the maximum penalty that can be imposed is $100. By way of contrast, in the FNLM regime the authority to make environmental protection laws is set out, but they have to include standards equivalent to those that apply on the neighbouring provincial lands around them, which is getting at the issue of a gap in regulation compared with neighbouring lands.

It may not be possible to expect that FNLM first nations would have the resources to fully close that gap, particularly with a major industry such as potash development. It is up to the FNLM first nations—they would need to consider this themselves—but for a very large-scale economic development they might want to use the option of working with Canada under the First Nations Commercial and Industrial Development Act, FNCIDA, as it is sometimes called, which allows Canada to establish regulations to control major commercial and industrial developments on reserve.

I would just note that this legislation is optional. It depends upon a band council resolution from the first nation, if they want to manage economic activity of as massive a scale as that.

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

I come from a law enforcement background and have lived and worked on the reserves. I've had some experience with matrimonial property. Maybe you can elaborate further on that.

[Andrew Beynon]

It's a good question.

Under the Indian Act there is a gap in the application of matrimonial real property laws on reserve. The federal authority under class 24 of section 91—your federal legislative authority—over lands reserved for the Indians creates a barrier to the application of provincial laws regarding the division of matrimonial property; it's a barrier on the reserve lands, which are within federal legislative authority.

That's not to say that all elements of family relations law provincially don't apply. They can apply contractually and they can apply between individuals, but to the extent that provincial law governing the split of matrimonial real property is an issue, there's a barrier to its application on the reserve, and the Indian Act leaves it as a gap.

Under the FNLM legislation, first nations are required to establish a matrimonial property regime, so that gap is solved.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Beynon.

Mr. Genest-Jourdain has five minutes.

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

Ms. Dupuis, I'd like to ask you a quick question.

Ultimately, who will train the first nations land managers? You know that the literacy level in the communities is fairly low. But we're talking here about land management and land entitlement. This usually requires a bachelor's degree. Who will manage this and ensure that the training is provided to the community members?

I have another question related to that. Will first nations land managers be band council employees?

On page 11 of the document I was given, there is discussion of responsibilities that will be assumed by the first nations. What happens with problems related to accountability for decisions made by a band council? This is a real problem right now. As you know, elections are held every three or four years. When the elected members are deposed, it's very hard to go back and hold them responsible for decisions that were made by the previous council.

[Isabelle Dupuis, Acting Director, First Nations Land Management Directorate, Community Opportunities Branch, Department of Indian Affairs and Northern Development]

Thank you very much. Those are excellent questions. I'll try to do my best to give you a proper answer. I may ask my colleagues for help, since these are very important matters for the committee and for parliamentarians.

First, about the abilities of the land managers, we have a lot of tools in place to help them, a lot of programs. My colleagues mentioned the Lands Advisory Board, which is really a partner. These are people who work very hard with us to ensure the regime's success.

I would also like to mention that we have colleagues in the regions who provide continuous support to land managers. When land managers take on these very serious responsibilities, our colleagues in the regions ensure that they have the essential tools for the regime to be successful.

[Andrew Beynon]

I would add a very brief comment.

First, does it have to be employees of the band council? No. The first nations have the capacity to decide, for example, to hire other competent individuals.

Second, with regard to accountability, we need to remember that, in the land codes, the community itself must prescribe rules for the government of the band council.

Third, for matters related to elections, we need to remember that it's a part of the Indian Act that is not affected by the first nations land management regime. So it's pursuant to the Indian Act.

[Isabelle Dupuis]

I would like to add that we are really working with these managers to ensure that the funds are there, of course, so that they are able to take on these responsibilities. This isn't being done alone; we have a true partnership with the Lands Advisory Board, which is an important partner.

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

If I'm understanding you correctly, a sort of tutorship will be in place in the community for several years to ensure that things are going well.

I had heard that Université Laval would probably provide training. Is this still what's happening?

[Isabelle Dupuis]

I believe we are in the process of seeing which universities would be the best or what the best way would be to give the courses that are truly essential and to provide continuous training at all levels.

I would like to go back to another very important question as well. The Lands Advisory Board and the Resource Centre are partners that are really going to support the first nations at every stage.

My colleagues mentioned earlier that there were two stages, the development phase and the operational phase. So it's important to support the first nations at every stage, and we have the tools in place to do so.

It was also mentioned that the legislation is really young. But we are still trying to review the practices in place to maintain effectiveness.

We are also consulting the evaluations and audit reports of the Auditor General, who mentioned this idea of ability.

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

Will you have coercive power should there be influence-peddling or abuses along the way? Do you or someone in your organization have the mandate to ultimately see to it that coercive power is exercised in the community?

[Isabelle Dupuis]

I'll let Mr. Benyon answer that question.

[Andrew Beynon]

It's an interesting question. The federal funds granted to the first nations are done so in the context of all federal funding. If there are management problems, the necessary resources in our funding agreements could be used.

As for environmental matters, once again, we need to remember that the Canadian Environmental Protection Act, for example, continues to apply. So if some problems come under federal jurisdiction, we have the power to react.

[The Chair, Conservative, Chris Warkentin]

Thank you very much, Mr. Beynon.

Mr. Boughen, for five minutes.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Chair.

First of all, let me extend a welcome to you, joining with my colleagues. We appreciate the time you're giving us here this morning.

Just to clarify my own thinking on the framework agreement, is the FNLMA a framework agreement with self-government arrangements? How would you describe that? Could you flesh that out a little bit?

[Andrew Beynon]

Thank you. It's a good question.

The framework agreement is really quite detailed and does describe the intentions of the parties regarding self-government authority of first nations: the land management authority, the authority to dispose of parcels of land, plus law-making powers. So it's an integrated system of self-government focused on those issues.

The federal legislation gave legal effect to the framework agreement. I'm sure if you ever have some chiefs of the first nations who operate under the legislation come before you, they'll place a great deal of emphasis on the importance of the fact that there is an agreement between Canada and the first nations, and that's an integral part of what is given the force of law.

[Ray Boughen, Conservative, Palliser, SK]

You mentioned Westbank and Tsawwassen. What kinds of arrangements do you have in the regime with those two parcels of land?

[Andrew Beynon]

They operated under the FNLM regime for a number of years, but when they reached a stage where they decided upon a comprehensive self-government regime extending to a wider range of issues than land, there was federal legislation enacted to give effect to that change. The federal legislation specified Canada's agreement to a wider range of self-government, and through transitional provisions, it turned off the application of the FNLM regime.

[Ray Boughen, Conservative, Palliser, SK]

Thank you very much, Mr. Chair.

[The Chair, Conservative, Chris Warkentin]

I should ask the witnesses if you are okay to extend your time here until we finish our second round. Thank you. I appreciate that very much.

Go ahead, Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

Thanks, Mr. Chair. Thank you to the witnesses for being here today. It's a really interesting subject.

I have a question about the environmental process. Currently under the Indian Act, what are the regulations that govern...? Are they provincial regulations that are governing the environmental assessment?

[Andrew Beynon]

The answer, unfortunately, as I indicated earlier, and I think my colleague Kris Johnson did as well, is that there really is an environmental gap under the current Indian Act. I think that's an important issue for parliamentarians to consider. It has several dimensions.

First, in the Indian Act you won't find a provision that deals with band councils specifically having responsibility or having authority even, clearly, to deal with environmental assessment processes as part of their decision-making as governments.

Second, when it comes to environmental protection and control of environmental issues, when you look at the scope of the bylaw-making powers in the Indian Act, they're very restricted. It's very difficult for first nations, within the scope of the bylaw-making authority, to create much in the way of environmental protection.

Third, under the Indian Act there are federal regulations pursuant to the Indian Act, which I referred to earlier: the Indian reserve waste disposal regulations. They are very limited in scope, and the penalty for non-compliance with those Indian reserve waste disposal regulations is very small. If I recall correctly, it's a $100 maximum financial penalty, for example.

When you look at reserve lands in terms of both environmental assessment issues and environmental protection issues, there are some inadequacies in terms of first nations authority. Again, though, I would caution about a couple of points.

To the extent that provincial environmental laws don't regulate the use of land but regulate the conduct of individuals, those laws can constitutionally have application. To the extent that provincial laws control the use of land for sound environmental reasons, those laws stop at the border on reserve.

Federal laws apply to the federal lands that are reserve lands. So again, the Canadian Environmental Protection Act, with its careful control of toxic substances, ocean dumping, and issues such as those, does apply. The federal Fisheries Act applies as federal law. The Canadian Environmental Assessment Act applies as well, as federal legislation, but it's oriented to controlling what federal departments do in terms of decision-making, expenditures, and so on. It's not about the band councils.

What the FNLM regime does is several things. One, it specifies a requirement for an environmental assessment process for the government decision-maker under the FNLM regime. That's one change from the Indian Act.

Two, it sets out--

[Dennis Bevington, NDP, Western Arctic, NT]

When it comes to those environmental assessment processes, are there a variety of processes that are legitimized under the process? Can you have a simple screening? Do you have to go to environmental assessment? How is that determined? Through what process is the depth of environmental assessment developed? Is it through the first nations' own regulations?