2.9 Part 9: government operations and federal and Aboriginal land

The evaluation identified two expected outcomes for Part 9:

1. Federal operations and those of federal works and undertakings will be held to the same environmental protection and prevention standards as the communities in which they operate.
2. Operations on Aboriginal lands will be held to the same environmental protection and prevention standards as comparable operations on adjacent non-Aboriginal lands.

Members of the federal house are subject to federal laws, including the Canadian Environmental Protection Act (CEPA 1999). Under Canada's Constitution, however, provincial environmental laws do not generally apply to the federal house. This means that federal operations and land, including Aboriginal land, are, for the most part, not subject to provincial regulations or permit systems covering emissions, effluents, environmental emergencies, waste handling and other environmental matters.

Part 9 of CEPA 1999 is intended to enable the Government of Canada to address this gap. It provides that federal facilities and land, and Aboriginal land, can be covered by the same type of environmental regulations as entities regulated by the provinces and territories.

Part 9 also provides the authority for making environmental regulations or guidelines that can be applied exclusively to the federal house, to move the federal house towards the goal of "ensuring that its operations and activities on federal and Aboriginal land are carried out in a manner that is consistent with the principles of pollution prevention and the protection of the environment and human health" (as set out in the preamble to CEPA 1999).

The evaluation found that all relevant Ministerial obligations have been satisfied:

• Section 209(3)(a) - Offers to consult were extended to provinces and Aboriginal governments on the Federal Halocarbon Regulations, 2003, and on new draft federal storage tank regulations.
• Section 208 - The obligation to establish and consult on objectives, guidelines and codes of practice concerning government operations and federal and Aboriginal lands has not yet been triggered as such measures have not yet been proposed for the federal house.

The Federal Halocarbon Regulations, 2003⁸⁶ were published in 2003 to address releases, recovery and recycling of ozone-depleting substances and their halocarbon alternatives on federal lands. These regulations replace the Federal Halocarbon Regulations. The purpose of the regulations is to achieve an orderly transition from chlorofluorocarbons (CFCs) and halons to alternative substances and technologies and to address administrative issues that have been identified concerning the former regulations.

A federal fuel storage tank regulation is at the legal draft stage. These regulations, if finalized, will establish technical requirements for storage tank management by the federal house that are comparable to provincial counterparts.

Environment Canada is cooperating with Indian and Northern Affairs Canada and Health Canada on a First Nations Water Management Strategy. The February 2003 Federal Budget allocated $600 million over five years in new funding to improve infrastructure, operations and maintenance and monitoring programs for high- and medium-risk water and wastewater services on reserves.^xxx As a result, the Government of Canada announced that the First Nations Water Management Strategy will be implemented over a five-year period beginning in 2003 for First Nations communities located south of 60°N and in the Yukon. Environment Canada has been asked by Indian and Northern Affairs Canada to participate in the delivery of the strategy. Environment Canada's involvement will focus on wastewater management and certain source water protection activities.

Work has been initiated on three of the seven identified priority actions:

1. Compliance promotion and enforcement of relevant regulations and standards - Enforcement actions have been taken on the Federal Halocarbon Regulations, 2003. In fiscal year 2003-04, for example, there were 97 inspections and 73 warnings issued. Various regional compliance promotion efforts have been undertaken with respect to these regulations.
2. Risk management strategies and legislative and non-legislative instruments to address risks - A small number of instruments exist to address federal house risks, including the Federal Halocarbon Regulations, 2003 and the Manual for Federal Facilities to Address Mercury-containing Products. Other instruments are in development, including the federal storage tank regulations and the First Nations Water Management Strategy. Together, these measures cover a small portion of the overall set of issues.
3. Technical investigation of the status of federal house facilities and Aboriginal land - Environmental audits have been conducted across many federal facilities to assess the management of environmental issues. However, a comprehensive "roll-up" and analysis of this information have not been prepared. Regarding Aboriginal land, an overview of the environmental protection gap has been conducted, although a technical investigation has not been completed.

No evidence has been provided for the remaining four identified priority actions:

1. establishment of a focal point;
2. scientific assessment of risk from the federal house facilities and Aboriginal lands;
3. consultation in the federal house and with Aboriginal groups on the setting of objectives, guidelines and codes of practice (although these requirements are planned for the First Nations Water Management Strategy); and
4. standard and guideline development (again, guidelines are anticipated with respect to implementation of the First Nations Water Management Strategy).

The Department faces several issues and challenges with regard to environmental management in the federal house:

• The Government of Canada lacks comprehensive risk assessment and risk management strategies for the federal house and for Aboriginal lands. Data regarding many of the known risks and environmental impacts arising from federal operations and those on federal and Aboriginal lands are limited. This undermines efforts to establish a risk management strategy focused on priorities.
• There is no single focal point, either for the government as a whole or within Environment Canada in particular, for Part 9 issues.
• A coherent, government-wide set of objectives for managing environmental performance for the federal house is still not in place. Although various initiatives have been undertaken, there is an overall lack of a consistent approach. Different policies and objectives exist across the federal house with respect to environmental protection standards for federal operations and operations on federal and Aboriginal lands.
• There is no evidence of attempts to incorporate federal works and undertakings and Crown corporations into the scope of current activities. Program staff indicated that part of this challenge is the lack of a complete inventory of such works and undertakings.

While progress is being made on a small number of individual issues (e.g., fuel storage tanks, halocarbons, First Nations municipal water), given the current processes and progress, it is highly unlikely that either of the expected outcomes - i.e., holding federal operations and those of federal works and undertakings to the same environmental protection and prevention standards as the communities in which they operate; and holding operations on Aboriginal lands to the same environmental protection and prevention standards as comparable operations on adjacent non-Aboriginal lands - will be met.

Considerably more work needs to be done to create a strategic risk-based, focused and cooperative approach to the establishment of environmental protection standards for the federal house.