Follow-up report to the Standing Committee on the Canadian Environmental Protection Act: chapter 6

6 Government operations and federal and Aboriginal land

In Canada, environmental protection is generally provided by a mix of federal and provincial/territorial laws. However, under the Constitution of Canada, provincial environmental laws do not necessarily apply to government operations and federal land (the federal house) and on some aboriginal lands. This creates an environmental protection regulatory gap for matters that are otherwise covered under provincial and municipal laws, such as regulations and permit systems to address emissions, effluents, waste handling, facility permitting, and source water protection.

Part 9 of CEPA provides broad regulatory authorities to help address environmental protection for the federal house and on aboriginal lands. “Aboriginal land” is specifically defined in CEPA as reserve lands and certain lands under land claim or self-government agreements, if the land title remains with the Crown. Any regulations made under part 9 must apply to all federal departments, boards, agencies, works and undertakings, and Crown corporations, as well as on federal and aboriginal lands and the activities on those lands. There are currently two regulations under part 9, regulating petroleum storage tanks and halocarbons on federal and aboriginal lands.

In addition to part 9 of CEPA, other legislative tools are available which may help to address some aspects of environmental protection on First Nations reserve lands. For example, the Wastewater Systems Effluent Regulations made under the Fisheries Act in 2012 apply to the wastewater systems of over 200 First Nations. In addition, the First Nations Commercial and Industrial Development Act enables project-specific environmental protection regulations, at the request of a First Nations wishing to pursue a large-scale commercial or industrial project on reserve. The Safe Drinking Water for First Nations Act authorizes the development of federal regulations governing the provision of drinking water, water quality standards, and the disposal of waste water in First Nations communities. No regulations have been made under that act to date. The First Nations Land Management Act also provides participating First Nations with certain authorities for land management and environmental protection. As the committee observed, despite these tools, there remains a substantial gap in the level of environmental protection on First Nations reserve lands compared to provincial and private lands.

In its report, the committee recommended amending CEPA “[…] to provide for a legislated framework and a promulgated regulatory regime on federal lands” (recommendation 76, sub-bullet 1), that “[…] the government develop specific objectives, guidelines and codes of practice on federal lands excepting aboriginal lands” (recommendation 76, sub-bullet 2), and that “[…] the federal government initiate consultations with Indigenous peoples on the development of specific objectives, guidelines and codes of practice on aboriginal lands and promulgate a regulatory regime” (recommendation 76, sub-bullet 3).

The government commits to further engagement on a whole-of-government approach to addressing the environmental protection regulatory gap on federal lands with a focus First Nations reserve lands. The government recognizes that engagement with Indigenous communities, particularly with First Nations communities, is essential to determine the most appropriate path forward. The government is committed to working collaboratively with First Nations, on a nation-to-nation and recognition of rights basis, to explore options to address the environmental protection regulatory gap on reserve lands. This commitment is consistent with the Recognition and Implementation of Rights Framework as well as Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples.

Preliminary informal feedback from First Nations individuals suggests that a range of options should be considered to address aspects of this gap. As part of the engagement process, the government may consider potential amendments to CEPA, including those suggested in section 7.1 of the discussion paper, which could make part 9 a more flexible and robust tool to help address the environmental protection regulatory gap for the federal house in general, and on First Nations reserve lands in particular.

For any regulatory regime on reserve lands to be effective, the technical and financial capacity of First Nations to implement and enforce such a regime in their communities must also be addressed. Proceeding with any regulatory regime, without ensuring adequate capacity to satisfy the regulatory requirements, may do little to meaningfully address the gap. In this respect, a comprehensive regulatory and policy approach, which considers the full range of relevant issues, will be explored.

As stated above, the committee also recommended taking action on federal lands. In order to develop regulations that focus only on federal government lands and property, a legislative amendment would be required to decouple federal lands from aboriginal lands under part 9 of CEPA. The government recognizes the importance of action on government lands and properties and has taken action towards transitioning to low-carbon and climate resilient operations, as outlined in the Greening Government Strategy).

The committee also made several other recommendations that reference Indigenous Peoples. These recommendations are addressed in the “cooperation with Indigenous governments” section of chapter 8 of this report.

6.1 Engagement

Given the importance of ensuring that First Nations are fully engaged in the development of appropriate solutions within the context of a nation-to-nation relationship and the recognition of rights, the government commits to returning to the committee once engagement has taken place with a path forward on addressing the environmental protection regulatory gap on First Nations reserve lands, including possible improvements to authorities in CEPA that may be used to enhance environmental protection on First Nations reserve lands.