Feds propose new environmental law

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The House of Commons standing committee on environment and sustainable development completed its mandated five-year review of the Canadian Environmental Protection Act (CEPA) in June, 1995. In December, 1995, Environment Canada responded with a proposal for a revised CEPA, and is inviting public comment on the document.

The government points to five items in the 82-page document titled CEPA Review: The Government Response, that it says are "likely to be of interest to Aboriginal peoples."

Every one of the five areas are more likely to cause Native people headaches than simply to interest them, if the critique of the Environmental Protection Act revisions prepared by Dale Komanchuk, a treaty researcher based in Vancouver, carries any weight.

First, the government proposes the creation of a CEPA national advisory committee comprised of representatives of federal, provincial and territorial governments and Aboriginal peoples. In asking for public input, however, an Environment Canada bulletin points out that there will be no government money available to enable people's participation on the proposed committee. The government suggests conducting meetings by conference call to allow more people to have their say.

According to Komanchuk, such a committee would threaten the government-to-government relationship between Canada and First Nations by including provinces and territories in the process.

Komanchuk further warns that Aboriginal representatives would only be "consulting" with the Environment minister, who will have increased powers to do as he likes on Indian lands, and who will be able to ignore First Nations; inherent jurisdiction to protect their own environment.

The lack of funding for committee participants weights effective participation entirely in favor of the bureaucrats, who can afford the best legal and technical advice, Komanchuk points out.

He cites the problem of naming a single representative of a large domain, such as B.C., where there are pro-treaty and pro-sovereignty groups, off-reserve and Metis groups and other Aboriginal people to be considered. Further, he says the AFN does not have either the financial and human resources or the credibility with every group concerned to be the sole representative.

The second point that the government brings to the attention of Native peoples is that under a revised act, the minister of the Environment would be able to sign administrative agreements with Native people that are similar to the ones it makes now with provinces and territories. In Canada's view, this would allow Aboriginal people to administer Canada's environmental regulations and could include work-sharing arrangements between Native groups and Environment Canada.

While Komanchuk says the idea of First Nations having access to the same kinds of agreements that currently benefit provinces and territories with respect to employment and "capacity-building" among its administrators, technicians and enforcement officers may not be all bad, he raises a point that underlies the premise of the entire document. Native people would simply have a greater share of the duty of enforcing laws made in Ottawa by non-Natives.

The government's next planned incursion into Aboriginal jurisdiction "places virtually all lands under a single environmental code," Komanchuk states.

Leading into the third area where CEPA's amendments would affect Native people, Environment Canada's release says that CEPA "applies to all Canadians." It further states that CEPA regulations "apply to Aboriginal peoples just as they do to other Canadians."

The government proposes that Part VI of the current CEPA be replaced with provisions that bear out Komanchuk's point.

The new law would encompass reserves, lands subject to a comprehensive or specific claim agreement, and lands subject to a self-government agreement to which the federal government claims title or ownership. The new Part VI would also give the government authrity to control "the activities of non-Aboriginals on Aboriginal lands, so that the environment is not harmed."

Agreeing to let Ottawa's protection of the environment extend to controlling non-Natives' activities on Aboriginal lands would once again remove First Nations' inherent right to govern themselves, Komanchuk says.

Further, he indicates that non-Native governments do not incorporate traditional knowledge or view Mother Earth as being with her own inherent rights when making their decisions about what are good and bad environmental practices.

Since affected lands include air above and water upon those lands, he adds, and the federal government would have the sole say about what activities are safe or unsafe there, people like the Innu, who have a problem with jets flying over their hunting areas, would be powerless to stop it, unless they agreed to terms set by Ottawa.

The only lands the federal government says would not be covered by the amended CEPA are "aboriginal lands whose title and ownership reside with a particular Aboriginal People or another jurisdiction such as a province or territory."

The fourth point raised says the revised CEPA would allow "Aboriginal peoples with self-government regimes or operating under claims agreements" to seek exemption from the regulations.

The standing committee has recommended that Ottawa transfer authority to First Nations to protect the environment of their own lands. Although in August, 1995, Ottawa recognized the inherent right to self government, according to Komanchuk, it really means that only those First Nations that hash out a self-government agreement in line with Ottawa's preconditions will be "allowed" to apply for an exemption. Any First Nation that doesn't buy into Ottawa's idea of self-government would still be subject to the CEPA.

Finally, the proposal contains a commitment by the federal government to consult with Native people on future amendments to the act.

Komanchuk issues a warning here to. "A commitment to consult is not a commitment to listen or be bound in any way by what is being said. The government has in the past (and under this scheme will continue in the future) to do whatever it pleases on Aboriginal lands. The only difference this time, Komanchuk concluded, "is that Ottawa is asking Aboriginal people to give it a blank cheque of consent for these actions."

Windspeaker would like to acknowledge Dale Komanchuk, Treaty Researcher, EV Christensen Consulting in Vancouver for his contribution to this article.