By Keli Just
Select First Nation communities across Canada have chosen to join the First Nations Land Management Regime (FNLM). The FNLM Regime operates under the Framework Agreement on First Nation Land Management, which is a government-to-government agreement that was ratified by Canada in 1999.
The main goals of the FNLM Regime are to facilitate the creation of a streamlined and enhanced economic development climate on reserve lands, while maintaining a high level of environmental protection and stewardship. The Framework Agreement provides signatory First Nations with the option to manage their reserve lands under their own Land Codes. Until each of these First Nation communities develops and approves a Land Code to take control of its reserve lands and resources, federal administration of their reserve lands continues under the Indian Act.
PINTER & Associates Ltd. (PINTER) provided technical engineering expertise, environmental program development and legal framework guidance for FNLM Regime member Nations. Innovative techniques were developed during environmental site assessment (ESA) work to nurture community engagement, collect information from various sources, gather oral history, carry out site inspections, manage the information and data, and to prioritize sites requiring further work.
The technical engineering principles involved in environmental assessment, remediation, and development of laws and regulations governing the environment and land development were the foundation of this process.
PINTER has assisted 12 member Nations to date through various aspects of this process. There are currently a total of 128 First Nations across Canada that are members of the Framework Agreement and FNLM Regime. Sixty-one of those Nations have their own Land Code and are responsible for their lands under the Framework Agreement. There are also approximately 61 other Nations that have expressed interest in joining the process and Regime.
Goals of the First Nations Land Management Regime
Each First Nation has varying objectives for the FNLM process, but the overall goals are similar and include: assessment, identification and remediation of environmental impacts on reserve land; engaging the community to determine environmental and economic priorities; and identifying traditional practices and customs that relate to environmental stewardship.
The development of a comprehensive environmental management and protection regime, development of environmental assessment and protection law regimes and a sustainable, appealing economic development climate on reserves are goals shared by member communities.
Environmental Site Assessments
Through the FNLM Regime process, First Nations can opt out of the land provisions of the Indian Act and regain authority and control of their lands from the federal government. The land is to be transferred to each Nation in as close to pre-impact condition as possible. To achieve this goal, PINTER works with communities to complete the required ESAs for each reserve. The environmental assessment includes a Phase I assessment, Phase II investigation and delineation work, and the Phase III remediation of identified impacts on reserve lands.
Phase I ESA
The Phase I ESA involves assessment of every building and development on reserve, including cursory inspections of each residential septic system. Each active and historical dumpsite and ravine dump, fuel storage site, historical bluestone pit (fence post treatment) operation, vehicle salvage yard, agricultural chemical storage location, and culturally significant site identified by the community is visited, visually assessed, and catalogued. Typically, several hundred residences exist on reserve and each yard is visited and visually assessed during the Phase I ESA.
The results are presented to the community to allow each Nation to decide whether or not to proceed further with the process. Contrary to typical ESAs, this type of project has to consider cultural customs, taboos and sensitivities, as well as develop an efficient method of obtaining historical information from the community, including from seniors and elders.
Phase II ESA
The majority of the Phase I ESAs that PINTER has completed have been followed up by the completion of limited and detailed Phase II ESAs. Based on the findings of the Phase I ESA, a prioritized list of potentially impacted sites on reserve is developed.
A variety of environmental contaminants have been encountered during the Phase II ESA work. These include petroleum hydrocarbons (PHCs), copper sulfate, metals, dioxins and furans, livestock waste and human waste effluent, agricultural chemicals, mould and fungus, asbestos, mercury and polychlorinated biphenyls.
Phase II ESA work includes environmental drilling and soil sampling, groundwater monitoring, well installation and groundwater sampling, test pit excavation, surface water sampling, and hand auger soil sampling. While each sampling technique is not unique, applying them all to one project to ensure the investigation is efficient and cost-effective requires an innovative approach and consistent overview of long-term goals.
Phase III ESA
Once identified environmental impacts have been delineated and quantified, remediation is carried out. PINTER utilizes a variety of recognized methods to clean up impacts to federal Canadian Council of Ministers of the Environment (CCME) and Health Canada guidelines for both soil and groundwater.
Both in situ and ex situ techniques and processes are employed to remediate identified impacts. Excavation and on-site remediation of PHC impacted soils via landfarming techniques has been completed at numerous locations. Efforts are made to return reserve land back to pre-impact conditions, while working within available federal funding constraints. Remediation of impacts on reserve land helps to enhance sustainability and empower each community to take responsibility for their future actions.
The ESAs and remediation of legacy sites also provide context and examples to First Nation Band Councils of negative environmental impacts, increasing their understanding of proper environmental stewardship and practices.
Environmental Management and Protection Program
Once First Nations assume control over their lands, they have the daunting task of developing a comprehensive environmental protection framework and environmental law regime. Each Nation is tasked with managing and directing business development, utilization of natural resources, and protection and assessment of their lands. Management and operation of an environmental regime is a complex undertaking that involves many stakeholders and affects both on and off reserve residents.
The mechanism typically chosen by First Nations is an Environmental Management and Protection Program (EMPP). These are essentially operational guides for First Nations that incorporate all aspects of a Nation’s environmental protection and law regime. The foundation for each EMPP consists of the environmental knowledge gained during the ESA process, the community’s environmental goals and priorities, each Nation’s traditional knowledge and practices, and the First Nation’s Land Code.
Environmental Protection and Assessment Law Regime
First Nations under the FNLM Regime are also required to develop an Environmental Protection and Assessment Law Regime to regulate and manage economic development and resource utilization on reserve land. Nations have three options for law regime development: full adoption of provincial legislation, hybrid adoption of provincial legislation, or development of unique Nation-specific laws and regulations. Environmental regulations on reserve need to meet or exceed existing provincial and federal legislation in place within the province each Nation is located.
Environmental Assessment (EA) law and processes are required to either meet or exceed existing federal EA laws. Establishment of Nation-specific EA laws and structure helps to ensure that potential impacts to the environment are identified and steps are taken to properly mitigate these prior to development approval.
The environmental protection regimes and environmental law regimes developed through this project for First Nations are based on recognized environmental engineering principles and established provincial and federal environmental legislation.
Considerable effort is employed to harmonize each Nation’s EMPP with their developed environmental law regime to ensure continuity between the two processes and facilitate efficient management of each Nation’s environmental regime.
Project challenges and complexities
As with any undertaking, there are challenges that arise during the multiple phases of these projects. Numerous components to this process can span several years of assessment and development, which lead to various complications and issues. Working with multiple First Nations simultaneously, each with their own community and environmental issues, perspectives, priorities and political agendas, was a challenging aspect of this process for PINTER and for many consultants.
Maintaining a consistent approach through governmental mandate changes and balancing First Nation expectations with government agency mandates were also challenges during this process.
Other project challenges included addressing a variety of environmental liabilities accrued over the years on First Nation land, developing community engagement programs, meeting First Nation expectations, and helping the First Nation develop a land management process. Existing environmental site assessment techniques were adapted for this type of project and new techniques were developed.
Social and economic benefits
An underlying goal for this type of project and the First Nations Land Management Regime is to provide member Nations with the ability to easily and effectively facilitate and manage economic development on reserve land. The ultimate benefits are vibrant, self-sustaining First Nation communities that contribute to Canadian society and the Canadian economy.
There are numerous social and economic benefits to First Nations Land Management Regime member First Nations and to surrounding local and provincial jurisdictions. The outcome grants First Nations greater freedom for development on their land, including business and investment on reserve, and for First Nation entrepreneurialism and employment opportunities for Band members.