Environmental Legislation

Something which complicates the situation at Aamjiwnaang is the way in which Canada’s environmental law works on First Nations reserves, specifically with regard to issues of jurisdiction.  Canada’s constitution gives jurisdiction of First Nations issues to the federal government, much of this outlined within the Indian Act.  On the other hand, a major part of environmental law in Canada is the Environmental Protection Act — this document helped to set up many of the conventions of Canadian environmental law today.  An unforeseen consequence of the division of responsibilities set up within this legislation is that the way in which environmental law functions on a First Nation reserve is left undefined.

The Indian Act was first introduced in 1876, just nine years after the Dominion of Canada had been formed out of former British colonies.  The Constitution Acts first written in 1867 gave parliament exclusive right to make laws pertaining to “Indians and lands reserved for the Indians.”  The Indian Act of 1876 extended and expanded on these parliamentary rights. Among other things, this Act defined what the term “Indian” meant in a legal context and established the Department of Indian Affairs and Northern Development.  The Indian Act defines a reserve as a tract of land “held by Her Majesty for the use and benefit of the respective bands for which they were set apart.”  In this way, a reserve can be geographically within a province, but not properly within the jurisdiction of its laws.

Talford Creek, on the Aamjiwnaang reserve, is so polluted that it is completely devoid of life. Reserve residents have witnessed dumpings of unknown substances into the creek, but nothing can legally be done about it due to the loophole in environmental legislation.

The difficulty one encounters when looking at environmental law in Canada is that much of the regulation of pollution within Canada is handled on a provincial level.  Often this is done through the use of permits allowing some to emit various kinds of pollution out into the surrounding area.  What can arise is a situation where a company or individual has permission to release substances into within a province, but is close enough to a First Nation reserve that it can be simpler to dispose of the pollution within the reserve instead.  The First Nation reserve becomes a legal no man’s land where provincial law is being broken seemingly in an area it was meant to cover, but those who were meant to enforce that law are unable to actually do anything about it.

While there is a section of the Indian Act which states that laws of general application within a province can also apply to First Nation reserves, it remains unclear as to how such laws would be enforced within a reserve.  Part of the difficulty is, perhaps, that the question of environmental regulation on a reserve is one which is not one which has been fully considered by the legislative bodies in Canada.

References

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