Whether it’s a landfill, a highway or a large power plant, one of the main elements of any decision to site a big piece of infrastructure (in any jurisdiction) is the area’s regulatory environment. For facilities subject to federal regulation or funding, the Canadian Environmental Assessment Act applies. Each province has its own EA regime superimposed on the federal requirements, to which they in fact take a front seat. Provincial and Territorial EA requirements are a huge issue for project proponents, especially in jurisdictions where they’re onerous.
The levels of waste infrastructure development can be thought of as a barometer for the impact the respective EA regimes have in various jurisdictions. For instance, Alberta has a lot of landfill capacity, while Ontario is experiencing a shortage (and therefore exports much of its waste).
An interesting alternative that pops up now and again is First Nations lands.
First Nations have unique powers and responsibilities within confederation. A long line of cases (including from the Supreme Court of Canada) provide guidance regarding the constitutional rights of First Nations peoples. Among the better known are those pertaining to resource extraction (e.g., fishing, hunting or forestry) which aboriginal peoples can sometimes practice in a way that differs markedly from non-aboriginal people; this will likely expand as self-governance increases.
First Nations are interested in development activities that benefit their constituents, and this includes First Nations communities that don’t have access to natural resources that lend themselves to commercial exploitation. In communities close to highways or urban centres, development activities tend to be more of the conventional commercial kind.
In this context, the potential for waste management projects exists for First Nations.
A recent article in the Globe and Mail newspaper referred to a company known as First NRG as a company based in Hogansberg, New York on the St. Regis Mohawk Reserve. First NRG is being touted as having a $16 million contract with unnamed companies to burn millions of tonnes of Toronto-area waste.
Simon Ramana is cited in the Globe article as the New Zealander claiming to be the inventor of a gasification technology to be used by First NRG. He has stated that the technology uses “thermal reduction” to turn solid waste into gas that is, in turn, burned to create electricity. The company apparently has plans to build plants on the Oneida Nation Lands near London, Ontario and at the Akwesasne Reserve across the Canada/US border from St. Regis (on Cornwall Island).
Ramana apparently said that Oneida Plant would be starting up at the beginning of June this year and that the Akwesasne site could open as soon as six months after. In Ontario, where over three million tonnes of waste is shipped to Michigan each year, this might sound like a promising addition to the waste management infrastructure. However, the story has some strange sounding elements as the Akwesasne band counsel apparently advised the newspaper it hadn’t received any application for a gasification plant on its land. Moreover, statements that the technology is also to be introduced sometime soon in the District of Columbia in the United States are also apparently unknown to local authorities in that region.
Setting aside the slightly mysterious aspect of this report, the proposal reminds us that EA approvals on First Nations lands are substantially different than those elsewhere in the province. Indeed, Ramana was quoted as saying that the facilities will require no government approvals or EA because they would be on native land. Interestingly, while it’s clear that provincial regulatory requirements do not normally have the same application on First Nations lands, it is also possible that federal regulatory requirements do not apply in certain circumstances.
The EA requirements that proponents face in choosing to locate on First Nations lands are different from those for undertakings to be located off reserve. Exactly how so will be demonstrated if these projects move forward. It may not be as easy to locate waste facilities on these lands as the proponent thinks, and the First Nations communities will certainly have views on any such developments.
One thing is for sure; if the regulatory environment does not improve in a manner that brings increased certainty to proponents and other stakeholders in provinces like Ontario where infrastructure is required, there will be increasing pressure on places like First Nations lands where environmental requirements (or the regulatory burdens associated with those requirements) are not as stringent as elsewhere in the province. The will likely not be the last such attempt.
It will be interesting to see what happens with First NRG and we’ll report any developments in the magazine and website.
Adam Chamberlain is a certified specialist in environmental law with Aird & Berlis in Toronto, Ontario. Contact Adam at firstname.lastname@example.org
Editor’s Note: Reader’s will notice that this column’s name has changed from “Final Analysis” to “Blog.” Adam Chamberlain is now added to the masthead as a contributing editor and will continue to write in this space from time to time, but the new column will be opened up to other editorial-style articles from our regular contributors.