Contributions to First Nations for the Management of Contaminated Sites

1. Introduction

Indigenous Services Canada (ISC) has developed a policy and program for managing contaminated sites within its jurisdiction. The following objectives apply to the Contaminated Sites on Reserve Program (CSOR):

• to manage contaminated sites by following the Treasury Board Policy on the Management of Real Property and by applying the Contaminated Sites Management Working Group's Federal Approach to Contaminated Sites and its recommended guidelines and standards including those from the Canadian Council of Ministers of the Environment (CCME) and the Canadian Standards Association (CSA)
• to apply the following criteria in determining the priority for managing contaminated sites:
  • human health and safety
  • legal and claims obligations
  • significant impacts on the environment
  • concerns of First Nations and other stakeholders
• to work collaboratively with First Nations and other entities to manage contaminated sites located on reserve lands and on any other lands under ISC's custodial responsibility
• to manage the department's current and future policies and programs in order to prevent future liabilities to the Crown from the creation of new contaminated sites
• to follow the federal polluter pays principle

Funds for the management of CSOR contaminated sites are considered a departmental funding pressure and will be prioritized against all other departmental funding pressures through risk analysis and risk management. ISC's minister, on the recommendation of ISC Executive Management, will determine which pressures to fund, in whole, or in part, each fiscal year.

Site specific priorities will be determined on the basis of data generated by the Environmental Stewardship Strategy Information Management System (ESSIMS) and criteria under the National Contaminated Sites Classification System (NCSCS). Remediation work will be carried out in accordance with regional management plans and projects will be funded through contribution agreements between each individual First Nation and the department. The amount of funding to be provided under any agreement with a First Nation will be based upon an environmental assessment of the work required.

2. Legal and policy authority

Department of Indigenous Services Act, S.C. 2019, c. 29, s. 336, s. 6(2).

3. Purpose, objectives and expected results

The objective of this contribution program is to ensure the removal of known contamination from NCSCS class 1, 2 and 3 contaminated sites for which a Crown liability has been established and documented.

Class 1 sites are contaminated sites where available information, assessment, indicates that action is required to address existing concerns for public health and safety. Class 2 sites are those sites where available information, assessment, indicates that there is a high potential for adverse off-site impacts, although threat to human health and the environment, public health and safety, is generally not imminent and action is likely required. Class 3 sites are those sites where available information indicates that the site is currently not a high concern.

4. Eligibility

First Nations living on lands with known contaminated sites, bands or settlements and communities, district councils or chief councils, tribal councils, First Nations organizations, associations and institutions will be eligible to receive this funding.

5. Type and nature of eligible expenditures

Eligible expenditures under the Contaminated Sites on Reserve Program can be generally divided into environmental site assessment, remediation and preventive activities. These activities are detailed below.

Environmental site assessment
Types of expenditures would include site visits, report writing for recommendations and record keeping, sampling and lab analysis of potential contaminates and the installation and operation of monitoring wells.

Remediation
Types of expenditure anticipated would include site work using heavy equipment for excavation, removal, stock-piling, grading and transportation of contaminates, monitoring wells, sampling and lab analysis for assessing remediation results and report writing for verification, confirmation and record keeping.

Preventative actions
Types of expenditure anticipated would include site visits, data collection and report writing for the development of inventories, repairs, replacement or decommissioning of assets to minimize or eliminate releases or emissions that may result in contaminated sites and awareness sessions, training processes and communication mechanisms to owner or operators of assets that may through their operations and practices result in a contaminated site if not operated in a due diligent manner.

Any of the above noted activities may also include the use of consultants, engineers or any other necessary expertise.

6. Total Canadian government funding and stacking limits

Stacking provisions do not apply, as ISC is the only source of funds for the planned remediation activity.

7. Method for determining the amount of funding

Contaminated Sites on Reserve Program funding allocations for environmental site assessment, remediation, risk management and long term monitoring are prioritized regionally and nationally by taking into account various factors such as:

• site classification score
• human and ecological health receptors
• type of land use, for example, residential

Funding is limited by the amount of available funds. Other factors that further determine funding allocations include legal obligations, economic development opportunities and cost-sharing opportunities.

Pollution prevention funding is determined based on review and consideration of the proposal and taking into account:

• relevance of the proposal to the program's objectives and expected results
• expected economic benefits accruing to Indigenous individuals, business or communities
• demonstrated need for federal funding

Contributions will be determined based on the minimum level amount to ensure that the project or initiative is realized in accordance with the proposed time-frame, scope and location. Funding will be limited by the amount of available funds.

8. Maximum amounts payable

The maximum amount payable under the Contaminated Sites on Reserve Program, Responsible Federal Stewardship program activity, for each project is $25 million annually.

9. Basis on which payments will be made

This program will utilize the funding approaches outlined in appendix K of the Directive on Transfer Payments to provide funding to Indigenous recipients. In addition to standard contributions funding arrangements, flexible funding arrangements, including fixed, flexible and block, may be utilized when recipients meet the eligibility requirements of the funding approach.

10. Application requirements and assessment criteria

Before entering into a funding arrangement, ISC shall confirm its authorities to enter into an agreement with the applicant and to fund the proposed activities.

Recipients shall comply with the Conflict of Interest and Post-employment Code for the Public Service and the Conflict of Interest and Post-employment Code for Public Office Holders. Where an applicant employs or has a major shareholder who is either a current or former, in the last 12 months, public office holder or public servant in the federal government, compliance with the code(s) must be demonstrated.

Regional offices ensure that CSOR's inventory of contaminated sites is regularly updated and that a remediation plan is ready for the commencement of any site management activities. There is an annual exercise, through which CSOR sets the priorities for remediation based on the physical status of the site and available funding. Where a site is identified on a First Nations reserve or settlement, ISC engages the First Nation to develop a remediation plan for the year. CSOR staff monitor site activities through the assessment, remediation and monitoring phases of the planned project. Throughout the project, CSOR staff regularly update the contaminated sites inventory in order to accurately reflect the most current site status and project expenditures to date.

11. Due diligence and reporting

ISC has in place departmental systems, procedures, authorities, controls and resources for ensuring due diligence in all aspects of the management and administration of this transfer payment program.

12. Official languages

Where a program supports activities that may be delivered to members of either official language community, access to services from the recipient will be provided in both official languages where there is significant demand and Part IV of the Official Languages Act is applicable. In addition, the department will ensure that the design and the delivery of programs respect the obligations of the Government of Canada as set out in Part VII of the Official Languages Act.

13. Intellectual property

Where a contribution is provided for the development of material in which copyright subsists, conditions for shared rights will be set out in the funding agreement.

14. Repayable contributions

Provisions for repayable contributions do not apply. Any contributions made to private firms under these programs are not intended to generate profits or to increase the value of a business.

15. Redistribution of contributions

Where a recipient delegates authority or further distributes contribution funding to an agency or a third party, such as an authority, board, committee, or other entity authorized to act on behalf of the recipient, the recipient shall remain liable to the department for the performance of its obligations under the funding agreement. Neither the objectives of the programs and services nor the expectations of transparent, fair and equitable services shall be compromised by any delegation or redistribution of contribution funding.

Recipients have full independence in the selection of such third parties and will not be acting as an agent of the government in making distributions.

16. Other terms and conditions

The recipient shall adhere to the management and accountability regimes outlined in the agreements and include:

• clear statements of expectatio<pns, roles and responsibilities, including financial roles and responsibilities for the initial and final recipients
• transparent and open decision-making processes
• demonstration that the eligibility requirements are being met
• provision for ongoing assessment by ISC to ensure that performance is in line with expectations and that the initial and final recipients exercise due diligence
• provision for ISC's right of access to relevant documents and premises of the initial recipient and, where warranted, the final recipient
• requirements for compliance and financial audits
• provision for ISC to receive regular financial and performance reports from the initial recipient, certified by an officer of the company, including if appropriate:
  • annual audited financial statements with an external auditor's report and opinion
  • specification of admissible administrative costs that can be applied to the contribution by the initial recipient based on an accounting of expenses
  • any completed evaluations funded in whole or in part by the transfer payment program
• provision that ISC obtains from the initial recipient, or has ready access to, a copy of all signed agreements with final recipients
• a description of the redress provisions for ultimate recipients affected by decisions of the initial recipient, provision for appropriate reviews, program evaluations and audits