Environment Canada decided to undertake two series of consultations on their proposed Regulatory Framework for Wastewater; one series with Canada’s Aboriginal Peoples and the other series with all other Canadian stakeholders. This evaluation addresses the consultations undertaken with Canada’s Aboriginal Peoples.
Government of Canada policy requires that the Canadian public be consulted on all proposed legislation and regulations. The Supreme Court of Canada decided in November 2004 that Governments in Canada must consult with Canada’s Aboriginal Peoples when those Governments plan to undertake actions that may impact upon the constitutional or treaty rights of Canada’s Aboriginal Peoples. Canada’s Aboriginal Peoples are defined in the constitution to include First Nations, Inuit and Métis Peoples.
Environment Canada invited Aboriginal organizations and communities to 21 consultation sessions held in all provinces and territories across Canada, except Nova Scotia. First Nations in Nova Scotia were unable to participate because the tripartite process they employ had not sufficiently progressed to start their consultations before the deadline for the consultation sessions and the January 2008 deadline for comments to the CCME Development Committee. [2]
The purpose of the consultations was to seek input/comments on:
Environment Canada undertook to conduct a formal evaluation of the consultation processes it employed to consult with Canada’s Aboriginal Peoples. The objectives of the evaluation were:
The evaluation did not evaluate the ‘scientific content’ of the proposed regulations.
The primary methodologies employed to conduct the evaluation included:
Early during the evaluation process a major challenge was encountered. Canada’s Aboriginal Peoples differentiate between: (i) the Government’s view of public consultations as a process that encourages dialogue and the exchange of information; and (ii) their Aboriginal view of consultation between the Government and Canada’s Aboriginal Peoples as being a formal and often binding process akin to negotiations. For this reason the Assembly of First Nations, Inuit Tapiriit Kanatami and most of the Aboriginal participants at the EC led consultation sessions would not accept Environment Canada’s position that the wastewater consultation sessions constituted consultations with Canada’s Aboriginal peoples.
Conclusions and Recommendations
Conclusion #1: The primary and most pressing question, which is repeated several times during the conduct of this evaluation, is the need to define what a “consultation” is. Environment Canada did meet its obligation to consult based upon the Federal Government’s definition of consultation. The Aboriginal participants to the consultations, including their representative organizations, the Assembly of First Nations and Inuit Tapiriit Kanatami, disagree with Environment Canada and state that Environment Canada’s process of dialogue with them was not consultations. This has resulted in a situation that must be addressed.
Central to the disagreement is the word consultations. Canada’s Aboriginal Peoples employ the term consultations in a very different manner than does the Federal Government. If Environment Canada had employed a term such as public dialogue rather than insisting on using the term consultations, many if not most of the problems would not have occurred.
Recommendation #1a: Before continuing its consultations with Canada’s Aboriginal Peoples, Environment Canada needs to request that Treasury Board modify its 2007 Guidelines for Effective Regulatory Consultations by replacing the term consultations with a term that is mutually acceptable to the federal government and Canada’s Aboriginal Peoples.
Recommendation #1b: Follow the Assembly of First Nations’ suggestion that Environment Canada sit down with Canada’s Aboriginal Peoples, before continuing with its consultations plan, and identify a mutually agreeable process to engage in consultations (dialogue) on the development of regulations for wastewater effluent management on Aboriginal lands.
Recommendation #1c: To support Recommendation #1b, Environment Canada needs to establish a team that includes members who are aware of Aboriginal priorities and issues as well as being culturally sensitive. This team should meet with the Assembly of First Nations and the Inuit Tapiriit Kanatami to establish protocols for continued dialogue between Environment Canada and Canada’s Aboriginal Peoples.
Conclusion #2: Environment Canada and the Aboriginal participants were successful in terms of delivering and sharing information and knowledge. The knowledge, content and delivery of information during the sessions did positively meet many of the expectations of the Aboriginal participants, and the Session and National Reports accurately captured the essential messages. The need for action in wastewater effluent management is not contested and those opinions have been validated by 40% of the national target audience. However, some future improvements can be considered for the “next round of discussions”.
Recommendation #2a: For future “consultation” processes, Environment Canada should incorporate the use of an "Advisor" to enhance and improve the dialogue process. As well, EC should undertake process adjustments for future dialogue with Canada’s Aboriginal Peoples: two day versus one day workshop; incorporate break-out sessions; consider using fewer locations for dialogue; all of which may increase interest and participation as well as improving the cost-effectiveness equation.
Conclusion #3: Treasury Board’s 2007 Guidelines for Effective Regulatory Consultations, which was issued after Environment Canada undertook this evaluation, contains evaluation requirements not addressed by this evaluation.
Recommendation #3: Environment Canada should undertake the evaluation of the remainder of its planned wastewater dialogue with Canada’s Aboriginal Peoples to meet the requirements of Treasury Board’s 2007 Guidelines for Effective Regulatory Consultations.
Observation: Environment Canada may want to examine the evaluation requirements specified within Treasury Board’s 2007 Guidelines for Effective Regulatory Consultations on all of the public consultations it is conducting, and not only those with Canada’s Aboriginal Peoples.