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Evaluation of Environment Canada’s Aboriginal Consultations on Wastewater

Management Response and Final Report

February 25, 2009

Evaluation and Final Report prepared by Auguste Solutions & Associates Inc.

Management Response prepared by Aboriginal and Public Sectors Division, Environmental Stewardship Branch and Intergovernmental and Stakeholder Relations, Strategic Policy Branch in consultation with Evaluation Division, Audit and Evaluation Branch Environment Canada

TABLE OF CONTENTS

Section 1.0 Management Response to the Evaluation of Environment Canada’s Aboriginal Consultations on Wastewater

Section 2.0 Evaluation of Environment Canada’s Aboriginal Consultations on Wastewater, Final Report, July 2008

SECTION 1.0 MANAGEMENT RESPONSE TO THE EVALUATION OF ENVIRONMENT CANADA’S ABORIGINAL CONSULTATIONS ON WASTEWATER

This document consists of two parts. The first part is Environment Canada’s management response to the recommendations from the Evaluation of Environment Canada’s Aboriginal Consultations on Wastewater, Final Report, July 2008 (Final Evaluation Report). The second part is the consultant’s Final Evaluation Report, presented in its entirety and unedited. The management response has been drafted this way to preserve the independent nature of the evaluation.

Report clearance steps:

Project initiated November 8, 2007
Report completed by the consultant May 9, 2008
Report accepted by the Department July 29, 2008
Report and management response approved by
Departmental Evaluation Committee
February 25, 2009

1.1 EXECUTIVE SUMMARY

Environment Canada is developing federal regulations applicable to the wastewater sector. In that regard, the Department worked with the Canadian Council of Ministers of the Environment (CCME) to complete the Canada-wide Strategy for the Management of Municipal Wastewater Effluent (CCME Strategy). The core elements of the CCME Strategy that relate to federal jurisdiction will form the basis of the regulations.

Under the Government of Canada Cabinet Directive on Streamlining Regulation, 2007, departments and agencies are responsible for conducting consultations at all stages of a regulatory development process. To this end, Environment Canada developed a three-phased consultation process for the wastewater regulations. Phase 1 of the consultation focused on the development process for the CCME Strategy and on early versions of the Strategy. Phase 2 of the consultation focused on Environment Canada’s Proposed Regulatory Framework for Wastewater, Consultation Document, October 2007 and the September 2007 draft CCME Strategy. Phase 3 of the consultation will focus on the draft legal text of the federal wastewater regulations after they are published in the Canada Gazette, Part 1, targeted for late 2009.

Phase 2 of the consultation consisted of a series of consultation sessions held across the country in all provinces and territories.[1] The consultation sessions targeted three “streams” of interested parties: Aboriginal peoples and their organizations; municipalities and organizations; and federal departments and agencies. Environment Canada focused much attention on the consultation with Aboriginal peoples and their organizations. As part of this process, an independent Aboriginal firm was contracted to conduct a formal evaluation of the Aboriginal consultation sessions.[2]

The evaluation contractor was not required to evaluate either the scientific content of the proposed regulations or the consultation with municipalities and organizations and with federal departments and agencies. The evaluator was also not required to provide legal advice, to review Supreme Court of Canada decisions or to search for interpretation of Supreme Court of Canada decisions.

The evaluation found that the majority of Aboriginal participants agreed that the overall objective of the proposed regulations for the management of wastewater effluents is important, and that action must be undertaken. It also found that the consultation was implemented as per the approved plan and was consistent with the Guidelines for Effective Regulatory Consultations, Treasury Board of Canada Secretariat, 2007.[3]

The majority of Aboriginal participants did, however, state that they did not consider the process to be one of consultation with Canada’s Aboriginal peoples; rather, they considered it to be more of a dialogue or discussion. Some of Canada’s Aboriginal peoples were also concerned that the use of the term consultation within the context of the Environment Canada wastewater process could set a precedent in defining consultation that might have a serious negative impact on future consultations and negotiations on other matters.

The evaluation culminated in three conclusions with five associated recommendations. First, the evaluation concluded that Environment Canada and Aboriginal participants employed different definitions of consultation and that this had an impact on the consultation process and its evaluation. Second, the evaluation concluded that Environment Canada succeeded in delivering and sharing information according to its approved plan. Adjustments were recommended for future processes. Third, the evaluation concluded that Treasury Board’s 2007 Guidelines for Effective Regulatory Consultations contains evaluation requirements not addressed by the evaluation, which was launched before these guidelines were finalized.

The evaluation’s five recommendations focused on the following:

  • clarifying the term consultations, specifically in the Guidelines for Effective Regulatory Consultation, Treasury Board of Canada Secretariat, 2007
  • engaging Aboriginal organizations to identify a mutually agreeable process for the next steps on wastewater consultations
  • establishing a team aware of Aboriginal priorities and developing protocols
  • using an “advisor” and undertaking process adjustments for future dialogue
  • conducting an evaluation of the remainder of the wastewater consultation process

The following subsection outlines Environment Canada’s management response to each of the five recommendations. It includes a description of the actions that will be undertaken, gives the name of the Environment Canada branch and directorate responsible, and provides a timeline for dealing with the response to each recommendation. The management response is followed by the consultant’s final report on the evaluation.

1.2 INTRODUCTION AND CONTEXT

According to the Government of Canada Cabinet Directive on Streamlining Regulation, 2007, Environment Canada is responsible for conducting consultations on its wastewater regulations currently being developed under the Fisheries Act, R.S.C., 1985, c. F-14. During phase 2 of a three-phased consultation process, Environment Canada held consultation sessions with Aboriginal peoples and their organizations from May 2007 to January 2008. In a separate process, the two other streams of interested parties—federal departments and agencies, and municipalities and organizations—were also consulted. Aboriginal firms were contracted to help with organizing, facilitating and report writing for the sessions with Aboriginal participants, and the Assembly of First Nations and the Inuit Tapiriit Kanatami were contracted to develop impact analysis papers and distribute them to their members to aid in understanding the issues associated with wastewater management and the proposed regulations. An Aboriginal firm was contracted to conduct an independent evaluation of phase 2 of the Aboriginal consultation process.

The final report for the independent evaluation, prepared by the contractor Auguste Solutions & Associates Inc., states that the objectives of the evaluation were as follows:

  • to examine the effectiveness and appropriateness of Environment Canada’s Aboriginal consultations concerning the proposed wastewater regulatory framework (consultations with non-Aboriginal municipalities are not included within the scope of this evaluation)
  • to provide recommendations to Environment Canada for improving future consultations with Aboriginal stakeholders.

As described in the evaluation, Environment Canada invited representatives from Aboriginal communities and organizations (approximately 1000 invitation letters were mailed) across Canada. Between 180 and 200 different Aboriginal communities participated, representing 25-30% of all First Nation communities and 4% of Inuit communities across Canada. The majority (75%) of Aboriginal participants stated that they were better informed about the proposed regulations after the Environment Canada-led sessions and the majority of Aboriginal participants believe that Environment Canada is aware of and understands the issues Aboriginal participants presented at the sessions. A large majority of participants (88%) agreed or strongly agreed that Environment Canada listened and responded to their questions and concerns.

Key findings of the evaluation indicate that Environment Canada consistently followed Government of Canada policies for consulting the public while making regulations. The findings did, however, indicate that Environment Canada and the majority of Aboriginal participants did not share the same definition of consultation. Aboriginal participants stated that they considered the sessions to be technical workshops rather than consultations and they raised concern that this initiative could establish precedents that could affect future consultation processes and negotiations between Canada and Aboriginal peoples if they agreed that this was consultation.

The evaluation culminated in three conclusions with associated recommendations. The conclusions as found in Section 5.2 of the consultant’s final evaluation report are presented verbatim below:

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.

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.”

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.

Environment Canada accepts the independent evaluation and agrees to the following actions as the Government’s appropriate management response to the recommendations.

1.3 RECOMMENDATIONS AND MANAGEMENT RESPONSE

The text outlined in the following boxes is extracted verbatim from the consultant’s final evaluation report. Each box is followed by the Department’s management response and actions for that particular recommendation.

Recommendation #1a (Section 5.2 of the Final Evaluation Report)

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.

Management Response

The Treasury Board of Canada Secretariat has developed a series of Guidelines for Effective Regulatory Consultations. These Treasury Board guidelines were developed to meet the needs of a broad number of federal departments undertaking an array of consultations on regulation development which may be based on any one of a number of different pieces of legislation. The Treasury Board guidelines state that “the extent to which stakeholders are involved in a consultation process varies considerably, from simply providing them with information to engaging them in a true partnership with shared decision making. Regulatory consultations tend to fall somewhere in the middle of this continuum, since the final decision regarding regulation rests with a specific individual (i.e. the Minister) or body (i.e. the Governor in Council). These Guidelines focus primarily on the consultation process, which entails a two-way exchange in which stakeholders are given an opportunity to provide input and affect the outcome of a regulatory proposal.”[4]

The Department recognizes that consulting interested and affected parties is an important component of regulatory development. Each consultation process may require different interpretations of who to consult, and how and when to consult them. The Department is satisfied with the use of the term consultation in this particular situation regarding its wastewater consultations.

The Department agrees to inform Treasury Board of the findings of the evaluation. The Department does not agree with the recommendation to request that Treasury Board replace the term consultation in the 2007 Guidelines for Effective Regulatory Consultations, as these guidelines are intended to be applied to a broad spectrum of consultation activities.

For the next phase of the wastewater consultation process, the Department will clearly communicate the purpose of the consultation, method and level of engagement, and the participants’ ability to influence the decision or action being taken.

Action: Environment Canada will send a joint Assistant Deputy Minister transmittal letter to the Treasury Board of Canada Secretariat Executive Secretary, Regulatory Affairs to provide information about the findings of this evaluation for reference and future consideration.

Functional responsibility: ADM – Strategic Policy Branch, and ADM – Environmental Stewardship Branch.

Contact person: Director General – Intergovernmental and Stakeholder Relations, or Director General – Public and Resources Sectors.

Timeline: Spring 2009.

Recommendation #1b (Section 5.2 of the Final Evaluation Report)

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.

Management Response

Environment Canada agrees to dialogue with national Aboriginal organizations to explore the possibility of defining a mutually agreeable process for future consultations with Aboriginal people on wastewater regulations, while respecting Treasury Board 2007 Guidelines for Effective Regulatory Consultations and other departmental guidance and guidelines. However, there may be differences in what the Government of Canada, including the Department, and national Aboriginal organizations consider to be appropriate consultations with Aboriginal people, which may impact the ability to reach a consensus.

Action: Environment Canada’s Wastewater staff will contact national and regional Aboriginal organizations to discuss possible options for the next phase of the consultation as wastewater regulations are developed and implemented.

Functional responsibility: ADM – Environmental Stewardship Branch.

Contact person: Director General – Public and Resources Sectors.

Timeline: Before the publication of draft regulations in the Canada Gazette, Part I.

Recommendation #1c (Section 5.2 of the Final Evaluation Report)

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.

Management Response

The Department agrees that it is appropriate to have a culturally sensitive team that is aware of Aboriginal priorities and issues and that can advise departmental staff. Environment Canada does have such a team in place that acts as the departmental centre of expertise on Aboriginal consultations and public participation and coordinates the departmental network of practitioners on consultation. The Department supports continued dialogue with Canada’s Aboriginal peoples and agrees to develop protocols on a case-by-case basis, where appropriate.

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Action: The departmental team will continue to provide advice to program staff in planning consultation processes to develop a good working relationship with Aboriginal people.

Functional responsibility: ADM – Strategic Policy Branch.

Contact person: Director General – Intergovernmental and Stakeholder Relations.

Timeline: Ongoing on a case-by-case basis.

Recommendation #2a (Section 5.2 of the Final Evaluation Report)

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.

Management Response

The Department interprets the use of an advisor in this recommendation to mean an “external advisor.” The Department agrees to use an external advisor as determined to be appropriate on a case-by-case basis. In the case of the wastewater consultations, Aboriginal external advisors were hired under contract to provide advice on the consultation sessions, materials and participants and to facilitate and report on the sessions to help maximize the effectiveness and reach of the consultations.

The Department agrees that process adjustments for future dialogue with Canada’s Aboriginal people may be required depending on the circumstances of each consultation. The use of longer workshops and fewer locations for engaging Aboriginal people would need to be evaluated on a case-by-case basis to ensure that this is reasonable and practical for both parties and that the Crown is being fiscally responsible.

Action: The use of an external advisor and process adjustments will be considered on a case-by-case basis to ensure that the most effective process is undertaken. In order to facilitate process adjustments for future consultations, lessons learned from the consultations on wastewater and their evaluation will be shared with the network of departmental practitioners involved in Aboriginal consultation.

Functional responsibility: ADM – Strategic Policy Branch, and ADM – Environmental Stewardship Branch.

Contact person: Director General – Intergovernmental and Stakeholder Relations Directorate, and Director General – Public and Resources Sectors.

Timeline: Spring 2009 and ongoing.

Recommendation #3 (Section 5.2 of the Final Evaluation Report)

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.

Management Response

The Department agrees to undertake an evaluation of the remaining part of its consultations on wastewater in accordance with the 2007 Cabinet Directive on Streamlining Regulation and Treasury Board’s 2007 Guidelines for Effective Regulatory Consultations.

Action: Evaluation of future consultation processes with all stakeholders and interested parties, including any that occur on wastewater, will be considered in the context of the Department’s annual risk-based audit and evaluation planning and will be completed in consultation with the Department’s Audit and Evaluation Branch. The specific requirements for formal evaluation of regulatory consultations will be clarified with the Treasury Board of Canada Secretariat to ensure that the Department is carrying out its evaluations appropriately. There are various means of undertaking such an evaluation: the responsible program could fund and organize the evaluation, with the Evaluation Branch acting as its scientific authority (as was done for this consultation evaluation); or the evaluation could be undertaken and/or funded by the budget of the Audit and Evaluation Branch in its annual plan. Other options may also be considered in light of the clarification received from the Treasury Board of Canada Secretariat.

Functional responsibility: Director General – Audit and Evaluation, and ADM – Environmental Stewardship Branch.

Contact person: Director – Evaluation, and Director General – Public and Resources Sectors Directorate.

Timeline: The evaluation of the next phase of the wastewater consultations will be carried out within the first departmental evaluation cycle following the end of the consultation period after publication of the draft regulation in the Canada Gazette, Part I.

SECTION 2.0 EVALUATION OF ENVIRONMENT CANADA’S ABORIGINAL CONSULTATIONS ON WASTEWATER, FINAL REPORT, JULY 2008


[1] In the case of Aboriginal peoples and organizations, a session was not held in Nova Scotia since the Mi’kmaq–Nova Scotia–Canada consultation process was initiated but could not be completed.

[2] Evaluation of Environment Canada’s Aboriginal Consultations on Wastewater, Final Report, July 2008, prepared by Auguste Solutions & Associates Inc.

[3] Associated with the Cabinet Directive on Streamlining Regulation, Canada, 2007

[4] Guidelines for Effective Regulatory Consultations, Treasury Board of Canada Secretariat, 2007, p. 2