The background information and context presented within this section of the evaluation was drawn mostly from the document review and interviews with key informants and participants of Environment Canada’s consultation process. Some information also came from the exit survey questionnaire used at the end of each of the 21 consultation sessions led by Environment Canada (EC).
1.1 TERMINOLOGY EMPLOYED IN THIS REPORT
This evaluation report employs terminology where the meaning of the terms may mean different things to different people. This sub-section explains some of the terms that are central to interpreting and understanding this report and its conclusions and recommendations. Appendix 3 to this report contains additional explanations of some evaluation terminology.
1.1.1 ENVIRONMENT CANADA LED CONSULTATIONS
The question of what constitutes consultations quickly became the central issue of this evaluation. EC’s interpretation of what constitutes consultations is very different from the interpretation and understanding held by the Aboriginal participants and organizations that attended the EC led consultation sessions.
This evaluation report uses variations of the phrase EC led consultation sessions because that is the terminology that was employed in the documentation and communications prepared and distributed by EC to the Aboriginal participants and organizations; and in the terms of reference and scope of work prepared for the conduct of this evaluation.
The use of the phrase EC led consultations within this report is not to be interpreted as either agreement or disagreement that consultation sessions were or were not held with Canada’s Aboriginal Peoples. Discussions on whether consultations were or were not held are presented in the observations and conclusions sections within this report.
1.1.2 CANADA’S ABORIGINAL PEOPLES
Canada’s Aboriginal Peoples is the term used by the Supreme Court of Canada when it collectively refers to First Nations, Inuit and Métis individuals and communities residing in Canada.
This evaluation report uses Canada’s Aboriginal Peoples when it refers collectively to First Nations, Inuit and Métis individuals and communities, as did the Supreme Court of Canada (SCC). Aboriginal organizations that represent Canada’s Aboriginal Peoples are not included within the term Canada’s Aboriginal peoples. Aboriginal organizations are identified separately from Canada’s Aboriginal Peoples when reference is made to those organizations.
1.2 CCME STRATEGY AND WASTEWATER REGULATIONS
The Canadian Council of Ministers of the Environment (CCME) is comprised of the environment ministers from the federal, provincial and territorial governments. The CCME seeks to achieve positive environmental results; focusing on issues that are national in scope and that require the collective attention of governments. In November 2003, the CCME identified municipal wastewater as a priority and established a Development Committee to oversee the preparation of a CCME Canada-wide Strategy for the Management of Municipal Wastewater Effluent.
Wastewater is a mixture of liquid and semi-liquid wastes from two sources:
The Canada-wide Strategy for the Management of Municipal Wastewater Effluent provides federal, provincial and territorial governments with common objectives for the management of wastewater effluents and a description of their respective roles and responsibilities. The Canada-wide Strategy is to be implemented by all jurisdictions. Environment Canada will implement the Strategy by developing federal regulations under the Fisheries Act that will apply to wastewater effluents across the country, including those discharged into systems located on Aboriginal and federal land, and additional instruments under the Canadian Environmental Protection Act, 1999 (CEPA 1999) as necessary.
These proposed federal regulations will establish limits for substances that can be found in wastewater effluents. All jurisdictions have the option of applying stricter regulations and controls within their boundaries, realizing that the federal regulations are the minimum standard that must be met.
1.3 ENVIRONMENT CANADA’S CONSULTATION PROCESS
EC’s plan is to regulate wastewater effluents released to surface water from municipal and other wastewater systems, including those in First Nations, Inuit and Métis communities, and on other federal lands such as those owned by Parks Canada, National Defence, Fisheries and Oceans, Public Works Government Services Canada, and others. The proposed regulations are to be developed under the authority of the Fisheries Act and, possibly, the Canadian Environmental Protection Act, 1999.
EC’s Wastewater Section, in conjunction with EC’s regional offices, led the delivery of the Aboriginal consultations. The implementation of the consultations employed a threephased approach: [3]
EC, as one member of the CCME Development Committee, began its pre-consultation process with non-Aboriginal municipalities in November 2004. Consultations with Canada’s Aboriginal Peoples began with: (i) the Assembly of First Nations (AFN) in April 2005; (ii) Inuit Tapiriit Kanatami (ITK) in May 2005; and (iii) the Métis National Council (MNC) in January 2006. About forty EC consultation-related events have since been held with Canada’s Aboriginal Peoples since April 2005.
EC’s objectives for the Aboriginal consultations, with respect to wastewater, were to: [4]
EC’s planned consultation process for Phase II (the focus of this evaluation) called for: [5]
EC invited Aboriginal organizations and communities to 21 consultation sessions that were held in all provinces and territories. Only First Nations in Nova Scotia were unable to participate. It is uncertain if First Nations in Nova Scotia will be able meet with EC prior to the completion of the wastewater regulations because of the current tripartite process being developed in Nova Scotia. [8]
The purpose of EC led consultations is to present and obtain comments on:
The EC’s wastewater consultations presented: (i) the overall context under which the wastewater effluent regulations were being prepared; (ii) the broad technical requirements that are being considered for inclusion within the proposed regulations; and (iii) the schedule being considered for the implementation of the proposed regulations.
At most of the 21 consultation sessions, representatives from the Department of Indian Affairs and Northern Development (DIAND) discussed their department’s potential role in funding the resource and infrastructure costs that would result from the implementation of the regulations. Most of these sessions were attended by provincial or territorial representatives. The two workshop sessions and the videoconference session held north of the 60th parallel were also attended by local government representatives; some of whom made presentations, some of whom responded to questions, and some of whom were observers and did not participate in the discussions.
1.4 GOVERNMENT’S OBLIGATION TO CONSULT
The evaluators were not permitted to interpret or explain the SCC Haida decision as Environment Canada viewed this to be a ‘legal interpretation’ and therefore outside of the scope of the evaluation.
Environment Canada also required that the evaluators not state what the SCC Haida decision was with respect to what does or does not constitute consultations or how consultations are or are not to be conducted.
1.5 GOVERNMENT OF CANADA’S PERSPECTIVE ON CONSULTATIONS
Since the 2004 SCC decisions on consultations, only one federal government document has been issued by the federal government; Treasury Board`s 2007 document Guidelines for Effective Regulatory Consultations. [9] [10] The evaluators were informed that a draft (not issued) document that specifically addresses consultations with Aboriginal Peoples has been developed by Justice Canada. It was stated by EC that the draft Justice Canada document was not yet ready for circulation outside of the federal government and therefore not provided to the evaluators.
The Guidelines for Effective Regulatory Consultations state that for all consultations on regulatory matters that:
The Guidelines for Effective Regulatory Consultations specifically addresses Canada’s Aboriginal Peoples twice:
The Guidelines for Effective Regulatory Consultations do not address or attempt to interpret the Supreme Court of Canada 2004 decisions on consultations, nor do they specify what may or may not constitute appropriate consultations with Canada’s Aboriginal Peoples.
Three documents, all produced before the 2004 Supreme Court of Canada’s decision Haida Nation versus British Columbia and Weyerhaeuser, provide guidance to federal government officials on the process of conducting public consultations:
None of these three documents, nor any of the others reviewed for this evaluation (except for the 2004 Supreme Court of Canada decisions), specifically addressed the Aboriginal consultation process.
1.6 ABORIGINAL PERSPECTIVE ON CONSULTATIONS
Canada’s Aboriginal Peoples differentiate between: (i) the Government’s general view of public consultations as a process that encourages dialogue and the exchange of information; and (ii) their view of the consultation between the Government and Canada’s Aboriginal Peoples which is a formal often binding process akin to negotiations. For this reason both Aboriginal organizations (AFN and ITK) and the majority of the participants to the EC led consultation sessions could not accept Environment Canada’s position that the wastewater consultation sessions constituted consultations with Canada’s Aboriginal peoples.
The non-acceptance of EC’s position on consultations is explained in sub-section 4.1.6, EQ 6: Is There a Shared Understanding of Consultations?
The Assembly of First Nations states that consultations must include:
During discussions with officials from the Assembly of First Nations, they noted that their political leaders must take a political decision to participate in a consultative process before it can be stated that consultations have occurred; with anything less being discussions and not consultations.
The Assembly of First Nations also stated that Governments (federal, provincial and/or territorial) cannot unilaterally impose their policies or directives upon Canada’s Aboriginal Peoples. The Assembly of First Nations also stated that since the definition of consultations has not been decided by the Courts, and since there is no mutually agreed to binding definition of what constitutes consultations between the Government of Canada and Canada’s Aboriginal Peoples, the Government cannot unilaterally impose their definition of consultations.
The Inuit Tapiriit Kanatami and the Assembly of First Nations stated that EC’s consultation sessions on wastewater do not constitute consultations with Canada’s Aboriginal Peoples.
1.7 ABORIGINAL JURISDICTIONS AND AUTHORITY TO MAKE DECISIONS
There are between 514 and 533 First Nations (the number varies according to the source and their treaty status) and 67 Inuit communities and hamlets, for a total of between 581 and 600 communities, depending on which definition of First Nations is used. These communities fall under a variety of legal structures varying from treaty lands to private lands, each with its special distinctions and independent legal basis.
The Inuit have community and regional structures, and are represented by Inuit Tapiriit Kanatami (ITK). First Nations also have tribal and regional organizations, and are represented by the Assembly of First Nations (AFN). Both ITK and AFN draw their authority from the governments of the communities they represent.
It is practice for ITK and AFN to represent and discuss a wide range of issues and areas, which can include but is not limited to: Aboriginal and treaty rights; economic development; education; languages and literacy; health and wellness; housing; social development; justice; land claims; the environment; and a whole range of issues that are of common concern and which arise from time to time.
It is important to note that while the Inuit Tapiriit Kanatami and the Assembly of First Nations do represent their constituencies, they must seek the mandate from their constituencies to formally represent them on important matters such as regulations and negotiations. For example, it is usually the First Nation and not the AFN that negotiates or initiates legal action on a community specific topic such as a land claim. The specific First Nation leads the process.
ITK and AFN are federally funded organizations that were established to provide a voice that represents their Inuit and First Nation constituencies. ITK and AFN are the voices of 95% or more of their respective constituencies. Some Inuit and First Nation communities state that the ITK and AFN do not represent them, but this percentage varies depending on the topics and issues being addressed, and the leadership within those First Nations and Inuit communities.