5. Recommendations

5.1. Intergovernmental communication

5.1.1. Put in place a new collaborative structure between ECCC and MDDELCC to facilitate discussion surrounding major projects

The November 2015 discharge demonstrated that it would be advantageous for the Governments of Canada and Quebec to establish a clear structure for sharing available information through their organizations. This structure would permit effective collaboration and timely dissemination of information through specific contacts with widespread knowledge of the files. Representatives of ECCC and MDDELCC will soon begin discussions to formalize such a structure.

With this formal structure in place for sharing information about major projects or key files, such as the November 2015 discharge, the governments will be able to discuss the sharing of expertise and scientific data, enforcement approaches, regulations in force, engagement with partners, and consultations with Indigenous communities.

The discussions held in conjunction with the comprehensive review revealed that the governments deal with varied and complex environmental files. Shared jurisdiction in environmental protection means that the Governments of Canada and Quebec do complementary work in a number of sectors. This has led their representatives to establish working relationships at various operational levels, generally in specific areas and fields of expertise. Developing an overarching vision of how to handle major files, supported by a defined structure, will facilitate decision making.

The departmental structures and administrative organization of ECCC and MDDELCC, while related, have specific characteristics that could limit the effective flow of information produced or managed by these organizations, and result in the multiplication of points of contact at different operational levels. A dedicated structure would serve to strengthen all of these contacts while allowing information to flow beyond the front-line administrative units.

5.1.2. Strengthen the use of existing communication mechanisms between the various orders of government

Governance structures are already in place to encourage information sharing among stakeholders on issues related to the St. Lawrence river ecosystem, such as the City of Montreal wastewater file. A standing committee on wastewater monitoring composed of representatives of Montreal, MDDELCC, and certain areas of prime concern committees serves as a forum for discussing matters such as the November 2015 wastewater discharge. Had representatives of the various relevant groups been serving on the committee, this would probably have helped to clarify the position of all of the stakeholders long before fall 2015, and thus ensured that more cohesive information about Montreal’s project was available.

A majority of departments and agencies of the Governments of Canada and Quebec with responsibilities or interests related to the St. Lawrence river ecosystem are involved in the Canada-Quebec Agreement on the St. Lawrence. This structure permits provincial and federal departments to pool their expertise, competencies, and resources to work collaboratively to conserve the St. Lawrence river ecosystem. Steps are being taken to make the Canada-Quebec Agreement on the St. Lawrence Steering Committee a designated forum for the exchange of information on all government initiatives and concerns related to the St. Lawrence ecosystem and, where appropriate, make recommendations to the Co-chairs concerning the measures to be taken in these projects.

By using the existing structures, the governments can benefit from existing relationships to ensure that information and knowledge are shared at all levels of the organizations involved.

In order to maximize co-operation, and to ensure the effective management of regional issues, ECCC, MDDELCC, and the City of Montreal should seek to increase awareness of their respective structures. This could help to better identify the designated resource persons for the files in each organization.

5.1.3. Share scientific expertise and involve other partners where possible

When it comes to information sharing, the expectations of the public and of the governments’ partners are higher today than ever. Sharing scientific expertise is crucial to enable a sound understanding of complex files, as is often the case in the environmental field.

In a complementary manner, consistent with their respective jurisdictions, ECCC and MDDELCC should systematically promote the upstream sharing of scientific expertise on projects that could potentially have significant environmental effects. This approach would ensure that appropriate strategic communications plans are developed, improved coordination of environmental monitoring programs, and the fostering of informed, science-based decision making.

A number of stakeholders and partners of government organizations have scientific resources that could have been used in this matter, particularly for environmental monitoring during and after the discharge. Making use of the expertise of these groups, including Indigenous groups, could improve the social acceptability of certain projects.

5.1.4. Clarify the scope and application of the Wastewater Systems Effluent Regulations and the Fisheries Act with regard to planned discharges of untreated wastewater by municipalities

According to the representatives of the City of Montreal and the Government of Quebec, considerable confusion was created by the issuance of Ministerial Orders, pursuant to section 37 of the Fisheries Act, to temporarily prevent the discharge and to impose conditions on the City of Montreal. ECCC believes that it is important to fully understand the applicable regulatory regime, including the Minister’s discretionary powers and recourse, to adequately plan major maintenance projects on municipal wastewater systems.

Consequently, ECCC will strengthen existing channels of communication between ECCC and the MDDELCC to ensure that this information is communicated effectively, including through the new proposed collaborative structure (5.1.1). ECCC will arrange a regular annual meeting, to obtain information from the MDDELCC on the planned upgrades and maintenance of the municipal wastewater systems in the province. This information will then be shared and coordinated within ECCC such that any issues that may arise are well managed. ECCC will also use the information to have annual and structured discussions with potentially affected Indigenous communities. This information sharing will not have the effect of exempting municipalities of their legal obligations under the Fisheries Act, including that of notification before a spill [art. 38 (5)] and report after each event [art. 38 (7)].

The discharge of untreated wastewater in Montreal in November 2015 drew attention to certain elements that should be adjusted by ECCC, such as the administration of the Fisheries Act. An internal exercise was initiated for that purpose and completed in 2016.

To clarify the regulatory regime surrounding wastewater systems maintenance projects, a point raised by the participants during the course of the review, the governments of Canada and Quebec will pursue their discussions to finalize an equivalency agreement under the WSER. Under an equivalency agreement, all or parts of federal regulation ‘stand down’ when the provincial or territorial regulatory regime is equivalent in effect to the federal regulation. Discharges such as the November 2015 discharge in Montreal (a form of discharge not authorized under the Fisheries Act or the WSER) would however continue to be subject to the prohibition in the Fisheries Act. In other words, had an equivalency agreement been in place at the time of the Montreal discharge, the Minister’s authorities and constraints would have been the same.

The Mohawk Council of Kahnawake (MCK) has expressed reservations about an equivalency agreement on the wastewater systems effluents regulations between the Governments of Canada and Quebec. The MCK believes that Canada would see this agreement as a means of discharging its duty to consult based on the honor of the Crown. The MCK also believes that such an agreement would be counter to the fundamental principles of openness, transparency, and respect, cited in the November 9, 2015 Ministerial Order.

ECCC will engage with Indigenous communities through an engagement and consultation plan before concluding an equivalency agreement between the Governments of Canada and Quebec on the Wastewater Systems Effluent Regulations.

5.2. Engagement and consultation with Indigenous communities

5.2.1. Initiate discussions between ECCC and the Secrétariat aux affaires autochtones du Québec (SAA) to better understand what, in this case, led to differing approaches on the duty to consult, to identify common observations with regard to this duty

The document Updated Guidelines for Federal Officials to Fulfill the Duty to Consult states: “In the Haida and Taku River decisions in 2004, and the Mikisew Cree decision in 2005, the Supreme Court of Canada (SCC) held that the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights. This duty has been applied to an array of Crown actions and in relation to a variety of potential or established Aboriginal or Treaty rights. In these decisions, the SCC determined that the duty to consult stems from the Honour of the Crown and the Crown’s unique relationship with Aboriginal peoples¹.”

To fulfill this duty, the governments of Canada and Quebec have developed guidelines to help their officials with its interpretation. Despite the existence of these frameworks, certain differences in approaches have been observed, as in the case of the November 2015 discharge.

To improve collaboration in this subject area, representatives of ECCC and the SAA will hold discussions on this topic to share the thinking and the analyses that led to their respective decisions on the duty to consult in this case. These discussions may yield common observations to improve the predictability of each organization’s analyses.

Although the case of the November 2015 discharge specifically involved ECCC and MDDELCC, it may be advisable for the Governments of Canada and Quebec to hold similar government-wide discussions on the duty to consult to promote the exchange of information on this subject. These discussions may require the involvement of the Department of Indigenous and Northern Affairs Canada (INAC) as the federal coordinator and advisory department in this area.

5.2.2. Require the production of an Indigenous community consultation plan when section 37 of the Fisheries Act is invoked with respect to maintenance projects on wastewater treatment systems

To improve the dissemination of information to Indigenous communities in matters involving the discharge of untreated wastewater, ECCC undertakes to put in place a consultation plan for Indigenous groups when it invokes section 37 of the Fisheries Act. This plan may include, but is not limited to, analysis of when the duty to consult is triggered.

The comprehensive review of the events that led to the November 2015 discharge clearly demonstrated that the timely dissemination of relevant information to Indigenous communities would have improved the overall management of this matter and, incidentally, would have strengthened ties between the representatives of these communities and those of the Governments of Canada and Quebec.

By implementing such plans, ECCC will be able to share relevant information with Indigenous groups on the projects, thereby allowing them to inform their members, and do required follow ups, as needed.

5.2.3. Commit to the dissemination of information to Indigenous communities

Although the certificate of authorization issued by MDDELCC for the discharge of untreated wastewater required the implementation of a communications and information plan by the City of Montreal, communications plans targeting Indigenous communities and a broader audience would have been desirable.

In its report on the work, the City of Montreal noted: [translation] “The communication plan produced for this project was for information purposes, similar to those produced for more common operations; this plan did not contain any measures for concerted actions, nor any measures for explaining the technical aspects of the work in plain language in order to increase social acceptability^{Footnote 2}.”

Greater coordination between the levels of government on the production of the communications plan would have helped limit confusion about the roles and responsibilities of each government. If the development of the plan had been better coordinated, ECCC could have helped the City of Montreal identify key stakeholders in Indigenous communities, and thus helped facilitate communications with them.

5.2.4. Ensure that the governments share, where possible, the information at their disposal on Indigenous ancestral and treaty rights (established or potential) and the findings of their analyses on the need to consult Indigenous groups in keeping with the Crown’s legal duty

For major projects like the November 2015 discharge, ECCC undertakes to contact the representatives of the Quebec government to share information on Indigenous treaty rights (established or potential) in a timely manner, whether through a new structure (recommendation 5.1.1) or through the ties established between representatives of the Governments of Canada and Quebec.

These rights, and the exercise of these rights, are complex matters. The Governments of Canada and Quebec would benefit from sharing the information they have on these rights and their analyses of the need to consult Indigenous communities in keeping with the Crown’s legal duty.

Greater collaboration between the Indigenous affairs specialists in the Governments of Canada and Quebec could make it possible to more accurately define the scope of the rights of the Indigenous communities concerned and the anticipated impacts of certain projects. To this end, INAC already provides general access to the Aboriginal and Treaty Rights Information System (ATRIS) that offers real-time information on indigenous rights.

In similar circumstances, ECCC believes that the federal government’s expertise in Indigenous affairs could be made available to the City of Montreal to facilitate communications and engagement with Indigenous communities.