4. The parties’ viewpoints and possible solutions

This section analyzes the main findings of the ECCC representatives based on the information gathered from representatives of the City of Montreal, MDDELCC, the Mohawks of Kahnawake, Akwesasne and Kanesatake, and the Grand Conseil de la Nation Waban-Aki.

The main findings contained in this section deal with intergovernmental communications mechanisms between the City of Montreal and the governments of Quebec and Canada before, during, and after the discharge; in particular, the sharing of expertise, the dissemination and exchange of information, the availability and relevance of the information communicated, and the timeframes for communications. Communications as well as engagement and consultation of Indigenous communities are also discussed.

These findings led ECCC to identify some possible solutions that could improve intergovernmental communications, and the engagement and consultation of Indigenous communities during similar circumstances in the future.

During the comprehensive review process, all of the participants acknowledged that it would be preferable to avoid further discharges of untreated wastewater into the St. Lawrence because of the environmental impacts. The Indigenous communities’ representatives pointed out that the November 2015 events made the Canadian public aware that discharging untreated wastewater is a practice done in many Canadian cities. The representatives made a point of insisting that every effort be made to put an end to this practice in Canada.

In the opinion of the representatives of the First Nations, wastewater is an issue of national magnitude. They believe that ECCC should develop a plan setting out concrete and measurable actions, in collaboration with provincial and territorial governments as well as with all the wastewater treatment system operators in the country, particularly municipalities, to avoid the discharge of untreated wastewater in the future.

4.1. Intergovernmental communication

4.1.1. Perspectives of the parties

On February 27, 2015, the City of Montreal obtained a certificate of authorization from MDDELCC. The City also notified the Environmental Enforcement Division of ECCC in September 2014 and September 2015 by email, as had been done in the past, because the City considered that no prior authorization from the federal department was required in such a situation.

Since the City of Montreal followed the same authorization procedure as for previous discharges, the City feels that ECCC’s intervention through the ministerial orders made under the Fisheries Act created a lot of confusion about the roles and responsibilities of each level of government in the matter, and is of the view that ECCC should not undertake exceptional legislative measures for planned wastewater discharges. According to the City of Montreal, the current state of the treatment systems in Canada’s large cities means that maintenance work will be required in the future and this could lead to other planned discharges of untreated wastewater.

The City of Montreal claims that it did not receive the necessary information from ECCC concerning the obligations to be fulfilled under the Wastewater Systems Effluent Regulations and the Fisheries Act. According to ECCC, the City of Montreal has received, since 2013, general information from the Department about the Wastewater Systems Effluent Regulations and the Fisheries Act.

MDDELCC maintains that responsibility for obtaining all the information and the necessary authorizations required to properly carry out the project, and to comply with the other applicable acts and regulations rested with the proponent, namely the City of Montreal. Before issuing a certificate of authorization, MDDELCC must ensure that the applicant has provided documents from other organizations in support of its application. This applies to certifications from municipalities indicating that the proposed project complies with municipal bylaws. According to the City of Montreal representatives, the process set out by the provincial department was clear and was respected.

4.1.2. Communication mechanisms

The parties involved in the Montreal wastewater discharge file regularly collaborate on a number of major files. A lot of communications and information sharing mechanisms are already in place at various operational levels between the governments of Canada and Quebec, the City of Montreal, and Indigenous communities.

For example, the City of Montreal has a standing committee on wastewater monitoring. It is composed of representatives of the City of Montreal, MDDELCC and some areas of prime concern committees^{Footnote 1}.

In addition, representatives of a majority of federal and provincial departments with responsibilities that relate to the St. Lawrence ecosystem are part of the governance structure of the Canada-Quebec Agreement on the St. Lawrence.

The participants indicated that these structures were not used in the discharge matter.

4.1.3. Availability and sharing of expertise

The City of Montreal, the Government of Quebec, and the Government of Canada have and produce large amounts of scientific data on the state of the St. Lawrence River. In general, the data are made available to the public, for example, through the Overview of the State of the St. Lawrence report, which was developed under the Canada-Quebec Agreement on the St. Lawrence. A number of studies on the effects of wastewater on the aquatic plants and animals found in the waters of the St. Lawrence are also available from a variety of government sources.

Despite this, as was stressed in the report mandated by ECCC and produced by the group of independent experts, “[t]he lack of information on the effects of discharging untreated wastewater into the St. Lawrence River must be addressed in order to avoid continual questions from the public and the scientific community regarding the risks that such discharges may have on aquatic plants and wildlife^{Footnote 2}.” According to some participants in the review process, the scientific monitoring measures for the November 2015 discharge will address this shortcoming to a certain extent.

4.1.4. Possible solutions with respect to intergovernmental communications

The November 2015 discharge demonstrated the importance of establishing clearer communications channels between the City of Montreal, MDDELCC, and ECCC. Preferably, this should be done through existing structures of collaboration between the different levels of government.

The environmental monitoring carried out by the governments should be independent of that done by the City of Montreal. However, better coordination between the teams responsible for the monitoring of the St. Lawrence River before, during, and after the discharge could have facilitated some complementary activities.

4.2. Engagement and consultation of Indigenous communities

4.2.1. Perspectives of the Indigenous communities

Prior to the November 2015 discharge, little information was provided to Indigenous communities by the City of Montreal, MDDELCC, or ECCC. At the time when the First Nation communities concerned learned of the discharge project through the media in fall 2015, representatives of the City of Montreal, MDDELCC, or ECCC had not yet contacted them on this matter.

The representatives of the Mohawk Councils of Kahnawake, Akwesasne, and Kanesatake, and the Grand Conseil de la Nation Waban-Aki consider that all the criteria established by the Supreme Court of Canada that would trigger the Crown’s duty to consult and accommodate Indigenous communities were present during the events that led to the discharge of wastewater by the City of Montreal in the fall of 2015. They feel that MDDELCC and ECCC failed in their duty and honour of the Crown by not consulting them properly.

The information that Indigenous authorities needed prior to the discharge to answer questions from their community members, and to assess the impact on their ancestral or treaty rights, was only provided after the discharge.

Some Indigenous representatives feel that their communities should have been more involved in the monitoring measures before, during, and after the discharge. They deplore the governments’ lack of awareness of the environmental work that their organizations are already doing, and of the scientific resources at their disposal.  

4.2.2. Consultation of Indigenous communities

According to the case law established by the Supreme Court of Canada, the Crown has a duty to consult and, where appropriate, accommodate when it contemplates conduct that may adversely affect potential or established ancestral or treaty rights. This obligation applies equally to the federal government, and to the provincial and territorial governments.

To help government officials fulfill this duty, the Government of Canada developed the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011), and the Government of Quebec published the Interim Guide for Consulting the Aboriginal Communities (updated in 2008).

The Mohawk and Abenaki representatives feel that MDDELCC’s decision to issue a certificate of authorization to the City of Montreal, and the Minister of ECCC’s decision to make a Ministerial Order under the Fisheries Act, triggered the Crown’s legal duty to consult and, where appropriate, accommodate them. According to the Mohawk and Abenaki representatives, based on the information they had, these two decisions allowing the City of Montreal to proceed with the discharge constituted conduct by the Crown that might adversely affect potential or established ancestral or treaty rights. For example, the representatives of these communities mentioned the potential impacts on traditional activities of fishing, waterfowl hunting, and harvesting medicinal plants carried out at that time of year.

In view of the information disseminated in the media and their community members’ growing concern about the future discharge, some Indigenous representatives took the initiative to write to the City of Montreal, MDDELCC, and ECCC. This was to express concern, to remind them of the importance of fulfilling the legal duty to consult, and to request the necessary information to properly understand the potential impact of the planned discharge on their ancestral and treaty rights. The City of Montreal and MDDELCC did not respond to the letters.

Although ECCC did respond, according to the Indigenous representatives, the information provided by the Department was insufficient. They feel that the time frame set by ECCC to reply to their correspondence was unrealistic. Some of ECCC’s requests and invitations to the Indigenous representatives, sometimes sent on the weekend, had time frames of barely 24 hours.

Before the discharge, ECCC invited the Indigenous representatives to participate in a meeting with the Department’s mandated group of independent scientific experts (October 29, 2015), and to participate in a second meeting with the representatives of the City of Montreal and MDDELCC, where the conclusions of the final report by the group of experts were to be presented (November 6, 2015).

The Indigenous communities’ representatives feel that these two meetings did not enable them to obtain the information required to properly assess the impacts that the discharge could have on their ancestral and treaty rights. They also consider that notification timelines for these meetings were inappropriate and disrespectful.

Lastly, the Indigenous representatives deplored the fact that several weeks after the discharge of untreated wastewater, ECCC provided them with important information that they felt should have been provided before the discharge event. This information was conveyed at two information meetings organized by ECCC in collaboration with the Water Service of the City of Montreal on December 15, 2015, in Odanak, and on December 16, 2015, in Montreal.  

MDDELCC indicated that it complied with the parameters established by the Interim Guide for Consulting the Aboriginal Communities (updated in 2008) throughout the process, leading to the issuance of the certificate of authorization for the discharge to the City of Montreal. According to MDDELCC, there was no requirement to trigger consultations with Indigenous communities. First, this is due to the fact that the potential environmental impacts, including the effects on fish, according to MDDELCC, were minor and limited to a specific area. For the Department, this meant that there was little possibility that traditional activities would be adversely affected, if any such activities took place in that area. Second, according to MDDELCC, there was no alternative to the planned work, which limited the possibility of amending the project to meet Indigenous communities’ concerns. However, MDDELCC does acknowledge that outside the framework of the legal duty to consult, information on the project could have been sent to Indigenous communities.

The representatives of the First Nations pointed out that there was no interaction between them and the Government of Quebec before, during, or after the discharge took place in November 2015. They deplore the fact that no Quebec government representative participated in the March 8, 2016 workshop organized by ECCC in conjunction with the comprehensive review. According to these representatives, this absence prevented an open, transparent and respectful dialogue with the Government of Quebec on this file.

Although the City of Montreal does not have a direct duty to consult Indigenous communities, the Mohawk and Abenaki representatives consider that the City, as the project’s proponent, could have provided them with more information before proceeding with the discharge. However, they acknowledge that the City made an effort to inform them of the progress of the work and of the monitoring of impacts after the discharge. The City of Montreal recognized, in its report on the work, that their communications plan “[translation] did not contain any engagement measures, or any measures for explaining the technical aspects of the work in plain language in order to increase social acceptability^{Footnote 3}.”

4.2.3. Possible solutions with respect to the engagement and consultation of Indigenous communities

Better and more timely dissemination of the information available on the project would have alleviated some of the Indigenous communities’ concerns about the project and its impacts. This information was not provided sufficiently in advance of the planned discharge event, thus preventing interested parties from responding to concerns of their community members.

According to the representatives of the First Nations, if a similar situation arises in the future, the different levels of government should provide accurate and relevant information as soon as possible, particularly if the governments are contemplating making a decision that could adversely affect potential or established ancestral or treaty rights. However, the representatives reiterated that the consultation of Indigenous communities is not limited to exchanging information. In their opinion, this consultation should include true consideration of different viewpoints and significant discussions about potential impacts, as well as appropriate mitigation and accommodation measures.

For the First Nations representatives, the consultation of Indigenous communities by the Crown should not be limited to the legal duty to consult; instead, it should be included in the adoption of best practices by governments. Beyond the complex requirements arising from case law on consultation, one of the main objectives of the consultation process should always be to establish healthy working relationships between the governments and the Indigenous Peoples.

Furthermore, the representatives believe that all levels of government should give Indigenous communities enough time to review and to analyze the information that is provided, and to communicate this information to their elected officials and community members. This should be done so their views can be sought, and a position regarding the issues raised can be developed.

To improve knowledge of a project’s potential effects on Indigenous rights, the governments should communicate as soon as possible after being informed with the Indigenous communities potentially affected by a planned discharge requiring a decision on their part. This would enable them to verify what Indigenous rights and interests are in the project area, what potential negative repercussions the project might have on those rights, and, if the project is undertaken, what measures could be put in place to mitigate negative repercussions.