In Duty to consult with Aboriginal peoples of Ontario, the Provincial Government of Ontario states that, “Ontario, as the Crown, has a legal obligation to consult with Aboriginal peoples where it contemplates decisions or actions that may adversely impact asserted or established Aboriginal or treaty rights. Ontario is committed to meeting its duty to consult with First Nations and Métis communities.”
This consultation, according to a July 14, 2017, Ontario Divisional Court Ruling, did not happen as it relates to a limestone quarry on the Saugeen/Bruce Peninsula. Specifically, the Ontario Ministry of Natural Resources and Forestry (MNRF) failed to consult with Saugeen Ojibway Nation (SON) before approving a Limestone Quarry.
Who Should Pay To Review Technical Reports?
According to various reports, in 2008, MNRF added the T&P Hayes project to a list of aggregate applications on SON’s traditional territories but did not give specific notice to SON’s environmental office (which includes only one person).
A key issue in the case was who should pay for the technical experts to review the quarry project. The SON argued that they should not have to spend their community funds to review the potential impact of the project. The court agreed.
In their conclusions, the court stated, “SON sought initial funding to help understand the issues raised by the Project, and to address those issues effectively with MNRF. SON did not ask to have all the technical work done over again by its own experts. SON’s budget included modest legal costs. MNRF did not explain why it rejected and continues to reject funding for SON’s reasonable legal costs to consult … SON was put to considerable legal expense to make its case to MNRF that there is a duty to consult and that the scope of that duty includes funded experts.”
A July 16, 2017, letter from the SON’s Chiefs and Councils begins with, “On behalf of the Joint Chiefs and Councils of the Saugeen Ojibway Nation, we are proud to announce a landmark victory for our People. On July 14, 2017, an Ontario court found that the Crown breached their duty to consult and accommodate the Saugeen Ojibway Nation (SON). As a result, the Court has revoked approvals for the T&P Hayes quarry until they have adequately consulted with SON.”
Hopefully, everyone involved in this case can find a reasonable resolution.
Cooperative Consultation
We have been fortunate to be involved in a project for several years in Sarnia, Ontario, that is a stark contrast to the MNRF/SON project. This project is one of cooperative consultation. On Tuesday, October 17, 2017, Dragun will be part of a panel discussion to present how the Duty to Consult worked well for all parties for the Sarnia project (see: 82nd Annual IMLA Conference – Duty to Consult – A First Nation Community Perspective).
If you have any questions about our upcoming presentation, please feel free to contact me at 519-979-7300, ext 104.