Municipalities also have duty to consult: Ontario
TORONTO – One of the goals of the new 2014 Provincial Policy Statement (PPS) is to make planners more aware of their duty to consult with Aboriginal communities, with the sharpened focus seen as a first step to addressing larger deficiencies in the system.
The 2005 PPS made no references to Aboriginal interests, but the recently-issued 2014 policy encourages planners to “coordinate planning matters with Aboriginal communities.”
Municipalities also are expected to implement the PPS that recognizes and affirms existing Aboriginal and treaty rights under the Constitution Act, 1982. As well, under the updated policy, planners are expected to “consider and promote archaeological management plans and cultural plans in conserving cultural heritage and archaeological resources.”
Carolyn King, a member of the Mississaugas of the New Credit First Nation and a geometrics environmental technician, participated in the consultation process to update the PPS. She told NRU she is pleased at the addition of language that makes explicit the duty of planners to work with Aboriginal communities.
“When it [PPS] did not make reference or recognize us, [it] was an enormous gap,” she said, describing the updated policy as “a positive step forward.” She added:
“The official wording [of the older PPS] did not recognize the lands we live on, or the relationship to our lands, or lands that are considered part of our traditional territory.”
The Ministry of Municipal Affairs and Housing commented via e-mail.
“There are many instances where municipal decisions, plans and activities may impact or be of interest to Aboriginal communities,” the ministry stated. “Improved coordination and cooperation with Aboriginal communities within their municipality, as well as neighboring Aboriginal communities, can help municipalities to improve quality of life for all residents, and to achieve mutual goals.”
H. W. Roger Townshend (Olthuis Kleer Townshend LLP), a lawyer who specializes in Aboriginal rights, litigates land claims for First Nation communities. He told NRU that the new policies do not change the planning or legal framework, but rather ensure that planners do not overlook legal rights that already exist for Aboriginal communities.
“Some planning decision makers aren’t used to the idea of needing to consider Aboriginal interests,” he said “And this is a flag to them that ‘yes indeed, you need to do that.’” He adds: “I don’t think it creates a right, because I think that right is already there from other sources. Not all municipal planners are aware that it exists, and this helps flag it for their attention.” Townshend said the definition of what constitutes an Aboriginal community will emerge as the updated PPS is tested.
“It isn’t defined in the [PPS]; it’s just left a bit open for interpretation. My clients are pretty much all First Nation, and I think [the term Aboriginal communities] clearly includes First Nation [communities].”
Townshend noted that a Supreme Court of Canada decision known as R. v. Powley created a ten-point legal test for what constitutes, and who is entitled, to Métis rights.
“It some cases, there are Métis communities that will have Aboriginal rights, and it made that finding with respect to one particular Aboriginal community [in Sault Ste Marie], and I think the PPS would apply to that,” he said “And it would apply to other Métis communities who meet that test. But that doesn’t mean that every Métis community that says ‘we’re a Métis community” necessarily meets that test.”
“There’s room for interpretation of how far beyond First Nations it goes,” he notes. Townshend adds that the new PPS language is “necessarily general”, and cites the 2010 Far North Act as a document that has stronger language in regards to Aboriginal interests and rights. But he sees the new PPS as good start.
“I think the rights go beyond what the PPS says. It’s a first step. I think there may well be litigation that clarifies how much further the rights go. The policy may be revised at some point to reflect that. I see it as a first practical step.”
King said that a next step for the Mississaugas of the New Credit First Nation is developing tools to help planners better understand the meaning of Aboriginal interests.
“We’re working on a mapping project, that we’re hoping that municipalities will look and use to understand why we have an interest in ‘that’ waterway, ‘that’ sacred spot, ‘that’ special land that was, for our ancestors, special.”
“If we as First Nations don’t get a marker on the ground, we will be lost forever,” she said.