Queen's Park

Aboriginal interests gain ground in land use planning

Duty to consult delegated to Ontario municipalities
Tuesday, April 29, 2014
By Barbara Carss

Local governments and development proponents in Ontario must heed a new directive to recognize Aboriginal interests and consult appropriately when an updated version of the Provincial Policy Statement (PPS), which guides land use planning, takes effect later this spring. This is one of the first Canadian examples of a province explicitly delegating the responsibility – conferred to the federal, provincial and territorial governments in the Constitution Act, 1982 ‒ to municipalities.

“That is a significant development, and what municipalities do with it is going to be an interesting question,” says Mark Winfield, an associate professor with York University’s Faculty of Environmental Studies. “It will be interesting to see if there will be OMB (Ontario Municipal Board) appeals based on Aboriginal and treaty rights.”

Legal experts project that’s a highly likely outcome. As of April 30, 2014, the new PPS replaces the previous circa-2005 version and all in-progress development applications will be expected to conform with the new requirements. Two new references that employ the mandatory language “shall” instruct planning authorities to consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources, and to implement the PPS in a manner consistent with the Constitution Act‘s recognition and affirmation of existing Aboriginal and treaty rights.

The label “policy statement” somewhat underplays its regulatory clout, but the enabling Planning Act dictates that provincial and municipal planning decisions must be consistent with the PPS and also entrenches it as the terms of reference for Ontario Municipal Board decisions. Within the PPS itself, varying degrees of authority are expressed through the verbs “may”, “should” or “shall”.

“This is the centrepiece of the legislation,” Winfield observes. “It is the planners’ bible.”

Both the new PPS and other Ontario statutes and policy thrusts urge local authorities to adopt archaeological and cultural heritage management plans as one potential means to comply. Meanwhile, it has really been the courts that have provided direction for upper tier governments and proponents of projects subject to federal or provincial oversight.

“The Supreme Court says that constitutional protection means that if Aboriginal and treaty rights are to be impacted, the Crown must first consult with those Aboriginal people whose rights will be impacted, assess the impacts, mitigate the damage and accommodate where appropriate,” explains Julie Abouchar, an Aboriginal and environmental law specialist with Willms &Shier Environmental Lawyers LLP. “To date, the courts have not found that municipalities have a duty to consult absent a specific delegation from the province. Implementation of the PPS consistent with constitutional protection of Aboriginal rights will require consultation that is consistent with the legal duty to consult that is emerging from the courts. Compliance will be judged against those standards.”

COMPLIANCE STRATEGIES

Municipal planning authorities will now be tasked with identifying when consultation is required and ensuring that it is integrated into the planning approvals process. Formal steps for doing that will likely be established in an amendment to the municipality’s Official Plan. For their part, development proponents may be asked to undertake extra measures and/or provide new types of documentation.

A few municipalities in the Greater Toronto and Hamilton Area already have or are currently working on an archaeological management plan (AMP), which should support compliance with the PPS mandate related to conserving cultural heritage and archaeological resources. These include Toronto, Hamilton, Halton Region and – with prescient timing ‒York Region, where Council endorsed a plan in late February, just days before the Ministry of Municipal Affairs and Housing revealed the new PPS.

“There has been encouragement by the Province over the past decade to increase the level of engagement with Aboriginal communities, although there was no specific guidance [in planning regulations] as to how to accomplish this effectively,” says Valerie Shuttleworth, York Region’s director of long range planning. “Some of the other legislation municipalities work under, such as the Environmental Assessment Act and the Ontario Heritage Act, have their own requirements for consultation with Aboriginal communities.”

York Region’s AMP includes an inventory of 1,453 known archaeological sites; identifies areas where as-yet undiscovered archaeological resources are most likely to be found; and sets out the process for allowing, modifying or prohibiting development in archaeologically sensitive areas. It enshrines notification of and consultation with Aboriginal communities, which is also in keeping with requirements and recommendations of the Ontario Heritage Act and associated Standards and Guidelines for Consultant Archaeologists.

“These requirements and recommendations are more specific than the language of the PPS,” Shuttleworth notes.

The AMP itself was developed in consultation with Aboriginal communities ‒ an exercise that Regional planning staff further capitalized on to devise a First Nations and Métis Consultation Tool, which is still in draft form and yet to be approved. When finalized, it will be part of a package of guidance resources for planners and project proponents.

“That will help staff of various departments to understand when and how notification or consultation should be taking place,” Shuttleworth says. “Greater knowledge on the part of development proponents on the need to engage with Aboriginal communities, and the most appropriate timing and methods for that engagement, will help prevent conflict and delays later in the process.”

For more information about the Provincial Policy Statement, see the Ministry of Municipal Affairs & Housing.

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