Ontario’s COVID-19 Economic Recovery Act won’t withstand a constitutional challenge, says the lawyer representing First Nations – including some in Treaty 9 territory – who are poised to take legal action against Bill 197, which passed into law in July.
Part of the omnibus bill makes changes to the province’s Environmental Assessment Act “to ensure strong environmental oversight while reducing delays on infrastructure projects that matter most to Ontario communities,” according to the government.
But those changes violate constitutionally protected Aboriginal and treaty rights, said Kate Kempton of Olthuis, Kleer Townshend, the firm that is preparing the court action on behalf of First Nations.
The government is “setting about to gut the Environmental Assessment Act,” Kempton said. “They have removed a bunch of protections.”
“It’s shameful that Ontario is proceeding in this way and attempting to use the COVID-19 global pandemic as a smokescreen to ignore their constitutional duties to First Nations,” said Sheldon Oskineegish, the chief of Nibinamik, a remote First Nation in northern Ontario.
Decisions made on a ‘whim’
Under the old rules, the constitutional duty to consult First Nations about “undertakings” on their traditional lands was triggered by the environmental assessment process. The new law sets out a new category of “projects” for which an environmental assessment is “very much on a [Environment] Minister’s whim,” Kempton said.
“All kinds of things could commence on First Nations traditional lands, and they might not know about it until the harm is done,” she said.
For the chief of Neskantaga First Nation, the legislative changes are just the latest in a long line of infringements.
“We all know that when Ontario and Canada made treaty, their goal was simple: to get our people off the land to make way for mining, forestry, dams and other so-called developments,” Chris Moonias said in a news release. “The reality is that without the consent of our people, resource development in the north simply will not happen.”
Consultation on regulations
Ontario will consult with First Nations on developing the regulations that fall under the new legislation, including proposals for what qualifies as a project, according to a spokesperson for the Ministry of the Environment, Conservation and Parks.
“The ministry is committed to working with Indigenous communities to facilitate their participation in the consultation process and we will consider all input received from the public, stakeholders and Indigenous communities prior to making these regulations,” spokesperson Andrew Buttigieg said in an email to CBC News.
But the changes to the Environmental Assessment Act, coupled with new regulations that remove environmental protections for forestry activity are signs the province is ignoring Indigenous communities, according to Matawa First Nations Management, which represents nine First Nations, including Neskantaga, in northern Ontario.
“They’re just going to bulldoze, regardless of our concerns,” said Matawa chief executive officer, David Paul Achneepineskum. “Ontario seems to look at us as if we don’t live on that land at all, as though we don’t matter.
“Many of our rivers we live on and rely on for our food,” he added. “The basic right for us as a people to exist is going to be impacted tremendously.”
Environmental groups also take court action
A coalition of environmental groups is also challenging the legality of Ontario’s changes to the Environmental Assessment Act.
Earthroots, the Canadian Environmental Law Association, Ontario Nature and two citizens — Cooper Price, a 16-year old activist and Michel Koostachin, who was born and raised in Attawapiskat — filed an application for a judicial review of the omnibus bill.
The chair of Earthroots, Gord Miller, says the new legislation fundamentally changes the nature of decision-making in Ontario.
The provincial government “attacked the Environmental Bill of Rights, the Environmental Assessment Act and the Planning Act, all of which require public participation in things before they’re done,” said Miller, who is Ontario’s former environmental commissioner.
“What this government has done, is said, ‘we’re discounting public decision-making and we as the government are just going to unilaterally make decisions,'” he said.
The government said it is reviewing the court submissions from Earthroots and the other environmental groups and determining its next steps.