Respecting the land and treaty rights of Indigenous peoples is an important aspect of many development projects. Certain projects can trigger the Duty To Consult (DTC), which requires developers to seek the counsel of Indigenous peoples to ensure their rights and interests are protected. As part of its three-day Ontario Legal Conference event in Toronto, the OBA hosted an expert-led discussion on the DTC to help municipal and environment lawyers better understand the nuances and implications of this law.

Julie Abouchar of Willms & Shier, Environmental Lawyers LLP, began the session by highlighting Section 35 of the Constitution Act, which is foundational to understanding the DTC. Abouchar explained that Section 35 "explicitly recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada." The DTC intends to further the aims behind Section 35 by ensuring there is "an obligation of the Crown to consult and, where appropriate, accommodate Indigenous groups where the government action or decision may have a negative impact on Aboriginal and/or treaty rights," Abouchar said.

Even though the Crown is obligated to follow the DTC, court decisions like Neskonlith Indian Band v Salmon Arm (City), 2012 BCCA 379, have determined that municipalities generally do not owe the DTC. These court decisions found that municipalities do not have direct powers under the Constitution Act, 1982 and that they lack the resources and time to consult Aboriginal peoples regularly.

Despite these rulings, some academics argue that municipalities should owe the DTC since they "exercise governmental powers [and] … effectively exercise de facto sovereignty over Indigenous interests." Abouchar said the same academics contend that "municipalities are well-positioned to assess the risks posed by local projects … and are very used to negotiating and consulting with the public."

Abouchar also noted that the Crown can delegate the responsibilities of the DTC for certain municipal development projects. One example of this is when a municipal project develops onto land with potential archaeological significance. In these circumstances, the Ontario Heritage Act and the Funeral Burial and Cremation Services Act could compel an archaeologist working on a municipal project to owe the DTC, such as when a burial site is found.

Following Abouchar's explanation of the DTC, Ceyda Turan of Turan Law Office discussed how a Minister's Zoning Order (MZO) could affect and often negate the DTC.

A Minister's Zoning Order "refers to the minister's ability to import or alter zoning, interim control bylaws, temporary use bylaws directly pursuant to s.47(1) of the Planning Act," Turan noted.

Prior to 2019, MZOs were uncommon. Ministers generally issued these orders in situations where development projects were desperately needed by a community, such as rebuilding a collapsed grocery store.

Two recent omnibus bills, Bill 257 and Bill 229, have led to a sharp increase in the use of MZOs. Since these bills were passed, over 60 MZOs have been issued, with only a few addressing exceptional or urgent circumstances.

Turan highlighted that this liberal use of MZOs has had several negative outcomes, such as a lack of accountability for the minister, insufficient research to determine the ecological impacts of an MZO and an undermining of Truth and Reconciliation efforts.

To illustrate the potential impacts of an MZO, Turan reviewed the Williams Treaties First Nations' (WTFN) Intervention. In this case an MZO could have had drastic impacts on Aboriginal peoples and local environments, like through the destruction of irreplaceable wetlands. Even though the WTFN stopped the MZO since it could "significantly impact their constitutionally protected treaty harvesting rights," this case highlighted the negative impacts MZOs can have if the minister forgoes the requirements of the DTC, like in-depth environmental impact studies.

Turan finished her talk by explaining how circumstances like the WTFN case are disappointing since "instead of advancing the reconciliation and doing what the minister can do, which can go beyond the statutory requirements … we see a step backwards.” Turan continued, “First Nations find themselves, frequently, in situations where they don’t have the requisite studies to assess impacts on their rights.”

If you would like to see a recording of this discussion or learn from any other expert-led talks at the Ontario Legal Conference, you can purchase a recording of the entire event here.