Aboriginal provisions in new Ontario provincial policy statement about land use planning

Ontario has adopted a new Provincial Policy Statement (PPS) governing land use planning.    For the first time, the PPS includes references to Aboriginal interests.  The new PPS replaces the 2005 PPS and will come into force on April 30, 2014.

The PPS is a policy that guides the land use planning process in Ontario.  Decisions concerning land use planning by municipalities, provincial officials, tribunals and boards must be consistent with the PPS.  The PPS contains provisions about the provincial interest in all aspects of land use planning – including development in urban and rural areas, infrastructure, natural resources, the environment and public safety.  Until now, it has been completely silent on Aboriginal matters.

The 2014 PPS, in addition to other changes,  now explicitly states that:

• it is important to consult with Aboriginal communities on planning matters that may affect their rights or interests;
• planning authorities are encouraged to co-ordinate planning with Aboriginal communities;
• planning authorities shall consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources; and
• the PPS is to be implemented in a way consistent with Aboriginal and treaty rights.

As an Ontario policy document, the PPS does not and cannot create, define, alter or limit Aboriginal or treaty rights.  These come from other sources – including inherent rights, the honour of the Crown, treaties and the constitution.  As a practical matter, however, it can be useful to have Aboriginal provisions in the PPS.  Land use planning decision-makers may not be familiar with Aboriginal and constitutional law, and it can sometimes be a challenge to engage them in such matters.  They are, however, used to being guided by the PPS, and even modest provisions about Aboriginal interests can assist in gaining their attention.

As a province-wide policy, the PPS is necessarily general, and how it applies differs widely depending on the context.  For example, the Far North Act, 2010 contains more sweeping and stronger provisions about the involvement of First Nations in the land use planning process.

By Roger Townshend