Changes Coming to Ontario Provincial Policy Statement and land-use planning

Following in the wake of the significant changes to the environmental and land use planning regimes brought in by Bill 108, More Homes, More Choice Act, 2019, Ontario is now proposing changes to the Provincial Policy Statement (PPS). The PPS is the policy framework that provides direction to decision-makers in the land-use planning process under the Planning Act.

Revisions to the PPS confirm and strengthen the requirement for First Nations to be involved in land-use planning decisions.

The draft PPS is open for comment on the Environmental Registry until October 21, 2019.

The proposed revisions should be an improvement for First Nations  seeking consultation and accommodation regarding land-use planning decisions as the proposed PPS is clearer about the requirement to engage with First Nations.

Below are the key changes affecting First Nations:

Part IV: Vision for Ontario’s Land Use Planning System

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The Province’s rich cultural diversity is one of its distinctive and defining features. Indigenous communities have a unique relationship with the land and its resources, which continues to shape the history and economy of the Province today. Ontario recognizes the unique role Indigenous communities have in land use planning and development, and the contribution of Indigenous communities’ perspectives and traditional knowledge to land use planning decisions. The Province recognizes the importance of consulting with Aboriginal communities on planning matters that may affect their section 35 Aboriginal or treaty rights. Planning authorities are encouraged to build constructive, cooperative relationships through meaningful engagement with Indigenous communities to facilitate knowledge-sharing in land use planning processes and inform decision-making.

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4.3 This Provincial Policy Statement shall be implemented in a manner that is consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982.

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1.2.2 Planning authorities shall engage with Indigenous communities and coordinate on land use planning matters.

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2.6.5 Planning authorities shall engage with Indigenous communities and consider their interests when identifying, protecting and managing cultural heritage and archaeological resources.

The new PPS is a step forward and should help address some of the basic gaps in existing PPS. However, it does not go nearly far enough in setting out a regulatory scheme that is consistent with the United Nation Declaration on the Rights of Indigenous Peoples (or s. 35 of the Constitution Act, 1982 for that matter).

For example, for “Prime Agricultural Lands” the draft PPS requires that impacts on these lands from non-agricultural uses is to be “avoided, and where avoidance is no possible, minimized and mitigated…”. There is no such requirement for impacts on First Nations rights or lands set out in the PPS. 

This is important because whatever the existing constitutional obligations, often those involved in land-use planning are unfamiliar with the legal requirements under the duty to consult and accommodate. This leads to confusion, frustration for First Nations, and often failed consultation.  Decision-makers often act only in compliance with the applicable policy framework and ignore the legal obligations under the duty to consult and accommodate.

In some cases, this problem is exacerbated where a land-use planning decision is made directly by a municipality because some municipalities take the incorrect position that the duty to consult and accommodate is not triggered by municipal decisions.

In addition to the above specific changes, there are several other provisions of note in the revised PPS which First Nations may want to provide comments on. These provisions would:

• allow aggregate extraction in significant wetlands, woodlands, ANSIs, and other locations where site alteration is normal prohibited, if the aggregate development is outside the Greenbelt and certain conditions are met;
• require land use planning to take into account the impacts of climate change, including in relation to sewage and stormwater management;
• lean away from intensification focus of the current PPS and allow planning authorities more flexibility, such as the ability to expand outside existing settlement areas in certain circumstances, promoting housing development
• provide more flexibility to planning authorities to allow the construction of new transportation infrastructure instead of improving the efficiency of existing transportation systems;
• allow municipalities to manage wetlands where site alteration is not prohibited according to provincial guidelines.