Ontario’s review of quarry legislation fails to address First Nations’ concerns

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First Nations have been raising serious concerns, for some time, about Ontario’s process for approving quarries. A new legislative review of the Aggregate Resources Act (ARA), which governs quarries, unfortunately does little to address First Nations’ concerns.

As a result, Ontario has missed a key opportunity to address First Nations concerns while strengthening the ARA.  This failure now leaves the ARA open to legal challenge on the basis that the legislation is unconstitutional (as it does not meet current legal requirements regarding Aboriginal consultation and accommodation).

On October 30, 2013 the Standing Committee on General Government released their Report on the ARA.  The Committee was asked to review the Act and suggest how to strengthen it. The House asked the Committee to focus on a number of areas including the Act’s consultation process.

The Committee held public hearings in June and July of 2012 to receive public comments. Several First Nations made submissions to the Committee as part of this process, and raised a number of concerns. The main problems, with the current Act, from First Nations’ perspective, are:

• The ARA currently fails to provide for a requirement to consult with affected aboriginal communities in the aggregate permit process; and
• The ARA fails to address cumulative impacts of quarry projects on either the environment or cumulative impacts on the exercise of their aboriginal rights.

The Committee’s report is disappointing at best from the perspective of First Nations looking for Ontario to finally address some serious problems in the quarry approval process. The Committee did not mention First Nations specifically in their recommendations about consultation. Rather, the Committee recommended that aggregate companies hold pre-consultation meetings with the following groups to gauge potential responses to development proposals:

• Ministry officials;
• “Community groups”; and
• Local municipalities.

First Nations have a constitutionally protected right to be consulted about decisions that may impact their rights. The failure to recommend a prescribed aboriginal consultation and accommodation process is a glaring omission. The legislature recently amended both the Mining Act and the Electricity Act to cure similar deficiencies. These other legislative amendments were, in part, a response to court decisions that exposed the unconstitutionality of legislative regimes that fail to properly address Aboriginal consultation requirements.  The failure to also address the same concerns about the ARA makes this omission to address Aboriginal consultation requirements particularly surprising.

Under the changes proposed in the current review, there will continue to be no prescribed consultation process or guidance as to when and how delegation of the Crown’s duty to consult occurs. The continued lack of clarity about the respective role of the Crown and industry in the Aboriginal consultation process will result in continued confusion. On a practical level, the continuing lack of clarity about the Aboriginal consultation obligations and process in the ARA will mean that industry, the Crown and First Nations will expend far more time and resources to fight about the consultation expectations on a case by case basis.  In addition to the burden this places on First Nation, the continued lack of clarity also results in ongoing and serious legal and financial risks to the aggregates industry who will be left to sort out consultation expectations and processes on a case by case basis without legislative guidance. The combination of these results is a recipe for ongoing and escalating conflicts between First Nations and the quarry industry (and the Crown) over aggregates development, similar to the conflicts that have been plaguing mining development in Ontario. This runs contrary to the principles of reconciliation that ultimately underlie the duty to consult and accommodate.

In terms of cumulative impacts, the Committee recommends that « the Ministry of Natural Resources, in conjunction with the Ministry of Environment, conservation authorities, and aggregate producers, should ensure that potential cumulative impacts upon surface and groundwater resources are appropriately assessed and mitigated where warranted. » This recommendation is extremely broad and fails to provide guidance as to when assessment of cumulative impacts and their mitigation is « warranted.

The Chair of the Committee has requested a comprehensive response, to the report, from the Ontario government. The government has 120 days from the presentation of the report to provide their response. At that point, debate of the report and its recommendations may resume in the House. If the Committee’s recommendations are adopted, the government needs to amend the Act. Any proposed bill to amend the ARA would then make its way through the normal legislative process.

It is still open to affected First Nations to contact the relevant Ministries and/or their local Members of Parliament to voice their concerns with the report as presented and to respond to the bill that will amend the ARA.

For now, however, affected First Nations continue to be left playing catch up in their review of proposed aggregate projects in their territory. Current developments leave everyone facing the prospect that continuing uncertainty about proper Aboriginal consultation will lead to the unnecessary expenditure of more time and resources by First Nations and industry who are left to deal with the legislative gaps in the ARA and who will undoubtedly face many conflicts over quarry development as a result.

By Jeremiah Raining Bird