EDITOR’S NOTE: This article originally appeared on The Trillium, a Village Media website devoted to covering provincial politics at Queen’s Park.
A draft of a briefing document prepared for the Ontario cabinet warned that the province’s move to end the environmental assessment of Highway 413 poses some legal risks concerning the duty to consult Indigenous people.
The Ford government passed Bill 212, the Reducing Gridlock, Saving You Time Act, into law Monday after limiting First Nation consultation on the bill to just 30 days, something Ontario Regional Chief Abram Benedict said was too short and risks causing Indigenous communities to sue.
"Everybody has the desire to advance projects (but) this type of approach runs a great risk of challenges in opposition to it, which can definitely add to the time it takes to get these things rolling," said Benedict, warning that unless the province rethinks its way of dealing with First Nations a lawsuit is inevitable.
"It will happen at some point. Whether it will be this project, is unknown ... It's definitely coming. Unfortunately, our communities have been forced to examine what these legal avenues and remedies are much more than I would like them to be."
Bill 212 will allow the government to bypass all further public consultations on Highway 413 by exempting the long-promised priority project of the Ford government from requirements under Ontario's Environmental Assessment Act.
Instead, the legislation will subject the highway to "customized environmental assessment requirements" that include a new Indigenous consultation process, but not before early works on the project can proceed.
The cabinet document, marked "draft," appears to have been prepared for Premier Doug Ford and his cabinet ministers before the bill was tabled.
In a section on “legal risks,” it warns that the province will have a duty to consult First Nations in relation to proceeding with the project, including early works.
“This consultation must be meaningful and timelines cannot be prescribed,” it says.
“Allowing early works to proceed without assessment and before completion of the customized (Environmental Assessment) process for the remainder of the project may create additional complexity for (Ministry of Transportation) when fulfilling the (duty to consult) in relation to the project and may result in assertions about the good faith nature of the consultation,” it says.
A concern is the possibility of First Nations using the "honour of the Crown" argument in a court action in opposition to the highway project as a whole.
The document notes that the "honour of the Crown" constitutional principle holds "that the Crown must always act fairly in dealings with Indigenous peoples," and warns that how the courts may interpret this with regard to Highway 413 consultations is unclear.
The Trillium obtained the document from an advocacy group, which received it from an unknown source. A well-placed government source confirmed its authenticity.
The Trillium asked acting Environment Minister Todd McCarthy and Minister of Indigenous Affairs and First Nations Economic Reconciliation Greg Rickford about the document, and neither would speak directly to it.
Asked if the timelines for the First Nation consultation process will be significantly reduced following the passage of Bill 212, McCarthy noted that consultation on Highway 413 has been ongoing for nearly two decades.
"Obviously, there are some timelines that have been set out, but again, this is not new. This is based on 17 years of report studies and consultations that we're also relying upon," McCarthy said this week. "So that's a long period. I think it's a fair period. But we also make sure that in ... putting shovels in the ground for 413 and moving forward with it that we engage in the early works first with the least environmental impact."
Rickford, when asked about the timeline for Indigenous consultation, said it should be ongoing throughout.
“Anybody who would suggest that consultation has to be open and closed before anything could begin is shutting out a significant opportunity,” he said. “And that's why, in parts of Ontario where there's some exciting things going on, that door remains open. It must be reasonable, right?”
Rickford also stressed there can be economic opportunities in consultation.
“We want to make sure that we maximize those. We don't want this to be just a strict duty to consult. It's not of any benefit to any First Nations community that I've met, and I've met them all in some way, shape or form, especially around major projects and initiatives.”
Rickford’s ministry will be advising on which are the right First Nations to be consulted in the new process, he said.
First Nations already unhappy with the consultation undertaken to date
Before Bill 212 was tabled, some First Nations leaders had already expressed their disappointment in the provincial government's Highway 413 consultation efforts, and some had refused to participate further.
"We haven’t heard anything from the Ministry of Transportation about this project since last January,” Mark LaForme, consultation and accommodation director for the Mississaugas of the Credit First Nation, said in a phone interview earlier this fall. “And we never had consultations in terms of two-way dialogue.”
Lonny Bomberry, lands and resources director for the Six Nations of the Grand River (SNGR) was similarly critical. “This project is on our treaty area and we’re entitled to consultation and accommodation,” Bomberry said. “But we’re not talking with them at all.”
MTO documents obtained in response to a freedom-of-information request corroborate these criticisms.
During a June 6, 2023 meeting that included a panel of MTO officials, Six Nations representative Peter Graham told Catherine Gentile, lead environmental planner for WSP Construction consultants, that the highway’s cumulative effects infringe on treaty rights.
“We are expected to allow these projects to proceed, and I think those days are coming to an end,” he said, the documents show.
Speaking alongside Graham at an August 2023 meeting, SNGR representative Phil Montour linked the government’s 413 strategy to its efforts to promote the development of then-removed Greenbelt lands that were previously under legal environmental protections.
“Looking at the Greenbelt legislation going forward, all the government is concerned about is taking care of the non-natives. Our rights have been trampled on,” Graham said. “All the new immigrants are coming in, the new housing, and the new highway; these are not to accommodate us. In fact, this is another cumulative effect that ensures our treaty rights will be extinguished.”
During a September 2023 meeting, Montour and Graham both told MTO they would not continue the discussions unless they could consult with the province directly.
“The Ontario government is taking the Greenbelt lands,” Graham said. “No disrespect to you all, but I will be leaving this meeting until we can sit down and have some good discussions with the Ontario government.”
What’s next?
The province is also bracing for possible protests against Highway 413 that might attempt to disrupt its construction by making it an offence for anyone to hinder accessing or taking possession of a work site, or sabotage the work or construction equipment. If found guilty individuals can be fined up to $100,000 plus $10,000 per day if access to a site remains blocked. Organizations can be fined up to $500,000, plus $10,000 per day.
Blockades are a common tactic used by First Nation land defenders against projects opposed by Indigenous communities. Grassy Narrows has maintained a blockade to prevent forestry work in its territory for more than 20 years, and Wet'suwet'en protesters made national headlines during their efforts to prevent the Trans Mountain Pipeline in British Columbia.
Asked if he thinks the measures are in anticipation of First Nation protests, Regional Chief Benedict noted environmental groups are also known to use such tactics and said that First Nation protesters are unlikely to be deterred by such policies.
"Our folks, if they hear strongly about it, they will defy court orders, unfortunately, more often than folks would like," he said.
Benedict, who was elected earlier this year on a promise for a more constructive relationship with the province, said he believes that a "reasonable path forward" can be reached before anything like that happens.
"A reasonable path forward is something that we can definitely work on together with them," he said. "I'll be following up with (Indigenous Affairs Minister) Rickford on this ... and saying 'this is not conclusive to finding a better working relationship with our communities.'"
