Ontario: Developers need to engage First Nations

The Ford Government has issued its proposed Provincial Policy Statement, 2019 (PPS) – the collection of rules and statements that guide planning authorities when making land use planning decisions.

Many of the proposed PPS changes are consistent with what we would expect from the Ford government – Increasing the supply and mix of housing, supporting economic growth, and reducing barriers while protecting the environment and human health.

However, one change stands out among the others: Ontario is proposing to strengthen policies relating to Indigenous engagement, such that planning authorities, and by extension development proponents, are required to engage with the province’s Indigenous communities.

Some municipalities and development community members may see this as a “new” policy that is inconsistent with the government’s desire to speed up development and reduce red tape, but the reality is that Indigenous community engagement isn’t a new policy requirement.  The new PPS language is intended to clarify the need for such engagement when considering land development.

More importantly, if municipalities and project proponents do it right, Indigenous engagement doesn’t have to delay the planning process. In fact, it can make your project more likely to succeed by addressing issues upfront in the approval process.

What’s new?

Minister Clark and Premier Ford are clearing up the ambiguity that many other governments left to the private sector, municipalities, and individual Indigenous communities to fight out at great expense in legal fees, delays, and uncertainty, creating tremendous acrimony and distrust along the way.

Since 2004 the Supreme Court of Canada has made clear that First Nations, Metis, and Inuit communities are owed a Duty to Consult where government decisions may have negative impacts on Indigenous rights protected by the constitution.

With very few exceptions, there are no policies, regulation, or legislation any government of any stripe can use to override these rights – not even the infamous Notwithstanding Clause.  What has been left unclear however, is how that duty fits with the role and responsibilities of planning authorities and project proponents.

Ontario has many examples of where the planning process has broken down into conflict and has caused lingering pain and distrust – the word Caledonia immediately send chills down the spine of anyone who remembers what happened. But many smaller, less intense conflicts are underway every day. These happen out of the line of sight of the media, occurring through decisions that must be guided by tools like the PPS. These seemingly little conflicts combine into a concern that critical issues like the need for Indigenous engagement are being missed in how our planning system is being carried out, providing ample conditions for future confrontations and even the potential for further intense conflict with First Nations and Métis communities over land use.

The draft PPS recognizes this and clearly tells planning authorities and proponents: remember that you are required to appropriately engage with Indigenous communities.

What does it mean?

Do we have to delay the development plans we have? Most of the time no it doesn’t, but honestly, sometimes yes. If you are far down the path of a development that could impact the rights of Indigenous communities and you haven’t engaged yet you should rethink your strategy. But this is not just because of an updated PPS. Indigenous communities have always had the right to take these developments to court.

However, if you are just getting started, even if you have not drawn a single line on a plot of land, now is the time to think about engagement and you will increase the odds that your project will stay on time and on budget.

Our Analysis

Engagement with Indigenous communities won’t be like the engagement you do elsewhere. In our experience, most Indigenous communities don’t want to be our adversaries, they want to be our partners.

Building strong, trusting relationships with communities is as essential as it is rewarding. Identifying what must be done to make a project work and ensuring its compatibility with Indigenous perspectives from the outset will reduce the risk of delays, redesigns, litigation and all sorts of other issues that can result in cost overruns. Finding ways of collaborating with Indigenous communities can make your project stronger while reducing risk.

With this change, the province is clarifying the importance of Indigenous engagement and essentially saying is let’s ensure we all understand how important it is for the Indigenous and non-Indigenous people of Ontario to develop this Province together, respectfully. Let’s keep costs and barriers under control and not risk dragging things to court when minor changes early in the planning and development process probably would have sufficed. Let’s not just talk a good game about reconciliation through announcements and photo ops, let’s get on with it where it really matters – how we share this land.

The actions taken by the current Ontario government are an important move towards reconciliation that, with a good approach, won’t create much new burden for developers. And while this decision should have been made a long time ago, now is as good a time as ever for progress.