How Ontario can get the Ring of Fire back on track

ANALYSIS: Doug Ford says he’ll hop on a bulldozer if necessary — but a recent court decision about the Trans Mountain Pipeline shows there’s an easier way, writes Josh Dehaas
By Josh Dehaas - Published on October 4, 2018
Trans Mountain pipeline marine terminal in Burnaby, BC.
The Federal Court of Appeal’s recent ruling on Trans Mountain emphasized the importance of consultation with First Nations communities. (Jonathan Hayward/CP)

In 2013, Tony Clement, then the federal minister responsible for northern Ontario’s economic development, described a smattering of chromite and nickel deposits in the far north as Ontario’s answer to the Alberta oilsands. Ever since, people everywhere from Timmins to Sault Ste. Marie have been buzzing about the possibility that new mining and smelting jobs will spring up in the economically depressed region.

But the location makes things complicated. The deposits are more than 300 kilometres from the nearest highway or rail line, and they’re also on or near the traditional territory of nine First Nations communities, which have to be consulted before any project can proceed.

Some are worried that the Federal Court of Appeal’s August decision about the Trans Mountain pipeline, which emphasized the importance of such consultations, will slow progress on the Ring of Fire or give First Nations a de facto veto over resource projects — but legal experts say that’s not the case. In fact, they say it may actually provide a roadmap for the Ford government to get the stalled project back on track.

To clear the way for development, Kathleen Wynne’s Liberals hired former premier Bob Rae in 2013 to represent the First Nations in negotiations with the province. In less than a year, Rae had helped them negotiate a framework agreement that included plans to share the mining royalties. After that, the process seemed to lose momentum. Nearly four years later, Wynne announced that she’d reached an agreement with three of the nine nations to begin construction on a $1 billion road. Days later, two of the three nations involved said Wynne’s announcement of an agreement had been “premature.”

During the spring election campaign, Doug Ford was quick to capitalize on the hold-ups, saying he would build a road to the Ring of Fire “if I have to hop on a bulldozer myself.”

The comment still makes Chief Bruce Achneepineskum chuckle. “A bulldozer will sink in the muskeg if you don’t know where you're going,” he says. “That’s why you need First Nations involvement.”

Achneepineskum, who leads Marten Falls First Nation, believes development could benefit his community. He’s excited by the prospect of new jobs and of finally having a road that would connect the reserve to the provincial highway system.

But he does have concerns. The road, he says, might bring in outsiders who hunt for sport rather than subsistence. And Achneepineskum wants to make sure that a portion of any revenue created will go to the First Nation, which is facing a number of challenges, including a lack of public housing. The chief says that when the province built hydroelectric dams on traditional territory in the 1930s and 40s, rivers in the area dried up, but the nation never received any direct compensation. “We don’t want to see history repeat itself,” he says.
 
That’s why Achneepineskum is cheering the federal court decision on Trans Mountain, which found that the federal government had not adequately consulted affected Indigenous peoples before approving permits for the pipeline. Some Canadians are upset that the delay has cost jobs, but Achneepineskum says the ruling served as an important reminder that meaningful consultations with First Nations aren’t optional.

University of Saskatchewan law professor Jason MacLean, an expert on Aboriginal constitutional rights, says that what many people don’t realize is that the federal court’s decision didn’t change anything about the law.

“There’s been a lot of, quite frankly, hyperbolic, hysterical reactions to the court’s decision from people who probably haven't read it closely,” he says. “The court is just saying what the Supreme Court of Canada has said for years, which is that consultations with Indigenous people have to be in good faith, and in order to satisfy the honour of the Crown, it has to be a meaningful dialogue. But that doesn’t mean — and in fact explicitly does not mean — that Indigenous peoples’ consent is required.”

MacLean says that the law makes clear that a province can’t just note the concerns of First Nations and then choose not to respond to them and that it needs to propose reasonable accommodations when rights may be affected. He points to the Tsleil-Waututh First Nation’s concerns about the gap in scientific knowledge about how diluted bitumen behaves when it’s spilled in a cold-water marine ecosystem as an example of the inadequacy of the federal government’s Trans Mountain consultations.

“What Canada did in response was it just listened and said something like [the company] has to comply with all legislation and the terms of the order, but it didn’t really answer their question,” MacLean says. “They could have said, ‘You know what? You’re right. We don’t know that, but here’s what we’re going to do in the meantime.’”

That means that if Ontario were to undertake good-faith consultations but fail to come to an agreement with all of the potentially affected First Nations in the Ring of Fire, it could still proceed with development “if it’s confident that it’s proposing, under the circumstances, what are reasonable accommodations,” MacLean says.

The best way to ensure that it is, according to MacLean, would be to drop the bulldozer rhetoric and hire a neutral third-party expert, perhaps a retired judge, to analyze which First Nations rights might be affected by the development and to assess the accommodations offered.

In MacLean’s view, the government should sign a revenue-sharing agreement and address other First Nations concerns before issuing mining permits or building a road. Doing so may not be constitutionally required, but he believes it’s the honourable approach.

Greg Rickford, Ontario’s new minister of energy, northern development and mines, and the minister responsible for Indigenous Affairs, was unavailable for an interview, but a spokesperson said that “the government is committed to working towards future developments in the Ring of Fire area” and “to meeting the province’s constitutional and other obligations in respect of Aboriginal peoples, including the duty to consult.”

Chief Achneepineskum says he’s optimistic that an agreement can be reached. If negotiations resume in the near future, he thinks development could begin as early as five or six years from now.

Even if First Nations can’t veto resource projects on their traditional lands, Achneepineskum says, they have other ways to make their voices heard.  “If a project is going ahead in a fashion where the plan is to steamroll all affected parties and steamroll ahead,” he says, “there’ll be resistance.”

Josh Dehaas is a freelance journalist whose work has appeared in Maclean’s and the National Post, among others.

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