Exclusionary Planning in Ontario [Aboriginal Conflict and Ring of Fire Mineral Development] – Canada’s North: What’s the Plan?

This posting is an excerpt from Canada’s North: What’s the Plan? , a Conference Board of Canada publication written by three nationally renowned Canadian scholars: Thomas Berger , Steven A. Kennett and Hayden King.

Canada’s North: What’s the Plan?Highlights:

Most of Canada’s natural resources—forests, metals and minerals, hydroelectric sites, oil and natural gas, and untapped resources that can be further developed—are in the North, and a warming climate is making them more accessible. Businesses, Aboriginal communities, and federal, provincial, and territorial governments will all want their share of the benefits of Northern economic development.

Canada’s North: What’s the Plan? draws on the different viewpoints of three nationally renowned scholars to explore the effectiveness of land use planning in Canada’s North from three very distinct perspectives. Their essays are required reading for those seeking to understand this important issue and draw their own conclusions.

Ontario represents the worst type of planning with Indigenous peoples—a seemingly complete disregard for the perspectives and opinions of the people who will be most directly affected by the land use plans. – The Conference Board of Canada Publication –  Canada’s North: What’s the Plan?(November, 2010)

Exclusionary Planning in Ontario

While Nunavut and Yukon have pursued land use plans through the relatively recent NLCA and UFA, treaties in Northern Ontario are over 100 years old and make no mention of planning commissions. There are also no stipulations for the co-management of surrendered lands in the North, and there is no consensus on roles and responsibilities. In fact, there is little consensus about who actually has authority in Ontario’s North. The Cree and Ojibwe feel that they agreed to share their territories in treaties 3, 5, and 9. Ontario feels that there was explicit surrender and, thus, the Crown has jurisdiction.

This is the unsteady footing from which planning proceeds in the province. Not evolving from the claims-based co-management common in the territories, Ontario’s experience might be described more as crisis-based, as it is a response to numerous high-profile confrontations. However, despite the differences between Nunavut’s and Ontario’s land use planning regimes, there are similarities—primarily, the exclusion of Indigenous peoples from the planning process. In Ontario’s case, the problem does not lie in the execution of plans, but in the drafting.

Ontario has an inauspicious history with First Nations communities in the province. That history has even occasionally resulted in violent conflict with the Haudenosaunee and Algonquin peoples, often over lands and resources. Of course, the province has witnessed the police shooting death of Dudley George at Ipperwash and the ongoing standoff in Caledonia, but most pertinent have been a number of recent conflicts in the North. Foremost among these is probably the summer of 2008 dispute between the Kitchenuhmaykoosib Inninuwug (KI) and the platinum mining firm, Platinex. Under Ontario’s ancient Mining Act, companies are granted free entry, essentially wherever they please, to explore for subsurface minerals. In this case, Platinex began exploring KI territory, over the latter’s objections. When the Chief and council of the community parked their boat in the path of floatplanes carrying prospectors, forcing them to turn back, Platinex sought and secured an injunction against the blockaders. Still, they refused to move. This led to their jailing on six month prison terms and subsequent widespread condemnation among Ontarians of the draconian punishment.

Amid the public outcry, and subsequent incidents at Attawapiskat and Grassy Narrows, the Ontario government sought to alleviate some of the tension. It agreed to revise the Mining Act; to set up a bilateral forum called The Northern Table with the Nishnawbe Aski Nation (NAN), the political organization that represents 49 Far Northern First Nations; and to embark on an ambitious attempt to draft planning legislation. Indeed, when the next conflict arose, the Ontario government’s actions were quite different, though the First Nations’ were similar.

This time, when prospectors attempted to land their plane on a frozen lake landing strip in Marten Falls and were turned away by the protestors, they did not file an injunction. Instead, the incident was reported to Ontario’s Minister of Northern Development and Mines, who then personally visited the community. He brought rare fresh fruit, Ontario government golf shirts, and hats as gifts, met for hours with the community about their concerns, and finally offered assurances that Marten Falls would benefit from development.

Ontario’s change in tactics is undoubtedly informed by past mistakes (the government had to pay Platinex millions of dollars in the KI case, for example). However, it also likely relates to what those prospectors were seeking in Marten Falls in the first place—chromite. The suspected deposits of chromite throughout 5,000 square kilometres of Northern Ontario rock have been called “the most promising mining opportunity in Canada in a century.”41 Labelled the “Ring of Fire,” the chromite find is unique in North America and is expected to create a staking rush and mineral boom in the province—so much so that the Ontario government has appointed a Ring of Fire coordinator. However, the development will affect many First Nations and, needless to say, the government cannot risk multiple angry First Nations threatening this opportunity as they have in the past. As such, in addition to golf hats, Ontario has been working steadily on land use planning legislation for the North.

The Far North Act, which the Ontario Legislature passed as Bill 191in September 2010, is designed to bring Ojibwe and Cree peoples into the land use planning process. In fact, the stated purpose of the Act is to provide “land use planning in the Far North that directly involves First Nations in the planning.” The rhetoric is impressive, really. In the actual legislation, the term “First Nation” is mentioned 55 times in 24 terse sections.42 Yet, the trend described above regarding power and illusion is maintained. Ontario drafted the Act without NAN’s input, scheduled consultations unilaterally and on short notice, and then cancelled the consultations when NAN representatives couldn’t attend.43 In fact, so contentious is the Far North Act that NAN has condemned it. As Grand Chief Stan Beardy stated on the eve of the bill’s passage,

“We will do everything we can to prevent this legislation from passing, but if Bill 191 is passed in spite of our opposition, NAN First Nations will not recognize the legislation and will move to exercise full and exclusive jurisdiction over their traditional territory.”44

In addition to the concerns already mentioned, NAN is strongly opposed to the encroachment and usurpation of jurisdiction in their territories. Under treaties 5 and 9, the 49 signatory First Nations believe they have the right to govern themselves and the lands they have occupied since time immemorial. Yet, the Far North Act presumes to set aside 225,000 kilometres for conservation without input from NAN; to divide the Far North territory into two zones, against their opposition; and to give control of the land use planning process entirely to the Ontario government—even community land use plans are subject to ministerial approval.45 In addition, many projects are excluded from land use planning, including the construction of transmission lines, mineral staking and exploration, and already-approved plans. In fact, the minister “would have authority to determine additional activities that may proceed before a community-based land use plan is in place.”46 Again, that leaves ultimate authority with the government and potentially eschews local people’s desires.

It is not as though First Nations in Northern Ontario are opposed to development or conservation (though they might have unique notions of both), or even the concept of land use planning. As Sandy Lake First Nation Chief Alan Fiddler has noted, “We fully support land use plans . . . [but] within the terms and guidelines established by our Elders and our communities.”47 This was the message community members from the Far North tried to deliver to the Ontario government on the steps of the Legislature as the bill was being passed. But despite the protest outside, the government signed the Far North Act into law. This marked not the hoped-for end, but the stubborn continuation of the trend in confrontation between the Ontario government and First Nations.

While this discussion began with the observation that Ontario has changed tactics in response to First Nation demands, the reality is stasis. As early as 1992, the Dease River Band Council Manager reported,

“In the majority of the land, we are the sole users and occupiers. The government, with its various ministries, has studied and prepared management plans in which we have had no input. The majority of the management plans are not geared to meeting the First Nations’ needs or priorities.”48

Based on the description of Ontario’s effort at planning and the exclusion of NAN, the trend, it seems, endures. The only real change is the recognition of the increasing assertiveness of First Nations in the province and corresponding pandering, which might only delay the inevitable clashes, which are sure to re-emerge as long as Ontario insists on planning the North unilaterally, excluding Indigenous peoples.

Planning attempts in Ontario and Nunavut are not the only examples of the contemporary relationship between Indigenous peoples and Canadian, provincial, and territorial governments regarding land use. However, they are prominent and indicative of Northern planning to a large extent. Ontario represents the worst type of planning with Indigenous peoples—a seemingly complete disregard for the perspectives and opinions of the people who will be most directly affected by the land use plans. In Nunavut, on the other hand, Inuit input was gathered, considered, and included. Indeed, the two existing plans were incredibly promising. However, the NPC, the organization that implements the plans, has failed Nunavummiut. The Nunavut example demonstrates planning dysfunction and may signal that even when plans arise from good intentions, they are incredibly difficult to sustain.

41 “Don’t Let Mines Pre-Empt Natives” Toronto Star, editorial, March 10, 2010.
42 O ntario, Legislative Assembly, “Bill 191,” Far North Act, 2010, Government of Ontario.
43 Kate McLaren, “Far North Act Hearings Cancelled,” The Sudbury Star, June 23, 2010.
44 Nishnawbe Aski Nation, Bill 191, news release (n.p.: NAN, July 22, 2009).
45 O ntario, Legislative Assembly, “Bill 191.”
46 O ntario, Ministry of Natural Resources, Far North Act, backgrounder (Toronto: Government
of Ontario, n.d.). www.mnr.gov.on. ca/en/Business/FarNorth/2ColumnSubPage/273187.html.
47 Tanya Talaga, “Stop Far North Act or Face Conflict: First Nations,” The Toronto Star,
September 14, 2010.
48 RCAP, Report of the Royal Commission.

For an extensive list of articles on this mineral discovery, please go to: Ontario’s Ring of Fire Mineral Discovery

The Authors of “Canada’s North: What’s the Plan?”:

Thomas R. Berger was counsel for the Nisga’a Nation of B.C. in a
case in which the Supreme Court of Canada recognized the place of
Aboriginal rights in Canadian law. While serving on the Supreme Court
of British Columbia, he headed the Mackenzie Valley Pipeline Inquiry.
His report on the inquiry—Northern Frontier, Northern Homeland—
was published in 1977. His public intervention in 1981 was instrumental
in the inclusion of Aboriginal and treaty rights in the new Canadian
Constitution. After resigning from the bench in 1983, Mr. Berger led the
Alaska Native Review Commission, taught at the University of British
Columbia, practised law in Vancouver, and served as vice-chairman of
a World Bank inquiry. He has written several books, including Fragile
Freedoms, A Long and Terrible Shadow, and One Man’s Justice. Mr.
Berger holds honorary degrees from 14 universities, and has received
the Order of Canada and the Order of British Columbia.

Steven A. Kennett, is an independent policy consultant based in
Calgary. His contract work and publications have examined many topics
related to natural resources and environmental law and policy, including
integrated resource management; land use planning; cumulative effects
assessment and management; regulatory processes in Alberta, the
Northwest Territories, and Yukon; renewable energy; and climate
change. Policy and legislative aspects of the Government of Alberta’s
Land-Use Framework have been a primary focus of his recent work.
Mr. Kennett was a senior policy analyst with the Pembina Institute from
2007 to 2009. From 1992 to 2007, he was a research associate with the
Canadian Institute of Resources Law at the University of Calgary.
Mr. Kennett holds a BA (Hons) in politics and economics from Queen’s
University, an MPhil in politics from Oxford University, an LLB from
the University of Toronto, and an LLM from Queen’s University.

Hayden King, was born in Huronia, Ontario, and is a member of the
Beausoleil First Nation on Chimnissing. He is proud of both his
Anishnaabe (Bear Clan) and English heritage. Mr. King teaches and
undertakes research in the Indigenous Studies Program at McMaster
University in Hamilton, Ontario. In previous capacities, he has served as
the senior policy advisor to Ontario’s Minister of Aboriginal Affairs and as
the director of research for the Canadian Council on Aboriginal Business.