Indigenous group sues over MZOs
Premier tells municipalities to consult First Nations before requesting an order from minister
The Ford government is telling municipalities to consult with Indigenous groups before requesting a minister’s zoning order, after a First Nations group launched legal action to stop a controversial development near Lake Simcoe over what it said was a violation of the province’s constitutional obligation.
More recently, two First Nation groups objected to the lack of consultation for a warehouse project approved through a MZO in Cambridge, and say they will consider legal action if the duty to consult is not fulfilled.
Legal experts say the outcome of these appeals could have implications for minister’s zoning orders, or MZOs, approved by the province on treaty lands, which includes all of Southern Ontario.
A MZO is a provincial planning tool that allows the housing minister to rezone a piece of land to fast-track development, while bypassing public participation.
“With the prospect that First Nations might litigate approved MZOs and create a lot of uncertainty about the validity of all those MZOs, the province is trying to push municipalities to do some sort of consultation before requesting or approving MZOs,” said Laura Bowman, staff lawyer for Ecojustice, an environmental law charity.
In Innisfil, where the province issued a MZO to build a futuristiclooking housing development near Lake Simcoe called Orbit, the Williams Treaty First Nations (WTFN) filed a judicial review in September to stop the project. They allege Minister of Municipal Affairs Steve Clark “unreasonably and unlawfully ignored his constitutional obligations to consult and accommodate WTFN.”
Last month, the province threatened the mayor of Cambridge that it would consider revoking a MZO for a million-square-foot distribution warehouse in the village of Blair after the Six Nations of the Grand River told the province it was not sufficiently consulted on the project.
“In a time when ‘reconciliation’ is at the forefront of people’s thinking, we are very displeased that the both the city of Cambridge and the proponent … have failed in their responsibility to ensure that they have meaningfully engaged in our constitutionally protected right for consultation,” said Chief Mark B. Hill with the Six Nations of the Grand River in a letter to the city in October. “We are even more displeased that … Clark used his power to grant an MZO in a manner inconsistent with the honour of the Crown by failing to ensure meaningful consultation and appropriate accommodation had occurred.”
MZOs cannot override the Crown’s constitutional duty to consult and include First Nations in any decision-making processes, especially if Aboriginal and treaty rights could be adversely affected in the process, Bowman said.
“We are seeing a bit of an evolution as more First Nations have started objecting to the lack of consultation with MZOs,” said Bowman, who is not representing any of the Indigenous groups opposing the MZOs. “There is no formal process in the Planning Act of how it should take place, and who should do it — the province or the municipality.
“But (the province) can’t legislate their way out of the constitutional duty to consult.”
In a letter to Cambridge Mayor Kathryn McGarry last month, Clark said his ministry “had not received any assurances that meaningful consultation has taken place” with the local Indigenous communities and gave the town a deadline of Nov. 30 to provide an update.
A ministry spokesperson said the mayor had not yet responded to the letter.
McGarry said the city received a site plan and required studies from the Broccolini Real Estate Group on Nov.10 and would be circulated to various stakeholders including First Nations for comment. An update will be sent to the province before the deadline, she said.
At a news conference Thursday, Premier Doug Ford said Clark was in “close consultation with the developer to get the MZO” and stressed the importance of consulting with the Indigenous community. “I guess that slipped a little bit, but they are going to be able to, hopefully, get it done,” Ford said.
But the Indigenous groups say in cases where consultation has occurred, it has been incomplete and cursory.
In its judicial review application, the WFTN said that it received a request to support the MZO from the Minister of Indigenous Affairs, and was only given two short memos providing an overview of the project near Lake Simcoe.
There was no information “to demonstrate that adequate studies had been undertaken to determine the project’s impact” on its treaty rights. The case is expected to be heard in September 2022.
The province said it could not comment on the judicial review as it was before the courts.
In a letter to the Cambridge mayor, the Six Nations said meeting with the developer “could not in any way be interpreted as consultation.” The answers to its questions were “vague,” “misleading” and unhelpful in addressing “environmental impacts of the project.”
Aaron Detlor, a lawyer who represents the Haudenosaunee Development Institute (HDI), which protects Haudenosaunee rights, said his client was not notified nor consulted about the Cambridge MZO. He says it’s unlikely the province will be able to meet the Nov. 30 deadline.
“I think they pre-emptively determined how engagement is to occur without talking to their treaty partners which seems somewhat colonial, patronizing and presumptuous,” said Detlor, who added the HDI would consider filing a judicial review if it is not included in the process.
Detlor said the city’s land acknowledgment, which refers to the Haudenosaunee, “rings hollow given the city’s outright dismissal of our rights in favour of one commercial development.”