Since the historic case of Haida Nation v. British Columbia (Minster of Forests)1 and associated cases it has been well established that there is a Constitutional duty to consult owed to First Nations communities in Canada by the Federal and Provincial Crown. The Crown can assign the duty to consult to municipalities by statute but the ultimate responsibility for the duty to consult lies with the Crown. This duty to consult was considered by the Ontario Land Tribunal (the "Tribunal") in its recent decision in Galibier Materials Inc. v. Springwater (Township) in the context of the Planning Act, the result of which establishes a potentially destabilizing precedent for Ontario's planning regime.
The Duty to Consult Under the Aggregate Resources Act
The duty to consult with First Nations communities over lands where they have expressed or identified a treaty claim is standard in applications to establish or expand a pit or quarry under the Aggregate Resources Act (the "ARA"). Once an application is filed with the Ministry of Natural Resources (the "Ministry") the Ministry identifies for the proponent the communities to be consulted as part of the application process. This duty can extend to First Nations communities located hundreds of kilometres away from the subject site. Only when the Ministry determines that the duty to consult has been met by the proponent will the Ministry approve the application or refer it to the Tribunal for a hearing. More often than not that referral is consolidated with applications made under the Planning Act to allow for extraction of sand, stone or gravel from that same site.
The Duty to Consult Under the Planning Act
With respect to the Planning Act, Ontario Regulations 543/06, 544/06 and 545/06 (the "Regulations") require that municipalities provide notice of applications for official plan amendment, plan of subdivision and zoning by-law amendment applications to "the chief of every First Nation council, if the First Nation is located on a reserve any part of which is within one kilometre of the area to which the proposed [amendment] would apply". Ostensibly this is to meet the duty to consult.
Is this requirement under the Regulations sufficient to meet the duty to consult?
The Tribunal and its predecessor bodies has granted party status to First Nation communities requesting same when granting the request:
- was made on consent of the other parties2;
- recognized that the First Nation had been involved in the statutory public...
