Municipal Duty to Consult and Land Use Planning Law in Ontario

  • November 25, 2021

by Donya Yarahmadi, winner of the 2021 Municipal Law Section Student Essay Contest

Introduction

Canada’s indigenous people were here when Europeans came and were never conquered. Many bands have reconciled their claims with the sovereignty of the Crown through negotiated treaties, while others have yet to do so.1 This requires the Crown, acting honourably, to consult, and where indicated, to accommodate indigenous peoples’ interests.2 The duty to consult and accommodate the rights and claims of indigenous people is a duty of the federal or provincial Crown, and not third parties, such as municipalities.3 However, procedural aspects of the duty to consult may be delegated to project proponents or third parties.4 Municipalities continue to play a critical role in the lives of indigenous people and make decisions directly affecting their interests. One way this occurs is through land use planning decisions. Today, 85.5% of indigenous people live in Ontario within municipalities.5 Planning decisions are governed by the Planning Act and mechanisms are in place which afford public consultation (the “Act”).6 There is a lack of clarity in the law regarding the relationship between the duty to consult and municipal land use planning decisions. It is not clear when planning consultations will not be sufficient to discharge procedural aspects of the duty to consult.

Part one of this paper will discuss the legal framework for the duty to consult and land use planning decisions in Ontario. Part two will discuss land use planning decisions involving indigenous interests and the duty to consult. Part three of this paper will discuss recommendations for clarifying the relationship between the duty to consult and accommodate indigenous peoples and its relationship with land use planning mechanisms in Ontario.

PART I: Legal Framework

The Duty to Consult

The duty to consult is triggered once the Crown is contemplating a decision that may have an adverse impact on proven or asserted section 35 rights.7 Section 35 of the Constitution Act, 1982, states the following.

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.8

The purpose of the duty is reconciliation, which is the overarching purpose of section 35(1).9 The duty to consult obliges the Crown and indigenous people to engage in a dialogue, it encourages them to reach a mutually agreeable resolution of their issues, which in turn furthers the reconciliation process.10 The duty to consult is in the public interest. It is a constitutional imperative, and government action that does not protect indigenous rights cannot serve the public interest.11 Where the duty to consul is triggered, the need to maintain the honour of the Crown and the goal of reconciliation requires that the Crown undertakes a process of fair dealing that includes meaningful consultation.12

The duty to consult is a complex constitutional doctrine. As such, it is not a fixed duty. What is necessary for the Crown to discharge their constitutional duty to consult, and where appropriate, accommodate will vary in the circumstances. The Supreme Court of Canada described the duty to consult as existing on a spectrum.

At one end of the spectrum lie cases where the claim to title is weak, the [indigenous] right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the [indigenous] peoples, and the risk of non-compensable damage is high. In such cases, deep consultation, aimed at finding a satisfactory interim solution, may be required.13

Essentially, the scope of the Crown’s duty to consult depends on the level of risk which the proposed decision carries for indigenous rights. The two key risk factors are the strength of the section 35 rights and the severity of the potential harm to the right.14

The Municipal Duty to Consult

The Supreme Court of Canada ruled in Haida Nation that the Crown may delegate procedural aspects of the duty to consult to a project proponent or third party.15 However, the ultimate legal responsibility for consultation and accommodation rests with the Crown.16 There is no Canada-wide or Ontario-specific legislation or judicial ruling confirming that municipal governments are independently responsible for the Crown’s duty to consult.17 The Ontario Superior Court of Justice confirmed the Crown can rely on statutory municipal planning processes to fulfill its duty to consult, but this applies only where the strength of the indigenous right claim is on the light end of the spectrum.18 Municipalities are creatures of the province, with many decision-making powers, which inevitably impact indigenous rights and interests. One way this occurs is through land use planning decisions. As such, there is an interesting interplay between the constitutional duty to consult as owed by the Crown, and the municipal decision-making power regarding land use decisions. The confusion is evident through case law. In John Voortman & Associates Ltd v Haudenosaunee Confederacy Chiefs Council, the Ontario Superior Court of Justice assumed, without any discussion, that the municipal government had a duty to consult affected indigenous people prior to approving a proposed subdivision.19 Subsequently, Ontario amended its Provincial Policy Statement (the “PPS”), requiring decisions made to be consistent with indigenous rights, which will be discussed below, under Ontario’s land use planning law regime.

Ontario’s Land Use Planning Law Regime

Municipal instruments such as the PPS, Official Plans and Zoning By-laws regulate land use planning in Ontario, overarching is the Act. Consultation with impacted parties has been a requirement under the Act since the early 1980s.20 At a minimum, planning decisions require municipal governments to give advanced notice, hold public meetings and make relevant documents available to the public.21 The Act encourages early involvement of impacted parties and the use of mediation techniques to resolve any conflicts.22

The Planning Act forms the statutory basis for Ontario’s land use planning regime. The Minister of Municipal Affairs, alone or with other Ministers, may issue provincial policy statements under s. 3 of the Planning Act which provide policy direction on matters related to land use planning and development. Provincial direction through the Planning Act and Provincial policy statements sit at the top tier of the planning hierarchy.23

The 2020 PPS has been created pursuant to section 3 of the Act, which sets out principles related to fostering healthy and safe communities, prudent land use and appropriate resource management has become a central element of planning in Ontario, and reference must be made to it by municipalities as they plan and as they create their own planning instruments.24 Planning decisions must be made to be consistent with the PPS that are in effect on the date of the decision.25

In the 2020 PPS, the following is mentioned regarding indigenous interests in planning matters.

The Province’s rich cultural diversity is one of its distinctive and defining features. Indigenous communities have a unique relationship with the land and its resources, which continues to shape the history and economy of the Province today. Ontario recognizes the unique role Indigenous communities have in land use planning and development, and the contribution of Indigenous communities’ perspectives and traditional knowledge to land use planning decisions. The Province recognizes the importance of consulting with Aboriginal communities on planning matters that may affect their section 35 Aboriginal or treaty rights. Planning authorities are encouraged to build constructive, cooperative relationships through meaningful engagement with Indigenous communities to facilitate knowledge-sharing in land use planning processes and inform decision-making.26

The relevant PPS sections, which implement this vision, are reproduced below.

1.2.2 Planning authorities shall engage with Indigenous communities and coordinate on land use planning matters.27
2.6.5 Planning authorities shall engage with Indigenous communities and consider their interests when identifying, protecting and managing cultural heritage and archaeological resources.28
4.8 The Province, in consultation with municipalities, Indigenous communities, other public bodies and stakeholders shall identify performance indicators for measuring the effectiveness of some or all of the policies. The Province shall monitor their implementation, including reviewing performance indicators concurrent with any review of this Provincial Policy Statement.29

The PPS and the public consultation prescribed under the Act provides a framework for coordination and engagement with indigenous people in Ontario, which municipalities must discharge.

The Duty to Consult and Ontario’s Land Use Planning Law

There is a nexus between the duty to consult and land use planning law decisions by municipalities in Ontario. While the substantive aspects of the duty to consult, rooted in the honour of the Crown, may not be delegated, its procedural aspects may be delegated to municipalities. The predecessor to the Local Planning Appeal Tribunal (the “Tribunal”), the Ontario Municipal Board (the “Board”), held that when a municipality in Ontario has a duty of consultation regarding section 35 rights, the Board will review the evidence to determine whether the municipality has appropriately acknowledged the existence of the duty and whether the duty has been discharged.30 The Board will review the question of whether the consultations were appropriate in light of the PPS.31 This is consistent with the approach in Ontario today. In Burleigh Bay Corporation v North Kawartha (Township), the Board set out a series of preliminary bases and principles regarding the duty to consult in a municipal land use planning context (“Burleigh Bay”).

  1. The Board has no jurisdiction relating to treaty rights.
  2. The Duty to consult is that of the federal and provincial Crown, but developers and proponents have an interest to facilitate the consultation process. The Board, as an administrative tribunal, may in certain cases be assisting in the Crown’s consultation process. The Board’s role to hear appeals of provincial planning matters may form part of the consultation process where indigenous peoples are granted party or participant status and are fully involved in the planning process, advocate on the issues, and provide input as to the matter in which issues should be decided.
  3. The scope of the duty to consult will vary. The Board is required to scrutinize the consultation with indigenous people within the Board’s adjudicative processes. It is necessary for the Board to identify the nature of the indigenous right that is the subject matter of the consultation, and then consider the seriousness of the impact on that right.
  4. Adequacy of the consultation for First Nations (and proponents). The Board, in the context of planning processes, the duty to consult is not to be confused with a type of veto power in relation to a development. However, consultation must be meaningful.32

The case law examined below deals with questions and issues surrounding the adequacy of indigenous consultation in land use planning decisions. It remains unclear, apart from when treaty rights are definitely involved, when the public consultation prescribed under the Act will be insufficient to meet the Crown’s duty to consult.

PART II: Case Commentary

This part of the paper will focus on the intersection between the municipality’s role in consulting indigenous groups subject to land use planning decisions and the Crown’s duty to consult and accommodate indigenous peoples interests when necessary. The intersection between land use planning law and the constitutional duty to consult is ill defined and has led to confusion in Ontario.

Cardinal v Windmill Green Fund LPV

The following case reflects the Ontario Superior Court of Justice’s acknowledgement of the existence of the duty to consult with indigenous groups in the land use planning context and the onus of discharging the duty, subject to land use planning law policy. In Cardinal v Windmill Green Fund LPV, the Ontario Superior Court of Justice was asked to review an Ontario Municipal Board’s decision on a question of law and correctness, in dismissing an appeal related to a plan amendment and by-law enactment. The applicant, Windmill Green Fund LPV (“Windmill”) applied to the City of Ottawa (“the City”) under the Act, for permission to redevelop lands within the Ottawa River. The area included brown field lands acquired from Domtar Corporation, which required extensive remediation and had been closed to the public for nearly 200 years. To facilitate the development of the lands, the City investigated, and an official plan amendment (“OPA”) and a Zoning By-law was enacted. The appellants appealed both actions by the City and included a Notice of Constitutional Question, which was subsequently dismissed by the Board.

The case is important as the court is asked to assess whether the consultations carried out with the Algonquin and indigenous groups were sufficient and conformed with the PPS. The appellants relied on the provision in the 2014 PPS relating to indigenous peoples, which is similar to the one described in the 2020 PPS mentioned above and provides:

The Provincial Policy Statement shall be implemented in a manner that is consistent with the recognition and affirmation of existing aboriginal and treaty rights in section 35 of the Constitutional Act, 1982, and
The Provincial Policy Statement shall be implemented in a manner that is consistent with the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms 33

The court agreed with the Board’s findings that concerns of the Algonquin group and the indigenous groups were adequately considered in the adoption of the OPA and the enactment of the Zoning By-law. The court also agreed that the City and Windmill engaged in “an extensive consultation process” in order to reach this conclusion.34

The court relied on the Board members’ findings:

[36] The process for engagement followed by Windmill with the First Nations was consistent with the City’s requirements as set out in its Official Plan, which, identifies the AOO (Algonquins of Ontario) as a stakeholder to be engaged with respect the planning for the future use of Chaudiere and Albert Islands. The evidence shows that the City’s Planning Department contacted the designated representative of the AOO to provide for formal engagement with that group in regard to the development applications and the City initiated OPA. The evidence also shows that extensive consultations took place with a number of well attended public meetings occurring, where public input was sought from both the public at large as well as with the Aboriginal community.
[37] The consultation that was undertaken in this case was in line with the type of consultation that is customary and contemplated under the PPS as well as under City’s Official Plan. It resulted in planning documents for a redevelopment of the lands that incorporate elements and features within the overall development that will recognize and celebrate Algonquin history and culture as well as the overall significance of the islands to the Algonquin in particular.35

The case demonstrates that when the duty to consult is triggered in a land use planning context, it may be satisfied through adherence to the consultation requirements under the PPS when steps are clearly taken to reach out to the identified and impacted indigenous stakeholder groups. However, the court is comparing the consultation processes in a regular land use development project to one which has indigenous people as an impacted party. To state that the process is “extraordinary” does not adequately factor the requirement for consultation and obligations to indigenous people pursuant to the PPS. Further, this case does not contemplate the degree of impact on the indigenous groups and whether the duty to consult would be satisfied if the degree of impact increased to a higher threshold as referred to in Haida Nation.

Burleigh Bay Corporation v North Kawartha (Township)

The Board in this case concluded on the question of who has the duty to consult the indigenous groups. In situations where the lands are privately owned, third parties such as developer or municipalities, do not owe a constitutional duty to consult with indigenous groups. The Board affirmed that the duty to consult cannot be delegated. However, parties with a vested interest in the advancement of the matter, such as the private developer in this case, may be best positioned and suited to facilitate the consultation process.

A number of appeals were brought forth by Burleigh Bay Corporation (“BBC”), which were initiated due to the failure of the Township and the County to make decisions regarding their planning applications.36 In addition, two parties to the appeal were recognized at the Pre-hearing conferences, Friends of the Fraser Wetlands Inc. (“FFW”) and Curve Lake Nation (“Curve Lake”), which are the indigenous parties with interests in the matter. The applicant made a proposal for a Plan of Condominium with 58 building lots and included a network of roads, common areas, recreational space and various infrastructure which was collectively referred to as the “Development.”37

The question before the Board was whether the Development represents good planning and whether it was consistent with the 2014 PPS and other related land use planning laws and regulation.38 The Board set out that the two primary areas of dispute related to: (a) environmental and natural heritage concerns, primarily as expressed and advocated by FFW; and (b) archaeological and cultural heritage concerns relating to First Nations archaeological sites and artifacts, primarily as raised and argued by Curve Lake.39 The Board conducted a thorough examination of the context40 of the Development, as it factored into whether BBC was able to demonstrate that there would be no negative impacts arising from the Development as set out in the PPS.41

The Board also considered adjacent lands, as defined by the PPS, to identify the location of the cultural heritage and archeology features relative to, near, or on, the Development site, which pertained to the issues raised by the indigenous groups. The analysis of evidence was conducted subject to a five-part framework and included an assessment of the “Cultural Heritage, Archeology and Cultural Heritage Landscape.” This analysis is what is relevant to this paper, as it included submissions by Curve Lake that the Development would impact the cultural heritage of indigenous groups42 and that there was a failure to consult with the indigenous groups, which was supported by FFW.43 Ultimately, Curve Lake and FFW requested that pursuant to the 2014 PPS, that the sites be preserved and protected due to their cultural heritage and archaeological resources and for the Board to find that BBC’s lands are a Significant Cultural Heritage Landscape under the PPS.44

In this case, the Board conducted a review of the duty to consult, including a review of the scope of the duty to consult subject to the strength of the case, and the seriousness of the potentially adverse impact.45 Using this framework, the Board assessed the adequacy of the consultation facilitated by the BBC and Board process which took place with the indigenous groups, in the context of the PPS and the planning process.46 Relying on the principles set out in Haida Nation, the Board found that the consultation with the indigenous groups, did not call for a “high” level of consultation and that based on its assessment, did not find that a fairly onerous duty to consult existed in this context. 47 Specifically, the Board identified that the consultation pertained to “Curve Lake’s non-exclusive interest in conserving all such archaeological resources and cultural heritage “be considered.”48

In this context, the Board found the extent of the consultation through the Tribunal processes to be meaningful and sufficient, and satisfied the duty to consult owed to the indigenous groups.49 The Board relied on the following conduct as evidence to reach this determination.

It is clear that BBC has, for this proposed development, facilitated the obligation of the Crown to “consider the interests” of Curve Lake and other First Nations under s. 2.6.5 of the PPS within the framework of the Development’s planning process. Initially, the potential presence of prehistoric artifacts and archaeological resources disclosed during the assessments gave rise to the obligation to consider such interests. Thereafter, once the BdGn sites were identified, and further assessed, the obligation to consider First Nations’ interests, including Curve Lake, continued and still continues. The fact that consultation and consideration of First Nations’ interests will continue, and the other evidence, leads the Board to conclude that it is misplaced for Curve Lake to suggest that the duty to consult on the part of the Crown, as facilitated by BBC, has not been “discharged”.
There have, in the Board’s view, been good faith efforts made, on the part of BBC, to engage First Nations. Specifically there has been consultation and consideration of the interests of Curve Lake and other First Nations, on an ongoing basis and which continues as any further actions may be taken relating to the development of the BBC Lands. In the circumstances of these appeals, and taking into account the limited scope of consultation required with First Nations and their interests is indeed not yet fully “discharged” but has, in the Board’s view, occurred and has been adequate to date, and may likely continue.
On the evidence the Board is satisfied that the Crown’s “duty to consult” in relation to the archaeological work and those cultural resources that exist on the Lands, has been more than adequately satisfied in the course of the work undertaken by BBC, with the involvement of Curve Lake, the other First Nations who appeared and were granted Participant status in this Hearing, the Trent-Severn Waterway and Parks Canada and the Ministry.
In coming to this conclusion, the Board has considered the extensive evidence of Curve Lake in relation to the chronology of email communications and exchanges that took place, the recently adopted Consultation and Accommodation Standards, and Ms. Dokis’ evidence in relation to these standards. Although it is accepted that BBC inadvertently may have been directing its point of contact to a person who may not have been designated to represent the interests of the Curve Lake, Mr. Narhgang was legitimately involved and sought out by BBC with genuine intent. If anything this speaks to the fact that BBC was not ignoring the interests of Aboriginal communities as it related to its’ archaeological assessments.
… the Board finds that there was an extended public consultation process facilitated by BBC in which First Nations representatives were involved, or had the opportunity to be involved, but on occasion, declined. First Nations, including Curve Lake were actively involved in the assessments and received information which was, to some extent, guided by their own level of interest. Curve Lake attended the Site, received communications, and certainly, with their active participation in this proceeding as a Party, has quite ably continued to express its concerns as to their members’ interests, which have been considered by the Board. There has been protection of those Anishinaabeg heritage resources that have been located on the Lands. The concerns of Curve Lake have been adequately expressed and have been considered through the intensive processes of archaeological assessment and review. Curve Lake’s additional input on natural heritage resources, buffers, sensitive species, and other concerns relating to the natural environment has also been considered, particularly since they have “shared” their counsel with FFW who, on their behalf, have also advocated strongly and effectively on matters relating to natural heritage.50

The Board ultimately denied the application and dismissed the appeals on other grounds. As Shin Imai and Angela D’Elia Decembrini identified in their article discussing the municipal obligation to discharge the duty to consult,51 this case begs the following questions: whether the decision of the Board would remain the same if the Township had favoured the application and how would this impact the findings that the consultations were sufficient?52 If the Township opposed the Developments, would this call for a varied consultation process which required Crown participation?53 Further, the Board did not make it clear in its decision in which circumstances the public consultations conducted by BBC would be insufficient to meet the duty to consult and engage with the indigenous groups, despite the claims advanced by Curve Lake stating that they did not feel engaged and consulted with.54

Brothers Real Estate Ltd v Ottawa (City)

In contrast to Burleigh Bay, in this case the City of Ottawa (the “City”), did not oppose the development and in fact, the majority of the proposed facilities’ funding, which was subject to this hearing, would be coming from the taxpayers of the City. Additionally, this case is interesting as the City acknowledged the importance of the francophone and indigenous communities in the area and the corresponding duty to meaningfully involve them in policies which affect their interest.55

The appeal was based on the city’s approval of the Salvations Army’s (“SA”) application for an Official Plan amendment to allow a shelter in an area designated as “Traditional Mainstreet,”56 and to amend the Montreal Road District Secondary Plan to permit surface parking, and zoning by-law amendment to permit a shelter on site, collectively referred to as the “Amendments”.57 Relevant to this paper, is the appellants’ position that the area of the proposed SA development forms the heart of the Vanier francophone community and according to the City, the greatest concentration of urban indigenous peoples in the country. In its own policy documents, the City recognized the vulnerability of both communities, and the corresponding responsibility of the City to ensure that they are properly consulted with and coordinated with, on matters that impact their interests and planning matters.58

The appellants in this case argued that the City did not perform consultations with the francophone and indigenous communities, as the SA informed the City of its intention to construct the facility and held regular meetings with the City for at least two and a half years before the SA’s submission of their planning application for the Amendments. The appellants assert that during that time, the City and SA conducted no consultation and kept the applications secret until after they were submitted. When consultations did occur, after the submission of the applications, the SA did not alter their application in response to the consultation,despite their representations to City Council that they would.59

The appellants claimed, that in addition to the Amendment’s inconsistency with the PPS, and inconformity with the City’s policy regime,60 that the SA’s facility would have a detrimental social impact on the Vanier community and the vulnerable francophone and indigenous groups specifically, and this is an essential element in the analysis of good planning.61 Most relevant to this paper is the appellants’ assertions that the City did not discharge its duty to meaningfully consult, engage and coordinate with Vanier’s francophone and indigenous communities and this fact on its own, is grounds for refusing the Amendments.62 Further, the indigenous community argued that the City’s duty was to provide an opportunity to meaningfully participate in the planning process that went beyond the rights granted to all stakeholders and that it did not discharge such duty in this case.63 In its analysis, the Local Planning Appeal Tribunal (the “Tribunal”) found:

The City in this case consulted with, and involved the indigenous community as part of the “robust and inclusive” public consultation at large under the Planning Act. In this instance, the interests of the City’s Indigenous residents, while clearly separate and distinct, are common with other non-Indigenous groups within the community and the public consultation process, as a whole need not be an absolute and separate consultation process distinct from this larger consultation process.64
The Tribunal is satisfied that while there is no obligation in the PPS or the Official Plan requiring the SA or the City to go beyond the Planning Act’s public consultation requirement, the evidence shows that they nevertheless did so.65

The Tribunal relied on the testimony of the experts, specifically the SA’s expert, that there were repeated attempts to contact the Wabano Centre, which is a high-profile and recognized indigenous service provide in Vanier. The Tribunal accepted the evidence of the SA’s attempts, which included emails and telephone messages and letter, to discuss the proposal both before and after it was submitted.66 Relying on this testimony and the supporting testimony of the other parties, the Tribunal stated:

The Tribunal is satisfied that the SA made honest and genuine attempts to consult with the Indigenous population in Vanier and that consultation, constitutional or otherwise, is not limited to pre-approval consultation. The evidence shows that many of the concerns respecting the shelter use relate to the conduct of shelter residents and that the SA remains committed to working with stakeholders in Vanier with respect to the proposed shelter.67
The evidence also shows that the Site Plan Review and Programming Advisory Committee will provide an opportunity for additional stakeholder consultation with respect to such matters, including the Indigenous community and organizations serving them.68

In its review of the evidence, the Tribunal stated many aspects of the public consultation process conducted by the City and SA, “far exceeded” what is normally done with respect to development applications in the City and referred to the parties’ efforts as “extraordinary.”69 The Tribunal proceeded to provide a laundry list of the public consultation efforts which the SA and the City demonstrated, mainly referring to the ample opportunities for stakeholders to voice their concerns and the SA and the City’s conduct in documenting them.70 Besides indicating that the invitations to the SA’s next Advisory Committee meeting would be extended to the members of the indigenous community, so their input could be considered with respect to the review of programming for the facility,71 no further commitments were stated which explicitly named the indigenous community.

The Tribunal in concluding that the consultation and engagement with the vulnerable indigenous groups was sufficient and the SA and the City’s public consultation process was extraordinary creates further uncertainty. The decision identified where a public consultation would be named extraordinary, but did so without considering the social context of the proposal. The Development proposal is for a shelter, which is meant to serve a vulnerable population. By the City’s own admission, the francophone and indigenous communities are both vulnerable and the Development is being proposed in the area with the greatest urban concentration of indigenous people in the country. With this social context in mind, comparing the SA’s process with what is normally done with respect to development applications in the City does not seem appropriate.

Further, the lack of clarity surrounding the threshold for when general public consultation processes subject to the PPS are insufficient in meeting the duty to consult is problematic in this case. The PPS delineates indigenous groups specifically, as a group which requires coordination and engagement. When examining the case law, the courts have been satisfied with general public consultation, and land use planning law processes, to satisfy the duty to consult with indigenous communities. What continues to be at question, which has not been addressed in policy or through the case law, is at what point and under which circumstances will the duty to consult not be satisfied under the PPS? Further, as was raised by the indigenous groups in this case, what are the circumstances which call for the duty to consult to be satisfied through distinct forums and opportunities to meaningfully participate in the planning process with indigenous communities beyond general public consultations?72

CAMPP Windsor Essex Residents Association v Windsor (City)

This case demonstrates how the lack of clear directives, combined with the ample discretion afforded to authorities, can impact the assessment of whether the municipality has met its duty to consult. The relevant facts are as follows. The City of Windsor (the “City”), established a planning framework in the form of the County Road 42 Secondary Plan (“SP”),73 and Zoning By-law Amendment (“ZBA”) to implement one area of the SP for a “Major Institutional Use.” This would result in two local hospitals being replaced with a single regional mega-hospital, located 13 km from the city centre.74 The SP is a comprehensive planning framework to guide the development of the next phase of Windsor’s anticipated expansion. The Tribunal, when considering the appeal is bound to ensure that the SP is consistent with the PPS.75

An appeal was brought forward by Citizens for an Accountable Megahospital Planning Process (“CAMPP”) in an effort to voice their grievances with the planning process and to ensure that the process is transparent and inclusive.76 In their appeal, CAMPP asserted that the City failed to consult adequately with indigenous communities in the preparation of the SP and ZBA, in accordance with the PPS and Official Plan (“OP”). Despite the highly controversial nature of the major infrastructure proposal and its potential impacts to the residents in the community, including its indigenous members, the Tribunal was satisfied with the City’s display of the studies and application on its website, published notice of the public meeting in the Windsor Star newspaper and lengthy public meeting, all in accordance with the Act, as satisfying its requirement to consult with the public.77 With respect to the requirement of notice to impacted indigenous communities, the Tribunal found the “standard practice of notifying departments, groups and agencies by email, including the Walpole Island First Nation and Caldwell First Nation” to be sufficient. When comments were not received, a follow-up email was sent.78 The Tribunal relied on the extensiveness and highly publicized nature of the proposal to determine that a full understanding of the proposal was widespread, which made the City’s efforts to consult sufficient and should have resulted in interested stakeholders engaging themselves with the proposal.79

The Tribunal’s reasoning and response to the claims advanced by CAMPP illustrate how indigenous interests will not be protected until more clarity is achieved.

The PPS utilizes verbs carefully and intentionally. Part III of the PPS provides instruction on how to interpret positive directives such as “shall” as compared to enabling or supportive language such as “encourage.” The policy in question encourages but does not mandate the coordination of planning matters with Aboriginal communities. The Tribunal finds that, in the circumstances of these community-wide and publicly known issues, the City encouraged full participation of all potential stakeholders. Similarly, through the various channels, the City took reasonable steps to invite First Nations to enter into consultation as contemplated by the OP.
In hindsight, more could have been done to consult local Indigenous communities. CAMPP raises the Truth and Reconciliation Commission of Canada’s directives in support of finding new ways to engage fairly, openly and equally. However, in the case at hand, the statutory requirements for notice were satisfied, and even in the absence of more, the City’s efforts at consultation are considered sufficient to satisfy the policies.
CAMPP also argues that the City failed to satisfy its own OP directives to build consensus (s. 3.2.4.1), respond to community concerns (s. 3.2.4.1) and to communicate effectively (s. 4.2.5.3). The Tribunal does not find these sections of the OP to prevent the approval of this ZBA. These valid civic goals articulate a standard to which the City intends to hold itself. The Tribunal notes that full consensus is rare if not unlikely in any land use matter and that the City’s realistic goal is to build consensus, not achieve it.80

The Tribunal dismissed the appeals. The finding in this case necessitates further direction by the PPS and land use planning tools. As this case illustrates, regardless of the magnitude of a proposal’s impact on a municipality, and consequently the indigenous communities in the municipality, the duty to consult will continuously be satisfied through the regular consultation processes. The lack of direction in the PPS and discretion afforded in land use planning decisions, allowed the Tribunal to rely on the language of the directives to determine that sufficient efforts were made to consult with indigenous communities. The Tribunal’s own admission that “more could have been done to consult local Indigenous communities” did not preclude the Tribunal from finding that the duty to consult was satisfied.81

PART III: Recommendations

The goal of the duty to consult and accommodate, subject to the constitution, is to achieve reconciliation. The PPS sets out policy for land use and development in Ontario and directives for consultation with indigenous communities on planning matters. Both are intended to recognize and accommodate indigenous interests. In the land use planning and municipal context, these directives without more, have eroded the duty to consult. It is difficult to imagine a scenario where the duty to consult will not be discharged in a land use planning matter by the consultation processes contemplated under the Act. Indigenous communities require more direction in the PPS to be given standing when land use and development disputes occur.

Clarify the Threshold

The PPS provides direction on the minimum standards for regulating the development and use of land in the province. Within the preamble of the PPS, planning authorities and decision-makers are advised that they are permitted to go beyond the minimum standards set out to address matters of importance to specific communities, unless doing so would conflict with a PPS. The PPS delineates the indigenous communities in several of its policies and in the document’s vision statement, where planning authorities are encouraged to meaningfully engage and consult with indigenous communities.

The choice of language and inclusion of indigenous communities is intentional. It reflects one aspect of the province of Ontario’s efforts in the ongoing reconciliation process with indigenous communities. However, it does little in demonstrating when consultations under the Act will not be sufficient to discharge the duty to consult. The language used in the PPS, to “engage” and “coordinate” with indigenous people purposely falls short of a duty to consult and accommodate, but they overlap, nonetheless. As demonstrated in this paper, courts have continuously found public consultations with the general public to satisfy the duty to consult with indigenous communities. These findings beg the question, if the general public consultations would satisfy the duty to consult with Indigenous groups – then why delineate the specific group in the first place? It is my position that the ambiguity of the PPS directives creates confusion. These findings may continue to strain already fragile relationships with indigenous communities. Clear PPS direction is needed to determine when consultations with the general public and when land use planning consultations will not satisfy the duty to consult.

In circumstances where the impact to the indigenous groups is negligible or the concerns of the indigenous community overlap entirely with that of the general public, avoiding duplication of processes through public consultation with the public at large, is the responsible use of the municipality’s efforts and resources. However, proper inquiry must be made to ensure that the potentially impacted indigenous groups agree to the process prior to it being implemented.

Further, clear and practical guidance in the PPS on specific land use activities which delineate thresholds for potential impact to indigenous interests is necessary. Corresponding limits should be set which indicate the impact on indigenous interests before specific and exclusive consultation with indigenous people or Crown consultation is required to satisfy the duty to consult. This will aid in the municipality’s assessment of whether the public consultation with all impacted stakeholders is sufficient in meeting the indigenous community’s needs or a distinct forum to participate in the planning process is necessary.82 However, referring back to the vision statement and the PPS directives, planning authorities should bear in mind that the explicit mention of indigenous peoples necessitates more direct and exclusive consultation with the indigenous communities in land use planning in order to be meaningful and impactful.

Lastly, similar to British Colombia, the province of Ontario must utilize their resources and expertise to provide more tools for municipalities and planning authorities to assess whether the duty to consult is satisfied. A more prescriptive approach is required for accountability for the planning authorities in the land use planning processes. The government of British Colombia provides:

Numerous publically available guides on relationship-building and on how it implements the Duty to Consult. These resources include a guide for local governments on First Nations engagement. The BC government also provides sample notification letters, a sample engagement log, sector specific guides (i.e. environmental assessments, major mines, clean energy projects) and various mapping tools.83

Currently, Ontario’s only public resource on the municipal order of government on the duty to consult is in draft form and is not directed towards land use planning and development.84 The province should work towards finalizing this resource and including specific resources for municipal governments in the land use planning context.

Conclusion

Through consultation, accommodation and mutual respect, reconciliation is possible. However, more is required of the province of Ontario, municipalities, and planning authorities to ensure that policy translates into meaningful and impactful change for indigenous people. Pursuant to the Act, municipal instruments such as the PPS, Official Plans and Zoning By-laws are used to inform land use planning decisions. The PPS advises decision-makers that they are permitted to go beyond the minimum standards set out in its policies to address matters of importance to specific communities. These specific communities include indigenous people. As demonstrated in the case law discussed, planning authorities are often satisfied with the minimum public consultations open to all stakeholders, which are often of a general nature. Planning authorities are not challenging municipalities, cities and private parties to do more, and indigenous communities are receiving the minimum in the land use planning law context.

In Cardinal v Windmill Green Fund LPV, the court assessed whether the consultations carried out with the Algonquin and indigenous groups were sufficient and conformed with the PPS. The court agreed with the Board’s findings that concerns of the Algonquin group and the indigenous groups were adequately considered. The statement by the court deeming the process as “extraordinary,” by comparing the process to regular land use processes, does not reflect the duty to consult indigenous people.

Burleigh Bay is a case where concerns about the impact of the development on its sacred archaeological sites and artifacts did not merit deep consultation and general public consultation was satisfactory in discharging the duty to consult. Despite the thorough analysis of the case law and statute surrounding the Board’s duty to consult and the sufficiency of the consultation, the Board provided no guidance or speculation on the circumstances where the public consultation, in a land use planning law context, would be insufficient in meeting the duty.

In Brothers Real Estate Ltd v Ottawa (City), the City’s consultation with respect to a shelter was deemed “robust and inclusive” and “far exceeded” what is normally done with respect to development applications in the City. Once again, the conduct in the planning process was compared to what is normally done and did not consider the heightened attention which the PPS calls for towards indigenous people. Further, the planning authority provided no commentary in the decision about the social context of the development, which was a shelter in an area with the greatest urban concentration of indigenous people in the country.

Lastly, CAMPP v Windsor exemplifies how the lack of clear directives, coupled with the ample discretion afforded to authorities, will result in the duty to consult being satisfied despite the Tribunal’s own admission that more could have been done to consult local indigenous communities. This case highlights the need for more direction in the PPS, and clearly outlined thresholds for when the public consultation processes accommodating the public at large will be insufficient in satisfying the duty to consult. This case also demonstrates how the language of the PPS, without more, will be continuously manipulated to find that the duty was satisfied, regardless of the magnitude of a project or its impacts.

As the PPS continues to evolve, providing more tools and directions for engagement and consultation with the indigenous groups is a necessary step closer to reconciliation. My recommendations are as follows.

  1. When the impact to indigenous people is determined to be negligible, general public consultation is appropriate, so long as the impacted indigenous people are informed beforehand and agree to the duty to consult being discharged in this fashion.
  2. Clear and practical guidance in the PPS on thresholds and corresponding limits should be set out to indicate when the duty to consult will be triggered in a land use planning context and will not be discharged by the consultation processes which occur generally.
  3. The province of Ontario must utilize its resources and expertise to provide more tools for municipalities and planning authorities to aid in providing a more prescriptive approach to assessing whether the duty to consult is satisfied.
  4. Ontario’s draft guidelines for ministries consultation with indigenous people should be completed and should include resources on consultation in the land use planning context.

LEGISLATION

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Planning Act, RSO 1990, c P13.

JURISPRUDENCE

Brantford (City) v Montour, 2010 ONSC 6253.

Brothers Real Estate Ltd v Ottawa (City), 2020 CarswellOnt 8757, 9 OMTR 385 (LPAT).

Burleigh Bay v North Kawartha (Township), 2017 CarswellOnt 15629, 1 OMBR (2d) 361.

CAMPP Windsor Essex Residents Association v Windsor (City), 2019 CarswellOnt 20198 (LPAT).

Cardinal v Windmill Green Fund LPV, 2016 ONSC 3456.

Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40.

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73.

IN8 (The Capitol) Developments Inc v Building Kingston’s Future, 2020 ONSC 6151.

John Voortman & Associates Ltd v Haudenosaunee Confederacy Chiefs Council, [2009] OJ No 1350, 84 RPR (4th) 102.

Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43.

SECONDARY MATERIAL

D’Elia Decembrini, Angela & Imai, Shin, “Supreme Court of Canada Cases Strengthen Argument for Municipal Obligation to Discharge Duty to Consult: Time to Put Neskonlith to Rest” (2019) 56:3 Alta L Rev 935.

MacF. Rogers, Ian, “Canadian Law of Planning and Zoning”, 2nd ed, ed by Scott Butler, Alison & Levine, Greg (Toronto, Ontario: Thomson Reuters, 2021) (Thomson Reuters Proview).

Municipal Governments and the Crown’s ‘Duty to Consult’” (10 April 2019) online (pdf): Association of Municipalities of Ontario.

Provincial Policy Statement”, 2020,online (pdf): Government of Ontario.

Windsor’s Worst Planning Mistake Ever” (November 2020) online (pdf): Citizens for an Accountable Megahospital Planning Process.

Endnotes

1 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 25 [“Haida Nation”].
2 Ibid at para 25.
3 Burleigh Bay v North Kawartha (Township), 2017 CarswellOnt 15629, 1 OMBR (2d) 361 at para 241 [“Burleigh Bay”].
4Municipal Governments and the Crown’s ‘Duty to Consult’” (10 April 2019) online (pdf): Association of Municipalities of Ontario at 9 [“AMO”].
5 Ibid at 4.
6 Planning Act, RSO 1990, c P13 [Planning Act].
7 Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31.
8 Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
9 Haida Nation, supra note 1 at para 14.
10 Ibid at para 14.
11 Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para 40.
12 AMO, supra note 4 at 7.
13 Haida Nation, supra note 1 at paras 43-44.
14 Ibid at para 39.
15 AMO, supra note 4 at 9.
16 Haida Nation, supra note 1 at para 53.
17 AMO, supra note 4 at 9.
18 Brantford (City) v Montour, 2010 ONSC 6253 at paras 56-58.
19 John Voortman & Associates Ltd v Haudenosaunee Confederacy Chiefs Council, [2009] OJ No 1350, 83 RPR (4th) 102 at paras 68-69.
20 AMO, supra note 4 at 10.
21 Ibid at 10.
22 Ibid at 10.
23 IN8 (The Capitol) Developments Inc v Building Kingston’s Future, 2020 ONSC 6151 at para 11.
24 Ian MacF. Rogers, “Canadian Law of Planning and Zoning,” 2nd ed, ed by Alison Scott Butler & Greg Levine (Toronto, Ontario: Thomson Reuters, 2021) (Thomson Reuters Proview) at 1.5.
25 Planning Act, supra note 6, s 3(5).
26 Provincial Policy Statement, 2020, at 5, online (pdf): Government of Ontario [“PPS”].
27 Ibid at 13.
28 Ibid at 31.
29 Ibid at 35.
30 Cardinal v Windmill Green Fund LPV, 2016 ONSC 3456 at para 27 [Cardinal v Windmill].
31 Ibid at para 23.
32 Burleigh Bay, supra note 3 at para 241.
33 Cardinal v Windmill, supra note 30 at para 21.
34 Ibid at para 23.
35 Ibid at para 31.
36 Burleigh Bay, supra note 3 at para 5.
37 Ibid at para 4.
38 Ibid at para 8.
39 Ibid at para 9.
40 Ibid at para 35, “examination of context necessitates a detailed review of the abutting water elements because of the intimate proximity of the entirety of the Development to Stony Lake, and within, or adjacent to, the two Provincially Significant Wetlands (“PSW”) Complexes, and other water movements flowing across the property. This context figures significantly in the evidence and the findings of the Board in considering whether this Development is appropriate, and in particularly in determining whether the Development is consistent with the relevant provisions of the PPS which relate to PSWs, and conforms to the County Official Plan.”
41 Ibid at para 43.
42 Ibid at para 197.
43 Ibid at paras 50 and 197.
44 Ibid at para 212 and 218.
45 Ibid at para 241.
46 Ibid at paras 241 and 242.
47 Ibid at para 245.
48 Ibid at para 243.
49 Ibid at para 259, 261 and 264.
50 Ibid at paras 246-249; para 263.
51 Angela Decembrini D’Elia & Shin Imai, “Supreme Court of Canada Cases Strengthen Argument for Municipal Obligation to Discharge Duty to Consult: Time to Put Neskonlith to Rest” (2019) 56:3 Alta L Rev 935 at 947.
52 Ibid at 947.
53 Ibid at 947.
54 Ibid at 947.
55 Brothers Real Estate Ltd. v. Ottawa (City), 2020 CarswellOnt 8757, 9 OMTR 385 (LPAT) at para 18.
56 Ibid at para 8. “Traditional Mainstreet” is characterized by one and two storey retain buildings and is general reflective of a typical Traditional Mainstreet character.
57 Ibid at para 5.
58 Ibid at para 18.
59 Ibid at para 17.
60 Ibid at para 135.
61 Ibid at para 21.
62 Ibid at para 21.
63 Ibid at para 325.
64 Ibid at para 332.
65 Ibid at para 420.
66 Ibid at para 339.
67 Ibid at para 340.
68 Ibid at para 346.
69 Ibid at para 369.
70 Ibid at para 372.
71 Ibid at para 408.
72 Ibid at para 325.
73 CAMPP Windsor Essex Residents Association v Windsor (City), 2019 CarswellOnt 20198 (LPAT) at para 1 [“CAMPP v Windsor”].
74 “Windsor’s Worst Planning Mistake Ever” (November 2020) online (pdf): Citizens for an Accountable Megahospital Planning Process at 10.
75 CAMPP v Windsor, supra note 74 at para 1.
76 Supra note 75.
77 CAMPP v Windsor, supra note 74 at para 38.
78 Ibid at para 38.
79 Ibid at paras 39-40.
80 Ibid at paras 41-43.
81 Ibid at paras 41-42.
82 Supra note 73.
83 AMO, supra note 4 at 13.
84 Ibid at 11.