Ford government proposes to scrap controversial law placing 'restrictions' on development in northern Ontario

The grand chief of the Nishnawbe Aski Nation (NAN) is cautiously welcoming a proposal by Premier Doug Ford's government to repeal a 2010 law that his nation viewed as a form of colonialism.

Grand Chief Alvin Fiddler made the comments after Premier Doug Ford's government announced a public consultation to repeal the Far North Act, legislation adopted by the former provincial Liberal government that gave First Nations some control over development in their traditional territories.

The government said on Monday that it was proposing to repeal the law with the aim of "reducing red tape and restrictions on important economic development projects" in the northern part of the province, including the Ring of Fire, all-season roads and electrical transmission projects.

This objective has some critics skeptical about the government's intentions. This includes one critic who described the review as a plan to get "First Nations out of the way" to facilitate industry and government's mining aspirations.

Ford's Progressive Conservative government signalled its intention to review the Far North Act in its November 2018 fall economic statement, after promising to reduce red tape related to northern development during the 2018 election campaign. The Opposition New Democrats had also promised to repeal the act, which was initially adopted despite opposition from First Nations.

On Monday, Natural Resources and Forestry Minister John Yakabuski formally announced that the government was reviewing the Act, after he had proposed to repeal it.

“We have heard time and again that the act limits development in the Far North of Ontario, where there is so much potential for economic growth and prosperity," Yakabuski said in a statement.

"That's why we are moving quickly with the intention of building a path forward that supports business certainty while continuing to work closely with First Nations communities at an advanced stage of planning."

Grand Chief Fiddler, speaking on behalf of the NAN Executive Council, said that they were "encouraged that Ontario is taking a second look at this controversial legislation."

"Ontario does not have free reign to do as it pleases in the Far North, and we will defend our right to control development so that the wealth from our lands benefits our people and the growth of our nation," Fiddler wrote in a statement. Any engagement by the government on the issue of development in Ontario's northern territories "must begin with government-to-government dialogue in our traditional territories."

"It is NAN’s position that a repeal of the act will not mean uncontrolled development. It means balanced and shared development in accordance with the two NAN Treaties that requires First Nation consent in accordance with United Nations Declaration on the Rights of Indigenous Peoples," he wrote.

"The act is viewed by NAN First Nations as an invalid law and a new form of colonialism," Fiddler said.

But others are not so sure that the Ford government is moving in the right direction. Several who spoke to National Observer said that they were worried that this will give Ford free reign to develop across Ontario's northern territories.

"This provincial government sees the far north as a barrier to development," Hayden King, executive director of Ryerson University's Yellowhead Institute, said in an interview. "It's clear to me, that the primary objective (of the repeal) is to facilitate economic development."

"First Nations are not opposed to economic development," King added. "But development can't proceed without recognizing First Nation jurisdiction."

'If I have to hop on a bulldozer myself, we're going to start building roads to the Ring of Fire:' Ford

Ontario's northern territories constitute 42 per cent of Ontario's land mass and contains 34 communities, including Moosonee, Pickle Lake and Peawanuk, and 32 First Nations, with a total population of 24,000.

The Far North Act came into effect in 2010, in an attempt to integrate provincial land planning towards environmental, social and economic goals. At the time, the Liberal government described the area as a "globally significant carbon sink," and a crucial habitat for endangered species such as the caribou.

"The act imagined the far north as an area that would be set aside as an are of conservation," King said.

The legislation emerged after a series of contests between First Nations and mining exploration companies. In the aftermath, Ontario's northern Indigenous communities demanded jurisdiction to decide what development activities were allowed on their lands.

Under the act, communities are asked to create "community-based" land-use plans that map out their territories in detail, designating the areas of significant cultural value like burial sites, waterways and travel routes, as well as caribou migration routes and areas that would be protected from mineral exploration.

Any land-use activities had to be "consistent with" the designations specified in this plan. The goal, said Liberal MPP Nathalie Des Rosiers, and former natural resources minister, was "to empower joint planning with Indigenous communities" and companies. "First Nations have a right to decide how they want to develop their land just as a municipal council has the right to decide what is developed in its city," she said in an interview.

When it was introduced, then-environmental commissioner of Ontario Gord Miller commended the legislation for opening "half of northern Ontario to different development opportunities through an orderly process that satisfies the requirement to meaningfully involve First Nations."

"This approach makes practical business sense, on top of its prudent measures to safeguard one of the largest and most intact ecological systems on Earth," he wrote in his annual report, noting that if done right, Ontario could increase protected areas in the province from 9.4 per cent to 26.5 per cent over a decade.

Two years later, Miller found that the land use plans were "years from completion," and that proposal for major infrastructure, including transportation corridors and energy transmission lines, were being considered without the plans. The development proposals were also being considered in a "haphazard" way, Miller's office found, "through different assessment mechanisms, and without any apparent co-ordination or cumulative effects consideration."

King told National Observer that the act wasn't "good legislation" from the beginning because it was very development-focused and didn't fully respect First Nation jurisdiction. In fact, when it passed, the act was met with a tremendous amount of opposition.

"But, it gave First Nations some degree of control and jurisdiction," King said, which, he fears the Conservative government will remove entirely.

King said the Yellowhead Institute received an email Monday from Bill Thornton, the deputy minister of natural resources, energy and mines, about the Ford government's plans to repeal the act "to facilitate economic development in the Far North, ensure a collaborative approach to development, and provide a stable environment for business."

The emphasis on business operations concerns King, making it clear that they are not prioritizing their relationship with First Nations communities. "Their goal is to create a stable environment for business," he said. "To reduce red tape, which I think means getting First Nations out of the way to facilitate their mining aspirations."

The Ford government has long advocated for the repeal of the act. Indigenous Affairs Minister Greg Rickford tweeted in support of a repeal as early as December 2017, saying "An Ontario PC Government will support Northern Ontarian hunters, anglers, hikers and tourists by repealing the Far North Act and allow easy access to our lakes and green spaces."

The repeal was a prominent election campaign promise, too, with Ford famously claiming "If I have to hop on a bulldozer myself, we're going to start building roads to the Ring of Fire."

Despite their own promise to appeal the act, the NDP had a warning for Ford's government. "The consultation is more than welcome," Michael Mantha, the critic for northern development and mines and for Indigenous relations, said in an interview. "But, if Doug Ford is looking at First Nations as red tape, this is going to get really difficult for them."

"We are definitely going to be fighting this government if they are attacking regulations, duty to consult First Nations, or if he's dismantling any environmental protections," he said. "I am concerned where his focus is going to be and who exactly is going to benefit."

Repeal is a 'pro-mining approach to the north'

In their proposal, the Ontario government says that if a decision is made to repeat the Far North Act, it will ensure that joint-land planning will continue with Ontario First Nations including Marten Falls, Webequie, Eabametoong, Mishkeegogamang, Constance Lake, Deer Lake and McDowell Lake.

These communities have shared information about "proposed land uses" currently underway at advanced stages, according to the proposal. The Ministry of Natural Resources and Forestry will create "a time-limited opportunity to complete the joint processes for planning and approving these plans," by December 31, 2020.

Any planning that is not in the advanced stages of development will be wound down.

The proposal makes clear that First Nations communities will continue to be consulted, as mandated by several Ontario laws, on any new developments on their land.

Yakabuski told National Observer Tuesday that as part of the proposal to repeal the the act the government "will have special engagement sessions with First Nations communities led by (Rickford)."

Rickford has begun reaching out to First Nations about this repeal, Yakabuski said. It was not immediately clear from Rickford's office which communities had been consulted already and what the schedule of the "extended consultation" will look like.

"We know, and they made it very clear, that they were not happy with the Far North Act. When it was implemented, they opposed it," Yakabuski said. "The Liberals never consulted them properly when they brought it in and Indigenous communities have been concerned about it since day one."

When asked if Yakabuski could guarantee that First Nations would continue to have jurisdiction over land-use planning in Ontario's north, he said "We will have discussions directly with them."

Des Rosiers urged communities to remain vigilant as the consultation gets underway, and "not let developers or mining companies go ahead without reflecting or respecting environmental concerns and First Nations."

Based on the government's two failed attempts at opening the protected greenbelt for development, Des Rosiers said she is closely watching to see what planning agreements are honoured and abandoned, what the new rules of the game will be and whether Indigenous rights will be undermined.

"In 2019, I would have amended the act to put greater involvement of indigenous communities in the framing of the act itself," Des Rosiers said. "The key question is if they are doing it to facilitate development. If they are, I hope they’ll do it while respecting the environment and the people."

Green Party leader and MPP Mike Schreiner said the repeal was just another example of the Ford government's efforts to do "anything and everything it can to get rid of regulations we have protecting endangered species, protecting people, protecting green space and natural space."

"This is a threat to Indigenous communities," he told National Observer in an interview. "This government doesn’t have a track record so far delivering on any meaningful negotiations, consultations or programs with Indigenous people.

To date, the government has "attacked" various elements of the truth and reconciliation process, King said. Post-secondary institutions are still awaiting funding for Indigenous education, and remain uncertain about when they'll receive it. The Indigenous Culture Fund has been cut almost in half. The Ontario College of Midwives have lost their funding — Indigenous women are more like to use midwives and serve as midwives, King said.

"Now we have this pro-mining approach to the north which doesn’t seriously consider First Nation jurisdiction," he said. "We’re not getting off to a good foot here in this relationship. I'm concerned for the next three years."

The government consultation on the proposal to repeal the Far North Act and amend the Public Lands Act is open until April 11.