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 process3; or
- would assist the Tribunal in understanding the issues involved in the matter, including in respect of the impact on treaty rights4.
In Red Bay & Howdenvale Resident Group5 the Tribunal granted party status to the Saugeen Ojibway Nation (SON) on the basis that the SON had treaty rights to the lands subject to a proposed official plan amendment (OPA) and that proposed OPA could affect natural and cultural heritage features of importance to the SON. The Issues List for that appeal included the issue: "Was the Constitutional duty to consult met with respect to the [OPA]?"
The Tribunal modified the OPA, which sought to change the designation of a road, to subject the future road to a Municipal Class Environmental Assessment. That Assessment was to include consultation with the SON. Importantly, however, the Tribunal found that the public notice process established under the Regulations did satisfy the duty to consult. Where such notice had not occurred, granting party status would rectify "any defect in the duty to consult"6.
A Change in the Requisite Consultation Under the Aggregate Resources Act?
A recent decision by Tribunal Member Hardy in Galibier Materials Inc. v. Springwater (Township)7, involving a consolidation of a referral under the ARA and appeals under the Planning Act, marks a different approach to addressing the duty to consult with potentially far-reaching consequences. This case involved the proposed expansion of an existing mineral aggregate operation in the Township of Springwater. The proponent, under both application processes, had engaged over a period of two (2) years with over nine (9) First Nations communities, two of whom had been directly involved in the Stage 4 Archaeological Assessment of the subject lands. All those communities had signed off on the duty to consult and none of them expressed any concern with the proposal to expand the existing operation.
Despite this extensive and active engagement, an umbrella advocacy organization, the Chiefs of Ontario (COO), requested party status at the 30 January 2025 Case Management Conference on these matters. The COO made this request in the context of the following facts:
- it was not owed a duty to consult since it was not a First Nations community with treaty rights;
- it had not been involved in the public process over the applications; and
- it had not consulted with any of the potentially affected First Nations communities.
The COO alleged that the Regulations were insufficient to meet the duty to consult and that an outside group of five (5) different First Nations had not been consulted when the Stage 3 Archaeological Assessment was undertaken in 2013. It also took the position that only the COO could provide an aboriginal perspective on the issues in the hearing.
The Appellant responded to state that it had far exceeded the duty to consult under both Acts and that the participation of the COO in the hearing would prejudice it by expanding the time and expense required for the hearing. The Appellant reminded the Tribunal Member that the COO had not been involved with the applications nor had it consulted with the relevant First Nations.
The Tribunal's jurisdiction under the ARA is limited to matters which have been referred to it by the Ministry under the ARA. As the duty to consult had not been referred to the Tribunal as an issue in this case, that issue could not be included in the Issues List. The Tribunal was therefore limited to considering whether the duty to consult as raised by the COO could be included as an issue under the auspices of the Planning Act.
Member Hardy sided with the COO, writing that:
- "it would be prejudicial to COO and First Nations communities if they were not afforded an opportunity to represent the interests of First Nations communities at the hearing"; and
- "any perceived prejudice to the Appellant...was outweighed by the potential prejudice to COO if it were not afforded an opportunity to represent the interest of First Nations at the hearing".8
The decision by Member Hardy to grant party status to the COO to represent the interests of First Nations communities in the facts of this case establishes a potentially destabilizing precedent for Ontario's planning regime. It effectively questions the appropriateness of the Regulations and opens the door to any indigenous or other advocacy group to come forward in any hearing, no matter how large or small, to claim that they represent interests that are potentially impacted by a proposal. It is possible that advocacy groups could be formed for this purpose alone. An example of this would be the Reform Gravel Mining Coalition, a provincewide alliance of individuals who oppose aggregate extraction, and which claims to speak on behalf of environmental interests. Based on Galibier decision, such groups would not have to even participate in the public process or consult with the very groups the claim to represent the interests of.
The decision clearly has significant implications for aggregate projects and other infrastructure projects across Ontario, inviting unpredictable interventions in mines, housing, highways, energy projects and beyond. It could also impact minor variance or other similar applications where a duty to consult has not been a consideration to date.
The duty to consult is clearly recognized and rightfully belongs to affected First Nations communities with treaty interests. It becomes a problem, however, when groups like the COO, who do not have a recognized interest and who have not participated in the Planning Act process, use this right to intervene in hearings where proponents have made efforts to consult, and have invested in and relied on that process, usually at a very significant cost.
The decision by Member Hardy will inject uncertainty into the land use planning process. How the Tribunal responds to future requests for party status by such advocacy groups will determine how the land use planning process is changed by the duty to consult or any other duty now owed to such groups to assist the Tribunal in coming to a fulsome decision on appeals.
Footnotes
1. 2004 3 S.C.R. 511
2. Boblo Developments Inc. PL170798, A Miron Topsoil Ltd. PL121310
3. Quaternary Mining PL190604, PL200278
4. Burleigh Bay Corporation PL150313, Ryerson (Township) By-law 31-13 PL130823, Blairhampton Properties Inc. PL001186 Pl010517
5. PL091020
6. Paragraphs 115 and 117
7. OLT-23-000990 20 February 2025
8. Paragraphs 22 and 24
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
