top of page
Search

Connecting Ontario’s manufacturing in the south to Ontario’s minerals in the north: The Role of Modern Treaties.

James Rockingham

February 22, 2024

 

Ontario has launched its auto sector strategy, dubbed Driving Prosperity. This strategy requires strong relationships among industry, governments, and communities across Ontario to connect Ontario’s manufacturing in the south to Ontario’s minerals in the north. Connecting the north and south into one comprehensive economic machine, envisions southern Ontario automakers building battery-powered vehicles made from minerals extracted in northern Ontario. A significant piece to this puzzle is demonstrating to resource extraction companies the province is ready for business, including through an effective framework that will navigate Canada’s duty to consult and accommodate First Nation communities in northern Ontario.  

 

The duty to consult, as a system of rules, is ambiguous. What constitutes appropriate consultation is determined on a case-by-case basis. The duty to consult and accommodate enables legal action from Indigenous communities if a government’s decision impacts a community’s traditional territory and appropriate consultation and accommodation has not been fulfilled. If a case by an Indigenous community was brought before the courts and it was proven that The Crown acted in bad faith, the project could require adjustment or be halted entirely. Common examples of legal action, caused by the duty to consult system of rules, are from government decisions related to mining or land use. This ambiguity can lead to a high risk of uncertainty for industry when choosing to invest in a mining project. 

 

Indigenous communities and provinces have attempted to address the ambiguity of the duty to consult and accommodate process through modern treaties. Prior to modern treaties, areas of Canada had historic treaties formed between 1701 and 1923. The government of Canada has acknowledged that “Canada and First Nations often have differing views with respect to the implementation of historic treaties” (INAC, 2008). Modern treaties provide structure to Indigenous, federal, and provincial government relationships. Modern treaties can provide certainty and clarity for ownership and use of lands and resources and of rights for Indigenous Peoples to participate in decision-making concerning the use, management and conservation of land, water, and resources. When a modern treaty is in place, it is used as the primary source of reference when a province begins consultation and accommodation activities. The court may find that a modern treaty failed to detail specific items related to land use consultation and accommodation but will refer to the modern treaty as a primary point of reference. Although the private sector is not directly responsible for consultation and accommodation processes, it is through modern treaties that industries can understand their involvement and how to support a strong relationship with Indigenous partners.  

 

Comparatively, Ontario has been slow to recognize the need for modern treaties. In 2018, Ontario had 50 projects under construction or planned over the next ten years, representing 47 billion dollars in investment. Ontario continues to have no modern treaties. B.C. established a modern treaty process after the absence of historic treaties resulted in land claim disputes. In 2018, B.C. had the most successfully signed modern treaties, a system in place to develop additional modern treaties, and 109 resource extraction projects under construction or planned over the next ten years, representing 206 billion in investment. In the Northwest Territories modern treaties such as the Tłı̨chǫ Agreement and Sahtu Dene and Métis Comprehensive Land Claim Agreement have occurred post-historic treaty.  For Ontario to attract resource extraction investment, the province must develop a pragmatic strategy for consulting and accommodating Indigenous communities whose traditional territories are impacted by land use. This strategy starts with approaching communities with proposals to begin modern treaty discussions.  

 

An opportunity for Ontario to make such a proposal is present. In April 2023, First Nation signatories to the historic Treaty 9 launched a lawsuit against the Province of Ontario. The lawsuit argues the historic treaty was made in bad faith. In a recent news conference announcing the lawsuit, Kate Kempton, a lawyer for First Nation plaintiffs and who has won multiple cases on injunctions against development, treaty rights defences, and judicial reviews on the duty to consult and accommodate, argues that the treaty contradicts foundational values and sacred responsibilities of First Nations who are signatories to Treaty 9. The contradiction of First Nations’ foundational values implies that First Nations were misled in their understanding of property rights and land use agreements described in the treaty. The lawsuit could halt mineral extraction projects required for E.V. battery manufacturing in Ontario. This includes the Ring of Fire, a mineral deposit often identified as key to the province’s comprehensive plan of connecting the north’s minerals to the south’s industry. At the same news conference, Mark Bell, a council member representing Aroland First Nation, has made clear his community is not against industry but that the community requires to be adequately consulted and accommodated before further development. Aroland First Nation has been described as the gateway to the Ring of Fire.   

 

A modern treaty could be proposed that focuses on eliminating elements of Treaty 9 that ignored First Nations’ connection to the land, instead developing a treaty that recognizes First Nations as caregivers of the land while constructing a framework for the duty to consult and accommodate process. Modern treaties have the potential to bridge gaps and mend relationships.  For Ontario to become a strong economic engine, relationships across the province must be strong. A modern treaty between Treaty 9 First Nation signatories, Ontario, and the government of Canada can help connect Ontario’s minerals in the north to Ontario’s industry in the south. 


Bibliography   

 

Brockman. A ·. CBC. “First Nations Leaders in Northern Ontario Say There’ll Be No Land Development without Us as Partners | CBC News.” CBC, 27 Apr. 2023, https://www.cbc.ca/news/canada/thunder-bay/first-nations-lawsuit-ring-of-fire-development-1.6822920.    

 

Canada, 2012, Government of Canada; Crown-Indigenous Relations and Northern Affairs. The British Columbia Treaty Process. 21 Sept. 2012, https://www.rcaanc-cirnac.gc.ca/eng/1348230937078/1539695780313    

 

 

Indigenous and Northern Affairs Canada (INAC); Communications. Treaties and Agreements. 3 Nov. 2008, https://www.rcaanc-cirnac.gc.ca/eng/1100100028574/1529354437231.  

 

“Kate Kempton.” Woodward & Company LLP, https://www.woodwardandcompany.com/lawyer/kate-kempton/.   

 

Lavoie and Newman, 2015. Mining and Aboriginal Rights in Yukon: How Certainty Affects Investor Confidence. https://www.fraserinstitute.org/sites/default/files/mining-and-aboriginal-rights-in-yukon-how-certainty-affects-investor-confidence.pdf    

 

 

Natcher, David C. “Land Use Research and the Duty to Consult: A Misrepresentation of the Aboriginal Landscape.” Land Use Policy, vol. 18, no. 2, Apr. 2001, pp. 113– 122. ScienceDirect, https://doi.org/10.1016/S0264-8377(01)00011-4.  

Natural Resources Canada, August 2018. Natural Resources: Major Projects Planned or Under Construction- 2018 to 2028, Energy and Mines Ministers’ Conference, August 2018.   

 

O’Callaghan, K., & Gilbride, B. (2010). Duty to Consult applies to Modern Land Claims Agreements: The Supreme Court of Canada’s Little Salmon Case. Enviromation, 66, 581-.   

O’Faircheallaigh, Ciaran. “Impact and Benefit Agreements as Monitoring Instruments in the Minerals and Energy Industries.” The Extractive Industries and Society, vol. 7, no. 4, Nov. 2020, pp. 1338–46. ScienceDirect, https://doi.org/10.1016/j.exis.2020.05.016.   

 

Ontario’s Critical Minerals Strategy 2022–2027: Unlocking Potential to Drive Economic Recovery and Prosperity | Ontario.Ca. http://www.ontario.ca/page/ontarios-critical-minerals-strategy-2022-2027-unlocking-potential-drive-economic-recovery-prosperity.  

 

Payne, Vanessa, February 2021. “Aboriginal Law 101: What Is the Duty to Consult?” Goldblatt Partners LLP, 28 Feb. 2021, https://goldblattpartners.com/unsolicited-blog/aboriginal-law-101-what-is-the-duty-to-consult/.    

 

 

Stevenson. Resource development on aboriginal land: the duty to Consult. In: Can’t Live Without Work A Companion to the Comprehensive Study Report on the Diavik Diamonds Project The North Slave Metis Alliance., 1999, Yellowknife, Northwest Territory, Canada.   

 

Tennberg, M., Broderstad, E. G., & Hernes, H.-K. (2022). The role of the Tłı̨ chǫ Comprehensive Agreement in shaping the relationship between the Tłı̨ chǫ and the mining industry in the Mackenzie Valley, Northwest Territories (NWT), Canada. In Indigenous Peoples, Natural Resources and Governance (1st ed., Vol. 1, pp. 104– 124). Routledge.  

 

 

37 views0 comments

Comments


bottom of page