On February 24, 2014, the Ontario Government released the Provincial Policy Statement, 2014 (“PPS 2014”), not previously updated since 2005.  The PPS 2014 is Ontario’s foundational land use planning policy:  all decisions affecting land use planning decisions in Ontario “shall be consistent” with the PPS.   Now, for the first time, the PPS includes references to Aboriginal people.  This is a watershed inclusion that removes persistent flouting of the constitutional duty to consult with Aboriginal communities in the Planning Act.  Donnelly Law had litigated and advocated on behalf of its former client, the Huron-Wendat Nation, for this inclusion regarding two critical issues:  notice and consultation with Aboriginal communities, and protection of significant Aboriginal cultural heritage sites.

 The key highlight from the PPS 2014 is the Province finally requires consultation with Aboriginal communities in Ontario in section 4.3:

 “This 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 Constitution Act, 1982.”

 The Planning Act itself does not formally require consultation with Aboriginal communities.  This single sentence means that planning authorities and the Ontario Municipal Board will be required as of April 30, 2014 to implement the PPS in a manner consistent with Canada’s Constitution.  In other words, there is finally a mandatory requirement to consult and accommodate Aboriginal interests in land use planning decisions.  This is consistent with David Donnelly’s (then at Gilberts LLP) submissions to the Province concerning environmental assessment, dating back to the 2003 private prosecution known as Milroy.  (Read this decision here.) 

 The second highlight for Aboriginal rights in the 2014 PPS is section 2.6.5:

 “Planning authorities shall consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources.”

 The 2014 PPS adopts Donnelly Law’s 2010 and 2012 key recommendations for consultation with Aboriginal communities and will lead to more sites protected.  Donnelly Law made submissions to the Ministry of Municipal Affairs and Housing (“MMAH”) in 2012 that the Province’s draft proposed section 2.6.5 be strengthened from the then merely supportive language of “should consider” to the mandatory “shall consider”.  This is a critical change.  As reported by Justice Linden in the Report of the Ipperwash Inquiry, approximately 2,000 significant Aboriginal sites were destroyed by development in Southern Ontario between 1951 and 1991.  The PPS 2014 should help ensure this unbelievable level of destruction is not repeated.

Other key highlights on Aboriginal Rights in the PPS 2014:

• The PPS 2014 recognizes for the first time the importance of consulting with Aboriginal communities.  (See Part IV, Vision for Ontario’s Land Use Planning System: The Province recognizes the importance of consulting with Aboriginal communities on planning matters that may affect their rights and interests.)
• The PPS 2014 supports coordination of planning matters with Aboriginal communities.  (See Section 1.2, Coordination:  1.2.2 Planning authorities are encouraged to coordinate planning matters with Aboriginal communities.)
• The PPS 2014 recognizes that built heritage resources and cultural heritage landscapes include Aboriginal resources and landscapes.  (See section 6.0, Definition.  “Built heritage resource”: Built heritage resource: means a building, structure, monument, installation or any manufactured remnant that contributes to a property’s cultural heritage value or interest as identified by a community, including an Aboriginal community; and “Cultural heritage landscape”: Cultural heritage landscape: means a defined geographical area that may have been modified by human activity and is identified as having cultural heritage value or interest by a community, including an Aboriginal community.)

In the past, municipalities did not have to undertake any Aboriginal consultation because the Province had not “expressly or impliedly” delegated procedural aspects of the duty to consult, beyond the arguably unconstitutional notice provisions in three regulations under the Planning Act.  Those regulations require only consultation with Aboriginal communities within one kilometre of a proposed development site – regardless of cultural affiliation.  (See s. 5(9)(19) of O. Reg. 545-06.)

 David Donnelly and Donnelly Law has been advocating for changes to Ontario’s planning policies and law to recognize Aboriginal interests and rights for over a decade.  This work focused two key outcomes, described below.

  1. Proper Notice and Consultation

 There was no requirement in the Planning Act for consultation with Aboriginal communities, even if land use planning decisions may impact on Aboriginal rights, unless an Aboriginal community lived within one kilometre of the proposed development. 

 This situation is similar to past environmental assessment policy that was challenged by David Donnelly, then at Gilbert’s LLP, in the Milroy Prosecution.  In this private prosecution against Ontario Realty Corporation (“ORC”), the predecessor to Infrastructure Ontario, the Ontario Court of Justice found ORC guilty of failing to conduct a proper environmental assessment before disposing of property with ancestral Wendat sites, since ORC did not consult with Aboriginal people.  As a result of this litigation, the Ministry of the Environment changed the procedure on its Municipal Class Environmental Assessments to require consultation with Aboriginal communities.   Further, in the proposed Seaton development, the subject lands of the environmental assessment, underwent an extensive consultation processes with impacted First Nations as a result of the Milroy decision.

 While policy under the environmental assessment process has changed, until the new 2014 PPS, the Province made no move to incorporate Aboriginal consultation into planning matters.  Donnelly Law challenged the constitutionality of Planning Act regulations that only require notice to First Nations within one kilometre of the proposed development project in an appeal of the York Region Official Plan.  York Region agreed to and undertook Aboriginal consultation to develop an Archaeological Management Plan and procedure for ensuring notice is received by potentially affected Aboriginal communities, regardless of proximity from a development proposal.  (Read our motion materials.)

   2. Protection of Significant Aboriginal Cultural Heritage Sites and Landscapes

 Thousands of Aboriginal heritage sites have been destroyed in Ontario due to development since the 1950s.  

 In 2005, David Donnelly represented the Founding First Nations Circle (“FFNC”) at the Ipperwash Inquiry, bringing submissions to Justine Linden for legal reform to protect Aboriginal cultural sites from destruction.  The FFNC sought involvement for First Nation descendants to be involved in challenging decisions to remove Aboriginal cultural heritage sites.

A recent example of the difficulty in protecting significant Aboriginal heritage sites is the Skandatut village site in Vaughan, Ontario.  In Vaughan, a private land developer tried several times to excavate the Skandatut site to make way for a new sub-division, without the consent or knowledge of the Huron-Wendat Nation.  Huron-Wendat Nation counsel in Ontario David Donnelly (Donnelly Law) prepared an injunction and proceeded to Ontario Court asking for a stop-work order for Skandatut and other Aboriginal cultural heritage sites.  The Ontario Minister of Culture intervened and exercised his discretion under the Ontario Heritage Act to issue his own Stop Work Order to temporarily preserve Skandatut.  The Minister also ordered mediation between the landowner, City of Vaughan and Huron-Wendat Nation.  After years of effort, mediation and court action, a settlement was reached by the City of Vaughan, the landowner and the Huron-Wendat Nation.  The Skandatut site comprises the archaeological remains of a large and heavily fortified, late sixteenth-century ancestral Huron-Wendat village. It represents the most recent in a series of related major Huron-Wendat villages located along the Humber River valley north of Woodbridge in the City of Vaughan.  In its time, Skandatut was at the centre of trade and diplomacy in the Great Lakes Region, its location and size made it the “capital” of central Ontario.  It housed upwards of 1,500 to 2,000 Huron-Wendat members in 40 to 50 longhouses.  Most importantly, Skandatut overlooks the former location of its burial grounds, the Thonnakonah Ossuary (formerly known as the Kleinburg Ossuary), located 500 metres west, that at one time contained the remains of 561 individuals who lived and died at Skandatut. 

  Advocacy regarding the Provincial Policy Statement

 Donnelly Law is pleased parts of its submissions on the PPS in both 2010 and 2012 have been included in the PPS 2014: 

• Explicit reference to s. 35 of the Constitution Act, 1982;
• Explicit reference to Aboriginal interests in cultural heritage and archeology in section 2.6; and
• Reference to Aboriginal interests and communities in the definitions for built heritage resources and cultural heritage landscapes.