Indigenous consultation and Bill 197: Understanding the exemptions for Indigenous communities in Ontario's EA reforms

The Province's reform of its environmental assessment program largely focuses on reducing process and consultation for environmental assessments ("EA"), but preserves specific consultation rights for Indigenous communities. The changes also seek to expedite projects and activities related to land claim settlements and other agreements with Indigenous communities.

Through Schedule 6, the COVID-19 Economic Recovery Act, 2020^[1] provides major reforms to the Ontario Environmental Assessment Act ("EAA") largely to streamline the path to project approval.

Two aspects of these new EAA amendments have direct importance to Indigenous communities across Ontario.

1. Exemption for Projects or Activities Related to Land Claim Settlements/Agreements with Indigenous Communities

The Government of Ontario has proposed to exempt from the EAA projects or activities related to land claim settlements and other agreements with Indigenous communities dealing with land.

Currently under the EAA, as a result of the Ministry of Indigenous Affairs' settlements or agreements, these projects or activities may be undertaken by several proponent ministries, such as the Ministry of Natural Resources and Forestry, the Ministry of Energy, the Northern Development and Mines and the Ministry of Government and Consumer Services, with requirements under various class environmental assessments. The proposed changes aim to streamline the processes into a single environmental assessment process for evaluation and consultation; eliminate duplication; shorten timelines; and, reduce the overall cost of settling Indigenous land claims.

2. Requests for Orders to elevate class or sectoral EAs to individual EAs to be limited to projects impacting indigenous rights

The current EAA allows the Minister to order a project proponent normally subject to a class environmental assessment approval or sectoral EA regulation to carry out an individual EA where ordered by the Minister (such an Order is referred to as Part II Order, a "bump-up" or an "elevation" order).

The amended EAA proposes a new Part II.4 to address all class and sectoral EA approvals under the heading of "Streamlined Environmental Assessments." This new Part II.4 provides the Minister with the power to order that a streamlined EA be subject to Part II.3 and its more rigorous requirements for "Comprehensive Environmental Assessments."

The amended EAA also provides a lengthy and complex process to transition to the new Parts of the EAA from the existing Part II requirements for individual EAs and Part II.1 requirements for class EAs.

Nevertheless, one key aspect of the amended EAA has immediate effect. There is no longer any right to ask a director or the Minister to elevate a class EA to an individual EA unless the request concerns project impacts on indigenous rights (or other topics specified in future not-promised regulations).^[2] An applicant must persuade the government that the order may prevent, mitigate or remedy adverse impacts of a project on existing constitutionally protected aboriginal and treaty rights, with the intention of reducing uncertainty and undue delays to critical infrastructure and development projects.

Further, the amended EAA preserves the Minister's existing authority to make orders requiring proponents to comply with the environmental assessment process for approved streamlined environmental assessments, but limits the time period for the Minister to impose conditions or require an individual (or Part II) EA for a project.

For greater certainty, the amended EAA further advises that any undecided request for the Minister to elevate a project subject to a class EA for an order under section 16 of Part II.1 is now terminated unless the request "may prevent, mitigate or remedy adverse impacts on the existing aboriginal and treaty rights of the aboriginal peoples of Canada as recognized and affirmed in section 35 of the Constitution Act, 1982."

Two other EAA amendments are also relevant to indigenous communities.

Non-Derogation Provision

The amended EAA now includes a "non-derogation provision", which states that nothing in the EAA is intended to affect constitutionally protected aboriginal and treaty rights. Similar provisions appear in various federal and provincial statues to reiterate the existing primacy of Indigenous constitutional rights.

Consultation Exemption

The amended EAA also exempts the proposed changes to the EAA from the minimum 30-day posting requirement and public participation process under the Environmental Bill of Rights, stating that this will ensure that these proposed changes can be implemented expeditiously in order to support economic recovery efforts. Despite this exemption, the government has stated that it intends to consult with the public, Indigenous communities and stakeholders on new regulations to implement the amended EAA.

Other changes to Ontario's EA Program

Along with its proposed EAA amendments, the Government of Ontario gave notice of its intention to update the Consultation Code of Practice – a policy document that sets out the expectations of Ministry of the Environment, Conservation and Parks for consultation in the EA process. The Province states that the update is intended to ensure that expectations are clearly outlined to promote meaningful consultation with Indigenous communities and engagement with other interested persons. No details have been provided with respect to the scope of these changes.

Additionally, beyond amendments to the EAA, Ontario has proposed new regulatory exemptions from the EAA to remove forestry projects and projects within provincial parks from the EAA regime altogether.^[3] As a result, these amendments would terminate all EAA consultation obligations for applicable projects. However, further guidance will likely be provided in the Government of Ontario's forthcoming changes to related guidance for these regimes, such as the Forest Management Planning Manual.^[4]

What's Next?

Now that the EAA has been amended, the Government of Ontario will draft regulations and update their Consultation Code of Practice to flesh out the practical details of their approach to Indigenous consultation in the context of EA for Ontario projects.

Despite the EAA exemptions described above, Proponents and Indigenous communities should also keep an eye on which new projects may be subject to pre-approval under the new streamlined environmental assessment regime, in order to be certain that streamlining does not circumvent overarching consultation obligations.

Conclusions

In the course of approving projects, the Government of Ontario has an obligation to consult and accommodate Indigenous communities in accordance with section 35 of the Constitution Act, 1982. Since the environmental impacts of projects often also affect Indigenous rights to lands and resources, the government's approval of projects with potentially adverse environmental impacts often engages Indigenous consultation rights regardless of what the EAA does or does not prescribe.

On the other hand, amending the EAA to limit the EA process for projects affecting Indigenous communities may create a risky regulatory landscape for Indigenous communities and proponents alike. In particular, an overly streamlined process risks ignoring effects on Indigenous rights and stifling Indigenous participation, thereby leaving project approvals vulnerable to judicial intervention.

While the full practical implications of these amendments to the EAA remain to be seen, constitutional obligations to consult Indigenous peoples loom large over all of the Government of Ontario's recent proposed legislative and policy amendments.