Ring of Fire development to be 'slow, contested' if Far North Act replacement stands as-is, legal expert says

Ontario's proposed revamping of legislation that dictates how development proceeds in the province's far north doesn't do enough to protect the rights of First Nations and will likely lead to "renewed conflict" with Indigenous communities, according to an environmental law expert.

That's among the conclusions submitted by Dayna Scott, an associate professor at Osgoode Hall and a co-director of the law school's environmental justice and sustainability clinic to the ongoing review of the Far North Act. The Ministry of Natural Resources and Forestry is reviewing the 2010 legislation with an eye on repealing it, "with a view to reducing red tape and restrictions on important economic development projects in the far north."

Scott said it's a "tricky issue" as many First Nations didn't approve of the Far North Act coming into force, citing a lack of consultation, calling the legislation "imperfect" in her submission but added, in an interview with CBC News, that what the government is proposing to replace it with — largely the Public Lands Act — is "even worse in terms of giving communities the power to make decisions about land uses in their territories."

"It sort of sets up a kind of planning system that's completely discretionary, that gives all the power to the Crown and the ministries," Scott said. "It has ... a very basic recognition of constitutional protection of treaty rights, for example."

"They don't really give any control over planning to the communities themselves."

The press secretary for Indigenous Affairs Minister Greg Rickford has said the government will continue to engage with northern First Nations during the consultation process "and discuss how we can collaboratively open the north up for business."

North Bay-area MPP Vic Fedeli said, when the review was announced in February, that it will "open up" large areas of northern Ontario, "while still retaining the approved land use plans that have been done."

The current proposal effectively keeps the current rules under the Far North Act in place for projects by First Nations who have "advance stage plans" in place as long as those plans are finalized by the end of 2020. The environmental registry lists Marten Falls, Webequie, Eabametoong, Mishkeegogamang, Constance Lake, Deer Lake and McDowell Lake as communities that fit that criteria.

"What that does is it means we could potentially end up with kind of a patchwork through the north where some communities have protection ... and some communities don't," Scott said.

"My fear is that is going to work towards a system in which the ... mining-ready communities are going to be empowered to work towards their goals or visions for their territories but communities that wanted to go slower or that wanted to protect certain land-based economies or visions will not have control over their territories."

Developing the Ring of Fire under such a system will likely be "slow, contested and uncertain," she wrote in her submission.

On the environmental registry, officials with the Ministry of Natural Resources and Forestry say that legal requirements, such as the Crown's duty to consult, along with statutory requirements in the Mining Act and the Environmental Assessment Act "would continue where applicable."

Concerns over less certainty, more conflict

A system that doesn't get adequate input from First Nations in the far north opens development plans up to conflict and the potential for litigation, Scott said, referring specifically to the dispute between Kitchenuhmaykoosib Inninuwug, also known as Big Trout Lake, and mining company Platinex.

Her submission to the provincial review noted that "an approach which seeks to minimally comply with the duty to consult and accommodate not only fails Indigenous communities, but also creates significant uncertainty, delay and costs for project proponents."

"Litigation is expensive, time-consuming and uncertain for all parties."

When asked about Scott's concerns about the proposed system not being strong enough to ensure that First Nations' rights are protected during land-use planning and that it has the potential to lead to renewed conflict with Indigenous communities, the communications director for Natural Resources Minister John Yakabuski said in an emailed statement that "we have been reviewing the Far North Act to reduce restrictions on important economic development opportunities and open up the far north to jobs."

Scott said she'd like to see Ontario use the current review to draft more progressive legislation than the Far North Act in terms of how First Nations are included in land planning, recommending that the province implement government-to-government partnerships over planning and development and start negotiations to create a joint planning process that balances environmental protection and economic development.

"As such, the proposal is not likely to achieve its aim of removing obstacles to economic development in Ontario's far north," Scott wrote.

"The failure of the provincial government to understand that Aboriginal rights, treaty obligations and Indigenous jurisdiction are not 'red tape,' is likely to lead to even more uncertainty for proponents and renewed conflict with First Nations."