First Nations Bill 197 lawsuit advances as Ontario makes empty offers to consult, lawyer says

The lawyer representing several First Nations who are seeking to overturn changes to the provincial environmental assessment process says the province is making empty offers to consult with communities on its new environmental regulations. 

Changes to the Environmental Assessment Act (EAA) brought about by the passage of Bill 197 in July eliminated the need for environmental assessments for any public projects unless specifically called for by regulations; previously, the EAA mandated environmental assessments for all public projects unless specifically excluded by regulations. 

The minister of environment, conservation and parks has reached out to individual First Nations offering to consult with them about the creation of the new regulations, which will spell out which projects qualify for assessment, said Kate Kempton, the lead counsel on the case and a partner with Olthuis Kleer Townshend LLP.  But, she said, those consultations are not funded, and there's "no room to bring in legal and environmental expertise" in the process.

"So clearly what they're planning to do is just say that they're making offers to consult with no real content to it," Kempton said. "They try to trap the First Nations into a damned-if-you-do-and- damned-if-you-don't scenario. So if they say, 'No I don't want to talk to you on that basis,' Crown governments in the past have turned around and said, 'Oh well you had the chance, and you didn't take it.' And if First Nations do walk down that road, that road's a dead end. And then they're told afterwards, 'Well we did consult with you, and so we ticked off our box.' And so that's what we see developing here."

A spokesperson for the Ministry of Environment, Conservation and Parks said in a written statement that the government takes the duty to consult seriously and is committed to consulting with Indigenous communities prior to making any decisions that could adversely impact Aboriginal or treaty rights.

"The ministry is open to discussing the needs and support Indigenous communities might need to be able to take on this role," the spokesperson wrote. "The ministry has offered capacity to various communities in the form of technical support and is considering options on how to further support Indigenous communities with the review of proposed regulations for implementing the recent enabling amendments to the Environmental Assessment Act."

Lawsuit moving forward

Kempton's legal team, which represents nine parties, including Eagle Lake First Nation in northwestern Ontario, filed their evidence in the court case on Nov. 18.

The litigants say the province violated the Environmental Bill of Rights by passing Bill 197 in July without public consultation or First Nations input. 

They are also challenging the bill's aforementioned amendments to the Environmental Assessment Act and the province's decision to revoke, through a regulation and an Order-in-Council, Declaration Order 75, effectively removing the application of environmental assessments to the forestry sector.

"Through these decisions, the Crown has undone a set of protections for both the environment and for the exercise of Aboriginal and Treaty rights thereon," the litigants wrote in their Application to the court. 

"These protections had been put in place to address the central importance of the environment to these rights, which First Nations exercise for their very survival."

The changes to the Environmental Assessment Act are problematic in part because there are no rules or criteria to outline how projects qualify for environmental assessment, the document says.

"This creates a path of unpredictability, uncertainty and probability of multiple disputes, forcing First Nations to live on the edge of their seats and depleting their already insufficient resources for engagement. This is neither honourable nor reconciliatory as required by section 35 of the Constitution."

The litigants want the court to declare the changes unconstitutional, Kempton said, and to order both Ontario and Canada to engage in a cooperative, collaborative consultation process that will "update the environmental assessment regime in the right direction and not the wrong direction."

The province has until Dec. 18 to respond to the action.