First Nations take Ontario government to court over environmental protections

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This article was published 23/09/2020 (2202 days ago), so information in it may no longer be current.

Several Indigenous groups are taking the Ontario government to court over recently rescinded environmental protections, arguing the province’s move violates their constitutional rights.

The claim comes in a notice of application filed this week by nine northern Ontario First Nations and associations.

The application states that Premier Doug Ford’s government reversed decades of environmental progress and protections for Indigenous communities when it made changes to the Environmental Assessment Act.

In July, the government changed the rules around assessments for forestry projects and passed a sweeping omnibus bill aimed at speeding up the economic recovery from the COVID-19 pandemic.

The Indigenous groups claim the result is that public projects can now take place without any environmental assessments at all — a move they say undermines both previous government agreements and their rights.

They’re asking the Ontario Superior Court of Justice to declare the changes unconstitutional and reinstate protections across the board.

“Through these decisions the Crown has undone a set of protections for both the environment and for the exercise of Aboriginal and Treaty rights,” the notice of application reads.

“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 Ministry of the Attorney General said it was reviewing the application, but declined further comment since the case is currently before the court.

The bulk of the Ford government’s environmental changes became law in July when a bill dubbed the COVID-19 Recovery Act was tabled and passed in less than three weeks.

It altered 20 pieces of current legislation governing areas as diverse as the province’s schools, municipalities, and justice system.

Ford said the bill will help change an environmental assessment process that has been on the books for decades.

“We aren’t going to dodge (environmental assessments) or anything,” he said in July.”We’re going to make sure we strengthen them, but we’re going to do them quicker, smarter.”

The Indigenous groups disagree, saying removing the need for environmental assessments on public projects undercuts years of negotiations between the government and First Nations communities.

The notice of application points specifically to four years worth of timber management hearings in the 1980s and 1990s, during which it says Indigenous communities successfully argued that the environment was crucial to their ancestral way of life and won key protections from the province. Those protections, they contended, allow First Nations communities to continue exercising their rights to hunt, fish and pursue other long-standing tenets of Indigenous traditions.

The application said the government’s most recent decision effectively undoes those efforts.

The groups argue all public projects were previously subject to an automatic environmental assessment unless specifically exempted by the minister, noting the public also had opportunities to weigh in if such an exception was considered.

After the changes in July, they said that position has reversed, with the minister now having the right to decide if an assessment is necessary.

“The Crown created an open-ended discretionary regime within the new (act),” the application said. “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.”

Chief Robert Nakogee of Fort Albany First Nation, one of the groups behind the application, said First Nations were fighting back.

“This is not reconciliation between the Crown government that has perpetrated colonialism and the governments of first peoples who have lived in and protected these environments and lands since time beyond memory,” he said in a statement. “This is deconstruction … We are seeking to have all of this declared unconstitutional.”

A date for the first court hearing in the case has not yet been set.

This report by The Canadian Press was first published Sept. 23, 2020.