At least two First Nations in Ontario say the province has been accelerating land development while neglecting communities' constitutionally protected right to know and offer feedback about building plans.
An Indigenous rights lawyer says this lack of consultation is an issue in other parts of Canada, and could lead to an injunction or lawsuit for damages.
Six Nations of the Grand River and Mississaugas of the Credit, both in southern Ontario, have expressed concerns about Minister's Zoning Orders (MZOs) — which allow the province to immediately authorize development and bypass local planning rules to expedite what it wants built.
Municipal councils request MZOs on non-provincially owned land. Although they can be subject to a judicial review, MZOs can't be appealed or rescinded, unless the province does so.
Before 2019, MZOs were the exception to the rule, but now are being used more than ever.
That said, the duty to consult Indigenous communities trumps the power of an MZO.
A key pillar in Indigenous communities is to protect the environment, but they can't do that if they don't know what is being built.
"It's bad enough that we as Indigenous Peoples are being disrespected, but disrespecting Mother Earth and the natural environment is equally as important to highlight," Robbin Vanstone, Six Nations of the Grand River's consultation supervisor, told CBC Hamilton.
Too much development to track
Six Nations and the Mississaugas treaty lands cover a large portion of Ontario, which means they can get a lot of requests from municipalities and developers.
"If it's not regulated or if there's not a process developed … it's a massive issue for us if we're not able to find a resolution with Ontario for this," Mississauga Gimaa (Chief) Stacey Laforme said in an interview.
Laforme said MZOs can impact the environment and disrupt archeological work.
Vanstone and Laforme said they focus on municipalities closest to them and developments most likely to harm the environment.
But, Vanstone said, developers aren't always keen to consult with First Nations.
"It's really difficult for us to make a stand against developers when we sometimes can't get them to the table," she told CBC Hamilton.
Controversy in Cambridge
She gave the example of an MZO in Cambridge for a controversial Amazon-style warehouse.
Cambridge city council voted unanimously to endorse the MZO last year.
CBC Hamilton obtained a letter Vanstone sent to Steve Clark, the minister of municipal affairs and housing, on March 21 outlining her concerns about the city's lack of consultation.
The letter says the city would only meet with Six Nations if Clark attended the meeting. Vanstone also says it was unaware there was an ongoing archeological assessment at the land of the proposed development.
The letter says consultation, at the minimum, is to have a meeting with Six Nations.
"If they are coerced into doing that now, I do not have faith that the consultation will be carried out in good faith," Vanstone wrote.
"We are very concerned that as the minister of municipal affairs and housing, you continue to use your power to enable municipalities to sidestep the consultation process and disregard the legal duty to consult."
Vanstone said she hasn't heard back from the province about the letter.
The same day she sent the letter, Cambridge city councillors placed the project in limbo by voting against approving a heritage impact assessment and a transportation impact study before construction could start.
That said, sometimes consultation isn't a hassle.
Vanstone said the County of Brant and the City of Guelph have done a good job, and relationships are improving with the City of Hamilton.
Laforme also said some MZOs are fairly small and seem to have little to no environmental impact.
Province says municipalities expected to consult
Asked about concerns from both First Nations, the Ministry of Municipal Affairs and Housing told CBC Hamilton it expects municipal councils to consult Indigenous communities before requesting MZOs.
After the MZO request is in, the province said, it notifies Indigenous communities about the proposal and will hold meetings as requested to discuss further.
The ministry said it "engaged" with the Mississaugas on 20 MZO requests and with Six Nations on 13 MZO requests.
While the province can outline expectations it has for third parties like municipalities to consult with Indigenous communities, the province's own website says it has "a legal obligation to consult" and that it is "committed to meeting its duty" to do so.
Vanstone said the ministry's "engagement" isn't enough, calling the province's statement to CBC "a complete lack of respect for our rights."
Ontario's promise of consultation 'a lie': Six Nations rep
Vanstone's office shared a timeline of the communication it said it has had with the province about recent MZOs.
It shows on Nov. 9, her office had a meeting with the province in which the ministry "promised fulsome consultation on MZOs."
About a month later, Vanstone said, the province shared information about four MZO requests. Vanstone said that two days later, her office shared concerns about three MZOs (two in Brampton and one in Caledon) and asked for documents about the proposed developments.
Vanstone said the province took over a month and a half to respond, didn't hand over enough information about the Caledon property and never sent documents about the Brampton MZOs.
The MZO in Caledon is for 4.5 million square feet of industrial buildings expected to net some 2,250 jobs, according to Tribal Partners, the developer of the proposed site. It has raised the ire of some residents, who spoke out during a council meeting in October 2021.
"Before we submit this MZO again, they just seem to be handed out like Halloween candy," said resident Kathleen Wilson. "It's just not fair and it's very undemocratic."
Vanstone also said the province ended up approving the Caledon MZO two weeks before receiving Six Nations comments about it in late March.
"Ontario's promise of fulsome consultation was a lie," read the email from Vanstone's office.
The ministry told CBC Hamilton it provided information to Six Nations as requested, and said the details took time to gather because it had to work with the municipality to get answers.
The province also emphasized that after an MZO is approved, the municipality has to deal with various processes that would include input from residents and Indigenous communities before construction starts.
Resources for consultation process inadequate, says lawyer
Gordon Campbell, an Indigenous and Aboriginal rights lawyer with Aubry Campbell Maclean in Alexandria, Ont., near Ottawa, said the province has a duty to consult Indigenous communities, but lack of consultation is an issue in Ontario and across Canada.
Campbell said an Indigenous community can seek consultation from the province through the courts, but it can be expensive, and even if a series of meetings between the parties are ordered, the Indigenous communities may not get what they want.
He said they could also try to stop a development through injunctive relief, which is more common in Western Canada, or try to sue for damages after the development is built.
Campbell said consultation has to be meaningful — that means an email or short letter saying something is going to happen likely isn't enough.
"It is a two-way street, so if the government does offer meaningful consultation, Indigenous peoples do have to meaningfully engage and courts have actually criticized both sides from time to time."
But Campbell said the consultation with Indigenous communities isn't fulsome enough.
"I suggest that's largely due to inadequate resources being devoted by the Crown, both federal and provincial, to take these consultation duties seriously."