Precedent precludes a duty to consult in the law-making process
The Ontario Court of Appeal dismissed an appeal by First Nations groups challenging changes to Ontario's environmental assessment regulations and forest management policies.
These changes included the revocation of MNR-75, a regulation under the Environmental Assessment Act (EAA), and amendments made by Bill 197 to the EAA, effective July 1, 2020.
On June 25, 2020, Ontario revoked MNR-75, which previously provided specific oversight and consultation requirements for forest management projects. The revocation exempted certain areas from the EAA, intending to "modernize" environmental protection and advance post-COVID economic recovery. The appellants argued that the Crown breached its duty to consult Indigenous communities by not including them in the decision-making process, which led to these changes.
The application for judicial review was initially dismissed, with the divisional court ruling that there was no duty to consult during Bill 197's legislative process. The majority held that revoking MNR-75 did not trigger a duty to consult. At the same time, the dissenting judge argued that the Crown had an obligation to engage in deeper consultation given the historical context and the impact on Indigenous rights.
The Court of Appeal upheld the lower court's decision, agreeing that the Mikisew Cree First Nation v. Canada precedent precludes a duty to consult in the law-making process. The court also supported the majority view that revoking MNR-75 did not necessitate consultation. The manual, a legally binding document, already incorporated many of the protections originally in MNR-75, continuing the Ministry of Natural Resources and Forestry's (MNRF) obligations to protect the environment and consult with Indigenous communities.
While MNR-75 had provided for certain Ministry of the Environment, Conservation and Parks (MECP) oversight over the MNRF, the court found that removing this oversight did not constitute an adverse effect significant enough to trigger a duty to consult. Any potential adverse impacts were deemed too speculative. The court also noted that economic benefits contemplated in MNR-75 were already covered under existing provisions, such as the Sustainable Forest Licences issued by the MNRF.
The appellants did not provide sufficient evidence linking the revocation of MNR-75 to specific adverse impacts on their Aboriginal or treaty rights. The court concluded that the legislative changes did not remove or reduce the Crown's consultation obligations for future forestry management decisions.
Ultimately, the court reaffirmed the legal standards for the duty to consult and the interpretation of regulatory changes concerning Indigenous rights and environmental oversight.
