September 30 is the first National Day for Truth and Reconciliation, a time to reflect on Canada’s colonial history and treatment of its First Nations, Metis and Inuit peoples.
Earlier this month, legal action undertaken by the Williams Treaties First Nations (WTFN) showed that there’s still a long way to go, before the rights of Indigenous communities are respected.
On Sept. 7, Turan Law Office filed a court action on behalf of the WTFN - Alderville, Beausoleil, Chippewas of Georgina Island, Rama, Curve Lake, Hiawatha and Mississaugas of Scugog Island First Nations - against Minister of Municipal Affairs and Housing Steve Clark and The Cortel Group Inc., challenging the Ministerial Zoning Order (MZO) for the proposed ORBIT development in Innisfil.
The case argues that Minister Clark used his power to grant an MZO “in a manner inconsistent with the honour of the Crown,” by failing to consult and accommodate First Nations “as required under Section 35 of the Constitution Act, 1982.”
The MZO process allows the province to override the usual zoning bylaw process, eliminating public consultation, public hearings and rights of appeal; the First Nations are now asking the courts to rule that those powers do not extend to overriding Constitutional and Treaty rights.
The Orbit proposes a transit-oriented community with a population of up to 150,000 people upon build-out, on the shores of Lake Simcoe.
The court filing notes that the First Nations were only informed of the Town of Innisfil’s request for an MZO for the Orbit on July 15, 2021, when the Chiefs were sent a brief overview.
Their response was that “meaningful consultation could only begin to take place with an assessment of the environmental consequences of the project.”
Despite the request for an environmental review and consultation, the Minister issued the MZO on Aug. 6 – and when asked to establish a Consultation Table that would allow the WTFN, Ontario Government, Cortel Group and Town of Innisfil to exchange information and address the concerns, the Ministry responded on Sept. 3, just four days before the deadline to challenge the MZO, with an offer to meet after the deadline had passed.
The court action concludes that “no analysis was done by the Town, the Cortel Group or the Minister on the potential impacts of the Project on Lake Simcoe’s water quality, aquatic life and habitat,” and therefore, there is no proof that the project won’t impact the lake and WTFN treaty rights.
“The importance of Lake Simcoe to the WTFN cannot be overstated,” the filing notes, explaining that the First Nations rely on Lake Simcoe for their water, food resources that include wild rice and fish, and ceremonial purposes.
Calling on the court to suspend the MZO and halt any further work on the Orbit, the application claims on behalf of the WTFN that there is a constitutional obligation for “deep consultation, a good faith effort to understand their concerns, and measures to address them.”
In its request for an MZO for the Orbit, the Town of Innisfil - which is not named in the court action - had requested that the Minister require the developer to work within the Lake Simcoe Protection Act.
The MZO issued on Aug. 6 made no reference to environmental concerns, or the protection of Lake Simcoe.
