 Volume 17, No. 2 - May/Mai 2007
Reminder
Municipal Law is published by the Municipal Law Section of the Ontario Bar Association. Members are encouraged to submit articles or suggest story ideas. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment. |
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The Growth Plan and Intensification – Growing Up is Hard to Do Panelists: Ira T. Kagan, Kagan, Shastri Barristers and Solicitors; Paul Lowes, Sorenson Gravely Lowes Planning Associates Inc.; Bruce Singbush, MCIP, RPP, Ministry of Municipal Affairs and Housing Chairs: Patricia Foran, Aird & Berlis LLP; J. Pitman Patterson, Borden Ladner Gervais LLP Soussanna S. Karas* INTRODUCTIONS Patricia Foran started the evening by offering thanks to the panelists and greeting the guests. She invited everybody to the Joint Municipal and Aboriginal program which is scheduled for April 24, 2007. In addition, Ms. Foran reminded that on May 10, 2007, there will be an Annual State of the Board Address, so everybody who is interested is invited to attend. Ms. Foran introduced the first speaker of the evening, Mr. Bruce Singbush. BRUCE SINGBUSH Bruce Singbush is the Manager of Planning Projects for the Ministry of Municipal Affairs and Housing and is a Registered Professional Planner. With extensive experience gained from both the municipal and private sector, Bruce is responsible for overseeing major planning and development files within the Greater Golden Horseshoe. These include the implementation of the Central Pickering Development Plan (Seaton), the Intergovernmental Action Plan (IGAP) for Simcoe, Barrie and Orillia as well as the North Oakville Secondary Plan. Bruce was also actively involved in advising the government on many of the recent planning reforms, including the Greenbelt, Growth Plan and Planning Act changes. Mr. Singbush started his presentation by stating that the challenge is about growing up – both from a physical development perspective and from a professional paradigm perspective. He then proceeded to describe his experience working for the City of Windsor. During his career at the City of Windsor, he had exposure to the issues the Detroit Metropolitan Area (“DMA”) was facing at the time. Mr. Singbush described the DMA as a geographic territory of some 5 million people on the shores of the Great Lakes circled by large moraines. Economically, DMA is reliant on a strong manufacturing sector for major wealth creation. Politically, it is seven counties and some 140 municipal jurisdictions. Mr. Singbush noted that historic growth pattern of the DMA bears some resemblance to the Greater Toronto Area (“GTA”). The DMA as well as the GTA has had little, if any, meaningful regional direction or investment to redevelop and intensify sustainable communities. In the DMA, as well as in the GTA, the development wake has left deterioration and decline in almost every municipality. He then stated that there are significant differences between the two metropolitan areas in that historic consequences of growth in the DMA and the GTA differ to an extent due, in part, to government policy and investment decisions. The differences are visible in the following comparisons:
Mr. Singbush noted that the bottom line for these municipalities is that redevelopment and intensification isn’t an option for them, it is the only option. He also emphasized that great communities continually need to reinvest and reinvent themselves in order to grow. In addition, Mr. Singbush stated that recent census data confirm that the GTA continues its trend toward becoming a denser and denser region. Commentary – New P3s – “Policies, Powers and Programs” Mr. Singbush commented on the new P3s which he stated are about relentlessly implementing the various policies, powers and programs to further intensify the GGH. The common thread is about focusing on building a community. He noted that professional efforts need to be less geared toward fighting on the fringes and frontiers and more toward partnering to build better places to live. Provincial Policy Mr. Singbush provided his comments on the Provincial Policy, one of the new P3s. He stated that the planning system in the GGH is now governed by six (6) statutes and seven (7) policy documents. All of the provincial plans and policies were specifically designed to cohesively achieve one common regional vision. The vision is a vibrant GTA metropolis served by a regional transit system, encircled by an active Greenbelt with strong connections to five satellite cities and beyond. Currently, all provincial plans are directed toward this common outcome. He also noted that recent provincial policy reforms are not causing growth to happen – growth would happen regardless. On the contrary, provincial policy reforms are about providing more direction, tools and resources to manage this growth. He stated that the direction is clear where our professional efforts should be focused:
Mr. Singbush further stated that the research on urban land supply across the Greater Golden Horseshoe shows that there is plenty of land designated for at least another 15 years, if not more, of growth across the entire GGH. It also demonstrates that the lands south and east of the Greenbelt can accommodate multiple generations of growth, even if one were to apply current development patterns and densities. He emphasized that the success of the Growth Plan will be measured by the success of achieving the policy intent of the document as a whole, i.e. building compact complete communities. As the research for the City of Waterloo shows, the polices and targets are achievable based on recent research with modest shifts in urban form. Powers In introducing the second part of P3s, Powers, Mr. Singbush posed this question: “How can the policy objective of having compact complete communities, good design and attractive urban form be realized?” Bill 51 introduces two types of improvements: process and tools. Describing process side, Mr. Singbush stated that they are designed to:
On the tool side, Bill 51 describes the development permit system as:
Programs The third part of the P3s is Programs. Mr. Singbush noted that intensification demands advanced transit systems as a key piece of the infrastructure. He continued that the recent budget provided a reasonable start for such a transit system:
He also stated that the newly created Greater Toronto Transportation Authority (“GTTA”) is designed to bring about positive changes in structuring of the transit system for the GTA. However, Mr. Singbush further stated that even though the path is a good one, it is a work in progress and we will be waiting to see the results the new GTTA can deliver. Speaking about Brownfield lands, Mr. Singbush stated that it is an important part of the unused urban land supply across the GGH. Recent budget announced introduction of pilot funding and proposed legislation to reduce the various technical and financial barriers to realizing the potential of the Brownfield lands. Summary In conclusion Mr. Singbush stated that the evidence supporting the shift in the GGH’s development paradigm is overwhelming. The core intent for future growth within the GGH is direct and clear. What remains, however, is furthering the desire of leaders from all sectors to advance this change.
Second speaker of the evening was Paul Lowes. Paul Lowes is a principal with the planning firm of Sorensen Gravely Lowes Planning Associates and is a Registered Professional Planner. He began his career with the City of Etobicoke where he was extensively involved in the preparation of the new Official Plan. In 1990, he joined Keir Consultants Inc. and in 1997 became a Principal of Sorensen Gravely Lowes. His practice is largely focused on planning policy and large scale development matters including Official Plans, Growth Management Studies, Secondary Plans, comprehensive Zoning By-Law reviews, commercial studies and land development applications. Paul recently completed an Official Plan Review and Growth Management Strategy for the Town of Innisfil and large Secondary Plans for landowner groups in Richmond Hill and North Oakville. He is currently preparing the Waterdown South Secondary Plan for the City of Hamilton, peer reviewing the Lefroy Belle Ewart and Lefroy Secondary Plans for the Town of Innisfil and undertaking the City of Guelph Zoning By-law Review. Mr. Lowes introduced the topic of his presentation as: “What are the implications of the growth of Designated Greenfield Areas”. He further elaborated that in accordance with the Growth Plan, Designated Greenfield Areas (“DGA”) will be planned to achieve a minimum density target of not less than 50 persons and jobs per hectare. What are the implications of such a growth? On Residential Side As an example, Mr. Lowes proposed to subtract Natural Heritage Features from the total DGA’s. This will require taking out such features as:
Mr. Lowes continued that such a subtraction will leave Net Developable Residential land area of 50% to 60% of the Developable area. Mr. Lowes further stated that current person-per-unit ratio in GTA is 2.99. It requires average density of 28 to 33 units per hectare. 28 units per hectare results in an average 11.9 m x 30 m lot or 39 ft. x 100 ft. Whereas 33 units per hectare results in an average 10.1 m x 30 m lot or 33 ft. x 100 ft. New Growth Areas in the GTA Mr. Lowes emphasized that the New Growth Areas (such as Vellore, Langstaff, Milton, North Markham, and Oakville) are achieving the above noted average density without the need to build the apartment buildings. He explained that the way they are able to achieve such density is through:
Small Settlements Small Settlements such as Waterdown, Georgetown, Nobleton, Schomberg, Wasaga Beach, Creemore, Alcona, Lefroy, Bradford, Bond Head, Holland Landing, Stouffville, Whitevale, Greenwood, and Brooklin are also experiencing or will experience substantial growth due to the following reasons:
Mr. Lowes commented on the existing housing character of the Small Settlements. They are characterized as historic hamlet homes with prevailing patterns of large lots, sprawling homes with large setbacks and the fact that the existing lot size is often based on septic requirements. He also stated that the existing owners of the houses within Small Settlements are becoming increasingly concerned that the growth pattern clearly visible in the Net Growth Areas of GTA will bring small houses, reduced side yards and change to the character of the smaller cities. Key Planning Considerations Mr. Lowes continued to say that housing character and transition will be the key planning considerations. In addition, urban design and architectural control are growing in importance as a planning consideration. He stated that Bill 51 brought important changes into the Planning Act. Section 41.(4) was amended to add character, scale, appearance and design features of a building as part of the mandatory approval process. Section 51(24) (m) was added to emphasize the importance of the interrelationship between the design of plan of subdivision and site plan matters. Employment Densities Mr. Lowes was asked whether it is possible to reach the density average set for the GTA areas. He stated that the GTA employment density average is around 40 employees per hectare. This average is even higher in Markham/Richmond Hill 400/407 area. It reaches up to 100 employees per hectare in Beaver Creek area. He further stated that it is difficult to raise the employment density and it also depends on industry type in the area. He also noted that population serving employment can partially offset employment densities. For example, in cases where employees work at home, commercial or institutional settings. Falling Household Size – Density Inflation Mr. Lowes continued his presentation by noting that the ratio of persons per household in GTA is anticipated to fall from 2.99 to 2.69 by 2031. It will result in the increased density in order to achieve Average density required would be 37 units per hectare. This will result in the average 9 m x 30 m lot or 29 ft. x 100 ft. In such case, mature municipalities will require increased housing to maintain population. For example, over the last year, Toronto population has increased by only 0.9 % but over 75,000 new units were built to accommodate such an increase. Intensification Target of 40% In achieving an intensification target of 40%, the GTA became the largest condo market in North America. Approximately 14,000 units are being built per year. Even New York market is dwarfed by the GTA Market. Mr. Lowes remarked that there is strong growth occurring in the GTA outside of Toronto. Approximately 3,800 units are being built per year, on average. However, the growth is only noticeable in limited areas of the GTA. Mr. Lowes noted that analysis of the market indicators demonstrates that achieving 40% growth is possible, but there are challenges:
In answering the question of whether Boomers will be different settlers, Mr. Lowes noted that the concern is whether it is possible to make high density housing suitable for Boomers. He continued that “If we can make high density condo housing attractive for Boomers and Empty Nesters, we can vacate more family housing for the full-size families.”
Ira T. Kagan is the founding partner in the Toronto law firm KAGAN SHASTRI, Barristers and Solicitors. Called to the Bar in 1990, his practice has focused on municipal law since then. He appears often before the Ontario Municipal Board and all levels of courts in Ontario representing both private and public sector clients and has been involved in many of the leading land use planning cases in the GTA. His practice is varied and includes land and planning applications and appeals, Development Charge appeals, Building Code Act appeals, expropriation and realty tax assessment, and all manners of judicial interpretation and determination of municipal actions and by-laws. He has presented at continuing legal education and industry conferences on a variety of municipal law and land use planning topics. He is the author of “But I do not want to be legal”, a leading article on legal non-conforming uses, which has been referred to in judicial decisions at all levels of court in Canada. Mr. Kagan started his presentation by stating that he agrees with the views voiced by Bruce Singbush that the present Provincial government has put through an impressive amount of planning reform during their mandate. He stated that it is also clear that the general thrust of much of the reform has been to curb urban sprawl, concentrate new growth and protect large areas of the GTA from urban development. The province has set the rules and has left it to the normal planning process, at the local and regional level, to be implemented. Not surprisingly when a high level policy is set, it is difficult to work through all the “on the ground” permutations and scenarios to see if the policy framework works. The goals and visions of the policy might be worthwhile and even laudable, but as we all know, the devil lies in the details and if the vision cannot be implemented on the ground, then the vision needs to be fixed. There is also the added complication of the interaction of the various land use planning instruments and policies which are applicable to the proposed development. We have the:
Mr. Kagan proceeded to say that it is parkland that he wants to address tonight because it is an excellent way of illustrating the complexity of the interrelationships between these provincial visions. It also helps illustrate some of the problems. Mr. Kagan stated that the examples he wants to use are the urban expansions of North Leslie (In Richmond Hill) and North Oakville. Mr. Kagan is involved in both of these cases as are Mr. Lowes, Ms. Foran and Mr. Patterson. In both cases (Richmond Hill and Oakville), the public sector supported the urban expansion but, understandably, placed limits on which parts of the overall area the development could be built upon. Some of the lands are either environmentally sensitive and proposed for inclusion in a Natural Heritage System (“NHS”) or are in the provincial Greenbelt (in the case of Richmond Hill). Some of the lands in the Greenbelt are active farmland and are thus protected from urban boundary expansions not because of environmental reasons per se, but because of the policy reasons. Mr. Kagan continued that the public sector would like the NHS lands (and even the Greenbelt lands) in public ownership but they can only negotiate with the landowner to get them; they cannot force the taking. He then reviewed several questions that arise with respect to the parkland:
These questions are important for several reasons. First of all, they have a significant effect on land use efficiency. Mr. Kagan emphasized that if we are going to protect larger and larger areas of Greenfield from urban development yet still accommodate growth, or if we are going to constrain growth, then one can argue that we need to make more efficient use of land that can be developed. He explained that this efficiency does not simply mean higher densities in the form of condos because not everyone wants to live in a condo. It means smarter use of land and better application of land use rules. In the Richmond Hill case, for example, the Town took the position that it would calculate the parkland contribution on all of the lands, even the NHS and Greenbelt lands which would not be developed, unless those lands are dedicated free of charge to the Town. Mr. Kagan continued that the Town takes this position despite acknowledging that these lands do not themselves generate a need for parkland since people do not live or work on them. As a result, if the Town takes 5% or 2% of actual parkland land this parkland will not be in the Greenbelt or NHS but will be in the portion left over for development. Such position, stated Mr. Kagan, leads to a less efficient use of the developable land. If, on the other hand, the Town takes cash-in-lieu instead, this will increase the cost of the resulting houses or employment land and that is its own inefficiency. Mr. Kagan pointed out that in the North Leslie and North Oakville cases the percentage of NHS/Greenbelt is very significant (more than 33%), so we are talking about large amounts of parkland or large cash-in-lieu payments. Mr. Kagan concluded by saying that given that the NHS/Greenbelt lands cannot, by definition, house or employ people that give rise to the need for parkland, the calculation of the parkland construction on these lands is problematic. He then referred to another issue related to the parkland. It is the issue of location of parkland. The question is, can some or all of the required parkland be placed in the non-features portion of the Greenbelt? Mr. Kagan stated that he is not suggesting filling a wetland or leveling a woodlot to make a park. The Greenbelt (and non-Greenbelt NHS’s) contain very substantial tableland areas that act as separators (buffers) from the houses and employment buildings. These are often active farmlands. To illustrate his statement, Mr. Kagan provided an example from the OMB hearing in the North Leslie case. A witness from the Ministry of Municipal Affairs and Housing (Mr. David Sit) who was called under summons, testified that the Greenbelt Plan would not permit parks (active or passive) in the Greenbelt if this parkland was to serve the residents of North Leslie. The effect of this position, which was accepted by the OMB, is to require that the parkland be accommodated on the developable lands thus leaving less land for houses and employment. Again, the issue in this case is efficiency. Mr. Kagan continued that there is no question that the Greenbelt Plan allows parks (active and passive) in the Protected Countryside. He then proceeded with the quote from sections 3.2.4, and 3.2.5 of the Greenbelt Plan in order to illustrate these permissions. Mr. Kagan emphasized that the problem comes from the prohibition in the Greenbelt Plan against urban expansions encroaching onto the Protected Countryside. See for example Town/Village Policies section 3.4.2 of the Greenbelt Plan. So, he continued, the argument goes that if the new urban development produces houses and employment, which in turn produces the need for parkland, then this parkland should be accommodated in the developable area and not in the Greenbelt, otherwise the urban development (read parkland) would intrude into the Greenbelt. Mr. Kagan proceeded to say that, on the other hand, the Greenbelt Plan clearly allows this Protected Countryside to be built and used as a park, even an active park, with playing fields and parking lots and lighting. From this position, it follows that provided the park is designed for the residents of the municipality in general or even the Region (or say residents of Toronto who want a weekend outing in the country); in this case, it is all permitted by the Greenbelt Plan. However, if the park is needed for the parkland demands of the new urban residents/employees next door, then it appears to be prohibited. Mr. Kagan pointed out that since in both cases the parkland is needed for urban residents and employees, why would it matter where these urban residents live/work? He stated that again, the problem inefficiency. In conclusion, Mr. Kagan stated that if we are going to be serious about making more efficient use of land and protecting what needs to be protected, then we need to make sure that policies make sense on the ground and that the different policies and planning rules work together. * Soussanna S. Karas, Legal Counsel, Travel Industry Council of Ontario, (905) 624-6241, ext. 226. |
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Land Development and Aboriginal Consultation. What is the Duty to Consult? Do Municipalities Owe a Duty to Consult? What do Land Developers Need to Know? (April 24, 2007)
Panelists: Paul Murray, Counsel, Ontario Secretariat for Aboriginal Affairs; David Larmour, Counsel, Business Section, Department of Justice, Canada; John Rowinski, Olthuis, Kleer, Townshend, Barristers and Solicitors, Chair, OBA Aboriginal Law Section
Chairs: John Alati, Davies Howe Partners; Diana Dimmer, Director of Litigation, City of Toronto
Soussanna S. Karas*
Welcome and Announcements: John Alati started the official part of the program by making the following remarks:
Introducing Speakers: Paul Murray, Counsel, Legal Branch, Ontario Secretariat for Aboriginal Affairs Paul obtained his LL.B. from the University of Toronto Law School in 1985. He received his LL.M. from London School of Economics in 1989, specializing in Human Rights and Legal Theory. He was called to the Bar in 1987. Paul articled and practiced at Borden, Ladner, Gervais from 1985 to 1988. He also taught Jurisprudence at the University of Essex in Colchester, UK. From 1990 to 1994, Paul acted as Counsel with the Legislative Assembly of Ontario. He also worked with the Municipal Affairs Legal Branch on planning, development and municipal restructuring issues. From 1996 to 1997, he served as General Counsel to the OMB. Since 1997, Paul has practiced in the area of aboriginal law with the Ontario Secretariat for Aboriginal Affairs. His work focuses primarily on land claim negotiations and Aboriginal policy issues, including Aboriginal consultation and the development of Ontario’s Draft Consultation Guidelines. David Larmour, Counsel, Business Law Section, Department of Justice, Canada David graduated with B.A. (Honours) in Political Science and received his LL.B from the University of Western Ontario. He was called to the Bar in 1998. David has been working as an advisory lawyer with the Business Law Section (formerly the Commercial and Real Property Section) of the Department of Justice, from 2002. His practice areas include Crown real estate and the provision of advice in connection with the law of consultation with First Nations in the context of federal real property and other transactions. He advises a variety of federal Crown clients including Transport Canada, Fisheries and Oceans, Public Works and Government Services, Department of National Defence, and the Canadian Center for Occupational Health and Safety. Prior to assuming his current position with the Department of Justice, David practiced in a variety of venues including a small commercial law firm, sole practice and on contracts with ING Bank of Canada and the City of Hamilton.
John Rowinski, Olthuis, Kleer, Townshend, Barristers and Solicitors John is a lawyer who recently jointed the Toronto-based Aboriginal law boutique Olthuis, Kleer, Townshend (OKT). John, who is of Mohawk ancestry, obtained both his Bachelor of Arts (Honours) and LL.B. from Queen’s University. Prior to joining OKT, he worked as an associate in a mid-sized Toronto law firm in that firm’s litigation department where his practice included a particular emphasis on Aboriginal law, professional liability and a broad range of commercial litigation. John appears regularly before courts and tribunals on motions, trials and appeals, and represents clients in various forums for alternative dispute resolution. John has considerable experience in addressing the issues facing Aboriginal clients in Canada’s legal system, including limitation period issues, litigation cost issues (including advance cost awards), Aboriginal forestry issues, damage assessment principles and consultation obligations. John sits on the Executive of the Aboriginal Law Section of the Ontario Bar Association, and is serving as the Chairperson of that Section for the 2006-07 term. He has also served on the Ontario Bar Association’s Task Force on Professional Development in the legal profession and is a member of the Advocates’ Society. John was called to the Ontario Bar in February 2002.
1. PAUL MURRAY – Counsel, Ontario Secretariat for Aboriginal Affairs
The Duty to Consult and Land Development Mr. Murray started by stating that he framed his presentation around a few questions:
Aboriginal rights (For more details see decisions of the Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507 and R. v. Powley, [2003] 2 S.C.R. 207 ) As a background, Mr. Murray explained that for an activity to be an Aboriginal right, it must be an element of a practice, custom or tradition which is integral to the distinctive culture of the Aboriginal community claiming the right e.g. hunting and fishing. For First Nations and Inuit communities, the activity must have existed at the time of first contact with Europeans, and for Metis it must have existed prior to the time of effective European control. Aboriginal Title (For more details see decisions in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Aboriginal Title, noted Mr. Murray, exists where an Aboriginal community occupied land exclusively prior to the Crown asserting sovereignty over the land. It is a right to the exclusive use and occupation of the land itself. Aboriginal Title is a particular type of the Aboriginal right. He continued that in Ontario, many Aboriginal rights have been modified or surrendered through treaties.
Aboriginal Treaty Rights (see R. v. Badger, [1996] 1 S.C.R. 771, Marshall and Mikisew Cree First Nation v. Canada (Minister The Aboriginal Treaty Rights are the specific rights embodied in the treaties Aboriginal people entered into with Crown governments. Mr. Murray proceeded to list the matters that treaty rights often relate to:
He also stated that the Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation. He quoted from the decision of the Supreme Court of Canada in R. v. Sioui, [1990] 1 S.C.R. 1025:
. . . A treaty is a solemn agreement between the Crown and the Indians, an agreement the nature Constitutional Protection Mr. Murray noted that the aboriginal legal rights have had protection prior to 1982. They were protected by common law (see for example, Van Der Peet). He stated that there seems to be a misconception that the Aboriginal Treaty rights were created by the Constitution. Such statement is not correct, as the rights existed prior to the Constitution being enacted and were protected by common law. Constitution Act, 1982 S. 35 (1) of the Constitution Act states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. Section 35(2) states that in this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada. S. 52(1) provides that “the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” Mr. Murray introduced decision of R. v. Sparrow, [1990] 1 S.C.R. 1075 as a decision which spoke at length about the nature of Constitutional Protection. The court in Sparrow held that if a right exists and a government activity would infringe the right, the government must justify its actions. It also held that the protection includes interfering as little as possible with the rights of the Aboriginal Peoples. The concept of consultation was first introduced in this decision. The constitutional protection therefore, was viewed as including an undertaking for an appropriate level of consultation. Mr. Murray further stated that the court acknowledged that the rights existed prior to 1982, what was offered, was simply a protection from the Constitution. He continued that the municipalities should be aware of the effect of s. 52 of the Constitution with respect to the duty to consult, which should be taken into consideration in their activities. In answering the question of why Aboriginal and Treaty Rights are protected, Mr. Murray cited a passage from the R. v Van der Peet decision where the Supreme Court of Canada held the following:
“In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. In dealing with the question of what is the objective of the protection, Mr. Murray cited the Supreme Court of Canada decision in Mikisew Cree First Nation:
“The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation Mr. Murray emphasized that the Supreme Court has identified consultation as key to achieving this objective by saying:
“. . . consultation is key to achievement of the overall objective of the modern law of treaty Role of Consultation Mr. Murray noted that the duty to consult arises where a proposed government activity, approval, regulation, etc. could impact an Aboriginal or Treaty Right. The courts, therefore, needed to develop a mechanism and principles to address these potentially competing interests. The Court in Sparrow introduced the need to consult as part of the justification of any infringement of an Aboriginal or Treaty Right. The issue was an existing right to fish. In 1997, in Delgamuukw decision which dealt with a claim to Aboriginal title, the court further elaborated on the nature of the duty to consult. It included the following considerations:
Mr. Murray noted that 2004-2005 cases such as Haida Nation v. British Columbia (Minister of He stated that Haida and Taku River dealt with consultation related to asserted, but unproven Aboriginal title and rights; Mikisew decision, on the other hand, addressed the duty to consult in the context of treaty rights to hunt and fish and the ability of the Crown to take up lands. Mr. Murray then proceeded to clarify the meaning of the asserted Aboriginal and treaty rights. He stated that Asserted rights are claims that have not been proven in court or included expressly in a treaty. The issue of the Asserted rights can be raised in different ways – in litigation, in a federal or provincial land claim process, in response to a proposed activity. The court in both decisions stated that the Crown does have a duty to consult even if the rights are not proven Aboriginal title or Aboriginal rights. Some examples of asserted aboriginal rights include claims:
Some examples of asserted treaty rights include:
Mr. Murray emphasized that the duty to consult in relation to asserted rights has its source in the honour of the Crown and the constitutional protection accorded Aboriginal and Treaty Rights.
“The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests Duty to Consult Mr. Murray continued by stating that the duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. There is an expectation that governments will reasonably inform themselves, and will be coordinated with respect to knowledge within government. He also stressed that the key to successful consultation is not the quantity but the quality of the consultation. He then proceeded to describe the way the consultation can be undertaken. The consultation should start with providing and obtaining information on the proposed project and its impacts, and on the potentially affected rights. It should then proceed to consider concerns and attempt to address them. Most importantly, stated Mr. Murray, the consultation requires separate, targeted efforts to consult with an affected Aboriginal community, rather than being simply a part of a broader public consultation process. In addressing the issue of accommodation, Mr. Murray stated the following:
He also dealt with the issue of responsibilities of the third parties and Aboriginal communities involved in the process. With respect to the role of Aboriginal communities, Mr. Murray sated the following. They need to outline their claims with clarity and make their concerns known. In addition, for both parties, it is important to respond to attempts to meet the concerns and suggestions and to attempt to reach some mutually satisfactory solution. Mr. Murray also noted that the Crown may delegate procedural aspects of consultation to industry proponents, however, the ultimate legal responsibility for consultation and accommodation rests with the Crown. In addition, the third parties can be liable if they act negligently, breach contracts or deal dishonestly with Aboriginal people.
Relevance to Municipalities and Land Developers
In addressing the relevance of the consultation process to the Municipalities and Land Developers, Mr. Murray stated that early consultation issues in Ontario are primarily focused on assertions related to hunting and fishing rights and settlement of land claims in the north. As follows from Ontario (Minister of Municipal Affairs and Housing) v. Transcanada Pipelines Ltd., [2000] 3 C.N.L.R. 153 (Ont. C.A.), in some cases First Nations see municipal restructuring as complicating the practice of their rights or settlement of their claims. Mr. Murray further stated that assertions arise increasingly in aspects of the planning and development process:
He noted that case law is still evolving as it relates to the duty to consult and approvals/activities on private lands (see Hupacasath First Nation v. British Columbia (Minister of Forests) et al. [2005] B.C.J. No. 2653 (B.C.S.C.) and Paul First Nation v. Parkland (County) [2006] 3 C.N.L.R. 243 (Alta. C. A.) cases). There is a potential for courts to determine that municipalities have a duty to consult in some circumstances. In addition, in some cases, where the municipality has greater independence the courts may place more onus on municipality (see Musqueam Indian Band v Richmond (City) [2005] B.C.J. No. 1636). Mr. Murray also offered some practical advice for municipalities. He suggested that it is very important to develop knowledge of Aboriginal communities in the area (not restricted to municipal boundaries) those municipalities deal with and the treaties they engage in. It is also necessary to think ahead about need to consult early in the process. Planning ahead is also of importance. The counsel for municipality need to think about what activities municipality involved in that might have an impact on the Aboriginal community. Mr. Murray stated that municipalities should have liaison committees with First Nations groups in municipality and keep channels of communication open. He also suggested counsel to review the Province’s Draft Guidelines for Consultation found at http://www.aboriginalaffairs.osaa.gov.on.ca/english/news/draftconsultjune2006.pdf
Conclusion
In conclusion, Mr. Murray stated that the duty to consult has arisen as a key element in the overall achievement of the protection of Aboriginal and Treaty Rights. Its reach will continue to expand, affecting an increasingly broader range of activities and processes. However, the key to dealing effectively with these issues will often not come through use of the law and the courts. It can be achieved through building positive relationships and engaging with interested Aboriginal communities in a meaningful way. Such an approach will often be the most effective way for all parties to find solutions to move forward. 2. D. A. LARMOUR, Counsel, Business Law Section, Department of Justice. Consultation in the Context of the Disposal of Federal Real Property
Mr. Larmour started his presentation by stating that the topic he will be dealing with is the Consultation in the context of the Disposal of Federal Real Property. In answering the question when does the duty to consult arise, he proceeded to cite a decision of the Supreme Court of Canada in Taku River: “The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.” (Taku River Tlingit First Nation v. British Columbia (Project Mr. Larmour continued that knowledge on the part of the Crown of a credible, but nevertheless unproven claim to Aboriginal rights or title will be enough to require the Crown to investigate whether the action it proposes to take will impact upon an asserted Aboriginal right. The task in each case will therefore be to determine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult. The court in Mikisew stated the following with respect to the test applied to the duty to consult:
“Haida Nation and Taku River set a low threshold. The flexibility lies not in the trigger Mr. Larmour noted that the duty to consult and the duty to accommodate are separate but related duties. The former doesn’t necessarily give rise to the latter. There is uncertainty around what measures constitute appropriate accommodation in a given context. For example, it is unclear how the Crown can accommodate a First Nation on a land disposal if the primary issue is aboriginal title. What accommodation would suffice? What if public funds or lands are transferred to First Nations in satisfaction of the duty to accommodate in respect of asserted rights which, later, are not made out? What is the legal basis for payments by private industry? Challenges
Mr. Larmour continued by listing several challenges that the duty of consult raises:
The process of disposing of lands by the Federal Government Mr. Larmour described the process of disposing of lands and consultation process involved. First step in the process, he stated, is to gather as much information about the lands as possible. The duty to consult imposes massive knowledge management obligations on the government. For that purpose series of actions need to be undertaken:
Second step is to analyze the information received, to prepare the plan of actions and to brief the client with the result, specific claims, negotiations, etc. Mr. Larmour emphasized that the consultation process is organic, new information can come at any time during the process and it can change the outcome. In order to determine when the consultation process is at end, Mr. Larmour offered several suggestions. The consultation process is an evolving process. Whether it is at end depends on the information, outcome of the discussion, and what accommodation measures can be put in place. The process has to be meaningful in order to be completed. The last stage is when the client department makes a decision as to whether to complete the transaction. Practical Suggestions to Municipalities Mr. Larmour stated that whether municipalities are to be considered third parties or emanations of the Province with a duty to consult is unknown at this stage but the concept is bound to evolve. He suggested that in the course of advising public authorities administering land proximate to reserves, municipal lawyers should become aware of Aboriginal law concepts. He stated that it is important to get counsel on the file early in the disposition process, so he/she can do his or her own assessment as to Aboriginal rights and title. With respect to the Crown’s interest in the land, the municipality will receive that which the Crown has. Mr. Larmour stated that there is a risk that the transaction the municipality is involved in may fail if a First Nation challenges the decision of the Crown to convey in the face of asserted rights, and it is found that the Crown did not adequately consult. It is therefore important to assist the Crown by flowing information to it in respect of historical studies, usage by First Nations as well as attend consultation meetings and by help devising accommodation measures. It is also practical to liaise regularly with local First Nations. It is not just up to the Crown to be a good neighbour and often the relationship the municipality has with a First Nation may assist in the consultation process. Conclusion In closing, Mr. Larmour stressed that strategic approach needs to be taken in the process of consultation. Continuing dialogue about the future of the land use and development is paramount, even if the action is proposed to be taken in the next 10 years. This will help streamline the process and make negotiations more useful. In addition, allocations of public treasure should be made on a clear policy basis. Canada has responsibility to all Canadians – both Aboriginal and non-Aboriginal and is striving to reach the balance. 3. JOHN ROWINSKI, Olthuis, Kleer, Townshend, Barristers and Solicitors
Are Municipalities Affected by the Duty to Consult: Perspective of First Nations and Developers? Mr. Rowinski started his presentation by citing the decision in Mikisew which states that the honour of the Crown “…infuses every treaty and the performance of every treaty obligation”. As a result, there are both procedural and substantive elements to the duty of consultation; the extent of both is to be determined on a case-by-case basis (based on the nature of the potential infringement). He noted that arising from the honour of the Crown, the duty to consult is about the relationship between the Crown and affected indigenous groups, and how that relationship is respected, maintained or, in many/most cases, rehabilitated. The duty to reconcile is to close the gap between the promise and the present situation. Mr. Rowinski continued that the underlying goal of consultation is therefore the broader goal of reconciliation of the tarnished relationship between the Crown and First Nations in Canada (Mikisew). In Haida Nation, the Supreme Court of Canada made it clear that it is the Crown that owes a duty to consult, typically the federal Crown, but could extend to provinces as well where potential infringement of Aboriginal right or interest arises from provincial actions, actors, licences, permits or legislation. Mr. Rowinski noted that the Supreme Court of Canada also stated that the Crown could delegate certain procedural aspects of consultation to industry/developer. This duty therefore affects municipalities in one of two ways:
Mr. Rowinski reviewed potential pitfalls to the above noted approach. One of them is that many First Nations in Ontario will only negotiate with the federal Crown, on a nation-to-nation basis, the same basis upon which treaties were entered into. There is also an issue of competing conceptions, which needs to be taken into consideration. Aboriginal law conceives of land use and inhabitation differently than Canadian legal system. For example, Aboriginal treaty surrender is understood to mean a “sharing” of use (while respecting land itself), vs. Canadian conception of surrender as a ceding of rights of ownership. Mr. Rowinski stated that First Nations typically historically did not or would not cede all interest in land. Substance v Procedure in the Consultation Process In dealing with the issue as to what end of consultation is delegated, Mr. Rowinski stated that there are two forms of consultation: procedural and substantive. Strictly speaking, procedural consultation is limited (i.e. provision of studies, assessments, test results, drafting of proposals etc.). Courts held that the Crown can delegate the procedure to third parties, including the municipality. The question arises, then, how does one distinguish between the two? How separate is substantive consultation from procedural consultation? Can this be carried out without provincial/federal participation? What if delegates come to conclusions or tentative agreements that the Crown cannot live with? Control of Information
Mr. Rowinski continued that the biggest problem all levels of government are facing is control of information. The municipality can be engaged by First Nation before it is even aware of Aboriginal claim to land. There is no consistent protocol established in Ontario by which federal and provincial Crown keep municipalities apprised of all potential claims, even though it is those branches of government that have access to and control of this information. Mr. Rowinski stressed that all parties would be assisted by positive and proactive processes established by the federal Crown, which is typically the most comprehensive source of knowledge of Aboriginal claims. He continued that the hope for improved process comes from a mutual interest in clarity. Municipalities, developers, industry and First Nations are all best served by resolution of outstanding claims, so they are at least in this sense on the “same side”. Financial compensation for Aboriginal claims is most often owed by the Crown (for historical claims in most cases), if the First Nation is correct about the merits of its claim, so generally there is little reason for municipalities and First Nations not to work together toward reconciliation, and responsible and sustainable land use. Conclusion In closing, Mr. Rowinski stated that the process of the consultation is not about paying lip service or fulfilling legal obligation. It is not about compensation either, it is about First Nations being given a right to have a say in the use of their sacred land. The process is, therefore, not about the conflict or confrontation, it is about the dialogue. CLOSING
Diana Dimmer provided closing remarks, thanked everyone for attending and speakers for their presentation. * Soussanna S. Karas, Legal Counsel, Travel Industry Council of Ontario, (905) 624-6241, ext. 226. |