The Chippewas of Kettle &…

The Chippewas of Kettle & Stony Point First Nation (“KSP”) had previously submitted a comment on Ontario’s Discussion Paper: Regulation Commercial- Scale Geologic Carbon Storage Projects in Ontario. This discussion paper was part of the “measured and phased approach to enabling and regulating geologic carbon storage in Ontario” referenced in the ERO posting (019-9299) for the Geologic Carbon Storage Act. KSP advised Ontario in its previous comment that significant and appropriate consultation and accommodation of First Nations was required before moving forward with a regulatory framework. Ontario did not properly engage with KSP and instead has proceeded to propose a regulatory framework in a way that continues to trample on the rights of Indigenous peoples. (KSP’s original comment is included at the end of this current comment.) KSP is again requesting that Ontario properly engage and consult with KSP on the regulatory regime for geologic carbon storage, including the proposed Geological Carbon Storage Act (“Act”).
KSP has several concerns with the proposed Act and with the total failure to undertake consultation and accommodation with KSP with respect of this proposal. Part 2 of the proposed Act, the “Ownership of and Rights to Pore Space” is of particular concern to KSP. In addition to the Act, the process undertaken by Ontario in developing this regime is one that clearly involved strategic, higher-level decisions that had the potential to impact Aboriginal or treaty rights.
As Ontario is aware, KSP has aboriginal title and treaty rights throughout southwestern Ontario. KSP has embedded connections with its homelands and asserts a right to continuing its way of life on its homelands. Part 2 of the Act authorizes subsurface rights, known in the Act as pore spaces, to form part of the surface rights estate. It further authorizes the Lieutenant Governor in Council to make regulations which grant the Crown authority to take up subsurface rights (pore spaces) without consent. These authorizations are directly contrary to the rights of KSP as per its aboriginal title and aboriginal and treaty rights. By not engaging in proper consultation and accommodation with KSP, Ontario has breached its constitutional obligations, the honour of the Crown and its obligations with respect to advancing reconciliation.

Aboriginal Title
KSP has occupied its territory since time immemorial and asserts aboriginal title to its territory. As such, KSP has the right to the exclusive use and occupation of the land held pursuant to its aboriginal title. The Supreme Court of Canada has made clear that exclusive use and occupation of land are the rights that flow from aboriginal title. Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may themselves be Aboriginal rights. Aboriginal title is a right to the land itself. The SCC further notes that Aboriginal title is a beneficial interest in the land. This means that title holders have the right to the benefits associated with the land – to use it, enjoy it and profit from its economic development. This includes a right to stewardship of the lands.
Courts have also suggested that aboriginal title encompasses mineral rights and made clear that the content of aboriginal title is not restricted to only those practices, customs, and traditions which were integral to distinctive Aboriginal cultures.
It follows then that KSP, as holders of title, have the right to choose the uses to which the land is being put. This includes a decision-making authority for access and future uses of the land. Courts have said time and time again that “Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”
The Crown cannot solely authorize access to lands, for the purposes of research and evaluation activities as well as carbon storage activities, to which KSP holds Aboriginal title to. This is in clear defiance of the rights which KSP holds as title holders. KSP must be fully consulted and engaged and be a key decision maker in relation to these activities.
In addition to the rights that are included in Aboriginal title, it is important to note that aboriginal title is sui generis, it is a unique right. Part of the sui generis nature of aboriginal title is the fact that its characteristics must be understood with reference to the Indigenous perspective. The Indigenous perspective without question, is that Indigenous peoples are stewards of the land and that they have a duty and right to determine how the land is used.
With respect to Part 2 of the Act, which states that subsurface rights (pore spaces) form part of the surface rights estate, this is a clear infringement of KSP’s aboriginal title. Aboriginal title is a right that trumps Crown property rights and interests to the land. Courts have made clear that the Crown does not retain a beneficial interest in aboriginal title lands. Where there exist private property holders, these rights holders would have surface rights but not subsurface rights. Private property holder rights, as with Crown property rights, do not supersede aboriginal title. Instead, private property rights are a permitted infringement of the aboriginal title right and the subsurface rights of the land are not required to effect the purpose of the private property right. To include the subsurface rights would be more than a minimal impairment of aboriginal title and would not be justified.

Aboriginal and treaty rights
In addition to holding aboriginal title, KSP is a treaty signatory and has aboriginal and treaty rights. KSP’s territory is made up of both treaty lands and aboriginal title lands. For those lands within KSP territory that are part of treaty, the only cession or surrender of land rights would have been for a minimal interest in the land rights. A minimal interest would not have included the subsurface (pore space) rights and the connected authority to determine what can be done with those subsurface rights. KSP has not been engaged on this regulatory scheme in a meaningful way and the scheme has the potential to set the stage for decisions that will adversely impact KSP’s rights and interests.

Honour of the Crown
It is a clear principle of law that the honour of the Crown is always at stake in its dealings with Aboriginal peoples. Courts have said that the honour of the Crown must be interpreted in a way that assumes the Crown will honour its promises without any sharp dealing and that the Crown intended to fulfill its promises. It further assumes the integrity and honour of the Crown, particularly when searching for common interest of the parties. This means that the Crown must act with honour and integrity as it relates to KSP’s aboriginal title rights, aboriginal and treaty rights. The honour of the Crown also applies to the duty to consult Indigenous people whose rights or interests may be adversely affected by a potential course of action.

Previous Chippewas of Kettle & Stony Point First Nation Comment to ERO Number 019-8767 - Discussion Paper: Regulating Commercial-Scale Geologic Carbon Storage Projects in Ontario

The Chippewas of Kettle & Stony Point First Nation (“KSP”) want to ensure that the proposal for a regulatory framework for commercial-scale geologic carbon storage has significant consultation with and accommodation of First Nation concerns, especially those of KSP.
KSP has embedded and deep connections with its homelands and have been using them to survive and thrive for many years. KSP asserts a right to continuing its way of life on its homeland territory. This right includes the right to steward the land to ensure such way of life may survive. KSP territory has been so significantly taken up, developed, industrialized and damaged already, without KSP consent, that cumulative effects have clearly surpassed the point where survival of KSP’s way of life can be assured should more development occur. Any further development or land use in our territory thus requires our free, prior and informed consent.
At this stage, the proposal is quite broad and undefined. Nonetheless, KSP and other First Nation’s must be involved and consulted to the highest degree as it relates to this proposal. Aspects of the proposals such as the notification and engagement process and the process for obtaining pore and surface rights are of critical importance. KSP should have a priority say in developing these components of the regime. As of now, the notification, engagement and consultation process are flawed for projects generally impacting First Nation’s rights and interests. In addition, the discussion around pore and surface rights directly impacts Indigenous communities’ interests related to land claim settlements, additions to reserve negotiations and other land transfer related practices.
Given the proposal that many of these sites for geologic carbon storage could occur under the waters of Lake Erie and Lake Huron, Ontario MUST ensure that proper studies are undertaken to consider the environmental implications of the proposal. These required studies MUST include studies led by First Nation’s and the inclusion of Indigenous traditional knowledge. These studies should be funded by Ontario, as it holds the ultimate constitutional duty to First Nations. The process for development of a regulatory framework should involve a significant number of information sessions and discussions by Ontario, with First Nation’s such as KSP, to clearly outline what is being proposed as well as what the benefits and risks are, so that KSP can raise its concerns and ideas. Posting a discussion paper is not enough in this regard.
As noted, KSP has a deep connection with its homelands. This includes the water, which is at the center of everything KSP and all humans do. The water must be protected and any potential risk to that water must be studied and critiqued in all possible ways, with significant involvement of KSP.
The process for site selection requires a significant degree of participation of KSP and First Nation’s communities. Where proposed site selection is to occur within the traditional territory of a First Nation such as KSP, the free, prior and informed consent of the Nation should be a requirement. First Nation’s traditional homelands in southwestern Ontario have been so significantly taken up and developed and any additional use requires the consent of KSP.