Chippewas of the Thames…

Chippewas of the Thames First Nation requests that the following comments be addressed and incorporated into Bill 132, the proposed Better for People, Smarter for Business Act, 2019.

SCHEDULE 9 - Proposed Changes to the Environmental Protection Act

Increased Contamination

Chippewas of the Thames First Nation is concerned that the modification of subsection 14(1) of the Environmental Protection Act to increase the threshold for the application of the prohibition against discharging contaminants into the environment from “may cause” to “is likely to cause” an adverse effect will result in increased environmental contamination in our traditional territory. The potential impacts of environmental contaminants on the rights and interests of land users from Chippewas of the Thames First Nation are unique. Our community members rely on environmental resources for food, social and ceremonial purposes and confidence in the safety and quality of those resources is important to the exercise of our aboriginal and treaty rights.

COMMENT 1 - Chippewas of the Thames First Nation requests that section 4(1) of Schedule 9 of Bill 132 be withdrawn and the existing threshold of “may cause” be maintained.

Enforcement

Section 16 of Schedule 9 introduces a new approach to enforcement that would utilize “administrative penalties” to promote compliance. Included in the proposed changes is a limitation on the total amount of the administrative penalty which may be applied. It stipulates that administrative penalties shall not exceed $200,000 for each contravention. The repeal of section 182.1 of the Environmental Protection Act will also remove the daily application of fines potentially reducing overall fines for polluters responsible for ongoing contraventions. Chippewas of the Thames First Nation is concerned that these changes may diminish the motivation for polluters to remedy on-going contraventions and may fail to effectively deter major contaminant discharges.

COMMENT 2 - Chippewas of the Thames First Nation requests that section 16 of Schedule 9 of Bill 132 be modified to improve compliance through the application of increasing penalties for ongoing contraventions and higher penalties overall to deter major polluters.

Schedule 16 – Proposed changes to the Fish and Wildlife Conservation Act

Section 39 of Schedule 16 proposes new powers for the Minister to address concerns relating to the management of wildlife disease. Chippewas of the Thames First Nation supports initiatives to respond to infectious diseases in wildlife populations. However, we have serious concerns relating to the absence of any content in the proposed legislative changes relating to the protection of aboriginal and treaty rights or consultation and accommodation of First Nations. The proposed changes include far reaching powers for the Minister to prohibit or restrict the hunting, trapping or possession of wildlife or to prohibit or restrict the purchase, sale or disposition of wildlife. The Minister would also be empowered to authorize individuals to undertake activities to assist in controlling or eradicating wildlife disease. These actions go to the heart of the relationship between Chippewas of the Thames First Nation and our traditional territory. Our stewardship responsibilities include obligations to consider and care for wildlife species. It is imperative that Chippewas of the Thames First Nation be engaged as a full partner in actions taken to manage wildlife populations within our traditional territory. Furthermore, in order for the proposed measures to be effective, it will be necessary for the Minister to collaborate with First Nations to ensure coordination of approaches in relation to lands and resources falling within First Nations jurisdiction.

COMMENT 3 - Chippewas of the Thames First Nation requests that the proposed changes to the Fish and Wildlife Conservation Act included in Schedule 16 be amended to provide for mandatory consultation with First Nations regarding the establishment of wildlife disease control and surveillance zones or measures to control or eradicate a wildlife disease.

Schedule 16 – Aggregate Resources Act

Section 3.1 of the Aggregate Resources Act includes a requirement that the Minister consider whether adequate consultation with Aboriginal communities has been carried out before exercising powers relating to licences or permits that have the potential to adversely affect established or credibly asserted aboriginal or treaty rights. There are a substantial number of pits and quarries located within the traditional territory of Chippewas of the Thames First Nation. Despite the requirement that the Minister consider whether adequate consultation with First Nations communities has been carried out, most of the aggregate development within the traditional territory of Chippewas of the Thames First Nation has proceeded without appropriate consultation or accommodation. Chippewas of the Thames First Nation recommends that the Aggregate Resources Act be amended to require assessment of the impact of proposed developments on aboriginal and treaty rights and mandatory consideration of Indigenous knowledge.

COMMENT 4 - Chippewas of the Thames First Nation requests that Schedule 16 be amended to include changes to the Aggregate Resources Act that would require mandatory consideration of Indigenous knowledge and assessment of potential impacts on aboriginal and treaty rights.
General Proposals

Protection of Aboriginal and Treaty Rights

Section 2 of the Mining Act states that it should be implemented in a “manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult…” Chippewas of the Thames First Nation encourages the Government of Ontario to consider adopting similar provisions in other legislative and regulatory instruments to promote the effective protection of aboriginal and treaty rights. Recognition and affirmation of aboriginal and treaty rights is the foundation of reconciliation. Inclusion of similar language in other Ontario legislation that may have impacts on aboriginal and treaty rights would be a powerful statement by the Government of Ontario of its commitment to work in partnership with Indigenous Peoples.

COMMENT 5 - Chippewas of the Thames First Nation encourages the Government of Ontario to amend the proposed Better for People, Smarter for Business Act, 2019 to advance reconciliation by including purpose sections similar to section 2 of the Mining Act in legislative and regulatory instruments that may have impacts on aboriginal and treaty rights.

Non-Derogation

Chippewas of the Thames First Nation supports the inclusion of non-derogation clauses in all legislation that may have a potential impact on aboriginal and treaty rights. Non-derogation clauses serve the important purpose of expressing to all the clear intention of the legislature that legislation should be interpreted and implemented in a manner consistent with section 35 of the Constitution Act, 1982. Section 6 of the Crown Forest Sustainability Act includes a non-derogation clause and may serve as a model for other Ontario legislation.

COMMENT 6 - Chippewas of the Thames First Nation encourages the Government of Ontario to amend the Better for People, Smarter for Business Act, 2019 to include non-derogation clauses for all legislation that may have impacts on aboriginal and treaty rights.

Chippewas of the Thames First Nation reserves the right to comment further on other matters addressed within the proposed Better for People, Smarter for Business Act, 2019. We request that any changes to the proposed legislation be forwarded to our office for comment prior to proceeding to the third reading of Bill 132.