April 12, 2019 Mr. Eric…

April 12, 2019

Mr. Eric Everett
Ministry of Natural Resources and Forestry
Far North Branch (Thunder Bay)
1st Floor, 421 James Street South
Thunder Bay ON P7E 2V6
farnorthfeedback@ontario.ca

Re: Proposal in support of the province’s review of the Far North Act (ERO No. 013-4734)

Dear Mr. Everett,

Thank you for the opportunity to provide comments on the Ontario Ministry of Natural Resources and Forestry’s Proposal in support of the province’s review of the Far North Act (ERO No. 013-4734) to repeal the Far North Act; retain completed land use plans through amendments to the Public Lands Act; and enable completion of plans at an advanced planning stage for a time-limited period.

We are submitting this feedback in our capacities as Wildlife Conservation Society (WCS) Canada scientists conducting research on species and ecosystems to inform conservation decisions. WCS Canada is a national non-government organization that has been engaged in Ontario since 2004, with research and conservation priorities in Ontario largely focused on the far north. We are some of the few scientists with continuous presence in the region. We lead ongoing field-based research programs that are currently focused on wolverine and freshwater fish; we support and collaborate with First Nations on community-based monitoring projects; and with academic and government researchers doing ecological studies in the region.

WCS Canada has a long-term and consistent engagement with the government on relevant policy processes in the far north in Ontario, including endangered species, land use planning, and environmental assessment (see Appendix). Dr. Justina Ray was a member of the Far North Science Advisory Panel, the Ontario Wolverine Recovery Team, the Ontario Caribou Science Advisory Panel, and the Committee on the Status of Species at Risk in Ontario (COSSARO). Dr. Cheryl Chetkiewicz has authored and co-authored multiple reports on regional environmental assessment and proactive planning for development in the far north in Ontario, including Getting it Right in Ontario’s Far North. Dr. Constance O’Connor is a freshwater scientist and currently leads the WCS Canada program in the far north in Ontario.

Based on our experience working in the far north in Ontario over the past 15 years, we stress the following:

1) The Far North Act has never restricted development in the Ring of Fire; and its repeal will not speed the development of mining projects.
2) With or without the Far North Act, the Ontario government is obliged to address Indigenous jurisdiction when introducing development in the far north.
3) The Public Lands Act is inadequate for accommodating planning for conservation and development in the far north, particularly dedicated protected areas that have been designated through community-based land use planning under the Far North Act.
4) Reliance on piecemeal project-level impact assessments will fail to address social, environmental, and economic risks; and will fail responsible stewardship of the far north – a globally-significant region with a high degree of ecological integrity, world-class carbon stores, and providing ecosystem services far beyond its boundaries.
5) If the province doesn’t learn from the 10 years of implementation of the Far North Act, it will repeat the same mistakes and fail to address fundamental issues related to social and environmental stewardship and justice.
6) The time constraint for communities to complete their community-based land use plans is too short, and the cancellation of land use planning processes at beginning stages for many communities is arbitrary, and unfair to those who have engaged in good faith with Ontario to date.

We discuss each of these issues in more detail below, in support of the following recommendations:

1) Commit to a comprehensive and public review of the successes and failures of the Far North Act. After considering the lessons learned from this review, work directly with First Nations to develop a nation-to-nation, government-to-government planning process that: a) Recognizes First Nations jurisdiction; b) Can adequately deal with the cumulative effects of multiple region-opening developments at the regional and local level, while safeguarding biodiversity, carbon stores and other ecosystem services; and c) Commits to providing communities with financial support for planning and monitoring.
2) Review the Matawa Regional Framework Agreement process, and create a renewed regional approach that addresses jurisdiction and enables participation by all affected First Nations in the development and conservation of the far north in Ontario.
3) If the Far North Act is repealed, First Nations and Ontario must come together to co-develop a decision-making framework that addresses First Nations jurisdiction and Inherent Aboriginal and Treaty Rights in the far north. If the Public Lands Act is reformed, it will need to be in careful consideration of the unique needs and conditions of planning in the far north specifically, along with Aboriginal and Treaty Rights.
4) Remove the time constraint to allow interested communities to continue their community-based land use plans and commit support and resources for them to do so.
5) Ensure that dedicated protected areas that have been designated under the Far North Act through community land-use planning retain joint jurisdiction for management (e.g., co-management) by Ontario and interested First Nations. This would include resources for the management of such areas, including monitoring.

1. The Far North Act has never restricted development in the Ring of Fire; and its repeal will not speed the development of mining projects.

The stated government motivation behind the current proposal to repeal the Far North Act (Act) is, “with a view to reducing red tape and restrictions on important economic development projects in the Far North, including the Ring of Fire, all-season roads and electrical transmission projects for communities.”

However, the Act itself was never the barrier to development in the Ring Fire. For example, section 12.2 of the Act states that activities such as opening a mine, commercial timber harvesting, oil and gas exploration/production, constructing or expanding electrical infrastructure, and all-weather transportation infrastructure, may be approved in the absence of an approved community-based land use plan by order of the Minister. Moreover, Cabinet can issue an order authorizing any of these developments, if it is in “the social and economic interests of Ontario.” In October 2018, proponents for the Wataynikaneyap transmission line project requested an exemption under the Act, given that there are no approved community-based land use plans along the proposed route. In short, the lack of completed and approved community-based land use plans never restricted development in the Ring of Fire, or beyond. If development in the Ring of Fire was economical, environmentally, and socially feasible, then the necessary infrastructure development and mining activities could take place under the Far North Act using an exemption process similar to the Wataynikaneyap transmission line project.

The real obstacles to the lack of progress in opening the Ring of Fire for development, all of which will remain even after the Act is repealed, are: 1) low commodity prices; 2) the need for significant government subsidies to build access; and 3) an inequitable process for planning with First Nations.

Despite the Ring of Fire being touted as “the next oil sands”, global commodity prices crashed in 2014, and have yet to recover. Noront Resources acquired the mineral claims in the Ring of Fire from Cliffs Natural Resources for $20 million – just four percent of what Cliffs had initially invested in developing these properties. Today, there is still only one proposal for a multi-metal mine on paper – just as there was when the Far North Act was enacted in 2011. Estimates for the mineral deposits – primarily chromite, nickel and copper – remain highly speculative and based on “inferred” mineral resources.

The ability to develop the Ring of Fire deposits will, of course, depend on significant financial and long-term investments in transportation and energy infrastructure – estimated to be $1.74 billion – to bring heavy concentrate to market across hundreds of kilometres of lakes, wetlands, and permafrost. Funding for this infrastructure was promised in 2014 by the previous government. Today, there are two road proposals emerging in a piecemeal fashion. One is an all-season community access road to Marten Falls First Nation, from the north end of the Painter Lake road, north of Nakina. The second is a Webequie Supply Road from Webequie First Nation to the Ring of Fire mining area. Each proposed road is undergoing a separate environmental assessment (EA) process with Ontario, and significant gaps remain in considering how community use will co-occur with industrial use of these roads for the purpose of getting nickel ore to the provincial highway further south.

The social impact of this piecemeal planning approach is illustrated by the fact that at least two other First Nations in the Ring of Fire region – Neskantaga and Eabametoong – have stated clearly that they don’t accept the current environmental assessments for these roads. The strategy of reaching agreement with “mining-ready” communities, while leaving the others isolated, will lead to further conflicts and possible direct action, as has occurred in other mineral exploration and mining operations in northern Ontario. We explore this further below.

2. With or without the Far North Act, the Ontario government is obliged to address Indigenous jurisdiction when introducing development in the far north.

At the end of the day, if the government wants to encourage new development in the far north, it must engage in dialogue with First Nations. Ideally, this would start with co-developing a planning and decision-making framework for land use in the far north, rather than seeking to amend existing legislation (Public Lands Act) that was created for different purposes (see below). First Nations have Inherent Aboriginal and Treaty Rights that are protected under Constitutional Law, rulings on case law, and Indigenous Law. Social, cultural, governance, and law-making are critical to the conversation with the government about planning in the far north and the impact that any government’s project, policy, program, or plan has on First Nations. In addition, many of Ontario’s laws, policies, and planning processes that affect First Nations in Ontario are inconsistent with international standards in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Truth and Reconciliation Calls to Action. To date, jurisdiction has not been addressed adequately in any legislated process in the far north that we are aware of, including the development and implementation of the Far North Act.

The Far North Act was originally created as part of the five-year “Open Ontario Plan” to strengthen the economy. The emphasis from the government at that time was on the importance of this legislation for future mineral development, particularly in the Ring of Fire, where a staking rush during 2007 and 2010 had raised significant concerns from First Nations.

In response, the Act provided space and funding to develop a joint land use planning process between First Nations and the Ontario government. Ontario’s approach was based on the Northern Boreal Initiative (NBI) policy framework, created in 2001 in response to communities interested in development, by enabling the development of community-based land use plans. Pikangikum First Nation was the first community to complete a land use plan in 2006.

The Act however, emerged from outcomes of a number of planning initiatives between First Nations and Ontario that provide important context for the trajectory of First Nations engagement with Ontario in the far north. Briefly, these include the West Patricia Land Use Plan (1982), Ontario‘s Lands for Life (1997–1999), and the Northern Boreal Initiative (NBI; 2001). None of these planning initiatives addressed jurisdiction. In addition, the NBI was limited in scope as it focused primarily on commercial forestry activities, and did not address other important planning matters such as mining, utility corridors and recreational uses of the land.

In 2005, as a result of conflicts between Kitchenuhmaykoosib Inninuwug First Nation (KIFN), Platinex Inc., and God’s Lake Resources Inc., Ontario agreed to set up a bilateral forum called The Northern Table (or Oski-Machiitawin) with the political tribal organization, Nishnawbe Aski Nation (NAN). NAN wanted a process to develop a more unified approach to land use planning that could address benefit sharing and consultation given companies’ interest in accessing resources. The purpose of Oski-Machiitawin was to draft planning legislation that could address issues such a land use (industrial development, protection through parks) and revenue sharing, among others. This process was part of a broader effort to gain rights over resources and move towards self-determination. The Northern Table was established in 2007, but explicitly did not address Treaty relations or jurisdiction. This process ended when Ontario unilaterally announced the Far North Planning Initiative in 2008.

First Nations did not publicly support the Far North Act. NAN expressed public concerns that the Act specifically:
• infringed upon Aboriginal and Treaty rights;
• divided NAN communities north and south of the 51st parallel with different planning processes;
• strengthened government jurisdiction in the far north by, for example, requiring the minister give final approval of community-based land use plans, and determining what activities may proceed before a community-based land use plan is in place; and
• failed to uphold appropriate consultation processes.

Despite these concerns, six community-based land use plans (Pikangikum, Cat Lake-Slate Falls, Pauingassi, Little Grand Rapids, Cat Lake-Slate Falls, Deer Lake) have been completed to date, and nine other communities were at the terms of reference stage with the MNRF at the time this announcement was made . Other communities in the far north have not engaged in this planning process.

The other planning process between Ontario and First Nations in the far north was also in response to mining conflicts in the Ring of Fire. In 2014, the Matawa Regional Framework Agreement was signed by Ontario and the nine Matawa First Nations to address regional infrastructure, monitoring, revenue sharing, and EA engagement in the Ring of Fire. The Agreement was Ontario’s response to Matawa First Nations filing a judicial review because the Canadian Environmental Assessment (CEA) Agency failed to implement a joint review-panel EA for the original Cliffs chromite project in the Ring of Fire. While Premier Wynne eventually created space to discuss jurisdiction under the Agreement, it came too late in the process and, in the end, the consensus-seeking approach established under this Agreement was replaced with a piecemeal approach focused solely on “mining-ready” communities. Requests from First Nations to re-establish this process under your government have been met with silence from Queens Park.

It is ironic that the Act that Ontario created to move development forward in northern Ontario is now being repealed to move development forward in northern Ontario. However, there are troubling signs that this government, like the previous one, is unwilling or unable to support tiered and equitable governance and decision-making processes with First Nations in the far north.

Repealing the Act will be as unsuccessful as all previous Ontario government attempts in moving development forward in the far north unless the current government can address jurisdiction, and work with First Nations through government-to-government negotiations.

3. The Public Lands Act is inadequate for accommodating planning and development in the far north, particularly dedicated protected areas that have been designated through community-based land use planning under the Far North Act.

The proposal to amend the Public Lands Act (PLA), “to retain approved community-based land use plans and provide them with substantially the same effect as under the Far North Act” will not be sufficient to address either ecological values or First Nations rights and responsibilities in the far north in Ontario.

First, the PLA does not address ecological values in the far north, including sustainability. This law has remained relatively unchanged since 1913, and would offer little direction that would be relevant to the particular planning conditions and ecology in the far north. In particular, the far north includes major peatlands that, if developed irresponsibly and disturbed by road building, may release enough CO2 and methane to undermine any emissions reductions we achieve through other means.

Second, the PLA does not address First Nation jurisdiction and does not recognize the Treaty and Aboriginal Rights of First Nations in Ontario. Since Confederation, the management of public lands in Ontario, as well as the natural resources that are associated with them, has been primarily the responsibility of the provincial government. This difference in interpretation of Treaty No. 9 by First Nations and Ontario, as well as the inability of Ontario to address First Nations jurisdiction in the far north, remain important and significant impediments to conservation and development trajectories in the region.

Third, it is unclear how the PLA will be amended to provide for the “same effect” as under the Act. Currently, it provides little direction or authority for land use planning. For example, there are no requirements for a role of First Nations in land use planning, and no requirements that both the First Nation and the minister approve of the designation of the planning area, terms of reference, and the community-based land use plan. Further, the PLA does not have provisions for funding community-based land use planning. There is no mention of traditional knowledge, no transparency requirements, and no review requirements in the PLA.

Finally, there are no provisions for regulating boundaries of protected areas, and no interim protection provisions in the PLA. Importantly for the far north, it is unclear at this point what happens to the Dedicated Protected Areas (DPAs) created under the Act that are the product of joint land use planning decision making. No requests have been made by any of the First Nations other than Pikangikum to regulate the boundaries of DPAs that have been created, and provisions to prescribe limits on development in a DPA (Far North Act, s 14(2)) do not exist in the PLA, such that merely transferring them from the Far North Act to the PLA would not carry with it a similar force and effect.

The PLA was available as a land use planning tool before the Act was developed, and was considered inadequate for meeting Ontario’s objectives for that region a decade ago. It does not provide a comprehensive planning framework or guidance for the unique context in the far north, particularly the large, ecological intact ecosystems, the needs and interests of First Nations, and the desire to open up the north to industrial development.

Currently, the PLA provides the Minister of MNRF with the legislative authority to manage provincial Crown land in far north, but the PLA offers little direction or authority for land use planning. The result will be an uneven patchwork of government approaches and responses that First Nations will engage with, ignore, or actively resist. As such, we do not think the PLA will work without significant reform that can accommodate the far north context for land use planning and decision making with First Nations.

4. Reliance on piecemeal project-level impact assessments will fail to address social, environmental, and economic risks; and will fail responsible stewardship of the far north – a globally-significant region with a high degree of ecological integrity, world-class carbon stores, and providing ecosystem services far beyond is boundaries.

One of us (JR) was a scientist on the Far North Science Advisory Panel in 2009-2010, which issued a report “on the value and importance of the environmental features and ecological functions of
the Far North, and on the critical science issues… [that]...deserve close attention in land use planning,
environmental assessment, and adaptive management as the Far North changes.” The report highlighted the globally significant nature of the species, ecosystems, and ecosystem services in the far north, and advocated for coordinated and regional planning processes aimed at maintaining globally significant ecosystems and benefits to local First Nations, as well as to people throughout Ontario and beyond.

The narrow focus of separate assessment processes for various roads, transmission lines, and mines cannot address overall impacts to the region at large, and will do nothing to stave off the inevitable cumulative effects that will arise when the Ring of Fire is open for business. It is well known that mines have limited operational lives and a history of negative legacy effects in remote regions. Enabling access to new deposits and opening up First Nations’ traditional lands require a more thoughtful design and approach to sustainability than has so far been considered.

As with all impact assessments, it is the combination of direct, indirect and cumulative effects of proposed activities or facilities that ultimately matters when it comes to environmental sustainability. In the Ring of Fire, the need for major new infrastructure that will accompany mining proposals demands a rigorous and proactive consideration of potential regional impacts and of the contribution of these land uses to delivering sustainable regional futures.

Taking some time at the outset to consider the regional perspective would assist in addressing cumulative effects, and would help focus and improve the efficiency and credibility of subsequent project-level assessments in the same geographic area. Experience demonstrates that regional-scale assessments can provide greater scope for the identification, evaluation and pursuit of different futures. Comparing the potential impacts of multiple future scenarios can facilitate informed discussion about past and future land use and alternatives, including the routing of infrastructure and how mines and new infrastructure might become bridges to more sustainable outcomes, particularly for First Nations.

A regional approach could also offer efficiencies and cost savings by consolidating infrastructure and providing a cumulative-effects framework within which individual projects are considered. Furthermore, regional assessments provide a platform to address fundamental questions faced within the Ring of Fire, such as how many mines and roads could operate in this sensitive region with minimal adverse effects on community well-being and the environment.

Ontario faces a daunting challenge in representing broad provincial interests relating to the planning of protection and development; evaluating and responding to cumulative environmental impacts; and considering the implications for First Nations, economies, resource management industries, and ecosystems together with First Nations communities. As long as commodity prices remain low, there is time to consider how to develop the Ring of Fire in a sustainable manner that does not simply repeat the well-known adverse impacts on remote communities and the environment that come with new linear infrastructure in remote regions. The Ring of Fire requires provincial leadership that includes a clear road map for the development and conservation of the region, rather than disjointed planning efforts and side deals that divide communities.

5. If the province doesn’t learn from the 10 years of implementation of the Far North Act, it will repeat the same mistakes and fail to address fundamental issues related to social and environmental stewardship and justice.

The Far North Act has been an experiment in trying to introduce development into a globally-significant region that is a homeland for 40,000 Anishinaabeg and Cree. It has provided a mechanism for community-based land use planning tailored to the far north, and was designed in recognition of the sensitivity of the region, its ecological importance with respect to ecological integrity, carbon stores and other ecosystem services, and biodiversity value relative to other areas of Ontario where there has been much more environmental degradation. Ideally, this new government should be able to learn from the results of this experiment, and use these lessons to develop a better and more functional process going forward. Instead, the government has simply declared that the experiment was a failure, and is proposing to take provincial legislation back a decade. This regressive approach is no more likely to deliver on economic goals for the far north than the last government and heightens the prospects for ecological and social deterioration.

As scientists working in the far north, we are aware that significant effort and resources went into collecting ecological data, from remote sensing to caribou radio-collaring and surveys to biodiversity assessments and investigations of carbon dynamics in the face of disturbance and climate change in peatlands. This accumulated knowledge wouldn’t have come about, but for the passage of the Far North Act, and the stated objectives for land use planning. This knowledge has been immensely valuable for informing land use planning decisions and will be even more so for forthcoming environmental assessments.

Since community planning processes focus on the joint participation of community members and MNRF planning staff, we have not been at the planning tables. Therefore, our assessment of how the Act is implemented remains limited to our review and understanding of land use planning products emerging from the communities, as well as the Far North Land Use Strategy. However, we participated in conferences and workshops where land use planning in the far north was discussed both by government and First Nations, and included regional-scale issues such as climate change and cumulative effects. Our personal experiences in working in some communities is that the Act also enabled additional capacity for First Nations to conduct traditional land use studies, develop community-driven research, and conduct participatory mapping.

Yet, many First Nations chose not to engage in this process. As such the Ministry has struggled to deliver approved plans, and it was not able to convene a joint planning body to create “Far North Policy Statements” under subsection 8(3) of the Act.

Despite these challenges, a number of communities have invested time and effort, working in good faith with Ontario, to develop community-based land use plans. Repealing the Act with no review of how it was implemented seems irresponsible and a missed opportunity to assess how and whether community-based land use plans under the Act can be successful in:
• delivering on conservation targets that move Ontario (and Canada) closer to international commitments under the international Framework for Climate Change and Convention on Biodiversity, specifically Aichi Target 11 and 18;
• creating more transparent and equitable planning processes with First Nations around decision-making for development and protection;
• documenting how First Nations rights and responsibilities have been impacted; and
• determining how planning has contributed to sustainable development in the far north.

We submit that with or without the Far North Act and its land use planning objectives, these objectives will still need to be front and center as Ontario considers how to move forward on development visions in the far north. Not doing so will increase risk not just from a social and environmental perspective, but from a business perspective.

6. The time constraint for communities to complete their community-based land use plans is too short, and the cancellation of land use planning processes at beginning stages for many communities is arbitrary and unfair to those who have engaged in good faith with Ontario to date.

At least two First Nations (North Spirit Lake and Kashechewan) are currently engaged in community-based land use planning with the government. It is unclear why these engaged communities are not considered “advanced” enough to continue with their current community-based land use planning processes. Further, it is unclear why the communities that are “advanced” have been given such a short and seemingly arbitrary deadline of December 31, 2020, to complete their community-based land use plans. Especially given the uncertainty of community-based land use plans going forward, and the inadequacy of the PLA as a process for developing these plans, special attention will have to be paid to developing a process where interested First Nations are able to continue their community-based land use plans, and have the funding to do so.

In conclusion, repealing the Far North Act and shoehorning future planning processes into the Public Lands Act demonstrates a lack of understanding of the particular circumstances in the far north that call for an alternative approach. Undertaking an assessment of what worked and what failed during the last 10 years of community-based land use planning will better enable the development of a sensible approach that effectively confronts the risks of making development decisions in this unique area.

Repealing the Far North Act will not help to create new economic opportunities, repair relationships between the government and First Nations sufficiently to enable new projects, or safeguard the globally significant ecosystems of the far north. The Ontario government has no choice but to invest in working with First Nations to create planning processes that consider both the opportunities and impacts of development, and meet the standards of free, prior and informed consent that have become an imperative as the basis of First Nation relations with government.

We would be pleased to engage in any discussions regarding our recommendations. Thank you again for this opportunity to provide feedback.

Sincerely,

Constance O’Connor, PhD
Associate Conservation Scientist

Cheryl Chetkiewicz, PhD
Conservation Scientist

Justina Ray, PhD
President and Senior Scientist