The use of a controversial herbicide in Ontario forest management practices is at the heart of a lawsuit being taken against the provincial government by three northeastern Ontario First Nations.
Chapleau Cree First Nation, Missanabie Cree First Nation and Brunswick House First Nation are challenging Ontario's approach to forestry and its method of consultation in a statement of claim filed in Ontario Superior Court of Justice in Toronto on Sept. 30, the National Day for Truth and Reconciliation.
They point to the aerial spraying of glyphosate — done without their consent — as a prime example of the gradual erosion of their rights under Treaty 9 as well as a lack of say in the industrial activity that takes place on their traditional territories going back to the singing of Treaty 9 in 1905.
The plantiff communities further argue that intensive forestry activity and the provincially approved spraying of this herbicide has fragmented the land and degraded the environment which they rely on for their way of life and livelihood, as spelled out in the treaty. As treaty signatories, the plaintiffs will contend in court that their treaty rights have been breached over many years.
They're also seeking financial compensation from the province for a later to-be-determined amount.
Similar First Nation lawsuits on "cumulative impacts" and treaty infringements have taken place in Western Canada.
Amy Westland of First People’s Law in Ottawa, who represents the three communities, believes this is the first case of its type in Ontario.
The date for a hearing has not been set and so the allegations have yet to be proven in court.
A spokesperson for the Attorney General of Ontario declined comment.
"As this matter may be subject to further litigation, it would be inappropriate to comment," replied Adam Kennedy in an emailed response.
A traditional territory is the geographic area identified by a First Nation as the land that they or their ancestors traditionally occupied and used. These lands are acknowledged by the Ontario government.
The specifically defined areas of First Nation traditional lands are usually kept confidential, but Westland said their territorial claims cover the forest management units of the Gordon Cosens, Martel-Magpie, Pineland, Romeo Malette, Spanish, Algoma, Nagagami and Hearst Forests.
Westland stressed the plaintiff communities are not anti-development or anti-forestry. If anything, they are trying to participate in the industry. But they want to see forestry practices done sustainably and in a manner that economically benefits the communities and keeps the forest healthy.
She said the communities believe a “tipping point” has been reached where if better protections aren't put in place the damage done will be irreparable.
Come trial, Westland said her clients intend to provide evidence and testimony from Elders, community members and harvesters who will speak to the harm done to the land by this herbicide. They claim there have been reductions in the populations of animal and plant species and adverse impacts to the clean water that their lives depend on.
The herbicide used by the industry, glyphosate, is a widely used commercial weed killer. It's an active ingredient found in Roundup™. Westland said the application of this herbicide is associated with "aggressive" large-scale clear-cutting forestry practices.
Cleared areas are seeded with glyphosate to kill "weeds" in the form of poplar, birch, willow and blueberries bushes, she said. These species of trees and plants have little to no commercial value to industry, but hold great importance to the First Nations in the gathering of medicinals, as materials used in canoe making, and as food for animals, among other uses.
While glyphosate has been approved for commercial application by Health Canada, the Province of Quebec banned its use in forestry in 2001. Yet Ontario continues to authorize its use, said Westland.
Nishnawbe Aski Nation council in Thunder Bay has been calling for an end to the spraying since 1988, Westland said. Mushkegowuk Council in the northeast and other Indigenous communities want an outright ban of glyphosate. Her clients support a ban as well.
“They want it to stop completely, but at the very least they want a precautionary approach in their traditional territories.”
The communities further charge that the Crown has historically fallen short of its legal duty to consult with area First Nations, dating back to the turn of the last century when there was a taking of land for forestry use.
They will argue there’s been little dialogue to help them understand what would take place and no accommodations were made to mitigate any negative effects on the landscape.
The communities particularly take issue with Ontario's forest management planning process and the way plans are implemented. Plans for individual Crown forests are updated every 10 years.
Unlike the regulatory process for developing mines, bridges and highways, the forestry industry has received an "blanket exemption” from the provincial environmental assessment (EA) process, the statement of claim said, through a series of legislative rollbacks in protections since the 2007 Species at Risk Act.
Westland said the forest planning process is left largely in the hands of industry who develop plans based on the provincial forest planning manual. Figuring how these process works is complicated to understand, she said.
While there’s a requirement to consult with area First Nations, what occurs is a “default consultation process,” Westland said.
Communities are often “bombarded” with invitation notices to participate in six or seven forest unit planning processes at once.
Westland said her clients don’t have the capacity — meaning the in-house technical knowledge — to meaningfully participate in these complex processes. Forest management plans are often hundreds of pages long, “and they’re not foresters.”
“It operates entirely on the government’s timelines,” she said.
And the use of glyphosate is often built into these plans.
Westland said the plaintiffs have been petitioning for more customized consultation approach, to better understanding the process, but haven’t been making much headway with government.
“It needs to be set up in a way where the First Nations have a chance to participate meaningfully, and right now it’s not structured that way."
Her clients believe these treaty breaches have reached a point where a better mechanism must be put in place to monitor for negative impacts to the land caused by industry.
A possible solution, she said, came out of a B.C. Supreme Court decision last year.
Known as the Blueberry River First Nations case, the band successfully argued that their way of life was being infringed upon and the court ordered the provincial government to come to the table with the First Nation and develop a mechanism to co-manage the use of Treaty 8 land.
“The same mechanism that Treaty 8 called for should be in place in Ontario as well,” said Westland.
In seeking relief, the plaintiffs are asking for an accounting of the profits generated from forestry activities on their traditional territories, dating back to 1905, and a negotiated deal reached with the government for a “fair share” of those profits.
Although two of three plaintiff communities are recipients of resource revenue sharing arrangements with the province — they receive a percentage of government revenues generated from stumpage fees — Westland argues those payments should’ve been delivered since the signing of the treaty.
“We would argue that these revenue sharing arrangements are in recognition that there’s some entitlement there.”