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Ontario court dismisses Neskantaga consultation case

Court rules it has no authority to determine adequate consultation or rewrite provincial legislation
Neskantaga 2
(Neskantaga First Nation Facebook photo)

The Ontario Superior court has dismissed a challenge by Neskantaga First Nation and its claim of inadequate consultation on a proposed section of the Ring of Fire road.

Neskantaga, a remote Oji-Cree community in the James Bay region, filed an application in November 2021 seeking clarity from the court on how the Ontario government should conduct consultation under the provincial Environmental Assessment Act.

In releasing her decision on Oct. 20, Judge Julia Shin Doi ruled that the court “has no jurisdiction to rewrite” or upgrade the act, nor the authority "to make a declaration on the extent" of Ontario's duty to consult and accommodate First Nations.

Neskantaga, located 430 kilometres northeast of Thunder Bay, has been an opponent to the proposed road to the Ring of Fire, arguing that there’s an inadequate First Nations consultation framework in Ontario. 

The community has concerns that the disturbance caused by the movement of heavy equipment and thousands of workers will cause significant environment damage.

Under the rallying cry of 'free, prior, and informed consent," the leadership has visited Queen’s Park on a few occasions this year to voice their opposition to Premier Doug Ford. 

Neskantaga filed its court application in November 2021, about a month after the province approved the terms of reference for the environmental assessment for the Marten Falls Community Access Road. 

Named as respondents were the Ministry of Environment, Conservation and Parks, responsible for administering the Environmental Assessment Act; the Ministry of Northern Development and Mines, Natural Resources and Forestry, overseeing the province’s mining industry and the Ring of Fire; and the road proponents Marten Falls First Nation.

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The Marten Falls road is a section of the proposed north-south road to the Ring of Fire, part of a much larger road project called the Northern Road Link. It would create a permanent all-season connection for the mining companies and members of Marten Falls and Webequie First Nation to reach the provincial highway system for the first time.

Neskantaga's lawyers argued during a two-day hearing last July that the Ontario government neglected to perform its constitutional duty to consult with First Nations, and instead offloaded its responsibility to Marten Falls First Nation, the project proponent for the road.

Neskantaga called the consultation process “deeply inadequate” regarding the terms of reference for an environmental assessment for the proposed Marten Falls Access Road, which Neskantaga claims crosses its homelands. 

Terms of reference sets out a work plan for what is going to be studied in an environmental assessment (EA).

Neskantaga argued the provincially-approved terms of reference for the EA started without their input. They've had issues with government-imposed deadlines to participate and that the community’s consultation protocols have been ignored.

Its leadership said it had been dealing with multiple, ongoing series of crises, including pandemic-related lockdowns, a 25-year boil-water advisory, crumbling infrastructure, inadequate healthcare services, and frequent community evacuations.

Neskantaga lawyers contend the act itself uses outdated language – written before the Truth and Reconciliation Commission Report in 2015 – and needs to "incorporate and appreciate" Indigenous concepts. 

In her decision, Judge Doi said Neskantaga’s questions amount to a “free-standing challenge” and does not “raise legal or justiciable issues.”

“There is no live issue or dispute of rights to be determined by the court.

"This is not a situation where the court can determine the rights of a First Nation that depend on the interpretation of the Environmental Assessment Act because there are no specific facts to ground those rights."

The court found that the province didn’t illegally “offload” its duty to consult responsibility to another party.  There was evidence showing the province’s detailed consultation process and that the government “maintained oversight and intervened when issues arose.” 

Marten Falls also submitted evidence that 22 First Nations, including Neskantaga, had “extensive notice, opportunities for dialogue and input, support for participation, and options for accommodation.

“One First Nation was not pitted against other First Nations but rather they worked collaboratively and co-operated,” the court said. 

The court noted consultation is regarded by the province as a "cornerstone" of the EA process and a legal requirement, which potentially affected Indigenous communities. But First Nation lands "do not automatically fall" under the assessment act "unless there is an agreement to do so."