How are Official Plans currently including Indigenous rights and communities?

In June 2019, OPPI’s Indigenous Planning Perspectives Task Force released a report detailing what must be done to include Indigenous perspectives in the planning profession. To assist this momentum, the Shared Path Consultation Initiative is gathering information that may reform how we share the land. We are working towards a future in which Indigenous voices and rights form a sustained and integral part of how we share land.

To implement this vision, we need to understand where planning currently stands regarding the integration of Indigenous rights. The jurisdictional gap between First Nations and non-First Nations communities makes it difficult to collaborate on matters of land use planning. Constitutionally, there is no obligation for First Nations and municipalities to have any sort of relationship. They both have interests in land – how it’s used, how it’s planned – thus there are practical reasons for both parties to coordinate with one another. There is also jurisprudence - the Supreme Court of Canada has established that Aboriginal peoples asserting Aboriginal and Treaty rights must be consulted and accommodated prior to any decision-making conduct or activities that may have an impact on those rights. As well, Indigenous consultation by municipalities has been enshrined in the Provincial Policy Statement since 2014.

Shared Path Consultation Initiative decided to examine planning policy at the local level and looked for evidence of collaboration in the Official Plans of each municipality in southern Ontario. We scanned 285 plans for references to Indigenous peoples, to highlight what each municipality or region has done, and to establish a baseline from which to measure progress towards empowering Indigenous peoples as decision makers in land use matters.
 
Our Findings

Of the 322 municipalities defined in Southern Ontario, 37 lower tier municipalities do not have their own plans. 156 plans contained at least one keyword (Indigenous people, First Nation, Aboriginal, Métis, Treaty, Treaties, Indian) while the other 129 did not. These tended to show up in five contexts: archaeology, culture/cultural heritage, settlement history, consultation, and environmental management.

Roughly one third of Official Plans have archaeology policies that specifically mentioned Indigenous communities, often in relation to burial sites (most likely due to provisions under Ontario’s Planning Act, Environmental Assessment (EA) Act, and Heritage Act). Many of these plans contain commitments to involve Indigenous communities in archaeology, heritage and cultural planning – anything to do with the past - but not as decision makers in current and future land use matters. References to participation of Indigenous peoples in environmental management or consultation were frequently due to requirements for Environmental Impact Studies under the EA Act.

While our search terms came up often in sections dealing with cultural heritage, few plans named the nations whose cultural heritage might be impacted by land development. Similarly, in introductory sections dealing with settlement history or community context, about 40 Official Plans contained one of our search terms, but rarely mentioned the First Nations specific to their area. Only 18 plans made any reference to Métis people or organizations. Many of these documents have a statement acknowledging the existence of Aboriginal and Treaty rights but do not explain how these will be considered in planning policy and processes.  About 10 plans had a land/territorial acknowledgement or similar statement, and only 7 mentioned an applicable treaty. Generally, we found little engagement with Treaty history.

One of the most advanced Official Plans we found spoke to the interests of Indigenous communities not only in culture, archaeology and history, but also housing and economic development. Another had a whole section on consultation and relationship development. A few referenced managing specific environmental resources with Indigenous communities or factors such as watershed and waste management. Several plans spoke of developing archaeological or cultural heritage management plans in consultation or in partnership with Indigenous communities. Only one plan we came across included a commitment to refer to the Consultation and Accommodation Protocol developed by their neighbouring First Nation early in the review of new development applications.

The policies referencing Indigenous communities that exist in official plans are wide ranging in their topics, in their wording, in their commitments and in their level of detail, making them difficult to compare directly.  Also, the size and tier of a municipality may influence the types and details of policies needed. Another way to evaluate planning policies for consultation and accommodation is by adapting the Arnstien “Ladder of Citizen Power”. This ladder assesses the level of participation that citizens have in controlling the decisions that are made for them and groups the levels into three general participation categories: “Non-participation”, "Tokenism”, and “Citizen Power”. 
 
By overlapping the parameters of consultation with the spectrum of participation, we get a “Ladder of Consultation.” While the Honour of the Crown ("the Government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples."¹) does involve a responsibility to inform, using information to manipulate or “therapize” a community does not fulfill this Honour. It constitutes non-consultation. Consultation moves up the ladder, but may simply provide information, or ask for advice, or at best provide a minimal response to concerns. Accommodation starts to be realised when communities are treated as partners, are entrusted with actual decision-making, or are even in charge of the process. 

If one were to apply this evaluation model to the Provincial Policy Statement (PPS, 2020) it could be ranked in the 4 to 6 range. It steps beyond the PPS 2014 (level 4) by insisting on engagement as seen in Part IV: Vision, 1.2 Coordination, 2.6 Cultural Heritage and Archaeology, and 4.0 Implementation. What about a level 9? The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) specifies Free, Prior, Informed Consent on lands & resources, which may push us farther. To implement such policy shifts will require time, training, and funding; just like it has for First Nations and Métis peoples.

To hear more about these results go to the SPCI  webinar.

In the coming months, Shared Path will work with OPPI to develop further posts on these changes.

¹ Justice Ronald S. Veale, The Duty to Consult and Accommodate: The Crown's duty to consult and accommodate with respect to Aboriginal and Treaty rights.