Duty to Consult: Answering the Questions

This Planning Exchange Blog is a follow-up to the popular Forum Friday session on Duty to Consult, hosted on June 18, 2021. All Forum Friday webinars are recorded so you can watch them on demand, anytime.
 
This interview-style blog will answer the questions posed during the session. The interview is led by Susan Robertson,RPP, and the questions are answered by the session’s co-presenters Carolyn King, C.M. and David Stinson, MCIP, RPP.

SR: Are you aware of any provincial progress on guidelines for the implementation of PPS 1.2.2, that is: Planning authorities SHALL engage with Indigenous communities and coordinate on land use planning matters.
 
DS: The Provincial Policy Statement (PPS) is the highest statement of intent by the province of Ontario in terms of its directions towards consultation and accommodation of Indigenous perspectives. We are waiting for confirmation from the Ministry of Municipal Affairs and Housing (MMAH) as to the status of any guidelines. In the meantime, planners are left with the conundrum of how to take this statement seriously.
 
CK: The PPS has been changed and updated and now the province needs to help municipalities figure out what to do with this new law. The Association of Municipalities of Ontario (AMO) could be a big support in this regard. We encourage you to follow up with MMAH for any updates.
 
DS: Pending that, planners are also concerned about what planning issues should be consulted on: from minor variances at the low end, to official plan reviews at the upper end, and through to the creation and implementation of higher level provincial plans. Ideally, input would be best received at the higher levels of planning activity, such as the creation of provincial plans and at official plan reviews. On the other hand, I’m aware of issues of vital importance to a First Nation that have kicked in at the minor variance level.
 
CK: I also have stories about issues with minor variances at the municipal level. Zoning is where the rubber hits the road. When they want to change plans through a minor variance, the people who approve these variances can change the law and its associated policy intention.

SR: At what stage is there an obligation to consult?
 
CK: Early.
 
DS: To quote an Indigenous colleague who paraphrased an old quip about voting: “Consult early, consult often!”  From our perspective and that of the Shared Path Consultation Initiative (SPCI), we see three main steps that planners have to take: one is notification, the next is consultation, and the final step is accommodation, if required.
 
CK: Start early. Start out by knowing whose land you’re on, understanding whose treaty you’re on, and who’s adjacent to them. From there, build that relationship. By way of example, some years back at Moose Deer Point, the past Mayor and the previous Chief golfed together, so they knew each other. Be friends with people so people show up.
 
SR: When it comes to building healthy, positive, and mutually beneficial relationships with Indigenous communities, what does good leadership look like? Who, and how, does this process start?

DS: It’s unfair to place the burden for this solely on planners. It's very helpful when we have the political leadership stepping forward to socialize and interact with First Nations leadership. A practical thing that could help is if the Chief and a member of their council are invited to attend a council meeting of a particular municipality, so that they know that their presence and engagement is important, setting the tone for the relationship. It doesn’t have to happen often, but every once in a while it will start to normalize things. It’s an implicit recognition of a government-to-government relationship.
 
CK: The leadership has to do it. It has to come from the top and it starts with the leadership table. Currently, the planner, or anyone in that office, cannot get away without addressing Indigenous issues, especially with the truth and reconciliation report being accepted at the federal level and more recent news of the report from Kamloops area. The world is watching now, and the leadership needs to talk about it. So, what does it take for leadership to change the rules, for all the people working under them? I think it starts with knowing, being aware of the treaty land you’re on and that there may be traditional territory identified by the First Nation.
 
SR: What tools or resources do you recommend municipal planners use to understand Indigenous history, treaties, rights, and interests, and identify which communities to engage/consult?
 
CK: Join the SPCI. Look to Ministry websites for information and even ask children, as they’re learning this in school now more than ever before.
 
SR: How can non-Indigenous planners assist with moving the Truth and Reconciliation Calls to Action forward?

DS: Planners could start with an OPPI blog post from several years ago: Does Planning have a Role in Truth and Reconciliation? Its slightly dated (October 2016), but reflects on one recommendation and how that might affect professional practice. 

CK: I think planners need to know what it is, and to educate themselves about it. They should consider training to inform themselves. Planners need to take the lead so they can advise their council and lead from the right foot. The municipality needs to also have a position and ensure that the municipal council is supportive and onside with advancing reconciliation.
 
SR: Can you highlight some recent projects that are good examples of the consultation process at work?
 
DS: In the Yukon, a five-year ecosystem-based process was used to engage the First Nations, as well as the public in the creation of the Peel Watershed Plan. This process was validated by the Supreme Court in 2019. In Ontario, the County of Peterborough, Curve Lake First Nation and Hiawatha First Nation are currently engaged in a similar type of effort. Before the pandemic, SPCI was poised to facilitate a similar process in Bruce County but the interested parties have moved on. So, it remains to be seen what will happen in Peterborough. It will be exciting to evaluate the outcome of that process and determine whether it can serve as an example for the rest of the province. 
 
CK: Walpole Island First Nation (Dean Jacobs) has a very good consultation process with Chatham-Kent where Walpole Island First Nation actually became a part of their official plan table, dating back about 10 years ago. Point Pelee National Park is an example where they worked together on Indigenous recognition.
 
SR: Were there any particular tools that led to a positive outcome?
 
DS: Actual funding and actual training for both sides, as well as the time set aside so they can be part of collaborative planning exercises. It’s important that it’s a genuine and actual collaboration, as mentioned in the process in the Yukon as well as in Walpole Island First Nation, etc. These examples are starting to happen but it’s not standard just yet.
 
CK: The Aboriginal Education and Training Strategy (AETS) is an example of a successful provincial program that raised the whole bar, from many years ago and is still active today. This could be considered as a format for the planning industry to redeem the relationship between First Nations and municipalities, and others involved in the planning process. This could help offset the development of a collaborative approach. As another example, the City of Toronto established a curriculum called the Indigenous Competency Course to train all city employees on Indigenous history over the next five years.
 
SR: What misconceptions do non-Indigenous planners have about the duty to consult?
 
DS: That a mere letter or phone call or e-mail is consultation (actually, it's only notification), and that even when a dialogue manages to occur (consultation), that this is an adequate substitute for actual accommodation of interests and rights.
 
CK: That it's federal land and that they don’t have any responsibility to deal with it. The misconception is that it’s a federal issue and that they don’t need to understand treaty and traditional territory. They look at the reserve boundary lines and they think that’s it. They really still think that this is a federal responsibility and that they don’t have anything to do with it unless it’s on a requirement basis.
 
SR: Confusion may be perpetuated by the lack of meaningful consultation, engagement, and participation within all phases of the planning process, including the tribunal phase when Planning Act applications are appealed, such as the Ontario Land Tribunal (OLT), formerly known as the Ontario Municipal Board (OMB) and the Local Planning Appeals Tribunal (LPAT). Indigenous communities must have standing in these forums that recognize that they are rights holders, not ordinary “stakeholders.” Lack of representation may lead to confusion as to responsibilities for consultation.
 
SR: In summary, I want to thank you both, Carolyn and David, for the opportunity to learn from you on this important topic.
 
There is so much work to do, to bridge Indigenous rights with the Planning Act and to bring the Ontario planning profession forward through two-eyed seeing. Your professional contributions to this effect have been enormous. Chi Miigwetch and thank you.