Ontario court halts quarry project over lack of consultation with First Nations

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An Ontario court has halted a limestone quarry project on the Bruce Peninsula nearly a decade in the making after finding the province failed to properly consult First Nations whose traditional territory encompasses the area.

In a decision released last week, the court says the Ontario Ministry of Natural Resources and Forestry failed in its constitutional duty to hold meaningful consultations with the Saugeen Ojibway First Nation before approving the project.

It says the ministry did not properly notify the First Nation of the project until three years after the application was filed, and then repeatedly pulled out of the process and funding it had promised.

T & P Hayes Ltd. applied for a licence in 2008 for a limestone quarry on land it owns, which is not part of a reserve or claim by the First Nation.

The court says negotiations between the province and the First Nation began in 2011 but the ministry later offloaded the responsibility to T & P Hayes, which refused to take it on.

It says talks stalled in 2015 and the licence was granted the following year. The licence has now been revoked until proper consultations are conducted.

Even though some issues were resolved, the process followed by the ministry “does not pass constitutional muster,” Justice David Corbett wrote on behalf of the three-judge panel.

“(The ministry’s) position — that whatever process failures there may have been along the way, by the end, (the Saugeen Ojibway First Nation’s) substantive concerns had been heard and addressed — misses the central thrust of (the First Nation’s) concerns here,” he wrote.

“(The First Nation’s) objection — and a valid objection it is — is that there has never been a proper consultation process, and that the identification of (the First Nation’s) concerns remains preliminary and subject to review and change through proper consultations.”

For the Saugeen Ojibway First Nation, which includes the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation, “consultation on the project was disjointed, inconsistent, and an exercise in frustration,” Corbett said.

The First Nation has been clear that it needs funding to hire experts who can assess technical reports related to the project, he said.

“Funding was agreed but never delivered. (The Saugeen Ojibway First Nation) continues to be willing to undertake consultation if it receives the promised funding. It also continues to maintain that it may require more funding, which it will address with (the ministry) after it has completed its preliminary work.”

T & P Hayes, for its part, just wanted the project to progress without incurring further costs and ended up feeling caught between the two parties, the court said.

Nevertheless, “Hayes’ frustration and its interests in moving forward with the project are not valid reasons to defeat (the Saugeen Ojibway First Nation’s) constitutional rights,” the judge said.

“Thus though the duty to consult is the Crown’s, proponents have an interest in facilitating the consultation process. In this case, Hayes refused that role. It was entitled to do this, but one consequence of its decision is further delay to complete adequate consultations.”

The court also ordered the ministry and T & P Hayes to cover the First Nation’s legal costs, which amounted to $80,000.