The Planning Act and the Duty to Consult First Nations Communities after Galibier Materials Inc. v. Springwater (Township)

The Planning Act and the Duty to Consult First Nations Communities after Galibier Materials Inc. v. Springwater (Township)

The Supreme Court of Canada has established the Crown’s duty to consult Indigenous peoples when contemplating action that may adversely impact their rights affirmed by section 35 of the Constitution Act, 1982 in several landmark cases, including in the historic case of Haida Nation v. British Columbia (Minster of Forests)[1]. The Crown can delegate the process of consultation to proponents, including municipalities, however the ultimate responsibility for satisfying itself on whether the duty to consult has been fulfilled lies with the Crown.

This duty to consult was considered by the Ontario Land Tribunal (the “Tribunal”) in its recent decision by Member Hardy in Galibier Materials Inc. v. Springwater (Township) (OLT-23-000990, 20 February 2025). The Tribunal’s decision establishes a potentially destabilizing precedent for Ontario’s planning regime respecting obligations to consult.

The Duty to Consult Under the Aggregate Resources Act

The duty to consult with First Nations communities is standard in applications to establish or expand a pit or quarry under the Aggregate Resources Act (the “ARA”). Once an application is filed with the Ministry of Natural Resources (the “Ministry”), the Ministry identifies for the proponent the First Nations communities to be consulted as part of the application process. This duty can extend to First Nations communities located hundreds of kilometres away from the subject site. Only when the Ministry determines that the duty to consult has been met by the proponent will the Ministry approve the application or refer it to the Tribunal for a hearing.

Often the referral is consolidated with applications made under the Planning Act to allow for the extraction of sand, stone or gravel from that same site. In the Galibier case, the objections to the application by Galibier Materials Inc. (“Galibier”), on the part of local residents to the ARA application, was referred to the Tribunal by the Ministry and consolidated with the appeal by Galibier of the failure of the Township of Springwater to approve its zoning by-law amendment (“ZBA”) application under the Planning Act.

The Duty to Consult Under the Planning Act

With respect to the Planning Act, Ontario Regulations 543/06, 544/06 and 545/06 (the “Regulations”) require that municipalities provide notice of applications for ZBA, official plan amendment (“OPA”), and plan of subdivision to “the chief of every First Nation council, if the First Nation is located on a reserve any part of which is within one kilometre of the area to which the proposed [amendment] would apply”. Ostensibly, this is to meet the duty to consult by providing First Nations communities with the opportunity to participate in the public process.

The Tribunal has considered whether the requirements under the Regulations are sufficient to meet the duty to consult. In Red Bay & Howdenvale Resident Group[2] the Tribunal granted party status to the Saugeen Ojibway Nation (SON) on the basis that it had treaty rights to the lands subject to a proposed OPA that could affect natural and cultural heritage features of importance to the SON. The Issues List for that appeal included the issue: “Was the Constitutional duty to consult met with respect to the [OPA]?”

In Red Bay the Tribunal modified the OPA, which sought to change the designation of a road, to subject the future road to a Municipal Class Environmental Assessment. That Assessment was to include consultation with the SON. Importantly, however, the Tribunal seemingly concluded that the public notice process satisfied the duty to consult, and that, where such notice had not occurred, granting party status would rectify “any defect in the duty to consult”[3].

The Tribunal’s Power to Grant Party Status

The Tribunal’s Rules of Practice and Procedure (the “Rules”) define a “party” as

a person entitled by the statute under which the proceeding arises to be a party to the proceeding and includes those persons whom the Tribunal accepts or adds as parties on such terms as the Tribunal may determine (s.1.2 – Definitions).

The Rules permit the Tribunal to add a Party to a proceeding when:

1. “that person satisfies applicable legislative tests necessary to be a party” and
2. “the Tribunal has reasonable grounds to do so, provided that the person’s presence is necessary to enable the Tribunal to adjudicate effectively and completely.”

In considering whether to grant party status, the Tribunal considers various factors, including those referred to as the “Oakville” factors (as set out in Oakville (Town), Re, 2010[4]), such as whether adding a party would be in the public interest, would cause prejudice to any existing parties, and whether the requestor has a direct interest in the matter.

As such, in previous, unrelated hearings, the Tribunal and its predecessor bodies have also granted party status to First Nation communities same when granting the request:

1. was made on consent of the other parties[5];
2. recognized that the First Nation had been involved in the statutory public process[6]; or
3. would assist the Tribunal in understanding the issues involved in the matter, including in respect of the impact on treaty rights[7].

Galibier: The Duty to Consult and the Role of Party Status

As noted above, the Tribunal’s decision in Galibier marks a different approach to addressing the duty to consult with potentially far-reaching consequences. This case involved the proposed expansion of an existing mineral aggregate operation in the Township of Springwater. The proponent, represented by McMillan LLP, under both application processes, had engaged over a period of 2 years with over 9 First Nations communities, 2 of whom had been directly involved in the Stage 4 Archaeological Assessment of the subject lands. All of those communities had “signed off” on the duty to consult and none of them expressed any concern with the proposal to expand the existing operation.

Despite this extensive and active engagement, an umbrella advocacy organization, the Chiefs of Ontario (COO), requested party status at the 30 January 2025 Case Management Conference on these matters. The COO made this request in the context of the following facts in this case:

1. it was not owed a duty to consult since it was not a First Nations community with treaty rights;
2. it had not been involved in the public process over the applications; and
3. it had not consulted with any of the potentially affected First Nations communities.

The COO alleged that the Regulations were insufficient to meet the duty to consult and that an outside group of 5 different First Nations had not been consulted when the Stage 3 Archaeological Assessment was undertaken in 2013. It also took the position that only the COO could provide an aboriginal perspective on the issues in the hearing.

Notably, the Ministry supported the Appellant’s position in objecting to the COO’s request for Party status.

The COO wished to add the following issue to the list of issues to be considered by the Tribunal at the hearing:

“Were the appropriate First Nations consulted during the Stage III Archaeological Assessment.”

The Appellant responded that it had far exceeded the duty to consult under both Acts and that the participation of the COO in the hearing would prejudice it by expanding the time and expense required for the hearing. The Appellant reminded the Tribunal Member that the COO had not been involved with the applications nor had it consulted with the relevant First Nations.

The Tribunal’s jurisdiction under the ARA is limited to matters which have been referred to it by the Ministry under the ARA. As the duty to consult had not been referred to the Tribunal as an issue under the ARA the Tribunal was limited to considering whether the duty to consult, as raised by the COO, could be included as an issue under the auspices of the Planning Act.

Member Hardy sided with the COO, writing that:

1. “it would be prejudicial to COO and First Nations communities if they were not afforded an opportunity to represent the interests of First Nations communities at the hearing”; and
2. “any perceived prejudice to the Appellant…was outweighed by the potential prejudice to COO if it were not afforded an opportunity to represent the interest of First Nations at the hearing”.[8]

The Member found that, while the objection relating to the duty to consult had not been referred to it under the ARA, given the consolidation of the ARA matter with the Planning Act matters, the issue of proper consultation could still be put to the Tribunal in ensuring the applications represented good planning. It directed the COO to scope its proposed issue to list the appropriate First Nations communities.[9]

Discussion

The decision by Member Hardy to grant party status to the COO to represent the interests of First Nations communities in the facts of this case establishes a potentially destabilizing precedent for Ontario’s planning regime. It is now unclear whether the Regulations are sufficient in themselves to satisfy the duty to consult. Further, it appears that umbrella advocacy organizations such as the COO may now be able to reopen the question of sufficient consultation as added parties where the relevant First Nations communities themselves have not found it necessary to raise such issues.

The decision in Galibier effectively opens the door to any indigenous or other advocacy group to come forward in any hearing, no matter how large or small, to claim that they represent interests that are potentially impacted by a proposal. It is possible that advocacy groups could be formed for this purpose alone. An example of this would be the Reform Gravel Mining Coalition, a provincewide alliance of individuals who oppose aggregate extraction, and which claims to speak on behalf of environmental interests. Based on Galibier decision, such groups would not have to even participate in the public process or consult with the very groups the claim to represent the interests of.

The decision clearly has significant implications for aggregate and other infrastructure projects across Ontario, inviting unpredictable interventions in mines, housing, highways, energy projects and beyond. It could also impact minor variance or other similar applications where a duty to consult has not been a consideration to date.

The Crown’s fiduciary obligations should be upheld. However, this decision introduces further uncertainty respecting the satisfaction of such obligations. Where proponents have made efforts to consult, and have invested in and relied on that process, usually at a very significant cost, groups like the COO who may not be authorized to represent the section 35 rights holders (as in the Galibier case), who do not have a recognized interest and who have not participated in the Planning Act process, may now claim a right to intervene in hearings under the auspices of protecting such rights.

The decision by Member Hardy will inject uncertainty into the land use planning process, including on the part of proponents who cannot now know if they have satisfied the duty to consult. How the Tribunal responds to future requests for party status by such advocacy groups will determine how the land use planning process is changed by the duty to consult or any other duty now owed to such groups to assist the Tribunal in coming to a fulsome decision on appeals.

[1] 2004 3 S.C.R. 511
[2] PL091020
[3] Paragraphs 115 and 117
[4] Carswell Ont 7078, 66 O.M.B.R. 366.
[5] Boblo Developments Inc. PL170798, A Miron Topsoil Ltd. PL121310
[6] Quaternary Mining PL190604, PL200278
[7] Burleigh Bay Corporation PL150313, Ryerson (Township) By-law 31-13 PL130823, Blairhampton Properties Inc. PL001186 Pl010517
[8] Paragraphs 22 and 24
[9] Paras 34 and 35

by Marc Kemerer, Kailey Sutton, and Yu Meng Fang (Articling Student)

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2025