Authors: Kameron Faridani, Sawyer Fobert, and Jeremy Korb

Introduction

A 2021 court decision from British Columbia sets a precedent that should give Ontario pause.  It establishes a precedent that likely means Ontario needs to systemically assess the cumulative impacts that developing the Ring of Fire (“ROF”) will have on Aboriginal and treaty rights. Yahey v British Columbia transformed the way cumulative effects must be considered in approving projects that diminish treaty rights over time.

The Ring of Fire

The ROF in Northern Ontario is a deposit rich with minerals critical to electric vehicle battery production.

The Government of Ontario has committed to developing the ROF to become a global leader in this sector. To make mining feasible in the ROF, several major infrastructure projects will need to be approved. One of the undertakings necessitates building all-season roads that connect the ROF to transportation corridors to the south. Many communities in this area are currently only accessible via air travel and winter roads. Several First Nations near the ROF have voiced their opposition to the construction of all-season roads due to major concerns over how this development will affect their ability to live off the land and exercise their treaty rights.

New Aboriginal Rights Infringement Test?

The British Columbia Supreme Court’s landmark decision in Yahey held that the rights promised to Blueberry River First Nations (BRFN) under Treaty 8 were infringed by the cumulative impacts of industrial developments within BRFN’s traditional territory. The court advanced a new test to determine if Aboriginal rights have been infringed wherein the court must consider if “there has been a significant or meaningful diminishment of the rights.” Justice Burke held that the cumulative effects from industrial development significantly degraded the ecological health of the claim area, diminishing BRFN’s treaty rights to hunt, fish, and trap. Based on this conclusion, Justice Burke made a declaration that forbids B.C. from permitting development that risks further diminishing BRFN’s rights.

Yahey Application in Ontario

Similar to developm

ents in BRFN’s territory, development in the ROF is expected to adversely impact the area’s ecological integrity and the exercise of Aboriginal treaty rights. The ROF is within territory subject to Treaty No.9 – an agreement signed in 1905 and 1906 between the Canadian Crown and the Anishinaabe and Cree Indigenous Peoples. Analogous to Treaty 8, the Treaty 9 text and oral promises assure the Indigenous signatories that their livelihood, including hunting, fishing and trapping, would be protected.

Contrary to these treaty promises, the development of the ROF threatens the meaningful exercise of those rights. Road construction and industrial development in the ROF are expected to negatively impact the region’s ecosystem and wildlife patterns. Indigenous peoples living in the area are concerned that these impacts will interfere with the exercise of their rights. Looking at Yahey can provide insight into how these concerns must be addressed.

In Yahey, Justice Burke ruled that B.C. had breached its fiduciary duty to BRFN “by causing and permitting the cumulative impacts of industrial development without protecting Blueberry’s treaty rights.” The fiduciary duty obligates governments to consider how today’s decisions will affect treaty rights and address these concerns before any permit has been issued. Justice Burke concluded that allowing development to proceed in BRFN’s territory when there were well grounded concerns was not consistent with the “good faith, loyalty, or ordinary prudence with a view to Blueberry’s best interests” that the fiduciary duty demands. As such, Yahey demonstrates that the fiduciary duty requires governments to take a proactive approach to protecting treaty rights. Justice Burke made it clear that it is not good enough to stay the course and mitigate degraded Aboriginal rights post-mortem.

Based on the obligations borne by the fiduciary duty and the substantial threat the Ring of Fire poses to treaty rights, it is clear that Ontario must conduct an expansive cumulative effects study before permitting the envisioned projects to go ahead. A cumulative effects study would analyse how the projects would affect treaty rights. The fiduciary duty demands this assessment takes place to preserve treaty promises and avoid a scenario like Yahey where “no meaningful right” remains. The assessment can provide crucial insight into how Ontario can work with First Nations to mitigate the effects of development and limit its scope appropriately. Further, if the assessment suggests that treaty rights will be infringed upon, it will provide affected First Nations the grounds to effectively challenge project approvals.

Conclusion

Understanding the cumulative impacts of this project will not only ensure the project’s legality but will create greater trust and understanding between the Province and Indigenous communities, building towards the goals of reconciliation.