Last week, the Ford government announced an ambition for the Province of Ontario to be North America’s leading hub for electric vehicle (EV) manufacturing. Behind this announcement is a plan tied to speeding up the development of the “Ring of Fire”, a mineral deposit in northern Ontario rich in the materials used in EV batteries. To help facilitate such development, the government is proposing a variety of land use planning and other legislative changes, including—most significantly—amendments to the Far North Act recently introduced as part of the Build Ontario Act (Budget Measures), 2021 (Bill 43). Among other things, Bill 43 proposes to amend the Far North Act to enhance economic development in Northern Ontario and to foster joint land use planning between the Ontario government and certain First Nations1. The proposed amendments are part of the “Building Ontario” strategy announced in the Province’s recent 2021 Fall Statement.
What you need to know
The Ontario government has proposed amendments to the Far North Act to reduce perceived barriers to economic development while maintaining joint land-use planning with certain First Nations.
One of the commitments in Ontario’s 2021 Fall Statement includes “Building the Ring of Fire” in order to foster economic development.
In addition to the land use planning contemplated in the Far North Act, other assessments are being carried out in the area2. These processes include a federal regional impact assessment and federal and provincial impact/environmental assessments of two all-season road projects connecting the Marten Falls and Webequie First Nations communities to existing roads and to proposed mine development and exploration areas that are part of the Ring of Fire.
The Far North Act and Bill 43
The Far North Act was enacted in 2010 and provides a framework for the creation, implementation and coordination of community-based land-use plans through a joint process between First Nations in the region and the Province of Ontario.
Bill 43 proposes to amend the Far North Act to facilitate economic development and to enhance provisions that encourage collaboration between the Province and First Nations. The proposed amendments were recommended by a joint process between Ontario and the Nishnawbe Aski Nation3.
Summary of the amendments
The proposed amendments seek to remove the protection under the Far North Act for 225,000 square kilometers of land. Bill 43 would also remove provisions prohibiting the development of land that does not have a community-based land-use plan in place. The result would be a greater land mass for potential development.
Bill 43 also proposes to amend the current joint Ontario/First Nations advisory body process to provide greater clarity and to encourage participation from First Nations. The proposed amendments would require the Minister responsible for the Far North Act to participate in discussions to develop “Terms of Reference” for a joint body of First Nation and government representatives, when seven or more First Nations indicate support for establishing such a body. The amendments also propose to de-emphasize the advisory functions of the joint body and focus on technical tables, working groups and/or committees to perform specific tasks.
In addition to the proposed amendments discussed above, Bill 43 also proposes to:
enable the First Nations to contribute perspectives on sustainable development, in addition to protection and conservation as currently provided in the Far North Act;
grant the Minister responsible for the Far North Act discretion to determine whether to prepare a strategy to assist in the preparation of land-use plans in the Far North or instead pursue alternative responses; and
extend the timeframe to undertake an amendment to a community-based land use plan from six months to nine months.
The proposed amendments to the Far North Act are intended to enable “the development of all-season roads, electrical transmission projects and mineral development, while maintaining community-based land-use planning”4. The Province has committed close to $1 billion to support the planning and construction of the all-season road network and other projects in the region.
Earlier this year, Ontario released a Framework Discussion Paper on Critical Minerals, which focused on the global increase in demand for “critical minerals” such as nickel, cobalt, chromite, copper, graphite and lithium, used in batteries, hydrogen fuel cells, electronics and other technologies that can help address environmental concerns. The Framework Discussion Paper notes that production of graphite and lithium will need to increase almost 500% by 2050 to meet global demand and that demand for nickel used for EVs is expected to grow globally from 92 kilotonnes in 2020 to 2.6 megatonnes in 2050. According to the Framework Discussion Paper, the Ring of Fire region in Ontario has “multi-generational potential for chromite production and significant production of nickel, gold, copper and platinum” which puts Ontario in a unique position to meet the rising global demand for critical minerals.
As noted, there are currently two all season road projects being proposed in the region: the Marten Falls All-Season Community Access Road project and the Webequie Supply Road project. Both are intended to facilitate year-round movement of supplies, materials and people to enhance infrastructure and economic opportunities for the Marten Falls First Nation and the Webequie First Nation as well as to connect the First Nations to mineral exploration activities and future mining development. Each of the projects is currently undergoing a provincial environmental assessment and a federal impact assessment through a coordinated process. Most recently, the terms of reference for both projects were accepted by Ontario’s Minister of the Environment, Conservation and Parks.
A federal regional assessment has also been initiated. Its stated goal is to “provide information and analysis regarding future developments in the Ring of Fire Area and their potential effects in order to inform and improve impact assessments and other planning and decision-making processes in a way that helps protect the environmental, health, cultural, social and economic conditions of the area while also creating opportunities for sustainable economic development”5. The regional assessment will result in “[r]ecommendations on how to consider, implement or otherwise address the regional assessment outputs in future impact / environmental assessments or other regulatory processes, or through other initiatives by governments”6. The regional assessment is currently in its early stages and terms of reference have not yet been set. Some First Nations have indicated that the assessment should be paused until after the pandemic.
Although the results of the regional federal assessment will be directly relevant, any proposed mine project will still have to go through its own project-specific federal impact assessment, a complex multi-year process that is likely to involve a major public hearing and potentially multiple rounds of litigation afterwards. The provincial government has no legislative control over that process, although it would likely participate in each assessment by appointing one or more members to the Joint Panel that would conduct it. For more information on navigating the new federal impact assessment process, please see Getting projects built under Canada’s new impact assessment regime.
While the Province developed the proposed Far North Act amendments in conjunction with the Nishnawbe Aski Nation and has received support from certain First Nations, not all First Nations in the region are on board with Bill 43 and the development of the Ring of Fire. Earlier this year, three northern Ontario First Nations (Attawapiskat First Nation, Fort Albany First Nation and Neskantaga First Nation) declared a moratorium on all development in the Ring of Fire stemming from concerns that the regional impact assessment being conducted by the federal government on the Ring of Fire area would not be thorough enough and would not be led by First Nations. The Premier of Ontario, Doug Ford, has stated that the government will “do nothing up there without making sure there’s a buy-in from the vast majority of the communities”.
In the Far North Act, the term “First Nation” is defined as a band having one or more reserves set apart for it in the area of Treaty No. 5 or The James Bay Treaty - Treaty No. 9.
In the Far North Act, the term “Far North” is defined as (a) the portion of Ontario that lies north of the land consisting of (i) Woodland Caribou Provincial Park, (ii) the following management units designated under section 7 of the Crown Forest Sustainability Act, 1994 as of May 1, 2009: Red Lake Forest, Trout Lake Forest, Lac Seul Forest and Caribou Forest, (iii) Wabakimi Provincial Park, and (iv) the following management units designated under section 7 of the Crown Forest Sustainability Act, 1994 as of May 1, 2009: Ogoki Forest, Kenogami Forest, Hearst Forest, Gordon Cosens Forest and Cochrane-Moose River, or (b) the area, if any, that is set out in the regulations made under the Far North Act and that describes the area described in clause (a) more specifically.
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This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
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