Ontario ignores its own advice, presses First Nations to consult on Ring of Fire road during COVID-19

An 'operational guide' from Ontario's Ministry of Indigenous Affairs tells other ministries to delay or defer non-urgent projects that impact First Nations treaty rights during the pandemic, but at least one mining-related project is moving ahead.

On Oct. 13, the consultation period for part of the environmental assessment for a supply road in the Ring of Fire mineral development region in northern Ontario was set to close, despite concerns raised by Neskantaga First Nation. It told the provincial government in September that it could not engage in the process in a meaningful way because of the pandemic.

Advancing resource extraction projects during a pandemic is an example of governments and industry using health crisis in First Nations to their advantage, according to Riley Yesno, a research fellow at the Yellowhead Institute.

"This weaponization of the health crisis that is happening in these communities and the weaponization of this terrible thing that's going on is a way to get their desired projects put through," said Yesno, who is a member of Eabametoong First Nation, which is also impacted by the Ring of Fire development.

During his 2018 election campaign, Premier Doug Ford said "if I have to hop on that bulldozer myself... we're going to start building the roads to get to the mining" in the Ring of Fire.

CBC News obtained the internal government document titled, Consultation with Indigenous Peoples in COVID-19 Context, and dated May 2020.

In it, the Ministry of Indigenous Affairs warned other ministries that "given their other priorities during the COVID-19 emergency, Aboriginal communities may not have the ability to participate in consultation at this time."

Ontario has a constitutional duty to consult whenever it contemplates or initiates actions that may adversely affect treaty rights. (The term 'Aboriginal' is used in the constitution, so the Ministry of Indigenous Affairs said it used that language in the document.)

Yesno said years of neglect and under-funding have created the current situation in First Nations where leaders must devote much of their attention to protecting the health of residents who don't have the same access to health care, clean water or internet connectivity as other Canadians. 

"Indigenous people have long been in this position of trying to deal with tuberculosis, or small pox... so our communities have always been in this state of hyper vigilance and vying to even just build up our capacity," she said.

"While they don't want to be overburdened with other things while they're suffering, I don't know one [First Nation] community leader who would say, I thereby forfeit my right to proper consultation to free, prior and informed consent," she added.

In it's operational guide, the Ministry of Indigenous Affairs advised, "where Aboriginal communities indicate that they are unable to participate in consultation, and decisions are not urgent and can be delayed, ministries or proponents should defer those decisions until appropriate consultation can take place."

Land use options 'permanently altered'

In a letter to the environment ministry's environmental assessment branch, Neskantaga First Nation said it has not received an adequate explanation from the province or the proponent of the supply road as to why the consultation process needed to go ahead during the pandemic.

"Neskantaga's land use options will be permanently altered by the project as the Webequie Supply Road will bisect Neskantaga's lands and change forever the options for ensuring the continued practice of Neskantaga's way of life on Neskantaga territory," said the letter, dated Oct. 13.

A spokesperson for the Ministry of Indigenous Affairs said it's advice on consultation "is general guidance only. Each situation is unique and must be considered in light of the particular facts and circumstances."

The Ministry of the Environment, Conservation and Parks made the decision to proceed with the consultation on the terms of reference for the environmental assessement for the Webequie Supply Road project. A ministry spokesperson told CBC News it is listening to First Nations concerns and "continues to re-evaluate approaches as the situation evolves."

In its letter to the ministry, Neskantaga said once health conditions permit, it expects to be fully integrated into all of the environmental assessment decision-making on the supply road, as well as in a parallel process it said is required to address the cumulative effects of the larger mineral development.

A lack of proper consultation, coupled with the continuation of development on First Nations territory, ends up hurting everyone, Yesno said.

"These are the things that make it hard to proceed in a good way going forward."