If seven Indian groups win court battle with province over consultation process, critics say it could open a Pandora's box of negotiations across Ontario
Little, it seems, stands in the way of southern Ontario's booming development industry.
But the shards and fragments of centuries-old Indian artifacts, village sites and burial grounds lying just below the earth's surface could trip up more than a few bulldozers.
An Ontario court is considering whether the province should have consulted more with some native groups in a planned land swap. If the court rules against the province, it could thwart "anybody dealing with land," said lawyer David Donnelly, who represents the Huron-Wendat First Nation. The band, which occupied most of the area around Toronto about 400 years ago, is now based near Quebec City.
In essence, it could force those involved in major land transactions to engage in protracted consultations with a wide variety of native groups.
"If they open the door to this, then we are into a very vast, broad and almost excessively onerous responsibility on both private and public proponents," Donnelly said this week.
The case involves a 2002 provincial land swap aimed at stopping subdivisions on the Oak Ridges moraine. The controversial deal, which gave developers provincially owned land in Pickering in exchange for environmentally sensitive property in Richmond Hill, was supposed to be completed in March 2005.
But a provincial development plan for the Pickering lands, known as Seaton, was not approved until last spring and an environmental assessment of the land exchange wasn't completed until July.
Just as the province was preparing to finalize the transaction, Indian activist David Sanford, along with developers opposed to the deal, appealed the environmental assessment, arguing that native groups outside the Huron-Wendat had not been properly consulted.
Since then, seven other Indian bands have joined forces to halt the transaction and last week spent four days in Divisional Court arguing that the province had both a statutory and a constitutional duty to consult them during the process.
The three-judge panel has reserved its decision until February.
"We think this case shows that government really needs to get its act together when it comes to First Nations consultation," said lawyer Nicholas Tibollo.
A government spokesman was reluctant to speculate on the outcome of the case.
Southern Ontario was home to Indians for centuries before and during European colonization, and the soil is filled with artifacts, former village sites and burial grounds, said Donnelly. But few efforts have been made until recently to preserve this cultural heritage when it was threatened by development.
Since 2004, when a justice of the peace ruled the province failed to adequately consult Indians on the sale of land to the Roman Catholic Church in Markham, representatives of the three major First Nations groups with roots in southern Ontario have been working on a streamlined consultation process with government.
The Huron-Wendat, Anishinabe and Iroquois have made significant progress in Seaton, Donnelly said. "Historic" agreements to preserve and honour Huron-Wendat village sites in the area could be lost if the courts send everyone back to the drawing board again, he added. And that's why the Indians' court challenge, supported by developers who oppose the Seaton land swap, is so frustrating, Donnelly said.
Lawyers representing the seven opposing bands say the streamlined consultation process has no official status among Ontario Indians or government, and it didn't include them
Aboriginal law expert Joseph Magnet, acting for six of the bands, said government notices sent to four of his clients were never received and that reported phone calls and meetings to discuss the Seaton land transfer with a government consultant are "pure fiction."
"The facts are that none of my clients were ever contacted," he told the court.