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Forestry - General. Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks)
In Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks) (Div Court, 2022) the Divisional Court canvassed some basics of forestry law in Ontario, including recent amendments:Forest Management in Ontario
[2] Forest management on Crown lands in Ontario is regulated pursuant to the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25 (“CFSA”), regulations made under that Act, and the four regulated manuals mandated under s. 68 of the Act and approved by the Lieutenant Governor in Council (“LGIC”) pursuant to s. 69 of the Act. Section 1 of the Act sets out the purpose of the CFSA and includes an obligation to manage forests to meet environmental as well as other needs:The purposes of this Act are to provide for the sustainability of Crown forests and, in accordance with that objective, to manage Crown forests to meet social, economic and environmental needs of present and future generations. [3] Crown forests are divided into units. Each unit must have a forest management plan, prepared in accordance with the Forest Management Planning Manual, and the plan must be approved by the Minister of Natural Resources and Forestry (“MNRF”). The Crown acknowledges that there is a duty to consult with affected Indigenous communities in the process of creating such plans.
[4] Prior to July 1, 2020, forest management on Crown lands was subject to the EAA. “Declaration orders” can be made pursuant to s. 3.2 of that Act. It permits the Minister of the Environment, Conservation and Parks (“MECP”), subject to the approval of the LGIC, to declare that the EAA or a matter provided for under the EAA, does not apply to a proponent, class of proponents, undertaking, or class of undertakings, subject to conditions in the declaration order.
[5] MNR-75 applied to an “Area of the Undertaking” that included a large part of Ontario. It contained 61 conditions, 34 of which were planning conditions. The MNRF incorporated the planning conditions from MNR-75 into its Forest Management Planning Manual, as required by Condition 61. Those conditions included requirements respecting consultation with Indigenous communities. The remaining “non-planning” conditions were not incorporated into the Manual, but were addressed by MNRF outside the forest management planning process.
[6] With the revocation of MNR-75 and the adoption of O. Reg. 337/20, forest management was exempted from the application of the EAA. However, contrary to what has been said by the applicants, the contents of the Forest Management Planning Manual are legally binding. The Manual cannot be amended unless the MNRF fulfills extensive notice and consultation requirements with respect to the amendments (including notice to the Director of the EA Branch at MECP) and obtains approval of the amendments from the LGIC.
The process leading up to the revocation of MNR-75
[7] In 2018, MNRF began developing a new Forest Sector Strategy for the management of Crown forests. In 2019, it engaged in discussions with the MECP about the EA process, and in July of that year, MNFR requested that MNR-75 be replaced with a new declaration order that would streamline forest management requirements under the EAA. MECP then proposed the exemption of forest management from the EAA in areas of Ontario where MNR-75 applied.
[8] On December 4, 2019, the Minister of MNRF posted a notice on the Environmental Registry of Ontario (“ERO”) of a draft Forest Sector Strategy (“FSS”). The draft had been prepared following roundtables with forestry stakeholders, including Indigenous communities, between November 2018 and May 2019. The draft FSS did not refer to specific changes to the EAA, but mentioned reducing the regulatory burden on forest management.
[9] On December 20, 2019, MECP posted a notice on the ERO about proposed amendments to EAA regulations that would exempt forest management activity in the Area of Undertaking from the EAA. This notice stated that the requirements of MNR-75 would no longer apply to forest management projects.
[10] The same day, MNRF and MECP sent letters to Indigenous communities notifying them of the ERO postings made that day and noted that one posting dealt with MNRF’s EA Requirements for Forest Management on Crown Lands in Ontario. The posting was originally open for comment until February 18, 2020 (60 days), and this was later extended to March 13, 2020 for Indigenous communities, to facilitate their participation in consultation.
[11] Between January 13 and 30, 2020, MECP and MNRF held six regional consultation sessions on the FSS with Indigenous community representatives. Additional meetings were held in January and February with Algonquins of Ontario, several Lake Superior area First Nations, Métis Nation of Ontario, and Red Sky Métis Independent Nation. One hundred and four representatives from 71 Indigenous communities and organizations attended the sessions, including representatives from the applicant Chapleau Cree First Nation. All sessions were a day and a half in length. The revocation of MNR-75 was an issue discussed at the meetings.
[12] After the conclusion of public and Indigenous consultation, ministry staff prepared summaries of the issues raised and the MECP response during the consultation sessions and comment period (see Caselines, B252). For example, at p. 5 of the summary (Caselines, B255), there were explanations given to participants that the Forest Management Planning Manuals “duplicate the planning requirements of the Declaration Order. Since MNRF has incorporated almost all conditions into its forest policy framework the protection of the environment will continue to consider as part as part of forest management planning” (sic).
[13] MECP finalized a summary of the issues and on March 17, 2020 requested that MNRF address the issues raised, including addressing the few conditions from MNR-75 that were not duplicated in existing or contemplated policies.
[14] After considering the comments received during the consultation sessions and MNRF’s responses to the issues raised, MECP determined that the revocation of MNR-75 would not adversely impact Aboriginal or treaty rights. MECP also considered its Statement of Environmental Values (“SEV”) and whether there were any outstanding questions or issues not already addressed during the consultations and concluded there were no outstanding issues.
[15] MECP staff then advised the Minister of MECP to proceed with the revocation of MNR-75. One of the rationales for doing so was that most of the conditions in MNR-75 had already been incorporated into MNRF’s forestry manuals, which are legally binding pursuant to the CFSA. Even though forestry management would be exempt from the EAA, Indigenous groups would continue to have consultation rights pursuant to the CFSA and the forestry manuals.
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