Consultation process pits First Nation against First Nation in northern Ontario

Two First Nations in northern Ontario are facing off in a confrontation set up by the province's environmental assessment regime.

Webequie First Nation is seeking response to the terms of reference it submitted to the Ministry of Environment, Conservation and Parks on August 14, for a proposed107-kilometre supply road to a mineral deposit in the Ring of Fire.

The terms of reference (ToR) is the framework for the environmental assessment for the road before it is built. Provincial regulations require consultation on thatframeworkwith other First Nations whose traditional territory may be impacted by the project and who indicate they want to be consulted.

Neighbouring Neskantaga First Nation wants to be consulted, but its chief says they cannot meaningfully do so during the pandemic.

"We find it irresponsible for the proponent [Webequie First Nation] to submit its ToR for the project during the COVID pandemic," Chief Chris Moonais wrote in a letter to the Ministry of Environment, Conservation and Parks, dated Sept. 23 and obtained by CBC News.

"The current circumstances do not offer a safe environment for our community to participate in a meaningful review of the project," Moonias wrote. "We cannot hold proper meetings in our community, consult with our technical advisors face-to-face and it is currently impossible for us to travel to Thunder Bay to engage with our members, elders and knowledge holders who live off reserve and in long term care homes."

Community participation is key to Neskantaga's decision-making process, the chief said.

But moving ahead with the project is key to Webequie being able to access the proposed mine development and mineral exploration activities, according to the notice of submission of terms of reference.

"Given that most of the remote First Nations have put in place COVID-19 protocols and are beginning to lift travel restrictions, the WSR [Webequie Supply Road] project team submitted the proposed ToR," Webequie consultant Michael Fox wrote in a letter to Chief Moonias, dated August 28 and obtained by CBC News.

The letter outlines "engagement options" including an open house with live-streaming, online focus groups, radio information sessions, community sessions or drop-in sessions at "a safe location" to discuss the terms of reference with the project team.

But consultation remains a distraction from the urgent work and planning needed to get through the fall and winter of the pandemic, Moonias said, especially after new cases of COVID-19 in remote First Nations in the area were reported in September.

For its part the Ministry of Environment said it has doubled the typical comment period for a terms of reference to 60 days "to provide more time and greater opportunity for communities to review the document," according to spokesperson Gary Wheeler.

The comment period ends Oct. 13.

Wheeler said the ministry has received the letter from Neskantaga and is reviewing how best to respond.

"The ministry encourages communities and interested persons to reach out to the proponent, Webequie First Nation, for additional project-specific consultation approaches," Wheeler said. "Ontario is listening to First Nations concerns and will continue to re-evaluate approaches as the situation evolves."

Meanwhile, Ontario faces a lawsuit from First Nations over changes to its environmental assessment regime that were introduced as part of an omnibus bill called the COVID-19 Economic Recovery Act.

The court challenge argues that the new regime violates First Nations constitutionally protected Aboriginal and Treaty rights by removing many types of projects from automatically being subject to an environmental assessment.