Reconciliation in Ontario’s Land Use Planning: Understanding the Duty to Consult and Accommodate in Ontario

Planners play the role of informal mediators at the systems level often with little support in aligning between diverse interests and increasing responsibilities. Municipalities deliver services that profoundly impact daily life, including land use planning and development services. As part of this work, municipalities have a responsibility to uphold the rights of Indigenous Peoples and take steps to redress the socio-economic impacts of colonization by meaningfully advancing reconciliation and improving relationships between neighbours. The Association of Municipalities of Ontario’s Reconciliation Action Plan recognizes that municipalities in Ontario share enduring relationships with Indigenous Peoples and that all municipalities are situated on the traditional territories of First Nations and within Treaty areas.

While municipalities do not hold the constitutional Duty to Consult, in Ontario the Province has delegated the procedural aspects of consultation to municipalities through land-use planning legislation and policy. As a result, municipal planning decisions form part of the Crown’s consultation process and must support meaningful and timely Indigenous engagement. Courts have consistently held that inadequate or late consultation can result in approvals being overturned or planning decisions being set aside, including in Squamish Nation v. British Columbia (2014) and Saugeen First Nation v. Ontario (2017).

To support you and proponents, resources have been developed as part of the Collaborative Hub Pilot to guide your journeys learning about local Indigenous histories, building relationships with Indigenous Peoples, and working collaboratively to identify goals and priorities for a shared future.

As part of the pilot a guide has been prepared for planners to share with proponents to outline the legal obligations for the Duty to Consult and Accommodate and steps for moving beyond consultation toward meaningful collaboration with the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation – together, the Saugeen Ojibway Nation (“SON”). The following materials are publicly available via Development Consultation | Saugeen Ojibway Nation Environment Office:

• Indigenous Consultation and Accommodation Guide for Land Use Planning in Saugeen Ojibway Nation (SON) Territory designed for proponent’s 
• Maps of Priority Areas for SON
• Consultation Process Flows

The pilot is led by the Shared Path Consultation Initiative (SPCI) in partnership with Saugeen Ojibway Nation Environment Office (SONEO) with funding support from the Ontario Professional Planners Institute (OPPI), the Town of Collingwood, and the Greenbelt Foundation. SON Territory is covered by Treaty 72 and Treaty 45 ½ and encompasses approximately 2 million acres, extending from Tobermory to Goderich in the west, through Arthur, and eastward to Wasaga Beach, and includes the Nottawasaga and Maitland rivers. SON holds constitutionally protected Aboriginal and Treaty rights throughout its Territory, including subsistence and commercial fishing, harvesting, and land-based practices.

Update on the Collaborative Hub Pilot

The vision of the Collaborative Hub Pilot is to honour and uphold inherent and constitutionally protected Aboriginal and treaty rights by integrating these rights into Ontario’s land use planning process which supports the wellbeing and growth of society, culture, and the environment for all in SON Territory.

A virtual onboarding was held for municipal planning staff who engage in the pre-consultation process. During the call instructions were provided on how to access the publicly available resources developed as part of the pilot. Planners are asked to test and track the use of these tools with feedback informing an iterative co-design of standardized processes/tools for engagement, consultation, and accommodation in planning, development, infrastructure, and capital projects.

Through these efforts, we are committed to ensuring land-use planning decisions consider inherent and constitutionally protected First Nation and treaty rights. These include considerations of long-term and cumulative impacts to promote environmental sustainability, uphold cultural integrity, and enhance community well-being for current and future generations.

Legal Framework: Duty to Consult and Accommodate

The Duty to Consult and Accommodate is a constitutional obligation of the Crown (federal, provincial, and territorial) under section 35 of the Constitution Act, 1982 when it contemplates actions that might adversely affect their established or asserted Aboriginal or Treaty rights.
It is triggered when:

1. The Crown is contemplating a decision or action;
2. There is a known or asserted Aboriginal or Treaty right; and
3. The decision may adversely affect that right.

The depth of consultation is proportionate to:

• The strength of the asserted or established right or title; and
• The seriousness of the potential adverse impact
  (Haida Nation v. British Columbia, 2004 SCC 73).

Consultation is intended to prevent unjustified infringement of Aboriginal and Treaty rights and generally requires early notice, information sharing, dialogue, and, where appropriate, accommodation measures to avoid, minimize, or offset impacts. Where Aboriginal title is established, Indigenous consent is required (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).

Potential adverse impacts include effects on:

• Hunting, fishing, trapping, and gathering;
• Cultural and spiritual practices;
• Archaeological sites, artifacts, and cultural heritage resources; and
• Indigenous self-determination and governance.

Honour of the Crown

The Honour of the Crown underpins all Crown-Indigenous relations and requires governments to act honourably and in good faith from the assertion of sovereignty through treaty implementation and consultation processes. Where consultation is required, all parties are expected to participate in good faith, regardless of outcome.

UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

UNDRIP is law in Canada and provides the national framework for reconciliation. It affirms Indigenous Peoples’ rights to:

• Self-determination;
• Control over lands, territories, and resources; and
• Free, Prior, and Informed Consent (FPIC) for projects affecting their lands.

Articles 26, 32, and 34 emphasize legal recognition of Indigenous lands, Indigenous authority over land-use priorities, and consent obtained in good faith through Indigenous representative institutions.

Ontario Provincial Planning Statement (2024)

The Ontario Provincial Planning Statement (2024) requires:

• Early and meaningful Indigenous engagement;
• Consideration of Indigenous knowledge and perspectives; and
• Planning decisions consistent with the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms, the recognition and affirmation of existing Aboriginal and Treaty Rights in section 35 of the Constitution Act, 1982, as well as guarantees under Section 25 of the Constitution Act, 1982 that Charter rights and freedoms cannot be used to “abrogate” or “derogate” from any Indigenous rights. 

Specific provisions require early engagement when identifying and managing archaeological resources, cultural heritage landscapes, and land-use decisions that may affect the exercise of Aboriginal or Treaty rights.

Key Takeaway

Early, meaningful Indigenous engagement is both a legal requirement and a planning best practice. In SON Territory, proponents and planning authorities must go beyond minimum legal thresholds and align with SON’s principles of respect, good-faith engagement, and Free, Prior, and Informed Consent (FPIC) – further defined in the “Indigenous Consultation and Accommodation Guide for Land Use Planning in Saugeen Ojibway Nation (SON) Territory”. Failure to do so creates significant legal, procedural, and reputational risk and undermines reconciliation objectives.