Ontario failed duty to consult First Nations on Hydro One sale, chief says

Publicly owned company a “main vehicle” for economic development on First Nations territory, and a potential source of wealth and jobs.

Thestar.com
Aug. 18, 2015
By Sara Mojtehedzadeh

First Nations have been almost completely excluded from the decision to sell Hydro One - even though the sale directly affects aboriginal territories and could dramatically affect their economic and environmental fortunes, according to Chiefs of Ontario leader Isadore Day.

In an exclusive interview with the Star, Chief Day said he believes the Ontario government should have engaged in “extensive consultation” with First Nations governments about the semi-privatization of the company, which has numerous transmission and distribution lines running through First Nations’ territory.

“There was virtually nothing leading up to (the sale), and we know the transmittal of that sale has begun through legislation,” he said, referring to the June 3 budget bill that approved the sale of 60 per cent of Hydro One.

“There was a very big opportunity and responsibility from the Ontario government that just didn’t occur.”

Governments in Canada have a constitutional duty to consult with First Nations communities when they believe a decision will affect aboriginal land and rights.

“The law is relatively clear on this. If government plans to take any action that impacts rights or claims it knows about, the duty (to consult) is triggered,” said Alex Monem, a partner at Pape Salter Teillet LLP, which represents numerous First Nations affected by the decision.

In its century-long history, Hydro One (previously Ontario Hydro) projects have caused serious disruption on First Nations territories, according to Monem. But more recently, the government-owned corporation has sought to tackle those “legacy issues” by implementing a strict consultation and grievance process for First Nations communities.

It has also formed groundbreaking partnerships with aboriginal communities for infrastructure projects, which are a significant source of economic development and wealth-building for First Nations people. One example is the Saugeen Ojibway Nation’s 2013 acquisition of a 30 per cent stake in the power line running from the Bruce nuclear power station to Milton.

“The Ontario government has used its wholly owned corporations as the main vehicle for reconciling its bad history with First Nations,” Monem said. “Now they’re going to divest themselves of that vehicle.”

Without meaningful consultation with aboriginal leadership going forward, legal experts also say the Wynne government could face serious problems in selling off Hydro One assets.

Paul Seaman, an associate with the prominent law firm Gowlings, said First Nations communities could challenge the decision in court - possibly demanding an injunction to halt proceedings until aboriginal concerns are addressed.

A spokesperson for Hydro One said queries related to its impending sale should be directed to the government. In an emailed statement, Minister of Energy Bob Chiarelli’s spokesperson Dan Moulton said that “engaging in meaningful discussions with First Nations leaders is a top priority for our government.”

“Minister Chiarelli has regularly met with various representatives of Ontario's First Nations and Metis communities,” he said.

In response to subsequent questions from the Star asking whether the ministry believed the Hydro One sale triggered its duty to consult, a spokesperson said that the government “considers (First Nations’) inclusion in this conversation a vital part of the process.”

The government’s final report on the semi-privatization of Hydro One, published in April, makes no mention of the impact on aboriginal rights.

But according to lawyer Seaman there is both a moral and strategic imperative driving the duty to consult - reducing the risk of protest or legal action scuttling major decisions.

“It’s the modern reality, and it’s good practice in government and industry to embrace it,” he said. “It helps achieve certainty in what you’re about to do.”

The Ministry of Energy’s Moulton said he expected Hydro One’s partial sale to be raised at an economic development meeting between government officials and the Union of Ontario Indians in Thunder Bay, scheduled for the end of August.