Indigenous Consultation and the Aggregate Licensing Process The duty to consult and to accommodate indigenous peoples can arise at any time in the aggregate licensing process. The failure to properly address the duty will not only cost time and money, but it will also damage relationships with indigenous communities, lead to a rejected licence application or the loss of an already-issued licence in circumstances in which the court finds that the duty has not been fulfilled (Saugeen First Nation v Ontario (MNRF), 2017 ONSC 3456). Its source and scope The duty to consult and to accommodate is part of the fundamental law of Canada, imposed by s.35 (l) the Constitution. It overrides federal as well as provincial law and affects private rights in the property, including land on which pits and quarries operate or on which they are intended to be operated. The duty arises “when the Crown has the knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.”[1] The threshold is relatively low; a credible claim suffices. Once triggered, the scope of the duty is on a spectrum and depends on the nature and strength of the rights in question and the seriousness of the potential impact on them. On the low end, the duty may include notice to the affected communities and information about the pit or quarry in question. At the higher end, the communities could be part of the decision-making process. What it means There is no duty to come to an agreement nor do indigenous communities have a veto. That said, the Crown must act honourably and consultation must be meaningful, not simply perfunctory. Technically, the duty is not imposed on aggregate operators although, practically speaking, the Crown can delegate “procedural” aspects of it to others. In this respect, an operator may be required to deal directly with the relevant communities to notify them of the proposed project, provide them with information, fund some aspect of their participation in consultation, and modify the project to accommodate any concerns. It is, however, the Crown, not the operator, which has the duty and must assess whether it has been fulfilled, subject, of course, to a constitutional review by a court, if challenged. What happens if the consultation is insufficient? Everything can go wrong: a proposed project can be derailed, delayed, and, in some cases, effectively be stopped in its tracks. Dealing with it properly is, effectively, not only the right thing to do, but it is the cost of doing business. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawSeptember 10, 2020September 29, 2020
Ontario Stone, Sand & Gravel Association Expresses Support For Aggregate Approval Process The Ontario Stone, Sand & Gravel Association (“OSSGA”) has recently written to the Honourable Doug Ford, premier of Ontario, to state that the Premier should not interfere in the licensing and approval process for pits and quarries in the Province [1]. OSSGA did so in response to alarming comments made by the premier about preventing, at any cost, the licensing of a quarry in the Milton area. Comments here. The aggregate industry is vital to Ontario. The stone, sand and gravel which it supplies are used to build homes, schools, libraries, colleges, universities, hospitals, fire and police stations, as well as to construct roads, highways, water and sewer infrastructure, public transportation systems, workplaces, recreational and social centres, arenas and stadiums. We all contribute to the need for aggregates and we all benefit from the activities of the industry which extracts them. Aggregates are to be extracted as close to market as possible to ensure an economical supply of material with shorter truck trips. This also significantly lowers overall emissions. The industry creates jobs, generates vital revenue for local governments and operates under strict regulations. To balance the interests of all stakeholders and to protect the public, the licensing and operation of pits and quarries are subject to the requirements of the Aggregate Resources Act, the Planning Act and 23 other pieces of legislation and hundreds of regulations. The process also involves consultation with First Nations, the scrutiny of provincial government ministries, the review of local planning authorities and governments, the examination of the community, and, often, a hearing in front of the Local Planning Appeal Tribunal. The process is a careful, deliberative, and rigorous one. It takes years and a wide array of technical and expert reports, including environmental studies, to complete. At the end of the life of a pit or quarry, the land must be rehabilitated, which adds green space to the Province. The aggregate licensing system in Ontario represents a solid, safe and sustainable approach to bringing vital material to the market. It should not be undermined by political considerations. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction Law, Planning and Development LawAugust 10, 2020July 5, 2023
The Future of Canada Revenue Agency Enforcement Activities As noted in an earlier blog post, we discussed the joint CBC / Toronto Star investigation and subsequent release of the Panama Papers. In a subsequent Toronto Star article, the CRA states its intention to act more aggressively in pursuing those who commit tax fraud and tax evasion. Notable in its new aggressive stance, the CRA states in the Toronto Star article that those suspected of “aggressive tax avoidance or tax evasion” will be subject to more “severe consequences”, including “a lot more criminal investigations” and the fingerprinting of anyone charged with tax evasion. In Budget 2016, the Federal Government announced almost $500 million in additional funds to the CRA to assist it in its enforcement efforts. This money appears to have been immediately put to use by the CRA. The Toronto Star notes that “230 people have been added to the compliance department and lawyers are now being embedded in investigating teams”. The 2017 Federal Budget pledged an additional $1 billion to assist the CRA in its tax compliance efforts. The funds are being earmarked for increased investigative work, particularly in the “underground” economy, including construction and hospitality sectors, as well as to continue to develop computer programs, systems and algorithms to monitor and track high-risk potentially abusive transactions, such as international electronic funds transfers. Future targets include high net worth individuals who may utilize tax loopholes to gain what the CRA perceives as unfair tax advantages. The CRA has updated its website to prominently feature its efforts in cracking down on international tax evasion and tax avoidance. As part of the CRA’s efforts, they note that they have many tools at their disposal to combat tax evasion including: Reviewing Electronic Funds Transfers over $10,000 as they cross borders to and from Canada and studying specific offshore locations and certain financial institutions. Collaborating and sharing information with international partners such as the OECD’s Forum on Tax Administration and the Joint International Taskforce on Shared Intelligence and Collaboration; Identifying promoters of aggressive tax schemes; Identifying international non-compliance and abuses through its treaty networks; Creation of the Offshore Compliance Advisory Committee (OCAC), an independent advisory committee of experts which, on December 5, 2016, presented the CRA with the OCAC’s report on the Voluntary Disclosures Program (VDP), with its recommendations to improve and enhance the VDP program; Combatting aggressive international tax avoidance strategies of multinational companies through the CRA’s participation in the Base Erosion and Profit Shifting (BEPS) Action Plan and the Multilateral Competent Authority Agreement; Encouraging Canadians to report tax avoidance through the Offshore Tax Informant Program; and Encouraging Canadians to use the VDP to voluntarily correct their tax reporting by correcting a previously filed return or reporting otherwise unreported income or property. We can help. Although most Canadian taxpayers are compliant, sometimes errors or omissions occur. It is still possible to take advantage of the CRA’s VDP to voluntarily report omitted or incorrectly reported tax filings while potentially avoiding penalties. Tax planning opportunities are available to assist Canadian taxpayers in optimizing their affairs to obtain a favourable tax outcome. Contact DSF’s Tax Planning Group for advice and assistance. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawMarch 30, 2017June 19, 2020
Paying Attention to Detail in Planning Policy A new report from the Neptis Foundation is raising questions about Ontario’s planning and development policy for Greater Golden Horseshoe. The report states that 26,100 acres of green land, never intended for development, are being built on in contravention to the goals of the 2006 Provincial policy, Growth Plan for the Greater Golden Horseshoe (“GPGGH”). Saving money, helping the environment, and fostering more connected and better-funded communities – all were aims of GPGGH and its efforts to reduce sprawl and preserve green space in the Greater Golden Horseshoe. The GPGGH set out to ensure that at least 40% of new development in small municipalities in the Greater Golden Horseshoe is only built on lands allocated for density with pre-existing infrastructure. The GPGGH, which guides Ontario’s residential strategy for development and growth, draws a distinction between urban settlements, with full access to water and sewer systems, and isolated settlements that depend on communal wells and septic systems. The GPGGH made it a priority to concentrate growth in urban areas while limiting growth to isolated settlements without pre-existing infrastructure. The latest Neptis Foundation report demonstrates that due to what appears to be a drafting error, the GPGGH along with the 2008 Built Boundary document, has resulted in unintended consequences. As stated in the Neptis Foundation report: “The definition of the Designated Greenfield Area in the 2006 Growth Plan states, “Where a settlement area does not have a built boundary, the entire settlement area is considered designated greenfield area.” Meanwhile, Section 3 of the 2008 Built Boundary document states, “The built boundary consists of delineated and undelineated built-up areas.” This second definition allows for any development anywhere in a rural settlement, or UBUA [Undeliniated Build-Up Areas], to be counted as intensification, a stark contradiction of the definition in the 2006 Growth Plan.” Municipalities understood this to allow development anywhere in their jurisdiction under the criteria of intensification. In Simcoe County, for example, 65% of planned intensification took place in undelineated areas. As these new communities continue to grow, resources will need to be added such as community centres, schools etc., which will assist a limited number of people and divert resources away from the larger population. The Province wanted to increase development in areas that have room for density. This serves the purpose of establishing concentrated communities to better support both business initiatives in the area, while also facilitating greater access to transit, and community programs. A focus on denser urban development compared to rural growth is also substantially cheaper, as it is very costly to provide water and sanitation equipment to isolated settlements, far away from urban communities. Since the Neptis Foundation’s report, the Provincial government stated that they are aware of the issue, are in the process of reviewing the GPGGH, and further amendments are expected. If you need assistance navigating Ontario’s provincial policies regarding development and growth, are considering developing a piece of land, or have concerns about a development near you, Devry Smith Frank LLP’s Planning and Development Group can provide you with the guidance and support that you require. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawMarch 27, 2017June 18, 2020