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Ontario urged to bring First Nations into Hydro One negotiation

|Written By David Dias

The government of Kathleen Wynne is being urged to move quickly to negotiate with First Nations who may be impaired by the semi-privatization of Hydro One — or risk legal action that would stymie the $15-billion deal and lead potentially to years of delay.

An injunction barring further sales processes, or a judicial review, may be in order if the government won’t negotiate, says Alex Monem.
The issue was first raised in an article published this week in the Toronto Star, in which Chiefs of Ontario leader Isadore Day criticizes the government for neglecting to consult with First Nations despite the fact many of Hydro One’s transmission lines run through aboriginal reserves.

On July 3, the province passed an omnibus bill that frees the Crown corporation from numerous regulatory obligations and provides for the sale of 60 per cent of assets over the course of multiple public offerings.

Alex Monem, a partner at Pape Salter Teillet LLP, which represents First Nations affected by the decision, says no legal action has yet been taken, but an injunction barring further sales processes, or perhaps a judicial review, may be in order if the government refuses to negotiate.

“I think there is probably enough here, in law and in facts, that a credible injunction action can be brought, and it will obviously cause delays and problems for the privatization efforts,” he says. “So I think it would be very prudent for them to take a pause and engage in one or a number of processes to attempt to resolve this issue.”

Monem says it’s surprising that First Nations groups were not brought to the negotiating table earlier on, given the social policy considerations laid out in the April report by former Toronto-Dominion CEO Ed Clark, who advised the province on the sale.

“We know that the government was sensitive to certain issues, like the issues of the workers and the unions, and that specific reference was made in Clark’s final report that these issues would have to be resolved prior to any concrete steps being taken, so Ontario clearly had its mind turned to broader policy issues and broader stakeholder issues.”

Monem says First Nations groups are likely worried that policies put in place by Hydro One to engage with local aboriginal groups — whether it comes to crafting joint partnerships or shaping environmental policies — will be scrapped under private corporate ownership.

“In a new Hydro One that has significant private ownership, it’s a real open question about what will happen to the past grievance policies or any policy that has broader social policy objectives.”

“I suspect that aboriginal communities would seek [an ownership stake and representation] along with other things to give them confidence that, in the privatized Hydro One world, past issues and future developments would be dealt with in a way that are sensitive, respectful and accommodating of their rights and interests.”

The issue is scheduled to be raised again in an economic development meeting between government officials and the Union of Ontario Indians in Thunder Bay later this month.

Monem, however, suggests while it may be politically expedient to attempt to consult through a collective aboriginal body, such as the union or the Chiefs of Ontario, such collective consultation will do little to resolve concerns for particular First Nations communities.

“That may not address all the issues,” he says. “There will be a number of communities, both Métis and First Nations, that believe they have specific issues that will not be fully addressed through a collective consultation process. So even in circumstances where Ontario takes the most direct path forward now, they might find that it will not satisfy all legitimate interests and they may not have backed themselves out of the problem that they have today.”


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