The Spirit of the Treaties and Thundering Waters Forest

Tkake:thos Okwali

Tetwa’s^tha’

May 4th, 2018

Planning Division &
City Council

City of Niagara Falls

4310 Queen Street, PO Box 1023

Niagara Falls, Ontario, L2E 6X5

Dear City Officials,

I wish to express my opposition to the Riverfront Community Official Plan Amendment as currently proposed as an act of bad faith that ignores Canada’s obligation to act as good faith Treaty partners. I am mindful while making these comments that it is challenging to find a route to fulfill the Crown’s Duty to Consult through the means available to the City. While my opposition includes these grounds my opposition also extends to concerns about the OPA outside of these concerns. I will outline why I think that this OPA must be opposed at this time in this letter.

The Duty to Consult has not been fulfilled:

My perspective is guided by the letter of Infringement from August of 2016 issued by the Haudenosaunee Development Institute and the letter issuing a warning from the Haudenosaunee Environmental Task Force to Justin Trudeau on March 8th of 2017, both of which are attached. These letters have been delivered to the planning department in and around the dates specified.

The letters were drafted in reference to the Thundering Waters Secondary Plan amendment but the core elements of the current OPA still do not address the concerns in the letters. Because the concerns in the letters have not been addressed the opposition to the project stated in each letter is applicable to the OPA in its current form.

All of the descendants of Katsistyawaks of the Ow^tsa’tha family of the On^yote:aka are united in their opposition to this OPA. The Men’s Fire of Six Nations expressed opposition. Several local Indigenous Niagara families maintain their opposition. I have been in contact with the Mississaugas of the New Credit and Six Nations of the Grand River who have not been properly contacted for input. The Ow^tsa’tha family letter issued is attached.

I do want to commend Kenneth L Beaman and the City Planning department for personally addressing myself and other community members who had expressed concern about Treaty Rights in a courteous and professional manner. I have no doubt that the Planning and Legal departments have tried their best to address these requests within their abilities. The concerns still stand unresolved however.

I might highlight some portions of the letter of Infringement to show why the concerns still stand:
“At this time, and on a preliminary basis, we confirm that the Project will interfere, impair, and infringe upon Haudenosaunee title, rights and interests as guaranteed and recognized by the Nanfan Treaty of 1701, the position of Crown via the Lords of Trade and Plantations as to Haudenosaunee title as recognized and affirmed by the Mitchell map of 1755, the August Treaty of 1764 and the Treaty of Fort Stanwix of 1768…

“As we have indicated, the Project will impair treaty rights and at a minimum will have the affect of extinguishing harvesting rights on the subject lands.  The Supreme Court of Canada has recently clarified that treaty rights may only be impaired and/or infringed where consent has been provided  and/or the infringement has been justified.  We confirm that the justification process involves the discharge of fiduciary duties and as discussed fiduciary duties may not be delegated without the consent of the fiduciary.  We confirm that consent as to the delegation of fiduciary duties has not occurred.

“We also confirm our discussion in relation to the consultation and accommodation framework that was first discussed by the Supreme Court of Canada in the Haida and Taku decisions.  We have expressly stated that this is an inappropriate approach as those cases dealt with asserted but unproven rights whereas the rights in question on this matter are established and recognized in Canadian law by section 35 of the Constitution Act, 1982.   If we did assume the applicability of the consultation and accommodation framework (which is expressly denied) then the delegation from Ontario to Niagara Falls would only be lawful where Ontario undertook a prima facie assessment of the rights and interests which would then structure the nature and scope of consultation.   As you indicated it does not appear that any such assessment has been undertaken by Ontario and/or Niagara Falls and as such the delegation is unlawful on this basis.

“Going forward we would ask that entirety of the process for advancing the amendments to the Official Plan be placed on hold until such time as Ontario has discharged its obligations.  As discussed, if Niagara Falls proceeds it may suggest bad faith and a bias as to outcomes… 

“Please also accept this correspondence as official opposition to the Project for the purposes of section 17 of the Planning Act.”

– Haudenosaunee Development Institute letter of Infringement – August 20th, 2016

I have the utmost respect for City Staff and Council but a realistic gap between the kind of Treaty partner Canada wants to be versus the kind of Treaty partner Canada is exists. I am sympathetic to the perspective that the City has neither the mandate nor the capacity to properly address these concerns yet I maintain hope that asking, acting, and thinking kindly can help perpetuate the ways of thankfulness. Further to that, sooner or later the discrepancies between the principles of the Treaty agreements and the ways of growth must be resolved. I am hopeful that that path exists within the frameworks that generations of leaders have crafted into your most current laws.

The Spirit of the Treaty Agreements Could be met through Good Stewardship

We have important covenants like the Dish with One Spoon, the Two Row Wampum, the Friendship Belts and other wampum belts that guide us and bind our will towards virtue. You have a Federal Constitution, a Provincial Planning Act, and the City’s Official Plan to help bind your judgement and guide your decency.

I would hope that the cautionary words of Henry Lickers speaking on behalf of the Haudenosaunee Environmental Task Force will shape your thinking on this important decision to be made. Here is an excerpt:

“They say the development of the forest part will not impact the wetlands. We know this not to be true because this land is all intricate, complex and woven together. They cannot be separated. One is dependent on the other just like humans are dependent on nature. All the environmental studies do not take into consideration the history of the land and the cultural resources it possesses…

“All of the wildlife is important to the Haudenosaunee, over the past years we have seen many of our brothers and sisters disappear from this earth and have mourned their passing. Canada and the United States have enacted “Species at Risk” legislation to protect various species that are endangered of extinction. This area has many such species…we remind you of your obligation under the Two Row treaty that we have with you to warn you when we see danger in the river life that that could harm us both. Your obligations under your own legislation must be clear to you.

HETF March 13th, 2017

The obligation to follow the Planning Act and the Official Plan of Niagara Falls are the guidelines I tried to use to understand how Council should proceed. My understanding is that this decision should follow the Cities Official Plan which follows the principles of the Provincial Policy Statement as set by the Provincial Planning Act. The Act aims to balance the following interests:

  • the efficient use and management of land and infrastructure
  • protection of the environment and resources
  • ensuring appropriate opportunities for employment and residential development, including support for a mix of uses

What makes this complicated is that the last two points can come into conflict with one another.

It is important to create opportunities like the one promised to the developer who hopes to invest in our community. It is also important to protect and preserve environmental features like wetlands, wildlife habitat, and core heritage features. My understanding is that the ladder argument carries more weight in this instance if the Official Plan and the PPS are being followed.

Special Policy Area 56 in the Official Plan of the City of Niagara Falls was set as an area for growth within the urban boundary. This was set several decades ago though when the science on wetland protection wasn’t as advanced as it is now. I would suggest that if the planners in the 70’s had the knowledge we have now about the ecological richness of this area they might not have set it for growth and development.

When the Ministry of Natural Resources and Forestry re-evaluated the area in 2010 they increased the protections in the area after recognizing its value. In 2016 they evaluated an ever further need for protection. I imagine that when Council went on tours of the area as agreed to in August of 2016 that it was easy to see the natural wonder of the environmental features in the wetlands, the meadows, the forests, the thickets and even some of the areas with recent disturbance that are regenerating.

It is being mindful of these studies and your own observations of the area that I hope guide your judgement when considering how to interpret the policy around this area:

  • According the Official Plan a Secondary Plan amendment was to be sought for SPA 56 to develop this area. Currently an exception is being asked for and only an Official Plan Amendment is now being sought. Will this result in less refinement of environmental and residential designations? Will the proper completion of setbacks and linkages to core heritage features be set? Will MNRF recommendations be incorporated properly into the City Plan with an OPA vs. a Secondary Plan Amendment?
  • Amendments are to be granted on the grounds that the proper environmental studies have been completed. Another exception is being asked for as the bat studies have not been completed.
  • Protected species need the strongest possible protection. There are amphibian breeding habitats inside of the OPA boundary. How can this not negatively effect the snapping turtles, spring peepers, chorus frogs, leopard frogs, tree frogs, wood frogs, American toads, blue spotted salamandars, acadian flycathchers and barn swallows?
  • The proponents work indicates that they are seeking re-evaluation of some of the wetlands and environmental features later this summer. This is an indication that the studies are ongoing. An amendment should not be considered until all of the studying is completed.
  • Development on lands adjacent to protected lands shall not be altered “unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions”. If this development proceeds there will be a net loss of ecological function in the core heritage features by virtually eliminating the adjacent Environmental Conservation Areas.
  • The OPA consists of mostly Environmental Conservation Area. Areas that aren’t ECA are actually strictly protected EPA’s in multiple places (see next bullet point). Even the non-ECA areas are host to pollinator meadows that include important plants such as the dense blazing star and milkweed – the only plant that can sustain the monarch butterfly a species of special concern.
  • Environmental Protection Areas are not to be altered. There are multiple wetlands within the proposed boundary. While the proponent seeks to have the wetlands downgraded this has not happened. Both the City Plan and the Provincial Policy indicate that altering an EPA is strictly not allowed.

I do not possess the complete expertise to explore each of these concerns in detail but it seems fair to argue that there are questions not about whether there will or won’t be a negative impact, but rather how extensive the negative impact will be. There are wetlands within the OPA proposal. There are studies yet to be completed. There will be hectares of woodlot to be removed. Even the disturbance areas look beautiful to the common person. The City can stop it by following its own policies and planning guidelines.

The Mayor was well intentioned in seeking ways to advance our community. I commend the project proponent for their patience while the important process of environmental stewardship plays out. I am grateful to live in a city that is clearly working hard to find the balance between preserving natural heritage and attracting the right kinds of development to share our neighbourhoods.

The development is a great idea. This location isn’t ready for this development at this time though.

I urge the City to be mindful of the importance of the timeless principles embodied in the wampum agreements. I think that the way to do that is not to approve this amendment.

Yaw^’kowa,

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