Estate Planning and the First Nations Plan in Ontario - A Primer

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1 PROGRESSIVE CONSERVATIVE PARTY The Progressive Conservative Party (PC) platform is based on Leader Tim Hudak s commitment to create one million jobs in Ontario. Named the Million Jobs Plan and closely mirroring the Million Jobs Act tabled by Mr. Hudak in February 2014, the PC platform rests on 5 primary pillars: Tax and debt reduction; Skilled worker training; Domestic and international trade promotion; Energy price reduction; and Red tape reduction. Throughout these pillars, the PC lays out ways to cut costs to government and tax payers, promote businesses and promote service and sector efficiency. For First Nations, the PC plan to reduce government expenditures and focus reducing business tax burdens may result in on- and off-reserve program, budget and service cuts. The PC platform does not specifically mention First Nations or Aboriginal peoples in Ontario. However, several election promises may have significant effects for First Nations. Below is a breakdown of several election promises, as well as their potential positive and negative effects on First Nations communities: Election Promise Corporate and Personal Tax Reductions Eliminate the College of Trades Analysis The PC platform pledges corporate and personal tax reductions with the aim of creating jobs and boosting the economy. Personal taxes will be reduced once a balanced budget is achieved, expected in Given that income earned on-reserve is not taxed, there is limited benefit to this promise for those living and working on-reserve. Nonetheless, this may result in additional job opportunities for First Nations off-reserve. However, reductions in provincial revenues may affect transfer payments and program funding. The College of Trades is a regulatory body that sets standards for training and certification, and investigates on public safety issues. The College oversees a number of trades in construction, industrial, motive power and service sectors. Those working in 22 regulated trades must pay a $60 annual membership to the college. The College does not have a dedicated program to enhance First Nations training or participation in the labour force. The PC platform calls for the elimination of the College as part of the Red Tape Reduction program. It proposes to replace College certification and apprenticeship programs with streamlined rules through the Ministry of Training, Colleges and Universities. Affordable Energy At this time, it is unclear if the College of Trades helps or hurts First nations looking to enter into the trades. First Nations across Ontario have been negatively affected by high energy costs. The PC proposes to lower energy prices by importing hydro-power from Quebec, investing in nuclear energy, and switch to natural gas. In turn, the PC plans to eliminate subsidies for wind and solar power. The platform does not address grid expansion, which is important for many northern First Nations.

2 Expanding Free Trade Reduce Government Spending Promote Forestry and Mineral Development First Nations have registered opposition to nuclear energy particularly since the Crown is currently planning to site nuclear waste on First Nations lands. Furthermore, many First Nations benefit financially from emerging wind and solar markets, which are subsidized by the Feed-in-Tariff (FIT) program. Previously, Mr. Hudak has suggested that he would repeal the Green Energy Act and end the FIT program. Although First Nations will benefit from cheaper energy, this plan may hurt many communities benefiting from FIT. First Nations across Canada have registered concern about free trade agreements since they allow foreign companies to develop on First Nations lands without consent. Frequently, free trade deals disallow barriers to investment and development, meaning Canada bears financial liabilities (and faces potential litigation) each time it says no to a foreign investor. These deals take control away from First Nations and instead put foreign businesses first. First Nations communities and organizations rely on provincial spending for a number of vital services, including: policing, emergency management, energy infrastructure, remote fly-in access, hospital care, job training, and environmental compliance. In some instances, the province also has jurisdiction over First Nations drinking water monitoring. Reductions in spending could materially impact all of these services. The PC have not yet stated which areas would be targeted for cuts. However, they have promised to reduce the public service by 100,000 employees, which may include service providers that First Nations rely on. Mr. Hudak has stated that important jobs and services won t be affected however, other than health care and drinking water, the party has not clarified which services are essential. As part of its northern plan, the PC intends to promote forestry and mineral development. However, the platform is not clear if these developments will be supported by additional funding or infrastructure, or if these activities will require First Nations consent before moving forward.

3 NEW DEMOCRATIC PARTY The New Democratic Party (NDP) platform focuses on promoting government services while reducing financial burdens on Ontario residents. Named the Plan the Makes Sense, Leader Andrea Horwath s platform mirrors the budget tabled by the Liberal Party while simultaneously focusing on creating new oversight to prevent financial mismanagement. The NDP Platform rests on 5 pillar promises: Respect your tax dollars and invest responsibly; Reward job creators and get Ontario moving again; Take HST off hydro and make life more affordable; Cut ER wait times in half and make health care a priority; and Keep schools open and foster healthy communities. Within these promises, Ms. Horwath pledges to work with First Nations on mineral development in the Ring of Fire and revenue sharing. Several other promises related to education and health may improve First Nations access to services. Other promises, particularly those related to energy, need further clarification to determine effects on First Nations. Several election promises for Ontario may have significant effects for First Nations. Below is a breakdown of several election promises, as well as their potential positive and negative effects on First Nations communities: Election Promise Increase tax compliance and crack down on the underground economy Reduce Hydro Costs Analysis Taxation presents an ongoing issue for First Nations. Furthermore, as the federal government moves to criminalize traditional economic activities such as tobacco harvesting, First Nations may find their jobs are inappropriately relegated to the underground economy. While this promise on its own may not negatively affect or target First Nations, its implementation may have unintended implications. First Nations across Ontario have been negatively affected by high energy costs. The NDP plans to reduce costs by merging Ontario s hydro agencies, capping CEO salaries and directly trading electricity exports. In addition, the NDP will remove debt retirement fees and HST from hydro bills. Subsidies will continue to exist for solar power. The NDP has not made commitments to keep the Feed-in-tariff (FIT) program or to continue to support wind power. There are no commitments to help communities move off of diesel. Invest in the Ring of Fire and Promote Revenue-Sharing The NDP plan may result in lower prices for electricity on-reserve. However, more information will be needed about plans for the FIT program and to expand the grid to determine the full breadth of potential positive and negative effects. Development in northern resources and minerals has been held up by the lack of investments from the federal government. While the province has put forward some of the costs to open the Ring of Fire, more is needed. The NDP commitment to fund infrastructure in the Ring of Fire may or may not have implications for First Nations. It is unclear if the funding the NDP envisions will be sufficient to

4 open the currently proposed Ring of Fire sites. If it is sufficient, it is unclear if the NDP will continue to follow the MOU recently signed between Matawa communities and the Province. The NDP commitment to promote revenue-sharing sets an important precedent in Ontario. First Nations have long called for resource revenue sharing arrangements. The NDP s willingness to explore revenue sharing in the Ring of Fire suggests that they may be open to it in other resource areas as well. Freeze post-secondary tuition and make student loans interest free Cut ER wait times in half Conduct an Environmental Assessment of pipeline projects that impact our communities The NDP proposes to freeze tuition fees at 2014 levels. Under the current system, First Nations education funding is capped at a 2% yearly increase. The Post Secondary Student Support Program (PSSSP) is insufficient to support the majority of First Nations students seeking higher education. The PSSSP is not pegged to tuition, meaning that that as tuition increases the PSSSP becomes even less effective. A tuition cap may help First Nations gain greater efficiency from federally allocated education funds. First Nations are reliant on provincial hospitals for most emergency health care. The NDP proposes to hire 250 new nurse practitioners, create an addition 1,400 long-term care beds, and attract doctors to underserviced areas by forgiving their student debt. This may improve First Nation s access to health care. The NDP proposes to commit $2 million annually to ensure community consultation on pipelines through the provincial Environmental Assessment. While this would be a significant improvement over current dialogue, there may be a key catch to this promise. Pipelines that cross provincial or international boundaries are not provincial jurisdiction, meaning they are assessed and approved by the federal government. Therefore, it is difficult to judge how often the funding will be triggered without a commitment to assess every pipeline proposed in Ontario. Furthermore, it is unclear if these funds will be accessible by First Nations.

5 LIBERAL PARTY The Liberal Party platform is largely based on the proposed 2014 Ontario budget, which was rejected by the New Democratic Party (NDP) and Progressive Conservative Party (PC) triggering the election. Named Kathleen Wynne s Plan for Ontario, the Liberal platform emphasises a suite of service expansions and reforms, along with investment spending for infrastructure and businesses. In response to allegations respecting financial accountability under the Dalton McGuinty government, the platform is supported by several government transparency reforms. The Liberal Platform focuses on plans for 8 different areas: Jobs Pension Plans Infrastructure Cost of Living Education Healthcare Sustainable Communities Making Government Work The Liberal platform is the only one that contains specific action plans and funds for First Nations. Below is a breakdown of several election promises, as well as their potential positive and negative effects on First Nations communities: Election Promise Enhancing opportunities for Aboriginal peoples Analysis The Liberal platform promises $25 million over three years for an Aboriginal Economic Development Fund, additional loan guarantees for renewable energy projects, $2.5 million over three years for an Urban Aboriginal Action Plan, and nonspecific commitments for enhanced educational outcomes for Aboriginal peoples. The influx of new funds available for First Nations economic development will not necessarily be sufficient to offset federal cutbacks. Nonetheless, these commitments would be important investments that would otherwise be unavailable. Re-introducing Government Legislation Promises for the Aboriginal Economic Development Fund and extra loan guarantees are unique sign of goodwill towards First Nations since, arguably, the province has no jurisdictional commitments to provide the types of support indicated. The Liberal platform promises to reintroduce bills introduced by the Government that died on the order paper when the election was called. This would include important legislation that complements First Nations interests, such as: The Great Lakes Protection Act, which included a statutory requirement for First Nations traditional knowledge to be considered in decision making; Invasive Species Act, which would support a legislative regime to prevent the spread of invasive species in Ontario; and Protection of Public Participation Act, which would provide extra protection from Strategic Lawsuits Against Public Participation (SLAPP) that are filed to intimidate organized opposition to companies or activities.

6 It should be noted that First Nations have not reached consensus positions on all of the above bills and some outstanding issues may remain, particularly with respect to enforcement under the Invasive Species Act. However, First Nations would have opportunities to advocate for friendly amendments. Northern Infrastructure The Liberal platform includes a suite of northern infrastructure investments and promises relevant to First Nations including: New northern transmission lines; Advocacy to the Federal government to provide grid connection to remote First Nations; $1 billion in Ring of Fire infrastructure; and Expanding the Trans-Canada highway to four lanes New northern transmission lines could potentially open opportunities for northern First Nations to generate and sell solar or wind energy back into the grid through the Feed-in-tariff (FIT) program. Furthermore, an expansion of the grid may provide opportunities for some remote First Nations to transition away from diesel generators. $1 billion in the Ring of Fire is roughly half of the estimated amount necessary to build the roads necessary for mineral production. Health However, promises regarding energy for remote First Nations, the success of the Ring of Fire, and an expansion of the Trans-Canada highway ultimately require support from the Federal government. Given that these proposals are outside the full control of the Premier, First Nations may find that the Province is unable to deliver on all new roadways and energy infrastructure. First Nations are reliant on provincial hospitals for most emergency health care. The Liberal platform commits to reduce waiting time in five key areas by more than 50% although it is not immediately clear what these key areas are. Furthermore, the platform commits an additional $220 million to Ontario s Mental Health and Addictions Strategy. This strategy includes culturally-appropriate services to help address First Nations youth suicide, increased access to mental health services for remote communities, and hiring new mental health and addition workers in communities. Energy Along with new transmission lines, the Liberal platform includes ongoing investments into hydro-electric, wind, solar and bio-energy. Currently, several First Nations communities are benefitting from these investments. In addition, the platform proposes to lower energy costs by eliminating the debt retirement charge on residential electric bills and creating a Home Electricity Assistance Program for lowincome families to save up to 10% on their electric bill. First Nations in Ontario pay staggering amounts for electricity. Every platform has made promises to lower the rates. It is unclear if the Liberal platform will be more or less effective than other parties promises. Justice The justice system in Ontario unquestionably impacts First Nations peoples. The Liberal platform puts forward several actions with respect to justice reform although none are directly targeted to improving the application of the Justice system on First Nations. These promises are: Expending legal aid, which provides certificates for low-income individuals to access legal support. Many First Nations are dependent on Legal Aid assistance. Reforming family law by harmonizing the family court system, triaging cases, and

7 creating a holistic system. While the exact impacts on First Nations are uncertain and may vary, it is likely that family law reform will have important implications for First Nations.