When it is recalled that the duty to consult is premised on the honour of the Crown, the seriousness of these breaches should be obvious.  When it is recalled that the goal of consultation is reconciliation, it should also be obvious that MNRF’s conduct, at this point, shaded from inadequate towards destructive of the consultation process. [1]

The Ontario Superior Court of Justice (Divisional Court) handed down a clear reminder of what to do and what not to do when it comes to the Crown and its constitutional duty to consult, in Saugeen First Nation and Chippewas of Nawash Unceded First Nation v. Ontario Minister of Natural Resources and Forestry and T & P Hayes Ltd., 2017 ONSC 3456, a decision released July 14, 2017. 

OKT’s Cathy Guirguis, Stephanie Kearns and Kaitlin Ritchie were privileged to bring this case forward on behalf of the Saugeen Ojibway Nation. We congratulate our clients on this important victory about good process and funding for consultation . 

This was a case about whether the Ministry of Natural Resources and Forestry (“MNRF”) met the Crown’s duty to consult before it issued a licence to a company to mine limestone in two First Nations’ traditional territory.  The Court found that the MNRF breached the Crown’s duty to consult, and set aside the Minister’s decision to issue the licence.

This decision addresses a number of matters that are both common and important to many if not all First Nations who seek to protect their rights to be adequately consulted and accommodated, including the need for a clear and coherent process, as well as capacity and funding to participate in consultation for projects that First Nations don’t benefit from.

This decision is a very important victory for the Saugeen Ojibway Nation, and we hope that all First Nations will benefit from some of the findings in this case.

Background

The Saugeen Ojibway Nation (known as SON, which is the two councils of Saugeen First Nation and Chippewas of Nawash Unceded First Nation) has been successful in an important decision about consultation and accommodation regarding mining of aggregates in their traditional territory.

SON territory  includes the Saugeen (Bruce) Peninsula and the region south of the Saugeen (Bruce) Peninsula. It also includes the waters, which SON’s ancestors historically used and occupied in Georgian Bay and Lake Huron. SON is currently bringing court actions that claim beneficial interests to lands, as well as Aboriginal title the beds of waters in their territory.  SON also asserts Aboriginal and treaty rights, and has a court-recognized commercial fishing right.    SON has long been concerned with the intense mining of aggregates, and the effects on their land claims and rights. 

In 2008, T & P Hayes Ltd. applied for a licence to open and operate a limestone quarry on lands right next to lands under claim by SON.

SON received no effective notice about this application until 2011, even though MNRF claims it determined the existence of the duty and scoped the duty as being ‘low’ in 2009 – meaning that they did not believe much more than notice and providing information was needed. 

MNRF argued that they did give notice to SON, through monthly email notices that would list approximately 25 new, pending or already approved applications for pits and quarries all over SON’s traditional territory. The Court found that this was not an effective method of notification, nor were the public notices put out by the proponent (see paras 44-50). The Court also found that MNRF failed to give any information to SON about the licence application. So, even if MNRF had scoped the duty in 2009 as being ‘low’, they failed to act in accordance with their obligation to provide information, and MNRF breached the Crown’s duty to consult.

When SON finally appreciated the nature of the project in 2011, this began a back and forth that would last five years, where MNRF changed its position with respect to whether there was a duty, and how that duty could be or was satisfied several times.

SON asserted a right to be consulted.  MNRF did not initially agree, nor tell SON that it had already assessed the scope of consultation.  SON attempted to set out a process for consultation, as well as its case as to why consultation was required. To do so, SON identified in a preliminary way some possible impacts on its rights and interests.  SON requested funding to peer review the studies that T&P Hayes and MNRF had already completed in order to identify more specific impacts. 

MNRF’s response over the next few years varied from MNRF denying SON’s right to be consulted, then admitting SON’s right to be consulted,  denying funding, then agreeing to partial funding, then not responding to SON’s acceptance of funding, and reverting back to the position that no consultation was due.  By 2013, MNRF had landed on agreeing there was a duty, and delegating aspects of consultation (including providing money to SON for participation in consultation) to T&P Hayes.

T&P Hayes objected, telling MNRF that it refused to engage directly with SON. MNRF changed its mind again, and decided not to enforce the process it had delegated to T&P Hayes in 2013. No one advised SON.

In 2015, MNRF advised SON that consultation was complete, that all of SON’s substantive concerns to date were resolved, and that MNRF would provide funding to SON on the condition that SON would provide a false invoice to MNRF for peer reviews that hadn’t yet happened. 

SON refused to sign, since no peer reviews had yet happened, and insisted again that proper consultation was required.

MNRF confirmed that consultation was complete, and – without notice to SON – issued the licence in July 2016.

During all of this, MNRF also said that SON hadn’t identified impacts (despite the consultation not having yet taken place) and also that the impacts identified had been addressed and mitigated.  Ontario delegated consultation to the proponent and said the proponent had to fund consultation.   The consultation never happened. Then, without notice to the SON, Ontario said that consultation was complete and issued the licence.

Ontario also said there was no need for consultation on cumulative impacts on SON’s rights of quarrying in SON territory. [2]

The Court’s Decision: Important Takeaways on Process and Funding

The Court said all of this conduct by MNRF was unacceptable, and a breach of the Crown’s duty to consult.  In summary, the Court said:

• In this case the scope of consultation was medium, and MNRF was required to give formal notice, information, and peer review funding and communicate with SON about SON’s concerns thereafter and accommodate if necessary (paras. 141-142).
• MNRF argued that SON had not identified any specific concerns or activities, so was ‘frustrating’ consultation. Asking SON to identify specific concerns about the project before the consultation has occurred is not the correct process (para. 73).
• If MNRF is going to set out a consultation process, it needs to follow the process or tell the First Nations if the process changes and why it is changing (para. 121(7)). Failing to follow a process that it had set out was a breach of the Crown’s duty to consult (para 121 (7) –(8)).
• If MNRF agrees to provide funding, then it should provide the funding.
• Despite the fact that the statutory regime does not require consideration of cumulative effects, it is a proper subject of consultation (para 154-155).
• T&P Hayes was not obliged to accept delegation of consultation, but did so at risk of delaying its own project (para. 121 (5)).
• MNRF breached the Crown’s duty to consult when it changed its previous position about providing funding despite no change in the circumstances, and by “recasting” the consultation process to date unfairly, “shading toward destructive of the consultation process” (para. 121(8)).
• SON’s budget to conduct peer review and cover modest legal costs was reasonable, and MNRF provided no justification for denying legal costs.

Importantly on the subject of SON’s requests that MNRF and/or T&P Hayes fund SON for its costs to conduct peer reviews and participate in consultation, the Court said:

SON has limited resources.  It does not participate in consultations as a party to the Project.  The expense of consultation arises as a result of the proponent’s desire to pursue a project, usually for gain, and the Crown’s desire to see the project move ahead.  The Crown should not reasonably expect SON to absorb consultation costs from SON’s general resources in these circumstances (para 159).

The Court’s statements about funding are vital to First Nations, who often have countless requests to participate in consultation with few resources.  Where projects aren’t going to financially benefit First Nations at all, the financial demands of participating in consultation in order to protect First Nations’ rights drain a community’s ability to provide other necessary community services.    We are so pleased to see the Court recognize that it’s not unreasonable for a First Nation to take the position that it shouldn’t have to pay out of pocket to help the Crown fulfil its constitutional obligations.

We hope the Crown will use this decision to guide it about what NOT to do during consultation, and to move ahead to build more positive consultation processes with First Nations in the future.

By Maggie Wente

[1] Saugeen First Nation and Chippewas of Nawash Unceded First Nation v. Ontario Minister of Natural Resources and Forestry and T & P Hayes Ltd., 2017 ONSC 3456, at para. 121 (8)

[2] The Court’s main findings of fact on the consultation with Ontario is found at paras. 100-114 and para 121 of the decision.