CITATION: Fort William First Nation v. Ontario (Ministry of Environment), 2014 ONSC 4474
COURT FILE NO.: DC-14-0002
DATE: 2014-07-28
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
COURT FILE NO.: DC-14-0002
Fort William First Nation,
Chantelle J. Bryson, for the Applicant
Applicant
- and -
Her Majesty the Queen in Right of Ontario (Ministry of Environment)
Respondent
Kisha Chatterjee for the Respondent, Her Majesty the Queen in Right of Ontario (Ministries of the Environment; Municipal Affairs and Housing; Natural Resources; and Energy)
Cherie L. Brant for Horizon Wind Park Inc., Intervener
A N D B E T W E E N:
COURT FILE NO.: DC-14-0003
Fort William First Nation,
Applicant
- and –
Her Majesty the Queen in Right of Ontario (Ministry of Municipal Affairs and Housing)
Respondent
Chantelle J. Bryson, for the Applicant
Kisha Chatterjee for the Respondent, Her Majesty the Queen in Right of Ontario (Ministries of the Environment; Municipal Affairs and Housing; Natural Resources; and Energy)
Cherie L. Brant for Horizon Wind Park Inc., Intervener
HEARD: June 23, 2014, at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion for Interim Injunction
Introduction
[1] The applicant, Fort William First Nation, seeks an interim injunction from a single judge of the Divisional Court pending the Divisional Court hearing four applications for judicial review. Specifically, the applicant applies for orders prohibiting certain provincial ministries and those under their control from permitting or authorizing Horizon Wind Inc. or its associates from accessing or developing a wind farm on lands that are the subject of the judicial reviews.
[2] When the interim motion for injunction first came before Mr. Justice B. Fitzpatrick on June 6, 2014 for adjournment, he endorsed the motion record that the moving party is not pursuing interim declaratory relief regarding consultation at this time. I understand him to mean that the applicant does not seek an interim declaration that the Crown respondents have not met their duty to consult in this case.
[3] The applications for judicial review seek orders halting approval of the wind farm project until the respective ministries have satisfied their constitutional duties to consult with the Band. The applications for judicial review have not yet been perfected.
Background
[4] Fort William Frist Nation is a signatory to the Robinson Superior Treaty of 1850. It is an Ojibway community of approximately two thousand adjacent to the City of Thunder Bay. Fort William’s reserve abuts lands on which the intervener, Horizon, proposes to construct wind turbines, provided the necessary approval is forthcoming from the Ministry of the Environment. The land on which Horizon wishes to build is under the control of the City of Thunder Bay. Fort William regards the lands as part of its traditional territory, used for hunting, harvesting, gathering, ceremonial and culturally significant activities. The land provides habitat for moose, birds, and other wildlife. The Band continues to enjoy certain rights of usage in the lands.
[5] There is a history between Fort William First Nation and Horizon in connection with Horizon’s wind farm proposal. In 2007, Horizon and Fort William entered into a memorandum of understanding in which the Band supported the development of a small wind farm consisting of three turbines, to be erected outside of the Loch Lomond watershed and surrounding lands.
[6] Fort William states that, in 2009, it became aware that Horizon had expanded the scope of the proposed wind farm to include up to ninety turbines, to be located within the Loch Lomond watershed and surrounding lands. The Band is very concerned that the expanded and relocated proposal for the wind farm, now within the watershed, is in the heart of Fort William traditional territory and “across the gateway to all further Fort William First Nation treaty lands.” The Band also believes that the Ministry of Natural Resources has not adequately studied the impact of this expanded proposal on the flora and fauna of the area, including endangered species, or its effect on the watershed.
[7] To this end, Fort William alleges that the ministries with interests involved in this project, Environment, Municipal Affairs and Housing, Natural Resources, and Energy, have failed to conduct meaningful consultation with the Band about the wind farm proposal. Fort William submits that there is a common law duty on the Crown to consult them, a duty that has not been satisfied. Fort William has been very unhappy with the nature and the quality of the consultation with the Crown to date. It submits that it will be too late for consultation once the permit for the wind farm has been issued. Fort William argues that the honour of the Crown is at stake.
[8] In order for construction of the wind farm to take place, Horizon must first secure a renewable energy approval under the terms of the Environmental Protection Act, R.S.O.1990, c. E-19, as prescribed in the Renewable Energy Regulation. Under the terms of the Environmental Protection Act, the authority for issuance of the necessary approval rests with Director, pursuant to s. 47.5 of the Act. The section authorizes the Director to issue or refuse a renewable energy permit if he or she believes it is in the public interest to do so. The Director may also impose terms or conditions for the issuance of the permit. To date, no permit has been issued.
[9] The Crown recognizes that, in deciding whether to approve the wind farm, the Director must not only consider the statutory purposes for issuance of a permit, but also must consult with the affected First Nation, as required by s. 35 of the Constitution Act, 1982. Specifically, the Director must determine whether the Crown’s duty to consult has been satisfied. Counsel advise that consultations are on-going.
[10] As part of the process for issuing a permit, the Ministry of the Environment also requires Horizon to consult with the Band about the project. Horizon submits that the Band has refused its efforts to consult with them.
The Law of Injunctions
[11] The test for injunctive relief was settled by the case, R.J.R. Macdonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C.). The party seeking an injunction must show:
(a) there is a serious issue to be tried;
(b) the moving party will suffer irreparable harm if the injunction is not granted; and
(c) the balance of convenience favours the granting of the injunction.
Discussion
[12] There is no doubt that the Crown’s duty to consult is a serious obligation under the Constitution. However, in this case, the motion for an interim injunction is premature because the Director has not yet made a decision whether to issue the permit. One factor for the Director to consider before deciding to issue a permit is to decide whether the Crown’s duty to consult has been satisfied.
[13] Currently there is no decision of the Director for the court to consider in relation to the test for injunctive relief.
[14] In Smolensky v. British Columbia (Securities Commission) (2004), 2004 BCCA 81, 236 DLR (4th) 262, paras 6 and 25, the B.C. Court of Appeal dismissed as premature an appeal of a dismissal of judicial review by the chambers judge. The appellant argued that certain confidentiality provisions in the Securities Act infringed his Charter rights. The Court of Appeal concluded that a complete record of facts and deliberations by the Commission was necessary to the court’s review. The court recognized that the Supreme Court of Canada has emphasized that Charter decisions should not be made in a factual vacuum.
[15] A similar conclusion was reached in Inuvialuit Regional Corp. v. R. 1992 CarswellNat 192, (Fed. Ct.), para. 22.
[16] Big Thunder, a company associated with Horizon, sought a mandamus order from the Divisional Court in an application styled as Big Thunder Wind Park Inc. v. Ontario (Minister of the Environment),[2014] O.J. No. 2430 (Div. Ct.). The Crown and Fort William also appeared in the proceeding. Big Thunder asked the court to compel the Director to issue a permit for the wind farm that is the subject of this motion. The court refused the mandamus application. At para. 8 of its decision, the court stated:
In the alternative, the applicants argue that the Crown’s duty to consult was met by February 11, 2014 and the Director was then obligated to make a decision. It is for the Director to determine whether the Crown has met the constitutional duty to consult, not for this Court at this stage of the decision-making process [citation omitted].
The court concluded that it was premature to rule on whether the Crown’s duty to consult had been met: para. 12.
[17] On the current state of the record, there is no indication what decision the Director might make. It is possible that the Director may refuse the permit. If so, the issue as to the adequacy of the consultation will be moot and there will be nothing for the Divisional Court to review.
[18] If the Director grants the permit with conditions, those conditions may be relevant to the reviewing court’s consideration as to whether the objections of Fort William have been answered.
[19] It is important that consultation be done before any construction begins, if it does. However, any harm that may arise will come from the construction on the land and not from the issuance of the permit per se.
[20] Without knowing what the Director’s decision is, the court cannot conclude there is a serious issue to be tried. Nor can it be said at this time that the moving party will suffer irreparable harm if the injunction is not granted.
[21] The motion for injunction is therefore dismissed without prejudice to its renewal on appropriate material when the Director has made a decision on Horizon’s application.
[22] If the parties cannot agree on costs, any party may, within thirty days, apply to the trial coordinator for an appointment to argue costs. If an appointment is not applied for within thirty days, costs will be deemed to be settled.
[23] Leave is granted to counsel to appear by teleconference, if so advised.
Madam Justice H.M. Pierce
Released: July 28, 2014
CITATION: Fort William First Nation v. Ontario (Ministry of Environment), 2014 ONSC 4474
COURT FILE NO.: DC-14-0002
DATE: 2014-07-28
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
COURT FILE NO.: DC-14-0002
Fort William First Nation,
Applicant
- and -
Her Majesty the Queen in Right of Ontario (Ministry of Environment)
Respondent
A N D B E T W E E N:
COURT FILE NO.: DC-14-0003
Fort William First Nation,
Applicant
- and –
Her Majesty the Queen in Right of Ontario (Ministry of Municipal Affairs and Housing)
Respondent
REASONS ON MOTION
FOR INTERIM INJUNCTION
Pierce R.S.J.
Released: July 28, 2014
/mls