Saugeen First Nation v. Ontario (MNRF), 2017 ONSC 3456
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, D.L. CORBETT and DiTOMASO JJ.
B E T W E E N:
SAUGEEN FIRST NATION and CHIPPEWAS OF NAWASH UNCEDED FIRST NATION
Applicants
- and -
ONTARIO MINISTER OF NATURAL RESOURCES AND FORESTRY and T & P HAYES LTD.
Respondents
COUNSEL:
Cathy Guirguis and Kaitlin Ritchie, on behalf of the Applicants
S. Valair and S. Figliomeni, for the Minister
Lawrence Hansen, for T & P Hayes Ltd.
HEARD at Toronto: April 10 & 11, 2017
1This application concerns the Crown’s duty to consult with, and accommodate the rights and interests of the Saugeen Ojibway Nation (“SON”) in connection with T & P Hayes Ltd.’s (the “Proponent’s” or “Hayes’”) application for a license for a limestone quarry (the “Project”) on the Saugeen/Bruce Peninsula.
2The parties agree that the Crown had a constitutional duty to consult SON. They disagree on the scope of that duty and whether it was reasonably discharged.
3SON argues that there had to be a “meaningful conversation” proportional to the interests at stake. It argues that, though there were exchanges of information, a “meaningful conversation” did not happen. It seeks a declaration to this effect, an order quashing the decision by the Minister of Natural Resources and Forestry (the “Minister”)1 to issue a license to the Proponent, and an order that the Crown complete a constitutionally sound process of consultation and accommodation before issuing a license for the Project.
4The Crown acknowledges that, at times, consultations may have been imperfect. However, it argues that, by the end of the process, material problems had been rectified, a reasonable opportunity was given to SON to provide input and information, and the Crown’s duty to consult was reasonably discharged. It asks that SON’s application be dismissed.
5Hayes just wants to get on with quarrying limestone. It holds title to the Project lands, which have been owned privately for many years and are not part of a reserve or claim by SON. Hayes applied for a quarry license back in 2008, has spent considerable time and money providing MNRF with studies and plans, and does not want to be delayed further in its reasonable exploitation of the resources on its property. It asks that SON’s application be dismissed.
Summary and Disposition
6I agree with SON that there has not been the “meaningful conversation” required by the constitutional duty to consult. The process followed by MNRF does not pass constitutional muster. From 2008 to 2011, MNRF failed to consult SON in accordance with its own assessment of the scope of that duty. When SON learned of the Project, three and one-half years after its inception, MNRF’s approach was reactive and ad hoc. MNRF created expectations in SON which were disappointed repeatedly - expectations about the process to be followed and the funding available to SON. And in the end MNRF never followed through on its own designated processes.
7MNRF’s position – that whatever process failures there may have been along the way, by the end, SON’s substantive concerns had been heard and addressed – misses the central thrust of SON’s concerns here. SON does not challenge the reasonableness of MNRF’s decisions about mitigation measures. SON’s objection – and a valid objection it is – is that there has never been a proper consultation process, and that the identification of SON’s concerns remains preliminary and subject to review and change through proper consultations.
8Hayes argues that the substantive results of consultation are reasonable. One can sympathize with Hayes’ sense that it is caught between MNRF and SON. That said, Hayes’ frustration and its interests in moving forward with the Project are not valid reasons to defeat SON’s constitutional rights. When there are disagreements about consultations, providing a remedy for a First Nation will often cause delay. Thus though the duty to consult is the Crown’s, proponents have an interest in facilitating the consultation process. In this case, Hayes refused that role. It was entitled to do this, but one consequence of its decision is further delay to complete adequate consultations.
9For the reasons that follow I would set aside the Minister’s decision to issue the license for the Project, without prejudice to the Minister approving a license after reasonable consultations with SON.
Part I - General Principles Respecting the Crown’s Duty to Consult
10In 2004, in Haida Nation, a unanimous Supreme Court of Canada undertook the “modest task” of “establishing a general framework for the duty to consult and accommodate” rights and claims of First Nations. This new framework was a start, not an end, to analysis: in future cases “courts… will be called on to fill in details of the duty to consult and accommodate.”2
11The duty to consult arises as part of the “process of honourable negotiation” required of the Crown by s.35(1) of the Constitution Act, 1982, which states3 that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”4
12“The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting those interests are being seriously pursued.”5 The duty to consult is a “valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose.”6 The goal of consultations is vindication of First Nations’ rights and reconciliation with First Nations.
13The duty to consult and accommodate applies to both the federal and provincial Crown.7
14The duty arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it….”8 The Supreme Court rejected an “either/or” approach of “watertight compartments” and instead held that the “concept of a spectrum may be helpful” which is to be assessed by the Crown:
… [the] scope of duty is proportionate to a preliminary assessment of the strength of the case… and to the seriousness of the potentially adverse effect…. 9
… Every case must be approached individually.10
15The general process to be followed is:
Step 1: the Crown determines whether a duty to consult arises.
Step 2: the Crown makes a preliminary assessment of the scope of the duty to consult.
Step 3: the Crown then consults with the First Nation.
Step 4: a duty to accommodate may arise during consultation.
16The duty to accommodate follows from the duty to consult and may not be excluded from the outset: “[t]he contemplated process is not simply one of giving the [First Nation] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along.”11 The level of consultation required may change over time as the process moves forward and new information comes to light.12
17“Consultation must be meaningful.”13 The Crown “must act with honour and integrity, avoiding even the appearance of ‘sharp dealing’.”14 On the other hand:
[a]s for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting….15
18There is “no duty to come to an agreement” and neither side is precluded from “mere hard bargaining”.16 And even where consultation and accommodation is reached in a particular case, all of this is placed within the broader context of reconciliation, which is not an atomistic event or series of events in isolation. “Reconciliation is not a final legal remedy in the usual sense. Rather it is a process flowing from rights guaranteed by s.35(1) of the Constitution Act, 1982.”17 Thus consultation, and if necessary, accommodation, is part of a process of reconciliation: “[c]onsultation in some meaningful form is the necessary foundation of a successful relationship with Aboriginal people.”18
19“The honour of the Crown cannot be delegated.”19 It is “always at stake in its dealings with Aboriginal peoples.”20 This does not mean that third parties (such as the Proponent) cannot be involved in fulfilling the Crown’s duty to consult and accommodate. However, “the Crown cannot contract out of its duty of honourable dealing with Aboriginal People.”21 Where the Crown does delegate to a third party some part of the process of consultation, “that does not relieve the Crown of the responsibility to assess whether the duty has been discharged.”22
20These issues must be approached systematically and comprehensively; the government “may not simply adopt an unstructured administrative regime” in response to the Supreme Court’s conclusion respecting the duties to consult and accommodate.23
21The duty to consult may arise where there is a modern treaty24 or where no treaty has yet been signed.25 Even where there is a modern treaty,
… the treaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract.26
A treaty is not a commercial contract. A “treaty is as much about building relationships as it is about the settlement of ancient grievances.”27 Signing a treaty – whether a nineteenth or early-twentieth century treaty or a modern treaty – is “not the complete discharge of the duty arising from the honour of the Crown, but a rededication of it.”28 These principles have full force where there is an old treaty that does not address in detail the ongoing relationship between the First Nation and the Crown as a modern treaty does.29
22The duty to consult often arises where interests of third parties are also at stake. Affected third parties are entitled to be treated fairly and reasonably as well. In Beckman, for example, a third party, Paulsen, sought a land grant of 65 hectares of surrendered land for farming in the Yukon. The land was within an area subject to a treaty right of access for subsistence hunting and fishing.30 Paulsen applied for a land grant in 2001 and was still awaiting the outcome of his application eight years later when the case was decided by the Supreme Court of Canada, which noted that Paulsen was “entitled to a decision reached with procedural fairness within a reasonable period of time.”31
23Eventually, “[s]omebody has to bring consultation to an end and to weigh up the respective interests…”32 and make a decision.
24Not every case involving the duty to consult is constitutional; the source of the duty is s.35 of the Constitution Act,33 but there is a link between constitutional doctrine and administrative law principles.34 The nature of the consultation and the procedural fairness requirements must be “appropriate to the circumstances”.35 Use of “a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided.”36
25The evaluation of consultation and accommodation must be contextual. The “adequacy of what passed (or failed to pass) between the parties must be assessed in light of the role and function to be served by consultation on the facts of the case and whether the purpose was, on the facts, satisfied.”37 Thus “[t]here must be more than an available process: the process must be meaningful.”38 Therefore “[i]t cannot be said that offering [a First Nation] an opportunity to participate in fundamentally inadequate consultations preserves the honour of the Crown.”39
26To have meaningful participation in consultations, a First Nation must have sufficient expertise and resources. This can lead to disagreement over whether funding is required, and if it is, how much is needed, and what should be done if the Crown and a First Nation disagree on these points. In some cases, First Nations have refused to meet in the absence of “funding to ‘support… meaningful engagement in the issue’…” and when the Crown proposed funding, have “claimed that the funding provided was not adequate to support the [First Nation] in its efforts to consult….”40 Sometimes the First Nation has said that it was “unable to review and discuss matters… ‘because of a lack of funding and staff’.”41 The Crown has sometimes taken First Nations’ positions on these issues as evidence of the First Nation “not approach[ing] the consultation in good faith”.42
27“[T]he issue of appropriate funding is essential to a fair and balanced consultation process, to ensure a ‘level playing field’.”43 Reasonable efforts should be made, on both sides, to avoid funding brinksmanship. Ultimately the decision on funding is the Crown’s, as part of its design and implementation of a consultation process, and its decisions on funding issues will be reviewed on a standard of reasonableness.
28The duty to consult and accommodate is prospective, addressing proposed future actions. For example, in Alcan v. Carrier Sekani Tribal Council, the issue was the 2007 iteration of a contract under which Alcan sold excess power to BC Hydro from its hydroelectric dam. The dam had been built in 1951. The issue, in 2007, concerned the 2007 agreement, in the context that the dam already existed and had been in place for over 50 years. The propriety of building the dam in the first place, and the operation of the dam between 1951 and 2007, were not matters for consultation at the time of the 2007 agreement. Claims arising from events prior to 2007 were to be taken up in treaty negotiations or separate civil claims.44
29This is not to say that the duty to consult arises in a historical vacuum. “[H]istorical context”… can be “essential to a proper understanding of the seriousness of the potential impacts…” of a proposed activity on a First Nation’s rights.45 Therefore, in West Moberly, where past activities had devastated a caribou population, the relatively small impact of the proposed current project had to be placed within the context of the damage that had already been done. In addition, the proposed activity had to be placed in the context of where it was intended to lead. In West Moberly, exploratory drilling for coal was proposed with a view to mining coal if it was found: there was no other purpose for the exploratory program. Consideration could be given to the potential impact of the overall project, and not just the current incremental step.46
Part II – Perspectives
(a) The Proposed Limestone Quarry
30For Hayes, the issue is simple: it owns land on which it wishes to quarry limestone for use as aggregate. It has done what is required by MNRF to obtain a license for this activity and, for Hayes, the Project’s impact on SON’s traditional territories will be minimal or non-existent. Hayes has been at this process now for almost a decade and does not wish to be put to any further expense or delay in going about its business.
31From MNRF’s point of view, there are hundreds of small limestone quarries in southern Ontario, and there is public utility in using these quarries for construction projects and other purposes in southern Ontario. MNRF wishes to respect the realistic and practical interests of First Nations affected by these projects, but it does not want to institutionalize an expensive and duplicative process for assessing environmental and cultural impacts. In particular, MNRF does not accept that multiple sets of expert assessments should be required for every project that may have some incidental impact on First Nations’ interests. MNRF has recognized that the process has not gone smoothly in this particular case, but is satisfied that all substantive concerns raised by SON have been addressed reasonably.
32From SON’s perspective, the Project is part of the broader issues raised by numerous aggregate projects in its traditional territory. The cumulative impact of these projects places strain on SON’s resources, both human and financial. The absence of a coherent consultation process aggravates the stress on SON’s resources: additional resources are spent to establish SON’s right to be consulted and then more are spent to defend SON’s view of the proper scope of meaningful consultation. The time and money spent contesting these preliminary issues has, in this case, considerably outstripped the likely reasonable costs of substantive consultations for the Project. This is wasteful of SON’s scarce resources. SON has told MNRF of its preliminary concerns but cannot say more, it says, without being able to understand technical reports for which it needs expert advice. Therefore it does not know whether its concerns have been addressed adequately, or if it has fully explained all of its concerns to MNRF.
(b) The Consultation Process
33For Hayes, consultation is the Crown’s duty. The Crown could impose consultation requirements on a proponent, but Hayes refused to accept a unilateral imposition by MNRF of these requirements in August 2013, more than five years into the license application process. Hayes denies that the Project will have material consequences for SON’s interests, and Hayes does not wish to be put to any further expense or delay in a conflict which it sees as being procedural and as between SON and MNRF.
34For SON, consultation on the Project was disjointed, inconsistent, and an exercise in frustration. SON has been clear that it needs funding to participate. Funding was agreed47 but never delivered. SON continues to be willing to undertake consultation if it receives the promised funding. It also continues to maintain that it may require more funding, which it will address with MNRF after it has completed its preliminary work.
35It is difficult to divine a consistent approach to consultation by MNRF except for three points. First, MNRF takes the position that it gave notice of the Project to SON in May 2008 and heard nothing from SON about the Project until September 2011. Second, starting in 2011, MNRF sought concrete information about SON’s activities in and near the Project and felt that SON was less than forthcoming on this issue. Third, MNRF was concerned with managing consultation costs. The first point is not one that I accept, as I explain below. The second and third points are both legitimate but have assumed disproportionate importance for MNRF, given the obvious problems in the consultation process in this case. The second point is also of reduced significance now that MNRF has formally recognized a duty to consult in this case, a point that was not entirely clear for most of the discussions between MNRF and SON. The third point, while still relevant, is largely resolved, for now, given the funding MNRF has agreed to provide to SON.
Part III - Background
A. The First Nations: Saugeen First Nation and Chippewas of Nawash Unceded First Nation
36SON is made up of two First Nations: Chippewas of Nawash Unceded First Nation and Saugeen First Nation. They are Aboriginal people within the meaning of s.35 of the Constitution Act, 1982, and “bands” pursuant to the Indian Act.48
37The two bands make decisions respecting their shared territory through the SON Joint Council. They have established the SON Environment Office through which they engage with government and proponents about projects, decisions or conduct in SON’s traditional territory that could affect SON’s rights, culture, resources, lands and waters.49
38SON takes the position that its traditional territory includes the Bruce/Saugeen Peninsula, lands to the south of the peninsula and adjacent waters in Lake Huron and Georgian Bay.50
39SON is a signatory to treaties with the Crown including Treaty 45½ (made in 1836) and Treaty 72 (made in 1854). SON challenges the validity of Treaty 72 in separate proceedings51 in which SON claims (among other things) Crown lands adjacent to and abutting the Project.52 SON also takes the position that Treaties 45½ and 72 do not surrender SON’s rights to fish, hunt, harvest, conduct spiritual ceremonies and engage in other traditional activities throughout SON traditional territory.53
40SON takes the position that it has “proven and asserted Aboriginal and treaty rights” in its traditional territory that are protected by s.35 of the Constitution Act, 1982, including:
(a) right to fish commercially;
(b) rights to hunt, fish and gather traditional medicines;
(c) rights to protect culturally and spiritually significant species54 and cultural resources;55 and
(d) rights to protect the health and integrity of lands, waters and resources throughout SON’s traditional territories.56
B. The Proponent: T & P Hayes Ltd.
41The Proponent, Hayes, is a private company. It and its President own the land on which the Project is located, which is in the Municipality of Northern Saugeen/Bruce Peninsula.57
C. The Crown: Represented by MNRF
42The Minister has authority to administer the Aggregates Resources Act.58 MNRF has represented the Crown in dealings with SON and Hayes about the Project.
Part IV - History of Consultations
(a) Hayes’ Application for a License
43Hayes applied for a license for the Project pursuant to s.7(2) of the Aggregate Resources Act59 on February 19, 2008.60 MNRF advised Hayes that its application was “complete” on February 27, 2008.61
(b) February 2008 to September 2011: No Notice to SON
44MNRF periodically sent SON a running list of outstanding aggregate applications located in SON’s traditional territories. Hayes’ application was added to this running list in May 2008. SON acknowledges that these lists were emailed to it and included Hayes’ application from May 2008 onwards. SON says that it did not know about the Project because it did not realize that the Hayes application had been added to the list.62
45For the following reasons, I accept that SON did not know about the Project from the running list and did not learn about it until September 2011.
46There were roughly 500 quarries in SON’s traditional territory. At any given time there were dozens of license applications pending.63 An application could take years from the time it was requested until final decision. Sometimes applications progressed steadily. Sometimes they remained on the running list without apparent progress. Sometimes they were withdrawn or otherwise removed from the running list without a license being granted.
47In 2008-2011, SON did not have resources to track all quarry applications. In May 2008, it had only one employee in the SON Environment Office and insufficient resources to assess and respond to the many issues that arose for that office. In 2008-2011, SON and MNRF were discussing how aggregate quarry consultations ought to take place, generally, and in respect to “a number of other specific license applications.”64 The Hayes application was not flagged or specifically mentioned in these communications. SON notes that its position with MNRF was that it needed funding for general capacity, and SON would have had no motive to ignore the Project; quite the opposite: it would have been further evidence supporting SON’s claim to need general capacity funding.
48Hayes had public notice obligations which included posting notices at the site65 and running advertisements in a local paper, the Wiarton Echo.66 A public information session for the Project was held on May 6, 2008.67 No public objection was received through the public notice and consultation process.68 MNRF and Hayes ask this court to infer that, even if SON overlooked the Project on the running list, the Project would have and did come to SON’s attention as a result of the public notices given by Hayes.
49I do not accept these arguments. First, where there is a duty to consult, the minimum Crown obligation is notice and the Crown must establish affirmatively that notice has been given. General public notice requirements under the Aggregates Resources Act do not include notice to an affected First Nation. Second, there is no evidence that the Project did come to SON’s attention as a result of the public notices given by Hayes. Third, it would not be sufficient to show that the Project came to the attention of some member of SON. As noted above, there are hundreds of quarries in the area and dozens of projects under consideration at any given time. A member of SON might hear of a project without realizing that it was not known to the SON Environment Office. Fourth, there was no reason for SON not to respond to Hayes’ application in 2008 deliberately, only to respond in 2011. And fifth, there is no evidence to the contrary.69
50Therefore, I accept that SON did not appreciate that the Project had been added to the running list of projects back in 2008, and did not learn of it until receiving a copy of the zoning amendment for Project lands in September 2011. Although Hayes’ application had been underway for Hayes and MNRF since May 2008, it started for SON in September 2011.
(c) MNRF’s 2009 Assessment
51MNRF says that it completed a preliminary assessment of the Crown’s duty to consult in 2009. MNRF says that it assessed the extent of this duty as “low” at this time.70 Prior to September 2011, the Crown did not advise SON of these assessments.
52On the basis of these preliminary assessments, MNRF says that it concluded that SON was not entitled to more than notice of and information about the Project.71 The Crown acknowledges that it did not advise SON of this conclusion prior to September 2011.
53Aside from placing the Project on the running list of projects, MNRF did nothing to consult with SON about the Project prior to September 2011.72
54The Crown was obliged to do an initial assessment. This is a requirement of constitutional stature. This is clear from Haida Nation. One would expect that, somewhere in MNRF’s records, there would be documents setting out MNRF’s initial assessment and explanations for it. There are, apparently, none. The Crown also states that it assessed the scope of its duty to consult SON at the “low end” of the spectrum in 2009, requiring the Crown to give notice and to provide SON with information about the Project. “Scoping” is also a requirement of constitutional stature. This, too, is clear from Haida Nation. One would think that there would be some record to support MNRF’s 2009 conclusion respecting the scope of the duty to consult. MNRF’s witness says in his affidavit that the assessments were made in 2009 but he provides no particulars. He does not say who made the assessments. He does not say what the assessments were based upon. When asked on cross-examination to produce contemporaneous documents setting out or referring to these assessments, the question was taken under advisement. Apparently it was never answered.
55Assuming that MNRF did put its mind to the initial assessment, and assuming that it assessed the Crown duty at the “low” end of the spectrum, this “low” level of consultation still required MNRF to give notice and to provide SON with information about the Project. Placing the Project on the running list could be viewed as an unsuccessful, inadequate, but good faith attempt to give notice. But there is no evidence that MNRF did anything at all to provide information to SON about the Project prior to 2011.
56The improbability of MNRF’s account of events between 2008 and 2011 is tempered by SON’s approach to this issue. SON has not pressed the obvious conclusion, either during cross-examination of MNRF’s witness or by arguing that MNRF should be disbelieved on this point. On the basis of Browne v. Dunn73 it would be unfair to proceed on a basis other than that which was put to this court. And therefore I accept that MNRF did conclude in 2009 that it had a duty to consult with SON on the Project.
57I have already concluded that placing the Project on the running list did not give SON effective or actual notice of the Project. No other notice was given to SON prior to September 2011. Therefore I find that the Crown failed to discharge its acknowledged duty to give notice of the Project to SON prior to September 2011.
58In its materials, MNRF does not provide evidence that it provided any information about the Project to SON prior to September 2011. This omission is problematic in two ways. First, it is hard to understand why MNRF would have failed to provide any information to SON if it had scoped its duty to include providing information. Second, the failure to provide any information to SON prior to September 2011 was a breach of MNRF’s acknowledged duty to consult.
59It is neither necessary nor practically possible to decide now whether MNRF’s assessment of the scope of the Crown duty to consult SON was correct, or reasonable, back in 2009. It is not necessary because (a) MNRF did not consult SON in accordance with the scope it had assessed, and (b) because events have moved on: MNRF has changed its position on scope, and what matters now is whether the Crown has consulted SON sufficiently to discharge the proper scope of its duty, as that duty is assessed today. It is not practically possible because there is no record on which to review MNRF’s assessment of the scope of the Crown duty back in 2009. Therefore I decline to decide whether MNRF’s assessment of the scope of the Crown’s duty to consult SON about the Project was correct or reasonable from 2009 to September 2011.
(d) Hayes’ Consultation Activities to September 2011
60Between February 2008 (when it submitted its application) to September 2011, Hayes had no direct dealings with SON. Hayes was not responsible for or involved in assisting the Crown to discharge its duty to consult with SON about the Project between 2008 and 2011.
(e) Findings for February 2008 to September 2011
61Based on this history, I find:
(1) MNRF had a duty to determine whether there was a Crown duty to consult SON about the Project.
(2) In 2009, MNRF decided that the Crown did have a duty to consult SON about the Project. This conclusion was correct.74
(3) MNRF was obliged to advise SON that it had decided that the Crown had a duty to consult SON about the Project. MNRF did not do so and thereby breached the Crown’s duty to consult SON.75
(4) Once MNRF found a duty to consult SON, the Crown had a duty to make a preliminary assessment of the scope of this duty. MNRF did this preliminary assessment in 2009 and concluded that the duty to consult lay the “low” end of the spectrum. MNRF did not advise SON of this conclusion, and thereby breached its duty to consult SON.
(5) I decline to decide whether the Crown’s assessment of the scope of its duty to consult was correct, or reasonable, in 2009. The Crown did not discharge this duty, and in any event the Crown subsequently changed its position on scope. Further, there is no record on which to assess the correctness or reasonableness of the 2009 scope assessment.
(6) MNRF concluded that it had an obligation to give notice of the Project to SON and to provide SON with information about the Project. These conclusions were consistent with MNRF’s initial assessment of its scope to consult SON.
(7) MNRF failed to give notice of the Project to SON prior to September 2011. MNRF failed to provide information about the Project to SON prior to September 2011. Accordingly, as of September 2011, MNRF had failed to do the things that it had determined were required to consult with SON on the Project, thereby failing to discharge the Crown’s duty to consult.
(8) Hayes was not involved in the consultation process prior to September 2011.
(f) SON Asserts Its Right to Be Consulted: September 2011 to August 2013
62SON learned of the Project from notice of a zoning change in September. On September 9, 2011, SON’s counsel wrote for the first time to MNRF about the Project (with a copy to Hayes’ land use planning consultant):
… any activity, approval process, and/or any other decision, such as licenses or permits under the Aggregates Resources Act, that impacts those lands or our client’s Aboriginal rights cannot proceed without substantive consultation and accommodation.
…. Kindly forward any other relevant information to our office including anticipated timelines for seeking permits and approvals for a quarry operation. We will expect you to be in contact as soon as possible to discuss your intended process for consulting and accommodating SON on this matter.76
63By letter dated September 19, 2011, MNRF responded that the Project lands are not Crown lands. MNRF ended the letter: “Please feel free to consult our office if you require any further information or have any additional questions…. Thank you for your interest in this application.”77 The premise of this letter is that MNRF did not consider that consultation with SON was required because the Project is not on Crown lands.
64By letter dated September 22, 2011, Hayes’ land use planning consultant, Ron Davidson, wrote to counsel for SON enclosing Project documents, including copies of Davidson’s planning report, Official Plan amendment, zoning by-law amendment application, quarry license application, site plans, expert hydrogeology opinion, natural environment technical report, Ministry of Culture clearance letter and correspondence about the application back to 2008.78
65It was clear from the materials sent by Davidson that the Project was well advanced. By letter dated September 23, 2011, counsel for SON wrote to MNRF, with a copy to Davidson, raising this concern and setting out SON’s expectations:
It is clear that the operation of the quarry… will have an impact on lands that are claimed [by SON]. Those lands are currently designated as wetland habitat, with identified sensitive species nearby. There is also archaeological potential on those lands….
Despite the fact that there will be impacts on their rights and interests, SON has not been consulted. The case law clearly states that First Nations are entitled to consultation where there are potential impacts to their rights or to their asserted rights, and that consultation should take place at a strategic planning stage. As such, SON is very concerned that there was no consultation prior to the approval of the official plan amendment….
Any future activity or further approval should not proceed until substantive consultation and accommodation is complete….
We will expect you to be in contact as soon as possible to discuss your intended process for consulting and accommodating SON on this matter.79
Counsel for SON attached a flowchart setting out a proposed consultation process.
66MNRF responded by letter dated October 28, 2011 as follows:
We certainly welcome any information or feedback from [SON] with respect to… the proposed aggregate operation of [Hayes]. A review of our records indicates that MNR notified your clients of this application on December 15, 2008…. [T]o my knowledge [MNRF] has not to date received any feedback or concerns from SON….
Our Ministry welcomes additional detailed information that will aid in our understanding of the potential adverse impacts of this proposal on the SON’s Aboriginal or treaty rights….80
The premise of this letter is that it is not clear that there are any “potential adverse impacts” on SON’s rights.
67SON’s counsel responded to MNRF on November 18, 2011. She repeated SON’s position that “it is clear that the operation” of the quarry “will have an impact on lands that are claimed.” She then wrote:
In order to provide more information about the nature of the impacts, further site assessment needs to be completed. SON’s position – which has also already been communicated – is the costs of that assessment, and other costs of consultation, i.e. costs for SON’s technical experts to peer review studies and other information, and funding for SON staff participation in meetings, must be borne by the Crown and the proponent. We do not yet know the exact amount that is required for a proper consultation and accommodation process to be satisfied. We will not know that before we have completed an initial assessment to determine the scope of the duty to consult and accommodate. We can estimate approximately $13,000 will be required for initial site assessments and peer review reports and other planning documents that have already been completed.81
The letter suggested that it was for SON to complete “an initial assessment to determine the scope of the duty to consult and accommodate.” That was not correct. It is the Crown’s duty to complete the initial assessment. However, MNRF did not correct SON on this point, nor did it advise that an initial assessment had been completed in 2009 or the results of that assessment.
68MNRF responded on January 19, 2012. MNRF largely repeated what it had said already: it had not heard from SON despite notice to SON in 2008. MNRF was happy “to share and review with SON the technical reports, studies and reviews conducted as part of [the quarry] application.” MNRF then stated that “we require further details from SON specific to how this aggregate application might adversely affect SON’s aboriginal or treaty rights.”
69Counsel for SON responded to MNRF by letter dated January 31, 2012. In it counsel repeated SON’s position that it is clear that the proposed quarry will affect adjacent lands, which are the subject of a claim by SON. Counsel advised that “SON has no record of being notified about this aggregate license application in 2008.” Counsel then stated that, aside from the general description of obvious potential effects of the quarry,
[a]ny further and more specific assessment or determination of impacts is an objective of and is properly the subject of a consultation and accommodation process. Since no consultation has yet occurred, it is impossible for SON to provide any further assessment or detail of those impacts.
Counsel repeated SON’s position that it would need $13,000 “for initial assessment costs” and then concluded as follows:
SON would like to receive and review the project information and/or provide further details with respect to potential impacts, but SON requires a response from the Crown and from the Proponent with respect to the following:
agreement on a consultation and accommodation process
funding for that process, including resources for peer review of existing studies and reports, and independent assessments of impacts; and
a commitment that no further approvals for the proposed quarry will go ahead before consultation and accommodation is complete.82
70By letter dated February 17, 2012, counsel for SON wrote to the Minister expressing concerns about the general failure of MNRF to consult with SON respecting aggregate quarry applications. Counsel pointed specifically to the Project as an example where SON interests had been ignored. Counsel closed the letter as follows:
As SON has stated… this repeated disregard for SON’s Treaty and Aboriginal rights and your duty to consult is leaving SON with very few options in terms of addressing Ontario’s failure in this regard. It is unfortunate that your office appears to view litigation as a preferable option to negotiation, discussion, and proper consultation. This does not satisfy Ontario’s “New Relationship” that First Nations have been promised, and does not satisfy the goals of reconciliation that the courts have mandated.83
One side point needs mentioning here. In reference to this letter, MNRF’s primary witness mentions a demand by SON, in this letter, for $70,000 in consultation costs. This evidence is not fairly characterized in the witness’ evidence. The $70,000 was costs incurred in numerous consultations, not just the Project. SON did not demand payment of the $70,000 as a condition precedent for consultations on the Project. The witness’ evidence left a contrary impression and was unfair on this point. The honour of the Crown is always engaged in dealings between the Province and a First Nation; the Province’s witnesses should be scrupulous in their efforts to characterize the record and the evidence fairly.
71By letter dated March 12, 2012, counsel for SON wrote to MNRF seeking a response to counsel’s letter of January 31, 2012. In addition, counsel responded to MNRF’s position that SON was given notice of the Project on December 15, 2008. On this point counsel wrote:
As we have previously told you, SON does not have any record of that communication [of December 15, 2008]. Please provide us with copies of any notifications or correspondence between [MNRF] and SON in relation to… Hayes’ application.84
72MNRF responded on March 12, 2012, enclosing copies of the running lists sent by email showing the Hayes’ application listed as pending. In terms of a substantive response, MNRF stated:
Please be advised that we are in the process of responding to both your January 31st letter addressed to me and the February 17th letter addressed to the Minister…. It is our intention to provide one response that addresses the issues identified in both letters.85
73MNRF responded to SON substantively by letter dated April 12, 2012. The letter is stated as intended “to provide additional detail as to how we have addressed SON concerns as expressed to date.” MNRF repeats its position that notice had been given to SON of the Project by way of emails starting in December 2008. MNRF summarizes SON’s position (a) there are potential adverse impacts from the Project on lands over which SON asserts claims; and (b) for SON to be able to provide any further meaningful information SON would require funding of $13,000. MNRF responded to this position as follows:
There exists an onus on SON to make their concerns known and it has become apparent from recent correspondence that no further information will be provided without the funding requested above. Unfortunately, we are not in a position to provide the funding requested and as such we have done our best, in the circumstances, to be responsive to those substantive concerns you have raised to date.86
MNRF then summarized what it understood SON’s specific concerns to be, including wetland habitat, archaeological resources, adverse impact on sensitive species including the Massassauga Rattlesnake. MNRF then described how it had considered these impacts. MNRF then set out further information about these concerns and closed by stating:
We would of course welcome further discussion on this file particularly with respect to our understanding of your concerns and our proposed responses above. Further, as we have previously indicated we would be happy to provide the necessary experts to explain and respond to any further questions or concerns you raise and if needed we would be pleased to provide a space to meet or perhaps travel to your communities to discuss this matter.
As the application has been with the Ministry for some time, we request the SON’s response at your earliest convenience….87
In this response, MNRF conflated (a) the duty to consult, (b) the required scope of consultation, (c) the process for consultation, and (d) the substantive results of the consultation process. MNRF had still not acknowledged to SON that a duty to consult arose in this case. It still had not advised of its 2009 assessment of the required scope of consultation. And it still had not established a consultation process consistent with the required scope of consultation. In the absence of a structured response, MNRF’s position that “[t]here exists an onus on SON to make their concerns known” is problematic. SON’s stated concerns, to this point, were that it wished to be consulted properly and needed funding for that to happen. SON’s preliminary identification of substantive concerns about the Project was provided to establish that a duty to consult did arise. This preliminary identification of concerns was not intended by SON to be the sum total of substantive consultation with SON.
74There was no “onus” on SON respecting the Crown’s initial assessments (i) as to whether a duty to consult arises at all; (ii) the scope of that duty; and (iii) the consultation process to be followed. This is not to say that a First Nation should refuse to engage the Crown over these issues: the Crown’s assessments will be based upon the information it has. And SON did not refuse to engage on these points: its participation from September 2011 to August 2013 was focused on these preliminary questions. However, instead of dealing with the process issues raised by SON, MNRF seemed to address preliminary and substantive issues all at once. This is a sort of “unstructured administrative regime” against which the Supreme Court of Canada cautioned in Haida Nation.88
75SON’s counsel provided a preliminary response to MNRF on April 20, 2012, with more to follow a SON joint council meeting on May 3, 2012. Counsel stated that MNRF’s letter provided more information than had been received before and then raised these concerns:
Counsel referenced MNRF’s bald refusal to provide funding and asked if it is “policy that [MNRF] will not require a proponent to fund (or itself fund) technical reviews to assess the impacts on SON’s Aboriginal rights.…”
Counsel asked how SON’s cultural concerns were addressed “in the absence of any discussion with SON about the cultural impacts involved?”
Counsel commented on MNRF’s willingness to engage in further discussions and then asked if MNRF would commit to consultation and accommodation “before any other approval proceeds?”
Counsel asked “how [MNRF] considered and analysed cumulative effects in assessing the impact of this project.”
Counsel asked for copies of any studies or records from MNRF respecting the Project (other than the Proponent’s materials which had been received already).89
76Counsel for SON responded further to MNRF by letter dated May 9, 2012. Counsel argued that MNRF must consult substantively with SON and that no such consultation had yet taken place. Counsel advised that SON was willing to meet with MNRF, and then stated “we would like to reiterate that funding must be provided for SON to be able to meaningfully engage in any subsequent consultation process that may follow that initial meeting.”90 Implicit in this statement is that SON was willing to meet with MNRF before receiving funding.
77MNRF responded by letter from the Minister dated June 20, 2012. The Minister advised that it was the Ministry’s position that SON was given notice of the quarry application in December 2008. The Minister confirmed that MNRF “is committed to fulfilling any duty to consult that may arise with respect to decisions contemplated by the ministry under the ARA.” The Minister went on to list what he understood to be the concerns raised by SON. The Minister then stated:
… the ministry is satisfied that the proponent has addressed all outstanding environmental concerns. I understand that [MNRF] has shared details as to how your concerns have been considered and addressed.91
The Minister then stated that MNRF was “in the process of forwarding the technical reports and comments” related to the application to SON and would be scheduling a meeting with SON, as suggested.
78MNRF then provided a further response to SON’s concerns by letter dated July 31, 2012. MNRF noted that in July 2012, MNRF had forwarded all technical reports to SON. In the letter, MNRF stated:
“At this point in time we are of the view that further technical reviews are not necessary.”
If SON raises an issue that would require further review, MNRF would consider any request for funding “in the context of [MNRF’s] internal expertise.”
MNRF understands that SON has received $200,000 “to improve capacity to engage in consultation.”
To date MNRF “have attempted to work with what SON has provided [MNRF].”
MNRF “would welcome any further substantive information relating to possible adverse impacts and proposed mitigation measures.”
Experts from MNRF and the Ministry of Culture had looked at the project “and with the mitigation measures in place [MNRF] is confident there should be no resulting adverse impacts based on our current understanding of the SON’s concerns.”
There is no specific requirement under provincial law for a “cumulative effects assessment.”
MNRF “has made multiple offers” to “either hold a meeting or to share information.”
MNRF “continues to be committed to considering any substantive concerns the SON may have with respect to the proposed project…. We welcome any further information that may be provided.”92
79Counsel for SON responded on August 24 and September 4, 2012. Counsel proposed September dates for a meeting. Counsel also repeated SON’s position respecting funding and responded to points raised by MNRF on this issue:
“SON cannot meaningfully participate in consultation unless it has capacity funding. That includes funding to engage experts to review the technical reports prepared in relation to the specific application, advise SON on possible adverse impacts, and propose further substantive mitigation measures to address SON’s concerns.”
Funding received by SON to build consultation capacity is not available to fund experts for a specific project like the Project.
MNRF seems to be taking the position that it has “sufficiently addressed all of SON’s concerns by meeting their own review standards and without any involvement of or consultation with SON since the Ministry received the application in 2008 through to developing mitigation measures.”
Counsel acknowledged that MNRF was prepared to make provincial experts available to SON. Counsel indicated that SON would accept this approach if these experts signed retainer agreements with SON so that their duties would be owed to SON. Finally, counsel acknowledged receiving some information from Hayes’ consultant, Davidson, and some other information from MNRF, but described its receipt of information as a having “trickled in over time.” Counsel explained that she had initiated a request under the Freedom of Information Act in order to be satisfied that she had received all of the pertinent information.93
80By letter dated September 13, 2012, MNRF responded, confirming a meeting for September 24, 2012. The letter also states:
As you are aware, there exists an onus on SON to make their concerns of possible adverse impacts to their rights known to the Crown. As we understand from your previous correspondence SON concerns relate to:
adverse impacts to adjacent land including wetland habitat;
on-site archaeological resources; and
adverse impacts to sensitive species including massassauga rattlesnakes.
To date SON has not elaborated on how these concerns have the potential to adversely affect their rights. With this in mind, it will be very helpful for the SON to provide specific details on what they feel the adverse impacts are in relation to this application.94
81MNRF wrote a further letter to SON dated September 21, 2012. This letter essentially repeats information in the letter of September 13, 2012, and adds further discussion about the possible use of Ministry experts by SON. MNRF advises that Ministry experts cannot enter into retainer agreements with SON, but that SON could rely upon the good faith of Ministry personnel.95
82There are handwritten notes but no formal minutes of the meeting of September 24, 2012.96 The concerns of the parties at the meeting were generally consistent with those expressed in the correspondence leading up to the meeting. SON took the position that it was not able to review and respond to the technical reports that had been provided without its own experts. The estimated costs for an initial response by SON experts remained at $13,000. MNRF did not agree to provide this funding, but did ask SON to send a budget for consideration.
83MNRF remained focused on SON’s substantive concerns and with identifying SON’s interests in the lands in the area of the Project. MNRF continued in its position that it had already provided appropriate ameliorative measures for the concerns raised by SON, all of which could be explained to SON by MNRF’s own experts.
84For its part, Hayes was anxious to proceed with the Project and wanted MNRF and SON to finish consultations without delay.
85On October 3, 2012, SON sent MNRF a proposed budget of $16,214 for initial consultations.97
86MNRF responded by letter dated October 22, 2012:
At the September 24th meeting we were hopeful that the SON would provide greater insight or detail about how the proposal may impact traditional rights and activities. While we share the frustration on behalf of the proponent that this did not occur, we acknowledge SON’s stated position… [on] the need for funding….
Both [MNRF] and the proponent remain committed to providing any and all information that SON may require to ensure an efficient review process. We continue to offer the sharing of technical experts for the purpose of providing insight and assistance about how this proposal may impact constitutional rights.98
MNRF then offered to fund $8,514.00 of SON’s budget. The reductions in SON’s proposed budget eliminated legal fees, costs for a hydrogeologist, and allowances for travel time. MNRF said that “[MNRF] is providing financial assistance for peer review for this situation only, this should not be expected in all circumstances.”99 It was implicit in this position that MNRF accepted that, for this project only, SON should be able to retain experts to help it assess technical reports provided by Hayes and MNRF.
87SON responded by letter dated November 13, 2012, asking MNRF to reconsider its position on reduced funding, making the case that SON needed all of the requested funding “to level the playing field”.100
88MNRF responded by letter dated January 4, 2013. In it MNRF provided “feedback on the role of MNRF in the licensing of aggregate operations, on the potential funding for consultation, and on our assessment of the Crown’s consultation obligations.” In this letter, MNRF sets out, really for the first time, its assessment of potential adverse impacts of the Project on SON:
“we do not believe there would be an impact to the SON’s food/social/ceremonial harvesting activities.”
“we do not believe there would be any impacts on your commercial fishing rights.”
“we do not believe that this application would have an adverse impact on the SON’s claim to the waters generally surrounding the Bruce Peninsula.”
“the subject property exhibits a low potential for the discovery of archaeological resources.”
MNRF also noted its analysis of the potential impact of the Project on nearby wetlands, and ameliorative requirements connected with a haulage road to be used for the Project. MNRF then commented, near the end of the letter:
We have considered the activities mentioned above based on the information that is currently available to us. If there are additional activities which the SON believes may be affected by this application we would like to know what these are. We will be happy to discuss these concerns to determine next steps including the need for additional studies or resources.101
Up to this point MNRF had not communicated to SON that it had assessed the duty to consult, the scope of that duty, or that it had decided the consultation process to be followed to meet the scope of required consultation. MNRF’s letter of January 4, 2013 stated, in effect, that MNRF had concluded that there was no duty to consult, but that it was willing to consider further information from SON about potential adverse impacts on SON’s treaty or Aboriginal rights.
89SON responded to MNRF by letter dated January 25, 2013. SON noted, correctly, that MNRF’s letter of January 4, 2013 failed to respond to SON’s letter of November 13, 2012. SON had asked MNRF to reconsider its decision to reduce SON’s budget. MNRF’s letter of January 4, 2013 had said nothing about this issue. In its letter of January 25th, SON repeated its position that its original budget was necessary to participate properly in consultations. However SON also proposed an intermediate approach:
… if we proceed based on the funding offer you have made thus far, it would have to be without prejudice to our right to require more funding if further study and assessment is necessary to ensure that consultation is complete.102
90By letter dated February 11, 2013, MNRF purported to terminate consultations:
In previous correspondence, and more specifically in our January 4, 2013 letter, we outlined how the ministry has reviewed the application and considered identified activities, including the land claim and harvesting rights.
Based on our assessment of the information provided to date, we do not feel that consultation to address impacts to these activities is required. In our January 4th letter we did encourage and continue to encourage the communities to advise us if there are other activities that may be impacted.
Please be advised that, subject to hearing from the communities about other activities that may be impacted, Ministry staff will be making a recommendation for the Minister to approve this application. This recommendation will be forwarded within 30 days of the date of this letter.103
91SON responded by letter dated February 28, 2013. The thrust of the letter is summarized in one paragraph:
We are assuming from your letter that the [MNRF] has unilaterally decided to rescind its previous offer to provide any resources to engage in a proper consultation process, and in fact to provide [SON] with any meaningful opportunity for consultation in accordance with [MNRF’s] constitutional duty to consult and accommodate.104
92SON had a strong basis for this position. In October, MNRF offered to fund most of SON’s proposed expert costs. When asked to fund the rest, MNRF did not respond but instead advised that it considered that the Project would have no material effects on SON’s rights. When SON (i) asked for a response to its request to reconsider the funding issue, and (ii) proposed proceeding without prejudice on the basis of MNRF’s October funding decision, MNRF purported to terminate consultations.
93The Minister did not immediately approve the Project license, as had been indicated in MNRF’s letter of February 11, 2013. Instead MNRF and SON met on March 25, 2013.105 During this meeting the essential disagreement continued: SON took the position that it did not have funds it required to participate meaningfully in consultations. SON leaders stated that they were not “prepared to spend community money reviewing someone else’s project.” MNRF pressed questions focused on the basis of SON’s claim that the Project could affect SON’s treaty or Aboriginal rights. SON indicated that it hunted on adjacent lands. SON indicated that a preliminary review by SON’s hydrogeologist led them to be concerned that the hydrogeology report presented by Hayes was not correct. SON expressed concern that there had not been a proper archaeological assessment, and that the letter from the Ministry of Culture was not sufficient, given past errors by that Ministry that had led to disruption of ancient burial sites. Environmentally, SON expressed concern about culturally important medicinal plants and disruption to wildlife corridors that could impact rattlesnakes, deer and other species.
94A further meeting was held June 20, 2013 at MNRF offices in Owen Sound among MNRF, SON and Hayes. From the minutes it seems that this meeting was preparatory to formalizing a consultation agreement. A summary comment at the end of the minutes states:
The meeting adjourned with an understanding that SON would submit a draft agreement including a budget to Mr Hayes by July 12th, 2013. Mr Hayes said that he would review the proposed agreement and budget and make a decision on whether the application can move forward or not.106
The parties’ positions on underlying issues appear to have been largely unchanged at this meeting. Hayes was concerned that the application had been pending since February 2008, and Hayes had done everything asked of it by MNRF. SON said that it should have been involved from the outset, and that now it needed funding to review the work that had been done before it was involved. MNRF continued to doubt the potential adverse impacts on SON treaty and Aboriginal rights. The conclusion was that SON would propose a process and budget to Hayes, which would then consider SON’s proposal and make a decision. The nature of that decision was ambiguous: “whether the application can move forward or not.”107
95By letter dated July 10, 2013, SON provided a draft agreement for “preliminary assessment” of the Project. SON advised that the draft agreement “details our minimum requirements at this stage that would allow for proper consultation and accommodation to occur in the near future – before any quarrying is approved.”108 SON noted that MNRF had indicated that it wanted the agreement to be between SON and Hayes. SON advised that it was prepared to proceed in that fashion provided it was understood that the duty to consult remained that of the Crown. SON ended its covering letter by noting that it believed that it would be helpful if there was a standard process for reviewing quarry applications in future:
The best way to approach consultation and accommodation about all proposed aggregate activities in SON’s territory is for [MNRF] to develop a protocol with us about how that can be done. This would provide clarity to both SON and to operators seeking to do business in our territory. If proponents are going to be delegated aspects of the Crown’s duty to consult and accommodate, then [MNRF] should make that clear to both operators and to SON. We are pleased to see some progress with respect to this project, but we would like to continue to emphasize that dealing with these matters on a case by case basis has not been effective in ensuring that the Crown’s consultation and accommodation obligations to us are met. We hope that the progress we are seeing here is a sign of a different way forward, and remain open to discussing that way forward with both [MNRF] and proponents seeking to operate in SON’s territory.109
96By letter of August 28, 2013, from MNRF to Hayes, with a copy to SON, MNRF set out the process to be followed going forward for consultation about the Project with SON. This letter appears to conclude nearly two years of discussions establishing a consultation process.
(1) In the first paragraph, MNRF confirmed that at the meeting of June 20, 2013, “it was decided that, as the project proponent…, [Hayes] would be best placed to move forward with the discussions with SON to address their outstanding concerns regarding the Application.”
(2) In the second paragraph, MNRF described the nature of the Crown’s duty to consult and noted that “although the duty to consult… is a duty of the Crown, the Crown may delegate procedural aspects of this duty to project proponents while retaining oversight of the consultation process.”
(3) In the third paragraph and a bulleted list following that paragraph, MNRF summarized its account of the history of discussions with SON, including listing “technical information and documents” provided by MNRF to SON.
(4) In the fourth paragraph, MNRF summarized the purpose of this letter: “to confirm that [MNRF] is now delegating certain procedural aspects110 of the duty to consult to [Hayes]… [and] to clarify the respective roles of the Crown and [Hayes] in fulfilling any duty to consult on the Application that may be required.”
(5) In the fifth and tenth paragraphs, MNRF indicated that MNRF will monitor Hayes’ consultations with SON and may choose to participate in the consultations. MNRF stated that it would retain responsibility for: “assessing the scope of consultation owed to [SON]” and “assessing the adequacy of consultation and any accommodation, where required.”
(6) In the sixth to eighth paragraphs, MNRF enumerated SON’s outstanding concerns, and indicated that it expected Hayes “to continue to discuss with SON their concerns” including sharing “pertinent technical information” and “identification and consideration of potential mitigation or other accommodation measures.” MNRF indicated that this consultation could require “retaining additional expertise.” MNRF indicated that it expected Hayes to “bear the reasonable costs” associated with these steps and to “provide reasonable assistance, including financial assistance where appropriate, for SON to participate in the consultation process.”
(7) In the ninth paragraph, MNRF set out requirements for Hayes to report to MNRF on the consultation process.
(8) In the eleventh and twelfth paragraphs, MNRF addressed issues related to technical requirements for the consultation process and confirmation by Hayes of its role.
This letter from MNRF is a watershed in the consultation process. From this letter, SON understood that finally, after nearly two years of discussions, its request for a formal consultation process had been accepted, and that it would be dealing directly with Hayes for this process, including in respect to funding.111 Implicit in the letter was an acknowledgement by MNRF that an adequate consultation process had not yet taken place.
(g) Hayes’ Consultation Activities September 2011 to August 2013
97Hayes’ land use planning consultant, Davidson, sent Project documents to SON in the fall of 2011, shortly after SON’s first letter to MNRF. Hayes attended two meetings with MNRF and SON – the first in September 2012 and the second in June 2013. Hayes was sent SON’s proposed consultation agreement and budget in July 2013, and Hayes was sent MNRF’s letter of August 2013, delegating consultation responsibilities to Hayes. Hayes did not otherwise deal with SON between September 2011 and August 2013.
(h) Findings for September 2011 to August 2013
98On September 9, 2011, SON came forward to MNRF to assert its right to be consulted about the Project. SON identified the basis of its alleged right to be consulted by stating its preliminary concerns about the Project. SON requested and subsequently received technical reports and other documents related to the Project. SON advised that it was not able to review the technical reports or provide further input without funding for its participation. It made this position clear in October 2011.
99In April 2012, MNRF refused to fund SON’s participation in consultations. It provided no reasons for this refusal. Subsequently MNRF asked for a budget of consultation costs. SON provided this. In October 2012, MNRF agreed to provide about half the requested budget, after removing costs for a hydrogeological consultant, legal fees, and travel expenses. SON disagreed with MNRF’s budget reductions and asked MNRF to reconsider. MNRF did not respond to this request. Then in January 2013, SON proposed going forward with MNRF’s agreed funding, without prejudice to seeking further funds later. MNRF did not respond to this suggestion. Instead it purported to terminate consultations and to recommend approval of a license for the Project in February 2013. MNRF then apparently changed its position and met twice with SON, and in June 2013 requested SON to prepare a consultation agreement and budget for consideration by Hayes. And then, in August 2013, MNRF delegated consultation with SON to Hayes, including SON’s requests for funding, while retaining oversight of the consultation process.
100Based on this history, I find:
(1) From September 2011 to January 2013, MNRF consistently challenged SON’s claims to have material interests that could be affected adversely by the Project.
(2) MNRF either did not assess whether it had a duty to consult SON or concluded on a preliminary basis that it had no such duty between September 2011 and March 2013.
(3) These positions are inconsistent with MNRF’s evidence that it identified and scoped a duty to consult in 2009.
(4) From September 2011 to January 2013, MNRF did not advise SON:
(a) that it had found a duty to consult in 2009;
(b) that it had “scoped” that duty at the “low” end of the spectrum;
(c) that it had concluded that the scope of the Crown’s duty to consult could be discharged by notice to SON and provision to SON of information about the Project;
(d) that MNRF was reassessing the Crown’s duty to consult; or
(e) the results of MNRF’s reassessment of the Crown’s duty to consult.
(5) In November 2011, SON asked for funding of $13,000 for expert assistance to participate in consultations. MNRF rejected this request in April 2012. MNRF gave no reasons for this rejection other than the statement: “[u]nfortunately, we are not in a position to provide the funding requested.”
(6) Following a meeting and further negotiations, in October 2012 MNRF agreed to fund SON $8514 for peer review of technical reports. This agreement was premised on acceptance of SON’s position that SON would obtain peer reviews and then further consultations would take place.
(7) In January 2013, in the absence of any material change in circumstances since October 2012, MNRF resiled from its position of October 2012. It advised SON that there was no duty on the Crown to consult SON about the Project because SON’s rights would not be affected materially by the Project. In so doing, MNRF discharged the Crown’s duty to consider whether duty to consult arose, and also for the first time, discharged its obligation to advise SON of its conclusion on this issue. However, MNRF’s conclusion was wrong: the parties agree that the duty to consult did arise. In erring on this issue, MNRF breached the Crown’s duty to consult.
(8) In February 2013, in the absence of any material change of circumstances since October 2012, MNRF purported to terminate consultations and told SON that it would recommend that the Minister approve the Project license. This decision continued MNRF’s breach of its agreement to fund SON and then conduct further consultations.
(9) In March and June 2013, MNRF met with SON to discuss ways of moving forward with consultations, contrary to the positions taken by MNRF in its letters of January and February 2013, and in a manner which, though not inconsistent with the funding agreement in October 2012, seemed to ignore it.
(10) On August 23, 2013, MNRF established a process by which Hayes would consult with SON (including addressing SON’s funding requests), and MNRF would monitor the sufficiency of consultations. This letter was premised on the principles that (a) the Project gave rise to a duty on the Crown to consult SON; (b) this duty had not been fulfilled by August 28, 2013; and (c) particulars of the consultation process, including funding, would be worked out between Hayes and SON, with MNRF maintaining oversight to ensure that the duty to consult was discharged.
(11) Despite the substantial problems in the consultation process between February 2008 and August 2013, the process described in MNRF’s letter of August 28, 2013 could have fulfilled the Crown’s duty to consult in this case, if it had been completed in a reasonable way before a license was issued to Hayes.
(i) No Consultations from August 2013 to March 2016
101The letter of August 28, 2013 established a process for consultations. Then, as far as SON was concerned, nothing happened.
102The next correspondence in the file, for SON, was a letter from MNRF to Hayes, copied to SON, dated June 13, 2014.112 It is a “follow-up” to MNRF’s letter of August 28, 2013. In it, MNRF asked Hayes to report on the status of consultations with SON:
“The provision of this information is critical for [MNRF] to assess the scope of consultation owed to [SON] as well as assessing the adequacy of consultation and accommodation, where required.”113
It is not clear what MNRF meant by “assess the scope of consultation owed to [SON].” MNRF says that it made an initial assessment in 2009. In January 2013, MNRF apparently concluded that there was no duty to consult. In February 2013, MNRF purported to terminate consultations. In August 2013, MNRF established a consultation process. And then in June 2014, MNRF suggested that it continued to assess the required scope of consultation. The jurisprudence is clear that the scope of the duty may change as new information comes to light, but at this point in the events, setting out and following a coherent consultation process should have been MNRF’s dominant objective.
103SON did not receive a copy of a reply to MNRF from Hayes to MNRF’s letter of June 13, 2014, or any further follow-up letter from MNRF.
104The next thing that happened, for SON, is that MNRF approached a well-known archaeologist to assess the Project. SON was not consulted about this assessment, and had recently been told by MNRF staff “that there has been no activity on this application [the Project].” SON wrote to MNRF on December 23, 2014, to ask what was going on:
As of July 2013, and after extensive correspondence and meetings with respect to setting up an adequate consultation process, we had provided a budget and draft agreement to [Hayes], per the direction of [MNRF] that specific aspects of the duty to consult and accommodate were being delegated to the proponent. To date we have received no response from the proponent. So, consultation and accommodation has still not taken place.114
105MNRF responded by latter dated January 23, 2015. In it, MNRF confirmed that it had sought estimates for Stage 1 and Stage 2 archaeological assessments of the site. MNRF indicated that it was “also hopeful that we can meet with you and the proponent in the near future in order to share our progress and seek your feedback with respect to resolving outstanding concerns.”115 Subsequently MNRF contacted SON to try to arrange a meeting. This letter carried with it a potential repudiation of MNRF’s letter of August 28, 2013: there had been “progress” since that time which MNRF wanted to “share” because it had not involved SON. MNRF hoped for “feedback” in order “to resolve outstanding concerns” without acknowledging that the agreed premise of consultations since October 2012 involved funding for SON experts, a premise that was fundamental to the meetings in March and June 2013, SON’s proposal of July 2013, and MNRF’s letter of August 28, 2013. It was almost as if MNRF considered that none of that had happened.
106SON responded in a letter sent February 17, 2015.116 After summarizing the history of the matter, SON wrote:
Now it seems the approach has changed: MNRF has been taking steps itself to address what it believes SON’s concerns to be…. We cannot understand why the previous approach articulated in 2013 was abandoned, nor why MNRF is now taking these steps without involving SON. As stated, that simply misses the point.
We have always been clear in our position with respect to consultation generally: you need to involve SON in developing a process for consultation. That must include early engagement and there must be funding for SON’s involvement, including SON’s independent review of any studies [and] assessments that are done. That remains our position.
Despite making it clear that SON is concerned about aggregates development in its territory, MNRF has not cooperated with SON to create a clear process. That leaves both proponents and SON guessing at what MNRF is going to do to ensure the duty to consult and accommodate is met.117
107MNRF responded by letter dated March 9, 2015. MNRF started by summarizing the nature of the license application and then noted:
We understand that the process, with respect to the duty to consult for this application, has been difficult, and hope this letter provides clarification and suggests some clear next steps.118
In respect to the funding issue, MNRF stated “MNRF is prepared to provide SON with $8514 as proposed in our letter dated October 22, 2012.” MNRF states that
[t]his offer was not rescinded and we hope to provide the funding to SON as soon as possible, should you accept the offer. At this time MNRF is not prepared to provide additional funding.
MNRF then proposed a meeting “to discuss SON’s concerns, and proposed mitigation as outlined” in the letter. The letter then reviewed what MNRF described as “SON’s concerns and proposed mitigation.” MNRF then listed four concerns identified by SON and summarized in some detail the “mitigation measures” to be incorporated into the site plans as a response.119 With respect, it was disingenuous to say that the funding offer “was not rescinded.” In February 2013, SON accepted the offer, without prejudice to its request for further funding. MNRF did not provide the funding or respond to SON’s position. Then in August 2013, MNRF told SON to seek its funding from Hayes.
108SON responded by letter dated April 30, 2015, reiterating SON’s position that it had not been able to participate meaningfully in consultation because of the lack of funding, and the consequent inability to review technical reports. SON suggested that a substantive meeting would not be fruitful until its experts reviewed the technical reports and mitigation measures, something that could not happen without funding. SON stated:
The funding that will be provided by MNRF of $8514 is a start and we would be pleased to begin the work that we will need to do upon receipt of this funding. However, we stress the need for reimbursement of all costs incurred to date as well as funding pursuant to a mutually agreed upon budget, which would include hydrogeology and legal….120
109MNRF responded to SON’s letter by letter dated July 9, 2015. In this letter MNRF provides the following history of recent events on the file:
As of February 11, 2013, MNRF considered that the proposal “had no potential impacts on Aboriginal and treaty rights.”
MNRF attended a meeting with SON on March 25, 2013 after which MNRF “acknowledged that consultation to discuss SON’s perceived impacts and potential mitigation measures was required.”
Subsequent to the meeting of March 2013, “MNRF delegated procedural aspects of consultation to the proponent.” MNRF wrote that in response to this delegation, the Proponent “has taken steps to address SON’s concerns including identification and consideration of potential mitigation or accommodation measures” as outline in MNRF’s letter of March 9, 2015.
MNRF was satisfied that the proposed mitigation measures adequately addressed all the concerns identified by SON other than archaeological concerns. These latter concerns were still the subject of ongoing study which, it was anticipated, would conclude after another round of study.
MNRF remained “committed to providing the original $8514” and also, after further consideration, was prepared “to provide an additional $2400” for hydrogeological expertise, for total funding of $10,914.
MNRF enclosed an invoice from SON to MNRF reflecting the funding MNRF was prepared to pay, which required a signature from SON and delivery back to MNRF. MNRF closed by indicating that it considered the matter now concluded, subject to receipt of the final archaeological report and any follow-up mitigation measures:
Pending any recommendations, and upon implementation of any outstanding mitigation measures, we will be bringing forward a recommendation to direct our Minister to approve this application.121
110SON responded to this letter by letter dated December 18, 2015:
… SON will accept the $10,914 offered by MNRF in order to complete a technical assessment and determine the impacts of the project on the SON. SON is accepting this funding offer under duress, as our position remains that consultation and accommodation, as required by law, has still not been met with respect to this file.
Your summary of this file disregards SON’s efforts (at substantial cost to SON) from 2011 to 2013 to convince MNRF staff that there was a duty to consult and accommodate. You also fail to acknowledge that after your delegation of aspects of the duty to consult and accommodate to the proponent, there was no engagement with SON by either the proponent or the MNRF. Participation in the process that stands to affect our rights is a basic requirement for engagement with SON and to meet the duty to consult and accommodate.122
111MNRF responded by letter dated February 3, 2016. In it MNRF thanked SON for its letter in which SON accepted the $10,914. The letter then stated:
I want to clarify that the provision of these funds is in recognition of costs incurred to date (as stated in our July 9, 2015 letter) and not for future technical assessments regarding this file. In order to provide these funds to SON, MNRF requires that the attached invoice be signed and returned.123
The attached invoice then set out the budgeted amounts for SON’s technical experts – costs that (with one possible exception), had not been incurred. No doubt this was not the intention, but this letter added insult to injury. It refused to fund the costs of experts sought by SON to participate in consultations and which had been agreed by MNRF back in 2012, and yet required SON to bill for those costs in order to receive payment “in recognition of costs incurred”. The letter went on:
As stated in our letter dated July 9, 2015, after our meetings on March 25, 2013 and June 20, 2013, MNRF delegated the procedural aspects of consultation to the proponent. In response to this delegation, the proponent took steps to address SON’s concerns including the identification and consideration of potential mitigation or accommodation measures.124
This passage repudiated the process set out in MNRF’s letter of August 2013 and at the same time asserted that the process had been followed by Hayes. This assertion is based on Hayes’ position that two of its experts spoke to two of SON’s experts. Apparently MNRF accepted this information from Hayes uncritically or it endorsed a fundamentally flawed approach to consultations by Hayes, as discussed below. The letter went on:
Based on our assessment at this time, MNRF is satisfied that SON’s concerns, as identified in the March 25, 2013 meeting, have been adequately addressed and SON has been provided with the appropriate funding to engage in the process.125
It is very difficult to continue to give MNRF the benefit of the doubt and to infer good faith when reading this. SON’s concerns in March 2013 were that it had not been consulted and did not have the funding to participate in consultations. SON was not only not “provided with the appropriate funding”, it was not provided with promised funding or, indeed, any funding at all.
112By letter dated February 18, 2016, SON responded to MNRF that it did not consider that meaningful consultation had taken place and that it was not prepared to participate or comment further on the application in the absence of a commitment to a “meaningful and adequate consultation and accommodation process.”126 SON returned a signed invoice showing the $10,914 as a “first instalment” of SON’s consultation costs.
113On February 19, 2016, MNRF wrote back to SON indicating that the invoice could not be processed as a “first instalment”, but that if SON wished to resubmit an invoice only for the $10,914, the payment would be made. This letter also confirmed that a recommendation would be made to the Minister to approve a license for the Project.127
114The Minister approved a license for the Project on March 8, 2016.128 The license permits Hayes to remove more than 20,000 tonnes of aggregate annually. SON was not advised of this approval until July 14, 2016. The absence of timely notice to SON of the approval was an inadvertent mistake by MNRF.129
(j) Hayes’ Consultation Activities August 2013 to March 2016
115It is clear that Hayes became increasingly frustrated by the long delay in the process for approving its application. When, in August 2013, it received the letter from MNRF that said that Hayes would be responsible to consult with SON and to fund SON’s participation in those discussions, it balked. Hayes responded firmly to MNRF that consultation was the Crown’s obligation, and that MNRF had already said that it would handle First Nations’ concerns at no cost to Hayes;130 and (c) that Hayes would not, at this late juncture, undertake consultations with SON.
116Hayes’ President, Ted Hayes, contacted his local Member of the Provincial Legislative Assembly (Bill Walker, MPP for Bruce-Grey-Owen Sound), who in turn contacted the Minister of Natural Resources and Forestry (Hon. Bill Mauro), to bring the slow progress of the application process to the Minister’s attention. The goal was to obtain intervention from the Minister to get the license issued.131 There is some evidence that Mr Walker advised Hayes not to deal directly with SON.132
117There was correspondence and there were meetings between Hayes, MNRF and the Minister’s office on these issues. SON was not included in or copied with these communications.133
118After receiving MNRF’s letter of August 28, 2013, Hayes did not deal directly with SON. Hayes did not advise SON that it would not engage in the consultations delegated to it by MNRF. And Hayes did not respond to SON’s inquiries after August 2013. Hayes did have dealings with MNRF and others associated with Ontario, but SON was not privy to these other dealings.
119Hayes did, however, instruct its hydrogeologist, Flanagan, to speak directly with SON’s hydrogeologist, Blackport. Hayes also instructed its archaeological consultant, Golder, to invite SON to “monitor” the Phase II archaeological assessment being done by Golder. None of this was on notice to SON by either Hayes or MNRF. SON’s evidence is that it was unaware of the conversation between Flanagan and Blackport.134 It is not clear what SON’s response was to Golder’s invitation, on short notice, to monitor the archaeological assessment.
120What is clear is that these steps to “consult” were taken without any direct contact between Hayes and SON, without any response to SON’s proposed consultation agreement, without any funding provided to SON, and with no established process for consultations. When these events are seen together with Hayes’ refusal to undertake consultations and its communications to the local MPP and the Minister, it is absolutely clear that Hayes wanted nothing to do with direct dealings with SON.
(k) Summary of Events 2013 to 2016
121Based on these events I find:
(1) In its letter of August 28, 2013, MNRF delegated to Hayes the process of consulting SON, including funding SON to participate in consultations.
(2) Hayes objected to this unilateral delegation. Hayes refused to deal directly with SON and instead took the position that the Crown was responsible for consultations, not Hayes. The stand-off between MNRF and Hayes on this issue continued for over a year, during which time there were no consultations with SON. SON was not told by Hayes or MNRF why consultations were not moving forward.
(3) Based on the letter of August 28, 2013, SON reasonably understood that MNRF agreed that consultation should include SON’s informed participation in discussions respecting SON’s enumerated areas of concern. SON also reasonably understood that to enable its informed participation, it would receive funding for costs of experts.
(4) MNRF’s delegation to Hayes was consistent with the Crown’s duty to consult but did not relieve the Crown from ensuring that adequate consultation took place.
(5) Hayes was not required to undertake the delegated consultation (though one consequence of refusing to undertake this role could have been an adverse decision on its license application).
(6) The failure of Hayes and MNRF to consult with SON from August 2013 to January 2015 disappointed SON’s reasonable expectations arising from MNRF’s letter of August 2013.
(7) Once MNRF advised that the process described in its letter of August 2013 would not be followed, MNRF needed to specify an alternate process to discharge the Crown’s duty to consult SON. If that alternate process was to reduce SON’s participation from the process described in the letter of August 2013, MNRF should have so advised SON and should have explained the reason(s) for this change. In view of the troubled history of consultations in this case, it would have been important for MNRF to take care to explain to SON how things would unfold going forward. That is not what happened here. MNRF acknowledged a duty to consult but never specified a new process for consultation. I conclude that MNRF’s failure (a) to replace the process described in the letter of August 2013 with a comparable process; and (b) to explain why the process moving forward would be materially different for SON’s participation, were breaches of the Crown’s duty to consult with SON.
(8) MNRF’s position in early 2015 was, in effect, that Hayes had adequately addressed SON’s substantive concerns. The recognition of the importance of a participatory process, which underscores MNRF’s letter of August 28, 2013, is undercut by this change of position. I find that this was a breach of the Crown’s duty to consult with SON, and, at its heart, undermined the basic premise of constructive consultations: (i) it rejected the position, previously accepted by MNRF, that SON should receive funding for experts to advise in connection with the consultations; (ii) it rejected the position, previously accepted by MNRF, that further consultations were required to discharge the duty to consult; and (iii) it rejected a constructive consultation process itself by resiling from previous positions with no principled reasons for doing so, and by recasting the history of consultations in a manner that did not fairly reflect what had happened. 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.
(9) MNRF then terminated consultations (a) without providing promised funding to SON to obtain expert assistance; (b) while claiming that the funding had been provided; (c) while offering to still provide the funding, but on the basis that there would be no further consultation after SON obtained expert advice; (d) while asking SON to provide an invoice for expert services that MNRF knew had not been purchased by SON. MNRF did agree to provide promised funds to SON – that much was consistent with the honour of the Crown based on past dealings. Everything else about the way that MNRF dealt with this issue was a repudiation of MNRF’s past positions, and on one level, insulting to SON, premised as it seems to be on the idea that SON would sign and return to MNRF a false invoice in order to obtain about $10,914.
(10) In repudiating its previous positions, without any principled reasons for doing so, and terminating consultations before providing funding to SON, before SON obtained expert assistance with the promised funding, and before further discussions with SON based on the advice SON received from its experts, MNRF repudiated its own process, failed to replace it with another adequate process, and thereby failed to discharge the duty to consult SON as it had said it would. This repudiation and failure breached the Crown’s duty to consult SON.
122SON agreed to move forward in January 2013 on the basis of $8,514 in funding for experts. It was not reasonable for MNRF to have failed to provide this funding shortly after that time. Had that happened, it is probable that initial substantive consultations on all issues other than hydrogeology would have been completed by mid-2013. It is not possible to know now whether SON’s substantive concerns would have been addressed to its satisfaction by that point. Just as it is not possible to know now whether current ameliorative measures directed by MNRF will be satisfactory to SON.
123The proper process now, is for MNRF to fund SON as it agreed to do, for SON to obtain the expert assistance it requires, and for the parties to then discuss SON’s concerns. It will be for the Crown to decide what process to follow if unresolved issues remain after these consultations.
124The failure of the Crown, in this case, is primarily a failure to follow its own processes. Consultation processes are not cast in stone, and may change or evolve over time. However, that is not what happened in this case. MNRF changed its positions several times, but not, so far as can be determined from the record, because of material changes in circumstances regarding SON.
125This leads to a rather trite observation. It is for the Crown to devise the consultation process. The Crown must assess the scope of consultations correctly, but the adequacy of the consultation process is reviewed on a reasonableness standard. Once the Crown establishes a process, if it decides to change that process in a material way, generally it is not reasonable to effect the change without explaining the change, and the reasons for the change, to the First Nation. Here that was not done. That failure was a breach in the Crown’s duty to consult.
(l) SON’s Substantive Concerns
126SON’s stated substantive concerns are and have always been raised on a preliminary basis. This is because SON says that it lacks the technical expertise to review Hayes’ and MNRF’s technical reports and documents. Until SON had a chance to get advice on those materials, it was not prepared to provide a definitive list of concerns or to comment on ameliorative measures.
127It would be open to the Crown, in an appropriate case, to reject a request for funding and to decide that a First Nation did not require expert assistance to participate adequately in consultations. Such a decision would be reviewed in this court on a standard of reasonableness. In this case, however, the Crown did agree to fund the cost of experts for SON. Having agreed to fund those costs, it was unreasonable for MNRF to then fail to do that. No new information emerged that would have borne upon the Crown’s agreement to fund these costs. Thus, in finding that the Crown is obliged to provide this funding in this case, I do no more than find that the Crown is obliged to keep its word where there is no basis on which the Crown should be relieved of its agreement.
128The “merits” of MNRF’s position on SON’s “substantive concerns” primarily involves consideration of whether MNRF’s views of potentially adverse effects of the Project on SON are reasonable, and whether MNRF’s conclusions about reasonable amelioration of those potential effects are reasonable. My conclusion is that SON has not been consulted adequately on either of these points. My conclusion is that a process had been established and then not followed for those consultations. A review of the reasonableness of MNRF’s substantive conclusions is thus, premature. Consultation is a process involving a First Nation. Imposing MNRF’s view of what is reasonable, without adequate consultation with SON, would be to endorse a version of paternalism entirely inconsistent with the duty to consult: it would be tantamount to saying “we know what is best for you and we don’t need to hear from you on that issue.”
Part V - Issues
129SON argues that the following issues are raised on this application for judicial review:
(1) Duty to Consult and Accommodate
(a) What is the standard of review?
(b) Was the duty to consult triggered in this case?
(c) If the duty to consult was triggered, what was the scope of the Crown’s duty to consult and accommodate SON in this case?
(d) Was the Crown’s duty to consult and accommodate met before the Minister issued the License?
(2) Procedural Fairness
(a) What is the standard of review?
(b) Did the MNRF meet its duty of procedural fairness it owed to SON in this case?
130In view of my conclusions respecting the first set of issues, it is not necessary to decide the procedural fairness issues raised by SON. The issue of an appropriate process for the consultations yet to come is for the Crown to decide, subject to the findings this court, given the history of consultations to date.
131There have been many problems with the consultations in this case. These need to be approached constructively. The goal is to get consultations on track in a way that fosters constructive relationships moving forward. And for this court, the measuring stick, whether of correctness or of reasonableness, is applied to the status of consultations as they are at the time of the application before us. And where the court is not satisfied that the Crown has discharged duties owed to a First Nation, the goal is to provide direction to put the parties back on track, not to punish or castigate.
1. Preliminary Issue - Jurisdiction
132This court has jurisdiction over this application for judicial review by virtue of ss. 2(1) and 6(1) of the Judicial Review Procedure Act.135
2. Issue #1 – Duty to Consult and Accommodate
a. Standard of Review
133On judicial review, questions of law are reviewable on a standard of correctness. Questions of fact are reviewable on a standard of reasonableness. Questions of mixed fact and law will generally involve some deference towards the decision-maker, based on the extent to which the issue is one of fact or one of law.136
134Crown decisions as to whether there are duties to consult or accommodate are reviewable on a standard of correctness. The Crown’s assessments of the extent of these duties are generally questions of law, reviewable on a standard of correctness, because they define legal duties.137 Thus if the Crown misconceives the seriousness of a claim or the impact of infringement, this will be reviewable on a standard of correctness.138 That said, “scoping” the duty to consult can involve questions of fact, and where it does, the Crown’s factual findings are to be reviewed on a standard of reasonableness.139
135The “effect of good faith consultation may be to reveal a duty to accommodate.”140 The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness.141 Counsel for MNRF in written submissions argues “that the extent and scope of the duty to consult and the adequacy of consultation are questions of mixed fact and law to be assessed on a standard of reasonableness.”142 The Supreme Court of Canada is explicit that the standard of review is different for assessing the scope of the duty to consult and, if there is a duty, for assessing the adequacy of consultations. Combining the two steps of the inquiry into one with a common standard of review is, expressly, not what the Supreme Court of Canada has said.
136Process decisions of the Crown may be revisited in light of new information or circumstances. The standard of reasonableness will generally require the Crown to keep the First Nation advised of process changes and reasons for process changes so that the process is coherent and systematic and is seen to be fair and not arbitrary.
b. Duty to Consult Was Triggered
137SON and the Crown agree that the duty to consult was triggered in this case.
c. Scope of the Duty to Consult and Accommodate
138The scope of the duty to consult falls along a spectrum rather than in hermetic categories. The scope is to be based on (i) the nature and strength of the Aboriginal or treaty right (including asserted rights and title), and (ii) the seriousness of the impact on that right.
139Although the law in this area is nascent, the jurisprudence is developing a rough typology that describes the duty to consult as at the “low end”, the “middle” and the “high end” of the duty to consult. This seems to result in five general positions – the three just described, and two gradations between “low” and “middle” and between “middle” and “high”. This is fine as a form of shorthand, but these five general positions should not be seen as tight “compartments” carrying with them defined procedural requirements. Otherwise the analysis will quickly devolve into the kind of compartmentalized categories against which the Supreme Court of Canada warned in Haida Nation.
140In this case, MNRF says the scope is between low and the middle. SON says it is between the middle and high.
141In view of the process that was agreed between the parties, I find that:
(a) the “scope” is in “the middle”;
(b) this scope requires the Crown:
(i) to give notice to SON, by giving formal notice of the Project to the SON Environment office;
(ii) to give information to SON about the Project;
(iii) to provide SON with the $10,914 in funding that MNRF agreed to fund, for use by SON for the expert assistance, as described in SON’s budget in October 2012;
(iv) to communicate with SON about SON’s concerns regarding the Project after SON has the benefit of its expert advice;
(v) to follow a reasonable process thereafter to complete adequate consultations, and, where appropriate, accommodation.
d. Was the Duty to Consult Met
142None of the steps required to discharge the duty to consult were met in a timely way. The requirement for notice was met when MNRF confirmed the status of the project in response to an inquiry from SON in October 2011. Information about the Project was provided on an ongoing basis starting in September 2011.143 Steps (iii), (iv) and (v) have not yet taken place.
143Delay in performance of steps (i) and (ii) may be cured by subsequent events. The failure to complete steps (iii), (iv) and (v) has not been cured by subsequent events. It therefore follows that the duty to consult has not yet been met by the Crown.
3. Conclusion
144During my detailed review of the dealings among the parties I made numerous findings that various acts or omissions by MNRF were “breaches” of the Crown’s duty to consult. As noted above, Treaties are not to be construed like commercial agreements. Similarly, the conduct of the parties during consultations is not weighed on the basis of contract law. The repeated “breaches” rendered the Crown duty to consult undischarged, and nothing more. Thus when an adequate consultation process is completed, any prior failures in the process will have been cured. The only remedy for past problems in the process lies in a request for funding to cover associated costs for SON, a request that the Crown will be obliged to decide reasonably, given all the circumstances.
145In the result, based on the foregoing, I conclude that the Crown has failed to discharge its duty to consult SON about the Project.
Part VI – Additional Issues
146Several additional points were raised before us:
(1) admissibility of the affidavit of Todd Fell;
(2) allegedly improper communications excluding SON;
(3) SON’s alleged interest in general environmental stewardship
(4) consideration of Cumulative Effects
(5) general requirement to fund First Nation consultation costs
(1) admissibility of the affidavit of Todd Fell
147Mr Fell’s affidavit is framed as expert evidence relating to ecology/natural heritage issues. MNRF objects to it because (i) it was not before the Minister when he approved the license; and (ii) Mr Fell is not a properly qualified expert.
148Mr Fell’s affidavit is probative in respect to whether (a) there is a duty to consult; (b) the proper scope of consultation includes an opportunity for SON to obtain independent expert advice. The first issue – whether there is a duty to consult – is admitted. The second issue – scope – is not. I would refuse to strike the affidavit because it is relevant to this second issue: it is evident from reading Mr Fell’s affidavit that SON – or any non-expert – could not reasonably be expected to appreciate the ecology/natural heritage issues without expert advice.
149I would decide the second issue in favour of SON without relying upon Mr Fell’s evidence because I base my decision on the process developed by SON and MNRF, which includes funded experts for preliminary reviews of the Project. It is not necessary to decide if funded experts would be required, in the absence of agreement, and this decision does not decide that issue, one way or the other.
150I would not strike the Fell affidavit on relevance grounds because SON was entitled to develop a record to defend all grounds it advanced on this application, not just the one upon which this court rests its decision. The question of whether funded experts is part of the necessary consultation process is an alternative ground for SON, and it remains available to SON for purposes of any appeal that may be pursued from the decision of this court.
(2) Allegedly Improper Communications Excluding SON
151SON argued that bilateral discussions between Hayes and MNRF144 were inconsistent with the honour of the Crown in the Crown’s dealings with SON. I do not agree.
152It is open to anyone to approach an MPP with their concerns. It is one of the jobs of an MPP to help members of the public in their dealings with government. Likewise, it is part of the role of the Minister and of MNRF to receive and respond to communications from MPP’s and from members of the public. Just as it was open to Hayes to go to its local MPP or to approach the Minister, so too it was open to SON to communicate with the Minister and MPP’s about SON’s concerns. I see nothing improper in the impugned communications.
(3) SON’s Alleged Interest in General Environmental Stewardship
153SON has enumerated several “interests” it has in potential adverse effects of the Project. One of these “interests” is the right to “protect the health and integrity of lands, waters and resources throughout SON’s traditional territories.” This decision does not decide whether this alleged interest is a basis on which the Crown is required to consult SON in respect to the Project.
(4) Consideration of Cumulative Effects
154SON has raised questions about the cumulative effect of quarries in its traditional territories. The only response from MNRF on this point in the record before this court is that there is no requirement under provincial law to consider cumulative effects when processing an application under the Aggregates Resources Act.
155Cumulative effects can be a proper matter for consultations: the West Moberly decision provides a clear analysis as to why this is so.145 MNRF’s response is not an answer that satisfies the reasoning in West Moberly. However, aside from this observation, this court does not decide whether there are (or are not) material cumulative effects requiring consultations in this case.
(5) Requirements to Fund First Nation Consultation Costs
156MNRF has agreed to fund preliminary consultation costs and SON has agreed to proceed on the basis of that funding, so it is not necessary to decide whether funding is required in the absence of agreement. It will be for the parties to discuss what further funding, if any, will be provided to SON to complete consultations. There are two related points worth noting, however.
157First, SON sought initial funding to help understand the issues raised by the Project, and to address those issues effectively with MNRF. SON did not ask to have all the technical work done over again by its own experts. SON’s budget included modest legal costs. MNRF did not explain why it rejected and continues to reject funding for SON’s reasonable legal costs to consult.
158As noted above, SON is disinclined to spend its “community resources” to review someone else’s project. That is a reasonable position.
159SON has limited resources. It does not participate in consultations as a party to the Project. The expense of consultation arises as a result of a 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.146
160Second, clearly the process went “sideways” in this case. SON was put to considerable legal expense to make its case to MNRF that there is a duty to consult and that the scope of that duty includes funded experts. It will be for the parties to decide whether and to what extent the Crown should reimburse these legal expenses on a reasonable basis, taking into account (a) the legal costs to be paid to SON as a result of this decision; (b) the legal and other costs reasonably incurred by SON in its dealings with MNRF and Hayes over the Project to this point.
Part VII – Order and Costs
161The application is allowed. The decision of the Minister to issue the Project license is set aside. Hayes’ license application is remitted back to the Minister and MNRF pending completion of adequate consultations with SON about the Project. As agreed among the parties, SON shall have its costs of the application from the respondents in the amount of $80,000 inclusive, payable within thirty days.
D.L. Corbett J.
I agree:
Nordheimer J.
I agree:
DiTomaso J.
Released: July 14, 2017
CITATION: Saugeen First Nation v. Ontario (Min. Natural Resources), 2017 ONSC 3456
COURT FILE NO.: 367/16
DATE: 20170714
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, D.L. CORBETT AND DiTOMASO JJ.
BETWEEN:
SAUGEEN FIRST NATION
Applicant
- and -
ONTARIO (MNRF)
Respondent
DECISION
D.L. Corbett J.
Released: July 14, 2017
Footnotes
- The Ministry of Natural Resources and Forestry, formerly the Ministry of Natural Resources, is referred to as “MNRF” in these reasons.
- Haida Nation v. BC (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 (“Haida Nation”), para. 11.
- Haida Nation, para. 20.
- Constitution Act, 1982, Schedule B to the Canada Act (UK), 1982, c.11, s.35.
- Haida Nation, para. 27.
- Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103 (“Beckman”), para. 44.
- Haida Nation, para. 59. See also St. Catharine’s Milling and Lumber Co. v. The Queen, [1887] 13 SCR 577, aff’d. (1988), 14 App. Cas. 46 (P.C.); Delgamuukw v. BC, [1997] 3 SCR 1010 (“Delgamuukw”), para. 175.
- Haida Nation, para. 35. See also Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650, para. 34; Halfway River First Nation v. BC (Minister of Forests), [1997] 4 CNLR 45 (BCSC), per Dorgan J.
- Haida Nation, paras. 37, 39, 43.
- Haida Nation, para. 45; Beckman, para. 44.
- Mikisew Cree First Nation v. Canada, 2005 SCC 69, [2005] 3 SCR 388, para. 54.
- Haida Nation, para. 45.
- Haida Nation, para. 10.
- Haida Nation, para. 19, quoting R. v. Badger, [1996] 1 SCR 771.
- Haida Nation, para. 42. See also Beckman, para. 48; Halfway River First Nation v. B.C. (Min. Forests), 1999 BCCA 470, [1999] 4 CNLR 1 (BCCA); Heiltsuk Tribal Council v. BC (Min. Sustainable Resource Mgmt.)(2003), 2003 BCSC 1422, 19 BCLR (4th) 107 (BCSC).
- Haida Nation, paras. 10, 42.
- Haida Nation, para. 32.
- Beckman, para. 55.
- Haida Nation, para. 53.
- Beckman, para. 52.
- Beckman, para. 61.
- Yellowknives Dene First Nation v. AG Canada, 2010 FC 1139, para. 99.
- Haida Nation, para. 51, quoting from R. v. Adams, [1996] 3 SCR 101, para. 54.
- Beckman, para. 43.
- Rio Tinto Alcan Inc. v. Carrier Sekami Tribal Council, 2010 SCC 43, [2010] 2 SCR 650; Haida Nation, paras. 26-38.
- Beckman, para. 10.
- Beckman, para. 10.
- Mikisew Cree First Nation v. Canada, 2005 SCC 69, [2005] 3 SCR 388, para. 54.
- See for example R. v. Marshall, [1999] 3 SCR 456 (1760-61 Treaty); R. v. Badger, [1996] 1 SCR 771 (Treaty No. 8 [1899]); Mikisew Cree First Nation v. Canada, 2005 SCC 69, [2005] 3 SCR 388.
- Beckman, para. 4.
- Beckman, paras. 3 and 35.
- Beckman, para. 84 (emphasis in original).
- Beckman, para. 44.
- Beckman, para. 46.
- Beckman, para. 46.
- Beckman, para. 39; Taku River Tlingit First Nation v. BC (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550 (emphasis in original).
- Beckman, para. 72.
- Chartrand (Kwakiutl First Nation) v. BC (Forests, Lands and Natural Resources), 2015 BCCA 345, para. 79.
- Chartrand (Kwakiutl First Nation) v. BC (Forests, Lands and Natural Resources), 2015 BCCA 345, para. 77.
- Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, paras. 61, 67.
- Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, para. 91.
- Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, para. 269.
- Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, para. 269, quoting Platinex Inc. v. Kitchen Uhmaykoosib Inninuwug First Nation, [2007] OJ No. 2214, para. 27. See also Taku River Tlingit First Nation v. BC (Projects Assessment Director), 2004 SCC 74.
- Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650, paras. 45, 53-54.
- West Moberly First Nations v. BC (Chief Insp. of Mines) (2011), 333 DLR (4th) 31, 2011 BCCA 247, para. 117.
- West Moberly First Nations v. BC (Chief Insp. of Mines) (2011), 2011 BCCA 247, 333 DLR (4th) 31, [2011] BCCA 247, para. 123. Hinkson JA, who agreed in the result, makes the point that “the duty to accommodate does not include remedying historic wrongs” (at paras. 169-185). One way to reconcile the two views is to agree that while there may be no duty to right past wrongs, accommodation may include not frustrating a First Nation’s reasonable efforts to remedy consequences of past actions.
- It could be debated whether funding was “proposed”, “offered”, or “agreed” or “decided upon” by MNRF. These are distinctions without a difference in the context of these consultations: SON agreed to MNRF’s decision/offer subject to a qualification that it would have been unreasonable for MNRF to reject, and which was not rejected in fact by MNRF back in 2011/2012.
- Indian Act, RSC 1985, c.I-5, s.2.
- SON Factum, para. 5.
- SON Factum, para. 6.
- Ontario Superior Court proceedings commenced in Toronto, Court File Nos. 94-CQ-50872CM and 03-CV-261134CM1.
- SON Factum, para. 8.
- SON Factum, para. 6.
- Including the Massassauga Rattlesnake, deer and black bear.
- Including burial/grave sites.
- SON Factum, para. 7.
- Affidavit of Edward K. Hayes sworn December 19, 2016 (“Hayes Affidavit”), para. 2.
- Ministry of Natural Resources Act, RSO 1990, c. M.31, ss. 2 and 4; Aggregates Resources Act, RSO 1990, c. A.8, ss. 1 and 3(1).
- Aggregate Resources Act, RSO 1990, c. A.8, s.7.
- SON Factum, para. 3; Hayes Factum, para. 11.
- Hayes Factum, para. 15.
- SON Reply Factum, para. 10.
- Affidavit of Kathleen Ryan sworn September 12, 2016 (“Ryan Affidavit”), para. 11.
- SON Factum, para. 10.
- Hayes Factum, para. 17.
- Hayes Factum, para. 16.
- Hayes Factum, para. 18.
- Hayes Factum, paras. 19-20.
- In oral argument, counsel for MNRF advised that the running lists highlighted new projects in yellow. When asked, counsel acknowledged that this information was not in the evidence before us. A party may not add to the record during argument, or rely upon facts not in evidence. The nature of the notice given to SON was impugned in SON’s application materials; if MNRF wished to lead evidence responding to SON’s materials on this point, it had to do so in responding evidence or cross-examinations.
- SON Factum, para. 10.
- SON Factum, para. 10.
- SON Factum, paras. 10-11.
- Browne v. Dunn (1893), 6 R. 67 (H.L. Eng.).
- The parties agree on this point, as noted below.
- This conclusion is not at odds with this court’s decision in Wabauskang First Nation v. Ontario (Minister of Northern Development and Mines), 2014 ONSC 4424, 324 OAC 341 (Div. Ct.): there is a distinction between disclosure of the results of an assessment, and disclosure of the basis of that assessment.
- Applicant’s Record, vol. 2, tab I(1).
- Applicant’s Record, vol. 2, tab I(2).
- Applicant’s Record, tab I(3).
- Applicant’s Record, vol.2, tab I(4).
- Applicant’s Record, vol.2, tab I(6).
- Applicant’s Record, vol.2, tab I(7).
- Applicant’s Record, vol. 2, tab I(10).
- Applicant’s Record, vol. 2, tab I(11).
- Applicant’s Record, vol. 2, tab I(12) (emphasis in original).
- Applicant’s Record, vol. 2, tab I(13).
- Applicant’s Record, vol. 2, tab I(14).
- Applicant’s Record, vol. 2, tab I(14).
- Haida Nation, para. 51.
- Application Record, vol. 2, tab I(15).
- Application Record, vol. 2, tab I(16).
- Application Record, vol. 2, tab I(17).
- Applicant’s Record, vol. 2, tab I(18).
- Applicant’s Record, vol. 2, tabs I(19) and (20). SON raises the sufficiency and timing of disclosure as a sub-issue on this application. In view of my conclusions on the other issues on this application, it is not necessary to delve into those disclosure issues.
- Applicant’s Record, vol. 2, tab I(21).
- Applicant’s Record, vol. 2, tab I(22).
- Applicant’s Record, vol. 2, tab I(23).
- Applicant’s Record, vol. 2, tab I(24).
- Applicant’s Record, vol. 2, tab I(25).
- Applicant’s Record, vol. 2, tab I(25).
- Applicant’s Record, vol. 2, tab I(26).
- Applicant’s Record, vol. 2, tab I(27).
- Applicant’s Record, vol. 2, tab I(28).
- Applicant’s Record, vol. 2, tab I(29).
- Applicant’s Record, vol. 2, tab I(30).
- Applicant’s Record, vol. 2, tab I(31).
- Applicant’s Record, vol. 2, tab I(32).
- Applicant’s Record, vol. 2, tab I(32).
- Applicant’s Record, vol. 2, tab I(33) (emphasis in original).
- Applicant’s Record, vol. 2, tab I(33).
- It is not clear what MNRF meant by “procedural aspects” of consultations. The letter delegates substantive consultations to Hayes, while reserving to the Crown a monitoring and evaluative role. Why this is described as “procedural”, or why that description is significant, is not stated.
- Applicant’s Record, vol. 2, tab K.
- MNRF’s evidence is that status updates were sent from MNRF to SON on February 24, 2014, May 7, 2014 and June 9, 2014. Those “updates” were the running lists of all projects. They showed, in February 2014, that the last event in the Hayes Project had been discussions in June 2013 and MNRF’s delegation to Hayes in August 2013. Nothing was noted subsequently. The update of May 7th (the running list dated April 30, 2014) showed no change to the Hayes Project. The update of June 9, 2014 also shows no change to the Hayes Project. The MNRF affidavit baldly states that “updates” were provided, implying that something had happened to be “updated”. Only if the reader wades through the attached exhibits (Exhibit “QQ”) and manages to find the references to Hayes in the running lists is it clear that MNRF’s evidence on this point is the same as SON’s: nothing happened between August 2013 and June 2014. This was not the only place where MNRF’s evidence was less than entirely frank.
- Applicant’s Record, vol.2, tab L.
- Applicant’s Record, vol. 2, tab M.
- Applicant’s Record, vol. 2, tab N.
- Mis-dated February 17, 2014.
- Applicant’s Record, vol. 2, tab N.
- Applicant’s Record, vol. 2, tab O(2).
- Applicant’s Record, vol. 2, tab O(2).
- Applicant’s Record, vol. 2, tab O(3).
- Applicant’s Record, vol.2, tab P(1).
- Applicant’s Record, vol. 2, tab P(3).
- MNRF Record, vol. 2, p.765.
- MNRF Record, vol. 2, p.765.
- MNRF Record, vol. 2, p.766.
- Applicant’s Record, vol. 2, tab P(4).
- MNRF Record, vol. 2, p.777.
- Applicant’s Record, vol. 2, tab S.
- Applicant’s Record, vol. 2, tab S.
- SON Factum, para. 33(b): email from Ted Hayes to Bill Walker dated July 16, 2014, p.875, Applicant’s Record.
- SON Factum, para. 33(a).
- SON Factum, para. 33(c), Application Record, p.887.
- SON Factum, paras. 33-34.
- Affidavit of Janna Cheganho sworn September 8, 2016, para. 9.
- Judicial Review Procedure Act, RSO 1990, c. J.1, ss. 2(1) and 6(1).
- Haida Nation, paras. 60-63; Beckman, para. 48 Dunsmuir.
- Haida Nation, para. 63. See also Ka’A’Gee Tu First Nation v. Canada (A.G.), 2012 FC 297, para. 89; Nunatsiavut v. Canada (A.G.), 2015 FC 492.
- Haida Nation, para. 63. See also Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, para. 26.
- Haida Nation, para. 61.
- Haida Nation, para. 47. See also R. v. Sioui, [1990] 1 SCR 1025; R. v. Cote, [1996] 3 SCR 101, para. 54.
- Haida Nation, para. 61-62. See also Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, para. 27.
- MNRF Factum, para. 51.
- I make no findings on whether SON has received all the information required to meet the Crown’s obligation to provide information: any issue on this point may be addressed between SON and Crown during resumed consultations.
- As well as discussions between Hayes and MPP Walker and Hayes and the Minister.
- West Moberly First Nations v. BC (Chief Insp. of Mines) (2011), 333 DLR (4th) 31, 2011 BCCA 247.
- For example, it would seem reasonable for MNRF to consider overall capacity funding in assessing SON’s expertise in reviewing a Project (and its consequent need for expert advice). It would not seem reasonable to expect SON to fund consultation costs, including legal costs, from general band revenue.