CITATION: Haudenosaunee Development Institute v. Ontario (Min. Environment), 2022 ONSC 2072
DIVISIONAL COURT FILE NO.: 426/21
DATE: 20220126
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: HAUDENOSAUNEE DEVELOPMENT INSTITUTE v. ontario (min. of environment)
BEFORE: D.L. Corbett J.
COUNSEL: Benjamin Brookwell and Roger Townshend, for the proposed Intervenor WIFN Adrienne Telford, Jackie Esmonde and Lara Koerner-Yeo, for HDI Susan Keenan and Kamal Imaran, for Ontario
HEARD at Toronto by ZOOM: January 26, 2022
REASONS FOR DECISION[^1]
[1] Acronyms used in this endorsement have the meanings ascribed to them in the materials filed by the parties.
[2] The court[^2] heard a motion for leave to intervene as a party brought by WIFN in this application between HDI and Ontario. For the reasons that follow, the motion is dismissed without costs.
[3] In the underlying application, HDI challenges decisions made by Ontario on the basis that Ontario failed to follow a process that was fair to HDI and failed to meet obligations encompassed by the Honour of the Crown. One basis urged by HDI as a basis for its claims are rights it says it has under the Nanfan Treaty. To paraphrase, Ontario says that HDI has certain hunting and fishing rights in connection with some of the lands to which Ontario's permitting decision applies. HDI says that it has a title interest in the lands as a result of the Nanfan Treaty. One of the issues in the application is an allegation that Ontario did not follow a fair process and/or failed to discharge its role in a manner consistent with the honour of the Crown, when Ontario decided the basis on which HDI may have an interest in the impugned permits.
[4] WIFN denies that HDI has any rights at all as a result of the Nanfan Treaty.
[5] It is not contested (at least for the purposes of this motion) that WIFN does not have an interest in the lands identified as potentially affected by the impugned permits.
[6] WIFN is concerned that this court may be called upon to decide the extent to which HDI has rights under the Nanfan Treaty in the course of deciding this application. HDI counters that this application raises procedural issues only, and that at most, this court would send the issue back to Ontario to decide in accordance with a fair process that is consistent with the Honour of the Crown.
[7] WIFN argues (again, to paraphrase), that an accretion of court decisions that are premised on an acknowledgment that HDI has rights under the Nanfan Treaty will lead to a situation where those rights have been established de jure, and create a barrier, perhaps an insurmountable one, for WIFN to contest the claim in a case where WIFN has a substantial interest at stake. Further, it argues that project proponents proceed on the basis of this accreted jurisprudence, and will negotiate among First Nations "in the shadow of the law" (my words) where there is not a court dispute on the issue: proponents, naturally, will try to avoid litigation where they reasonably can. This would have the effect, WIFN says, of diluting benefits that may be directed to it because of its rights.
[8] These are all good arguments. They may all be respected by an order refusing the request to intervene and expressly acknowledging that the underlying conflict over HDI's rights under the Nanfan Treaty are matters better left to other proceedings. In the result, this court orders as follows:
The request by HDI to amend its notice of application in the form provided to the court for use on this motion is granted. The application in this court shall proceed on the basis of the amended notice of application.
The motion for leave to intervene is dismissed.
There shall be no costs of the motion to intervene.
Reasons:
[9] The governing principles on a motion to intervene are summarized in the factums. I note the following in respect to the only issue of principle that was in question for the purposes of this motion. The requirement that the moving party show that it would likely make a "useful contribution" takes on a different colour when the motion is for leave to intervene as a party, and the basis for the motion is that the moving party has an interest in the outcome of the case. Where a moving party establishes that it has an interest in the outcome of the case, its "useful contribution" is representing its own interests that will be affected by the court's decision. Where, on the other hand, the moving party does not satisfy the court that it has an interest in the outcome of the case, it will not be able to establish that it will make a "useful contribution". The "useful contribution" analysis is generally more apposite where a party is seeking to intervene as a "friend of the court" or on a basis where the intervening party's participation ought to be limited to its specific role in the dispute (such as intervention by an administrative tribunal in respect to one of its decisions under appeal or review in this court).
[10] In respect to para. 1 of my order, HDI proposed the amendments to clarify the procedural nature of this application. WIFN agrees that the amendments go some distance to addressing its concerns. Ontario does not object to the proposed amendments. Therefore, the request to amend the notice of application is granted.
[11] In respect to para. 2, WIFN has no interest in the substantive outcome of the application. It has an interest in a factual issue that may form part of the court's analysis to decide the issues between HDI and Ontario, although it is entirely possible that the court will not resolve that factual issue and, at most, may make an order directing Ontario to decide the issue following procedural requirements specified by the court. If WIFN is not a party to this case, then it will not be bound by principles of res judicata or issue estoppel from contesting the factual issue in another case. Any concern about acquiescence is addressed by WIFN having brought this motion for leave to intervene and this court's disposition of it.
[12] WIFN candidly agrees that adding it to these proceedings to contest the question of whether HDI has any rights under the Nanfan Treaty would require a substantial delay in the hearing of this application and would broaden the scope of these proceedings. HDI characterizes the impact on the proceedings more dramatically - it argues that adding WIFN would "hijack" these proceedings from a question of Ontario's dealings with HDI over a specific project (an issue in respect to which WIFN has no interest) into an inquiry into the status of HDI's treaty rights under the Nanfan Treaty - a general issue that would ordinarily be litigated by way of action and - if the case proceeded the way many previous treaty rights cases have unfolded - would take many years and a lengthy trial in the Superior Court. I decline to adopt the more colourful language used by HDI, but I accept the general submission that the issue WIFN wishes to pursue as a party would change the focus of the case dramatically, would lead to substantial delay, and likely would require that the application be converted to an action. If WIFN had a substantial interest in the outcome of the underlying dispute, it might well be a "necessary" party, and the issue which it wishes to raise might have to be decided by the court. But I am satisfied that the issue does not have to be decided by this court, in this case, and that WIFN will be able to raise it in other proceedings, in which it does have a substantial interest, or, alternatively, in proceedings where this issue is the focus of the case. I add parenthetically that HDI argued that its policy is to address inter-nation disputes of this kind outside the court system. Nothing in this endorsement would either preclude or require such an approach.
[13] Taking all of this into account, I am satisfied that the application in this court may be adjudicated without affecting WIFN's interests, and thus that WIFN has not established a basis to intervene as a party. I accept that WIFN has an interest in acknowledgment by this court of rights on the part of HDI under the Nanfan Treaty, but that any such acknowledgment made in light of this endorsement would not be to the material prejudice of WIFN in subsequent proceedings in which the issue may be raised.
[14] In respect to para. 3, as a result of the motion, HDI has voluntarily amended its notice of application to narrow (or eliminate) the prospect that this court might make a decision that could prejudice WIFN's position concerning HDI's rights under the Nanfan Treaty. WIFN has gained further clarification on the potential impact of a decision in this application on the issue of HDI's rights under the Nanfan Treaty. Thus, though the intervention motion has been dismissed, it was reasonable for WIFN to have brought the motion, and it has achieved something material by doing so. No costs are sought by or from Ontario. In all the circumstances, an order for no costs is appropriate.
[15] This court has provided this decision by way of an email shortly after argument of the motion, because the parties require a quick decision to proceed with the application in a timely and orderly way. The court will release these reasons again, in formal form, and reserves the option of correcting, editing and supplementing the reasons when it does so.
“D.L. Corbett J.”
Released by email: January 31, 2022
Released by endorsement: April 4, 2022
[^1]: This decision was released to the parties by email on January 31, 2022.
[^2]: This court is designated to hear motions for leave to intervene in the Divisional Court by direction of Associate Chief Justice McWatt pursuant to R.13.03(1).