Indigenous Legal Issues - ODC

The applicant, an Indigenous child welfare agency, sought judicial review of a Minister's decision amending the designations of child welfare agencies in the Thunder Bay area.

The decision expanded the jurisdiction of another Indigenous agency to provide services to its affiliated families residing in Thunder Bay.

The Divisional Court dismissed the application, finding that the Minister's decision was a policy decision that met the requirements of procedural fairness and was reasonable under the Vavilov framework.

A case management teleconference was held regarding two related applications involving Indigenous child and family services.

Counsel for the moving party did not attend due to an administrative error by court staff.

The court noted ongoing discussions to convert one of the applications into an action and directed the parties to resolve the issue or bring a motion.

The court also addressed scheduling, noting that a return date before the end of 2020 would require proof of readiness and urgency, and encouraged the parties to agree on a schedule.

The applicant sought to review a decision quashing his application for judicial review of the Métis Nation of Ontario's (MNO) refusal to grant him membership.

The motion judge had found that MNO was a private voluntary organization, not a public body subject to judicial review.

The applicant also moved to introduce fresh evidence of a 2019 agreement between MNO and Canada.

The Divisional Court dismissed both motions, finding the fresh evidence would not have affected the result and agreeing that MNO remains a private entity subject to private law until formally recognized as a government.

The applicant First Nation sought judicial review of a decision by the Director of Exploration granting a mining exploration permit to a corporate respondent on lands within the applicant's traditional territory.

The applicant argued the Crown failed to properly discharge its duty to consult.

The Divisional Court found that the Crown and its delegate had created clear expectations for a community meeting and a Memorandum of Understanding, but abruptly changed course without explanation to expedite the permit for commercial reasons.

The court held that the consultation process lacked genuine engagement and failed to maintain the honour of the Crown.

The application was granted, the permit was set aside, and the matter was remitted for adequate consultation.

The appellant First Nation appealed a costs decision of the Environmental Review Tribunal, arguing that the Tribunal erred by failing to apply the 'polluter pays' principle and by not considering the appellant's First Nation status when assessing whether the respondent's conduct was unreasonable.

The Divisional Court dismissed the appeal, holding that under section 17.1 of the Statutory Powers Procedure Act, costs are only awarded for unreasonable, frivolous, or vexatious conduct.

The Court found that the 'polluter pays' principle does not apply to costs considerations and that the Tribunal reasonably concluded the respondent's conduct in defending the appeal was not unreasonable.

Following the dismissal of an application for judicial review concerning the duty to consult on a wind farm project, the successful respondents sought costs.

The court noted the complexity of the issue, the significant financial stakes of the $240 million project, and the applicant's 15-month delay in commencing the application.

The court awarded costs of $50,000 plus disbursements and HST to each of the two respondent groups, while the respondent Minister did not seek costs.

The applicants brought a motion to set aside an order of the motions judge, which added the Williams Treaties First Nations as necessary parties or interveners to an application for judicial review and awarded substantial indemnity costs against the applicants.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact in the motions judge's conclusion that the First Nations would be directly affected by the declarations sought.

The court also upheld the costs award, noting that the applicants persisted with an unnecessary motion despite being on notice that elevated costs would be sought.

Following the dismissal of the appellants' motion for leave to appeal an Ontario Municipal Board decision regarding a development on lands with significance to indigenous persons, the successful respondents sought costs.

The court declined to award costs against the appellants, finding they met the criteria for public interest litigants as they raised issues of public importance regarding indigenous religious sites and had no pecuniary interest in the outcome.

Additionally, the court awarded costs to the appellants' counsel personally against one of the respondents for an abandoned claim for personal costs under Rule 57.07(1).

The plaintiffs, aboriginal persons removed from their homes by Ontario child welfare authorities and placed with non-aboriginal families, brought a proposed class action against Canada for breach of fiduciary duty and negligence.

Canada appealed the dismissal of its motion to strike the statement of claim and the certification of the class action.

The Divisional Court dismissed the appeal, finding it was not plain and obvious that the claims for breach of fiduciary duty and negligence disclosed no reasonable cause of action, given Canada's unique relationship with aboriginal peoples and its delegation of child welfare responsibilities to Ontario.

The interveners in a judicial review application concerning the Crown's duty to consult brought a motion for a Kelly v. Canada Order to add 28 Indian Bands as parties.

The applicants opposed the motion, arguing it was offensive to Aboriginal custom and unnecessary as they were the true rights holders.

The court granted the motion, finding that adding the bands as party respondents was necessary to ensure all potential rights holders were before the court and to avoid the risk of multiple proceedings and inconsistent results.

The Wabauskang First Nation applied for judicial review of a decision by the Director of Mine Rehabilitation acknowledging a Production Closure Plan submitted by Rubicon Minerals Corporation for a gold mining project.

The First Nation argued that Ontario failed to fulfill its duty to consult and accommodate and improperly delegated this duty to the mining company.

The Divisional Court dismissed the application, finding that Ontario's assessment of the potential claims was reasonable, that it fulfilled its duty to consult and accommodate, and that it only delegated procedural aspects of the consultation to the proponent while retaining ultimate legal responsibility.

The applicant First Nation sought an interim injunction to prohibit provincial ministries from authorizing a wind farm development on its traditional territory, pending judicial review regarding the Crown's duty to consult.

The court dismissed the motion as premature, finding that the Director had not yet made a decision on whether to issue the renewable energy permit.

Without a decision, the court could not determine if there was a serious issue to be tried or if irreparable harm would occur.

The interveners, H20 Power Limited Partnership and Resolute FP Canada Inc., were granted leave to intervene on restrictive terms.

Both the interveners and the applicants sought costs against each other for the motion.

The court found that success was divided, as neither party achieved their primary position.

Applying the general rule that interveners are not awarded costs and costs are not awarded against them, the court made no order as to costs.

The appellant mining company appealed an interim injunction that halted its exploration activities and required consultation with the respondent First Nation.

Prior to the appeal, the Mining Amendment Act, 2009 came into force, establishing a new legislative regime for exploration plans and permits involving Aboriginal interests.

The Divisional Court declined to hear the appeal, finding it moot because the rights and obligations of the parties now rested on the new statutory foundation, rendering the propriety of the original injunction an academic exercise.

The moving party, a mining exploration company, sought leave to appeal an interlocutory injunction that restrained it from engaging in mineral exploration activities on lands subject to asserted treaty and Aboriginal rights of the responding First Nation.

The motion judge had granted the injunction based on the Crown's failure to consult and accommodate, finding that the operational aspects of the duty to consult had been delegated to the mining company.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision that the company had a delegated duty to consult and that an injunction could be issued against a third party based on the Crown's failure to consult.

The Attorney General of Canada appealed a motion judge's decision to conditionally certify a class action on behalf of aboriginal people placed in non-aboriginal foster or adoptive homes.

The motion judge had found that the statement of claim did not disclose a cause of action but conditionally certified claims in negligence and breach of fiduciary duty, effectively pre-approving an amended pleading.

The Divisional Court allowed the appeal, holding that the motion judge erred by predetermining the viability of the cause of action without conducting a full analysis and denying the defendant the opportunity to argue the certification criteria.

The statement of claim was struck with leave to amend, and the certification motion was ordered to be heard by a different judge.