Indigenous Legal Issues - ODC

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.

The applicants, Saugeen First Nation and Chippewas of Nawash Unceded First Nation, sought judicial review of the Minister's decision to issue a limestone quarry license to the respondent proponent.

The applicants argued the Crown failed to fulfill its constitutional duty to consult and accommodate their Aboriginal and treaty rights.

The Divisional Court found that while the duty to consult was triggered and assessed at the middle of the spectrum, the Crown failed to discharge this duty by repeatedly changing its consultation process, failing to provide agreed-upon capacity funding for expert reviews, and prematurely issuing the license.

The application was allowed, the license was set aside, and the matter was remitted for adequate consultation.

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 quashing their application for judicial review of the Minister's decision to apply an Interim Enforcement Policy to certain First Nations regarding hunting and fishing rights.

The Divisional Court dismissed the motion, upholding the motions judge's finding that the Minister's decision was an exercise of prosecutorial discretion and therefore not justiciable absent an abuse of process.

The Court also agreed that the applicant's section 15 Charter claim was bound to fail as the policy did not alter his rights or impose a burden based on race.

Furthermore, the Court held it lacked jurisdiction under the Judicial Review Procedure Act because the policy was not an exercise of a statutory power.

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.

The applicant, a reserve retailer, sought judicial review of a First Nation Council's decision to allocate tax-exempt cigarettes to another business, arguing the business was not located on the reserve.

The Divisional Court dismissed the application, finding the applicant lacked both private and public interest standing.

The applicant failed to show a causal relationship between the alleged prejudice and the challenged action, and the issue raised was not a serious justiciable issue affecting the public interest.

The moving party brought a motion to strike an expert affidavit filed by the respondents in an Application for Judicial Review regarding the issuance of a stone quarry licence.

The moving party argued the affidavit was inadmissible as it was not before the decision-maker.

The respondents argued the evidence was necessary to determine if the Crown met its duty to consult and accommodate.

The court deferred the issue, ordering that the admissibility of the affidavit be determined by the full panel hearing the Application to avoid jeopardizing the scheduled hearing dates.

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 appellant maternal grandparents appealed an order making their two grandchildren Crown wards.

They argued that the definitions of 'Indian' and 'native community' in the Child and Family Services Act violated s. 15 of the Charter by excluding non-status Aboriginals, and that they should have been awarded custody.

The Divisional Court dismissed the appeal, finding no evidentiary basis to establish a s. 15 Charter disadvantage and upholding the trial judge's conclusion that Crown wardship with access was in the children's best interests due to concerns about the grandparents' health and ability to provide permanent care.

The grandparents brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order of a single judge of the Divisional Court that dismissed their appeal for delay.

The underlying child protection case involved a constitutional challenge to the definition of 'Indian or native person' under the Child and Family Services Act.

The Divisional Court panel found that the motion judge erred by not considering the merits of the constitutional challenge, which had been properly included in the trial judge's reconsideration.

The panel concluded the appeal had a real chance of success and set aside the order dismissing the appeal, allowing the grandparents to perfect their appeal.

The appellant mother appealed a trial judgment making her twin children Crown wards without access.

She argued the trial judge erred by failing to consider section 57(5) of the Child and Family Services Act regarding the placement of Aboriginal children, given evidence of the family's self-identified Metis heritage.

The Divisional Court dismissed the appeal, finding that the children did not meet the statutory definition of 'Indian' or 'native person' under the Act, and a constitutional challenge would be required to expand the definition.

The court also upheld the trial judge's finding that placement with the maternal grandmother was not in the children's best interests.

The appellants sought leave to appeal two Ontario Municipal Board (OMB) decisions that dismissed their appeals against a City of Ottawa official plan amendment and zoning by-law facilitating the redevelopment of Chaudiere and Albert Islands.

The appellants argued the OMB erred in quashing their Notice of Constitutional Question and in finding that the City and developer adequately consulted with the Algonquin First Nation.

The Divisional Court denied leave to appeal, holding that the OMB correctly determined it lacked jurisdiction to grant declarations of Aboriginal title and that the OMB's findings regarding the adequacy of the consultation process were reasonable and did not raise a question of law.

Following the settlement and abandonment of an application for judicial review regarding the Crown's duty to consult, the interveners and the respondent Ontario Power Authority sought costs against the applicants.

The Divisional Court dismissed the requests for costs.

The court held that interveners typically do not receive costs and that imposing costs on First Nations in disputes concerning constitutional rights and reconciliation would inappropriately deter such claims.

The court also denied costs to the Ontario Power Authority, noting it played a secondary role and the Crown itself did not seek costs.

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.

Following a successful motion by the interveners for a Kelly v. Canada order in an Aboriginal rights judicial review application, the parties could not agree on costs.

The interveners sought costs in the cause fixed at $13,500, arguing the applicants used hardball tactics by threatening substantial indemnity costs.

The court declined to fix costs, noting that threats of substantial indemnity costs are often empty and did not deter the interveners' counsel.

The court ordered costs in the cause, as the appropriate procedure for Aboriginal rights claims remains a work in progress.