COURT OF APPEAL FOR ONTARIO DATE: 20230817 DOCKET: C70168
Fairburn A.C.J.O., Doherty and Lauwers JJ.A.
BETWEEN
Chief Kirby Whiteduck on his own behalf and on behalf of the Algonquins and the Algonquin Opportunity (No. 2) Corporation Plaintiffs/Respondents (Appellants)
and
His Majesty the King in Right of Ontario as represented by the Minister of Natural Resources and Forestry and the Minister of Indigenous Affairs Defendant/Moving Party (Respondent)
and
Métis Nation of Ontario and Métis Nation of Ontario Secretariat Inc. Defendants/Moving Parties (Respondents)
Counsel: Robert Potts and Alan Pratt, for the appellants Jason Madden, Alissa Saieva-Finnie, Paul Seaman, and Keith Brown, for the respondents Métis Nation of Ontario and Métis Nation of Ontario Secretariat Inc. William MacLarkey and Jeffrey Claydon, for the respondent His Majesty the King in Right of Ontario Senwung Luk and Benjamin Brookwell, for the interveners Wabun Tribal Council, United Chiefs and Councils of Mnidoo Mnising, Chippewas of Nawash Unceded First Nation, and Walpole Island First Nation
Heard: November 1, 2022
On appeal from the order of Justice Wendy M. Matheson of the Superior Court of Justice, dated December 2, 2021.
Lauwers J.A.:
I. OVERVIEW
[1] This appeal and cross-appeal require this court to consider whether it is appropriate at the pleadings stage to strike a claim in a situation in which there might be competing Aboriginal or Indigenous interests in resources. At stake between the Indigenous parties, the Algonquins of Ontario [1] and the Métis Nation of Ontario, are harvesting rights to fish and wildlife such as deer, elk and moose in the Algonquin settlement area, which comprises the Ontario watershed of the Mattawa and Ottawa Rivers. At issue is the scope of Ontario’s duty to consult and accommodate Aboriginal interests.
[2] The Algonquins have been negotiating with Ontario and Canada under a 1994 framework to arrive at a modern-day treaty concerning, among other matters, the harvesting rights of the Algonquins to fish, hunt and trap wildlife resources within the settlement area. They reached an “Agreement in Principle” in 2016 but it provides expressly that it “shall have no legal status and shall not create legal obligations”. The statement of claim explains that the Algonquins, whose membership crosses the Ontario/Quebec border, were left out of pre-Confederation treaty negotiations and do not have a treaty with the Crown.
[3] The competing Indigenous interests at the heart of this case result from the Supreme Court’s seminal decision in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, which constitutionally recognized harvesting rights for the Sault Ste. Marie Métis community. Before Powley, the Algonquins held the only Aboriginal rights to the resources in question under Ontario’s 1991 Interim Enforcement Policy (sometimes called the “IEP” or the “Enforcement Policy”). The Policy allowed the Algonquins to harvest without complying with provincial licensing requirements and other regulations, but it limited the number of harvester cards in the interests of sustainable resource management. The motion judge accepted, at para. 25, that: “[a] sustainable harvest is fundamental to the Algonquin way of life.” She added: “[s]ince 1991, the members of the Pikwakanagan and other Algonquins have conducted a managed harvest (mainly of moose and deer) in collaboration with Ontario.” The result, she noted, is “a well-managed and sustainable Algonquin harvest.” After Powley, the Policy was extended to Métis from Métis communities recognized in that decision, but not to other Métis.
[4] However, in 2017, Ontario recognized six Métis communities – including the Killarney and Mattawa/Ottawa River Métis – purportedly under Powley, and extended harvesting rights to them under the 2018 Framework Agreement in a large area that overlaps with the Algonquin settlement area. These Métis communities are represented by the Métis Nation of Ontario.
[5] The motion judge explained, at para. 51, “[t]he Framework Agreement provided that, on an interim basis, the [Enforcement Policy] would apply to [Métis Nation] harvester cardholders [but] [i]t did not include a cap on the number of harvester cards.” The Algonquins assert, as noted by the motion judge, at para. 55, that “the Framework Agreement will cause irreparable harm to the wildlife and fish resources in a substantial portion of their settlement area, impairing their way of life.” The statement of claim asserts that some Algonquins have self-identified as Métis in order to get access to harvester cards beyond the limited number allocated to the Algonquins. The alleged result is that “ongoing harvesting by Métis has coincided with a serious decline in the moose population” in the settlement area.
[6] Against this background, the Algonquins seek a declaration that Ontario breached its duty to consult and accommodate their interests before it recognized the Killarney and the Mattawa/Ottawa River Métis communities and gave them unlimited harvesting rights (para. 2(g) of the statement of claim).
[7] The Algonquins invoke Powley and seek a declaration that Ontario has concluded incorrectly that there are historic Métis communities in Killarney and in the Mattawa/Ottawa River area, or alternatively, if such historic Métis communities do exist, a declaration that their harvesting rights do not extend into the Algonquin settlement area (para. 2(b) and (c) of the statement of claim). They seek a declaration that Ontario may not recognize or purport to recognize any Métis harvesting rights within the Algonquin settlement area or take any other steps that are tantamount to such recognition, without Algonquin consent (para. 2(f) of the statement of claim).
[8] Ontario and the Métis Nation of Ontario brought motions under r. 21.01 of the Rules of Civil Procedure to strike the statement of claim on the basis that: it discloses no reasonable cause of action, under subrule (1)(b); the court has no jurisdiction over the subject matter of the action, under subrule (3)(a); and the action is frivolous or vexatious or an abuse of the process of the court under subrule (3)(d).
[9] The motion judge struck the Algonquin claims for declarations in the statement of claim, except for the claim that Ontario breached the duty to consult, without leave to amend. Further, she stipulated that the Algonquins could not retain references in an amended statement of claim to their rights under s. 35(1) of the Constitution Act, 1982 that go beyond the assertion of rights in their treaty negotiations with Ontario. This limitation affects expressions in the pleading that refer to “existing” and “unextinguished” “Aboriginal rights” and “title rights”, and to “exclusive” Aboriginal rights over the portion of the Algonquin settlement area where it overlaps with the harvesting area recognized for the Killarney and Mattawa/Ottawa River Métis Communities.
[10] However, the motion judge did not strike out the claim that Ontario had breached its duty to consult the Algonquins before recognizing the Killarney and Mattawa/Ottawa River Métis communities: paras. 64-70, and paras. 72-73. She expressly declined to strike out para. 2(g) of the statement of claim, which claimed breach of the duty to consult: para. 74. The motion judge also gave leave to the Algonquins to amend the claim in order to “assert that the honour of the Crown informs the duty to consult in this case”: para. 58.
[11] The Algonquins appeal, seeking to reverse the motion judge’s decision and to reinstate the struck claims for declarations, although they do not appeal her striking out of the claim for injunctive relief to stop the Métis Nation issuing harvester cards. Ontario and the Métis Nation cross-appeal, seeking to strike the statement of claim in its entirety without leave to amend, including the claim that Ontario breached the duty to consult.
[12] The interveners raise a constitutional issue: whether treaty rightsholders like them are entitled to bring an action where the Crown enters into an agreement to allocate resources to another Indigenous group that adversely affects rights protected in their own treaties. Although there are no treaty rights at issue in this case, the interveners point to future conflicts where competing Aboriginal rights exist. This possibility forms part of the backdrop, but a pleadings motion is not the place to address it.
[13] For the reasons that follow, I would allow the appeal, with certain exceptions as detailed below.
II. Issues
[14] The following issues arise for disposition:
- Did the motion judge err in finding that the Algonquins do not have standing to contest Ontario’s recognition of the Killarney and Mattawa/Ottawa River Métis Communities under Powley?
- On the assumption that the Algonquins have standing, did the motion judge err in holding that they could pursue their claims by way of an action rather than judicial review?
- Did the motion judge err in striking the statement of claim in its entirety with leave to amend some but not all of the claims?
III. Analysis
[15] I first set out the governing principles for Aboriginal claims under s. 35 of the Constitution Act, 1982, and then apply them to the issues. Nothing in these reasons is intended to determine the merits of the case.
(a) The Governing Principles
(1) Reconciliation is the purpose of Aboriginal law
[16] The “grand purpose” [2] and the “first principle” [3] of Aboriginal law is the reconciliation of Aboriginal and non-Aboriginal Canadians. This “fundamental objective” [4] flows from “the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples” [5] and the need to reconcile “respective claims, interests and ambitions.” [6] The commitment to reconciliation forms the backdrop to any lawsuit that engages Indigenous rights.
[17] Once a Métis community meets the test in Powley for the recognition of Métis rights, these are given effect as Aboriginal rights under s. 35. [7] How those rights are to be reconciled with other competing Aboriginal rights is yet an open question, respecting which we are in open water. In my view, the imperative of reconciliation also applies to competing Indigenous rights.
(2) Every right must have a remedy
[18] It is almost axiomatic that where there is a right, there must be a remedy to protect that right. [8] In the context of the Canadian Charter of Rights and Freedoms, the Supreme Court has held that “courts must craft responsive remedies” and “courts must craft effective remedies”. [9] Like Charter rights, Aboriginal rights are afforded constitutional protection and Aboriginal claimants must be afforded a meaningful forum for redress where they can effectively establish that their rights have been violated.
[19] In that light, the court must be cautious not to foreclose avenues of relief plausibly open to Aboriginal parties whose interests are engaged, particularly in the context of a pleadings motion that engages constitutional issues.
(3) The Crown is bound by the honour of the Crown in all it does respecting Aboriginal rights
[20] The doctrine of the honour of the Crown operates as a “constitutional principle” [10] that is underpinned by the reconciliation imperative. [11] The honour of the Crown is “always at stake” in the Crown’s dealings with Aboriginal people. [12] This statement “is not a mere incantation, but rather a core precept that finds its application in concrete practices.” [13] Therefore, “[t]he controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.” [14]
(4) The Crown’s duty to consult and accommodate is fundamental
[21] The Crown’s duty to consult and accommodate is a justiciable right and is a cause of action. It is grounded in the Honour of the Crown, which, in itself, is not a cause of action. [15] The duty was developed at length in Haida Nation, at para. 16 and following. McLachlin C.J. explained, at para. 27, how the doctrine applies in the interregnum period between the assertion of an Aboriginal right and its protection in a modern-day treaty:
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.
[22] In the interregnum period, McLachlin C.J. posited the existence of a continuum over which the level of consultation and accommodation will vary from minimal, at one end, to the requirement of Aboriginal consent, at the other end, depending on the strength of the Aboriginal interest and the position of that Aboriginal interest enroute from its simple assertion to its protection in a treaty. [16] If an Aboriginal claim is asserted before a treaty exists, as in this case, the claimant First Nation might still have access to a remedy but need not prove its full entitlement as a condition of seeking judicial relief. Chief Justice McLachlin underlined this point in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 40: “ [w]hile the existence of a potential claim is essential, proof that the claim will succeed is not.” She added, “[w]hat is required is a credible claim.”
(5) The Crown is the steward of Aboriginal resources
[23] The concept of the Crown as steward of Aboriginal resources is implied in Crown sovereignty, but is subject to the exercise of Aboriginal rights. This flows from the previous principle – the Crown’s duty to consult and accommodate is fundamental – and from McLachlin C.J.’s comments in Tsilhqot’in Nation, at para. 91: “once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.” This principle has more general application to Aboriginal rights beyond issues of title.
[24] The Crown is responsible for addressing Indigenous rights under s. 35, but what the Crown does is subject to the court’s review for constitutionality under the principles set out in this part of the reasons.
(6) The court must take a generous approach to pleadings in Indigenous cases
[25] This court must bring a somewhat generous and forgiving approach to what might be seen as imprecisions in pleading, particularly in Indigenous cases, in line with McLachlin C.J.’s observations in Tsilhqot’in Nation, that “a functional approach should be taken to pleadings in Aboriginal cases”, where “the legal principles may be unclear at the outset, making it difficult to frame the case with exactitude”: at paras. 20-21. A “technical approach” to pleadings is to be avoided so that “rights issues [can] be resolved in a way that reflects the substance of the matter” in aid of the “project of reconciliation”: Tsilhqot’in Nation, at para. 23.
[26] I now apply the governing principles to the issues.
(b) The Principles Applied
(1) Issue One: Did the motion judge err in finding that the Algonquins do not have standing to contest Ontario’s recognition of the Killarney and Mattawa/Ottawa River Métis Communities under Powley?
[27] The Algonquins claim, in para 2 (g), that Ontario had a duty to consult and accommodate them before making its decision to recognize the Killarney and the Mattawa/Ottawa River Métis communities and to give members of those communities unlimited harvesting rights. This asserted claim must condition the court’s approach to standing.
[28] Despite the primacy of the claim to the duty to consult and accommodate, the motion judge’s decision turns largely on her analysis of the Algonquins’ standing to bring the action. I explain why the motion judge’s approach was in error.
[29] The motion judge intertwined the issues of the duty to consult and standing. She framed the analysis of standing in terms of the representation order made by Leiper J. in favour of Chief Whiteduck, which the respondents did not appeal, and the duty to consult. The motion judge set the stage for the standing analysis in her discussion of the duty to consult, at paras. 66-67:
On the representation motion, the MNO raised an issue about whether the proposed group was a rights holder or whether a larger group, the Algonquin Nation, was the rights holder. The plaintiffs responded that they did not purport to take any authority from, or act on behalf of, the Algonquin Nation. Further, and giving rise to an issue now, the plaintiffs submitted to the court that in this action, they “do not assert rights and title under section 35 of the Constitution Act”: at para. 32. The motion judge acted on that submission: at paras. 32, 35 and 63(c). The defendants therefore now submit that the plaintiffs’ claim based on the duty to consult should be struck out because the plaintiffs cannot now prove the foundation of their claim in this action.
[30] The motion judge did not accept this argument. She preferred the Algonquins’ argument:
The plaintiffs submit that the defendants’ position is an unfair characterization of their submission made on the representation motion because, in this action, the plaintiffs need only prove that they have asserted s. 35(1) rights in their negotiation with Ontario. They do not need to prove that they actually have those rights in order to sue for a breach of the duty to consult. They therefore need not prove s. 35(1) rights in this action. The plaintiffs therefore submit that there is no conflict between their concession on the representation motion and the pursuit of this action.
[31] The motion judge accepted the Algonquins’ argument that proven s. 35 rights were not required to trigger the duty to consult, echoing McLachlin C.J. who said, at para. 40 of Rio Tinto, “[w]hat is required is a credible claim.” The motion judge concluded, at para. 70: “I am satisfied that at this stage the plaintiffs need only allege that they asserted s. 35(1) rights in their negotiations with Ontario in a manner that gave rise to sufficient Crown knowledge to trigger a duty to consult.” She then said, “[h]owever, the statement of claim goes well beyond those focused facts.” I infer from this statement and from her affirmation that the duty to consult claim could proceed that, for pleadings purposes, the Algonquins had established a “credible claim” sufficient to trigger that duty.
[32] The motion judge rejected Ontario’s effort to have the duty to consult claim struck, stating, at para. 73, that the existence of an established right was not required:
A “potential” for adverse impact suffices: Rio Tinto, at para. 44. The statement of claim does allege an adverse impact on the plaintiffs’ harvesting, alleging that it will be irreparably harmed. The announced steps, accepting the facts as pleaded, may give rise to more than mere speculative effects.
[33] In my view, the motion judge’s reasoning thus far was sound.
[34] The motion judge then turned to the issue of standing, and fell into error. She noted, at para. 80, that “[t]he statement of claim, on its face, does not assert any authorization to represent any Métis individuals or groups for the purpose of asserting or demarcating Métis Aboriginal rights.” In her view, only Métis have the status to contest Métis Aboriginal rights; the Algonquins have “no authorization” to “challenge Métis group rights (and seek to eliminate them).” She added, at para. 82: “The plaintiffs have not put forward a legal basis for them to seek to disprove the Aboriginal rights of another Indigenous group.” The motion judge stated, “[the Algonquins] could seek to prove their own rights in this action and assert that their rights have been breached by another group, but they have not done so.” She then struck out the claims for declaratory relief without leave to amend, at para. 83, on the basis of standing.
[35] The motion judge looked for authority beyond the duty to consult and accommodate. This was unnecessary.
[36] Perhaps underpinning the motion judge’s approach is the sense that a declaration that the Métis Nation have no Aboriginal rights in the harvest would never be an appropriate remedy, even if the failure to consult were proven. This concern must be squarely addressed.
[37] This court has often emphasized the fundamental role that pleadings play in the litigation process and the importance of clarity in asserting claims, so that the opposite party knows the case that must be met: Rodaro v Royal Bank of Canada, (2002), 59 O.R. (3d) 74 (C.A.), at para. 60.
[38] As I understand the chain of reasoning in the pleading, the complaint is that Ontario did not consult with the Algonquins when it considered the claim of the Métis Nation to harvest in the Algonquin settlement area. This failure to consult and accommodate is alleged in para. 2(g). The argument is that if Ontario had consulted and accommodated, then it might not have concluded that the Killarney and the Mattawa/Ottawa River Métis communities met the Powley test for the recognition of Aboriginal rights. The only remedy that can restore the constitutional status quo ante is the declarations claimed in paras. 2(b) and (c): “Ontario has incorrectly concluded that there is a historic Métis community in the Mattawa region or Mattawa/Ottawa River” and “Ontario has incorrectly concluded that there is a historic Métis community in Killarney, or alternatively, if such a historic Métis community does exist, a declaration that its harvesting rights do not extend into the [Algonquin] Settlement Area.” The consequential relief is pleaded in para. 2(d) – an injunction restraining Ontario from extending harvesting rights to these communities, without, as noted in para. 2(f), the consent of the Algonquins.
[39] The restoration of the status quo ante Ontario’s alleged breach of the duty to consult could impact the new rights of the Métis communities that Ontario has recognized. But Powley plainly raises precisely that prospect by implication, as the ongoing assertion of Métis Aboriginal rights progresses in Ontario and across Canada. This is the open water to which I alluded earlier, which Powley has left in its wake, and which must be faced squarely. Whether the Algonquins can prove that they are entitled to “deep consultation” and the accommodation they claim, that the Crown breached its duty to consult and accommodate, and that the remedies they seek are appropriate, are matters not for a pleadings motion but for trial and, more hopefully, settlement negotiations, which are much to be preferred. [17]
[40] The motion judge’s standing analysis is also inconsistent with her analysis of the duty to consult and accommodate. Her statement, at para. 82, that the Algonquins were required to prove their own rights is not consistent with her statement, at para. 72, that a potential for adverse impact suffices to raise the duty to consult and accommodate. The Algonquins are seeking protection for their interests, which might prove out eventually to be rights, and argue that the recognition Ontario afforded to the Killarney and the Mattawa/Ottawa River Métis communities adversely impacts them.
[41] In my view, the duty to consult and accommodate gives the Algonquins the necessary standing to bring the action and to claim the consequential relief sought. Nothing more by way of legal authority is required to underpin the consequential relief the Algonquins seek.
[42] The words of McLachlin C.J. in Rio Tinto, at para. 37, bear repeating:
The remedy for a breach of the duty to consult also varies with the situation. The Crown's failure to consult can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out the consultation prior to proceeding further with the proposed government conduct: Haida Nation, at paras. 13-14.
[43] These words should be applied, with necessary modifications, beyond the typical two-party context of a case between the Crown and a First Nation to a case, like this one, in which two Aboriginal claimants are competing over a resource the Crown controls. There can be no reconciliation without consultation and accommodation, and the Algonquins claim there was none here. And there can be no flinching from Powley.
[44] Case law bears out the need to be flexible in this domain. Only the Crown is bound by the duty to consult and accommodate, but it does not follow that only the Crown can be named as a party where Aboriginal rights or title are in issue. It depends on the circumstances, or, as McLachlin C.J. put it in Rio Tinto, at paras. 36-37, it “varies with the situation”. Two examples are illustrative. First, in Haida Nation, the claim was brought against both the Crown and a third party, Weyerhaeuser Company Limited, which owned logging licences on land to which the Haida Nation claimed title. Chief Justice McLachlin stated, at para. 56, that third parties are under no duty to consult or accommodate. But she added that, circumstantially, a third party might be liable to Aboriginal peoples for negligence or breach of contract. In Haida Nation, the relief sought engaged the third party, against which a duty to consult and accommodate was pursued, albeit unsuccessfully.
[45] The second example is North Slave Métis Alliance v. Canada (Indian Affairs and Northern Development), 2017 FC 932, [2018] 2 C.N.L.R. 99. The claimant was a member and representative of the North Slave Métis Alliance. He asserted that the Federal Crown and the Government of the Northwest Territories owed the Alliance a duty to consult and accommodate over its decision to enter into an agreement-in-principle with three other Métis groups, who were named and participated as respondents in the proceeding. The claim was limited to a breach of the duty to consult, and it challenged the propriety or legitimacy of the agreement-in-principle. All of the Indigenous groups remained parties to the proceeding, though the final remedy – an order requiring more substantial consultation than had occurred – applied only to the Crown: North Slave Métis Alliance, at para. 250.
[46] The issue of proper parties is inferential in Behn v. Moulton Contracting Ltd., 2013 SCC 23, 2 S.C.R. 227. The plaintiff brought an action in tort for intentional interference with business relations against a group of individuals (all of whom, with one exception, were members of the Fort Nelson First Nation), the Chief of the First Nation, and the Crown, alleging that the group had blocked a logging access road to areas over which the plaintiff had been granted logging licences. Justice LeBel held that it was an abuse of process for the group to assert a breach of the duty to consult on the grant of the logging licences as a defence to the tort action arising from the licences. Instead, he stated, at para. 42, that the group was required to raise the breach when the licences were issued:
[T]he Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued. They did not raise their concerns with Moulton after the Authorizations were issued. Instead, without any warning, they set up a camp that blocked access to the logging sites assigned to Moulton. … To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown's constitutional duty to consult First Nations.
[47] Behn was factually similar to the situation in which the Algonquins found themselves in this case, but here the Algonquins moved quickly to assert their rights, as LeBel J. required.
[48] Applied to the facts of this case, the question is whether, for the purpose of pleading, the Algonquins have a sufficiently credible claim to an interest in harvesting rights, that is, to fish, hunt and trap wildlife resources, particularly moose, within the Algonquin settlement area to give rise to a duty on Ontario’s part to consult and accommodate them respecting the recognition of harvesting rights for the Killarney and the Mattawa/Ottawa River Métis communities in the same area.
[49] The Algonquins’ interest is sufficiently made out on this pleadings motion to permit the action to proceed on the duty to consult and accommodate. The additional declarations seek consequential relief consistent with the words of McLachlin C.J. in Rio Tinto, at para. 37, which I repeat for convenience: “[t]he Crown's failure to consult can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out the consultation prior to proceeding further with the proposed government conduct.”
[50] Indeed, how could the Algonquin interest be insufficient, given Ontario’s recognition of their interest in the 2016 “Agreement in Principle” with the Algonquins, which is enroute to a full treaty?
(2) Issue Two: On the assumption that the Algonquins have standing, did the motion judge err in holding that they could pursue their claims by way of an action rather than judicial review?
[51] Ontario argues, supported by the Métis Nation, that the Algonquins were obliged to pursue this case by way of an application for judicial review, not by way of an action. They take this position with respect to the Algonquins’ challenge to Ontario’s approval of the Framework Agreement with the Métis Nation, and with respect to the claim that Ontario breached the duty to consult.
[52] On the latter, the motion judge disagreed, noting, at para. 59, that the duty to consult had been advanced in an action in Tsilhqot’in Nation. She observed, at para. 60, that because the claim is limited to declaratory and injunctive relief: “the relief sought in the statement of claim does not seek any remedies that require proceeding with an application for judicial review.”
[53] Are the Algonquins compelled to seek relief by way of judicial review under the Judicial Review Procedure Act, R.S.O. 1990 c. J.1, as Ontario and the Métis Nation of Ontario argue? I would say no, for four reasons.
[54] First, a claim for breach of the duty to consult can be advanced in an action, as it was in Tsilhqot’in Nation. As a general principle, a litigating party can select the legal process it wishes to pursue, subject to the Rules of Civil Procedure and to the requirements of the law more generally. Unless the law mandates a certain form of proceeding, the party starting it can choose the legal process to its own advantage. Further, even if a party selects the wrong form of proceeding, striking the claim merely on the basis that the litigant has “adopted the wrong ‘form of action’” might not be appropriate: see Chilian v. Augdome Corp. (1991), 2 O.R. (3d) 696 (C.A.), at para. 39. As Morden A.C.J.O. noted in Chilian, at para. 39, r. 2.01(2) provides that the “court shall not set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed”. A party should not be deprived of its choice of process lightly.
[55] Second, it is understandable that the Algonquins would prefer a trial over judicial review in this case, given the plethora of competing expert reports in which credibility and reliability will play key roles. The Supreme Court has pointed out that a civil action might sometimes be the preferred route. In Lax Kw’alaams Indian Band v Canadian (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, Binnie J. said, at para. 11,
If litigation becomes necessary, however, we have also said that such complex issues would be better sorted out in civil actions for declaratory relief rather than within the confines of regulatory proceedings. In a fisheries prosecution, for example, there are no pleadings, no pre-trial discovery, and few of the procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues.
[56] Binnie J. added, at para 12:
At this point in the evolution of Aboriginal rights litigation, the contending parties are generally well resourced and represented by experienced counsel. Litigation is invariably preceded by extensive historical research, disclosure, and negotiation. … The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders.
[57] Although Binnie J. was addressing litigation between a First Nation and the Crown, these observations apply with necessary modifications to litigation involving competing Aboriginal claims and the Crown.
[58] Then J.’s observations in Keewatin vs. Ontario (Minister of Natural Resources) (2003), 66 O.R. (3d) 370 (Div. Ct.), a treaty rights case, are also apt. In quashing an application for judicial review with leave to bring an action, he observed, at para. 59: “a great deal of evidence, including expert evidence, will be called by the parties on a number of disputed facts and issues, and it is inappropriate to deal with these disputes of material fact by way of summary application”. He concluded, at para. 63: “that the interests of justice would be best served if the issues raised on this application are determined at trial.” He noted, at para. 53 and following, that the court has jurisdiction under rule 38.10(1) to convert a judicial review application into a trial.
[59] The third reason for rejecting the argument that the Algonquins are compelled to seek relief by way of judicial review flows from the language of the Judicial Review Procedure Act. Section 6 of the Act requires “an application for judicial review” to be made to the Divisional Court. An “application for judicial review” is defined in s. 2(1) to mean a proceeding “by way of application for an order in the nature of mandamus, prohibition or certiorari” (s. 2(1)1) or a proceeding “by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power” (s. 2(1)2).
[60] I accept the motion judge’s observation, at para. 56, that “[t]he core of the plaintiffs’ case, as argued before me, is that Ontario breached its duty to consult with the plaintiffs.” The exercise of the Crown’s duty to consult is simply an exercise of its constitutional responsibility, an important vestige of the royal prerogative; in itself, compliance with the duty to consult does not involve the exercise of a statutory power. Decisions made by the Crown consequent on consultation might involve the exercise of a statutory power or a statutory power of decision, but fulfilling or declining to fulfill the duty to consult itself is neither.
[61] Ontario’s decision to recognize the Métis communities was made under s. 35 of the Constitution Act, 1982, and not under any statute. Further, it is not clear which, if any, of Ontario’s decisions that the Algonquins challenge involved the exercise of a power under a statute, with the possible exception of the decision not to prosecute members of the Métis Nation for breaching provincial legislation and regulations affecting hunting.
[62] Keewatin is an analogous case. Then J. quashed a judicial review application brought by a First Nation seeking declarations related to their treaty rights. He was sitting as a single judge of the Divisional Court. Then J. noted, at para. 29:
Section 2(1)(2) of the Judicial Review Procedure Act limits the declarations that may be sought in a judicial review to those relating to the “exercise, refusal to exercise or proposed or purported exercise of a statutory power.” While the applicants characterize this as a statutory power of decision issue, it is essentially a constitutional issue – namely, which level of government has the constitutional authority to issue forestry licenses. The Divisional Court has no jurisdiction to hear an application attacking the constitutional validity of the statutory powers conferred on the Minister (citations omitted).
[63] These words apply with necessary modifications to the claims of the Algonquins.
[64] The corollary is that there is reason to doubt whether an action based on the duty to consult simpliciter could be brought by way of an application for judicial review because of the absence of either the exercise of a statutory power or a statutory power of decision, as I explained above. The motion judge declined to address, at para. 83, whether the relief sought in the statement of claim could be pursued in a judicial review application.
[65] I do not say that judicial review will never be available to a s. 35 claimant. The availability of judicial review is dependent on the nature of the decision being challenged. In this case the context leads to an action as the preferable route.
[66] Ontario relies on Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 2 S.C.R. 585, at para. 19, for the proposition that a proceeding to set aside an administrative decision must be brought by way of judicial review. In TeleZone, the plaintiff sued the federal government for damages in tort and breach of contract for rejecting its personal communications services licence application. The Supreme Court rejected Canada’s argument that the plaintiff must first seek judicial review of the decision to reject the licence application before proceeding with a civil action. It did so on the basis that TeleZone was not seeking to set aside or nullify the decision. Even so, the plaintiff could pursue damages in the Ontario Superior Court of Justice despite the Federal Courts Act, R.S.C. 1985, c. F-7.
[67] In my view, the decision in TeleZone is not applicable. TeleZone dealt with decisions of the federal government, the Federal Court’s jurisdiction under the Federal Courts Act, and the concurrent jurisdiction of provincial superior courts under the Act. Section 18 of the Act confers exclusive original jurisdiction on the Federal Court to determine any case seeking administrative remedies, including writs of certiorari, against any federal board, commission, or tribunal. There is no equivalent statutory provision in Ontario ousting the Superior Court’s jurisdiction on the facts of this case, as I have noted in the analysis of the more limited reach of the Judicial Review Procedure Act.
[68] Relatedly, Ontario argues that by virtue of the honour of the Crown, a declaration that Ontario had breached the duty to consult would require it to “reconsider” its action so that “in practical effect, a declaration of a breach of the duty to consult with [the Algonquins] would be ‘in the nature of… certiorari.’” This possible outcome, Ontario asserts, compels the Algonquins to pursue their claim that the duty to consult was breached only by way of application for judicial review. I would reject this argument. How Ontario chooses to respond to an adverse decision is its own business, but its response, about which we can only speculate, does not transmute the result into certiorari for the purpose of applying the Judicial Review Procedure Act. Even if the declaration were made, no decision would be quashed by the court.
[69] Once it is acknowledged that an action lies against the Crown for breach of the duty to consult, the fourth reason for rejecting Ontario’s argument that the Algonquins are compelled to seek judicial review is that it would make no sense to force the Algonquins into two lawsuits, one an action for a declaration on the duty to consult, and the other for judicial review of specific decisions. There should only be one proceeding.
[70] In TeleZone, the Supreme Court wanted to avoid bifurcated proceedings by which a party seeking damages against the federal government would first have to successfully apply for judicial review in the Federal Court. Justice Binnie made several comments in TeleZone, at paras. 18 and 19. He said, “[p]eople who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity.” In his view, the court’s approach “should be practical and pragmatic with that objective in mind.” Justice Binnie added: “[a]ccess to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours.” I would read these comments as being of more general application and of relevance to this case. The interests of justice are better served by allowing all the claims to move forward together in one action than by requiring some relief to be sought by way of an application for judicial review, consistent with s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that “[a]s far as possible, multiplicity of legal proceedings shall be avoided.”
[71] There is no doubt that the Métis Nation has an interest in the issues raised by the Algonquins concerning harvesting rights in the Algonquin settlement area. To use the vernacular, the resource at issue – harvesting moose and other wildlife – is the subject of a zero-sum game; one party’s gain is the other party’s loss. To resolve the dispute, the presence of both competing parties is necessary.
[72] There is some awkwardness in making Métis Nation a party if the procedure is an application for judicial review. One way is by a motion to intervene under r. 13 of the Rules of Civil Procedure. See, for example, Apotex Inc. v. Ontario (Minister of Health) (2000), 10 C.P.R. (4th) 166 (Ont. S.C.), at para. 4 (granting leave to Pfizer Canada as an added party respondent in an application for judicial review brought by Apotex). Second, r. 5.03(1) of the Rules of Civil Procedure could be invoked by motion, as was done in Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2015 ONSC 7969, 128 O.R. (3d) 501, which added interested First Nations to a judicial review application brought by the Ontario Federation of Anglers and Hunters challenging a government policy.
[73] These additional proceedings seem wasteful and unnecessary. The direct route of an action is procedurally better.
[74] The motion judge did not err in deciding that the Algonquins could proceed by way of an action and were not compelled to proceed by way of judicial review. I would dismiss the cross-appeal on this basis.
(3) Issue Three: Did the motion judge err in striking the statement of claim in its entirety with leave to amend some but not all of the claims?
[75] I expressed my view that the court must be cautious not to foreclose avenues of relief plausibly open to the Aboriginal parties whose interests are engaged, particularly in the context of a pleadings motion that engages constitutional issues. I have explained why I would allow the Algonquins’ action to proceed largely as pleaded, on the basis that the Algonquins’ interest is sufficiently made out in the statement of claim to permit the action to proceed on the duty to consult and accommodate. The additional declarations seek consequential relief, which can range from “injunctive relief against the threatening activity altogether, to damages, to an order to carry out the consultation prior to proceeding further with the proposed government conduct”: Rio Tinto, at para. 37.
[76] This leaves three issues to be addressed. First, the Algonquins made submissions invoking the honour of the Crown even though it was not pleaded, as the motion judge noted at para. 57. She gave the Algonquins leave to amend “to assert that the honour of the Crown informs the duty to consult in this case.” She did not err in doing so given the utter saliency of the honour of the Crown in its actions involving Aboriginal rights under s 35 of the Constitution Act, 1982.
[77] Second, as a matter of clarification, I note that the motion judge struck out para. 2(e) of the statement of claim, which sought an interim and permanent injunction restraining the Métis Nation from issuing harvester cards under the Framework. The Algonquins did not appeal the striking of para. 2(e). The effect appears to be that the Métis Nation may continue to issue harvester cards pending the resolution of the action.
[78] Third, the motion judge struck out para. 2(d) of the Statement of Claim, which seeks a declaration that Ontario may not extend harvesting rights to the alleged Killarney and Mattawa/Ottawa River Métis communities, or any other alleged Métis communities. She did so on the basis that: “…it is plain and obvious that the plaintiffs’ challenge to the application of the [Enforcement Policy], resulting in the above declarations, seeks to have the court rule on the exercise of prosecutorial discretion, which is not justiciable”: para. 95.
[79] The motion judge set out the governing legal principles applicable to prosecutorial discretion, at paras. 91-93, citing: Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361, at para. 29, Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2016 ONSC 2806, at para. 38, affirmed, 2017 ONSC 518 (Div. Ct.), citing Zhang v. Canada (Attorney General), 2007 FCA 201, leave to appeal refused, [2007] S.C.C.A. No. 411.
[80] The Attorney General’s independence from interference in prosecutorial decisions is a constitutional principle: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 30. The Supreme Court has recognized on numerous occasions that “courts will not interfere with [the Attorney General’s] exercise of executive authority, as reflected in the prosecutorial decision-making process”: Krieger, at para. 31. The only exception to this is the abuse of process doctrine: Krieger, at para. 32. However, the motion judge noted, at para 94, that the Algonquins have not pleaded abuse of process in relation to prosecutorial discretion.
[81] The Algonquins disavow any attack on prosecutorial discretion. Instead, they ask this court to “re-examine the justiciability of Ontario’s Interim Enforcement Policy and recognize it, not as an exercise of prosecutorial discretion, but as an essential component of the Crown’s constitutional and honourable obligations.”
[82] Paragraph 2(d) requests:
d) An interim and permanent declaration in the nature of an injunction restraining Ontario, including the [Minister of Natural Resources and Forestry] and the [Minister of Indigenous Affairs], from applying the Framework [Agreement] so as to extend Ontario’s [Interim Enforcement Policy] to members of the alleged Killarney and Mattawa/Ottawa River Métis communities, or any other alleged Métis communities, in relation to harvesting within the [Algonquin] Settlement Area;
[83] In a sense, para. 2(d) does raise the question of prosecutorial discretion somewhat inferentially because one mechanism by which Ontario can open the resource to the Métis Nation harvesters is by declining to prosecute them.
[84] Further, in para. 38 of the statement of claim, the Algonquins state that they “do not dispute that Ontario has the right, and indeed a constitutional duty, to structure its laws and policies, including prosecutorial discretion, so as to avoid conflicts between Aboriginal and treaty rights-based harvesting and the enforcement of wildlife and fishery laws.” But, at paras. 89, and 97-98, they complain about the province’s lack of enforcement of wildlife protection laws against holders of harvester cards issued by the Métis Nation and others who are hunting without cards. These complaints could be construed as an attack on prosecutorial discretion, but para. 2(d) is framed in broader terms.
[85] The Algonquins argue that the Enforcement Policy “does not address the conduct of individual prosecutors but addresses the potential that certain classes of individuals who may face penal consequences may have a defence of a constitutional right.” To paraphrase their point, they ask the court to re-examine the justiciability of the Enforcement Policy and find that the policy does not engage prosecutorial discretion by individual prosecutors, which is properly understood at the heart of the doctrine. They argue that the Enforcement Policy, as policy, is inconsistent with the Crown’s constitutional and honourable obligations. The Algonquins invoke the Supreme Court’s decision in R. v. Anderson, 2014 SCC 41, [2014] S.C.R. 167, where the court said, at para. 45: “care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations.” This is certainly an arguable proposition and should not be struck in a pleadings motion.
[86] The trial court is capable of keeping the tension between policy and the demands of prosecutorial discretion in mind. The motion judge erred in striking para. 2(d) of the statement of claim. It fits well within the consequential relief to the duty to consult and accommodate under the principles in Rio Tinto and Haida Nation.
IV. Disposition
[87] I would allow the appeal, dismiss the cross-appeals, set aside the motion judge’s order, and give leave to the appellants to amend the statement of claim in a manner consistent with these reasons.
[88] The appellants are entitled to their costs. If the parties are unable to agree on costs, then the appellants may file a written submission no more than three pages in length within ten days of the date of the release of these reasons, and the respondents may file a written submission no more than three pages in length within ten days of the date the appellant’s submission is due.
Released: August 17, 2023 “J.M.F.” “P. Lauwers J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Doherty J.A.”
[1] Chief Whiteduck was named representative of all “Algonquins” for the purposes of this proceeding under a representation order dated September 18, 2020. That order defines Algonquins to include members of the Pikwakanagan community and other persons represented by the “Algonquins of Ontario” (or “AOO”) who are of Algonquin or Nipissing ancestry with primary ties to and Aboriginal rights within a portion of Eastern Ontario in the watershed of the Ottawa and Mattawa Rivers. The other part of the Algonquin Nation is in Quebec.
[2] Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 10, per Binnie J.
[3] Mikisew Cree First nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 22, per Karakatsanis J.
[4] Mikisew Cree First nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 1.
[5] Mikisew Cree (2018), at para. 21. See also Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 32.
[6] Mikisew Cree (2005), at para. 1. The Crown’s assertion of sovereignty gives rise to the “obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation”: Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 9, per McLachlin C.J. See also Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1, at paras. 112-113. In what follows, this court’s decision in Restoule is cited, sometimes paraphrased and sometimes quoted verbatim but without using block quotes.
[7] Powley, para. 53.
[8] See Nevsun Resources Ltd. v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166, at para. 120, per Abella J., and at para. 214, per Brown and Rowe JJ., dissenting in part.
[9] Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 25 (emphasis original).
[10] Little Salmon, at para. 42, per Binnie J., and at para. 105, per Deschamps J.; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 69, per McLachlin C.J. and Karakatsanis J.
[11] Mikisew Cree (2018), at para. 22, per Karakatsanis J.
[12] R. v. Marshall, [1999] 3 S.C.R. 456, at paras. 49 and 51, per Binnie J. This statement is repeated often. The Supreme Court of Canada used the phrase most recently in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15, at para. 22.
[13] Haida Nation, at para. 16; and see Manitoba Metis, at paras. 73-74; and Restoule, at para. 233.
[14] Haida Nation, at para. 45. See also Restoule, at para 113.
[15] Haida Nation, at para. 16.
[16] Haida Nation, at paras. 43-45; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at paras. 89-91.