COURT OF APPEAL FOR ONTARIO DATE: 20240531 DOCKET: COA-23-CV-0264
Doherty, Pepall and Zarnett JJ.A.
BETWEEN
Association of Iroquois and Allied Indians, Attawapiskat First Nation, Chapleau Cree First Nation, Eagle Lake First Nation, Fort Albany First Nation, Magnetawan First Nation, Mohawks of the Bay of Quinte, Temagami First Nation, Temeaugama Anishnabai and Wahgoshig First Nation
Applicants (Appellants)
and
The Minister of the Environment, Conservation and Parks, the Minister of Natural Resources and Forestry and the Attorney General of Ontario
Respondents (Respondents)
Counsel: Kevin Hille, Nick Kennedy, Graeme Cook and Yeseul Grace Shin, for the appellants Sylvia Davis and Imran Kamal, for the respondents
Heard: November 1, 2023
On appeal from the order of the Divisional Court (Justices Katherine E. Swinton, David L. Corbett, dissenting in part, and Michael A. Penny), dated October 14, 2022, with reasons reported at 2022 ONSC 5161.
Zarnett J.A.:
OVERVIEW
[1] On June 25, 2020, Ontario [1] revoked MNR-75, a regulation pertaining to forest management planning that had been enacted under the Environmental Assessment Act, R.S.O. 1990, c. E.18 (the “EAA”). Ontario then exempted forest management in certain parts of Ontario from the purview of the EAA, effective July 1, 2020. [2] Finally, on July 21, 2020, the Ontario legislature passed Bill 197 [3], making amendments to the EAA that:
i. removed the presumption that public undertakings will be subject to environmental assessments;
ii. granted the Minister of the Environment, Conservation and Parks (“MECP”) discretion to designate which projects will be subject to environmental assessment; and
iii. for certain activities, granted exemptions from otherwise applicable environmental assessment procedures.
[2] Ontario’s expressed rationale for these changes was to “modernize” Ontario’s environmental protection regime, removing red tape and redundancy, and advancing post-COVID economic recovery.
[3] The appellants, First Nations from across the province, applied for judicial review, arguing that their exclusion from the deliberations that preceded the changes breached the Crown’s duty to consult and the honour of the Crown more generally. [4]
[4] The application for judicial review was dismissed.
[5] As to the enactment of Bill 197, the Divisional Court was unanimous in its view that no duty to consult arose in or about the law-making process. As to the revocation of MNR-75, the Divisional Court was divided. A majority of the Divisional Court was of the view that there was no adverse effect on the appellants’ protected rights giving rise to a duty to consult. Even if there was a duty, the majority considered that it was at the lower end of the spectrum and that the Crown’s consultation efforts were reasonable. The dissenting judge, Corbett J., was of the view that, given the appellants’ strong interest in forest management and Ontario’s history of forest mismanagement, the Crown owed a duty to consult at the deeper end of the spectrum and its actual consultation efforts were unsatisfactory. He would have issued a declaration that the Crown failed to discharge its duty to consult and that the revocation of MNR-75 was unlawful and of no force or effect.
[6] For the reasons below, I would dismiss the appeal.
[7] I agree with the Divisional Court that Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765 (“Mikisew Cree #2”) precludes any finding that a duty to consult arises in the law-making process except, perhaps, in very limited circumstances, none of which were applicable in this case.
[8] I also agree with the conclusion of the majority of the Divisional Court that the revocation of MNR-75 did not give rise to a duty to consult. As a result, I do not reach the issue of whether, if there was a duty to consult about the proposed revocation, Ontario fulfilled it.
[9] For the most part, protections equivalent to those that had been provided in MNR-75 were already in place under the Forest Management Planning Manual (the “Manual”), a legally binding document, which continues in force. The Manual recognizes, as did MNR-75, the ongoing obligation on the Ministry of Natural Resources and Forestry (the “MNRF”) to protect the environment. It also expressly continues obligations that had been found in MNR-75 which provide for Indigenous community involvement and consultation in the forest management planning process.
[10] Although MNR-75 had provided for certain oversight by the MECP over the MNRF in relation to forest management projects, which the revocation of MNR-75 ended, any adverse effect that could result from that change is too speculative in nature to give rise to a duty to consult. The duty to consult continues to apply to the MNRF’s forestry management decisions that have the potential to adversely affect Aboriginal or treaty rights or claims.
[11] Nor could the loss of Condition 56 of MNR-75 (which contemplated negotiations for Indigenous community participation in economic benefits from forestry projects) give rise to a duty to consult. The appellants have not related Condition 56 to any specific Aboriginal or treaty right. Moreover, other legal provisions, as well as commitments that Ontario has made, in large measure mirror the substance of Condition 56, making any adverse impact arising from the revocation of the condition too speculative to engage the duty to consult.
FACTUAL AND PROCEDURAL BACKGROUND
(1) MNR-75
[12] Before 1994, the MNRF was primarily responsible for regulating forest management, without significant MECP involvement. Indigenous communities across Ontario had long expressed concern that the MNRF’s policies favoured economic development at too great a cost to their protected Aboriginal rights. They maintained that the spillover effects of mass clear-cutting across Ontario had been devastating to their lands and resources.
[13] In response to these and similar complaints from other affected communities, the Environmental Assessment Board held hearings between 1988 and 1992.
[14] The Board released its decision on April 20, 1994. The decision detailed the historical exclusion of Indigenous groups from forest management planning and the benefits of forestry activities. The decision included conditions that found their way into predecessor orders and ultimately into MNR-75. However, before describing these conditions, it is important to situate MNR-75 into the broader regulatory framework governing forest management on Crown lands.
[15] In Ontario, forest management on Crown lands is generally regulated by the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25 (the “CFSA”). Section 1 of the CFSA provides that its purposes are “to provide for the sustainability of Crown forests” and “to manage Crown forests to meet social, economic and environmental needs of present and future generations.” In order to achieve these purposes, s. 68 provides for the preparation, by the MNRF, of the Manual which, in turn, governs the contents of forest management plans, including public involvement and decision-making processes. Section 8(2) requires that all forest management plans “have regard to the plant life, animal life, water, soil, air and social and economic values” including “heritage values” of the management units to which they apply. Pursuant to ss. 8(1) and 9(1), the MNRF is responsible for ensuring that forest management plans are prepared in accordance with these requirements, and no plan is effective unless the MNRF approves it.
[16] As the majority of the Divisional Court pointed out, Ontario acknowledges that there is a duty to consult with affected Indigenous communities in the process of creating forest management plans.
[17] MNR-75 was enacted under the authority of s. 3.2 of the EAA. Section 3.2 authorizes the MECP to declare that the EAA (and its attendant environmental assessment processes) “does not apply with respect to a proponent, a class of proponents, an undertaking or a class of undertakings … if the Minister considers that it is in the public interest to do so”.
[18] MNR-75 conditionally declared that the EAA did not apply to “forest management planning”. Forest management planning would instead be subject to its own set of environmental assessment requirements, which were also set out in MNR-75.
[19] MNR-75 contained 61 conditions, the first 34 of which were described as “planning conditions”.
[20] Some of the conditions in MNR-75 specifically required or contemplated consultation with Indigenous communities, and attention to their interests, concerning forest management planning:
- Condition 4(j) required the MNRF to prepare a report on: (i) the use of natural resources (including hunting, fishing, trapping and gathering) by Indigenous communities in or adjacent to the area covered by the plan; (ii) the forest management related concerns of those communities; and (iii) “Aboriginal Values … used by or of importance to” those communities.
- Conditions 9 and 11(e) provided for a separate and specific consultation process for Indigenous communities developed in consultation with them.
- Condition 12(b) dealt with assessments of the impact of road access for Indigenous communities.
- Condition 17 required the MNRF to prepare a report on the “Protection of Identified Aboriginal Values for Aboriginal Communities”.
- Other conditions related to wildlife monitoring and species-at-risk protections.
[21] Condition 56, while not a planning condition, contemplated negotiations between the MNRF and Indigenous communities to identify and implement ways of achieving a more equal participation by Indigenous peoples in the economic benefits provided through forest management planning. Among other things, the negotiations would address: job, training, and income opportunities; supply of and access to forest resources, including wood and wood processing facilities; and forest resource licencing.
[22] MNR-75 also stipulated that the MECP would have certain oversight responsibilities over the MNRF with respect to MNR-75’s implementation:
- Condition 26 permitted persons who were dissatisfied with certain MNRF forest management decisions to request that the MECP conduct its own assessment of the relevant project (known as “bump-up requests”).
- Condition 57 required the MNRF to submit reports to the MECP summarizing the MNRF’s efforts to implement MNR-75 – including its consultations with Indigenous communities – every five years.
- Condition 58 provided that any request for amendment to MNR-75 – which could come from a private party, such as an Indigenous community – had to run through the MECP. The MECP had the discretion to modify the request and its Minister would decide whether to request that the Lieutenant Governor in Council make an order amending MNR-75.
[23] Condition 61 required that the MNRF incorporate all the planning conditions into the Manual. There is no dispute that the MNRF did so, such that the planning conditions found in MNR-75 were duplicated in the Manual, a document with legal effect.
[24] Other conditions in MNR-75, although not found in the Manual, also overlapped with other statutory or regulatory provisions. For example, while Condition 56 of MNR-75 contemplated MNRF negotiations about economic benefits from forestry activities, other provisions required persons licenced by the MNRF to negotiate with Indigenous communities on these topics.
[25] In the Analysis section below, I discuss the importance of the fact that provisions that overlapped with MNR-75 while it was in force continue in effect after the revocation of MNR-75.
(2) The Revocation
[26] The deliberations underlying the revocation of MNR-75 date back to 2018, when the MNRF began developing a new strategy for Ontario’s forestry regulation. The MNRF wanted to streamline Ontario’s forest management requirements and was of the view that MNR-75 was redundant because the MNRF had already incorporated most of its protections into the Manual, a legally binding document.
[27] The MECP agreed. On December 20, 2019, the MECP posted a notice on the Environmental Registry of Ontario concerning proposed amendments to the EAA. The notice included a statement that MNR-75 would no longer apply to forest management projects. The MNRF and MECP then sent letters to Indigenous communities notifying them about the posting and noting that the posting dealt with MNR-75. The ministries left the comment period open for three months, inclusive of an extension, in order to facilitate the participation of Indigenous communities in discussions concerning the proposed changes.
[28] No Indigenous communities made any submissions during the comment period. The appellants’ evidence was that they did not do so because the notices that they received did not clearly delineate what the MECP intended to do with respect to MNR-75 and the appellants were otherwise overwhelmed by separate requests for consultation. Additionally, the appellants received no support from the Crown in determining the likely effect of the proposed changes on their interests and the requests for comment came during the early throes of the COVID-19 pandemic, when the appellants’ resources were already stretched thin.
[29] Based on the submissions that it had received, the MECP determined that the revocation of MNR-75 would not have any adverse effects on Aboriginal or treaty rights. It proposed revocation, which was effected by Order in Council 981/2020 on June 25, 2020. Ontario then exempted forest management in certain designated areas from the purview of the EAA through O. Reg. 337/20, which became effective on July 1, 2020.
(3) Amendments to the EAA
[30] On July 21, 2020, Bill 197 was passed.
[31] Leading up to that point, there were firm indications that the appellants would be consulted on any impact that the Bill could have on their interests. Under s. 7 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28 (“EBR”), Ontario ministries are required to draft Statements of Environmental Values. The MECP’s statement provides that, “[w]hen making decisions that might significantly affect the environment, the Ministry will provide opportunities for involvement of Aboriginal peoples whose interests may be affected by such decisions so that Aboriginal interests can be appropriately considered”. This includes when the MECP is “develop[ing] Acts”. In 2018, in the Made-in-Ontario Environment Plan (a precursor to Bill 197) Ontario said it would “continue to consult with the public and engage with Indigenous communities”. In a 2019 presentation accompanying a discussion paper entitled “Modernizing the Environmental Assessment Program”, the MECP stated that it intended to consult Indigenous groups on what became Bill 197.
[32] Ontario ultimately changed its position. It determined that the honour of the Crown did not require it to consult with Indigenous communities before passing Bill 197. It terminated any discussions. Section 51(7) of Bill 197 retroactively exempted the Bill from the consultation requirements in the EBR.
[33] As noted, the Bill made several significant changes to the EAA. These included reversing the presumption that public undertakings will be subject to environmental assessment, granting the MECP discretion to designate which projects will be subject to environmental assessment, and granting exemptions to certain activities from otherwise applicable environmental assessment procedures.
(4) The Application for Judicial Review
[34] The appellants sought judicial review of the respondents’ conduct with respect to MNR-75 and Bill 197 at the Divisional Court under ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Their arguments were threefold:
i. The passage of Bill 197 without consultation breached either the duty to consult or the honour of the Crown more generally.
ii. Bill 197’s amendments to the EAA infringed the appellants’ rights under s. 35(1) of the Constitution Act, 1982 because they unduly diminished the Crown’s consultation requirements contrary to the Crown’s honour.
iii. The revocation of MNR-75 engaged the duty to consult and the Crown provided inadequate consultation.
(5) The Decisions Below
[35] The Divisional Court was unanimous on some issues and split on others.
[36] The court unanimously held that Mikisew Cree #2 precluded the appellants’ claim that there was a duty to consult regarding Bill 197. While Mikisew Cree #2 was a split decision without a clear majority, seven of the nine justices would have held that the duty to consult does not apply to the law-making process. Since the deliberations leading up to the passage of Bill 197 comprised part of the law-making process – rather than executive decision-making – they did not implicate the Crown’s honour. And while Karakatsanis J.’s concurrence may have left open the possibility that, in some narrow circumstances, the law-making process could implicate the honour of the Crown, this case was “on all fours” with Mikisew Cree #2, and therefore did not meet any such exception.
[37] The court also noted that it had already decided, in Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 4521, 157 O.R. (3d) 497 (Div. Ct.), that s. 33.1 of the EAA, which exempted Bill 197 from the consultation requirements under the EBR, was valid legislation with retroactive effect.
[38] The court further unanimously held that it was the wrong forum for consideration of the appellants’ substantive claims concerning Bill 197. The Divisional Court has no jurisdiction under the Judicial Review Procedure Act to consider whether legislation violates s. 35(1) of the Constitution Act, 1982.
[39] On the appellants’ MNR-75 claim, Corbett J. would have held that the Crown owed the appellants a duty to consult on the deeper end of the spectrum and that the Crown failed to observe that duty. He noted that the rationale for revoking MNR-75 contradicted the very reason it was enacted. The MECP enacted MNR-75 precisely because interested stakeholders in Ontario’s forests had complained that the MNRF required more oversight. The MNRF had favoured economic development at the expense of, among other things, the appellants’ interests for decades, with devastating consequences. Yet, Ontario revoked MNR-75 in order to streamline forest management, leaving it entirely to the MNRF’s discretion. In Corbett J.’s view, Ontario was repudiating a measure that it had taken to address the appellants’ mistrust in the MNRF. He would have held that the appellants were entitled to rely on the continued existence of MNR-75 as an expression of the Crown’s honour and that its revocation triggered the duty to consult.
[40] Given the appellants’ strong interest in forest management and their acrimonious history with Ontario forestry authorities, Corbett J. considered the Crown’s duty to consult on the revocation of MNR-75 to be “not on the ‘lower end of the spectrum’”. Although he did not identify the entirety of what the duty to consult required, he considered that, at minimum, the appellants were entitled to “reasonable notice, an opportunity to make submissions, reasonable resources for professional support to make their submissions, and principled responses to their legitimate concerns.”
[41] Corbett J. considered the actual consultation efforts to be unsatisfactory. While the MECP provided notice, that notice was unclear on what it actually intended to do with respect to MNR-75. When the appellants received the notice, they were already inundated with dozens of other requests to consult and public health crises arising from the COVID-199 pandemic. Put simply, the appellants were stretched thin and needed to triage the consultations that were worth their time. The MECP’s failure to clearly identify its intentions with respect to MNR-75 and/or provide resources to help the appellants assess the impact of MNR-75’s revocation was, in Corbett J.’s view, inconsistent with the honour of the Crown.
[42] The majority of the Divisional Court (Swinton and Penny JJ.) disagreed that the revocation of MNR-75 implicated the duty to consult. The duty does not arise unless the Crown’s contemplated action adversely affects an Aboriginal or treaty right and, in their view, the appellants “failed to identify any such rights that will or may be adversely affected by the revocation of MNR-75.” Condition 56, which addressed negotiations for economic benefits, was not a right that gave rise to a legal obligation to consult. Removing MECP oversight was insufficient, as the MNRF is still required to observe the planning requirements of MNR-75, which are embodied in the Manual. All forest management plans must comply with the Manual, and the MNRF cannot amend the Manual without prior review and public consultation. Accordingly, the MNRF remains subject to the accommodations to the appellants that were made in MNR-75, the revocation of which made “no structural change[s] to the management of the forestry resource that could give rise to a duty to consult” and did “not remove or reduce the Crown’s consultation obligations with respect to future decisions on forestry management that affect Indigenous communities.”
[43] The majority found that even if the revocation of MNR-75 had triggered the duty to consult, the duty was at “the lower end of the spectrum” and the Crown’s consultation efforts were reasonable. The Crown gave notice of the revocation and provided ample opportunity for Indigenous community submissions. The Crown concluded, based on the lack of any such submissions and the existence of identical protections in related environmental legislation and binding instruments such as the Manual, that the revocation of MNR-75 would not adversely affect the appellants’ protected rights. The majority considered that conclusion to be available on the facts.
ANALYSIS
(1) The Enactment of Bill 197 Without Consultation
[44] The appellants submit that the Divisional Court erred in holding that Mikisew Cree #2 disposed of its claim that their exclusion from deliberations on Bill 197 implicated the honour of the Crown. They submit that the Divisional Court took too narrow of a view, considering this claim only from the perspective of whether the Crown had a duty to consult the appellants during the law-making process. The honour of the Crown is broader than the duty to consult. It requires the Crown to act honourably in its dealings with Indigenous peoples, irrespective of the duty to consult. The appellants argue not that their exclusion from the law-making process dishonoured the Crown, but that the Crown’s unilateral termination of consultations to which it had committed itself by Ministers’ statements and the EBR did so, as did the retroactive exemption of Bill 197 from the EBR’s consultation requirements. The appellants argue that this point was not in issue – and therefore not addressed – in Mikisew Cree #2.
[45] The appellants also argue that Greenpeace does not dispose of this claim. In that case, environmental activists unsuccessfully challenged Ontario’s decision to retroactively exempt amendments to environmental legislation from the EBR’s consultation requirements. The applicants in that case were not Indigenous and they neither did nor could advance a claim predicated on the honour of the Crown.
[46] I do not accept these arguments. The honour of the Crown is an interpretive principle, not a freestanding cause of action. It informs how the Crown must observe certain obligations – including its fiduciary duties with respect to Aboriginal interests and its treaty and statutory commitments to Indigenous peoples – but it does not itself form one of those obligations: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 73. The question we must answer is therefore whether Ontario’s decision to abandon its consultation efforts on Bill 197 engaged any Crown obligation to which the honour of the Crown could attach.
[47] Although there are four sets of reasons in Mikisew Cree #2, the majority view can fairly be taken to be that the duty to consult does not apply to “the law-making process”: at paras. 1-2 (per Karakatsanis J.), 135 (per Brown J.), 150 (per Rowe J.). If Bill 197 adversely impacts any Aboriginal interests protected under s. 35(1) of the Constitution Act, 1982, the proper avenue for redress is a constitutional challenge to the legislation according to the framework set out in R. v. Sparrow, [1990] 1 S.C.R. 1075: Mikisew Cree #2, at paras. 31, 48 (per Karakatsanis J.), 145 (per Brown J.), 151-52 (per Rowe J.).
[48] If the duty to consult does not apply to the process of enacting Bill 197, could it arise because a representative of the government said there would be consultations before passing the legislation? In my view, this argument is not tenable. The appellants do not argue that a statement that consultation will occur rises to the level of a recognized s. 35(1) obligation to which the honour of the Crown attaches.
[49] Nor do I see how, if law-making is exempt from the duty to consult, the honour of the Crown is engaged when that law-making is aimed at changing legislative provisions which previously contemplated consultation about legislation.
[50] It is difficult to see how Ontario’s conduct leading up to the passage of Bill 197 advances reconciliation. But that is not the question we have to decide. Despite Ontario’s conduct leading up to the passage of Bill 197, I see no right which implicates the honour of the Crown on the facts presented.
(2) The Revocation of MNR-75
a. The Parties’ Positions
[51] The appellants submit that the revocation of MNR-75 constituted a strategic, high-level environmental management decision, the ripple effects of which would adversely affect multiple protected Aboriginal and treaty rights. They say that such high-level decisions have attracted a duty to consult in other cases: see e.g., Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345, 77 B.C.L.R. (5th) 26.
[52] According to the appellants, the majority of the Divisional Court erred in holding that the economic benefits to which the appellants were entitled under the MNR-75 conditions were not constitutionally protected and that their revocation therefore did not trigger the duty to consult. They submit that the deprivation of any economic benefits that are closely tied to Aboriginal rights will trigger the duty to consult, citing Ermineskin Cree Nation v. Canada (Environment and Climate Change), 2021 FC 758, 46 C.E.L.R. (4th) 202.
[53] Further, the appellants argue that the majority of the Divisional Court erred in failing to find that a duty to consult arose from the removal of MECP oversight, which was a feature of MNR-75. Indeed, MECP oversight was one of the very reasons MNR-75, and its predecessors, had been enacted, given that the MNRF has a long track record of overlooking Indigenous interests in making forest management decisions, with devastating consequences for protected resources and lands.
[54] The respondents submit that the duty to consult does not apply to strategic, high-level regulatory decisions unless those decisions are directly connected to a specific project that may adversely impact a protected right. They accept that the approval of a specific forest management plan will give rise to a duty to consult, but the enactment of the scheme setting out how the Crown intends to observe that duty does not itself attract the duty. The respondents also argue that the majority of the Divisional Court correctly held that the appellants had failed to identify a protected right on which the revocation of MNR-75 might have an adverse effect.
b. Discussion
The Changes Resulting from the Revocation of MNR-75
[55] Not every provision in MNR-75 went out of legal existence upon its revocation. Although in describing the revocation of MNR-75 the appellants highlighted eight of its conditions, in argument they essentially focused on three: conditions 26 and 56, and unnamed provisions related to wildlife protection. The remaining five conditions that they highlighted (4(j), 9, 11(e), 12(b) and 17), and many more, were adopted wholesale into the Manual which, as the majority of the Divisional Court correctly held, is a legally binding instrument that forms part of the core of the regulatory regime of forest management in Ontario. The appellants point to no mistake in this finding.
[56] The importance of the continuation of provisions of MNR-75 in another legally binding instrument is two-fold. First, to the extent that provisions that were in MNR-75 continue in the same form in another legally binding instrument, the revocation of MNR-75 cannot be considered a change that has an impact on the appellants. And second, the provisions that were continued are important, dealing as they do with, among other things: (i) the requirements that the MNRF prepare reports on uses by and concerns of Indigenous communities regarding forest resources and Aboriginal values; (ii) consultation processes for Indigenous communities developed in conjunction with them; and (iii) the assessment of impacts of road access on Indigenous communities. The provisions that were not continued must be considered in light of those that were.
[57] The three elements of MNR-75 that the appellants maintain are not continued, in whole or relevant part, after the revocation of MNR-75, and that require further scrutiny, are:
i. Condition 26 allowing requests for elevation orders or “bump up requests”, enabling Indigenous communities to request an individual environmental assessment for a particular project – a request which, even if unsuccessful could lead to the MECP imposing further conditions for the project.
ii. Condition 56 requiring negotiations with Indigenous communities to identify and implement ways of achieving a more equal participation by Indigenous peoples in the economic benefits provided through forest management planning, including by providing job opportunities, income, wood supplies, licences and training.
iii. Although they do not point to a specific condition, the appellants assert that the removal of forestry from the requirement for environmental assessments results in the removal of wildlife monitoring and species-at-risk protection.
[58] In respect of each of these conditions, it is important to consider the nature of the appellants’ concerns.
[59] Condition 26 was not continued in the Manual after the revocation of MNR-75. The focus of the appellants’ concern is not that, as a substantive matter, the planning and environmental protections found in the Manual or under the CFSA are less than what would have been available if they had been able to request an environmental assessment under the EAA. The focus is instead on the removal of MECP oversight (which would be involved if a request for an environmental assessment under Condition 26 were made), such that only the MNRF is responsible for assessment and approval of forestry projects.
[60] Condition 56 expressly provided for “negotiations [by the MNRF] with Aboriginal peoples” at the local level “in order to identify and implement ways of achieving a more equal participation by Aboriginal peoples in the benefits provided through forest management planning.”
[61] Although that provision has no counterpart in the Manual, it was not the only legal provision that contemplated negotiations for economic benefits. When the MNRF issues a Sustainable Forest Licence to a third party to “harvest forest resources” pursuant to s. 26 of the CFSA, it does so subject to certain terms and conditions. Among those include an “Aboriginal opportunities” condition, which requires the licensee to “work co-operatively with the Minister and local Aboriginal communities in order to identify and implement ways of achieving a more equal participation by Aboriginal communities in the benefits provided through forest management planning.” Failure of a licensee to comply with a condition of a licence is an offence and can subject the licensee to a compliance order or penalty: CFSA, ss. 57(1), 58(1)(b), 64(1)(b).
[62] On the impact on wildlife monitoring and species-at-risk protection, the specific conditions identified by the appellants’ expert that were formerly in MNR-75 are all contained in the Manual and are binding. Although the appellants make a more general reference to the loss of conditions protective of wildlife and species-at-risk, they point to no other specific conditions. [5]
[63] Having identified the nature, focus and extent of the changes, I turn to whether a duty to consult arose from them.
The Duty to Consult
[64] The Supreme Court’s decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 is the starting point for the Crown’s duty to consult and accommodate arising from s. 35(1) of the Constitution Act, 1982. Haida Nation involved a logging licence to cut trees on land subject to an Aboriginal title claim. No treaty rights applied because the land was unceded.
[65] The issue in Haida Nation was whether the Crown’s asserted sovereignty to use resources as it chose could proceed as normal pending proof and resolution of the Aboriginal title claim or whether the Crown had to adjust its conduct. McLachlin C.J., speaking for a unanimous court, answered that the Crown “cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued”: Haida Nation, at para. 27. The honour of the Crown entails a duty to consult and accommodate “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”: Haida Nation, at para. 35.
[66] McLachlin C.J., again on behalf of a unanimous court, fleshed out this statement of the duty to consult in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650. At paras. 31 and 51, she broke the question of when a duty to consult arises from Haida Nation into three elements:
i. The Crown must have knowledge, actual or constructive, of potential Aboriginal claims or rights;
ii. The Crown must propose conduct or a decision that concerns the Aboriginal claims or rights; and
iii. That conduct or decision must have a potentially adverse impact on the Aboriginal claims or rights. This last element requires that the claimant demonstrate a causal connection between the proposed Crown conduct and the potentially adverse impact.
[67] Below, I describe the principles of law relevant to each of the three elements.
i. Crown Knowledge of a Potential Claim or Right
[68] The threshold for whether the Crown has real or constructive knowledge of a potential claim to resources or land is not high: Rio Tinto, at paras. 40, 51. The Crown has actual knowledge when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted: Rio Tinto, at para. 40. As a party to a treaty, the Crown always has notice of its contents: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 34.
[69] Constructive knowledge arises when an impact on Aboriginal rights may reasonably be anticipated. A credible claim suffices to trigger a duty to consult and accommodate. Even “[t]enuous claims, for which a strong prima facie case is absent” may still attract a duty: Rio Tinto, at para. 40. As McLachlin C.J. stated in Haida Nation, at para. 37, and repeated in Rio Tinto, at para. 40:
Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances…. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims.
[70] While the merits of the claim need not be strong, the nature of the claim must be reasonably precise. In Haida Nation, McLachlin C.J. acknowledged, at para. 36, that meaningful discussion of accommodation of a right requires “some idea of the core of that right and its modern scope”. Thus, the claimants must “outline their claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements”: Haida Nation, at para. 36. More recently in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, at para. 80, McLachlin C.J. affirmed that “defining the elements of [their] claim with clarity” is an “obligation” of the claimants, noting that the duty to consult is a “two-way street”.
[71] Accordingly, the mere assertion that the Crown may entrench upon unclear Aboriginal interests or Aboriginal interests in general will not engage the duty to consult: see e.g., Mi’kmaq of P.E.I. v. Province of P.E.I., 2019 PECA 26, at paras. 47, 64, 119-120, leave to appeal refused, . The court cannot conduct the duty to consult analysis without an understanding of the specific rights involved.
[72] I return to the issue of whether the appellants have sufficiently identified the Aboriginal right or claim they assert is detrimentally affected when I discuss the specific areas of concern arising from the revocation of MNR-75 that they have identified.
ii. Contemplated Crown Conduct
[73] For a duty to consult to arise, there must be Crown conduct or a Crown decision that engages the potential Aboriginal or treaty rights identified at the first stage of the analysis. “Crown” conduct, for duty to consult purposes, refers to the conduct of the executive, not the legislature: Mikisew Cree #2, at paras. 27, 50 (per Karakatsanis), 102, 128, 133 (per Brown J.), 148, 152 (per Rowe J.)
[74] Mikisew Cree #2 held that the duty to consult applies “to the process by which subordinate legislation (such as regulations or rules) is adopted, as such conduct is clearly executive rather than parliamentary”: at para. 51 (per Karakatsanis J., for herself, Wagner C.J. and Gascon J.). [6] Neither party disputes that this proposition applies with respect to the revocation of MNR-75, which I therefore conclude constituted contemplated Crown conduct for the purposes of the duty to consult analysis.
iii. Potential Adverse Impacts
[75] The third element of the duty to consult inquiry concerns whether the contemplated Crown conduct identified at the second stage of the analysis had any potentially adverse effects on the Aboriginal or treaty rights identified at the first stage. As McLachlin C.J. stated at para. 45 of Rio Tinto:
The third element of a duty to consult is the possibility that the Crown conduct may affect the Aboriginal claim or right. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, including previous breaches of the duty to consult, do not suffice.
[76] Thus, the focus of the inquiry is on the current government conduct or decision in question: Rio Tinto, at para. 49. This is an important consideration in the case at bar where historical distrust of the MNRF as a regulator is raised as evidence of potential harm. Standing alone, past wrongs are insufficient to show a causal relationship between the current Crown conduct and a present potential for adverse impacts on Aboriginal rights.
[77] While a generous and purposive approach to this element is required, “mere speculative impacts” will not suffice: Rio Tinto, at para. 46. Other appellate courts have interpreted the meaning of “mere speculative impacts” as follows:
- The impact “must be more than speculative” – it must have “some appreciable and current potential to adversely impact the substance of a claimed right”: Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31, [2015] 7 W.W.R. 82, at para. 90 (emphasis in original).
- There is a distinction between harms that are concretely possible and harms that are speculative – “[a]n impact that is, at best, indirect, that may or may not happen at all (such that we cannot estimate any sort of probability), and that can be fully addressed later is one that falls on the speculative side of the line, the side that does not trigger the duty to consult”: Hupacasath First Nation v. Canada (Minister of Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737, at paras. 99 to 105.
[78] Strategic, high-level decisions raise particular issues as to whether a duty to consult arises.
[79] In Buffalo River, the court considered whether the issuance of an oil sand exploration permit triggered a duty to consult. The permit had no obvious or immediate impact on Aboriginal or treaty rights. However, the applicant argued that the permit would inform future mineral access and exploitation decisions that could adversely affect Aboriginal or treaty rights. The applicant therefore submitted that a duty to consult should arise with respect to the antecedent step of the exploration permit, rather than to any eventual decision on access and exploitation.
[80] The Saskatchewan Court of Appeal rejected the applicant’s position as premature and found that the evidence showed a “well-defined and linear regulatory process” that required consultation at later stages: Buffalo River, at para. 87. The court explained further, at paras. 93-94, how a broad challenge to a regulatory process could not meet the causal relationship required to trigger the duty to consult:
The Crown does not suggest oil sands exploration (let alone oil sands development) will proceed without good faith consultation with every affected Aboriginal group—it simply says Buffalo River DN’s application to force it [to] do so is premature. I agree; it is premature because, at this first stage in the regulatory process, there is simply no evidence that could have been tendered to show a causal relationship between the decision to issue the [exploration permits] and the speculative future adverse impact of oil sands exploration and development on Buffalo River DN’s rights under Treaty 10.
I do not accept that the Court can simply assume the Crown will unfairly prioritize mineral resource exploration and development over protection of treaty rights. Nevertheless, if the Crown did so in breach [of] its obligations under Treaty 10, then Buffalo River DN would have full opportunity to hold the Crown to account before the courts by seeking a remedy for the Crown’s failure.
[81] However, Crown decisions or conduct need not have an “immediate impact” to trigger a duty to consult – it is sufficient for the decision or conduct to have a “potential for adverse impact”. [7] Thus, strategic decisions that affect a regulatory regime in a manner that threatens to reduce an Indigenous community’s ability to participate in decision-making that may have an impact on its protected rights will be subject to a duty to consult: Chartrand, at para. 71.
[82] In Rio Tinto, the court explained, at para. 47, that under the third element of the inquiry, high-level resource management decisions or structural changes to resource management are reviewed to see if they “may set the stage for further decisions that will have a direct adverse impact on land and resources”: Rio Tinto, at para. 47 (emphasis in original). The example that McLachlin C.J. gives in Rio Tinto is the Crown transferring power over a resource to a private party in a way that removes or reduces the Crown’s power to ensure that the resource is developed in a way that respects Aboriginal interests. She did not find the Crown conduct in issue rose to this level despite B.C. having entered into a joint agreement with Rio Tinto Alcan to manage a reservoir that could impact the claimant’s fisheries. The joint management did not trigger the duty to consult because B.C. remained involved and future conduct that could impact an Aboriginal right would thus be subject to a duty to consult.
[83] In Mikisew Cree #2, Rowe J. (concurring) further commented on what was meant by “strategic, higher-level decision” at para. 158. He observed that the removal of a layer of oversight from an environmental regulatory scheme is not itself an adverse effect on a s. 35(1) right, especially where regulation in a modified form continues:
While Bills C-38 (enacted as Jobs, Growth and Long Term Prosperity Act, S.C. 2012, c. 19) and C-45 (enacted as Jobs and Growth Act, 2012, S.C. 2012, c. 31) modified the regulatory framework for certain waterways, the use of those waters was not thereby returned to a situation of laissez-faire. Environmental regulation, provincial and territorial as well as federal, continues to apply. The appellants submit that the reduction in federal environmental oversight “profoundly affects” treaty rights by removing an environmental assessment process that would trigger the duty to consult…. However, this is not the type of adverse effect that was contemplated in Haida Nation and subsequent jurisprudence. What is protected by s. 35 is the Aboriginal or treaty right itself. A specific set of arrangements for environmental regulation is not equivalent to a s. 35 right, and in particular is not equivalent to the treaty right relied on by the Mikisew in this case. As this Court stated in Rio Tinto: “the definition of what constitutes an adverse effect [does not] extend to adverse impacts on the negotiating position of an Aboriginal group” (para. 50). The adverse impact must be to the future exercise of the right itself (para. 46). [Emphasis in original.]
[84] This observation reinforces what the Supreme Court previously recognized in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 45: while the duty to consult has a strong environmental component, “the consultative inquiry is not properly into environmental effects per se.” See also Jack Woodward, Aboriginal Law in Canada (Thomson Reuters – looseleaf), at § 5:33.
Did the Revocation of MNR-75 Give Rise to a Duty to Consult?
[85] I turn now to the specific changes of concern identified by the appellants as arising from the revocation of MNR-75: (i) the removal of MECP oversight over the MNRF; (ii) the removal of Condition 56 and the economic benefits that it conferred on the appellants; and (iii) the removal of wildlife monitoring and species-at-risk protections.
i. Removal of MECP Oversight
[86] The first question is whether, in respect of this change, the appellants have clearly identified a specific Aboriginal right or claim on which the proposed Crown conduct – the revocation of MNR-75 – may have an adverse impact. The majority of the Divisional Court found that they had not. Corbett J.’s dissenting reasons do not shed light on which Aboriginal right or claim may be engaged.
[87] The appellants’ affiants argue that the MNRF’s historical failures to take account of Indigenous communities’ interests is what led to MNR-75. The appellants submit that MNR-75 made the MNRF subject to MECP oversight as an accommodative measure that addressed these past wrongs.
[88] However, MECP oversight is not an Aboriginal right or claim. The substantive regulatory regime requires the regulator, the Crown through the MNRF, to give consideration to and consult with Indigenous communities.
[89] Further, turning to the third stage of the duty to consult analysis, Rio Tinto requires a claimant to show a causal relationship between the proposed government conduct and a potential for adverse impacts on Aboriginal rights. Past wrongs, speculative impacts, and adverse effects on a claimant’s future negotiating position will not suffice. Nor, as Rowe J. pointed out in Mikisew Cree #2, is the modification of a regulatory scheme to remove certain oversight, with regulation still continuing, itself an adverse effect on a s. 35(1) right.
[90] In my view, the majority of the Divisional Court were correct in finding that there was no causal connection between the removal of MECP oversight and any adverse impact on the appellants’ Aboriginal interests.
[91] The removal of MECP oversight did not change the legal obligations of the provincial Crown and therefore had no effect on the appellants’ Aboriginal rights. The authorities do not support the conclusion that eliminating the oversight of one provincial ministry over another matters to the duty to consult analysis. The term “Crown” is commonly used to symbolize and denote executive power, and those exercising such power are merely the “vehicles through which the Crown acts”: Clyde River, at paras. 28-29; Mikisew Cree #2, at paras. 25 (per Karakatsanis J.), 132 (per Brown J.). Thus, whether Crown authority is vested in a single ministry or shared across multiple ministries, in either case the Crown remains responsible for the decisions that those ministries make.
[92] This court has noted that under our federalist state, the Crown is divisible at the provincial and federal levels: McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 O.R. (3d) 1, at para. 51, citing R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Assn. of Alberta, [1982] Q.B. 892, [1982] 2 All E.R. 118 (Eng. C.A.), at p. 917 (per Lord Denning). However, this does not translate to one provincial minister of the Crown (MNRF) being a different Crown than another minister (MECP) from the same province.
[93] Here, the MNRF is exercising the same provincial executive power that it once shared with the MECP. When a decision or proposed action of the MNRF triggers a duty to consult, the provincial Crown remains bound to discharge that duty. Further, as the majority of the Divisional Court found, the revocation of MNR-75 did not remove or reduce the Crown’s consultation obligations with respect to future decisions on forestry management that affect Indigenous communities. The CFSA regulatory scheme continues to provide opportunities for meaningful consultation.
[94] The adverse impacts that the appellants submit will arise from the lack of MECP oversight are speculative. To accept this submission would require us to assume that the MNRF and provincial Crown will fail to observe their obligations. Like the court in Buffalo River, I do not accept this assumption. It is worth noting that it was the MECP that endorsed the recommendation to revoke MNR-75, on the basis that it was redundant.
[95] Regulation provided by one provincial ministry instead of two is very different from the change in regulation from provincial to federal authority considered in Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 FC 517, 409 F.T.R. 82, at para. 107, or the offloading of authority from the government to a private enterprise considered in Rio Tinto. In the former case, there was a “fundamental shift” in the relevant regulatory regime resulting from the handoff between the provincial and federal governments: Kwicksutaineuk, at para. 107. Here, conversely, there was no disruptive handoff. The MNRF was before and still is responsible for regulating forest management, and it is bound by virtually identical regulatory obligations as were applicable under MNR-75. As to Rio Tinto, transferring Crown power to a private party “remove[d] or reduce[d] the Crown’s power to ensure that [the private party acted] in a way that respect[ed] Aboriginal interests”: at para. 47. In this case, the Crown has not divested itself of any power. The Crown – through the MNRF – remains bound by and in a position to protect Aboriginal rights when regulating forest management.
ii. Removal of Condition 56
[96] The majority of the Divisional Court was of the view that Condition 56 of MNR-75 was not the type of right – a s. 35(1) right – in respect of which a duty to consult can arise. The appellants claim that the potential economic benefits discussed in Condition 56 derive from Aboriginal or treaty rights, although they do not specify which rights are the source of the derivation.
[97] The appellants rely on the Federal Court decision in Ermineskin to argue that a duty to consult was triggered by the Crown’s decision to revoke Condition 56. Ermineskin suggested that a duty to consult arises where contemplated Crown conduct may adversely affect “economic rights and benefits closely related to and derivative of Aboriginal rights”: at para. 8. The appellants submit that the economic benefits conferred by Condition 56 are closely related to and derivative of Aboriginal interests that the MNRF disregarded before the introduction of MNR-75 and its predecessors.
[98] Reliance on the lower court’s decision in Ermineskin is problematic. An appeal from the decision in Ermineskin was dismissed on the basis of mootness, with Boivin J.A. making it clear that the Federal Court of Appeal was not endorsing the decision of the Federal Court: Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123, 51 C.E.L.R. (4th) 1, at para. 42.
[99] In any event, the facts of Ermineskin, and the other cases raised by the parties on the issue of economic benefits [8], are distinguishable. For the most part, they address whether a duty to consult arose in connection with an economic benefit flowing from an unsettled land claim, a specific s. 35(1) right out of which a duty to consult could arise and be assessed. However, here, the appellants have not tied the economic benefit to any specific Aboriginal right or claim.
[100] Additionally, the assertion that the revocation of MNR-75 will result in an adverse effect on the economic benefits it contemplated is speculative. Condition 56 contemplated negotiations with Indigenous communities to identify and implement a more equal participation in economic benefits provided through forest management planning. The MNRF’s Sustainable Forest Licences cover at least some of the same ground. They require licensees to “work co-operatively with the Minister and local Aboriginal communities in order to identify and implement ways of achieving a more equal participation by Aboriginal communities in the benefits provided through forest management planning.” Although the negotiator is the licensee, they are bound by a commitment to the MNRF to perform, enforceable by law. It is speculative to conclude that the removal of Condition 56 would necessarily result in lesser benefits than those to be achieved as a result of the Sustainable Forest Licences – in other words, any adverse impact is speculative. [9]
iii. Removal of Wildlife Monitoring and Species-at-Risk Protection
[101] The appellants submit that the removal of unstated conditions in MNR-75 providing for wildlife monitoring and species-at-risk protection adversely affected their hunting rights. They note that Ontario forestry operations have caused population declines in the animals to which those rights extend.
[102] As explained earlier in these reasons, the appellants have not pointed to a condition in MNR-75 concerning wildlife monitoring and species-at-risk protection that is not contained in the Manual, which remains a binding document. To the extent that the appellants’ expert pointed to changes in legislation brought about by Bill 197, no duty to consult arises with respect to the law-making process. Accordingly, the appellants have not demonstrated any change in wildlife monitoring and species-at-risk protections that could have given rise to a duty to consult.
CONCLUSION
[103] I would dismiss the appeal. If the parties are unable to agree on costs of the appeal, they may make written submissions limited to three pages within five days of the release of these reasons.
Released: May 31, 2024 “D.D.” “B. Zarnett J.A.” “I agree. Doherty J.A.” “I agree. S.E. Pepall J.A.”