Keewatin et al. v. Minister of Natural Resources et al. [Indexed as: Keewatin v. Ontario (Ministry of Natural Resources)]

66 O.R. (3d) 370

[2003] O.J. No. 2937

Court File No. 211/2000

Ontario Superior Court of Justice

Divisional Court

Then J.

July 17, 2003

Administrative law -- Judicial review -- Procedure -- Single judge of Divisional Court having jurisdiction to quash application for judicial review on grounds that relief sought was beyond jurisdiction of Divisional Court -- Single judge of Divisional Court having jurisdiction to quash application for judicial review where issues required fact finding process of trial -- Motion for judicial review brought by members of First Nation -- Declarations sought by applicants not involving "exercise, refusal to exercise or proposed or purported exercise of statutory power and relief sought beyond jurisdiction of Divisional Court -- Motion for judicial review quashed with leave to commence action.

The applicants were all members of the Grassy Meadows First Nation, and they were beneficiaries under Treaty 3, which was a treaty signed by the Crown in 1873. The applicants applied for judicial review under the Judicial Review Procedure Act ("JRPA") for, amongst other things, declarations: (i) that they had a right to fish and hunt within the Whisky Jack Forest Management Unit; (ii) that the respondent, the Minister of Natural Resources (the "Minister"), had no authority to approve Forest Licences and Forest Management Plans within certain lands that were added to Ontario by virtue of The Ontario Boundaries Extension Act; (iii) that within certain lands known as the Keewatin Lands, the Province of Ontario did not have jurisdiction to take up lands for lumbering within the meaning of Treaty 3; (iv) that the province had no jurisdiction to permit activities in the Keewatin lands that impaired the applicants' right to fish and hunt pursuant to Treaty 3; and (v) that the activities carried out by the respondent Abitibi-Consolidated Inc. ("Abitibi") for its forest activities within the Whisky Jack Forest Management Unit infringed the applicants' rights to fish and hunt guaranteed by Treaty 3. The Minister and Abitibi moved to quash the application for judicial review with leave to the applicants to commence an action to proceed to trial. [page371]

Held, the motion to quash should be granted.

A single judge of the Divisional Court has the jurisdiction to quash an application for judicial review on the grounds that the Divisional Court lacks the jurisdiction to grant the relief requested. A single judge also has an inherent jurisdiction to quash a judicial review application where the factual issues in dispute, the complexity of the evidence, and the impact on non- parties make it appropriate that the proceedings be by trial and not by application. This jurisdiction to quash or the jurisdiction under rule 38.10(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for a presiding judge to order an application to proceed to trial, could and should be exercised in the immediate case to quash the application with leave to the applicants to commence an action.

Three categories of the relief sought by the applicants fell outside the jurisdiction of the Divisional Court by way of judicial review. Section 2(1)(2) of the JRPA limits the declarations that may be sought by judicial review to those relating to "the exercise, refusal to exercise or proposed or purported exercise of a statutory power". The applicants' relief, however, essentially concerned a constitutional issue, namely, which level of government has the constitutional authority to issue forestry licences. An attack on the constitutionality of legislation does not involve the exercise of a statutory power, and the Divisional Court did not have the jurisdiction to hear an application attacking the constitutional validity of the powers conferred on the Minister. Further, the relief sought against Abitibi was not properly the subject of an application for judicial review because, in carrying out its forest operations pursuant to a licence granted by the Minister, it was not exercising a "statutory power" as defined under the JRPA. Also, a declaration that Abitibi's activities infringe the applicants' treaty rights did not concern the exercise of a statutory power and was outside the purview of the Divisional Court to grant.

A judicial review proceeding was not designed for the fact finding required to decide the issues in the immediate case. The determinations in this case would require an extensive review of history, experts and documents. The issues raised could only be properly and adequately adjudicated on the basis of evidence tendered at trial because of the anticipated volume and complexity of the evidence and the importance of ensuring that the trier of fact is able to weigh and evaluate conflicting opinion evidence on the basis of viva voce testimony. Moreover, because aboriginal law claims were in issue, an action was appropriate. The public interest required that the issues be addressed on the basis of an adequate evidentiary foundation that typically cannot be provided through an application.

MOTION to quash an application for judicial review.

Cases referred to

288715 Canada Inc. (c.o.b. Access Telecom Technologies) v. AT&T Canada Corp., [2000] O.J. No. 5002 (QL) (S.C.J.); Burlington (City of) and Clairton Village (Re) (1979), 24 O.R. (2d) 586, 99 D.L.R. (3d) 170 (C.A.); Canada (Attorney General) v. Anishnabe of Wauzhushk Onigum Band, [2002] O.J. No. 3741 (QL), [2002] O.T.C. 722 (S.C.J.); Canada Post Corp. v. Canadian Union of Postal Workers (1989), 70 O.R. (2d) 394, 62 D.L.R. (4th) 724 (H.C.J.) (sub nom. Canada Post Corp. v. C.U.P.W.); Carroll v. Canadian Union of the United Brewery, Flour, Cereal, Soft Drink and Distillery Workers (1985), 11 O.A.C. 66 (Div. Ct.); Charles v. Canada (A.G.) (1985), 9 O.A.C. 83, [1985] O.J. No. 832 (QL) (Div. Ct.); Commissioner of Ontario Provincial Police and Perrier (Re) (1983), 41 O.R. (2d) 550, 147 D.L.R. (3d) 157 (Div. Ct.); Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 66 B.C.L.R. (3d) 285, 153 D.L.R. (4th) 193, 220 N.R. 161, [1999] 10 W.W.R. 34 [Leave to appeal granted (1994), 170 N.R. 363n (S.C.C.)], revg in part (1993), 104 D.L.R. (4th) 470, [1993] 5 W.W.R. 97 (B.C.C.A.), revg (1990), 79 D.L.R. (4th) 185, [1991] 3 W.W.R. 97 (B.C.S.C.); [page372] E.J. Hannafin Enterprises Ltd. v. Esso Petroleum Canada (1994), 17 O.R. (3d) 258 (Gen. Div.); Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d) 449, 33 O.A.C. 39, 58 D.L.R. (4th) 513, 40 C.R.R. 303, 35 C.P.C. (2d) 201 (C.A.), revg (1987), 61 O.R. (2d) 65, 42 D.L.R. (4th) 349, 34 C.R.R. 277 (H.C.J.); Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213 (QL), [2000] O.T.C. 541 (S.C.J.); Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 210 D.L.R. (4th) 577, 286 N.R. 131, [2002] 6 W.W.R. 1, 2002 SCC 31, 1 B.C.L.R. (4th) 1, [2002] S.C.J. No. 33; Masters v. Ontario (1993), 16 O.R. (3d) 439, 110 D.L.R. (4th) 407, 94 CLLC 14,013 (Div. Ct.); Masters v. Ontario (1994), 18 O.R. (3d) 551, 115 D.L.R. (4th) 319 (Div. Ct.); Moonias v. Ontario (1994), 31 C.P.C. (3d) 149, [1995] 3 C.N.L.R. 108, [1995] O.J. No. 1643 (QL) (Gen. Div.); Moyle v. Palmerston Police Services Board (1995), 25 O.R. (3d) 127 (Div. Ct.); Olivier v. Olivier, [1995] O.J. No. 58 (QL) (Gen. Div.); R. v. Jetco Manufacturing Ltd. (1987), 57 O.R. (2d) 776, 18 O.A.C. 313, 31 C.C.C. (3d) 171 (C.A.); R. v. Sparrow, [1990] 1 S.C.R. 1075, 46 B.C.L.R. (2d) 1, 70 D.L.R. (4th) 385, [1990] 4 W.W.R. 410, 56 C.C.C. (3d) 263, [1990] 3 C.N.L.R. 160; Renegade Capital Corp. v. Hees International Bancorp. Inc. (1990), 73 O.R. (2d) 311 (H.C.J.); Seaway Trust Co. and the Queen in Right of Ontario (Re) (1983), 41 O.R. (2d) 532, 146 D.L.R. (3d) 620, 6 C.R.R. 365, 37 C.P.C. 8 (C.A.), revg (1983), 41 O.R. (2d) 501, 146 D.L.R. (3d) 586, 6 C.R.R. 296, 37 C.P.C. 8 (Div. Ct.); Service Employees International Union Local 204 and Broadway Manor Nursing Home (Re) (1984), 48 O.R. (2d) 225, 5 O.A.C. 371, 13 D.L.R. (4th) 220, 12 C.R.R. 86 (C.A.), revg in part (1983), 44 O.R. (2d) 392, 4 D.L.R. (4th) 231, 10 C.R.R. 37 (Div. Ct.) (sub nom. Ontario Public Service Employees Union v. Ontario); Sutherland v. Birks, [2001] O.J. No. 443 (QL) (S.C.J.); Transcanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403 (Ont. C.A.), revg (1997), 44 M.P.L.R. (2d) 250 (Ont. Div. Ct.); University Health Network v. Made in Japan Japanese Restaurants Ltd., [2003] O.J. No. 2026 (QL) (S.C.J.)

Statutes referred to

Constitution Act, 1982, s. 35 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21(3), (5) Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25, ss. 6, 10, 26, 44 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6 The Ontario Boundaries Extension Act, S.C. 1912, 2 Geo. V, c. 40

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 38.10, 68.02

Robert J.M. Janes and Raymond L. MacCallum, for applicants. Thomas Bell, Mark Crow and Peter Lemmond, for the Minister of Natural Resources. J.L. McDougall, Q.C., and Christopher J. Matthews, for Abitibi-Consolidated Inc.

THEN J.: --

I. INTRODUCTION

[1] The applicants are all members of the Grassy Meadows First Nation and are each beneficiaries under Treaty 3. They [page373] each trap to varying degrees or have trapped in the past and claim that they have been forced to leave the land because of the effects of logging on their traplines.

[2] Treaty 3 is a treaty between the Saulteaux Indians and the Crown signed in 1873. The treaty contains the following express guarantee of rights to the signatories and their people:

Her Majesty further agrees with Her said Indians that they, the said Indians, shall have the right to pursue their avocations of hunting and fishing throughout the said tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.

[3] At the time the treaty was signed, the underlying title of part (known as the Northwest Angle) of the surrendered tract was hotly contested and the subject of ongoing political discussion and litigation between Canada and Ontario. Eventually it was determined that the Northwest Angle was in Ontario (while the other part was located in Dominion territory known as the Keewatin Lands).

[4] In 1891, Canada and Ontario passed reciprocal legislation which on its face dealt with the problems created by the fact that Canada had certain obligations that it had to discharge on all of the lands governed by Treaty 3 but did not have title to the lands in the Northwest Angle. Correspondingly, while Ontario had jurisdiction over the natural resources in the Northwest Angle, it did not have the power to exercise the taking up power in Treaty 3. The reciprocal legislation addressed both these problems. Ontario agreed to make land available so Canada could discharge its obligations to set aside reserves and Canada delegated the taking up power to Ontario in the Northwest Angle.

[5] In 1912, the boundaries of Ontario were extended by The Ontario Boundaries Extension Act, S.C. 1912, 2 Geo. V, c. 40 ("OBEA") to include lands north of the Northwest Angle, including the remainder of the lands covered by Treaty 3 (the Keewatin Lands), except for a small portion of Treaty 3 lands in Manitoba. Section 2(a) of this legislation provided: "[t]hat the province of Ontario will recognize the rights of the Indian inhabitants in the territory above described to the same extent, and will obtain surrenders of such rights in the same manner, as the Government of Canada has heretofore recognized such rights . . .".

[6] In recent years, Ontario has authorized logging in the part of Treaty 3 territory added to Ontario in 1912. In the present day and at the times relevant to this proceeding, this logging has [page374] been authorized under the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25 ("CFSA"). The Crown has authorized clearcut logging and the subsequent application of herbicides for the purpose of preventing the growth of deciduous trees.

[7] On April 24, 1997, the Minister of Natural Resources (the "Minister") issued a Sustainable Forest Licence ("SFL") to Stone-Consolidated Corporation pursuant to the CFSA, authorizing the licence holder to conduct logging operations in a region designated the Whiskey Jack Forest Management Unit, comprising an area of 1,158,502 hectares. Abitibi-Consolidated Inc. ("Abitibi") now holds this SFL. The Minister authorized harvesting activities by Abitibi under this SFL for the period 1999-2019 by approving the Forest Management Plan ("FMP") for the Whiskey Jack Forest.

[8] The applicants claim that their trapping has been adversely affected by logging and subsequent application of herbicides in the Whiskey Jack Forest, and that the Minister has no authority to authorize any logging activities in those lands added to Ontario by the OBEA because it does not have the power to exercise the taking up power in Treaty 3.

[9] On April 5, 2000, the applicants commenced an application for judicial review under s. 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA"). They challenge the authority of the Minister to authorize logging activities pursuant to various management plans, licences, work schedules and permits in the area of Ontario added to Ontario by the OBEA where these activities affect the exercise of their hunting and trapping rights. On June 3, 2002, the applicants served the Attorneys General of Canada and Ontario with a Notice of Constitutional Question in which they indicate that they question "the constitutional applicability of the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25 and instruments authorized by it insofar as they purport to apply to and authorize forestry operations on the Keewatin Lands . . .".

II. THE APPLICATION

[10] The applicants are requesting orders:

(a) Declaring that each of the applicants are beneficiaries under Treaty 3 and as such have rights to fish and hunt within the provincially defined Whiskey Jack Forest Management Unit;

(b) Declaring that the Minister of Natural Resources or his delegate had no authority to approve any Forest Licences, Forest Management Plans, work schedules or other approvals or [page375] authorizations for forest operations within those lands subject to Treaty 3 that were added to the Province of Ontario by virtue of the OBEA, (the "Keewatin lands") so as to infringe, violate, impair, abrogate, or derogate from, the rights to hunt and fish guaranteed to the applicants by Treaty 3;

(c) Declaring that within the Keewatin Lands, the Government of the Province of Ontario, its Ministers or delegates, have no power or jurisdiction to take up lands for lumbering within the meaning of Treaty 3, since this power is exclusively reserved to the Government of the Dominion of Canada;

(d) Declaring that within the Keewatin Lands, the Government of the Province of Ontario, its Ministers or delegates, have no power or jurisdiction to do or permit any activity that infringes, violates, impairs, abrogates or derogates from, the applicants' rights to hunt and fish pursuant to Treaty 3;

(e) Declaring that the activities carried out by Abitibi- Consolidated Inc. pursuant to SFL 542253, the 1999-2019 FMP for the Whiskey Jack Forest Management Unit, and any work schedules or other approvals and authorizations issued by the Minister or his delegate to Abitibi-Consolidated Inc. for its forest operations within the Whiskey Jack Forest Management Unit, infringe, violate, impair, abrogate, or derogate from the rights to hunt and fish guaranteed to the applicants by Treaty 3;

(f) Declaring that SFL 542253, the 1999-2019 FMP for the Whiskey Jack Forest Management Unit, and any work schedules or other approvals and authorizations of forest operations, insofar as they apply to the Keewatin Lands, are void and of no effect;

(g) Quashing the Minister's, or his delegate's, decision to approve SFL 542253, the 1999-2019 FMP for the Whiskey Jack Forest Management Unit, and any work schedules or other approvals and authorizations of forest operations related to that Plan, insofar as they apply to the Keewatin Lands;

(h) Prohibiting the Minister or his delegate from approving any forest licences, forest management plans, work schedules or other approvals and authorizations of forest operations related to the Whiskey Jack Forest Management Unit, insofar as they apply to the Keewatin Lands; and [page376]

(i) Such further and other relief as counsel may advise and this Honourable Court may deem just.

III. THE MOTION

[11] The Minister and Abitibi have both brought motions to quash the application for judicial review. The moving parties seek an order quashing this application with leave to the applicants to commence an action to proceed to trial, as well as directions concerning how the action will proceed to trial.

[12] They also each request an alternative order. Abitibi seeks, in the alternative, an order converting this application into an action or directing that the whole application proceed to trial. The Minister seeks an order staying these proceedings without prejudice to the applicants commencing an action with respect to the issues raised in this application. However, the Minister made no written or oral arguments with respect to this submission, and consequently I have not considered it in these reasons.

IV. THE ISSUES

(1) Does a single judge of the Divisional Court have the jurisdiction to hear a motion to quash an application for judicial review?

(2) If yes, should this jurisdiction be exercised in this case on either of the following grounds: (a) that the relief sought is outside the jurisdiction of the Divisional Court or (b) that the issues raised by this application are properly determined by way of trial?

(3) Does a single judge of the Divisional Court have the jurisdiction to convert an application into an action or to direct that the whole application proceed to trial?

V. ANALYSIS

(1) Jurisdiction to Quash

(a) Positions of the parties

[13] Both the Minister and Abitibi submit that I have the jurisdiction to quash an application for judicial review on a motion. The Minister relies on the inherent discretion of a single judge of the Divisional Court to quash an application if the circumstances warrant this action: Masters v. Ontario (1993), 16 O.R. (3d) 439, 110 D.L.R. (4th) 407 (Div. Ct.), at p. 449 O.R. Abitibi submits that the application should be quashed on the grounds that the Divisional Court lacks the jurisdiction to grant the relief requested. [page377]

[14] In response, the applicants argue that the relief sought is within the jurisdiction of the Divisional Court to grant, and that the jurisdiction of a motions judge does not extend to quashing an application for judicial review on the discretionary basis that a trial is preferable due to the nature of the issues raised in the application. They argue that I should either dismiss the motion or refer the motion to the panel hearing the application for judicial review, subject to terms being imposed allowing the Crown to renew this application before the hearing court.

(b) Preliminary

[15] Section 21(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA") provides that a Divisional Court motion shall be heard and determined by a single judge. Section 21(5) provides that a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[16] Generally, a motions judge has the jurisdiction to quash an application for judicial review on the grounds that the Divisional Court lacks the jurisdiction to grant the relief requested: Masters, supra. There is also a line of cases that have held that a motions judge in Divisional Court has an inherent discretion to quash an application for judicial review if the circumstances warrant this action: Re Commissioner of Ontario Provincial Police and Perrier (1983), 41 O.R. (2d) 550, 147 D.L.R. (3d) 157 (Div. Ct.). For the reasons that follow I find that this application should be quashed because many of the declarations sought by the applicants fall outside the purview of the relief that can be granted by the Divisional Court. I also find that, in the circumstances of this case -- in particular, in light of the factual issues in dispute, the complexity of the evidence and the impact on non-parties -- it is appropriate that I exercise my inherent jurisdiction to quash the application for judicial review.

(c) Jurisdiction

[17] Abitibi submits that many of the declarations sought by the applicants concern the constitutionality of the CFSA, and that this court lacks the jurisdiction by way of judicial review to make such determinations. It goes on to rely on Re Seaway Trust Co. and The Queen in Right of Ontario (1983), 41 O.R. (2d) 532 (C.A.), at pp. 524, 533-34 O.R., and Re Service Employees International Union Local 204 and Broadway Manor Nursing Home (1984), 48 O.R. (2d) 225, 13 D.L.R. (4th) 220 (C.A.), at p. 234 O.R., for the proposition that where the Divisional Court does not have the jurisdiction to deal with all or part of the relief claimed, the application for judicial review should be quashed. [page378]

[18] The applicants argue that Abitibi has misstated their position, and they submit that all of the relief sought is clearly within the judicial review jurisdiction of the Divisional Court. According to the applicants, no relief is sought in the nature of a declaration that the CFSA is either ultra vires the legislature or of no force and effect. For this reason, there is no basis to quash on the grounds of a lack of jurisdiction.

[19] For the reasons that follow, I am in agreement with the position argued by Abitibi and find that the Divisional Court lacks the jurisdiction to grant at least some of the relief sought in the application. On this ground, I am quashing the application for judicial review with leave to the applicants to commence an action to proceed to trial.

(i) Relief requested

[20] The orders requested by the applicants have been listed above.

(ii) Relevant statutory provisions

[21] The following sections of the JRPA are relevant to this analysis:

1. Definitions -- In this Act,

"statutory power" means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.

"statutory power of decision" means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

2. Applications for judicial review-- (1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: [page379]

3. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

4. Proceedings 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.

(iii) Analysis

[22] There are three categories of relief sought by the applicants that fall outside the jurisdiction of the Divisional Court by way of judicial review.

Relief claimed against the Minister

[23] In three of the paragraphs, the applicants seek declarations for relief claimed against the Minister.

[24] The relief claimed in para. (b) is within the purview of the Divisional Court to grant because the declaration sought is related to the exercise of a statutory power.

[25] In paras. (c) and (d), the applicants seek declarations that within the Keewatin Lands, the government of the Province of Ontario and its Ministers or delegates lack the authority, power or jurisdiction to take up lands for logging within the meaning of Treaty 3, or do or permit any activity that infringes on the applicants' treaty rights to hunt and fish. This court does not have the jurisdiction to grant this relief because it moves beyond the exercise of a statutory power by the Minister or his delegate and deals with the very constitutionality of the legislation itself.

[26] The applicants rely on s. 6 of the CFSA in support of their contention that none of the declarations attack the vires of the legislation. The section provides that: "[t]his Act does not abrogate, derogate from or add to any aboriginal or treaty right that is recognized and affirmed by section 35 of the Constitution Act, 1982." The applicants argue that the judicial review is internal to the CFSA, and that each of the declarations is carefully tailored only to attack those decisions of the Minister that authorize logging activities that infringe the applicants' treaty rights and contravene s. 6. To the extent that the Minister authorizes logging that does not infringe the applicants' treaty rights (such as logging carried out by means that do not create clearcuts as is done in other parts of Ontario), the declarations sought have no effect. Therefore, the applicants submit that the declarations they seek attack not the legislation but the Minister's decision to authorize particular logging activities.

[27] Furthermore, they submit that even if any logging operations would infringe treaty rights, this would not mean that their attack is on the vires of the legislation. First, it is the applicants' [page380] view that s. 6 of the CFSA statutorily bars the Minister from making the decision to authorize such infringing logging, and therefore there is no conflict between the legislation and treaty rights. Second, the legislation in question applies throughout the province where different factors may apply that allow for the lawful authorization of logging. For example, the reciprocal legislation applies in the Northwest Angle, and this legislation may well allow the Crown to exercise the taking up power. In other areas there may be no treaty rights to infringe or, alternatively, the forests in that area may allow for logging to be carried out in a manner that does not infringe treaty rights.

[28] Therefore, this challenge, they argue, rather than being an attack on the legislation itself, is in fact an attack focused on the specific decision (and potential range of decisions of concern) made by the Minister -- that is, to authorize clearcut logging in this area. The Minister made that decision (and related decisions) pursuant to ss. 10, 26 and 44 of the CFSA, which authorize the Minister to issue SFLs, approve cutting plans and approve cutting. These clearly affect the legal rights of Abitibi, decide what rights Abitibi shall have to cut timber and prescribe how that cutting will occur. As such, these various approvals constitute a "statutory power of decision" and are subject to judicial review.

[29] I disagree with the applicants' characterization of their claim. In Halpern v. Toronto (City) Clerk, [2000] O.J. No. 3213 (QL), [2000] O.T.C. 541 (S.C.J.) at para 13, Lang J. noted, "[i]n determining whether the matter is one that is properly before the Divisional Court, Doherty J. held in Canada Post Corp. v. Canadian Union of Postal Workers (1989), 70 O.R. (2d) 394, 62 D.L.R. (4th) 724 (H.C.J.), at p. 398 O.R.]: one 'must go beyond the language in which the relief claimed is framed to the substance of the claim'." Section 2(1)(2) of the JRPA 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 licences. The Divisional Court has no jurisdiction to hear an application attacking the constitutional validity of the statutory powers conferred on the Minister: Re Service Employees International Union Local 204 and Broadway Manor Nursing Home (1984), 48 O.R. (2d) 225; Carroll v. Canadian Union of the United Brewery, Flour, Cereal, Soft Drink and Distillery Workers (1985), 11 O.A.C. 66 (Div. Ct.); Charles v. Canada (A.G.) (1985), 9 O.A.C. 83, [1985] O.J. No. 832 (QL) (Div. Ct.); Halpern, supra.

[30] An attack on the constitutionality of the legislation and Ontario's power to pass that legislation does not involve the exercise [page381] of a statutory power and is not properly the subject of an application for judicial review. There is no statutory power that the applicants allege is being exercised, rather, the applicants state there is no constitutional authority even to pass the underlying legislation.

Relief claimed against Abitibi

[31] In para. (e), the applicants seek a declaration that the forestry activities carried out by Abitibi pursuant to its forest licence violate their rights to hunt and fish guaranteed by Treaty 3. The declaration sought here is not relief that is properly the subject of an application for judicial review because, in carrying out its forest operations pursuant to a licence granted by the Minister, Abitibi is not exercising a "statutory power" as defined under the JRPA. Here too, the Divisional Court does not have the jurisdiction to grant the relief claimed by the applicants.

[32] The applicants explain the inclusion of this paragraph by arguing that Abitibi is a necessary party to the proceedings. One of the questions before the court is whether or not the logging activities that the Minister has authorized Abitibi to carry out infringe the treaty rights of the applicants, as it is only to the extent that the authorized activities infringe the treaty rights in question that relief against the Minister is sought. However, it is inevitable in such a review that the rights and interests of Abitibi are brought into question and therefore Abitibi is a necessary party to these proceedings. While Abitibi does not exercise a statutory power of decision, its rights are dependent upon the exercise of a statutory power of decision.

[33] The applicants are seeking a declaration that Abitibi's activities infringe their treaty rights to hunt and fish. Such a declaration, as it does not concern the exercise of a statutory power, is outside the purview of this court to grant.

Applicants' status under the Treaty

[34] In their factum, the applicants argue that the materials filed for the judicial review application disclose no material dispute requiring a trial on the issues relevant in this case. They submit that there is no dispute as to the fact that the applicants have the treaty rights alleged and that there is no issue as to the fact that the particular lands in question were not part of the land covered by Treaty 3 that was in Ontario at the time the treaty was signed and that these lands were added to Ontario in 1912 by the OBEA.

[35] However, the relief sought belies this submission. In para. (a), the applicants request a declaration that they are beneficiaries under Treaty 3 and have a right to hunt and fish in the [page382] provincially defined Whiskey Jack Forest Management Unit. This court cannot grant the relief sought for two reasons. First, this declaration is not related to the exercise of a statutory power. Second, what the applicants are requesting in this paragraph is a finding of fact, and establishing this fact is the basis for the application. The finding of facts is a key aspect of this case, but is not something that the Divisional Court is designed to do on judicial review. The making of such a determination will require an extensive review of history, experts, and documents. Even if it is assumed that the applicants have these rights, there are other important factual determinations that are raised by these declarations that must be resolved before the declarations can be considered -- for example, the question of whether or not these rights have been infringed by the moving parties.

[36] The Divisional Court only has the jurisdiction to deal with part of the relief requested, whereas a trial judge has the jurisdiction to grant all of them. For this reason, I quash the application for judicial review on the grounds of lack of jurisdiction.

[37] Both of the moving parties also requested directions concerning how the action will proceed to trial. I will address this issue later in my reasons.

[38] Having decided to quash on these grounds, I will briefly address the alternative arguments presented by both of the moving parties.

(d) Discretion

[39] The Minister submits that this court should exercise its discretion to quash the application for judicial review on the grounds that the matter is more appropriately advanced as an action. The applicants argue that a single judge of the Divisional Court does not have the inherent jurisdiction to quash an application for judicial review on a motion on the basis that a trial is preferable due to the nature of the issues raised in the application.

[40] A single judge of the Divisional Court may exercise the court's inherent discretion to refuse to hear and decide issues inappropriately raised by way of an application for judicial review. In Masters, supra, Saunders J., sitting as a Divisional Court judge, hearing a motion to quash an application for judicial review stated at p. 449 O.R.:

In addition to the issue of jurisdiction, the government and the intervenors also submit that the court should quash the application in the exercise of its discretion. Ordinarily an application will be quashed only on the basis of lack of jurisdiction. However, the court has an inherent jurisdiction to quash if the circumstances warrant this action: see Ontario Provincial Police Commissioner v. Perrier (1983), 41 O.R. (2d) 550, 147 D.L.R. (3d) 157 (Div. Ct.). [page383] Prior to a hearing the power should be used sparingly: see Seaway Trust Co. v. Ontario (1983), 41 O.R. (2d) 532, 37 C.P.C. 8 (C.A.).

(Emphasis added)

[41] Saunders J. found no grounds on which he could exercise his discretion to quash. He ultimately quashed the application on jurisdictional grounds in respect to two of the three remedies sought by the applicant. His disposition of the application on a motion was upheld on appeal by a panel of the Divisional Court: Masters v. Ontario (1994), 18 O.R. (3d) 551, 115 D.L.R. (4th) 319 (Div. Ct.).

[42] In Re Seaway Trust Co. and The Queen in Right of Ontario (1983), 41 O.R. (2d) 501, 146 D.L.R. (3d) 586 (Div. Ct.), a motion to quash two applications for judicial review of Orders in Council and their authorizing legislation was heard by a three-judge panel of the Divisional Court prior to the hearing of the applications for judicial review. The Chief Justice of the High Court directed that the motion be heard before a three-judge panel. The majority of the court dismissed the motion. In a dissenting opinion, Craig J. outlined some of the factors that a court should consider when determining whether to exercise its inherent jurisdiction to quash an application for judicial review. Craig J. observed that the discretion to refuse to hear a matter within its jurisdiction is a power that the Divisional Court should use sparingly. He held that, in the circumstances, the applications should be quashed without prejudice to an action being commenced in the High Court because of disputed factual issues that had a bearing on the main issue on which there would be voluminous conflicting evidence and on which credibility would be very important.

[43] The Ontario Court of Appeal held that the panel had erred in finding that the Divisional Court should continue to entertain the applications for judicial review: Re Seaway Trust Co. and The Queen in Right of Ontario (1983), 41 O.R. (2d) 532, 146 D.L.R. (3d) 620 (C.A.). The court stated at p. 533 O.R. that it was "in substantial agreement" with the minority reasons of Craig J. It dismissed the applications for judicial review on the basis that they should have been brought as an action. The court held that it is proper for the Divisional Court to exercise its discretion to refuse to hear an application for judicial review where an action would be more appropriate in view of: the relief sought; the necessity of making findings of fact and assessments of credibility -- a task for which the trial division "is singularly well suited"; the competing interests involved; and, the potential effect of the decision on non-parties.

[44] Based on the material before me, the circumstances of this case warrant the exercise of my inherent jurisdiction to quash the application for judicial review prior to the hearing of the [page384] application. The issues raised in this application can only be properly and adequately adjudicated on the basis of evidence tendered at trial for the following reasons.

(i) The anticipated volume and complexity of the evidence required to address the issues in the application

[45] Unlike Masters, supra, the motion record places sufficient material before this court to determine that there are significant facts in dispute that require an extensive review of the evidence, including considerable expert evidence. The adjudication of the issues raised by this application requires consideration of a wide range of historical, anthropological, ecological, biological and economic evidence in addition to evidence concerning the course of dealings between the applicants, their First Nation, the Ontario Ministry of Natural Resources and Abitibi over a considerable period of time. The complexity and volume of this evidence is compounded by the challenges posed by the special evidentiary dimensions of aboriginal and treaty rights cases. In these circumstances, it is imperative for the material facts to be found on the basis of direct exposure to evidence tendered at trial.

[46] It is also likely that many material facts will be disputed. The applicants identify a number of grounds supporting their request for relief. The Minister disputes many of the factual assertions or assumptions on which the applicants' case appears to be premised -- i.e., the fact that the logging activities are infringing the applicants' Treaty 3 rights. It is also possible that a number of factual issues will have to be examined in detail in order to decide issues relating to the justifiable infringement of the applicants' treaty rights. Where there is an evidentiary dispute with respect to facts that are material to the issues to be resolved and the inferences to be drawn from those facts, a summary application is not the appropriate vehicle for determining such issues: Energy Probe, infra, at p. 470 O.R.; Re City of Burlington and Clairton Village (1979), 24 O.R. (2d) 586 (C.A.), at p. 589; Seaway Trust, supra, at p. 533 O.R.; Moyle v. Palmerston Police Services Board (1995), 25 O.R. (3d) 127 (Div. Ct.), at p. 131; R. v. Jetco Manufacturing Ltd. (1987), 57 O.R. (2d) 776, 31 C.C.C. (3d) 171 (C.A.), at p. 781 O.R.

(ii) The importance of ensuring that the trier of fact is able to weigh and evaluate conflicting opinion evidence on the basis of viva voce testimony

[47] Much of the evidence necessary to address the issues raised by this application will be expert opinion evidence. This [page385] type of evidence requires particularly close judicial scrutiny, especially if there are conflicting expert opinions. The additional opportunity for assessing credibility afforded by viva voce evidence is particularly important in the aboriginal and treaty rights context (Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97, 104 D.L.R. (4th) 470 (B.C.C.A.), at pp. 560-61 D.L.R.).

(iii) The applicants are asserting an infringement of aboriginal treaty rights

[48] Aboriginal law claims, including the determination of the existence, infringement and justification of treaty rights, raise legal and factual issues that can only be properly dealt with in an action. There are a number of Ontario decisions that stand for the proposition that treaty issues are most appropriately determined in a trial. In Transcanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403 (C.A.), at para. 157, the Ontario Court of Appeal noted:

that there is a significant difference between judicial review . . . on administrative law principles, where the attack is on executive or administrative conduct . . . and an attack . . . on constitutional law principles based on their effect on Aboriginal rights and treaty rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982.

In the latter, the public interest requires that these issues be addressed on the basis of an adequate evidentiary foundation that typically involves a "complex and lengthy" process best done by trial. In Canada (Attorney General) v. Anishnabe of Wauzhushk Onigum Band, [2002] O.J. No. 3741 (QL), [2002] O.T.C. 722 (S.C.J.), at para. 86, the court noted the general principle that treaty rights engaging s. 35 of the Constitution Act, 1982 should not be dealt with on the basis of a summary process. It is apparent from these decisions that the Ontario courts recognize the public significance of treaty rights and their inherent complexity and contentiousness. These decisions also demonstrate recognition of the necessity of ensuring that disputes involving First Nation treaty rights are determined on the basis of a thorough and wide-ranging evidentiary record that typically cannot be provided through an application.

[49] There is disagreement between the moving parties and the responding party as to whether s. 35(1) of the Constitution Act, 1982 is engaged in this case. This section provides that "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Where a s. 35(1) claim is raised, a two-stage analysis is employed. The Supreme Court of Canada first outlined this analysis in R. v. Sparrow, [1990] 1 S.C.R. 1075, [1990] 3 C.N.L.R. 160. [page386] A simplified version of the test is as follows. First, it must be determined if the impugned governmental activity infringes the aboriginal or treaty right. In the second step, if an infringement is found, the onus shifts to the government to justify the legislation. If the impugned law cannot be justified at this step, the legislation cannot stand.

[50] The applicants argue that this is a division of powers case, not a s. 35(1) case. They submit that they have not raised any claim based on a breach by the Crown of s. 35(1) of the Constitution Act, 1982, and thus that the issue of justification is irrelevant. For this reason, they argue that the case law submitted by the Minister, to the extent that it deals with s. 35(1) claims, is not applicable to this matter. In other words, the applicants argue that we never arrive at the issue of justification because the Province is not constitutionally capable of infringing the rights in the first place. As was noted above, the moving parties deny that there has been any infringement of the applicants' Treaty 3 rights. If there has been such an infringement, it was within the jurisdiction of the Crown to authorize such activity, and thus the issue of justification is relevant.

[51] It is beyond the scope of this motion to characterize the claim in these reasons. I only observe here that justification may be an issue if the application is resolved in the Minister's favour. If this is the case, the government must receive the opportunity to justify its actions: Transcanada, supra, at p. 465 D.L.R. As noted in the cases cited above, a trial is the best means for establishing the type of evidentiary record required for a justification argument. I note too, that it is the applicants, and not the moving parties, who cite s. 35(1) in Appendix B of their application for judicial review.

[52] In any event, the Supreme Court of Canada, LeBel J. writing for the court, has stated that a trial is preferable for division of powers cases: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, 210 D.L.R. (4th) 577. At p. 168 S.C.R., p. 596 D.L.R. he noted that:

[c]onstitutional questions should not be discussed in a factual vacuum. Even in a division of powers case, rights must be asserted and their factual underpinnings demonstrated . . . Even if this case remains a division of powers case, the comments of McLachlin C.J. on evidentiary standards and problems in aboriginal law cases in Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33, 199 D.L.R. (4th) 385, remain highly apposite. In such cases, oral evidence of aboriginal values, customs and practices is necessary and relevant.

(2) Jurisdiction to Convert to an Action

[53] Abitibi presented the alternative submission that this court should convert this application to a trial. It relies on rule 38.10(1) [page387] which governs procedure in applications for judicial review by reference to rule 68.02(1). The text of these rules is as follows:

DISPOSITION OF APPLICATION

38.10(1) On the hearing of an application the presiding judge may,

(a) grant the relief sought or dismiss or adjourn the application, in whole or in part and with or without terms; or

(b) order that the whole application or any issue proceed to trial and give such directions as are just. . . .

APPLICABLE PROCEDURE

Divisional Court

68.02(1) Rule 38, except as provided in subrule 38.01(2), and rules 68.03 to 68.06 apply to applications to the Divisional Court for judicial review.

[54] The applicants argue that this power is reserved to the panel of the court actually hearing the application on the basis of a complete record. They cite Mr. Justice Blair in E.J. Hannafin Enterprises Ltd. v. Esso Petroleum Canada (1994), 17 O.R. (3d) 258 (Gen. Div.) who explained the policy reasons underlying reserving the conversion decision to the hearing court. The hearing court will have the entirety of the record before it and will be in a position to assess what issues genuinely require a trial.

[55] The principal question here is whether a motions court judge has the jurisdiction under rule 38.10 to order that an application proceed to trial. I find that I do have such jurisdiction, and, on the basis of the materials before me, would order that this application be converted into an action.

[56] The rule specifically refers to the "presiding judge" as the individual who may convert an application to an action, and the Ontario Court of Appeal has specifically noted this restriction: Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d) 449, 58 D.L.R. (4th) 513 (C.A.), at p. 470 O.R. Abitibi submits, however, that there are a number of cases that stand for the proposition that a court may convert an application to an action or refer it to trial at any time.

[57] A review of the case law reveals that there is no hard and fast rule about the interpretation of rule 38.10(1)(b). On the one hand, there are two decisions of the Superior Court holding that a motions judge cannot invoke this section. In both cases, the court held that the power to convert was reserved to the judge hearing the application and should not be dealt with by a judge hearing a preliminary motion: 288715 Canada Inc. (c.o.b. Access Telecom Technologies) v. AT&T Canada Corp., [2000] O.J. No. 5002 (QL) (S.C.J.); [page388] Sutherland v. Birks, [2001] O.J. No. 443 (QL) (S.C.J.). On the other hand, two Superior Court cases were submitted in which the court held that a motions court judge had the jurisdiction to convert an application into an action: Renegade Capital Corp. v. Hees International Bancorp Inc. (1990), 73 O.R. (2d) 311 (H.C.J.); and Olivier v. Olivier, [1995] O.J. No. 58 (QL) (Gen. Div.). Furthermore, while the Court of Appeal in Energy Probe noted that rule 38.10 specifically refers to the presiding judge, it did not hold that only the presiding judge may decide such a motion. In fact, in that case the Court of Appeal itself ordered the application to proceed to trial, while recognizing that it was not the court hearing the application. That order was premised on the fact that both parties had consented to the court availing itself of the rule. I note also a recent decision by Mr. Justice Pitt in which he held that a motions judge had the jurisdiction to order a trial of the issue or make other pre-application orders: University Health Network v. Made in Japan Japanese Restaurants Ltd., [2003] O.J. No. 2026 (QL) (S.C.J.). Pitt J. distinguished Access Telecom and Sutherland on the grounds that, in those cases, the primary concern of the motions judges was the fact that they lacked sufficient information to make an informed decision about conversion.

[58] I find that I have jurisdiction as a motions judge to make an order under rule 38.10(1)(b). I also have before me all of the materials necessary to make a determination about the appropriateness of conversion in these circumstances.

[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: Renegade, supra. Some of the disputed issues include: (a) the proper interpretation of the applicable provisions of Treaty 3; (b) inferences to be drawn from the applicable legislative history; (c) the adverse effects, if any, of logging operations on wildlife resources; (d) the nature and extent of benefits generated by logging activities in the area in question for both the general public and First Nations members; and (e) the nature and extent of consultations and discussions between the applicants, their First Nations community, and the respondents concerning the conduct of the logging operations in question.

[60] Furthermore, the determination of issues, if decided in the applicants' favour, will have a profound impact on the lives and business of the people living in those areas of Northwestern Ontario subject to Treaty 3, including Abitibi and its employees. The economies of the communities will also be greatly affected. It [page389] would also have an impact in forest management units that are located in, or overlap, Treaty 3 or Keewatin lands.

[61] The constitutional issues raised by the applicants are also of significant importance and interest to the public. Where the court is asked to declare the constitutional invalidity of legislation or governmental action, the court of first instance must engage in a complex and lengthy process. Plaintiffs or applicants who launch a constitutional attack on the basis that treaty rights have been infringed must establish by evidence an existing treaty or aboriginal right and a prima facie infringement by government action. Should a government or defendant seek to justify its action, it must receive the opportunity to do so: TransCanada Pipelines, supra; Moonias v. Ontario (1994), 31 C.P.C. (3d) 149, [1995] 3 C.N.L.R. 108 (Ont. Gen. Div.).

[62] Lastly, rule 1.04(1) of the Rules of Civil Procedure provides that the "rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits". It would not be expeditious or financially prudent to require that the issues raised on this motion be dealt with only on the hearing of the application for judicial review. It would be expensive to require the parties to prepare voluminous affidavit material and experts' reports, as well as carry out extensive cross- examinations of witnesses on a pending application in the expectation that a request will be made by Abitibi or the Minister at the hearing of the application to have the matter referred to trial or converted to an action.

[63] The complex nature of Abitibi's forestry operations and forest management planning processes, the constitutional rights infringements alleged and the extensive breadth of relief requested by the applicants, make it clear that the interests of justice would be best served if the issues raised on this application are determined at trial.

V. DISPOSITION

[64] For these reasons, the application for judicial review is quashed with leave to the respondents on this motion to bring an action. In this respect, the parties have sought directions from the court. It would seem to me that the parties are in a much better position to know the time required to launch the action and then to undertake the various filings and examinations leading to trial. Accordingly, I am prepared to approve a schedule which the parties will draft which is both reasonable and mutually convenient. If there are any difficulties then the parties may make written submissions to the court. If the parties cannot agree to [page390] costs, brief written submissions may be made within 30 days of the decision of the court.

Order accordingly.