COURT FILE NO.: 285/06

DATE: 20070212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Hoilett J., Pardu J., Ground J.

B E T W E E N:

HIAWATHA INDIAN BAND now known as Hiawatha First Nation, and GIMAA GREG COWIE, suing on his own behalf and on behalf of the members of the Hiawatha First Nation

ALDERVILLE INDIAN BAND now known as Mississaugas of Alderville First Nation, and GIMAA JAMES ROBERT MARSDEN, suing on his own behalf and on behalf of the members of the Mississaugas of Alderville First Nation

BEAUSOLEIL INDIAN BAND now known as Beausoleil First Nation, and GIMAA RODNEY MONAGUE JR., suing on his own behalf and on behalf of the members of the Beausoleil First Nation

CHIPPEWAS OF GEORGINA ISLAND INDIAN BAND now known as Chippewas of Georgina Island First Nation, and GIMAA BRETT MOONEY, suing on his own behalf and on behalf of the members of the Chippewas of Georgina Island First Nation

CHIPPEWAS OF RAMA INDIAN BAND now known as Chippewas of Mnjikaning First Nation, and GIMAANINIIKWE SHARON STINSON-HENRY, suing on her own behalf and on behalf of the members of the Chippewas of Mnjikaning First Nation

CURVE LAKE INDIAN BAND now known as Curve Lake First Nation, and GIMAA KEITH KNOTT, suing on his own behalf and on behalf of the members of the Curve Lake First Nation

MISSISSAUGAS OF SCUGOG ISLAND INDIAN BAND now known as Mississaugas of Scugog Island First Nation, and GIMAANIIKWE TRACY GAUTHIER, suing on her own behalf and on behalf of the members of the Mississaugas of Scugog Island First Nation

And DAVID SANFORD

Applicants

• and -

MINISTER OF THE ENVIRONMENT, ONTARIO REALTY CORPORATION and COUNCIL OF THE HURON-WENDAT NATION, on their own behalf and on behalf of all members of Huron-Wendat Nation

Respondents

Brian T. Daly, for the Mississaugas of Scugog Island First Nation

Nicholas C. Tibollo, Joseph Eliot Magnet, Stephen R. Barbien, Joseph A. Longo, for the other Applicants

Owen D. Young, Tamara Barclay, Jack D. Coop for the Minister of Environment

P. David McCutcheon, Jason J. Annibale, for the Ontario Realty Corporation

Rodney V. Northey, for the Huron-Wendat

HEARD: November 21, 22, 23, 24, 2006

Pardu J.:

Introduction

[1] ORC owns approximately 4,000 acres of land near Pickering (the “Seaton lands”). In an effort to protect environmentally sensitive lands in the Oak Ridges Moraine, it has agreed to transfer approximately 1275 acres of developable Seaton lands to private developers in exchange for 1057 acres on the Oak Ridges Moraine which would be protected as environmentally sensitive land.

[2] The seven Applicant First Nations claim a declaration that the Ontario Realty Corporation (ORC) had a constitutional duty rooted in the honour of the Crown, as well as a statutory duty under the Environmental Assessment Act, to consult them in the course of an environmental assessment of the proposed land exchange of the Seaton lands. They say the ORC failed to honour these duties, and that, as a result, the Notice of Completion of the Environmental Assessment issued by ORC should be quashed, and that ORC should be restrained from completing the exchange of the Seaton lands until meaningful consultation with the Applicants takes place. They claim an aboriginal right to preservation of Anishnaabeg burial sites and fear that development of the Seaton lands will destroy burial sites which likely are located on the Seaton lands.

[3] The Ministry of the Environment (MOE) and ORC take the position that the Applicants have not established an aboriginal right to the Seaton lands which is necessary to trigger the constitutional duty to consult. The Applicants surrendered all of their interest in the Seaton lands by the Williams Treaties of 1923. Even if there is a potential claim, it is so tenuous that the duty to consult was met by the notices sent to some of the Applicants .

[4] As to the statutory duty, the MOE and ORC state that the consultation primarily directed to the Huron-Wendat First Nation, having the closest cultural affiliation to the Seaton lands was reasonable.

[5] The Huron-Wendat Nation supports the government. It says it is the First Nation most closely connected with the Seaton lands. The government consulted extensively with them, and provided information and resources. They developed an embryonic First Nations Circle to give structure to consultations like these. To overturn the results would impair the process of reconciliation thus undertaken. The Applicants’ failure to come to the table and talk when invited should not undermine the achievements of those who responded to the invitations.

ORC and the Environmental Assessment Act

[6] The Ontario Realty Corporations manages real property on behalf of the government of Ontario.[^1] The Environmental Assessment Act R.S.O. 1990 c. E.18 applies to “enterprises or activities or proposals, plans or programs in respect of enterprises or activities by or on behalf of Her Majesty in the right of Ontario or by a public body or public bodies or by a municipality or municipalities.”[^2]

[7] A sale or transfer of land is an “undertaking” as defined in the EAA.[^3] Section 13(3) of the EAA provides that, “no person shall proceed with an undertaking with respect to which an approved class environmental assessment applies, (a) unless the person does so in accordance with the class environment assessment.”

[8] By Order in Council dated December 9, 1992, Cabinet approved a class environmental assessment of real property undertakings by the Ministry of Government Services, and this was extended to the Ontario Realty Corporation by s. 60(1) of the Capital Investment Plan Act. A class environmental assessment is one which follows a standard template setting forth the matters which must be considered, rather than having terms of reference specifically drawn to deal with the particular undertaking proposed.

[9] The intensity of the Environmental Assessment depends on the category selected by the proponent of the undertaking.

[10] As noted in the Executive Summary to the Class Environment Assessment Process for ORC Realty Activities,

The Class EA document recognizes that undertakings may require different degrees of environmental assessment. To accommodate the entire range of MBS undertakings, four different levels of EA intensity, or “categories”, have been defined:

Category A: Approved without Further EA Action. Undertakings in this category are minor in scale and have minimal associated adverse environmental effects. Such undertakings are limited to administrative services, repairs and maintenance, and other routine services, but exclude construction. MBS Realty Group completes thousands of these undertakings annually.

Category B: Consultation and Documentation. These are undertakings with some potential for adverse environmental effects. Such technically well understood effects, however, are minor in nature and of a short duration. A majority of the effects are regulated by existing guidelines, approved policies of client ministries and other agencies and provincial legislation. MBS Realty Group [the owner of Ontario government real estate] completes hundreds of these undertakings annually.

Category C: Environmental Study Report (ESR). These are the type of undertaking most frequently associated with the “class” process, and must generally have the following characteristics (Source: EAPIP Task Force, 1990, Glossary p. ii):

• recurring;

• similar in nature;

• limited in scale;

• having only a predictable range of environmental effects;

• responsive to standard mitigation measures.

Although the number may very widely from year to year, MBS Realty Group estimates that in the order of 50 undertakings may have the potential for falling into Category C annually.

Category D: Individual EA. Undertakings in this category have the potential for significant, broad and unpredictable environmental impacts, and are therefore subject to an individual EA. Although individual EAs are beyond the scope of this document, the procedures for conducting such assessments are readily available from the Ministry of Environment.

[11] The product of the environment assessment differs according to the category selected,

Category A: Approved without Further EA Action. These undertakings require no formal EA documentation. They also have no notice, submission or approval requirements.

Category B: Consultation and Documentation. These undertakings require the preparation of a Consultation and Documentation Record. This document is not intended to be a lengthy report, but rather, a short, concise record of analysis, correspondence, meeting records and resultant actions. Upon its completion, the Record is put on file, and must be kept available for public examination upon request.

Category C: Environmental Study Report. These undertakings require the preparation of a standardized document called an Environmental Study Report (ESR), which may also incorporate, append, attach as a separate document or require future preparation of an “Environmental Management Plan” (see Section 5.3 and Glossary). A detailed outline of ESR contents can be found in Section 6.3.2. Upon its completion, the ESR must be put out on public review for 30 calendar days.

[12] A proponent may voluntarily “bump up” the intensity of the environment assessment during the consultation period. Once the proponent publishes the Notice of Completion of a Class C Environmental assessment, interested parties have 30 days within which to request a more intensive environmental assessment, and the Minister of the Environment may accept or deny the “bump-up” request or deny it with conditions.

[13] The Class Environmental Assessment provides that “public consultation is an integral part of the “class” approach to EA, enabling agencies, organizations and the public to contribute to and influence EA decisions” and indicates further,

3.1 Definition of Public Consultation

Public consultation can be defined as the process by which interested and/or affected individuals and organizations provide input into a decision-making process. The overall purpose of public consultation is to provide opportunities for members of the public to contribute to and influence decisions relating to a particular project or undertaking. Public consultation programs offer a mechanism through which many different and competing views about a project or undertaking can be identified, enabling points of agreement and disagreement to be highlighted and resolved. By its very nature, public consultation requires a two-way flow of information between the proponent and those who may be interested in or may be affected by an undertaking. It is incumbent upon the proponent to provide accurate and understandable information to those being consulted, in order to establish a basis for informed and useful public input.

Public consultation has become an integral component of the Class EA process and is essential to meeting the objectives and requirements of the Environmental Assessment Act. When conducted in advance of key decisions, public consultation can result in the identification of innovative ideas and perspectives, often leading to an improved project or undertaking. An effective consultation program can also provide a forum for identifying and resolving issues or concerns between the proponent and affected parties before final decisions are made and formal approval is sought. While it is not always possible to achieve consensus among all parties on every issue, it is quite likely that the issues of concern can be substantially narrowed down, allowing the proponent and external participants to focus their efforts on resolving the outstanding issues.

3.2 Various “Publics” to be Consulted

It is important that there is no single “public”, but rather a number of “publics” which may wish to participate in a public consultation program. In the context of the Class EA process, public consultation generally entails some degree of interaction with the following publics:

The General Public: individual members of the public who may be affected by or interested in a particular undertaking;

Non-government Organizations (NGOs) and Special Interest Groups: public and private interest groups whose mandate or interest pertains to the undertaking;

Aboriginal People: aboriginal organizations, as well as individuals, either living in the vicinity or having an interest in the undertaking;

Government Review Agencies: provincial and federal government agencies, and municipalities, which have an interest in an undertaking, and/or which have been designated to review EA documentation. A list of typical review agencies is included in the Appendix 2;

The Client Agency: the agency requiring the services of MBS Realty Group.

3.2.1 Identification of Potential Participants

The identification of potential participants in a public consultation program should be undertaken at an early stage in the EA process. For Category C undertakings, this can often be accomplished through the preparation of a “social profile.” A social profile provides a summary of the key characteristics of the people of a community or study area. Typically, it includes the following elements:

• identification of the key individuals, organizations, and agencies who are most likely to be interested in or affected by the proposed undertaking;

• a description of the relevant communications channels (including media channels and informal community networks) which exist in the community or study area;

• a preliminary assessment of the issues which may arise in the community or study area during the planning process.

A social profile often provides a useful early indication of the range and intensity of issues and concerns relating to a proposed undertaking. It also results in the compilation of a preliminary list of those who may want to participate in the planning process. As the consultation process unfolds and the public becomes more aware of an undertaking, it is likely that additional parties will emerge and take part in the consultation program.

3.3 Methods of Public Consultation

There are a variety of techniques which can be used to consult with the “publics” described in Section 3.3. Methods of public consultation include:

• open house (or public information centre);

• workshops/seminar;

• public meeting;

• public liaison committee;

• meetings and presentations;

• kitchen roundtable;

• review of draft documentation and call for comments;

• survey/questionnaire/reply coupon;

• interview;

• telephone hotline.

The consultation method(s) selected for a particular undertaking depends on a number of factors, including the nature of the undertaking, potential participants, EA stage, and the characteristics of the study area. With class EA’s, more “interactive” techniques (such as open houses or public meetings) are typically used to consult with the general public and special interest groups, while government agencies are generally involved in the review of draft documentation.

3.4 Guidelines for Consultation

The following guidelines are important to consider in developing and implementing public consultation programs:

1. Objectives for public consultation should be established at the outset of the EA planning process. Clearly articulated objectives help to provide a strong foundation for the design and implementation of a consultation program. In addition, potential participants must be informed as to how their input will be incorporated in the planning process.

2. The proponent should be flexible in implementing a public consultation program, and in conducting consultation events. With certain undertakings, it may become apparent that additional consultation methods should be used, such as in the case of an undertaking which generates a high degree of public interest. Proponents should also be prepared to alter the format or agenda of consultation events should there be a consensus among participants that this is desirable.

3. It is the proponent’s responsibility to ensure that proper notice is given for all consultation opportunities, and that adequate time is provided for members of the public and government agencies to review EA documentation.

4. Background or study-related materials which are prepared for review by the public, such as newsletters or background papers, should be written in clear and concise language in order to facilitate useful informed feedback.

5. A commitment by the proponent to listen to and record issues as they are raised is vital to the success of any public consultation program. Concerns raised by members of the public and review agencies must be treated seriously, and be fully documented. Where possible, issues should be recorded using the same terminology as the person who raised them, and circulated to participants for review and comment.

6. Consultation activities concerning MBS Realty Group undertakings must comply with the French Language Services Act, 1986, as applicable.

7. Management Board Secretariat will conduct its relations with the First Nations in a manner consistent with the August, 1991 Statement of Political Relationship. While guidelines are still being discussed by the Ontario Native Affairs Secretariat and the Chiefs of Ontario, MBS Realty Group will consult with ONAS for advice regarding consultation and negotiation with First Nation governments. When Ontario has agreed to enter self-government or land claim negotiations with an aboriginal organization, additional notification and consultation criteria may apply, such as NAN Interim Measures Agreement. Where significant populations of aboriginal people are expected to be either living in the vicinity or have an interest in the proposed undertaking, then social profiles and methods of public consultation should be designed with the participation of the aboriginal people involved.

[14] The overall purpose of the EAA is the “betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.”

This Undertaking – Proposed Exchange of Seaton Lands

[15] The Seaton lands consist of approximately 4,000 acres of mainly undeveloped land in north Pickering. More than one-half of this property has been designated as belonging to a Natural Heritage System which includes conservation lands, confirmed First Nation sites, environmentally sensitive areas and lands of archaeological interest. About 1,275 acres of the remaining land is proposed to be transferred to land owners in Richmond Hill who will then surrender environmentally sensitive lands in the Oak Ridges Moraine for preservation.

[16] The ORC undertook a Category C Class EA in relation to the proposed transfer. Marshall Macklin Monaghan Limited (MMM) was retained to conduct this environmental assessment, who in turn retained Archaeological Services Inc. (ASI) to manage a First Nations consultation program. ASI in turn sought the help of Kris Nahrgang of the Kawartha Nishnabe First Nation and William Woodworth, a Six Nations Band Member.

[17] The Ministry of Municipal Affairs wrote to the Ontario Native Affairs Secretariat and to Indian and Northern Affairs Canada to learn of any outstanding aboriginal claims affecting the Seaton lands and were advised that the United Anishnaabeg Councils of the Curve Lake First Nation, the Anishinabek Nation/Union of Ontario Indians, the Mississaugas of Scugog Island, the Six Nations of the Grand River Territory, the Chippewas of Georgina Island, the Mohawks of the Bay of Quinte, the Mississaugas of the New Credit First Nation, as well as the Curve Lake, New Credit, Alderville and Hiawatha First Nations might have an interest in archeological sites or burial grounds on the Seaton lands.

[18] The ORC commissioned three comprehensive archaeological studies of the Seaton lands which were ultimately synthesized by ASI and which guided the ORC in its consultation with First Nations and in the preparation of the ESR. As noted in Appendix G to the ESR,

The ASI and Lytwyn reports in particular, highlighted the highly complex and dynamic nature of First Nations History and the fact the many different cultural and ethnic groups occupied the Seaton area at different times. It was therefore concluded that in developing any consultation process it would be most prudent to ensure that no assumptions were made concerning the specific identity of the people who formed the archeological record of the Seaton lands.

[19] On that basis, the study of March 2005 prepared by ASI recommended that “every effort be made to solicit input from representatives of all First Nations groups who are likely to have a claim of descent. This could include, for example, the Wendake (Hurons) of Lorette, the Six Nations of the Grand, and the various Ojibway First Nations of the North Shore of Lake Ontario (eg. The Mississaugas of the New Credit, as well as the Georgina, Curve Lake, Hiawatha, Scugog, Kawartha, Rice Lake and Alderville First Nations).

[20] The report of Public History Inc. of April 20, 2005 indicated that the research did not reveal “specific evidence of historic aboriginal use or occupation of the Seaton lands, in that no indication of a village site or other documented aboriginal use within the boundaries of this particular tract was found although a 2003 assessment reported evidence of prehistoric use as well as “early historic sites consisting mostly of Native occupations. The author goes on to say,

What is apparent through written sources is that the Seaton lands lie within a region that has historically been home to a succession of Aboriginal nations. These include: the Huron, who are mentioned in the first written records of the area; members of the Iroquois Confederacy during the second half of the 17th century; and the Mississauga during the last several centuries. An historic village site (area 1665 to 1696) used in turn by the Iroquois and possibly the Mississauga, is just six kilometres west of the Seaton lands. The report suggests that the Hurons and Iroquois erected elaborate pallisaded villages, but that the Mississaugas led a semi-nomadic lifestyle which may have meant that they had a greater geographic range.

Notices

[21] In April and May 2004, ORC mailed notices of the environment assessment to a multitude of persons and groups, including tenants on the Seaton lands, municipalities, agencies of the government, citizens groups, builders lawyers as well as six of the First Nations who are parties to this application, (Mississaugas of Scugog Island, Chippewas of Georgina Island, United Anishnaabeg Councils (Curve Lake First Nation), the Anishinabek Nation/Union of Ontario Indians, Hiawatha and Alderville First Nations, as well as the Six Nations of Grand River Territory and the Mohawks of the Bay of Quinte. The notice referred to the proposed sale of part of the Seaton lands to private owners, announced the Category C environmental review process and asked for the views of interested citizens. Persons wishing to be involved or get further information were provided with a contact number and a map showing the location of the lands was incorporated into the notice.

[22] A further notice specifically addressed to aboriginal interests was sent on July 7, 2004. Brian Agensky of ORC sent this notice by fax to the Six Nations of the Grand River Territory, the Mohawks of the Bay of Quinte, as well as to seven of the eight the First Nations who are parties to this proceeding.[^4] The letters sent to the First Nations on July 7, 2004 were detailed and specific, and related,

Involvement of First Nations and Other Interested Individuals

Class EA Process

Various First Nations Groups, including yours, and additional individuals who are known to have an interest in potential aboriginal archaeological resources on the Seaton lands, were notified by letter of the government’s proposed plans for the Seaton lands vis-à-vis the commencement of the Class EA process. Over the last six weeks, the Ministry arranged dialogue with several First Nations and other potentially interested individuals including representatives of the Huron-Wendat, Mississaugas of Scugog Island (the closest First Nation to the Seaton lands) and the Six Nations of the Grand River Territory. On June 14 and 18, 2004, Ministry and ORC staff had an opportunity to meet with First Nations representatives to identify a process that would enable necessary fieldwork on the Seaton lands to proceed in a manner that is respectful of First Nations.

Based on those meetings, it appeared that all parties supported the establishment of a respectful and open relationship as the Class EA and planning processed proceed. A number of positive ideas were generated that can be included in the process for carrying out the fieldwork necessary to inform the Class EA and planning processes. Any other useful ideas you may have would be welcome.

In terms of the process and procedures that underpin the commencement and completion of a Category “C” class environmental assessment, this information can be found at the ORC’s website, www.orc.on.ca. Ultimately, an environmental study report (ESR) will be prepared and all interested parties will have an opportunity to comment on that report.

The ORC has recently retained a consulting firm, Marshall Macklin Monaghan, whose responsibilities will include the co-ordination of the process for the Class EA, including ongoing public consultation, carrying out site investigations (say for possible sources of contamination) and preparation of the ESR. The collection of site-specific information, including various stages of archeological assessments and the evaluation of built heritage resources will inform the ESR and address possible environmental impacts of the undertaking and appropriate mitigation measures, as necessary and appropriate to the conditions found.

Planning Process

The Ministry has also made First Nations representatives aware of the commencement of the proposed development plan for the Seaton lands. At a public consultation meeting held on June 22, 2004 and attended by almost 200 people, a host of individuals with an interest in the lands were provided with an opportunity to express their views on this matter. Over the coming months, additional opportunities will be provided for people to be involved in commenting on and reviewing the proposed development plan as it evolves.

Next Steps

Land surveying on the Seaton property is an important element associated with both the Class EA and planning processes since the lands that are the subject of the proposed development will only include those lands that are deemed to be disposable. As mentioned, much of the land in Seaton has been identified as forming part of the NHS, and that land will remain under public ownership. The NHS in Seaton makes up about 53 percent of the land area and includes all streams and associated tributaries, provincially significant wetlands and woodlands, environmentally sensitive areas, areas of natural and scientific interest, habitat or significant, threatened and endangered species, Lake Iroquois Shoreline, and associated buffers and linkages.

In view of the fact that the large majority of archeological sites that have been discovered in Ontario are located on these types of lands, there is a tremendous opportunity to ensure that these resources remain protected in the context of the NHS. Land surveying will establish with greater precision the delineation of the remaining developable as opposed to non-developable lands, and as such, is an important element of our planning.

A Stage 1 archeological assessment report prepared for the Ministry in 2003 and covering all of the Seaton lands has identified those areas on the Seaton lands where Stage 2 archeological work has been completed. If requested, the Ministry is prepared to provide a summary of this report to First Nations representatives, which generally identifies site locations, numbers of sites, types of sites, etc. Based on discussions with the Ministry of Culture, there appears to be an ever-present concern about the specific location of sites being made public out of fear that the sites will be destroyed, looted, etc. Initially, surveying work will focus on those lands identified in the report as having been previously the subject of Stage 2 archeological investigations.

Therefore, commencing during the week of July 12, 2004, land surveying consultants retained by the Ministry will begin surveying parts of the Seaton lands. Given the size of the lands to be surveyed, nine firms have been included on a vendor of record list to undertake this work.

Beginning during the week of July 19, 2004, licensed archeological consultants will begin Stage 2 assessments of those Seaton lands that have not yet undergone this level of review. The land area to be assessed (about 3,000 acres) and the labour-intensive scope of the work require us to begin as soon as possible.

In addition to needing to proceed with the surveying and archeological work in order to properly inform both the Class EA and the planning processed, this work must be done before the crops now planted on the lands grow significantly, because the existence of those crops will impede this fieldwork.

As mentioned, the Ministry and ORC both believe it is important that the fieldwork be carried out in a manner that is respectful of First Nations. Prior to the actual work commencing, arrangements are being made for a tobacco burning ceremony in the area where archeological/surveying work will occur to signify respect for aboriginal ancestors who have traveled the lands in the past. The ceremony is expected to take place on July 12, 2004, and you and/or a representative are invited to attend. An appropriate First Nations community figure will lead the ceremony.

There are also additional steps that will be undertaken as the fieldwork progresses, from the perspective of both information sharing, and as an indication of the relationship of mutual respect with First Nations people as the planning and Class EA processes proceed. If, during the Stage 2 work, significant archeological finds are made, First Nations that indicate that they wish to be involved will be notified. Such finds would apply to villages, burial sites and ossuaries. Subject to compliance with the regulatory frameworks that govern the location of human remains, all First Nations that may have an interest in such finds will be advised.

In the event that Stage 3 work is required at the site, subject to safety and other concerns, consideration will be given to having aboriginal youth attend the sites to observe the work that takes place. Further, subject to compliance with the relevant regulatory requirements (e.g. Minister of Culture’s approval of the transfer from a licensee, approval of the facility, compliance of the facility with provincial standards, etc.), artifacts deemed appropriate to remove from the site could be displayed at an appropriate public facility identified by First Nations people. Previously, the Rouge Valley Conservation Centre or the Woodland Cultural Centre were identified as possible sites.

The Ministry and ORC are open to considering other ideas or suggestions that are identified during this process. In the meantime, if you would like to participate or would like additional information on the proposed ceremony on July 12, please contact Scott MacLeod at the Ministry of Municipal Affairs and Housing at 416-585-7578.

[23] None of the Chiefs of the Applicant First Nations agree that they received any of these notices, even those faxed directly to the First Nation. In any event, they take the position that written notices are insufficient and that real consultation required a face-to-face meeting with the First Nation.

[24] ORC gave written notice of the first Open House on August 31, 2004 and September 1, 2004 to five of the seven Application First Nations.[^5]

[25] On September 20, 2004, notice of a public meeting on October 20 & 21, 2004 public meeting was sent to five of the Applicant First Nations (excluding Mnjikaning, Beausoleil and Scugog).

[26] Notice of a third public meeting on December 6, 2005 was sent on November 14, 2005 to four of the Applicants followed by the Notice of Completion of January 11, 2006. The Chiefs of the Applicants say they did not receive any of these notices.

Consultation

[27] Kris Nahrgang was the elected Chief of the Kawartha Nishnabe First Nation, having held that post for 13 years after eight years as a council member. He was the Native liaison for archeological and community interests for Trent University in Peterborough. He had been the archeological liaison for the Scugog Island First Nation for four years and had previously been the archeological liaison for the Alderville and Curve Lake First Nations. He holds an archeological licence from the Ministry of Culture which enables him to undertake archeological research and excavation in the Province of Ontario. Dr. William Woodworth is a band member of the Six Nations of the Grand River Mohawk Nation. He is an architect and has a doctoral degree in aboriginal traditional knowledge. In August 2004, William Woodworth and Kris Nahrgang met with Ron Williamson of ASI to begin discussions about the First Nations consultation process. Williamson summarized the discussions in an e-mail dated September 3, 2004.

They believe their role to be essentially one of brokers of information and co-ordinators of appropriate ceremonies. They are prepared to work together, one Iroquoian, the other Anishnaabeg, to ensure that all regional bands and the Wendat are represented in the process. They are willing to keep the Chiefs of Ontario and ONAS informed of their work and both are prepared to co-author, with me, the final written report on the process. While Kris still sees Scugog band as the lead band, given they are closest to the lands in question, he is happy to co-direct the process with Bill. He also reported that he has been appointed by Chief Tracy Gauthier of Scugog to represent their interests in this matter.

The plan is for Kris and Bill to meet with each nation, at their territory, to inform them of this project and process and to offer to answer any questions from these bands, at any time. The bands that they plan to visit are: Six Nations (with Barb and Ervine Harris), Kawartha, Tyendinaga, Alderville, Hiawatha, Curve Lake, New Credit and the Wendat-Huron (Lorette, Quebec).

Their mutual position, with which I agree, is that all bands together should represent the archeological record, sine it is extremely difficult for any one band to demonstrate cultural continuity with the archeological record. In this way, no single individual or band, will be able to claim that they singly represent the interests of the ancestors pertaining to an archeological site. Their plan is to seek consensus among bands, to recognize the need for progress with a moderate position, but to defend the rights of the ancestors vigourously. They will argue that any site that has the potential to yield human remains is best avoided in the development process although they both realize it is not possible to secure a guarantee of that position. They would like this consultation process to adopt a spiritual and ceremonial tone and will strive to maintain as much equanimity as possible.

They noted that in the case of many bands, it is likely that the only consultation that will occur will be that achieved during the mission to their territory and any following paper record. In other cases, elders might be involved in ceremonies. They will act as the organizers of such ceremonies, having been informed of the need through ongoing reports by me of the archeological assessment process. They have no problem with undertaking this work with the understanding that a final report should be issued in March of 2005.

[28] The position of the Application is that Kris Nahrgang’s consultation with Scugog was fatally tainted by a conflict of interest, his concurrent retainer by ASI and the Scugog First Nation, and that his consultation with the other First Nations was inadequate or non-existent.

[29] Kris Nahrgang had been engaged by Scugog since April 2003 to provide consulting advice and guidance in relation to archaeology and aboriginal human remains. The written agreements provided that he was not to provide services where he had a conflict of interest. Councillor Angela Johnson of the Mississaugas of Scugog Island First Nation is a councillor designated by the First Nation council as having responsibility for archeological issues. She said she was astonished to learn in July 2006 that Kris Nahrgang had accepted an engagement by the Ontario government to consult with First Nations about the Seaton lands. However, the letter of Gerry Phillips, Chair of the Management Board of Cabinet addressed to Chief Gauthier, dated May 4, 2004 advised Scugog that Kris Nahrgang was “retained as a sub-consultant by ASI, the firm engaged by ORC to lead the First Nations consultation program for the Seaton lands exchange project” and that ORC would “continue to work closely with him in his capacity both as a sub-consultant of ASI and as Scugog First Nations archeological liaison.

[30] Scugog was content to proceed on this basis. As recently as May 12, 2006, Angela Johnson expressed great satisfaction with Kris Nahrgang’s work. The evidence establishes that Kris Nahrgang consulted fully with Scugog through Angela Johnson and that they were content to have him carry the ball on the Seaton issues, for example, by attending a First Nations Circle in the fall of 2005 in her place and on behalf of Scugog.

[31] Kris Nahrgang viewed Scugog as being the lead First Nation in the consultation process as it was geographically closest to the Seaton lands.

[32] ORC undertook extensive archeological fieldwork in the course of the ESR. They located 28 sites of high heritage value and their experts concluded that the Huron-Wendat were culturally affiliated with 24 of the 28 sites, and that the four remaining sites could not be connected with any First Nation. The Applicants challenge this body of opinion.

[33] The Huron-Wendat responded to the letters from the ORC and at their request there followed an extensive process of consultation, meetings, funding and accommodation. The Six Nations appointed Barbara Harris to speak on their behalf and William Woodworth made a presentation to the Six Nations Chief and Council and they were satisfied with the consultation.

[34] Kris Nahrgang did not personally visit all the First Nations to whom he originally planned to speak. His decisions on the extent of consultation were influenced by the fact that the Huron-Wendat were identified as culturally affiliated to most of the known sites, the active consultation with Scugog which was geographically closest to the Seaton lands, his understanding that the Applicant First Nations had relinquished any interest in the Seaton lands by the Williams Treaties of 1923, and his understanding that other Anishnabek First Nations were content to let Scugog take the lead. He indicates in his affidavit of August 1, 2006 at paragraphs 6 & 7,

6. First Nations’ physical and cultural distances from subject sites, available funds, and type and level of interest are key elements in determining the extent to which First Nations will and should participate in consultation processes. These considerations also inform whether particular First Nations will participate in a given consultation process at all. Individual First Nation communities often receive numerous requests each week asking for the communities’ involvement in environmental assessments all over Ontario. Different projects sometimes blur together.

7. Also, all First Nations in Ontario believe that they have a land interest in all lands throughout the Province, no matter how distant the land may be from their Band. First Nations most physically and/or culturally proximate to a subject site routinely take the lead in consultation, with support from more distant First Nations being called upon only where required. There are literally hundreds of First Nation Bands throughout Canada and consulting with each of them would be impossible. However, where a First Nation has a direct interest in a subject site, that First Nation must be involved. I believe that the ORC’s First Nation consultation process met this standard.

[35] Councillor Jill Smith of Hiawatha First Nation was responsible for environmental and cultural assessments. Kris Nahrgang states that Smith told him that Cowie, the Chief and she were happy to have the Scugog First Nation take the lead role in looking after Hiawatha First Nation interests in the land exchange. While Chief Cowie swears that Hiawatha was never contacted by anyone about the Seaton land exchange, Jill Smith has not contradicted the evidence of Kris Nahrgang.

[36] Kris Nahrgang was under the impression that Curve Lake and Alderville First Nations were content to let Scugog take the lead on Seaton land issues. Chief Knott of Curve Lake First Nation said he had no knowledge of the Seaton land exchange before August 2006, and denies that he or any other band member advised Kris Nahrgang or anyone else that they were content to have another First Nation take the lead in consultation.

[37] Chief Marsden of Alderville First Nation swears that he knew nothing about the Seaton land exchange before late June 2006 and denies that he told Kris Nahrgang or anyone else he was content to let Scugog take the lead.

[38] It appears that the Mnjikaning Chippewas of Georgina Island and Beausoleil First Nations did not receive notice, nor were they consulted. Hiawatha received the notices and a presentation to council which they appeared to support, Alderville and Curve Lake got the notices and perhaps a phone call, and Scugog was deeply involved in the consultation.

[39] The consultation and accommodation process culminated in an informal group called the Founding First Nations Circle. The Six Nations were represented by Barbara Harris and William Woodworth; Kris Nahrgang saw himself as representing the Anishnaabeg; the Huron-Wendat participated fully. The work of the Circle culminated with a meeting in November 2005. At the time, the group arrived at a consensus for protection of sites important to First Nations. ORC accepted these recommendations.

[40] Grand Chief Max Gros-Louis of the Huron-Wendat Nation supports the Founding First Nations Circle and regards the results as a historic accomplishment. He relates at paragraphs [38] – [44] of his affidavit,

38. The Founding First Nations Circle is a novel body which I believe has profound potential for First Nations. Though its status is not yet fully sorted out, it involves the three founding First Nation cultures of Southern Ontario: the Five Nations (Haudenasaunee), Algonquin (Anishnaabeg) and Huron-Wendat. The importance of this body appears also to be acknowledged also by Dr. Williamson in his affidavit (para. 18).

39. This Circle has come together to collaborate in the protection of our common cultural heritage. Thus, we promote consensus on this important topic and have promoted consensus on the Seaton Land Exchange. This is our first principle.

40. At this time, there are not yet terms of agreement that cover all situations. However, Circle members have recognized that consensus may not be achievable always. We have therefore sought to come up with a principle to address situations where consensus cannot be reached. The second principle that this Nation has followed at the Seaton lands is that, where consensus cannot be reached, decision-makers should defer to the Nation having the closest cultural affiliation to the site. We believe this principle follows from an early agreement among Circle members to resolve the site disposition agreement for the ossuary site at Teston Road in Vaughan, Ontario.

41. The Huron-Wendat Nation respects all treaty and land claim interests and rights regarding the Seaton lands, including the claims of Chiefs Maracle, Cowie and LaForme. For the Seaton lands, we have sought to respect these claims by conducting negotiations with representatives of the Mississauga of Scugog Island First Nation and Six Nations of the Grand River. It is my understanding that Chief LaForme has participated in the Seaton Land Exchange consultation through the Circle. Should Chiefs Cowie or Maracle wish to join these discussions, they are welcome to join the Circle or to visit us in Quebec. I am very sorry that these legitimate Chiefs would join Mr. Sanford’s unworthy cause.

42. One reason why the Huron-Wendat has sought to create and support the Circle is concern that decision-makers would fail to take steps to consult the First Nation with the closest cultural affiliation to a particular site. As there are over 600 First Nations in Canada, our Nation foresaw a major difficulty for governments to arrive at practical ways of consulting First Nations and determining who has the closest cultural affiliation in a specific case.

43. We are particularly interested in agreeing on principles with other First Nations because we are presently distant from many sites of cultural importance to us. Absent new principles of consultation, decision-makers would likely fall back on the regrettable practice of consulting only those who are most conveniently geographically located: see, for example, Dr. Williamson’s statements on earlier practices in paragraph 19 of his affidavit.

44. Through the consultations on the Land Exchange, the Huron-Wendat Nation was able to deliberate on and reach decisions on its preferences for the nineteen clearly-identified Huron-Wendat sites. It is my belief that the other members of the Circle have agreed to and support this historic accomplishment. I therefore agree with Dr. Williamson’s statement in paragraph 21 as it concerns the Huron-Wendat Nation. I may add that, through Mr. Donnelly, the Huron-Wendat Nation communicated its management wishes to those responsible for the Seaton lands.

[41] The Application First Nations argue that ORC did not consult with them. Except for Scugog, they complain that they did not authorize Kris Nahrgang to speak on their behalf. They say Kris Nahrgang ought to have visited them in person, rather than send out notices, that they should have been given information in a form accessible by them, and offered funding to undertake their own investigations. First Nations receive many Environmental Assessment notices and do not have the expertise or resources to respond.

[42] The ESR described First Nations consultation at paragraph 6.8,

Throughout the process, ASI has been in communications with various First Nations stakeholders, governmental agencies and ministries. The investigations have found that many First Nations groups are likely to have a claim of descent and an interest in the archeological heritage of the Seaton area. Therefore, as described below, several First Nations groups have been identified as legitimate stakeholders in the consultation process. The following First Nations groups are – or may potentially be – concerned with the ongoing Class EA process: the Huron-Wendat of Lorette, the Six Nations of the Grand, and the various Ojibway First Nations of the north shore of Lake Ontario (e.g., the Mississaugas of the New Credit, and the Georgina Island First Nations, Curve Lake Nation, Hiawatha First Nation, Scugog Island First Nation, Kawartha Nishnawbe First Nation, and Alderville First Nation).

The consultation process has been mediated by Chief Kris Nahrgang of the Kawartha Nishnawbe First Nation and Dr. William Woodworth, a Six Nations Band Member and Mohawk traditionalist, one or both of whom have held discussions with, and made presentations to, all of these groups between 2004 and 2005 to inform them of the project and its goals and to invite them to participate in the overall planning process. Appendix E of their report presents a detailed record of their activities. [emphasis added]

Also, throughout the consultation process, studies have identified 63 First Nations sites, 28 of these sites are of significant archeological value and subject to Stage 4 mitigation, either through avoidance or salvage excavation. Mitigations measures are described in Appendix E. The Ministry of Culture has reviewed the reports provided by the archeological consultants and has approved the recommended mitigative strategies to protect the sites identified. At various stages of archeological work, First Nations ceremonies were performed when significant archeological finds were made. The ceremonies are intended to acknowledge the ties that the First Nations have with the land and to their ancestors.

As a result of the consultation process, several First Nations groups have created the Founding First Nations Circle. They have collaborated to recognize archeological and cultural heritages issues affecting the various groups. The Circle is playing a key role in a number of other large municipal projects in the Regions of York and Durham. The Circle is only in its early stages of development, yet it will be seen as a model for First Nation consultation processes in other contexts and in other parts of the province.

[43] It was admittedly not true to say that Kris Nahrgang and Dr. William Woodworth made presentations to all of the groups identified as the “various Ojibway First Nations of the north shore of Lake Ontario.”

Constitutional Duty to Consult

[44] The Applicants allege that they have an aboriginal right or at least a potential aboriginal right to preservation of sacred burial grounds of their ancestors which are likely located on the Seaton lands, and from this there flows a duty on the part of the Crown to consult them before taking any step in relation to the Seaton lands. Alternatively, they argue that the importance of these burial sites to their culture and the honour of the Crown require the Crown to consult them, even if an aboriginal right or potential aboriginal right does not exist as defined by the jurisprudence.

[45] There is no dispute that burial sites of their ancestors are sacred to the Anishnaabeg, and of primordial cultural importance. Darlene Johnston is an Assistant Professor at the Faculty of Law, University of Toronto and has extensive experience in the centrality of aboriginal lands and burial sites to aboriginal culture and identity. She eloquently described the significance of Anishnaabeg burial practices in paragraphs [13] to [36] of her affidavit.

13. I have conducted extensive research into Aboriginal burial practices, with a particular emphasis on Anishnaabeg burial practices and their importance to Anishnaabeg culture and identity. I therefore believe the following to be true.

14. The Anishnaabeg have believed in an ongoing relationship between the dead and the living, ancestors and descendants, since before the time of first contact with the Europeans, which historians estimate to be some time in the early 1600s.

15. The 17th century Anishnaabeg attached great importance to the physical remains of the dead.

16. From at least the 17th century until the present day Anishnaabeg communities have regarded their burial grounds as sacred lands.

17. The 17th century Anishnaabeg considered their burial grounds as central to the relationship between the dead and the living.

18. The earliest Europeans to encounter the Anishnaabeg noted the reverence with which the Anishnaabeg regarded the dead and the importance the Anishnaabeg attached to preserving their cemeteries.

19. In the Anishnaabeg belief system, it is the obligation of the living to ensure that their relatives are buried in the proper manner and in the proper place and to protect them from disturbance or desecration.

20. The 17th century Anishnaabeg believed that the dead needed to be sheltered and fed, to be visited and feasted.

21. The 17th century Anishnaabeg believed that failure to perform this duty harmed not only the dead but also the living.

22. These beliefs and associated traditions continue to the present day.

23. “Feasting the Dead” is one particular tradition from at least 17th century times that continues to be observed in many Anishnaabeg communities.

24. Samuel de Champlain was the first European to observe and write about this tradition. In 1608, as described in The Works of Samuel de Champlain (Toronto: The Champlain Society, 1922-36), vol. 2, p. 50 Champlain witnessed a Feast of the Dead, and noted the importance of the burial site: “In the case of chiefs, or others having influence, they hold a banquet three times a year and sing and dance upon their grave.”

25. Since at least the 17th century, Anishnaabeg burial grounds have been maintained by the Anishnaabeg with due regard to their sacred status. In 1613, Champlain recorded the first description of an Anishnaabeg cemetery on Tessouat’s Island in the Ottawa River. As described in The Works of Samuel de Champlain (Toronto: The Champlain Society, 1922-36), Vol. 3, p. 279-280 Champlain noted the existence of many wooden shrines, or burial houses, painted yellow and red, fixed upright in the ground. These shrines marked the final resting places of deceased Anishnaabeg people and each displayed a totemic carving of the figure of the individual there buried. Personal effects, such as weapons, feathers, ornaments and household items (pots, spoons, etc.) were also attached to the shrines.

26. Champlain’s description of an Anishnaabeg cemetery is remarkably similar to 19th century accounts and drawings of Anishnaabeg burial grounds. All these accounts and descriptions show that the Anishnaabeg did not conduct random burials; rather, they established well-marked and well-tended cemeteries.

27. The Anishnaabeg placed great importance to being buried in one’s traditional territory. They believed that the everlasting connection between body and soul was grounded in a particular landscape. The Missionaries tell how the profound desire of the Anishnaabeg to be with their ancestors at death caused the Anishnaabeg to transport the bodies of warriors who had died far from their traditional territory great distances to be buried in their traditional burial grounds.

28. The importance of burial in the Anishnaabeg native country persisted throughout the French Regime. In memoirs published in 1781 (Memoires sur la derniere Guerre de l’Amerique, Septentrionale, entre la France et l’Angleterre (Yverdon, Switzerland: 1781), vol. II; translated and edited by Franklin Hough, (1866)), Pierre Pouchot observed:

When an Indian is dead, we hear no cry nor plaint in the cabin, but they come to make their farewell visit. They bury them with all their finest garments, their arms, and a keg of brandy to help them on their journey. They raise over the grave a kind of cabin made of poles in the form of a monument, and by its side another great post on which are fixed the family arms. They mark thereon some characters representing the number of scalps and prisoners they have taken. Some nations have the custom of sending the women during the first eight days, to build a little fire near the grave, and to sit upon their heels, remaining there immovable for a quarter to half an hour at a time. If he dies while hunting, even if it has been three or four months they will disinter him and carry him in their canoes to bury him in their villages. They do the same thing in regard to their children.

There is strong continuity of tradition between Champlain’s account in the early 1600’s and the Pouchot’s account in the late 1700’s.

29. Jesuit accounts also attest to the existence of shared beliefs and practices as between the Anishnaabeg and their neighbours, the Huron/Wendat. It became clear to the Jesuits that for these peoples, the remains of their Dead retain a spiritual essence which requires ongoing respect. For example, as described in the Jesuit Relations and Allied Documents: Travels and Explorations of the Jesuit Missionaries in North America 1610-1791, (New York: Albert and Charles Boni, 1925) vol. 10, p. 141-143 the Jesuit Father Brebeuf noted the Huron/Wendat belief that the souls of the dead remained in their bones: “the soul remains in some way attached to them for some time after death, at least that it is not far removed from them...”

30. This notion of the souls of bones is key to understanding both the reverence with which human remains are treated after death and the abhorrence of grave disturbance which persists among the Anishnaabeg.

31. The belief that a spiritual essence remains bound to the body after death was shared with me in 1992 by Anishnaabeg Elders during an eight-day vigil which we kept on an unceded burial ground within the city limits of Owen Sound. The vigil resulted in federal recognition of the burial ground’s reserve status under Treaty No. 82.

32. Anishnaabeg origin traditions also help explain the reverence with which present day Anishnaabeg communities, including the seven applicant First Nations, treat human remains. The Anishnaabeg believe that the remains of the First Animals contained a powerful spiritual essence that gave birth to the First Humans. Upon the death of a human, the physical remains return to the earth with their spiritual essence intact, continuing the spiritual cycle of birth and rebirth.

33. In order to assure the continuity of this spiritual cycle of birth and rebirth, the interred souls require care and protection which includes feasting. As described in the Jesuit Relations and Allied Documents: Travels and Explorations of the Jesuit Missionaries in North America 1610-1791, (New York: Albert and Charles Boni, 1925) vol. 8, p. 21-23, Father LeJeune wrote down an account of such a feast in 1635:

On the twenty-eighth [of September], Father Butex and I found a band of Savages who were having a feast near the graves of their deceased relatives; they gave them the best part of the banquet, which they threw into the fire; and, when they were about to go away, a woman broke some twigs and branches from the trees, with which she covered the graves. I asked her why she did this, and she answered that she was sheltering the souls of her dead friends from the heat of the Sun, which has been very great this Autumn. They reason about the souls of men and their necessities as they do about the body; according to their doctrine, they suppose that our souls have the same needs as our bodies. We told her repeatedly that the souls of reasonable beings descended into hell or went up to Heaven; but, without giving us any answer, she continued to follow the old custom of her ancestors.

34. Many Anishnaabeg communities, including the seven Applicant First Nations continue to follow these ancestral burial customs and many First Nation members share in these beliefs.

35. These beliefs and associated practices are part of the distinctive world view that gave the early Anishnaabeg communities their solidity and identity. They continue to be important in the same sense to present day Anishnaabeg communities, including the Applicant First Nations.

36. I have attended feasts for the dead hosted by Elders in my own Anishnaabeg community. I was also taught by Elders to burn food in order to feed deceased relatives. Based on this type of personal experience as well as my research, I verily believe that the Anishnaabeg continue to maintain solemn respect for the dead and their remains by feasting and honouring the dead at their ancient burial sites, as they have done since prior to contact with Europeans in the early 17th century. These burial practices have been, and continue to be, of the utmost importance to Anishnaabeg culture and identity, as they flow from my people’s unique and deeply held beliefs about their origins and the afterlife.

[46] Anishnaabeg peoples such as the Mississaugas and those referred to as Chippewas or Ojibwas have occupied most of Southern Ontario since the late 1600s, and there is no dispute that there are likely Anishnaabeg burial sites at unknown locations in the Seaton lands.

[47] The Supreme Court of Canada spoke to the duty to consult in Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73, [2004] 3 S.C.R. 511. The Haida people claimed title to all of the Queen Charlotte Islands and the surrounding waters. While title was in the claims process, and had not yet been legally recognized, the province of British Columbia issued licences to cut trees on the land.

[48] McLachlin C.J. for the court wrote:

[26] Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?

[27] The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

[35] But, when precisely does a duty to consult arise? The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises 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: see Halfway River First Nation v. British Columbia (Ministry of Forests), [1997] 4 C.N.L.R. 45 (B.C.S.C.), at p. 71, per Dorgan J.

[36] This leaves the practical argument. It is said that before claims are resolved, the Crown cannot know that the rights exist, and hence can have no duty to consult or accommodate. This difficulty should not be denied or minimized. As I stated (dissenting) in Marshall, supra, at para. 112, one cannot “meaningfully discuss accommodation or justification or a right unless one has some idea of the core of that right and its modern scope.” However, it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation to consult and accommodate, short of final judicial determination or settlement. To facilitate this determination, claimants should outline their claims with clarity, focusing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements. This is what happened here, where the chambers judge made a preliminary evidence-based assessment of the strength of the Haida claims to the lands and resources of Haida Gwaii, particularly Block 6.

[37] There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case. Knowledge of a credible but unproven claim sufficies to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. 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. Parties can assess these matters and if they cannot agree, tribunals and courts can assist. Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty.

[38] I conclude that consultation and accommodation before final claims resolution, while challenging, is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands. It preserves the Aboriginal interest pending claims resolution and fosters a relationship between the parties that makes possible negotiations, the preferred process for achieving ultimate reconciliation: see S. Lawrence and P. Macklem, “From Consultation to Reconciliation: Aboriginal Rights and Crown’s Duty to Consult” (200), 79 Can. Bar.Rev. 252, at p. 262. Precisely what is required of the government may vary with the strength of the claim and the circumstances. But at a minimum, it must be consistent with the honour of the Crown.

[39] The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

[41] Transposing this passage to pre-proof claims, one may venture the following. While it is not useful to classify situations into watertight compartments, different situations requiring different responses can be identified. In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law.

[42] At all stages, good faith on both sides is required. The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree: rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 2003 BCSC 1422, 19 B.C.L.R. (4th) 107 (B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal people’s right to be consulted.

[43] Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61.

[49] Similarly, in Mikisew Cree First Nation v. Canada 2005 SCC 69, [2005] 3 S.C.R., 388, the Mikisew Cree surrendered 840,000 square kilometres of land in exchange for reserves, and the right to hunt, fish and trap throughout the surrendered land except “such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. The government proposed to build a winter road through the reserve, without consulting the Mikisew. After the First Nation protested, the route was altered to track the perimeter of the reserve. The Crown had a treaty right to take up land for a road, but the exercise of that right was damaging to the traditional hunting and trapping rights over the surrounding lands. The court held that on these facts there was a duty to consult and described the extent of that duty at paragraphs [64] – [66].

[64] The duty here has both informational and response components. In this case, given that the Crown is proposing to build a fairly minor winter road on surrendered lands where the Mikisew hunting, fishing and trapping rights are expressly subject to the “taking up” limitation, I believe the Crown’s duty lies at the lower end of the spectrum. The Crown was required to provide notice to the Mikisew and to engage directly with them (and not, as seems to have been the case here, as an afterthought to a general public consultation with Park users). This engagement ought to have included the provision of information about the project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights. The Crown did not discharge this obligation when it unilaterally declared the road realignment would be shifted from the reserve itself to a track along its boundary. I agree on this point with what Finch J.A. (now C.J.B.C.) said in Halfway River First Nation at paras. 159-160.

The fact that adequate notice of an intended decision may have been given does not mean that the requirement for adequate consultation has also been met.

The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action. [Emphasis added.]

[65] It is true, as the Minister argues, that there is some reciprocal onus on the Mikisew to carry their end of the consultation, to make their concerns known, to respond to the government’s attempt to meet their concerns and suggestions, and to try to reach some mutually satisfactory solution. In this case, however, consultation never reached that stage. It never got off the ground.

[66] Had the consultation process gone ahead, it would not have given the Mikisew a veto over the alignment of the road. As emphasized in Haida Nation, consultation will not always lead to accommodation, and accommodation may or may not result in an agreement. There could, however, be changes in the road alignment or construction that would go a long way towards satisfying the Mikisew objections. We do not know, and the Minister cannot know in the absence of consultation, what such changes might be.

[50] An aboriginal right or prospective right is required to trigger the Haida/Mikisew duty to consult. There is no authority for the proposition that an interest that does not go as far is sufficient to trigger the duty. As Phelan J. noted in Dene Thai First Nation v. Canada 2006 FC 1354, [2006] F.C.J. No. 1677 at paragraph [84],

There are two key aspects to this [Haida Nation Duty to Consult] triggering test. First there must be either an existing or potentially existing aboriginal right or title that might be affected adversely by Crown’s contemplated conduct. Second, the Crown must have knowledge (either subjective or objective) of this potentially existing right or title and contemplate conduct might adversely affect it.

[51] In R. v. Van der Peet, [1996] 2 S.C.R. 507, the court articulated the test to identify whether an applicant has established an aboriginal right protected by s. 35(1) of the Constitution Act, 1982, at paragraph [46], “in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” There is general agreement that the Anishnaabeg practice of honouring the burial sites of their ancestors meets this test.

[52] All of the Applicants signed the 1923 Williams Treaties. Those Treaties provide in relation to lands including the Seaton lands,

“Now Therefore This Treaty Witnesseth that the said tribe and the Indians composing the same ... do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada for His Majesty the King and His Successors forever, all their right, title, interest, claim, demand and privileges whatsoever, in, to, upon, or in respect of the lands and premises described as follows, that is to say:

And also all the right, title, interest, claim, demand and privileges whatsoever of the said Indians, in, to, upon or in respect of all other lands situate in the Province of Ontario to which they ever had, now have, or now claim to have any right, title, interest, claim, demand or privileges, except such reserves as have heretofore been set apart for them by His Majesty the King.”

[53] There is no challenge to the validity of the treaties. In George Henry Howard v. Her Majesty the Queen, [1994] 2 S.C.R., 299 the court analyzed this treaty at paragraph [9],

The historical context summarized above does not provide any basis for concluding that the terms of the 1923 Treaty are ambiguous or that they would not have been understood by the Hiawatha signatories. The basket clause was a conveyance in the broadest terms. Its wording mirrored the general terms of cession contained in the general operative clause quoted above. The lands it pertained to were clearly identified as “all other lands situate in the Province of Ontario”. Furthermore, the broad nature of the clause and its wide sweeping effect is underlined by the presence of only one enumerated exception, “reserves ... set apart ... by His Majesty the King”. The appellant stressed that the reference to the attached agreement previously mentioned created an ambiguity since it referred only to the northern lands, whereas the Treaty included other lands. The reference to the northern lands in the agreement, as in the many other documents referred to us, was merely a reference to the general context leading to the 1923 Treaty. The Treaty is not in any way inconsistent with the agreement. The agreement did not prevent the Treaty from including other lands or render it ambiguous because other lands were added. In fact, the agreement was apparently not attached to the Treaty and as far as the Hiawatha Indians were concerned, there is absolutely no evidence that they were misled by its content or that it shaped their intention in any way. The 1923 Treaty does not raise the same concerns as treaties signed in the more distant past or in more remote territories where one can legitimately question the understanding of the Indian parties (compare R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1036; and Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501 (C.A.), at pp. 515-16, leave to appeal refused October 14, 1993, [1993] 3 S.C.R. vi). The 1923 Treaty cloncerned lands in close proximity to the urbanized Ontario of the day. The Hiawatha signatories were businessmen, a civil servant and all were literate. In short, they were active participants of the economy and society of their province. The terms of the Treaty and specifically the basket clause are entirely clear and would have been understood by the seven signatories.

[54] Despite the breadth of the document, the Applicants argue that,

(a) a court might conclude that the Applicants never intended to surrender an aboriginal right to preservation of sacred burial sites; given its cultural importance to them.

(b) the preamble to the treaty contains language suggesting that the purpose of the treaty was to obtain a surrender of fishing, hunting and trapping rights, and that the apparently broad language might be construed to be limited to those rights. The Treaty provides,

WHEREAS, the Chippewa Tribe above described, having claimed to be entitled to certain interests in the lands in the Province of Ontario, hereinafter described, such interests being the Indian title of the said tribe to fishing, hunting and trapping rights over the said lands, of which said rights His Majesty through His said Commissioners, is desirous of obtaining a surrender, and for such purpose has appointed the said Commissioners, with power on behalf of His said Majesty, to enquire into the validity of the claims of the said tribe, and, in the event of the said Commissioners determining in favour of the validity thereof, to negotiate a treaty with the said tribe for the surrender of the said rights upon the payment of such compensation therefore as may seem to the said Commissioners to be just and proper:

AND WHEREAS the said Commissioners, having duly made the said enquiry, have determined in favour of the validity of the said rights.

AND WHEREAS the Indians belonging to the said tribe, having been duly convened in council, at the respective places named hereunder, and having been requested by the said Commissioners to name certain chiefs and headmen to be authorized on their behalf to conduct negotiations with the said Commissioners for a surrender of the said rights and to sign a treaty in respect thereof and to become responsible to His Majesty for the faithful performance by the said tribe and by the respective bands thereof inhabiting the said reserves, of such obligations as shall be assumed by them under such treaty, the said Indians have therefore appointed for the purpose aforesaid the several chiefs and headmen who have subscribed to this treaty. [emphasis added]

[55] The jurisprudence establishes that treaty documents are interpreted differently from ordinary commercial contracts. As noted in R. v. Taylor and Williams, (1981), 62 C.C.C. (2d) 227 (Ont. C.A.) at pp. 235-36:

The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart [page 498] from the other considerations already noted, the honour of the Crown is always involved and no appearance of “sharp dealing” should be sanctioned. Mr. Justice Cartwright emphasized this in his dissenting reasons in R. v. George, ..., [1966] S.C.R. 267 at p. 279, where he said:

We should, I think, endeavour to construe the treaty of 1827 and those Acts of Parliament which bear upon the question before us in such a manner that the honour of the Sovereign may be upheld and Parliament not made subject to the reproach of having taken away by unilateral action and without consideration the rights solemnly assured to the Indians and their posterity by treaty.

Further, if there is any ambiguity in the words or phrases used, not only should the words be interpreted as against the framers or drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible: R. v. White and Bob (1964), 50 D.L.R. (2d) 613 at p. 652 ... (B.C.C.A.); affirmed ... [1965] S.C.R. vi...

[56] In R. v. Marshall, [1999] 3 S.C.R. 456, the court said at paragraphs [11] to [15],

[11] ...even in the context of a treaty document that purports to contain all of the terms, this Court has made clear in recent cases that extrinsic evidence of the historical and cultural context of a treaty may be received even absent any ambiguity on the face of the treaty. MacKinnon A.C.J.O. laid down the principle in Taylor and Williams, supra, at. P. 236:

...if there is evidence by conduct or otherwise as to how the parties understood the terms of the treaty, then such understanding and practice is of assistance in giving content to the term or terms.

The proposition is cited with approval in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 87, and R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1045.

[12] Thirdly, where a treaty was concluded verbally and afterwards written up by representatives of the Crown, it would be unconscionable for the Crown to ignore the oral terms while relying on the written terms, per Dickson J. (as he then was) in Guerin v. The Queen, [1984] 2 S.C.R. 335. Dickson J. stated for the majority, at p. 388:

Nonetheless, the Crown, in my view, was not empowered by the surrender document to ignore the oral terms which the Band understood would be embodied in the lease. The oral representations form the backdrop against which the Crown’s conduct in discharging its fiduciary obligation must be measured. They inform and confine the field of discretion within which the Crown was free to act. After the Crown’s agents had induced the Band to surrender its land on the understanding that the land would be leased on certain terms, it would be unconscionable to permit the Crown simply to ignore those terms.

The Guerin case is a strong authority in this respect because the surrender there could only be accepted by the Governor in Council, who was not made aware of any oral terms. The surrender could not have been accepted by the departmental officials who were present when the Musqueam made known their conditions. Nevertheless, the Governor in Council was held bound by the oral terms which “the Band understood would be embodied in the lease” (p. 388). In this case, unlike Guerin, the Governor did have authority to bind the Crown and was present when the aboriginal leaders made known their terms.

[14] “Generous” rules of interpretation should not be confused with a vague sense of after-the-fact largesse. The special rules are dictated by the special difficulties of ascertaining what in fact was agreed to. The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown’s approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty (Sioui, supra, at p. 1049), the completeness of any written record (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement: Simon v. The Queen, [1985] 2 S.C.R. 387, and R. v. Sundown, [1999] 1 S.C.R. 393), and the interpretation of treaty terms once found to exist (Badger). The bottom line is the Court’s obligation is to “choose from among the various possible reconciles” the Mi’kmaq interests and those of the British Crown (Sioui, per Lamer J., at p. 1069 (emphasis added)). In Taylor and Williams, supra, the Crown conceded that points of oral agreement recorded in contemporaneous minutes were included in the treaty (p. 230) and the court concluded that their effect was to “preserve the historic right of these Indians to hunt and fish on Crown lands” (p. 236). The historical record in the [page 475] present case is admittedly less clear-cut, and there is no parallel concession by the Crown.

[57] In this case there is no evidence of any oral terms incompatible with the broad conveyance. There is no evidence that the First Nation signatories understood they would retain the right to preservation of burial sites. There is no evidence of any conduct from which it could be inferred that the First Nations thought they retained those rights, or that they have in fact engaged in any cultural practice in relation to burial sites potentially located on the Seaton lands since 1923.

[58] This treaty is not an ancient one. Had there been any evidence of an assertion of those cultural practices, it could have been produced. From this, the conclusion follows that the treaty means what it says. As noted in Howard v. Her Majesty the Queen, at paragraph [5],

Ralph Loucks testified that he had known the seven Hiawatha signatories personally. He stated that they call could read English, that three or four of them were businessmen, that three or four were at some time also Chiefs of the Hiawatha Band and that two men, Hanlon Howard and Johnson Paudash, were “almost as smart as any lawyer regarding Indian treaties or legal paper” (C.O.A., at p. 94). Johnson Paudash, it will be noted, was the one responsible for bringing the Commission’s attention to the errors regarding lands described in or thought to be governed by earlier treaties.

[59] There is no outstanding claim which challenges the validity of the Williams Treaty.

[60] It follows that there is no aboriginal right or potential aboriginal right which triggers the Haida/Misikew duty to consult, as the Applicants’ ancestors surrendered all rights of any kind to lands including the Seaton lands, in exchange for the promises made to them in the Williams Treaty.

Duty to Consult under Environmental Assessment Act

[61] The Applicants move to quash the Notice of Completion of the Environmental Study Report. They assert that the ORC was exercising a statutory power of decision, as defined in the Judicial Review Procedure Act R.S.O. 1990 c., when it made decisions about who to consult and the extent of consultation with interested aboriginal groups. The Applicants say that the failure to consult them in person and to take steps to engage the Applicants resulted in procedural unfairness. The Applicants have not sought an order quashing the decision of the Minister of Environment refusing the “bump-up” requests.

[62] Sharpe J.A. recently reviewed the distinction between review of the manner of decision-making, as opposed to the substantive result, in Ontario v. Crown Employees Grievance Settlement Board, [2006] 81 O.R. (3d) 419 at paragraphs [19] – [23].

[19] In Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, at paras. 100 and 102, Binnie J. pointed to the distinction between review on grounds of natural justice, which involves the manner in which a decision-maker goes about making the decision, and substantive review of the ultimate result or end product of the decision-maker’s deliberations. The present application for judicial review asked the court to review the manner in which the arbitrator went about making her decision and to decide whether the arbitrator respected the employer’s right to natural justice and procedural fairness.

[20] Strictly speaking, this is not an issue that attracts the “pragmatic and functional analysis” or requires an assessment of the appropriate standard of review. As Binnie J. explained in C.U.P.E., supra, at paras. 100, 102:

It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions. It is only the ultimate exercise of the Minister’s discretionary ... power ... that is subject to the pragmatic and functional analysis, intended to assess the degree of deference intended by the legislature to be paid by the courts to the statutory decision maker, which is what we call the standard of review.

The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.

Similarly, in Moreau-Bérubé v. Newsbrunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, [2002] S.C.J. No. 9, at para. 74, Arbour J. stated that where an application for judicial review raises procedural fairness or natural justice issues, “no assessment of the appropriate standard of review” is required and the reviewing court should conduct “an assessment of the procedures and safeguards required in a particular situation”. As this court explained in London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859, 167 O.A.C. 120 (C.A.), at para. 10:

[w]hen considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly. [Emphasis added]

See also Donald J.M. Brown & David M. Beatty, Canadian Labour Arbitration, looseleaf (Aurora: Canada Law Book, 2005) at para. 1:5300.

[21] As the application for judicial review required an assessment of whether the employer’s right to natural justice had been denied, I am not persuaded that it was necessary or appropriate for the Divisional Court to decide the case on the basis of the reasonableness standard of review produced by the “pragmatic and functional analysis”.

[22] On the other hand, as we are not to apply the “pragmatic and functional analysis”, it does not follow that we move immediately to one of the other standards it produces, namely, correctness. The arbitrator heard the parties and the evidence on the preliminary motion and she has expertise as a decision-maker with respect to the labour arbitration process. A court should, accordingly treat her fact-finding and remedial decisions with appropriate deference. An examination of all the circumstances pertaining to the alleged denial of natural justice is necessarily contextual and the arbitrator’s findings help to shape and define the context that the court is asked to consider on judicial review. The degree of respect or deference to be accorded the arbitrator’s findings may well entail consideration of the specific nature of the decision, the statutory scheme, and the arbitrator’s expertise: C.U.P.E., supra, at para. 103, referring to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39; David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004) 17 Can. J. Admin. L. Prac. 59 at pp. 86-87: “[I]t is a modified form of correctness review at least in so far as there will be occasions on which some deference to tribunal choice of procedures is required . . . [T]he court, in assessing whether as a matter of correctness there has been a shortfall in procedural fairness, has, as part of the exercise to give some weight to the considered choices of the agency under review.”

[23] In the present case, some deference should be accorded to the arbitrator’s factual findings and remedial choices. However, the employer is entitled to have the court’s assessment, in the words of London v. Ayerswood, supra, [at para. 10] of “the specific circumstances giving rise to the allegation” and its determination of “what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly.”

[63] Here the category C environment assessment was a multi-faceted study, the scope of which expanded and contracted as the ORC responded to the submissions from a wide variety of interested parties. The category ascribed to the assessment and the assessment itself were provisional and subject to reconsideration until the Notice of Completion was issued. The Minister’s choice was essentially to decide if more study was required.

[64] This judgment proceeds on the assumption that the conduct of the environmental assessment is reviewable on the grounds of procedural fairness.

[65] It is important to understand the nature of the Category C Environment Assessment undertaken in this case. It was a massive undertaking which examined the impact of the proposed land exchange on a wide variety of interested persons and upon the natural environment. The duty to consult is owed to the public at large, not only to aboriginal people. The Environmental Study Report covers areas such as surface water, geology and hydrogeology wildlife and birds as diverse as the “Hairy Tailed Mole and the Red Shouldered Hawk”, the socio-economic environment, population projections, and a study of cultural resources, aboriginal interests and transportation and infrastructure networks.

[66] Assessment of procedural fairness in a broad based study such as this is far different from what is required in a hearing which assesses the rights of parties based on events which have happened in the past. The entire focus of the ESR is to assess the potential consequences for the future of the land exchange, and to consider and weigh a multitude of interests. The ultimate decision, whether to proceed with the exchange is quintessentially political, rather than judicial. The notion of “correctness” does not fit well with judicial review of a wide-ranging investigation. Given the breadth of the study, there will always be another person who could have been consulted, and there always will be some expert who will disagree with some of the scientific opinion assembled in the course of the study. For this reason, the court should accord some deference to the decisions as to the manner of consultation.

[67] Once the study is complete it is up to the Minister of the Environment to decide whether more study is required.

[68] The nature of the aboriginal interest claimed here is not specific to any one First Nation. While there are likely Anishnaabeg burial sites located somewhere in the Seaton lands, those remains cannot be more specifically connected to any one of the Applicants. At different times, the lands along the North Shore of Lake Ontario were occupied by Huron-Wendat, Iroquois and then, about 1700, the Anishnabe. Of the 134 Indian Act bands in Ontario, only a few are not Anishnabe. Each of the Huron-Wendat, Iroquois and Anishnabe cultures have a similar interest in preservation of culturally significant sites.

[69] The statutory duty to consult aboriginal groups imposed by the Category C Environmental Assessment is informed by the Haida/Misikew duty to consult. As indicated in Haida Nation, “Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light.[^6] The Environmental Assessment consultation process is wider in that it invites participation by persons who are interested but do not necessarily have rights to the land.

[70] In this case, given that the interests of the Anishnaabeg as a whole were implicated, deep consultation at the level of each of the individual First Nation Applicants was not required.

[71] Other measures for the protection of aboriginal burial and archeological sites affect the extent and depth of consultation required.

[72] The Central Pickering Development Plan, for example, was developed pursuant to the Ontario Planning and Development Act. The policy of the plan was expressed in part, as

“Recognize First Nations’ cultural and spiritual connection to the Development Planning Area and require the development process be undertaken in a respectful manner. This will include actively seeking the input and advice of First Nations in considering the most appropriate actions to take with respect to the protection, commemoration, long-term management and/or mitigative excavation of archeological sites.

Require, as a condition of development approval, that an archaeology monitor, preferably of First Nations’ ancestry, be retained and funded by the proponent for any significant mitigative excavation activities, on known pre-contact archeological sites. The purpose of this monitor would be to work co-operatively with the proponent’s licensed professional archeologist in order to report back on the results of the mitigative excavation activities to interested First Nations.

Require a licensed archeologist to assess any land alteration and/or grading within the Natural Heritage System in areas considered to have archeological potential, except as such activities relate to normal farm practices. Disturbance of existing archeological sites shall be avoided as much as possible.

Protect known significant archeological sites on-site to the greatest degree possible. On-site protection and archeological site avoidance measures involve:

(a) Accurate delineation of archeological site boundaries and extent of archeological sites through the completion of a detailed Stage 3 archeological assessment; and,

(b) Establishment of Archaeologically Sensitive Areas in recognition of the demonstrated sensitivity of land parcels containing sites of significant archeological concern (e.g., complex aboriginal villages). As such sites may be impacted by development and small-scale land-use alteration that is not subjected to comprehensive planning control under the Planning Act or Environmental Assessment Act, their long-term protection should be considered using tools such as the following.

(i.) Use of prohibitive zoning by-laws, as permitted by section 34(1) of the Planning Act or through other conditions or orders that prohibit any future land-use activities that might result in soil disturbance on such sites; and,

(ii.) Use of other protective tools, such as heritage easements, subdivision agreements or covenants and passive land-uses.

Notwithstanding the presumption in favour of on-site protection of archeological sites, achieve in appropriate cases the goal of mitigating impacts to significant sites through both Stage 3 assessments and Stage 4 systematic archeological excavations consistent with Ontario Ministry of Culture Archaeological Assessment Technical Guidelines.

Ensure that land disturbance or site alteration undertaken within the Development Planning Area, including public works such as berm construction and slope or bank stabilization, shall be kept to a minimum and only be undertaken in a manner that does not destroy or adversely affect known archeological sites, built heritage properties and cultural heritage landscape features.

[73] In addition, the Cemeteries Act R.S.O. 1990 c.C.4 and regulations thereunder establish a regime for the protection of aboriginal burial sites. Once a burial site is discovered, the Registrar may order the owner of the land to cause an investigation to be undertaken to determine the origin of the site. The investigator must provide the registrar with a report outlining,

1. A determination of the probable cultural origin or religious affiliation of the persons whose remains are interred and the basis upon which it is made.

2. A description of the boundaries of the burial site.

3. Details of the style and manner in which the human remains are interred.

4. A description of any artifacts that, in the opinion of the investigator, form part of the burial site.

5. An opinion as to whether the burial site was set aside with the apparent intention of interring human remains in accordance with cultural affinities and the basis upon which the opinion is made.

6. Information relevant to the preparation of a site disposition agreement.[^7]

[74] If the Registrar determines that the site is an “unapproved aboriginal peoples’ cemetery ,” that is, land set aside with the apparent intention of interring therein, in accordance with cultural affinities, human remains and containing remains identified as those of persons who were one of the aboriginal peoples of Canada, the Registrar must serve a notice on the owner of the land and the representative of each person whose remains are interred in the cemetery.[^8]

[75] Where an “unapproved aboriginal cemetery” is identified, the representatives of the deceased shall be “the nearest First Nations Government or other community of aboriginal people which is willing to act as a representative and whose members have a close cultural affinity to the interred person.[^9]

[76] The Cemeteries Act and regulations provide for negotiations leading to a site disposition agreement which must contain the following:

1. A legal description of the location of the cemetery in which the human remains are interred and, if appropriate, a statement that the remains will be left where they are interred.

2. The style and manner in which the human remains are to be disinterred and reinterred, if applicable.

3. The time within which the disinterment and reinterment are to take place, if applicable.

4. The provisions being made for future maintenance of the cemetery in which the human remains are to be located.

5. The allocation of the costs for carrying out the agreement.

6. Such other matters as the parties to the agreement agree upon.[^10]

[77] The consent of the representatives is required before the remains and associated artifacts can be removed from the cemetery, or before scientific analysis of the remains and artifacts can be conducted. If a site disposition agreement is not concluded within a prescribed time, the Registrar shall refer the matter to arbitration.[^11]

[78] The aboriginal consultation undertaken by the ORC in this case included persons of First Nations descent from each of the three main First Nation cultural streams in Ontario, the Anishnabe, Iroquois and Huron-Wendat, and persons with expertise in the field of archeology. Scugog was fully involved in the consultation process from the beginning of the environmental assessments. Councillor Johnson agreed on cross-examination that Chief Nahrgang was “a good source of information to Scugog on archaeology and environmental assessments”[^12] Councillor Johnson attended one of the public meetings where maps and pictures of the Seaton lands were displayed, and attended a second meeting a few months later which dealt with archeological issues. She learned there about the discovery of several archeological sites.[^13]

[79] Chief Nahrgang gave Johnson information about the archeological issues and she understood that field work was in process to try to discover First Nations heritage sites.[^14] She knew the archeological surveys had unearthed many sites and that there may have been a few villages in the area. Chief Nahrgang reported to her orally and in writing, and she passed the written reports on to Chief Gauthier.[^15] She saw the Power Point presentation prepared by ASI and Kris Nahrgang about the Seaton First Nation consultation,[^16] and discussed the First Nations Circle with Kris Nahrgang before August 2006. She knew he viewed this as an important step in aboriginal consultation and understood the purpose of the circle was to consult First Nations, and share information and culture.[^17] She received the Notice of Completion of the Environmental Study Report.[^18] Chief Nahrgang was Scugog’s connection to the consultation process. She received telephone calls from him and had meetings with him about the Seaton lands. If she had concerns, Chief Nahrgang would answer her questions, and also the questions raised by Chief Gauthier, through her.[^19]

[80] The consultation here was not as broad as first contemplated, and the Environmental Study Report clearly overstates the extent of consultation; nonetheless the level of communication was not procedurally unfair.

[81] The First Nation Applicants have an open invitation to join the Circle and work with other First Nations interested in cultural heritage protection, but have not done so.

[82] In this case, the First Nations Circle participated in the review of the archeological assessments of Seaton lands, and made the following recommendations:

(a) Confirmed village sites should be protected from any disturbance;

(b) Where appropriate, 100 meter buffer zones should be established around each village;

(c) A model should be developed to attempt to predict the location of ossuaries associated with villages and actions taken to identify and protect them in advance of development;

(d) Pursue excavation of Spruce Ridge 2, which may be either a village or series of settlements;

(e) Establish an Aboriginal history of the region educational program (particularly aimed at children);

(f) Retain a Circle monitor for any excavation projects on pre-contact sites undertaken No. the exchange of lands; and

(g) Copies of various reports ought to be provided to the Huron-Wendat and French.

[83] Subject to further research around the buffering of villages, ORC accepted all of the proposals. The Circle will remain in place to protect First Nations cultural heritage as future uses of land are considered under the Ontario Planning and Development Act.

[84] This First Nations Circle has been demonstrably effective in protecting, discovering and protecting important aboriginal archeological sites. In a draft report prepared for the Ipperwash Inquiry entitled “Aboriginal Burial and other Sacred Sites in Ontario”, prepared for the Founding First Nations Circle, the authors recommended that consultation with First Nations and preservation of aboriginal archeological sites,

“will require the development of a permanent body of legitimate and knowledgeable Aboriginal people representing the entire spectrum of First Nation groups and constituencies to consult with archeologists, the development industry, municipal government, and the Province. Given the scale of development in Ontario, it may be anticipated that such a group would be active on a full time basis and would therefore require both financial and administrative support from the Province through existing funding sources or perhaps through a levy on the development industry.”

[85] The establishment of the First Nations Circle was a ground-breaking and historic achievement which will enable First Nations to protect their cultural heritage. The First Nations Circle has been supported by the Chiefs of Ontario and has continued to play a significant role in consultation with the Ontario government.

[86] In the end, as submitted by the Huron-Wendat Nation, the goal of reconciliation is better promoted by dismissal of the application for judicial review. The choice of who to consult and the extent of consultation was adequate here for the following reasons:

1. The undertaking was for transfer only of the property.

2. The confirmed archeological sites are culturally affiliated to the Huron-Wendat, and have not been established to be connected to the Anishnaabeg.[^20]

3. Culturally sensitive areas have been removed from the land proposed to be transferred.

4. Scugog, the Anishnaabeg First Nation geographically closest to the Seaton lands participated fully in the consultation process.

5. Future development of the lands will be subject to the protective regime of the Ontario Planning and Development Act and the North Pickering Development Plan in association with the First Nations Circle Monitor.

6. The Cemeteries Act and Regulations thereto establish a comprehensive and inclusive means of protecting aboriginal remains.

7. The Applicants surrendered any interest in the Seaton lands in the Williams Treaties.

[87] Accordingly, the appeal is dismissed.

Pardu J.

Hoilett J.

I agree

Ground J.

I agree

Released: 20070208

COURT FILE NO.: 285/06

DATE: 20070212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

HIAWATHA INDIAN BAND now known as Hiawatha First Nation, and GIMAA GREG COWIE, suing on his own behalf and on behalf of the members of the Hiawatha First Nation

ALDERVILLE INDIAN BAND now known as Mississaugas of Alderville First Nation, and GIMAA JAMES ROBERT MARSDEN, suing on his own behalf and on behalf of the members of the Mississaugas of Alderville First Nation

BEAUSOLEIL INDIAN BAND now known as Beausoleil First Nation, and GIMAA RODNEY MONAGUE JR., suing on his own behalf and on behalf of the members of the Beausoleil First Nation

CHIPPEWAS OF GEORGINA ISLAND INDIAN BAND now known as Chippewas of Georgina Island First Nation, and GIMAA BRETT MOONEY, suing on his own behalf and on behalf of the members of the Chippewas of Georgina Island First Nation

CHIPPEWAS OF RAMA INDIAN BAND now known as Chippewas of Mnjikaning First Nation, and GIMAANINIIKWE SHARON STINSON-HENRY, suing on her own behalf and on behalf of the members of the Chippewas of Mnjikaning First Nation

CURVE LAKE INDIAN BAND now known as Curve Lake First Nation, and GIMAA KEITH KNOTT, suing on his own behalf and on behalf of the members of the Curve Lake First Nation

MISSISSAUGAS OF SCUGOG ISLAND INDIAN BAND now known as Mississaugas of Scugog Island First Nation, and GIMAANIIKWE TRACY GAUTHIER, suing on her own behalf and on behalf of the members of the Mississaugas of Scugog Island First Nation

And DAVID SANFORD

Applicants

• and –

MINISTER OF THE ENVIRONMENT, ONTARIO REALTY CORPORATION and COUNCIL OF THE HURON-WENDAT NATION, on their own behalf and on behalf of all members of Huron-Wendat Nation

Respondents

REASONS FOR JUDGMENT

Pardu J.

Hoilett J.

Ground J.

Released: 20070208

[^1]: S.58(1) Capital Investment Plan Act S.O. 1993, “Without limiting the powers or capacities of the Ontario Realty Corporation, its objects include providing to the government of Ontario and its programs, and to others, services and financing related to real property and to improvements to real property.”

[^2]: S. 3(a) EAA

[^3]: s.1 “undertaking means (a) an enterprise or activity or a proposal, plan or program in respect of an enterprise or activity by or on behalf of Her Majesty in the right of Ontario, by a public body or public bodies or by a municipality or municipalities.”

[^4]: Mississaugas of Sugar Island, Chippewas of Georgian Island, Huron Wendat First Nation, Curve Lake First Nation, Mississaugas of the Credit, Hiawatha First Nation, Alderville First Nation.

[^5]: Alderville, Chippewas of Georgina Island, Hiawatha, Mississaugas of Scugay Island, Curve Lake, and then also Huron Wendat, the Chiefs of Ontario, Kris Narhgang Association of Iroquois and Allied Indians, the Anishinabek Nation/Union of Ontario Indians, the Mohawks of the Bay of Quinte, the Mississaugas of New Credit, Six Nations of the Grand River Territory.

[^6]: Haida Nation v. British Columbia, supra, para. [45]

[^7]: Cemeteries Act R.S.O. 1990 c.C.4 ss. 70(1) Burial Sites, O. Reg. 133/92 ss. 2(1) and 2.

[^8]: Cemeteries Act ss. 72(1), (2), (3), Burial Sites O. Reg. 133/92 ss. 7(1).

[^9]: Burial Sites O. Reg. 133/92 s.1

[^10]: Cemeteries Act, supra, ss. 72(2) and (3)

O. Reg. 133/92, s. 14, Schedule B, Tab 4.

[^11]: O. Reg. 133/92 ss. 8(1)

[^12]: A. Johnson Cross-examination p. 19, qq. 127-30

[^13]: A. Johnson Cross-Examination qq. 176-189, Q. 194, qq. 198-25

[^14]: A. Johnson Cross-Examination qq. 216-222

[^15]: A. Johnson Cross-Examination qq. 229-232

[^16]: A. Johnson Cross-Examination qq. 257-258

[^17]: A. Johnson Cross-Examination qq. 259-272

[^18]: A. Johnson Cross-Examination qq. 306-307

[^19]: A. Johnson Cross-Examination qq. 347-364

[^20]: We have not considered expert report submitted by the Applicants outside the time limits imposed by a judicial timetable and delivered too late to give the Respondents a fair opportunity to cross-examine the authors or respond, but simply note that there is some dispute as to the sites are conclusively or exclusively Huron-Wendat.