CITATION: Ogichidaakwe v. Ontario (Energy) 2014 ONSC 5492
DIVISIONAL COURT FILE NO.: 411/11
DATE: 20140922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OGICHIDAAKWE (GRAND CHIEF) DIANE M. KELLY ON HER OWN BEHALF, ON BEHALF OF ALL MEMBERS OF THE ANISHINAABE NATION IN TREATY 3 AND ON BEHALF OF GRAND COUNCIL TREATY 3, GRAND COUNCIL TREATY 3, CHIEF LORRAINE COBINESS, CHIEF JANICE HENDERSON, CHIEF KIMBERLY SANDY-KASPRICK, AND CHIEF EARL KLYNE, ON THEIR OWN BEHALF AND ON BEHALF OF GRAND COUNCIL TREATY #3, CHIEFS IN ASSEMBLY
Applicants
– and –
ONTARIO MINISTER OF ENERGY and ONTARIO POWER AUTHORITY
Respondents
– and –
H2O POWER LIMITED PARTNERSHIP and RESOLUTE FP CANADA INC.
Interveners
Scott A. Smith and Paul Seaman for the Applicants
Kisha Chatterjee for the Respondent Ontario Minister of Energy
Alexander Smith for the Respondent Ontario Power Authority
Geoff R. Hall for the Interveners
HEARD: September 16, 2014
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] This is a motion for a Kelly v. Canada Order in a judicial review application that concerns Aboriginal rights and the Crown’s constitutional obligation to consult.
[2] Kelly v. Canada (Attorney General), 2013 ONSC 1220, reversed, in part, 2014 ONCA 92, involved the treaty rights of the Anishinaabe Nation in Treaty 3 territory. In that case, Grand Chief Kelly, who is an Applicant in the immediate case, represented the Grand Council of Chiefs. Chief Kelly pleaded that she represented the holder of the Aboriginal right engaged in that case, but, the defendant, the federal government of Canada, which is not a party to the immediate case, made a preliminary objection. Canada submitted that the proper or necessary parties were 28 Indian Bands but that these parties were not before the Court, and, thus, Canada submitted that Chief Kelly’s representative action, in effect, a class action with no right to opt out, should not proceed further.
[3] Canada’s preliminary objection in Kelly v. Canada (Attorney General) was problematic, because the truth of Canada’s submission was not a given; i.e., a trial would be required to determine whether it was true that the 28 Indian Bands were necessary parties. The problem, however, was solved by the court making what is now being called a Kelly v. Canada Order.
[4] As it happens, I was the judge in Kelly v. Canada (Attorney General), and I ordered that the 28 Indian Bands be added as party plaintiffs or as party defendants. That part of my decision was endorsed by the Court of Appeal.
[5] This time in proceedings involving the Crown in Right of Ontario, in the case at bar, two intervenors, H2O Power Limited Partnership (“H2O Power”) and Resolute FP Canada Inc., (“Resolute”) ask that another Kelly v. Canada Order be made.
[6] The Respondents, the Ontario Minister of Energy and Ontario Power Authority, take no position, and thus they do not oppose the Order.
[7] The Applicants: (1) Grand Council Treaty 3; (2) Chief Lorraine Cobiness; (3) Chief Janice Henderson, (4) Chief Kimberly Sandy-Kasprick; (5) Chief Earl Klyne; and (6) Grand Chief (Ogichidaakwe) Kelly on her own behalf, on behalf of the all members of the Anishinaabe Nation in Treaty 3, and on behalf of Grand Council Treaty 3, oppose the Kelly v. Canada Order.
[8] The Applicants submit that a Kelly v. Canada Order is offensive to Aboriginal custom that has been incorporated into and must be respected by the common law.
[9] The Anishinaabe Nation is a community, and it is understandable that the Applicants would be discomfited and resistant to being ordered to sue other members of their community. And it is understandable, therefore, that the Applicants might view a Kelly v. Canada Order as offensive to Aboriginal custom. And it would also be understandable that the more cynical and suspicious of the Applicants might harbour the unexpressed sentiment that a Kelly v. Canada Order could be used as a divide-and-conquer tactic in civil litigation against Aboriginal peoples.
[10] Notwithstanding these sentiments, in my opinion, for the reasons that follow, a Kelly v. Canada Order should be made in the case at bar with the adjustments that: (a) the 28 Indian Bands shall be added as party respondents; (b) service of the Notice of Application and of all the material delivered to date along with this court’s order and these Reasons for Decision shall be the responsibility of the Intervenors; and (c), if necessary, a case management order should be made to schedule the completion of the judicial review application. In this way, no offense will be given to Aboriginal custom and the dilemma of who are the proper and necessary parties will be resolved.
B. FACTUAL AND PROCEDURAL BACKGROUND
[11] After Confederation in 1867, the Crown entered into numbered treaties with First Nations peoples. One of those treaties was Treaty 3 with the Anishinaabe Nation.
[12] As a matter of constitutional law, the Crown is under a duty to consult with the holder of an Aboriginal or treaty right if a Crown decision could potentially affect the Aboriginal or treaty rights: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.
[13] Aboriginal and treaty rights are communal rights and belong to communities that may be comprised of families, clans, descent groups, hunting parties, a band, a tribe, a confederacy or a First Nation. Who is the holder of an Aboriginal or Treaty right is contestable, and the determination of who is the rights holder may require a fact-based determination. See: Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53; Behn v. Moulton Contracting Ltd., 2013 SCC 26 at para. 30; Kelly v. Canada (Attorney General), supra at paras. 56 and 64.
[14] On May 7, 2009, the Minister of Energy issued a directive to the Ontario Power Authority (OPA) to develop a program to negotiate new contracts for existing hydroelectric facilities. The program became known as the Hydroelectric Contract Initiative or HCI.
[15] Pursuant to the HCI program, the OPA entered into a contract with ACH Limited Partnership to procure electricity from five existing hydroelectric generating stations and associated hydroelectric dams in Treaty 3 Territory in northwestern Ontario. In 2011, the OPA consented to a change in control of ACH, which changed its name to H2O Power Limited Partnership.
[16] On September 1, 2011, the Applicants brought a judicial review application. They claim that the Ontario Minister of Energy breached the duty to consult with respect to harvesting rights provided for under Treaty 3, and they seek to quash the decisions associated with the HCI program. Without joining Resolute and H20 Power, the Applicants seek to set aside the the HCI Contract and the $640 million transaction entered into by Resolute on May 27, 2011.
[17] Among the Applicants is Grand Council Treaty 3. It claims to be the traditional government of the Anishinaabe Nation in Treaty 3 territory, and the political government of 28 Anishinaabe communities located in northwest Ontario and Manitoba included in Treaty 3. The Grand Council pleads that both before and after European contact, it functioned as the overarching political body of the Anishinaabe Nation that was made up of all of its chiefs and leaders.
[18] Grand Council Treaty 3 asserts that it can bring this application on its own and that no authorization is needed from the 28 individual Anishinaabe communities in Treaty 3 territory; i.e., it is not necessary to obtain the authorization of the Indian Bands, which have the status of legal entities in their own right.
[19] Chief Kelly asserts that the “Anishinaabe Nation in Treaty 3” consists of all of the individual beneficiaries of Treaty 3 and not the 28 Treaty 3 First Nations, who have been constituted as Indian Bands under the Indian Act, R.S.C. 1985, c. I-5. Ms. Kelly testified that under Anishinaabe law, Grand Council Treaty 3 is not required to obtain a band council resolution from each Treaty 3 community to bring a legal proceeding in relation to impacts on treaty harvesting rights. The Applicants assert that the Treaty Harvesting Rights are held collectively by the Anishinaabe Nation which consists of the beneficiaries of Treaty 3 and they are, and always have been, authorized to bring the application in accordance with Anishinaabe customary law.
[20] There is no evidence that any of the 28 Indian Band councils have authorized this application or that they even have been given notice of the proceeding.
[21] The Minister and the OPA deny that there is any duty to consult because they submit that the Ontario Crown’s decisions with respect to existing hydroelectric facilities created no new adverse impacts on Aboriginal rights.
[22] In June 2013, Resolute and H2O Power brought a motion to be granted intervener status. The motion was granted by Justice Herman. (See Ogichidaakwe (Grand Chief) Diane Kelly v. Ontario Minister of Energy, 2013 ONSC 5089.)
[23] In the context of the Applicants’ expressed concern that Resolute’s and H2O Power’s participation would cause delay and increase costs for the Applicants, Justice Herman stated at paragraphs 52 to 53 of her reasons:
H2O and Resolute’s agreement to abide by the same timetable goes some way towards addressing concerns with delay. However, it does not answer the legitimate concern of the Grand Council that their participation will increase costs, except in so far as H2O and Resolute have agreed to be represented by the same counsel and provide one factum.
It is possible to lessen the potential increase in costs by limiting the number of affidavits, restricting H2O and Resolute’s contribution to areas in which they have particular knowledge, expertise or experience, and avoiding any duplication of evidence or arguments put forward by the minister and the OPA.
[24] Justice Herman granted H2O Power and Resolute leave to intervene as parties subject to the following limited rights; namely: (i) they will adhere to the timetables agreed to by the Grand Council, the Minister and the OPA; … (iv) they will limit their cross-examination on any affidavit to matters that are within their particular knowledge, experience or expertise; … (vi) their evidence, factum and oral argument will be limited to matters that are within their particular knowledge, experience or expertise, and will not duplicate the evidence, arguments or perspectives advanced by the Minister and the OPA.
[25] During the cross-examination of Chief Kelly by the Interveners it became apparent that the 28 Indian Bands had not authorized the Grand Council’s judicial review application and after the cross-examination, the Interveners brought the motion now before the court for a Kelly v. Canada Order.
C. DISCUSSION AND ANALYSIS
[26] Resolute and H2O Power submit that a Kelly v. Canada Order is necessary in the immediate case. They submit that Aboriginal and Treaty rights are communal rights but determining who is or are the holder or holders of an Aboriginal or Treaty right is contextual and requires a fact based termination. Thus, Resolute and H2O Power submit that in the case at bar, it may be the case that the Applicants are not the Aboriginal rights holder and, thus, the determination of the judicial review Application may have to be repeated to bind the true rights holders. In short, they submit that necessary parties are not before the court.
[27] Resolute and H2O Power submit that there is the risk that any of the 28 Indian Bands could re-litigate and assert that it was not bound by the court’s determination in the immediate Application. If there is no joinder to the 28 Indian Bands, Resolute and H2O Power submit that there is the risk of multiple proceedings with the attendant risk of no issue estoppels or res judicata and the embarrassing prospect of inconsistent decisions.
[28] The Applicants submit, however, that Resolute and H2O Power, as interveners, do not have the standing to bring their motion, because although Justice Herman joined them as interveners with the rights of parties, she circumscribed their rights of participation.
[29] In my opinion, there is no merit to this argument. Resolute and H2O Power were joined with the rights of parties, and Justice Herman was not asked to determine the problem now before the court. There is nothing in her endorsement (which has not yet been formalized into an Order) that precludes the motion before the court.
[30] In any event, if necessary parties are not before the court, the problem is as much the court’s problem as it is a problem for the immediate parties.
[31] The Applicants next submit that Resolute and H2O’s motion for a Kelly v. Canada Order should be dismissed because there is no doubt that in accordance with Aboriginal customs and governance, the Applicants are the holders of the collective Aboriginal and Treaty rights of the Anishinaabe Nation.
[32] The Applicants submit that Aboriginal customary law must be respected, since the customary law is incorporated as a part of the common law. See Mitchell v. Minister of National Revenue, 2001 SCC 33. The Applicants submit, therefore, that it would be inconsistent with Anishinaabe customary law and governance, and therefore inconsistent with Canadian common law, to require the applicants to obtain Indian Band council resolutions from the 28 Treaty 3 Communities to authorize the Applicants to bring this Application on behalf of the Anishinaabe Nation.
[33] There are at least three problems with this submission.
[34] First, the Applicants’ assertion that they are the rights holder in accordance with Aboriginal custom or the common law is no more than a self-serving assertion of something that the court may ultimately have to determine. The Applicants may be correct that they are the Aboriginal rights holder and that they should have been consulted by the Crown, but the Applicants are not correct simply because they say so.
[35] Second, the point of the Intervener’s motion is not to challenge that the Applicants are the holder of the Aboriginal or Treaty right. Their point is to have all the potential rights’ holders before the Court so that the issue about proper consultation will be resolved one way or the other once and for all.
[36] Third, it strikes me that the Applicants’ assertion that they are the rights’ holder has a Shakespearean “the lady doth protest too much” aura to it.
[37] Putting aside the sensitivity of having to ask for the 28 Indian Bands’ support to join as a co-plaintiff or the alternative of suing a compatriot as a defendant, I do not understand why the Applicants would object to having the 28 Indian Bands joined as parties to the Application. If it is true that in accordance with Aboriginal customary law that the Applicants are the rights holder, then the Indian Bands will stand down and not defend the Application but be bound by the outcome. The style of cause will simply be amended, and the current parties will get on with completing the Application.
[38] If, however, the Indian Bands do not agree with the Applicants’ assertion that they are the rights holder, then they necessarily should be joined as party respondents, precisely because they may be correct in their own assessment that they are rights holders and they should participate in the judicial review proceeding. Here, it bears repeating that if all the putative Aboriginal rights holders are before the court, it becomes unnecessary to determine which of them is the genuine rights holder. The adamancy of the Applicants’ assertion, therefore, undermines the Applicants’ assertion that it is beyond doubt that they are the rights holder, which I repeat they may well be, but that judicially remains to be seen.
[39] This last thought brings me to my opening comments that the Applicants may be concerned that a Kelly v. Canada Order is being used as a divide-and-conquer tactic. The irony and error of that submission is that a Kelly v. Canada Order is designed to circumvent any divide-and-conquer tactics by removing the issue of who is the rights holder as a live issue in the Application.
[40] I appreciate now that the Applicants may have reasons for not wishing to sue their compatriots, but that concern can be addressed by imposing the obligation to serve the originating process and the application material on the Interveners who are the moving parties on this motion. The addition of more parties may require some case management but that could be made available.
[41] This brings me to the Applicants’ penultimate argument, which is that the circumstances of the immediate case are different from the circumstances of Kelly v. Canada (Attorney General). The distinguishing features are said to be fourfold; namely: (1) that the immediate case does not necessarily involve any issue about who is the rights holder; (2) it cannot be assumed that the Indian Bands are the rights holders and necessary parties; (3) the Grand Council was not a party in Kelly v. Canada, whereas it is a party in the case at bar; and (4) the immediate case is an application for judicial review while Kelly v. Canada was an action alleging Treaty infringement and thus the rights being asserted are different.
[42] I do not have to decide whether any of these distinguishing features are true or false, because for the above reasons, all the submissions miss the point that what is the same in Kelly v. Canada and in the immediate Ogichidaakwe v. Ontario (Energy) is that the court has not decided who is the rights holder of the Aboriginal right that is the subject of the dispute and that is the overriding procedural problem common to both cases. The Applicants’ penultimate argument against the Intervenors’ motion is unsound. Any distinguishing features between the case at bar and Kelly v. Canada (Attorney General) are not material and do not provide a reason against making a Kelly v. Canada Order.
[43] The Applicants’ ultimate argument is that a there is no risk that Treaty 3 communities, including the Indian Bands, can re-litigate issues determined during the Application because they are privies of the Applicants or they would be bound by the doctrine of abuse of process. Therefore, the Applicants submit that a Kelly v. Canada Order is unnecessary in the immediate case.
[44] In particular, the Applicants submit that none of the risks or re-litigation (multiplicity of proceedings, inconsistent results) are real because the 28 Aboriginal Communities are privies of the Applicants, who have been authorized to bring the Application on behalf of the Anishinaabe Nation in Treaty 3, or if the 28 Aboriginal Communities are not privies, then, nevertheless, they would be bound by the outcome of the judicial review proceeding by the doctrine of abuse of process, which applies to bar re-litigation even if a litigant is not a privy of the predecessor litigant.
[45] Once again, there are problems with this ultimate argument and, once again, the argument fails. First, the Applicants are simply begging the privity question by simply asserting that the 28 Indian Bands are their privies. Second, abuse of process is a discretionary doctrine and not an absolute one and given the possible importance of the court’s ruling on the duty to consult, it is more likely than not that a court would not say a subsequent action or application by the Indian Bands was an abuse of process. The 28 Indian Bands should have their day in court if they want it. Third, for the reasons expressed above, the safer course is to join the Indian Bands rather than to run the risks of a multiplicity of proceedings and inconsistent results.
D. CONCLUSION
[46] For the above reasons, the Intervenors’ motion is granted in the manner set out above.
[47] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Intervenors’ submissions within 20 days of the release of these Reasons for Decision, followed by the Applicants’ submissions within a further 20 days. I note that my present inclination is to order costs in the cause.
Perell, J.
Released: September 22, 2014
CITATION: Ogichidaakwe v. Ontario (Energy) 2014 ONSC 5492
DIVISIONAL COURT FILE NO.: 411/11
DATE: 20140922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OGICHIDAAKWE (GRAND CHIEF) DIANE M. KELLY ON HER OWN BEHALF, ON BEHALF OF ALL MEMBERS OF THE ANISHINAABE NATION IN TREATY 3 AND ON BEHALF OF GRAND COUNCIL TREATY 3, GRAND COUNCIL TREATY 3, CHIEF LORRAINE COBINESS, CHIEF JANICE HENDERSON, CHIEF KIMBERLY SANDY-KASPRICK, AND CHIEF EARL KLYNE, ON THEIR OWN BEHALF AND ON BEHALF OF GRAND COUNCIL TREATY #3, CHIEFS IN ASSEMBLY
Applicants
– and –
ONTARIO MINISTER OF ENERGY and ONTARIO POWER AUTHORITY
Respondents
- and -
H20 POWER LIMITED PARTNERSHIP and RESOLUTE FP CANADA INC.
Interveners
REASONS FOR DECISION
PERELL J.
Released: September 22, 2014