Stenlund v Minister of Natural Resources and Forestry, 2019 ONSC 4889

CITATION: Stenlund v Minister of Natural Resources and Forestry, 2019 ONSC 4889 DIVISIONAL COURT FILE NO.: DC-18-015-JR DATE: 20190820

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LAFRENIERE, MYERS, AND WILLIAMS, JJ.

BETWEEN:

DONALD DAVID STENLUND Applicant

– and –

THE MINISTER OF NATURAL RESOURCES AND FORESTRY Respondent

Alexandra M. Tomasovic Little, for the Applicant Judith Parker, for the Respondent

HEARD at Thunder Bay: June 27, 2019

REASONS FOR JUDGMENT

F.L. MYERS J.:

Background and Outcome

[1] Mr. Stenlund applies by way of judicial review for an order quashing the decisions of the Minister of Natural Resources and Forestry refusing to issue a licence to enable him to continue trapping on trapline NG-013 and allocating the trapline to another commercial trapper.

[2] As the facts below demonstrate, Mr. Stenlund’s frustration with the government is readily understandable. He thought he had been allocated a specific trapline with the right to conduct his business there for as long as he met regulatory trapping requirements (like annual quotas and using proper trapping methods). Instead, within his first year, the government decided to take the trapline away and give it to someone else.

[3] I readily empathize with the upset and sense of unfairness felt by Mr. Stenlund. But, in my view, while perhaps ham-fisted, the Minister’s decision to decline to renew or re-issue a licence to Mr. Stenlund fell within the range of discretionary decisions that were available to the Minister under the applicable law. Moreover, the Minister’s officials provided Mr. Stenlund with appropriate procedural protections in the circumstances of this case. Therefore, the application is dismissed.

[4] To the extent that Mr. Stenlund may be a proxy for the Ontario Fur Managers’ Federation raising concerns about the precedent of a government decision re-allocating a trapline, this court can do no more than set out the applicable legal principles. If the Federation has concerns with the state of the law, its remedy may lie in the political forum.

The Facts

[5] This application involves the allocation to commercial trappers of the right to trap and hunt on Crown land in defined parcels known as “traplines” or, properly speaking, “registered trapline areas”. These are areas that are outlined formally on maps produced and registered by the Ministry under O. Reg. 667/98 under the Fish and Wildlife Conservation Act, 1997, SO 1997, c 41.

[6] Traplines can be allocated to a head trapper who then becomes entitled to trap in that area. The head trapper’s rights and concomitant conservation responsibilities are set out in O. Reg. 667/98.

[7] The Ministry has also published policy documents that explain its approach to the allocation of traplines, transmission of vacant traplines, the roles of head trappers and others engaged in the trapping process among other things. The policy statements are not made pursuant to any particular statutory authority. They are intended to create expectations however as to how the Minister’s authority under the statute and the regulations will be exercised in the ordinary course. They set out processes that are intended to be followed and relied upon by the government and by industry participants. There is nothing wrong and much right with Mr. Stenlund having relied on the various policies discussed below.

Policy1.1.7

[8] The Ministry published policy 1.1.7 dated August 27, 2010 in relation to trapper licencing entitled “Allocation of head trappers for registered traplines”. The statute and regulation do not mention the notion of “allocation” of traplines. Mr. Stenlund relies on his successful application for allocation of trapline NG-013 under policy 1.1.7 as creating in him the substantive right to be licenced and to keep the trapline during good behaviour.

[9] Policy 1.1.7 begins with the following important background:

The management of wild furbearing mammals on Crown land is regulated through the allocation of registered traplines to head trappers. Traplines are limited in number and there can be considerable interest in acquiring them when they become vacant. To ensure consistency and fairness in allocating registered traplines, this procedure provides provincial direction and criteria for the selection of head trappers for vacant traplines. This procedure is part of a larger program to sustainably manage Ontario’s wild furbearing populations (e.g. licencing, quota setting, harvest reporting, monitoring, research, education and training, marketing).

Within the provisions of the Fish and Wildlife Conservation Act, S.O. 1997 (FWCA), the broader management of Ontario’s furbearing populations is in part facilitated by agreements between the Ministry and Provincial Treaty Organizations (Union of Ontario Indians, Nishnawbe Aski Nation and Grand Council Treaty #3) and the Ontario Fur Managers Federation. These agreements provide the basis for Ministry recognition of the importance of trapping and associated organizations as key voices within the fur trapping industry.

[10] Recognizing that there are several different groups of interested commercial trappers vying for vacant traplines, the policy requires the Ministry to give notice of registered trapline vacancies to local industry participants in January of each year. The Ministry provides the notice to “Aboriginal communities, local trapper’s councils and local trappers”.[^1]

[11] The policy then provides that priority to a vacant trapline will be given pursuant to the Trapping Harmonization Agreements between the government and Provincial Treaty Organizations. Under those agreements, if a qualified trapper is a First Nation member with a substantial family claim or connection to a registered trapline and has notified the Ministry of her interest in acquiring the trapline, the Ministry will grant her a right of first refusal that may be exercised within six months of the date that the trapline next becomes vacant.

[12] If there is no allocation of a vacant trapline to a First Nation member under a right of first refusal, then the Ministry will consider whether the retiring head trapper has recommended that a helper trapper on the trapline be granted the head trapper designation. Helper trappers are another designation of trappers recognized under the applicable regulation. They are entitled to work a registered trapline under the licence of a head trapper and subject to the head trapper’s quotas. Where a head trapper notifies the Ministry of her designation of a helper as a recommended successor, then, under policy 1.1.7, the Ministry “will allocated the trapline according to the head trapper’s recommendation.”

[13] Mr. Stenlund notes that a head trapper designation means more than just the annual licence to operate a commercial trapping business. The Ministry’s conservation goals under the statute rely on head trappers carrying out their obligations. They have minimum quotas needed to protect the sustainability of some animal populations. They have educational requirements and must trap in an appropriate manner. They maintain and develop their trapline areas. They invest in structures needed to shelter trappers while far from home in the bush. It is Mr. Stenlund’s evidence that the head trapper allocation is therefore understood to be a permanent commitment. He notes, for example, that under s.75 of the statute, a trapper’s licence can be cancelled for cause. But there have been cases where even after a licence was cancelled due to performance issues, the head trapper then obtained a further licence for subsequent years. That is, cancellation of the annual licence under the statute does not necessarily result in a vacancy of the trapline. It remains allocated to the head trapper.

[14] This analysis gains support in policy 1.1.7 under the heading “Further Considerations”. The policy itself seems to differentiate the trapper’s annual licence from the allocation of the trapline as follows:

Head trappers are responsible for ensuring that their trapline is actively trapped, and that their trapping licence is renewed annually. Where the head trapper fails to renew his/her licence, or the head trapper has not actively trapped the trapline, without just cause, for three consecutive years, consideration will be given to revoking the trapline with appropriate notification.

[15] Under this provision of the policy, the decision to revoke the trapline seems to be something different than the annual licencing decision.

Mr. Stenlund was recommended for Trapline NG-013 under Policy 1.1.7

[16] Mr. Stenlund is a fourth-generation trapper in the Lake Nipigon area. He intends to pass on the knowledge and skills of the trade to his three sons as well. Mr. Stenlund is the head trapper on trapline NG-007. He was also registered as a helper trapper on trapline NG-013 for 15 years. In 2017, the former head trapper of trapline 013, Mr. Edward Davies, designated Mr. Stenlund as his recommended successor in writing as contemplated by policy 1.1.7.

Holly Sitch Applied for Trapline NG-013 under Policy 1.1.7

[17] Mr. Davies passed away on February 19, 2017. His trapline therefore became vacant. The Ministry sent letters to nearby Indigenous communities including the Red Rock Indian Band informing them that NG-013 had become available.

[18] In response, Chief Waiwa of the Red Rock Band told the Ministry that Holly Sitch was a member of the Band who was interested in NG-013. Ms. Sitch sent a letter indicating her interest and providing evidence of her family connection to the trapline.

Policy 1.1.8

[19] Ministry policy 1.1.8 dated August 28, 2010 sets out guidelines for reviewing an Indigenous applicant’s claim to have a family connection to a trapline under policy 1.1.7. It requires, first, that the applicant provide “[d]ate(s) during which claimant’s ancestor is known/believed to have been trapping the area in question”.

[20] It is important to note that the system of mapping specific boundaries to create registered trapline areas originated in the 1950s. Evidence of ancestral trapping necessarily predates the precise mapping of traplines, in this case by over 100 years.

[21] Ms. Sitch provided the Ministry with a copy of a provincial enumeration printout from 1871 that lists her great-great-grandfather Kljigowinini whom she says was a trapper-hunter. This is established by a Nipigon House Post Journal from 1836 that discloses that Kljigowinini and another person brought 23 skins to the post. A history of the settlement of the Lake Nipigon area also discloses that prior to 1887, there were no reserves settled by Indigenous peoples. Rather, they carried on their traditional lifestyle of trapping and hunting throughout the region.

[22] Ms. Sitch produced genealogical records linking her to Kljigowinini through her great-grandfather and grandfather. She has disclosed census documents that list her grandfather as a trapper up to 1919. A newspaper article records his death in 1940 and refers to him as an “active trapper and guide”. Ms. Sitch says that her father trapped and that she is a commercial trapper. In fact, she is a registered helper trapper on trapline NG-014 which is adjacent to NG-013. She has instilled her family culture and love of trapping in her children and grandchildren.

[23] Ms. Sitch concedes that she cannot prove that her ancestors trapped the exact location of NG-013. However, she notes that the Ojibway Indians were nomadic people who trapped throughout the Lake Nipigon area before there were boundaries and trapline maps.

The Ministry Allocates Trapline NG-013 Mr. Stenlund without waiting for a Dispute from Ms. Sitch

[24] The local Ministry officials reviewed Ms. Sitch’s documents and concluded that she had not proved her claim to a connection to the actual trapline area sufficiently. While they knew that a decision to refuse Ms. Sitch’s application would be contentious, they erroneously believed that there was no dispute resolution process available to Ms. Sitch to contest that decision. Therefore, once they decided to reject her claim, they immediately allocated the trapline to the next person in line under policy 1.1.7.

[25] As Mr. Stenlund had been recommended formally by the former head trapper, under policy 1.1.7 the Ministry allocated the trapline to Mr. Stenlund. He was therefore granted a licence as head trapper of NG-013 effective September 1, 2017 for one year to August 31, 2018.

[26] In fact, there was a dispute resolution process available to Ms. Sitch under the applicable Trapping Harmonization Agreement referred to in policy 1.1.7. On July 13, 2017, the Red Rock Band gave notice that they were invoking the dispute resolution process.

[27] The Ministry immediately told Mr. Stenlund that there was a dispute and they advised him that he should not to invest in any improvements to trapline NG-013.

[28] On August 2, 2017, a Ministry official spoke to Mr. Stenlund and explained the dispute resolution process to him. She told Mr. Stenlund that there was to be a meeting among the Ministry, officials from the Red Rock Band, and the Union of Ontario Indians. Mr. Stenlund advised that he would be contacting the Ontario Fur Managers’ Federation and he asked to attend the dispute resolution meeting. The Ministry did not allow Mr. Stenlund to attend the meeting because it was designed to discuss Ministry policy and Ms. Sitch’s qualifications.

[29] Mr. Stenlund concedes in this proceeding that he had nothing to contribute to that meeting or to a discussion of provincial priorities in dealing with Indigenous people whether under Trapping Harmonization Agreements or s.35 of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982.

[30] During the call on August 2, 2017, the Ministry reminded Mr. Stenlund that pending the outcome of the dispute resolution process, he should not invest in trapline NG-013 by such things as: improving the trapline, trail cutting, building anything, buying traps, and the like.

The Dispute Resolution Process

[31] A first dispute resolution meeting was held in early October, 2017. At the meeting, the representative of the Red Rock Band submitted that the Ministry had not applied its policy 1.1.8 correctly in light of Ms. Sitch’s evidence of her lengthy family connection to the area. Notes of the meeting record a conversation regarding the appropriate policy for recognition of Indigenous claims for commercial trapping licences.

[32] The notes also record a comment by Chief Waiwa suggesting that the Red Rock Band was prepared to protest, including using legal means and civil disobedience, unless the decision was reversed. The applicant has glommed onto this comment to suggest that inappropriate political pressure lies behind the final decision. In light of the thorough evidence of the internal discussions and processes involved in the Ministry’s decision-making and in the absence of any cross-examination of the government’s witnesses by the applicant, I am not prepared to find that one angry comment by an interested party amounts to a basis to find as a fact that the government made a decision for an improper purpose.

[33] In November, the Ministry once again spoke to Mr. Stenlund to advise him of the status of the dispute resolution discussions and to remind him that he should refrain from investing in the trapline pending the outcome of the process. Mr. Stenlund asked about adding a helper trapper for trapline NG-013. The Ministry responded in writing deferring consideration of this request pending the outcome of the dispute resolution process.

The Ministry Changes its Decision

[34] On January 28, 2018, the Ministry met with Mr. Stenlund to advise him that it had determined that it had made the wrong decision in assessing Ms. Sitch’s application. As a result, the Ministry told Mr. Stenlund that his current licence for trapline NG-013 would not be renewed on its expiry on August 30, 2018. Rather, the trapline would be allocated to Ms. Sitch under policy 1.1.7.

[35] The Ministry formalized this decision in a letter dated February 2, 2018. In the letter, the Ministry wrote that during the dispute resolution process, it had obtained “new information” concerning Ms. Sitch’s claim to have a significant family history with the trapline area. The decision to reallocate the line, they said, was “[b]ased on this new information, and in the spirit of reconciliation with indigenous people”.

[36] Mr. Stenlund then engaged the assistance of the Ontario Fur Managers’ Federation. They expressed concern about the perceived unfairness of allocating a trapline and then re-allocating it to someone else based on new information submitted after the allocation decision had already been made. The Federation argued that this would undermine the certainty of trapline allocations. It suggested that to accommodate both trappers, the Ministry could allocate the next vacant line to Ms. Sitch.

[37] Ministry officials met with Mr. Stenlund and Federation officials on April 27, 2018. At the meeting, the Ministry advised that it had made another error in communicating that its decision was based on “new information”. No new information had been submitted by or on behalf of Ms. Sitch. The Ministry disclosed that what had actually changed was a decision by the Ministry that the local office had erred in applying policy 1.1.8 to require an Indigenous applicant to prove that her ancestors had trapped on the precise trapline rather than in the local area. The Ministry was satisfied that Ms. Sitch’s evidence proved the latter and that this was enough for the purposes of the relevant policies and agreements.

[38] At this meeting, the Federation also noted that based on the initial allocation decision, Mr. Stenlund had paid Mr. Edward’s widow $5,000 to purchase the shelter that he had erected on the trapline. The Ministry indicated that while it was not prepared to change its decision to re-allocate the trapline to Ms. Sitch, it was open to discussing a monetary resolution with Mr. Stenlund. Although this olive branch has been held out since that time in writing, it has not been pursued to this point by Mr. Stenlund.

The Applicant’s Grounds for Judicial Review

[39] Mr. Stenlund argues that the government has changed its policy and made its decision without any transparency as to what test it has now applied. It says that it made a mistake, but it has not articulated any new test or degree of connection required between an Indigenous applicant’s ancestors and a trapline. Mr. Stenlund (or the Federation) argues that every head trapper in Ontario is now subject to the risk that an Indigenous person may come forward and claim an amorphous connection to the trapline that was previously allocated. Despite decades of trapping and investment, every head trapper is at risk of having her trapline reallocated without any articulated basis.

[40] In essence, Mr. Stenlund argues that the decision in his case is unintelligible and arbitrary and therefore it is unreasonable.

[41] Mr. Stenlund also argues that the process undertaken was unfair. While he does not seek a full adversarial hearing, he says that he was stripped of a right based on a new policy of which he had no notice. To the extent that the government is focusing on reconciliation, Mr. Stenlund argues that reconciliation is not a basis to change a decision that had already been made in his favour or to hide the lack of objective standards now applicable the trapline allocation decision.

Jurisdiction

[42] This court has jurisdiction to hear an application for judicial review under ss. 2 and 6 of the Judicial Review Procedure Act, RSO 1990, c J.1.

Standard of Review

[43] The standard of review by which the court will assess the government’s decision in this case is reasonableness. As will be discussed below, in making licencing decisions under this statute, the Minister is exercising a broad policy-laden discretion. Moreover, to the extent that issues in this regulatory field turn on questions relating to conservation and preservation of wildlife, the Ministry is plainly expert in the area. The issues also involve policy balancing concerning reconciliation and Indigenous rights under s. 35 of the Constitution Act, 1982. This too calls for a deferential approach.

[44] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, the Supreme Court described the reasonableness standard of review of a government decision as follows:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[45] Questions of procedural fairness are assessed without regard to a standard of review. A process is fair or not depending on the degree of procedural protections required and whether they were provided in the circumstances of the case before the court.

The Ministry’s Submissions

[46] Ms. Parker argues that under the statute and the applicable regulation properly construed, all that the Minister decided in this case was to decline to renew Mr. Stenlund’s licence. This is a discretionary decision well within the range of authority provided to the Minister under the statute and one that requires little or no procedural formality.

[47] There are approximately 2,800 traplines in Ontario each of which is subject to an annual licence application. Normally, there is no due process provided for a licencing decision. Here, under the unusual circumstances where the Minister determined that the prior year’s licence decision was made in error, Mr. Stenlund’s licence was not cancelled. He enjoyed the full year under the licence that was issued to him. Mr. Stenlund was kept informed of the review process throughout the period. He was ultimately given notice in January of 2018 that his licence would not be renewed when it expired on August 31, 2018 some seven months later. The Ministry followed up to meet him and his representatives from the Federation if only to ensure there was a clear airing of issues if not to actually re-consider the decision.

Analysis

[48] While the policies and parties speak colloquially about allocating a trapline, a review of the statute and regulation below establishes that the only decision being made under the statute and the regulation is to grant a licence to a head trapper. It is fair to note that once a person is recognized as the head trapper for a trapline, she has a reasonable expectation that she will be licenced annually during good behaviour. However, that expectation is subject to revocation on notice. The law recognizes that legitimate expectations inform procedural rights. They do not create substantive property rights where none is provided under the statute. Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at pp. 838-42 S.C.R., pp. 212-14 D.L.R.

The Fish and Wildlife Conservation Act

[49] Under s.6 of the statute, no one may hunt or trap furbearing mammals in Ontario without a licence. The Minister is empowered to issue licences under s.60 of the statute. The licencing power has no conditions or parameters attached to it. It is a purely discretionary power. Under s.62, licences may be made subject to conditions under the applicable regulation.

[50] Section 68 of the statute prohibits licensees from transferring or selling a licence. A licence is not an alienable property right therefore.

[51] Section 71 of the statute authorizes the Minister to refuse a licence for any reason consistent with the purposes of the statute including conservation or management of wildlife or fish. No need for a hearing is mentioned generally. Section 72 of the statute provides a hearing process only where the Minister proposes to refuse a licence on the basis that refusal is reasonably necessary for conservation or management of fish or wildlife. However, even when the statute provides for a hearing, under s.77(6) the hearing officer does not have the right to make the licencing decision. Rather, after holding a hearing, the hearing officer is required to report to the Minister who may then accept or reject the officer’s view.

[52] It is apparent that under the statute, the Minister has a broad discretionary power to licence. This is not a statute under which people are entitled to a licence on passing a test or meeting some other criteria. The Minister’s authority is bounded by the proper purposes of the statute and good faith of course.

The Regulation Allocates Traplines

[53] Regulation 667/98 provides for the rights and obligations of licensees. Section 5 of the regulation says that a licence is valid for the period specified in it. There is no permanent licence right therefore.

[54] All of the attributes of conservation that Mr. Stenlund attributed to allocation of a trapline are actually set out in the regulation as attributes of a licence. The requirement for education, minimum and maximum quota, acceptable trapping procedures and the like are all detailed in the regulation.

[55] Section 3 of the regulation authorizes a person to trap or hunt in the area designated in the licence subject to s.8 of the regulation. Section 8 of the regulation authorizes the holder of a licence to hunt or trap on land designated in the licence that is Crown land in the registered trapline area. Section 9 provides that only one registered trapline area shall be designated in a trapping licence. The combined effect of these sections is to allocate to a licence holder the right to trap or hunt on the Crown land in a single registered trapline area. That is, the licence allocates the trapline to the licence holder.

[56] This is confirmed by s. 10 of the regulation that provides that the person “assigned a registered trapline area is the head trapper and has all the rights and obligations associated with trapping in that area”. It is ss. 3 and 8 of the regulation that assign a registered trapline area to a licence holder. The licence holder then becomes the head trapper who can share her quota with helper trappers. In essence therefore, what is discussed in the policies as “allocation” is just a decision by the Minister to grant a licence to a specific person rather than another. The licence then grants the right to trap in the registered trapline areas and designates the licensee as the head trapper.

[57] There is no doubt that changes to licensees are the exception rather than the rule. As quoted above, policy 1.1.7 discusses a separation between being allocated the trapline and licencing. Technically speaking, it is simply telling prospective licensees that if they fail to work their licenced traplines for three years, they will no longer be considered for renewal. That is, there is a reasonable expectation in practice and by policy that the Minister will renew the licence of an existing licensee. But, as mentioned previously, that informs or supports the recognition of procedural rights. The substantive right to a licence is governed by the statute and the regulation. Formally, under the statute and regulation, Mr. Stenlund’s one-year licence was just that.

The Minister’s Decision

[58] The decision to re-allocate the trapline is, under this regulatory scheme, simply a decision to refuse Mr. Stenlund’s application for a new licence to trap registered trapline area NG-013 and to grant Ms. Sitch’s application. This was an exercise of statutory discretion by the Minister under s.60 of the statute. The Minister decided that the licence should not have been granted to Mr. Stenlund in priority to Ms. Sitch. Under policy 1.1.7, Ms. Sitch had an administrative priority right of first refusal to the vacant licence if she met the ancestral requirement described in policy 1.1.8. The Minister decided that the prior year’s decision of the local official to decline Ms. Sitch’s application because she could not prove that her ancestors trapped the exact trapline as mapped as opposed to the regional area was too narrow an interpretation of the relevant standard. That approach did not respect the intent of the agreements, the applicable policies or the spirit of reconciliation. As such, the Minister exercised the discretion to decline to renew Mr. Stenlund’s licence and to issue a licence to Ms. Sitch.

[59] In my view, reliance on formal documentary records from the mid-1800s into the early twentieth century provides a very intelligible and transparent basis to conclude that Ms. Sitch’s ancestors trapped nomadically in and about the Lake Nipigon area. Concluding that this was a sufficient and proper basis to recognize the primacy of her claim to trapline NG-013 under the applicable Trapping Harmonization Agreement and policies 1.1.7 and 1.1.8 was well within the range of reasonable outcomes available to the Minister therefore. I agree with Ms. Parker that there is no basis to interpret the policies or the Trapping Harmonization Agreements narrowly to require proof of trapping in a specific spot on a map at a time when the map was not even in existence.

[60] On this basis, the Minister’s decision to decline to grant a licence to Mr. Stenlund was reasonable as that term is defined in Dunsmuir.

Procedural Fairness

[61] As to the process issues, as indicated at the outset of these reasons, it is easy to empathize with Mr. Stenlund’s feeling that he has been treated unfairly. The Ministry admits that its conduct has been studded with errors or missteps throughout. There does not appear to have been any bad faith. If anything, people may have jumped too soon to try to accommodate Mr. Stenlund’s application for NG-013.

[62] Mr. Stenlund argues that he was denied procedural fairness because the Ministry has not given intelligible reasons for the approach that it adopted; he received no notice of the change in the Ministry’s policy; and he had a legitimate expectation that he would not lose the trapline except for cause.

[63] Mr. Stenlund argues that the Minister has changed its policy without notice to him and has not articulated reasons for the decision that he made. The adequacy of reasons is not a matter of procedural fairness but rather an issue that may go to the reasonableness of the decision: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62. I have already discussed why I find the Minster’s decision to be intelligible, transparent, and reasonable.

[64] Nor was the Minister required to give notice to Mr. Stenlund of its policy interpretations. Both counsel agreed that in light of the factors set out in by the Supreme Court of Canada in Baker, if any process rights were due to Mr. Stenlund, they would be minimal in content.

[65] Given that Mr. Stenlund has no real input to make on the questions of interpretation of policy 1.1.8 or the government’s interpretation of Treaty Harmonization Agreements in light of its reconciliation goals, I agree with Ms. Parker that there was really nothing more the Ministry could do than keep Mr. Stenlund informed throughout as it did.

[66] Mr. Stenlund argues that the policies gave him a legitimate expectation that he would not be deprived of the trapline absent cause. That is, he argues that he should be entitled to renewal of his licence unless the Minister has cause to re-allocate the trapline. However, this is an argument for a change to the licence terms as set out in the regulation. As discussed above, the doctrine of legitimate expectations cannot be used to create substantive property rights. A legitimate expectation can only be used to inform procedural rights.

[67] From a procedural perspective, the question of whether Ms. Sitch’s evidence was adequate to meet policy 1.1.8 properly construed can be articulated as a factual and legal dispute in which Mr. Stenlund was interested. However, even if this is so, there is no suggestion that he had any ability to rebut the government’s historical documentation relied upon by Ms. Sitch. Similarly, as noted above, there is no basis to undermine the Minister’s approach to the assessment of ancestral trapping “in the area” rather than in the exact location of the trapline under policy 1.1.8.

[68] Even if formal process rights were lacking in this case, which I do not find, I would be inclined to exercise the discretion to refuse to grant judicial review in any event. I can envision cases where the evidence put forward could be less cogent than the formal, historical government documents relied upon in this case. Although the licencing decision remains one laced with policy considerations throughout, I do not wish to foreclose the possibility of the need for more procedural protections before a decision is made to undermine a head trapper’s reasonable expectations.

[69] Quashing the decision on procedural grounds in this case however will not have any practical effect. Judicial review will not be granted where doing so will be futile: Amalorpavanathan v. Her Majesty the Queen in Right of Ontario, Ministry of Health, 2013 ONSC 5415. Both the evidence and the interpretation finally adopted by the Ministry are unimpeachable. While the government made errors that caused understandable upset, the final decision was made as fairly as circumstances allowed. The cogency of the historical records, the efforts by the Ministry to keep Mr. Stenlund informed, the decision to give him seven months’ notice of non-renewal rather than cancelling his licence right away, and the offer of compensation in face of repeated reminders to Mr. Stenlund that he should not invest in the trapline, all bespeak positive efforts by the Ministry to do everything that it could to make up for the erroneous decision and initial mis-communication that it made. Borrowing a term from the court’s appellate jurisdiction, there is no substantial miscarriage of justice in upholding the decision. The outcome of the licencing process were it to be reconsidered is not in doubt.

Order

[70] The application for judicial review is therefore dismissed.

Costs

[71] The Ministry may deliver no more than five (5) pages of costs submissions by September 13, 2019. Mr. Stenlund may respond with no more than five (5) pages of submissions by September 30, 2019. Both sides shall deliver Costs Outlines. The parties may also deliver copies of any offers to settle on which they rely for costs purposes.

___________________________ Myers J.

I agree

Lafreniere J.

I agree

Williams J.

Date of Release: August 20, 2019

CITATION: Stenlund v Minister of Natural Resources and Forestry, 2019 ONSC 4889 DIVISIONAL COURT FILE NO.: DC-18-015-JR DATE: 201908**

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MULLINS, MYERS, and FAVREAU JJ.

BETWEEN:

DONALD DAVID STENLUND Applicant

– and –

THE MINISTER OF NATURAL RESOURCES AND FORESTRY Respondent

REASONS FOR JUDGMENT

F.L. MYERS J.

Date of Release: August 20, 2019

[^1]: In this decision I have borrowed the references to the Indigenous communities set out in the various statutory instruments, policy documents, contracts, letters, and other evidence delivered by the parties to which I am referring in making each reference.