CITATION: Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161

DIVISIONAL COURT FILE NO.: 282/20

DATE: 2022-10-14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, D.L. CORBETT and PENNY JJ.

B E T W E E N:

ASSOCIATION OF IROQUOIS AND ALLIED INDIANS, ATTAWAPISKAT FIRST NATION, CHAPLEAU CREE FIRST NATION, EAGLE LAKE FIRST NATION, FORT ALBANY FIRST NATION, MAGNETAWAN FIRST NATION, MOHAWKS OF THE BAY OF QUINTE, TEMAGAMI FIRST NATION, TEMEAUGAMA ANISHNABAI and WAHGOSHIG FIRST NATION Applicants

• and -

THE MINISTER OF THE ENVIRONMENT, CONSERVATION AND PARKS, THE MINISTER OF NATURAL RESOURCES AND FORESTRY and THE ATTORNEY GENERAL OF ONTARIO Respondents

Counsel: Kate Kempton, Kevin Hille, Nick Kennedy and Jacynthe Ledoux, for the Applicants Darrell Kloeze, Heather C. Mackay, Sarah Valair, Nadia Laeeque and Paul Kim, for the Respondents

HEARD at Toronto by video conference: May 17 - 20, 2021

REASONS FOR DECISION

D.L. Corbett J. (dissenting in part):

This Application

[1] The applicants claim that their rights under s. 35 of the Constitution Act, 1982 have been infringed by amendments to Ontario’s Environmental Assessment Act (the “EAA”) and by revocation of Ontario’s Forestry Regulation.[^1] They claim that the impugned legislation and the impugned revocation breach the Crown’s procedural obligations to the applicants by ignoring the Crown’s obligation to “consult with the public” as provided in the Environmental Bill of Rights (“EBR”)[^2] which, the applicants allege, is an “Environmental Magna Carta” that was intended to help protect Aboriginal and Treaty rights.[^3] The applicants further claim that the impugned amendments to the EAA create “an open-ended discretionary regime” within the new EAA, breaching their rights substantively.[^4] Finally, the applicants claim that they were entitled to be, and were not, consulted and accommodated in respect to revocation of the Forestry Regulation.[^5]

[2] On the first issue, I conclude that the applicants’ claims respecting the failure to comply with the EBR are precluded by this court’s decision in Greenpeace #2.[^6] On the second issue, I conclude that the applicants’ claims respecting amendments to the EAA are precluded by the Supreme Court of Canada’s decision in Mikisew Cree 2018[^7] and the discretion accorded the Crown to devise its processes for consultation and accommodation. Claims of substantive unconstitutionality are not within this court’s statutory jurisdiction. On the third issue, I conclude that the Forestry Regulation included accommodation measures implemented after extensive consultation with First Nations. I find that the Crown may not revoke material aspects of these accommodation measures without first consulting with First Nations and accommodating their affected interests, which was not done in this case.

[3] Therefore, for the reasons that follow, I would:

1. dismiss claims respecting alleged non-compliance with the EBR;
2. dismiss claims respecting impugned amendments to the EAA;
3. allow claims respecting revocation of the Forestry Regulation; and
4. grant the declaration requested by the Applicants in respect to the revocation of the Forestry Regulation.

This Court’s Decision in Greenpeace #2

[4] This application was heard together with applications in Greenpeace v. Ontario and Earthroots v. Ontario (“Greenpeace #2”). Our unanimous decision in these applications was written by my colleague Swinton J. I adopt the description of the statutory scheme of the EBR and the amendments to the EAA set out in the decision of Swinton J. at paras. 4 to 13 and 47 to 62.[^8]

This Application

[5] The issues raised in this application, as framed by the applicants, are as follows:

(i) Was Ontario’s decision to exempt Bill 197[^9] (omnibus legislation including the impugned amendments to the EAA) from public consultation under the EBR unreasonable?

(ii) Are amendments made to the EAA made through Bill 197[^10] inconsistent with the honour of the Crown and s. 35 of the Constitution Act?

(iii) Was Ontario’s revocation of the Forestry Regulation[^11] “unreasonable and unlawful”?

Jurisdiction and Standard of Review

[6] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act.[^12]

[7] Crown decisions as to whether there are duties to consult or accommodate are reviewable on a standard of correctness. The Crown’s assessments of the extent of these duties are generally questions of law, reviewable on a standard of correctness, because they define legal duties.[^13] Thus if the Crown misconceives the seriousness of a claim or the impact of an infringement, this will be reviewable on a standard of correctness.[^14] That said, “scoping” the duty to consult can involve questions of fact and, where it does, the Crown’s factual findings are reviewed on a standard of reasonableness.[^15]

[8] The “effect of good faith consultation may be to reveal a duty to accommodate.”[^16] The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness.[^17]

Principles Related to the Duty to Consult and Accommodate

[9] The Crown has a duty to consult in respect to the rights and interests of First Nations, which arises as part of the “process of honourable negotiation” required of the Crown by s. 35(1) of the Constitution Act, 1982.[^18]

The goal of consultations is vindication of First Nations’ rights and reconciliation with First Nations.[^19]

[10] Often, duty-to-consult cases have arisen in connection with specific proposals or projects within or affecting First Nations territories. Frequently, First Nations have raised concerns respecting (among other things) their capacity to participate in consultations, the “cumulative effects” of multiple projects, matters generally affecting the environment which may impact First Nations lands and interests, and general and consultation-specific funding to enable First Nations to participate effectively in consultations. It would be fair to say that courts have generally rejected claims by First Nations that they are entitled to be consulted in respect to changes to general environmental regulation and protection measures.[^20] Instead, courts have focused on whether the duty to consult arises and has been discharged in respect to specific projects.[^21]

[11] It is for the Crown to devise consultation processes to discharge its constitutional duties. The courts review these processes through the lens of whether the constitutional duty has been discharged in a particular case. Consultations may be undertaken separately from established processes, or the Crown may use “a forum created for other purposes [which] may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided.”[^22] Ontario has used “[fora] created for other purposes” for aspects of its past consultations with First Nations, three of which are implicated in this application: (i) the Environmental Bill of Rights, under which Ontario gives notice on the Environmental Registry of Ontario (“ERO”) and an opportunity to comment upon certain proposals that could affect the environment; (ii) the EAA and its regulations, pursuant to which certain undertakings that may affect the environment may be reviewed and assessed; and (iii) the Forestry Regulation, which applies to forestry management planning in Ontario.

[12] Haida Nation stated principles derived from the Constitution Act, 1982 and from the long history of dealings between the Crown and First Nations, stretching back long before the Constitution Act, 1982, and, indeed, before Confederation. This history, obviously, includes consultations and accommodations that took place before Haida Nation. This history provides context in which Crown obligations to First Nations arise.

[13] I adopt the following summary of principles summarized in this court’s decision in Saugeen First Nation v. Ontario (MNRF):[^23]

In 2004, in Haida Nation, a unanimous Supreme Court of Canada undertook the “modest task” of “establishing a general framework for the duty to consult and accommodate” rights and claims of First Nations. This new framework was a start, not an end, to analysis: in future cases “courts… will be called on to fill in details of the duty to consult and accommodate.”[^24]

The duty to consult arises as part of the “process of honourable negotiation” required of the Crown by s. 35(1) of the Constitution Act, 1982, which states[^25] that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”[^26]

“The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting those interests are being seriously pursued.”[^27] The duty to consult is a “valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose.”[^28] The goal of consultations is vindication of First Nations’ rights and reconciliation with First Nations.

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….”[^29] The Supreme Court rejected an “either/or” approach of “watertight compartments” and instead held that the “concept of a spectrum may be helpful” which is to be assessed by the Crown:

… [the] scope of duty is proportionate to a preliminary assessment of the strength of the case… and to the seriousness of the potentially adverse effect….[^30]

… Every case must be approached individually.[^31]

The duty to accommodate follows from the duty to consult and may not be excluded from the outset: “[t]he contemplated process is not simply one of giving the [First Nation] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along.”[^32] The level of consultation required may change over time as the process moves forward and new information comes to light.[^33]

“Consultation must be meaningful.”[^34] The Crown “must act with honour and integrity, avoiding even the appearance of ‘sharp dealing’.”[^35] On resonance:

[a]s 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….[^36]

There is “no duty to come to an agreement” and neither side is precluded from “mere hard bargaining”.[^37] And even where consultation and accommodation is reached in a particular case, all of this is placed within the broader context of reconciliation, which is not an atomistic event or series of events in isolation. “Reconciliation is not a final legal remedy in the usual sense. Rather it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982.”[^38] Thus consultation, and if necessary, accommodation, is part of a process of reconciliation: “[c]onsultation in some meaningful form is the necessary foundation of a successful relationship with Aboriginal people.”[^39]

These issues must be approached systematically and comprehensively; the government “may not simply adopt an unstructured administrative regime” in response to the Supreme Court’s conclusion respecting the duties to consult and accommodate.

Not every case involving the duty to consult is constitutional; the source of the duty is s. 35 of the Constitution Act,[^40] but there is a link between constitutional doctrine and administrative law principles.[^41] The nature of the consultation and the procedural fairness requirements must be “appropriate to the circumstances”.[^42] Use of “a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided.”[^43]

The evaluation of consultation and accommodation must be contextual. The “adequacy of what passed (or failed to pass) between the parties must be assessed in light of the role and function to be served by consultation on the facts of the case and whether the purpose was, on the facts, satisfied.”[^44] Thus “[t]here must be more than an available process: the process must be meaningful.”[^45] Therefore “[i]t cannot be said that offering [a First Nation] an opportunity to participate in fundamentally inadequate consultations preserves the honour of the Crown.”[^46]

This is not to say that the duty to consult arises in a historical vacuum. “[H]istorical context…” can be “essential to a proper understanding of the seriousness of the potential impacts…” of a proposed activity on a First Nation’s rights….[^47]

[14] The duty to consult arises when (i) the Crown has real or constructive knowledge of an actual or asserted s. 35 right; (ii) there is contemplated Crown conduct; and (iii) the contemplated conduct may adversely affect the Aboriginal claim or right.[^48]

[15] “Contemplated Crown conduct” is not confined to exercise of statutory powers and the “potential adverse effects” need not be immediate or direct. “Contemplated Crown conduct” can include “strategic, higher-level decisions” including, for example:

(a) transferring tree licences to cut old-growth forest,[^49]

(b) approving a multi-year forest management plan for a large area,[^50]

(c) establishing a review process for a major gas pipeline,[^51]

(d) conducting a comprehensive inquiry into a province's infrastructure and capacity needs for electricity transmission,[^52]

(e) negotiating an agreement in principle for a land claims settlement in an area subject to overlapping claims of First Nations rights,[^53]

(f) deciding boundaries of a conservation area where a First Nation has economic interests,[^54]

(i) funding a project that itself triggers a duty to consult where the funding increases the likelihood of approving the project.[^55]

[16] As stated by the Supreme Court of Canada in Carrier Sekani:

… high-level management decisions or structural changes to the resource’s management may also adversely affect Aboriginal claims or rights even if these decisions have no ‘immediate impact on lands and resources’ … because [they] may set the stage for further decisions that will have a direct adverse impact on land and resources.[^56] (emphasis in original)

[17] As noted by the British Columbia Court of Appeal in Kwakiutl First Nation v. British Columbia:

The evidence of adverse impact to the KFN was that the Decisions affected the regulatory regime in a manner that threatened to reduce the KFN’s ability to participate in decision-making that would have an impact upon its access to land, its exercise of hunting and fishing rights and the protection of cedar trees. In the circumstances, in my view, the KFN ought not to have been obliged to demonstrate any impact other than the reduction in its ongoing ability to affect policy. High-level decisions might be expected to have high-level effects. As the KFN argued, strategic-level decisions engage consultation with respect to how Aboriginal interests will be recognized and accommodated at the higher strategic level….

As the Court noted in Wii’litswx #1, consultation at the high level of forest planning is as necessary as consultation at the operational level to protect Aboriginal interests. In that case, Neilson J. (as she then was) noted at para. 163, that consultation at the operational level has not always been successful in minimizing the effect of logging on Aboriginal interests. At para. 186 she observed:

The Supreme Court of Canada in Haida and Taku has made it clear that meaningful consultation and accommodation at the strategic level has an important role to play in achieving the ultimate constitutional goal of reconciliation, and should not be supplanted by delegation to operational levels.[^57]

[18] On the other hand, the Supreme Court has been clear that it is for the Crown to devise the processes by which First Nations are consulted. Purely procedural changes to the manner in which consultations take place are not, themselves, subject to a duty to consult.[^58]

Mikisew Cree v. Canada (2018)

[19] The first two issues in this case turn on the Supreme Court’s 2018 decision in Mikisew Cree v. Canada,[^59] in which the court provided four sets of reasons.[^60] Karakatsanis J., writing for herself, Wagner C.J.C. and Gascon J., held as follows:

This Court must therefore answer a vexing question it has left open in the past: Does the duty to consult apply to the law-making process?

I conclude that it does not…. [T]he duty to consult doctrine is ill-suited to the law-making process; the law-making process does not constitute “Crown conduct” that triggers the duty to consult.[^61]

[20] For Karakatsanis J., the duty to consult does not apply to the legislative process. The end result of the legislative process – legislation – may be challenged. If it is, consultations taken in connection with the legislation may be taken into account:

For example, it may not be consistent with s. 35 to legislate in a way that effectively removes future Crown conduct which would otherwise trigger the duty to consult. I note that, in Ross River Dena Council v. Yukon, 2012 YKCA 14, 358 D.L.R. (4th) 100, the Yukon Court of Appeal held that “[s]tatutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist” (para. 37; see also Constitution Act, 1982, s.52(1)).

Other forms of recourse may also be available. For example, declaratory relief may be appropriate in a case where legislation is enacted that is not consistent with the Crown’s duty of honourable dealing toward Aboriginal peoples (see Manitoba Metis, at paras. 69 and 143). A declaration is available without a cause of action (ibid, at para. 143). Further, as this Court has previously held, declaratory relief may be an appropriate remedy even in situations where other forms of relief would be inconsistent with the separation of powers (see Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 2).

To be clear, legislation cannot be challenged on the basis that the legislature failed to fulfill the duty to consult. The duty to consult doctrine does not apply to the legislature. However, if other forms of recourse are available, the extent of any consultation may well be a relevant consideration, as it was in Sparrow, when assessing whether the enactment is consistent with constitutional principles. In Sparrow, this Court held that, when there has been a prima facie infringement of a s. 35 right, the “first consideration” in determining whether the legislation or action can be justified is the honour of the Crown (p. 1114). And an important part of that inquiry is whether the Aboriginal group in question was consulted on the impugned measure (Sparrow, at p. 1119; see also Badger, at para. 97; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at paras. 77, 80 and 125; Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010, at para. 168).[^62]

[21] However, the duty to consult does apply to subordinate legislation:

Finally, my conclusions respecting the duty to consult do not apply to the process by which subordinate legislation (such as regulations or rules) is adopted, as such conduct is clearly executive rather than parliamentary (see N. Bankes, “The Duty to Consult and the Legislative Process: But What About Reconciliation?” (2016) (online), at p. 5). Furthermore, this conclusion does not affect the enforceability of treaty provisions, implemented through legislation, that explicitly require pre-legislative consultation (see e.g. Nisga’a Final Agreement (1999), c. 11, paras. 30 and 31; Nisga’a Final Agreement Act, S.B.C. 1999, c. 2; Nisga’a Final Agreement Act, S.C. 2000, c. 7). Manner and form requirements (i.e. procedural restraints on enactments) imposed by legislation are binding (Hogg, at s. 12.3(b); see also R. v. Mercure, 1988 107 (SCC), [1988] 1 S.C.R. 234).

[22] Abella J. (writing for herself and Martin J.) disagreed with this core reasoning of Karakatsanis J.:

[I]n my respectful view, the enactment of legislation with the potential to adversely affect rights protected by s. 35 of the Constitution Act, 1982 does give rise to a duty to consult, and legislation enacted in breach of that duty may be challenged directly for relief.[^63]

[23] For Abella J., the duty to consult cannot be avoided by using legislation as a means to circumvent it:

The Crown’s overarching responsibility to act honourably in all its dealings with Indigenous peoples does not depend on the formal label applied to the type of action that the government takes with respect to Aboriginal rights and interests protected by s. 35 of the Constitution Act, 1982. As a constitutional imperative, the honour of the Crown cannot be undermined, let alone extinguished, by the legislature’s assertion of parliamentary sovereignty.

[24] Abella J. would reject an analysis that draws a distinction between the manner in which power is exercised and instead would focus on the effects of that exercise of power:

Because the honour of the Crown infuses the entirety of the government’s relationship with Indigenous peoples, the duty to consult must apply to all exercises of authority which are subject to scrutiny under s. 35. This includes, in my view, the enactment of legislation. Like the infringement analysis under Sparrow, the duty to consult does not discriminate based on the type of government action, but rather is triggered based on the potential for adverse effects.[^64]

[25] For Abella J., the honour of the Crown suffuses the relationship between the Crown and First Nations, and distinguishing between legislative and executive action cannot be a basis to preclude duties to consult:

Haida Nation established a new legal framework in which to understand the government’s obligations towards Indigenous peoples, organized around the principle of the honour of the Crown (Jamie D. Dickson, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada (2015), at p. 116). This is the overarching framework in which the duty to consult, and the obligation to justify infringements, must now be understood. Under the Sparrow analysis, government conduct could always be scrutinized for consistency with the honour of the Crown, including the duty of consultation, irrespective of whether that conduct was executive or legislative in nature. No longer confined to the justification context, the duty to consult now forms “part of the essential legal framework” of Aboriginal law in Canada (Little Salmon/Carmacks, at para. 69). Like the Sparrow inquiry, the duty to consult doctrine infuses the field of governmental action, requiring consultation wherever the potential for adverse effects on claimed or established s. 35 rights arises. (emphasis added)

[26] This is because it cannot be consistent with the honour of the Crown to “legislate away” the duty to consult by eliminating the exercise of executive and managerial decision-making in respect to interests impacting on First Nations:

As McLachlin C.J. explained, high-level management decisions or structural changes to resource management may set the stage for future decisions that will have a direct adverse impact on lands and resources, and leave Aboriginal groups with a lost or diminished constitutional right to have their interests considered (Carrier Sekani, at para. 47). This is itself an adverse impact sufficient to trigger the Haida Nation duty to consult and accommodate.[^65]

In Clyde River, the Court reiterated that relevant Crown conduct was to be defined based, not on its form, but on its potential for adverse impacts, at para. 25:

Crown conduct which would trigger the duty is not restricted to the exercise by or on behalf of the Crown of statutory powers or of the royal prerogative, nor is it limited to decisions that have an immediate impact on lands and resources. The concern is for adverse impacts, however made, upon Aboriginal and treaty rights and, indeed, a goal of consultation is to identify, minimize and address adverse impacts where possible (Carrier Sekani, at paras. 45-46). [Emphasis added by Abella J.][^66]

[27] Brown J. concluded that the reasons of Karakatsanis J. left open possible routes for judicial intervention in the legislative sphere. Brown J. rejected this analysis. For Brown J., “the Crown does not enact legislation. Parliament does. The honour of the Crown does not bind Parliament.”[^67] Brown J. saw the reasoning of Karakatsanis J. as an “engorgement” of judicial power, trenching on parliamentary privilege and the autonomy of Parliament within its own constitutional sphere.

[28] Rowe J. (writing for himself, Moldaver and Côté JJ.) agreed with Brown J. and explained why he found that a duty to consult in respect to legislation is so “ill-suited” to the legislative process as to offend basic principles of parliamentary democracy.

[29] The task of this court is to apply Mikisew Cree 2018. In my view, Karakatsanis and Rowe JJ. essentially agreed on the immediate issue before the court: the duty to consult did not apply to the enactment of the two omnibus bills at issue in that case. Brown J.’s approach would establish a “bright white line” around the legislative process. Rowe J. agrees with Brown J. on this aspect of the analysis. This leaves the seven judges endorsing the reasons of Karakatsanis, Brown and Rowe JJ. finding that the duty to consult did not arise in the circumstances of Mikisew Cree 2018, and it leaves them split (4:3) on whether the “door is left open a crack” in some situations, as described by Karakatsanis J. The remaining two judges disagree with their seven colleagues on both points.

[30] As I shall now explain, issues (i) and (ii) in the case at bar are indistinguishable from Mikisew Cree 2018. Issue (iii) is distinguishable from Mikisew Cree 2018 because it is based upon executive action rather than enactment of legislation.

[31] Finally, I would observe as follows about the use made of Mikisew Cree 2018 by the parties. Both sides quote from the case in their factums. Of course, anything written by a Supreme Court Justice in reasons from that court may be quoted as persuasive authority. In respect to Mikisew Cree 2018, no one set of reasons attracts support from a majority of the court. The decision in Mikisew Cree 2018 disposes of issue (i), largely disposes of (ii), and does not dispose of issue (iii). In respect to issue (iii), I have drawn principles from cases where a majority of the court has supported the principle, rather than passages from Mikisew Cree 2018 that have not attracted majority support.

Issues (i) and (ii)

[32] The applicants’ position on issues (i) and (ii) is summarize in their factum as follows (at paras. 3 and 4):

Environmental assessment laws are a key instrument of environmental protection. The Crown has control over the environmental assessment and protection laws in the Province, and Indigenous peoples depend on that protection. This relationship between the environment, Indigenous peoples, and the Crown is undermined – and the honour of the Crown sullied – when the Crown makes unilateral decisions that threaten environmental protection and the Indigenous rights that depend on it.

Substantively, the resulting amendments [to the EAA] undermine the Crown’s duty to consult, create unstructured and open-ended discretion as to what will be subject to environmental assessment, and narrow available review mechanisms and remedies.

[33] The applicants argue that “the environment” is fundamental to First Nations treaty rights. Environmental degradation and “impacts from infrastructure development” have had and will continue to have impacts on the “lands and waters” and “threaten [the] rights” of the applicant First Nations.[^68]

[34] The applicants argue that the substantive amendments to the EAA “undermine the Crown’s duty to consult” and “create unstructured and open-ended discretion as to what will be subject to environmental assessment” and “narrow available review mechanisms and remedies”. Another way to put this argument is as follows:

(a) the Crown has used environmental assessment as “a forum created for other purposes” for aspects of its consultations with First Nations.

(b) changes made to the EAA render the processes under that Act unsuitable or insufficient for the purposes of consultations with First Nations.

(c) no alternative consultation framework has been established by the Crown to replace the framework under the EAA for consultations with First Nations.

(d) in the result, all that remains for purposes of consultations with First Nations is “unstructured and open-ended discretion” which is insufficient for purposes of consultations.

(e) therefore, the Crown was obliged to consult with First Nations before making the changes to the EAA.

[35] The conclusion of seven judges in Mikisew Cree 2018 that the duty to consult does not apply to the legislative process is the controlling principle in this court.

[36] The factual basis of Mikisew Cree 2018 is set out in the Federal Court of Appeal decision in that case.[^69] The impugned legislation was “two omnibus bills that reduced federal regulatory oversight on works and projects that might affect… treaty rights to hunt, fish and trap.”[^70] Both bills were characterized as “modernization” measures, designed to reduce redundancy, “red tape”, and to encourage “jobs, growth and long-term prosperity.”[^71] The omnibus legislation replaced the Canadian Environmental Assessment Act and amended other pieces of related federal legislation.[^72]

[37] The extent to which the “door has been left open a crack” by the reasons of Karakatsanis J. need not be explored in respect to the applicants’ claim concerning the impugned amendments to the EAA. That claim is factually “on all fours” with the claims in Mikisew Cree 2018. This disposes of issue (ii): the Crown had no duty pursuant to s. 35 of the Constitution Act, 1982 to consult with the applicants before enacting the amendments to the EAA in Bill 197.

[38] The applicants argue that the impugned amendments are substantive violations of their s. 35 rights. This, the argument goes, places the case on a different legal footing than the claims rejected by the Supreme Court of Canada in Mikisew Cree 2018. There are several problems with this argument, not the least of which is that the applicants are in the wrong court to make that claim. Ontario argues that this court is “not well-suited for complex fact-finding required to consider the constitutional validity of enacted legislation.”[^73] I agree.[^74] But more fundamental than this, as argued by Ontario, the Divisional Court only has the jurisdiction that has been conferred on it by statute. A claim that the impugned amendments violate s. 35 of the Constitution Act, 1982 does not fall within the scope of the jurisdiction assigned to this court in s. 2(1) of the Judicial Review Procedure Act.[^75] Jurisdiction over these claims lies at the trial level of the Ontario Superior Court of Justice.

[39] I conclude, therefore, that there was no duty to consult in respect to the impugned amendments to the EAA. This conclusion respecting issue (ii) also disposes of issue (i). If there was no duty to consult, the failure to consult pursuant to the EBR cannot give rise to a claim under s. 35 of the Constitution Act, 1982. Alternative claims by the applicants that enactment of the EAA amendments violated the EBR are foreclosed by this court’s decision in Greenpeace #2. A direct challenge to the substance of the impugned amendments is not within this court’s jurisdiction. Thus the claims must be dismissed in respect to issues (i) and (ii).

Issue (iii): the Forestry Regulation

[40] Forest management on Crown lands in Ontario (an area covering 38.5 million hectares of forest) was examined comprehensively in hearings between 1988 and 1992 by the Environmental Assessment Board (the “EA Board” or the “Board”). Following the Board decision, the Crown Forest Sustainability Act, 1994 was enacted, and 115 conditions were imposed for a period of ten years. A process was established to review and update the conditions before the ten-year period expired. Following this process, Declaration Order MNR-71 replaced the EA Board conditions in 2003 and amended in 2007. MNR-74 was made in 2009. In 2015, MNR-75 was enacted to replace MNR-71 and MNR-74.[^76] MNR-75 is the “Forestry Regulation” and, as just described, was the result of processes going back to the 1980’s.

[41] The revocation of the Forestry Regulation was by Order in Council 981/2020 on June 25, 2020, and O. Reg. 337/20 on July 1, 2020. The effect of these instruments is to exempt forestry activities from environmental assessment requirements in a large part of Ontario, thus eliminating the prior regime that had developed over decades. It also removed MECP oversight, leaving responsibility for forestry issues solely with MNRF.[^77]

[42] In its factum, Ontario argues as follows:

Prior to the revocation of [the Forestry Regulation], forestry was the only natural resource managed by MNRF that was also subject to extensive oversight by MECP. Contrary to the assertions of the applicants, both MNRF and MECP have an “environmental protection mandate.” The purposes of the CFSA[^78] are to “provide for the sustainability of Crown forests and, in accordance with this objective, to manage Crown forests to meet social, economic and environmental needs of present and future generations”. “Sustainability” means “long term Crown forest health.”[^79] (Factum, para. 92)

Ontario argues that it is “streamlining” protection of forests by removing the oversight of MNRF by MECP. Ontario argues that this removes “duplication” and “redundancy” and that environmental protection of forests will not be compromised.

[43] I find that this “streamlining” is a repudiation of a key policy recommendation that was implemented in 1994 following extensive consultations with First Nations, and which was carried forward in successive revisions to the Forestry Regulation down to the time of revocation. This key provision was based on arguments by First Nations that MNRF had historically failed to take First Nations’ interests into account over a period of decades. MECP oversight over MNFR was implemented specifically to address longstanding and historic First Nations concerns. In revoking the Forestry Regulation, Ontario repudiated this accommodation measure, adopted after extensive consultation, without first consulting with First Nations. In my view, this was not consistent with the honour of the Crown and did not advance the process of reconciliation.

[44] Exploitation of Ontario’s forestry resources has been a source of conflict with First Nations for many decades. This conflict has included blockades, logging protests and other open conflict, as First Nations sought to protect old growth forests and wilderness areas. Many areas where forest resources had been harvested intensively were covered by treaties with or were traditional lands of Ontario’s First Nations.

[45] The applicants trace the genesis of the Forestry Regulation to the Timber Management Hearings held in the 1990’s. Those hearings were held, the applicants argue, because of developments going back at least to the mid-1970’s, including the start of clearcutting of northern forests in the 1960s – 1980s,[^80] the Berger Report,[^81] Ontario’s enactment of the EAA in 1975[^82] and Ontario’s Royal Commission on the Northern Environment (which was established in response to submissions of First Nations). The Royal Commission reported that “the northern environment, the people who live there and their communities, are extremely vulnerable to the impacts of large-scale resource development” and that they “do not have the capacity to influence the course of development.”[^83] Previously, resource planning “did not include the participation of the Indian people of the north or their resource use or gathering needs”.[^84]

Land and resource use planning was another major area investigated by the Commission. It has concluded that the land use planning exercise undertaken by the Ministry of Natural Resources is fundamentally flawed. The process did not include the participation of the Indian people of the north or their resource use or gathering needs. The resource production targets and allocation specified in the plans or guidelines were not subject to environmental assessment.[^85]

[46] Following this report, comprehensive hearings were held before the EA Board respecting Ontario’s forestry management practices. These hearings were held between 1988 and 1992 (the “Timber Management Hearings”) and culminated in a Report and Order from the EA Board.

[47] First Nations participated extensively in the Timber Management Hearings, as described by the applicants as follows:

… First Nations from across Ontario participated in four-and-a-half years of EA hearings on forestry management. They told their stories of dispossession from their ancestral forests, the destruction of their values in these forests, and the interference with the exercise of those rights, which had been guaranteed by the Crown in treaties. They told the EA Board about how their rights and capacity to function as peoples were taken from them. In short, they told the story of colonialism and how it had led to their dispossession from, and the despoliation of, their forests.

[48] The EA Board released its decision on April 20, 1994. In Chapter 10 of its Report, the Board set out its findings concerning the interests of First Nations. It began by noting the historical exclusion of First Nations:

… First Nations… should, but do not, have the same access to benefits of timber management planning as do other northern communities and forest users in the area of the undertaking. This exclusion has developed as a result of historical circumstances and ongoing uncertainty about the meaning and definition of Treaty and Aboriginal Rights.

[49] The Board quoted the evidence of Chief George Kakeway of the Lac Portage Band, who explained the unique position of his people in respect to forest management issues:

… we do not live in one place… our people are widely scattered, most living in small reserve communities on the lakes and forests. This is the main reason we are before this tribunal. We are the people who will be most directly affected by your decisions. Everyone else who is here can and will go elsewhere if they can’t get what they want from the forests.

The big corporations will invest their money in some other business, the recreationalists will find some other place to visit, the forest industry employees will move down the road if they lose their incomes. But we, the Ojibways, are not transients in the land for this is our permanent home.

If, as a result of these hearings, damage to our home is repaired, future damage is prevented and we are able to share some of the prosperities of the forest, then we will enjoy the benefits. If none of these happen, we will stay here. That is the difference between my people and all or most of the others who will come before this hearing. [emphasis in original]

[50] The Board’s report set out in detail:

(i) First Nations’ historical uses of the forests;

(ii) First Nations’ historic exclusion from timber management planning;

(iii) First Nations’ exclusion from economic and employment benefits of forestry activities;

(iv) some environmental impacts of forestry activities on First Nations, including declining wildlife and fish stocks.

[51] In its Report, the EA Board found as follows:

We are convinced by the evidence we have discussed in this Chapter that Aboriginal communities have historically been and are today excluded from sharing the social benefits accruing to non-native communities from the planning and conduct of timber operations in Ontario. (Chapter 10, p.372)

[52] The EA Board approved the Crown’s forestry program as a Class EA, and it imposed 115 mandatory conditions on MNFR.[^86] Three of these conditions were specifically to address First Nations’ interests, and the ability to request a “bump up” (so-called Part II requests) enabled First Nations to request an individual EA for a particular project – a request which, even when it did not succeed, could lead to MECP imposing further conditions for the project. Further, I accept the applicants’ position that many of the general conditions imposed by the Board protected First Nations rights indirectly, even where they were not structured solely to address those interests.

[53] In her expert evidence, Dr. Peggy Smith summarizes the effect of the revocation of the Forestry Regulation as follows:

The EA Board Decision [the Class EA Decision in 1994] set out in T&C 90 [Term and Condition #90 in the Decision] the requirement that MNRF incorporates all T&Cs for the Timber Management Class EA into the FMPM [Forest Management Planning Manual]. The Board’s Decision and its T&Cs – now included in DO75 [the Forestry Regulation] – was the only legal instrument that mandated specific and delineated content requirements for the FMPM. Of note, DO75 included content requirements with respect to forestry and Indigenous peoples. With DO75 now revoked, no legal instrument in Ontario mandates that the forestry regime contain any accommodation measures for First Nations or any First Nation involvement in forestry management and its outcomes.[^87]

[54] As the Supreme Court of Canada has noted, consultation with First Nations may take place through processes in which broader consultations and reviews are taking place. Where, as here, a complex, multi-party process is followed in which the interests of First Nations are but one of the many factors at play, it is nonetheless a form of consultation. Ontario was entitled to rely on this process to show that it had consulted with and considered the interests of First Nations in formulating forestry policy in Ontario. First Nations were entitled to rely, in turn, on that process and its outcome, and to expect that Ontario would follow through with its accommodation of First Nations interests in a manner consistent with the honour of the Crown.

The Deeper Historical Context

[55] This history should be placed in the broader context of these issues dating back to the 19th Century. There is a “legacy of mistrust” between First Nations and MNRF. In her expert evidence, Dr Smith traces this history back to the Supreme Court of Canada’s decision in St. Catharines Milling[^88] following which Ontario moved ahead with resource development plans without paying much (if any) regard to affected First Nations interests:

The courts had essentially removed Indigenous peoples from the path of Ontario’s economic progress.[^89]

[56] The applicants, in their evidence, trace the development of mistrust of MNRF through multiple events from the late 19th Century down to the present. I do not find it necessary to review this evidence in detail here, since the history of neglect and disregard of First Nations by MNRF, going back to the 19th Century, and resulting distrust and strained relations, was acknowledged by MNRF in its submission to the Ipperwash Inquiry in 2005:

It is acknowledged that the historical policies and practice of provincial and federal governments have resulted in disenfranchisement and displacement of Aboriginal people from their lands and traditional practices in Canada. Prior to 1982, court decisions continued to support these policies and were repeatedly decided in favour of governments and the guiding policy of the day.[^90]

[57] From the perspective of First Nations, MNRF was a forestry proponent, an agent of the Ontario government that had historically and consistently overlooked and subordinated First Nations’ interests. As Dr Smith put it:

[The Forestry Regulation]… was a very important step in a new direction – one that better respected First Nations and their rights and connections to the forests and need to help protect, manage and benefit from them. [The Forestry Regulation] included MECP oversight over MNRF which helped with strained relations between MNRF and First Nations and contained several terms and conditions that mandated First Nations involvement in forest protection, management and benefit. While not perfect, it took Ontario in the right direction for the first time in regard to forest laws.[^91]

[58] MECP oversight was implemented expressly to address these longstanding grievances with the role and conduct of MNRF. It followed extensive consultations with First Nations. I find that this oversight was established to engender greater confidence among First Nations that Ontario would honour its commitments to them, that substantive decisions affecting First Nations would be more likely to take account of their interests, and that First Nations would have clear paths through which they could voice their concerns over matters affecting their interests in Ontario’s Crown forests. Based on these conclusions, I find that MECP oversight of MNRF’s management of Ontario’s Crown forests was a “strategic high-level decision” taken expressly to accommodate First Nations’ interests and concerns, in furtherance of the process of reconciliation.

[59] Ontario, in its Discussion Paper about the overall “moderniziation” policy, wrote this about forestry management:

REDUNDANCY WITH PROVINCIAL PROCESSES

The Environmental Assessment Act is almost fifty years old, and since it was enacted, other processes have been put in place that may duplicate requirements for projects subject to the Act. Some examples are described below.

Forest Management

[The Forestry Regulation]: Environmental Assessment Requirements for Forest Management on Crown Lands in Ontario outlines the environmental assessment process that must be followed to conduct forest management activities on Crown Land.

Since the [Forestry Regulation] was created, the [MNRF] has developed policies and procedures, directives and programs to help protect Crown land. Some of these policies and procedures may now be duplicative with what is required under the [Forestry Regulation].[^92]

[60] One person’s “redundancy” is another person’s “oversight”. Removing this oversight, without consultation, on the basis that MNRF does not need MECP oversight – is a repudiation of the basis on which the oversight was established. Ontario stated that it was taking this step to promote economic recovery – a justification offered for the expedited schedule and use of omnibus legislation – which, for First Nations, included an echo of the basis on which Ontario and MNRF have historically neglected First Nations interests: enhanced prosperity was the historic basis for ignoring obligations to First Nations. I find that consultation with First Nations was required before the decision was taken to implement this measure, and the economic prosperity argument served to underscore Ontario’s failure to discharge its obligation to consult and accommodate.

The Importance of Forestry Management to First Nations

[61] I quote from Chief Aleck Paul, as related to Hudson’s Bay Company manager Frank Speck, back in 1905:

When the white people came they commenced killing all the game. They left nothing on purpose to breed and keep us the supply, because the white man don’t care about animals. They are after the money. After the white man kills all the game in one place he can take the train and go three hundred miles or more to another and do the same there. But the Indian cannot do that. He must stay on his own section the whole time and support his family on what it produces,

… What we Indians want is for the Government to stop the white people killing our game, as they do it for sport and not for support. We Indians do not need to be watched about protecting the game; we must protect the game or starve. We can take care of the game just as well as the game warden and better, because we are going to live here all the time.[^93]

[62] The centrality of forests to northern Ontario First Nations’ culture, economy and way of life is beyond dispute.[^94] Over and over again, this has been explained to industry and government, in submissions, publications, testimony and consultations. Incursions into the forests – for industry, tourism, infrastructure development, and territorial expansion, has reduced the range of unsullied forests in the north. For the applicants, it has been, and is, the death of their way of life by a thousand cuts.

[63] When the applicants are consulted, they are clear that their concerns about the overall approach to environmental management, development, and stewardship of the land, have been unheeded, not for months and years, but for decades. The grievances are old, longstanding, and real.[^95]

The Temagami First Nation originally was known, before colonial government interference, as Teme-Augama Anishnabi and was an autonomous and self-governing people who lived in harmony with each other and the land.

Following the creation of the Indian Act in 1876, the Indian Agents sent by the Federal Government began separating our people into status and non-status Indian peoples (but more often referred to as Indians and Half-Breeds). For the first time our people were split into different categories defined by an external government which gave gifts and presents to some, and not to others. The colonial government created an Indian Band and designated who would be the members. This same government caused great hardship through the acts of flooding, timbering; encroachment on family lands for commercial purposes; prohibitions on trapping; fishing and moose hunting; and even restrictions on cutting firewood. The introduction of the Education Act meant families had to live in a community environment, so children could attend schools. This was a change in the core lifestyle of living from the land on a fulltime basis.[^96]

Over the last hundred years, with the advent of “scientific” resource management the capture of knowledge in educational institutions and of industrialization, Europeans forgot and ignored our knowledge and skills. Our skills and knowledge are not science and numbers but stories and experience on our territory.

We have seen the devastating cumulative effects and damage to our territory by these “scientific” management regimes. New management regimes need to be developed that would be based on the respectful inter-action of “science” and traditional knowledge.[^97]

[64] Chapleau Cree First Nation participated in the Class EA that led to the Forestry Regulation. Chief Keith Corston of the CCFN put it this way in his affidavit:

Chapleau Cree First Nation considers Declaration Order 75 [the Forestry Regulation] as a commitment that the Crown must follow, that remains to be fulfilled by the Crown. We believe that the conditions of [the Forestry Regulation] had the potential to provide true opportunities for First Nations to be meaningfully consulted and accommodated with respect to forestry activities. However, the promise remains unfulfilled. Accommodation includes measures to mitigate impacts that cannot be fully prevented, and measures to provide benefits to at least offset the impacts that remain (and in forestry there are many).

Despite its imperfections, our First Nation used the mechanism in [the Forestry Regulation] before it was revoked. It was Chapleau Cree’s experience that these processes did not go far enough, as we were too often treated as stakeholders and not peoples with governments, governing our rights and territories.[^98]

[65] Similar evidence was provided by Chief Arnold Gardner of the Migisi Sahgaigan (Eagle Lake) First Nation:

The Crown’s implementation of [the Forestry Regulation] to date has been lacking. However, I viewed [the Forestry Regulation] as a promise that remains unfulfilled” It had the potential to advance the ability of First Nations to benefit from forestry activities in their traditional territory. We expected progress to fulfill its promise to move ahead in 2020; we certainly did not foresee moving backwards, which is how we view the effect of the revocation of [the Forestry Regulation].[^99]

[66] Dr Smith put it as follows:

The Timber Management Class EA and the Board Decision – now DO75 (the Forestry Regulation) – was a very important step in a new direction – one that better respected First Nations and their rights and connections to the forests and need to help protect, manage and benefit from them. [The Forestry Regulation] included MECP oversight over MNRF which helped with strained relations between MNRF and First Nations and contained several terms and conditions that mandated First Nations’ involvement in forest protection, management and benefit. While not perfect, it took Ontario in the right direction for the first time in regard to forest laws.[^100]

[67] For the applicants, this issue is part of “the longstanding struggle for justice that is related to their rights”[^101] in and to their traditional lands. “It was very important” for the applicants “that the MNRF, and license holders, were subject to the requirements of [the Forestry Regulation] and the external scrutiny and review” of the MECP.[^102] MECP oversight had practical effect for First Nations: for example, MECP added six conditions to an MNRF approval of the Wabigoon Forest 2019-2029 Forest Management Plan in April 2019.[^103]

[68] I accept the applicants’ evidence that they have relied on existing processes under the EAA and notices given under the EBR in order to receive notice of and raise issues about environmental matters that they believe affect their important interests in treaty lands and traditional territories.[^104] I also accept that some members of First Nations believe they have been deprived of notice and an opportunity to comment upon specific matters of interest to them: see, for example, affidavit of Charles Hookimaw, paras. 12-13.[^105] As Chief David Nagokee put it in his affidavit:

… because of our experience with development in our traditional territory to date, we are deeply concerned about any changes to the environmental assessment processes. These processes are critically important as the main vehicle for consultation and accommodation. If the Ontario government anticipates making changes to these regimes, we expect to be consulted and accommodated accordingly.[^106]

[69] Ontario’s stated intention was to “modernize” environmental protection laws in Ontario, a “made in Ontario” approach to environmental oversight that was the first major overhaul of environmental oversight since the EAA was enacted almost fifty years ago.[^107] As described by the Province in its Discussion Paper, this was a major policy initiative, a reform of a broad range of processes.

[70] This point cannot be understood in isolation. It is an aspect of the fundamental divide in understanding that lies at the heart if the reconciliation process. First Nations are not mere “stakeholders” in the forests in their traditional territories. They do not consider that they have “surrendered” their lands in exchange for some money and limited rights to continue to live on the land. They consider themselves sovereign, and that treaties and agreements go no further than providing for “sharing” of responsibility for land management.[^108] Ontario does not accept that First Nations have shared “sovereignty” over Crown forests in Ontario. However, the disagreement on this point lies at the very core of the process of reconciliation.

[71] The disagreement on the issue of “sovereignty” and shared responsibility underscores First Nations’ claims that they are entitled to be consulted on matters of general environmental regulation.[^109]

The exercise of our ancestral and treaty rights depends on the quality of the environment and on the existence of robust processes to ensure its protection.[^110]

[72] It would be a mistake to see the “sovereignty” issue as a purely political or legal disagreement. It reflects underlying substantive grievances that are very real. Historic and continuing degradation of air and water quality in and near First Nations communities have been well documented.[^111] When Ontario implemented MECP oversight, it did not acknowledge “shared sovereignty” over Crown forests. But it did give First Nations some recourse to reduce the risk of recurrence of the historic indifference shown to their interests by MNFR.

Post-Revocation Evidence

[73] The applicants’ concerns are not theoretical.

[74] Forests are divided into “Forestry Management Units” in respect to each of which a separate “Forest Management Plan” is developed. These Plans are stated to apply for ten-year periods. One such plan development – for the Timiskaming Forest Management Unit - was underway when the revocation of the Forestry Regulation took effect. Temagami First Nation (“TFN”) participated in this planning process initially when the Forestry Regulation was in effect. On the basis of the terms of the Forestry Regulation, TFN pressed Ontario to provide greater economic opportunities, and to establish objectives and measurements for assessing progress in moving towards forest management goals. TFN’s reliance on the Forestry Regulation in its engagement with Ontario and with industry in respect to the Management Plan for 2021 – 2031 was expressly based on the terms of the Forestry Regulation:

Declaration Order MNR-75 [the Forestry Regulation]: Environmental Assessment Requirements for Forest Management on Crown Lands in Ontario

This Declaration Order outlines the environmental assessments process that must be followed when planning forestry on Crown land to ensure that potential environmental effects and public and aboriginal input are considered before forestry operations begin.

It does not state that the Planning Author and OMNRF “get to choose” to follow the Terms and Conditions, it states that the terms and conditions must be followed before forestry operations begin.

Term and Condition 56 is one of the conditions that must be followed.

Negotiations with Aboriginal Peoples

56. MNRF District Managers shall conduct negotiations at the local level with Aboriginal peoples whose communities are situated in a Management Unit in order to identify and implement ways of achieving a more equal participation of Aboriginal peoples in the benefits provided through forest management planning. These negotiations will include, but are not limited to, the following matters:

a. providing job opportunities

b. supplying wood to… facilities… in Aboriginal communities

c. facilitation of Aboriginal third-party licence negotiations…

d. development of programs to provide jobs…

e. other forest resources… which can be addressed in the forest management planning process.[^112]

[All emphasis in original]

[75] TFN received responses from Ontario and from a forestry proponent[^113] (Timiskaming Forestry Alliance), taking the position that the issues raised by TFN were “out of scope” of the forestry management process. Such a conclusion – in TFN’s view – could only be justified because of the revocation of the Forestry Regulation. Further, the disengagement of MECP as an overseer of the MNRF in respect to timber management had – in the eyes of TFN – cast MNRF back into its former role as a proponent of the forestry industry rather than a custodian of Ontario’s forests also charged with ensuring respect for First Nations’ interests. The bottom line of these responses could not have been clearer to TFN: crucial forest management issues, ordered to be part of the process of consultation with First Nations, would now not be addressed. What had been given as an accommodation to First Nations in the Forestry Regulation was taken away unilaterally and without consultation.

[76] Chapleau Cree First Nation provided evidence of its reliance on MECP oversight. As recently as March 2020, it sought an individual environmental assessment, or alternatively that MECP impose additional conditions respecting the Gordon Cosens Forest Management Plan. MECP rejected these requests, and judicial review of that decision is pending in this court.[^114] Included in MECP’s response is the following, addressing concerns raised by Chapleau Cree about revocation of the Forestry Regulation:

Concerns were also raised with respect to the proposal to revoke [the Forestry Regulation] and to make a regulation exempting forestry management planning activities from the application of the Environmental Assessment Act. The decision on the revocation of [the Forestry Regulation] and the exemption are within the Minister’s and the Cabinet’s purview and were subject to a separate public consultation process that was undertaken by the MNRF and the ministry. If you have not already submitted the First Nation’s concerns with respect to that proposal, I would encourage you to do so as that consultation process has concluded.[^115]

Ontario’s Arguments

[77] Ontario argues that the revocation of the Forestry Regulation was reasonable because:

(a) the decision did not give rise to a duty to consult with First Nations but consultation was undertaken anyway;

(b) any consultation owed was on the lower end of the spectrum; and

(c) the consultation conducted was adequate and satisfied the duty to consult.[^116]

I would not accept these arguments.

(a) There Was A Duty to Consult

[78] Ontario argues that, in changing the legal regime for oversight of Ontario’s forests, Ontario has not made a decision that will impact on First Nations rights. It argues that First Nations “must demonstrate both a ‘causal relationship’ between the proposed Crown conduct and a claimed s. 35 right and, critically, an appreciable and current potential to adversely impact this right.”[^117]

[79] For the reasons given above, I have concluded that there was a duty to consult respecting revocation of the Forestry Regulation. The revocation undid an important accommodation measure and was in respect to a “high-level management decision or structural changes to [a] resource’s management.”[^118]

(b) Scope of the Duty to Consult

[80] Ontario argues that “any consultation owed was on the lower end of the spectrum.” I note two points about this argument. First, Ontario did not identify a duty to consult and then scope that duty “at the lower end.” There is nothing in the record to suggest that Ontario considered that it had a constitutional duty to consult with First Nations about any of the changes it made in connection with its “modernization’ of environmental protection measures in Ontario law.

[81] In the ordinary case, Ontario is required to advise First Nations that it has identified circumstances where the duty to consult arises, and to advise First Nations of the scope of the duty in the particular circumstances. It is only in this way that First Nations can provide evidence and submissions respecting the correct scoping of the duty. Here, that was not done, and so Ontario was not provided with the wealth of evidence laid before this court that bears on the proper scoping of the duty to consult. Nowhere in Ontario’s record of evidence is there acknowledgment of the history that led to MECP oversight of MNFR forest management, the extensive participation of First Nations in the adoption of that policy by Ontario, and the symbolic and practical importance of that oversight to First Nations. If Ontario had told First Nations that it considered that the duty to consult arose, but that it had scoped it at the “lower end of the spectrum”, then First Nations would have had a chance to address this fundamental misunderstanding and Ontario would have had a chance to revise its “scoping” of the duty. None of that happened.

[82] Failure to give notice that the duty is engaged, and of Ontario’s scoping decision, is not necessarily fatal to the consultation process. Where Ontario, in good faith, considers that the duty does not arise, but engages in consultations anyway, the court will assess the substantive adequacy of the consultations against a correct scoping of the duty. But no deference is made to an ex post facto scoping decision where First Nations have not been told about it and given an opportunity to address it with Ontario.

[83] In my view it is obvious that Ontario did not consider that the duty to consult arose and did not scope the duty at the time. Its argument about the correct scope of the duty is made ex post facto, in light of the steps it took to engage with the public, including First Nations. No deference is owed to Ontario’s factual findings in this context, and its scoping decision is reviewable in this court on a correctness standard based on this court’s factual findings on the record before this court.

[84] I find that the duty to consult in this case is not on the “lower end of the spectrum” and requires Ontario to obtain and consider information from First Nations, and not to merely give notice to First Nations of what it is going to do. I would not go further than this in identifying the required scope of consultations. Moving forward, it would still be Ontario’s task to scope the duty, and to re-evaluate that scope based on new information that comes to its attention during consultations. However, on the information before this court, I would find that affected First Nations are entitled to reasonable notice, an opportunity to make submissions, reasonable resources for professional support to make their submissions, and principled responses to their legitimate concerns.

(c) Consultations Were Inadequate

[85] Ontario relies on a broad range of public engagement respecting its overall modernization initiative that pre-dates Bill 197. In my view, these prior public consultations are primarily context for considering Ontario’s dealings with First Nations in respect to revocation of the Forestry Regulation.

[86] These initial consultations are described in detail in paras. 79-82 of Ontario’s factum, and include:

(i) Posting on the ERO a document entitled ‘Preserving and Protecting our Environment for Future Generations: A Made in Ontario Environment Plan” on November 29, 2018;

(ii) Posting a document entitled “Modernizing the Environmental Assessment Program” on the ERO on April 25, 2019;

(iii) Notifying First Nations about (ii) on April 30, 2019, and advising there would be webinars to provide an overview of (ii); and

(iv) Introducing Bill 108 in the House on May 2, 2019 [which Bill passed three readings and received Royal Assent on June 6, 2019] and holding 11 webinars (“information sessions”) between enactment and Royal Assent.

Bill 108 is not challenged in this application. The steps described above are public engagement about the government’s general plans. They are not directed at revocation of the Forestry Regulation. They give notice to First Nations – as they do to Ontarians generally – of a broad policy initiative, but they do not constitute anything more than general context for the revocation of the Forestry Regulation and Bill 197.

[87] Ontario relies on the following as constituting consultation respecting revocation of the Forestry Regulation:

(a) Notice on December 2, 2019 to First Nations (among others) that Ontario had developed a “draft FSS” respecting changes to Ontario’s forestry management regime, and advising that the draft would be posted to the ERO;

(b) Posting of a draft FSS on the ERO on December 4, 2019;

(c) Letters to First Nations sent between December 11 and December 20, 2019;

(d) An offer of an explanatory presentation in early 2020;

(e) Posting of the proposed revocation on the Environmental Registry between December 20, 2019 and February 18, 2020; and

(f) Extension of the Environmental Registry comment period to March 13, 2020.[^119]

(g) Discussion Paper (July 8, 2020).[^120]

(h) Information Bulletin posted on the ERO on July 8, 2020 setting out the government’s explanation why it concluded that consultation respecting amendments to the EAA in Bill 197 was not required.[^121]

(i) Six informational webinars held July 16 and 17, 2020, respecting the Discussion Paper.[^122]

(j) Presentation entitled “Modernizing Ontario’s Environmental Assessment Program” given out at the information sessions on July 16 and 17, 2020.[^123]

[88] Steps (a) and (b) above did not give notice of the proposed revocation of the Forestry Regulation. They did refer – generally – to “reducing the regulatory burden of forest management.” I find that these steps did not give notice of or commence consultation in respect to revocation of the Forestry Regulation.

[89] Steps (c), (e) and (f) gave notice of the proposed revocation, but the effectiveness of this notice is highly questionable. The materials included in these steps were voluminous, complex, and in places couched in generalities. The scope of the changes was vast, most of the changes were insulated from the duty to consult because of Mikisew Cree 2018. With limited resources, First Nations were faced with responding to the entirety of Ontario’s plans without any indication from Ontario that the constitutional duty to consult in respect to some aspects of the plans had arisen.

[90] I also accept the applicants’ position that enactment of Bill 197 was “rushed” and arose from an ongoing policy initiative going back to 2018 rather than as a response to COVID-19.[^124] I accept that First Nations were given notice of these changes (in some respects very little notice), but there were no meaningful consultations, no resources were provided to First Nations to facilitate their participation in consultations, and little more than general assurances were provided that First Nations interests would be addressed appropriately under Ontario’s new environmental regime. Given the historical context in which these matters arise, it is no surprise that the Applicants’ response has been as summarized in a letter from Chief Leo Metatawbin of the Fort Albany First Nation:

We take changes to the EAA very seriously, particularly when they are clearly intended to facilitate an economic development agenda that includes mining and related projects in our ecologically delicate and culturally sacred muskeg homelands. These developments may have catastrophic effects on the environment and our rights, and robust assessment and consultation processes are vital.

We call on the Government of Ontario to repeal the EAA provisions in Bill 197, and work with Treaty partners to design a more appropriate process for review of the EAA that has the principles of robust environmental protection, respect for Indigenous rights, and public engagement at its heart.[^125]

[91] First Nations did not respond to the proposed revocation within the comment period, not because they did not care about it or consider it important, but because they were overwhelmed and did not focus on the Forestry Regulation. As set out in the schedules to Ontario’s factum, the modernization initiative involved amendments to more than a dozen pieces of legislation, and those amendments contained within them amendments to many other enactments. Simply understanding what the changes were required substantial work and professional advice.

[92] First Nations have given evidence that they did not understand what the government was planning to do in respect to the Forestry Regulation. For example, Temagami First Nation’s Lands and Resources Director, Robin Koistinen, explains as follows:

(a) the letters to First Nations were sent on the day before the Christmas holidays. It was 29 pages long and raised numerous issues of interest to First Nations.

(b) TFN’s Lands and Resources Office receives “up to 100” requests for consultation every year from government and industry and has insufficient resources to manage this load of consultation requests.[^126] This volume of work is typical for First Nations in the north.

(d) In ongoing dealings with Ontario and industry over a proposed Forest Management Plan for 2021-2031, TFN wrote in February 2020 in reliance on the Forestry Regulation, quoting at length from it and complaining that it was not being followed. This submission is inconsistent with TFN understanding that the Regulation was about to be revoked.[^127]

[93] Grand Chief Joel Abram summarizes the larger process issues in his affidavit at paras. 27-46. In November 2018, Ontario released its new “Environment Plan” with the express goal of “modernizing Ontario’s environmental assessment process.” A discussion paper was released in April 2019 followed by three omnibus bills:

(i) Bill 108 (More Homes, More Choice Act, 2019);

(ii) Bill 132 (Better for People, Smarter for Business Act, 2019); and

(iii) Bill 197 (COVID-19 Economic Recovery Act, 2020).

In addition, regulatory amendments to Class EAs were promulgated in 2020. The issues raised in this application are a small subset of the issues confronting First Nations as a result of this revision of environmental regulation in Ontario.[^128]

[94] Grand Chief Abram describes the challenge for First Nations in addressing so many issues of importance to First Nations, in such a short period of time, with such limited resources, and no consultation process:

The scope and extent of the amendments to Ontario’s environmental protection regime since 2018 is overwhelming and highly preoccupying for AIAI First Nations.

These sweeping unilateral initiatives imposed by the Crown on AIAI First Nations were done without any Nation-to-Nation engagement and without analysis of the potential impacts of the gutting on the exercise of our ancestral and treaty rights.

It is impossible for AIAI to comment on every change that the government introduces. AIAI tries to comment on important amendments, but we have been afforded little time and no resources by the Ontario government, so it has become impossible to respond to many legislative and regulatory changes.

AIAI First Nations did not get any resources or capacity funding from Ontario to meaningfully participate in any processes about all of these legislative and regulatory changes.

Introducing this huge number of amendments to the environmental protection and assessment regimes in Ontario in such a short period of time – and in the midst of a pandemic that impaired our capacity – makes it nearly impossible for AIAI and its member First Nations to respond adequately or to navigate the constantly changing system of environmental protection in Ontario. It is like a swift current or constantly shifting sands.

Unilaterally reducing the scope of environmental assessments oversight and not allowing for independent assessment of the impact of projects thereby limiting the ability of First Nations to monitor and assess the impacts of the projects on their territories and communities. Without any environmental assessment being triggered, consultation and accommodation obligations are not triggered either and First Nations constitutionally protected rights are thus more likely to be infringed.

… The changes are being made rapidly, without our input and without any assistance for us to understand and manage them.[^129]

[95] Similar evidence was given on behalf of the other applicants.[^130]

[96] I would find that Ontario’s public engagement respecting its modernization initiative did provide formal notice to First Nations of its general plans, but insufficient notice to enable First Nations to understand the nature, extent and import of those plans, or to respond to them systematically and meaningfully. On this basis, I would find that Ontario did not provide meaningful substantive notice of its general plans to First Nations. In respect to revocation of the Forestry Regulation, I would find that Ontario gave formal notice to First Nations of its intention to revoke the regulation, but that this notice failed to give First Nations substantive notice, because it was included in such a vast array of proposed changes of importance to First Nations that First Nations failed to identify and pursue the proposed revocation. I would find that, given the resource limitations under which First Nations are operating, the failure of formal notice to give substantive notice was not the fault of First Nations.

[97] Finally, I would find that bare notice was not sufficient to discharge the duty to consult in this case. Where formal notice fails to give substantive notice, the notional opportunity to provide comments is illusory.

Subsequent Communications

[98] After it was enacted, First Nations responded to Bill 197 by taking the position that they had not been consulted, they were entitled to be consulted, and the “modernization” of environmental assessment law had the effect of stripping away the very processes that had been established to consult with them. Ontario’s response, in the form of a letter from the Minister of MECP, was as follows (in summary):[^131]

(a) the Government is taking a “phased approach” to its modernization plans;

(b) Bill 197 is one step in a “larger… initiative.”

(c) there was “direct outreach” and ‘an opportunity for feedback at that time.”[^132]

(d) then Bill 197 was introduced and First Nations were given information about it and “an opportunity to ask questions and express concerns.”[^133]

(e) Ontario would “soon be consulting” about proposed Regulations the enactment of which was enabled by Bill 197.

The Minister then concluded his letter with the following statements:

My ministry takes the duty to consult seriously and is committed to consulting with Indigenous communities prior to making any decisions or taking action that could adversely impact Aboriginal treaty rights.

My ministry will work with communities to facilitate their participation in the consultation process for the development of implementing regulations….[^134]

[99] Development of the Forestry Regulation followed 4.5 years of public hearings. The EA Board’s Final Report was delivered some two years later, after considering the evidence at those hearings. Of course, the province does not have to follow such a lengthy deliberative process when it wishes to change its environmental protection laws or the principles by which it manages Crown Forests. But, comparing the process followed forty years ago with the process that swept away the protections for First Nations set out in the Forestry Regulation, it should surely be obvious why substantive notice and an opportunity to make submissions should have been the minimum steps required to discharge the Crown’s duty to consult in this case.

[100] It is no answer, in my view, that the Minister has said Ontario will “soon be consulting” about proposed Regulations to be enacted under the revised environmental protection regime. Such future consultations could, of course, cure some of the damage done by the failure to discharge the duty to consult before revoking the Forestry Regulation. But the promise of future consultations does not change the conclusion that Ontario failed to discharge its constitutional duty to consult before revocation.

Disposition and Costs

[101] For these reasons, I would

1. dismiss the claims respecting alleged non-compliance with the EBR;
2. dismiss the claims respecting the impugned amendments to the EAA;
3. allow the claims respecting revocation of the Forestry Regulation; and
4. grant the declaration requested by the Applicants in respect to the revocation of the Forestry Regulation

D.L. Corbett J. (dissenting in part)

Swinton J.

Overview

[1] I concur with Corbett J. on the disposition of the first two issues in the application for judicial review – that is, those respecting the Environmental Bill of Rights and the amendments to the Environmental Assessment Act (“EAA”). However, I part ways with him on the third issue concerning the revocation of Declaration Order MNR-75. In my view, the Crown did not have a constitutional duty to consult on this issue pursuant to s. 35 of the Constitution Act, 1982. However, if I am wrong and there was a duty to consult, the duty was at the low end of the spectrum, and the consultation that occurred was adequate. Accordingly, I would dismiss the application for judicial review in total.

The Factual Background

Forest Management in Ontario

[2] Forest management on Crown lands in Ontario is regulated pursuant to the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25 (“CFSA”), regulations made under that Act, and the four regulated manuals mandated under s. 68 of the Act and approved by the Lieutenant Governor in Council (“LGIC”) pursuant to s. 69 of the Act. Section 1 of the Act sets out the purpose of the CFSA and includes an obligation to manage forests to meet environmental as well as other needs:

The purposes of this Act are to provide for the sustainability of Crown forests and, in accordance with that objective, to manage Crown forests to meet social, economic and environmental needs of present and future generations.

[3] Crown forests are divided into units. Each unit must have a forest management plan, prepared in accordance with the Forest Management Planning Manual, and the plan must be approved by the Minister of Natural Resources and Forestry (“MNRF”). The Crown acknowledges that there is a duty to consult with affected Indigenous communities in the process of creating such plans.

[4] Prior to July 1, 2020, forest management on Crown lands was subject to the EAA. “Declaration orders” can be made pursuant to s. 3.2 of that Act. It permits the Minister of the Environment, Conservation and Parks (“MECP”), subject to the approval of the LGIC, to declare that the EAA or a matter provided for under the EAA, does not apply to a proponent, class of proponents, undertaking, or class of undertakings, subject to conditions in the declaration order.

[5] MNR-75 applied to an “Area of the Undertaking” that included a large part of Ontario. It contained 61 conditions, 34 of which were planning conditions. The MNRF incorporated the planning conditions from MNR-75 into its Forest Management Planning Manual, as required by Condition 61. Those conditions included requirements respecting consultation with Indigenous communities. The remaining “non-planning” conditions were not incorporated into the Manual, but were addressed by MNRF outside the forest management planning process.

[6] With the revocation of MNR-75 and the adoption of O. Reg. 337/20, forest management was exempted from the application of the EAA. However, contrary to what has been said by the applicants, the contents of the Forest Management Planning Manual are legally binding. The Manual cannot be amended unless the MNRF fulfills extensive notice and consultation requirements with respect to the amendments (including notice to the Director of the EA Branch at MECP) and obtains approval of the amendments from the LGIC.

The process leading up to the revocation of MNR-75

[7] In 2018, MNRF began developing a new Forest Sector Strategy for the management of Crown forests. In 2019, it engaged in discussions with the MECP about the EA process, and in July of that year, MNFR requested that MNR-75 be replaced with a new declaration order that would streamline forest management requirements under the EAA. MECP then proposed the exemption of forest management from the EAA in areas of Ontario where MNR-75 applied.

[8] On December 4, 2019, the Minister of MNRF posted a notice on the Environmental Registry of Ontario (“ERO”) of a draft Forest Sector Strategy (“FSS”). The draft had been prepared following roundtables with forestry stakeholders, including Indigenous communities, between November 2018 and May 2019. The draft FSS did not refer to specific changes to the EAA, but mentioned reducing the regulatory burden on forest management.

[9] On December 20, 2019, MECP posted a notice on the ERO about proposed amendments to EAA regulations that would exempt forest management activity in the Area of Undertaking from the EAA. This notice stated that the requirements of MNR-75 would no longer apply to forest management projects.

[10] The same day, MNRF and MECP sent letters to Indigenous communities notifying them of the ERO postings made that day and noted that one posting dealt with MNRF’s EA Requirements for Forest Management on Crown Lands in Ontario. The posting was originally open for comment until February 18, 2020 (60 days), and this was later extended to March 13, 2020 for Indigenous communities, to facilitate their participation in consultation.

[11] Between January 13 and 30, 2020, MECP and MNRF held six regional consultation sessions on the FSS with Indigenous community representatives. Additional meetings were held in January and February with Algonquins of Ontario, several Lake Superior area First Nations, Métis Nation of Ontario, and Red Sky Métis Independent Nation. One hundred and four representatives from 71 Indigenous communities and organizations attended the sessions, including representatives from the applicant Chapleau Cree First Nation. All sessions were a day and a half in length. The revocation of MNR-75 was an issue discussed at the meetings.

[12] After the conclusion of public and Indigenous consultation, ministry staff prepared summaries of the issues raised and the MECP response during the consultation sessions and comment period (see Caselines, B252). For example, at p. 5 of the summary (Caselines, B255), there were explanations given to participants that the Forest Management Planning Manuals “duplicate the planning requirements of the Declaration Order. Since MNRF has incorporated almost all conditions into its forest policy framework the protection of the environment will continue to consider as part as part of forest management planning” (sic).

[13] MECP finalized a summary of the issues and on March 17, 2020 requested that MNRF address the issues raised, including addressing the few conditions from MNR-75 that were not duplicated in existing or contemplated policies.

[14] After considering the comments received during the consultation sessions and MNRF’s responses to the issues raised, MECP determined that the revocation of MNR-75 would not adversely impact Aboriginal or treaty rights. MECP also considered its Statement of Environmental Values (“SEV”) and whether there were any outstanding questions or issues not already addressed during the consultations and concluded there were no outstanding issues.

[15] MECP staff then advised the Minister of MECP to proceed with the revocation of MNR-75. One of the rationales for doing so was that most of the conditions in MNR-75 had already been incorporated into MNRF’s forestry manuals, which are legally binding pursuant to the CFSA. Even though forestry management would be exempt from the EAA, Indigenous groups would continue to have consultation rights pursuant to the CFSA and the forestry manuals.

The Duty to Consult

[16] The duty to consult arises pursuant to s. 35 of the Constitution Act, 1982 when the Crown has knowledge, real or constructive, of the potential exercise of an Aboriginal right or title and contemplates conduct that might adversely affect that right or title (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at para. 35).

[17] The Supreme Court described the duty to consult in greater detail in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650:

[40] To trigger the duty to consult, the Crown must have real or constructive knowledge of a claim to the resource or land to which it attaches: Haida Nation, at para. 35. The threshold, informed by the need to maintain the honour of the Crown, is not high. Actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, para. 34. Constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an Aboriginal community or an impact on rights may reasonably be anticipated. While the existence of a potential claim is essential, proof that the claim will succeed is not. What is required is a credible claim. Tenuous claims, for which a strong prima facie case is absent, may attract a mere duty of notice. As stated in Haida Nation, at para. 37:

Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, 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.

[41] The claim or right must be one which actually exists and stands to be affected by the proposed government action. This flows from the fact that the purpose of consultation is to protect unproven or established rights from irreversible harm as the settlement negotiations proceed: Newman, at p. 30, citing Haida Nation, at paras. 27 and 33.

There was no duty to consult in respect of the revocation of MNR-75

[18] The applicants argue that the Crown had knowledge that Indigenous rights might be affected by the change in environmental assessment policy that would result from removing the oversight of the MECP and the EAA process from the forestry sector. They voice concerns about the impact of the change on protection for wildlife and endangered species, and the impact on Indigenous participation in the economic benefits of forestry projects.

[19] In my view, that is not enough to trigger the duty to consult.

[20] It is important to emphasize what has changed here with the revocation of MNR-75. The oversight of MNRF by MECP in environmental matters has ceased. However, there is an ongoing obligation on MNRF to protect the environment, as indicated by the provisions of the Forest Management Planning Manual and the overall purpose of the CFSA set out in s.1.

[21] The following passage from the concurring opinion of Rowe J. in Mikisew (2018) at para. 158 is helpful in the present case:

The appellants submit that the reduction in federal environmental oversight “profoundly affects” treaty rights by removing an environmental assessment process that would trigger the duty to consult (A.F., at para. 13). However, this is not the type of adverse effect that was contemplated in Haida Nation and subsequent jurisprudence. What is protected by s. 35 is the Aboriginal or treaty right itself. A specific set of arrangements for environmental regulation is not equivalent to a s. 35 right, and in particular is not equivalent to the treaty right relied on by the Mikisew in this case. As this Court stated in Rio Tinto: “the definition of what constitutes an adverse effect [does not] extend to adverse impacts on the negotiating position of an Aboriginal group” (para. 50). The adverse impact must be to the future exercise of the right itself (para. 46).

[22] The duty to consult does not come into play unless the change in the environmental assessment process will adversely affect the exercise of an Aboriginal right, a treaty right or a land claim. The applicants have failed to identify any such rights that will or may be adversely affected by the revocation of MNR-75. They point to non-section 35 rights like Condition 56 of MNR-75, which dealt with Indigenous participation in economic benefits from forestry operations, but this does not give rise to a legal obligation of the Crown to consult.

[23] My colleague relies on the Supreme Court’s statement that “strategic higher level decisions” that may have an impact on Aboriginal claims and rights may give rise to a duty to consult (Rio Tinto at para. 44). It is noteworthy that the Supreme Court went on to explain what it meant at para. 47:

… high-level management decisions or structural changes to the resource’s management may also adversely affect Aboriginal claims or rights even if these decisions have no “immediate impact on lands and resources”: Woodward, at p. 5-41. This is because such structural changes to the resources management may set the stage for further decisions that will have a direct adverse impact on land and resources. For example, a contract that transfers power over a resource from the Crown to a private party may remove or reduce the Crown’s power to ensure that the resource is developed in a way that respects Aboriginal interests in accordance with the honour of the Crown. The Aboriginal people would thus effectively lose or find diminished their constitutional right to have their interests considered in development decisions. This is an adverse impact: see Haida Nation, at paras. 72-73.

[24] The revocation of MNR-75 makes no structural change to the management of the forestry resource that could give rise to a duty to consult, and it does not remove or reduce the Crown’s consultation obligations with respect to future decisions on forestry management that affect Indigenous communities. In particular, the duty to consult continues to apply to MNRF’s forestry management decisions that have the potential to adversely affect section 35 rights, and the CFSA regulatory scheme continues to provide opportunities for meaningful consultation.

If there is a duty to consult, it is at the low end of the spectrum

[25] If I am incorrect, and there was a constitutional duty to consult, that duty is at the low end of the spectrum in this case. As the Supreme Court stated in Haida Nation (at para. 39):

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.

[26] Here, the revocation decision has not been shown to have serious, potentially adverse effects upon Aboriginal or treaty rights or land claims. The decision removed one level of environmental oversight in respect of forestry projects. The negative impacts on the environment are speculative, as is the potential negative impact on Aboriginal rights or treaty rights. Most of the planning conditions from MNR-75 were required many years ago to be incorporated in the Forest Management Planning Manual, including Condition 3, Aboriginal Representation on Planning Team; Condition 4(j) – Aboriginal Background Information Reports; Condition 9 - Aboriginal Consultation; Condition 17 - Report on Protection of Aboriginal Values; and Condition 19 – Whitefeather and Cat-Slate Forests.

[27] Among the negative impacts of the revocation that the applicants identify is the impact on Indigenous participation in economic benefits from forest projects, referring to Condition 56. However, such an opportunity is not an Aboriginal or treaty right recognized under s. 35 of the Constitution Act, 1982.

[28] Nevertheless, and importantly, the affidavit evidence filed by the respondents demonstrates an ongoing commitment by MNRF to promote Indigenous economic participation in forestry projects. According to the affidavit of Paul Glasford, Senior Advisor, Forest Environmental Assessment at MNRF, Condition 56 -“Negotiations with Aboriginal Peoples” required MNRF District Managers to conduct negotiations with Indigenous peoples whose communities are situated in a forestry management unit to identify and implement ways of achieving a more equal participation in the economic benefits provided through forest management planning. These broader negotiations were not part of the narrower forest management planning process or any duty to consult related to the planning process. Instead, they were conducted after a Forest Management Plan had been approved and were focused on creating opportunities for Indigenous people to become involved in the forestry industry.

[29] As well, Mr. Glasford states that the commitment to Indigenous economic participation has been carried forward into the Forest Sector Strategy, and all Sustainable Forest Licences, issued by the Minister of MNRF pursuant to s. 26 of the CFSA, contain an Aboriginal Opportunities provision. It requires the licensee to work cooperatively with MNFR and local Indigenous communities to identify and implement ways of achieving a more equal participation by Indigenous communities in the benefits provided through forest management planning.

[30] With respect to concerns about wildlife conservation, again, the applicants have failed to identify a potential adverse impact on their Aboriginal rights – for example, recognized or claimed hunting rights. Again, the evidence of the respondents is that development and use of wildlife inventories and species at risk protection are dealt with extensively in the Forest Management Planning Manual and are a required part of forest management planning.

[31] All this is to say that the duty to consult was at the lower end of the spectrum, and I am satisfied that the consultation undertaken was reasonable. Indigenous groups were involved in the development of the Forestry Sector Strategy. They were also given notice of the specific proposal to revoke MNR-75 and an opportunity to participate in consultations with Ministry staff and experts about that proposal and to provide comments. They have an ongoing right to be consulted with respect to changes to the Forest Management Plans, and they will be consulted with respect to particular decisions that may adversely affect their Aboriginal and treaty rights.

[32] I am also satisfied that the consultation process was taken seriously. The Indigenous Consultation Summary sets out the concerns of the various participants, and the MECP response to each, including concerns expressed about environmental protection and the impact of the revocation on Indigenous interests.

[33] MECP then required additional information from MNRF about the impact on Aboriginal communities and environmental protection before recommending the revocation of MNR-75. Ultimately, MECP concluded that there were “no negative impacts of the proposal on Aboriginal or treaty rights clearly identified in the consultation process” (affidavit of Kristina Rudzki, paragraph 21). MECP also recommended revocation because there would be minimal negative effects on the environment, given that most of the conditions from MNR-75 would be considered as part of forest management planning. Finally, the MECP concluded that “Indigenous communities would continue to have their interests or rights considered in decisions about forest management through MNRF’s existing scheme for consultation on forestry operations under the CFSA which would continue to apply despite the exemption” (Rudzki affidavit, para. 22).

Conclusion

[34] In sum, the Crown met its obligation to consult in the circumstances.

[35] For these reasons, I would dismiss the application for judicial review. The respondents submit that each party should bear their own costs, and I would accordingly make no order of costs.

___________________________ Swinton J.

I agree

Penny J.

Released: October 14, 2022

CITATION: Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161

DIVISIONAL COURT FILE NO.: 282/20

DATE: 2022-10-14

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, D.L. CORBETT and PENNY JJ.

B E T W E E N:

ASSOCIATION OF IROQUOIS AND ALLIED INDIANS, ATTAWAPISKAT FIRST NATION, CHAPLEAU CREE FIRST NATION, EAGLE LAKE FIRST NATION, FORT ALBANY FIRST NATION, MAGNETAWAN FIRST NATION, MOHAWKS OF THE BAY OF QUINTE, TEMAGAMI FIRST NATION, TEMEAUGAMA ANISHNABAI and WAHGOSHIG FIRST NATION Applicants

• and –

THE MINISTER OF THE ENVIRONMENT, CONSERVATION AND PARKS, THE MINISTER OF NATURAL RESOURCES AND FORESTRY and THE ATTORNEY GENERAL OF ONTARIO Respondents

REASONS FOR DECISION

Swinton J. (Penny J. concurring)

D.L. Corbett J. (dissenting in part)

Released: October 14, 2022

[^1]: Environmental Assessment Act, R.S.O. 1990, c. E.18. At the time of the revocation, the Forestry Regulation was DO MNR-75. The history of this Regulation, going back to the Class Environmental Assessment into forestry management in 1988-1992, is set out in detail below. My colleague refers to this instrument as “MNR-75” in her reasons. I use “Forestry Regulation” as a defined term in preference to “MNR-75” (a) to describe the Regulation and all its past iterations, and (b) for purposes of basic readability. [^2]: Environmental Bill of Rights, 1993, S.O. 1993, c. 28. [^3]: Third Amended Notice of Application, para. 4(a), Record, p.3976.4, CaseLines p.A4374. [^4]: Third Amended Notice of Application, para. 4(b), Record, p.3976.4, CaseLines p.A4374. [^5]: Third Amended Notice of Application, para. 5, Record, p.3976.4, CaseLines p.A4374. [^6]: Greenpeace v. Ontario, 2021 ONSC 4521 (Div. Ct.). [^7]: Mikisew Cree v. Canada, 2018 SCC 40, 2 SCR 765. [^8]: Greenpeace v. Ontario, 2021 ONSC 4521 (Div. Ct.), paras. 4-13, 47-62. [^9]: Enacted as COVID-19 Economic Recovery Act, 2020, SO 2020, c.18. [^10]: COVID-19 Economic Recovery Act, 2020, SO 2020, c.18, Sch. 6. [^11]: Ontario OIC 981/2020 and O. Reg. 337/20. [^12]: Judicial Review Procedure Act, RSO 1990, c.J.1, ss. 2(1) and 6(1). [^13]: Haida Nation v. BC (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 (“Haida Nation”), para. 63. See also Ka’A’Gee Tu First Nation v. Canada (A.G.), 2012 FC 297, para. 89; Nunatsiavut v. Canada (A.G.), 2015 FC 492. [^14]: Haida Nation, para. 63. See also Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, para. 26. [^15]: Haida Nation, para. 61. [^16]: Haida Nation, para. 47. [^17]: Haida Nation, para. 61-62. See also Enge (North Slave Metis Alliance) v. Mandeville, 2013 NWTSC 33, para. 27; Rio Tinto v. Carrier Sekani, 2010 SCC 43, paras. 64, 78; Ktunaxa Nation v. British Columbia, 2017 SCC 54, paras. 97-100. [^18]: Haida Nation, para. 20. [^19]: Saugeen First Nation v. Ontario (MNRF), 2017 ONSC 3456 (Div. Ct.), para. 12. [^20]: For example: Mikisew Cree v. Canada, 2018 SCC 40, 2 SCR 765 (discussed below); Morton v. Canada (Fisheries and Oceans), 2019 FC 143, [2019] 4 FCR 3 (federal Department of Fisheries and Oceans not required to consult with First Nations while formulating policies concerning salmon aquaculture and disease prevention); Hupacasath First Nation v. Canada (Minister of Foreign Affairs), 2013 FC 900, [2014] 4 FCR 836 (potential impacts of a treaty between Canada and China on the legal framework for land and resource regulation in Canada were too speculative to trigger the duty to consult); Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2016 BCCA 500, 2016 BCLR (5th) 400 (consultation duties were engaged in respect to a decision to grant permits for a proposed frac sand mine, but not in respect to the legal interpretation of a Regulation leading to a conclusion that the proposed project was not reviewable automatically under the BC Environmental Assessment Act). [^21]: For example: Taku River Tlingit First Nation v. B.C. (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550 (access road for mine in traditional territory); West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, 18 BCLR (5th) 234, leave to appeal to SCC refused, 34403 (23 February 2012) (permits for a bulk sample of coal); Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103 (land grants in territory subject to treaty); Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 SCR 1099 (pipeline project); Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 SCR 1069 (seismic testing for oil and gas exploration); Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 SCR 386 (ski resort); Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, [2019] 2 FCR 3, leave to appeal to SCC refused (2 May 2019) (pipeline project). [^22]: Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103 (“Beckman”), para. 39; Taku River Tlingit First Nation v. BC (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550 (emphasis in original). [^23]: Saugeen First Nation v. Ontario (MNRF), 2017 ONSC 3456 (Div. Ct.), paras. 10 – 29. [^24]: Haida Nation, para. 11. [^25]: Haida Nation, para. 20. [^26]: Constitution Act, 1982, Schedule B to the Canada Act (UK), 1982, c.11, s. 35. [^27]: Haida Nation, para. 27. [^28]: Beckman, para. 44. [^29]: Haida Nation, para. 35. See also Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650, para. 34; Halfway River First Nation v. BC (Minister of Forests), 1997 2719 (BC SC), [1997] 4 CNLR 45 (BCSC). [^30]: Haida Nation, paras. 37, 39 and 43. [^31]: Haida Nation, para. 45; Beckman, para. 44. [^32]: Mikisew Cree First Nation v. Canada, 2005 SCC 69, [2005] 3 SCR 388, para. 54. [^33]: Haida Nation, para. 45. [^34]: Haida Nation, para. 10. [^35]: Haida Nation, para. 19, quoting R. v. Badger, 1996 236 (SCC), [1996] 1 SCR 771. [^36]: Haida Nation, para. 42. See also Beckman, para. 48; Halfway River First Nation v. B.C. (Min. Forests), 1999 BCCA 470, [1999] 4 CNLR 1 (BCCA); Heiltsuk Tribal Council v. BC (Min. Sustainable Resource Mgmt.) (2003), 2003 BCSC 1422, 19 BCLR (4th) 107 (BCSC). [^37]: Haida Nation, paras. 10 and 42. [^38]: Haida Nation, para. 32. [^39]: Beckman, para. 55. [^40]: Beckman, para. 44. [^41]: Beckman, para. 46. [^42]: Beckman, para. 46. [^43]: Beckman, para. 39; Taku River Tlingit First Nation v. BC (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550 (emphasis in original). [^44]: Beckman, para. 72. [^45]: Chartrand (Kwakiutl First Nation) v. BC (Forests, Lands and Natural Resources), 2015 BCCA 345, para. 79. [^46]: Chartrand (Kwakiutl First Nation) v. BC (Forests, Lands and Natural Resources), 2015 BCCA 345, para. 77. [^47]: West Moberly First Nations v. BC (Chief Insp. of Mines) (2011), 2011 BCCA 247, 333 DLR (4th) 31, para. 117. [^48]: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650, para. 31. [^49]: Haida Nation; Gitxsan Houses v. British Columbia (Minister of Forests), 2002 BCSC 1701, 10 BCLR (4th) 126; Hupacasath First Nation v. British Columbia (Minister of Forests), 2005 BCSC 1712, 51 BCLR (4th) 133. [^50]: Klahoose First Nation v. Sunshine Coast Forest District (Dist. Mgr.), 2008 BCSC 1642, [2009] 1 CNLR 110. [^51]: Dene Tha' First Nation v. Canada (Min. Environment), 2006 FC 1354, [2007] 1 CNLR 1 (FC), aff'd, 2008 FCA 20, 35 CELR (3d) 1 (FCA). [^52]: An Inquiry into British Columbia's Electricity Transmission Infrastructure & Capacity Needs for the Next 30 Years, Re, 2009 CarswellBC 3637 (B.C. Utilities Comm.). [^53]: Sambaa K’e Dene Band v. Canada (Minister of Indian Affairs & Northern Development), 2012 FC 204, 405 FTR 182. [^54]: Da’naxda’xw/Awaetlala First Nation v. British Columbia (Minister of Environment), 2011 BCSC 620, [2011] 3 CNLR 188. [^55]: Nova Scotia (Aboriginal Affairs) v. Pictou Landing First Nation, 2019 NSCA 75 (NS CA), leave to appeal to SCC refused, 38917 (26 March 2020). [^56]: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650, para. 47. [^57]: Kwakiutl First Nation v. British Columbia (District Manager, North Island Central Coast Forest District), 2015 BCCA 345, 77 BCLR (5th) 26, paras. 70-71, quoting Wii’litswx v. British Columbia (Minister of Forests), 2008 BCSC 1139, para. 186. [^58]: Discussed by Hughes J. in the trial decision in Mikisew Cree 2018: Courtoreille v. Canada (Aboriginal Affairs and Northern Development), 2014 FC 1244, summarized in respect to this point by the Federal Court of Appeal at 2016 FCA 311, para. 10. [^59]: Mikisew Cree v. Canada, 2018 SCC 40, 2 SCR 765. [^60]: The ratio decidendi of the case is more limited than the reasons: the court unanimously dismissed the appeal on the basis that the Federal Court correctly found no jurisdiction for the Federal Court to hear the case under the Federal Court Act, R.S.C. 1985, c. F-7, ss. 2(2), 18 and 18.1, the basis on which the application was brought. [^61]: Mikisew Cree v. Canada, 2018 SCC 40, paras. 1-2 (Karakatsanis J.). [^62]: Mikisew Cree v. Canada, 2018 SCC 40, paras. 46-48 (Karakatsanis J.). [^63]: Mikisew Cree v. Canada, 2018 SCC 40, para. 54 (Abella J.). [^64]: Mikisew Cree v. Canada, 2018 SCC 40, para. 63 (Abella J.). [^65]: Mikisew Cree v. Canada, 2018 SCC 40, para. 72 (Abella J.). [^66]: Mikisew Cree v. Canada, 2018 SCC 40, para. 74 (Abella J.). [^67]: Mikisew Cree v. Canada, 2018 SCC 40, para. 135 (Brown J.). [^68]: Applicants’ Factum, para. 6. [^69]: Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311. [^70]: Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311, para. 1. [^71]: Jobs, Growth and Long-Term Prosperity Act, SC 2012, c.19; Jobs and Growth Act 2012, SC 2012, c.31. [^72]: Particulars are set out at Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311, para. 5. [^73]: Ontario’s Factum, para. 146, CaseLines, p.B1498. [^74]: Keewatin v. Minister of Natural Resources, (2003), 2003 43991 (ON SCDC), 66 OR (3d) 370; Prophet River First Nation v. Canada, 2017 FCA 15 at 78-80. [^75]: Judicial Review Procedure Act, RSO 1990, c.J.1, s.2(1). [^76]: Ontario’s Factum, para. 89, CaseLines, p.B1479. [^77]: Ontario’s Factum, para. 88, CaseLines, p.B1479. [^78]: Crown Forest Sustainability Act, 1994, SO 1994, c.25, as amended. [^79]: Ontario’s Factum, para. 92, CaseLines, p.B1480. [^80]: Record, pp. 584, 588, 598 CaseLines pp. A970, A974, A975. [^81]: Thomas R. Berger, Northern Frontiers, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry (1977) (the “Berger Report”). [^82]: Environmental Assessment Act, 1975, SO 1975, c.69. [^83]: Ontario, Final Report and Recommendations of the Royal Commission on the Northern Environment (1985), p 1. [^84]: Ontario, Final Report and Recommendations of the Royal Commission on the Northern Environment (1985), pp. 5, 2-1 to 2-3. [^85]: Ontario, Final Report and Recommendations of the Royal Commission on the Northern Environment (1985), p. 5. [^86]: See affidavit of Dr. Peggy Smith, paras. 24-31, Record pp. 843-844, CaseLines A1251-A1252. [^87]: Affidavit of Dr. Peggy Smith, para. 17, Record, pp. 839-840, CaseLines pp. 1248-1249. [^88]: St Catharines Milling and Lumber Co. v. The Queen (1887), 1887 3 (SCC), 13 SCR 577. [^89]: David Calverly, Exhibit F to the Smith Affidavit, p. 10; adopted by Smith in her affidavit at paras. 19-21. [^90]: Quoted in the Smith Affidavit at para. 22, Record, p.842, CaseLines, p.A1250. Page 5 to Exhibit G to the Smith Affidavit. [^91]: Smith Affidavit, para. 23, Record, pp.842-843, CaseLines pp A1250-A1251. [^92]: Record, p.2599, CaseLines, p.A3050. [^93]: Record, p. 144, CaseLines p. A530. [^94]: Record, pp. 148-344; CaseLines pp. A534-A730 (G.C.D. Jones). [^95]: See, for example, the submission respecting the Energy East Regulatory Process in connection with a proposed pipeline for LNG: Record, pp.374-467; CaseLines pp. A733-A853, specifically at pp. 367-383; TFN Background Report for the Forest Management Units with n’Daki Menan, Record, pp. 469-481, CaseLines A855-A884, specifically at Record, pp. 475-481; CaseLines pp. A861-A867; Record, pp. 572-576, CaseLines A958-A962; Record, pp. 590-591, CaseLines A976-A977. [^96]: Record, pp. 475-476; CaseLines pp. A861-A862. [^97]: Record, pp. 449-450; CaseLines A835-A836. [^98]: Keith Corston Affidavit, paras. 18 and 19, Record, p.709, CaseLines A1115. [^99]: Arnold Gardner Affidavit, para. 30, Record, p. 734, CaseLines p. 1141. [^100]: Peggy Smith Affidavit, para. 23, Record, pp. 842-843, CaseLines A1250-A1251. [^101]: Record, p.476, CaseLines p.A862. [^102]: Arnold Gardner Affidavit para. 33, Record, p.735, CaseLines p.1142. [^103]: Letter from MECP dated April 12, 2019, Record, pp. 812-818, CaseLines A1219-A1225. [^104]: See, for example, the affidavit of Charles Hookimaw, paras 8-11 (regarding the EBR), Record, pp. 2472-2475, CaseLines pp. A2921-A2924 [^105]: Affidavit of Charles Hookimaw, paras 12-13, Record, p. 2475, CaseLines p. A2924. See also affidavit of Chief Robert Nagokee, paras. 14-17, Record pp. 2559-2560, CaseLines pp. A3010 – A3011. [^106]: Affidavit of David Nagokee, para. 19, Record, p.2548, CaseLines p. A2998. [^107]: Modernizing Ontario’s Environmental Assessment Program, Record, pp. 2580-2610, CaseLines A3031-A3061, especially at pp. 2581 (CaseLines A3032) and at p. 2599, CaseLines p.A3050. [^108]: Affidavit of Joel Abram, paras. 11-13, Record pp. 2389-2390; CaseLines A2818-A2819; Notice of Assertion of Sovereignty issued by the Chiefs of Ontario (2014), Exhibit “A” to the Abram Affidavit, Record p.2402, CaseLines p. A2831. [^109]: See Abrams Affidavit, paras. 19-23 (the environment generally) and paras. 24-26 (the importance of the EBR), Record, pp. 2392-2394, CaseLines pp. A2821-A2823. [^110]: Abram Affidavit, para. 23, Record, p. 2393, CaseLines p. A2822. [^111]: See excerpt from Environmental Council of Ontario Report, Chapter 3, Record, pp. 2404-2453, CaseLines A2833-A2882. [^112]: Letter from TFN to MNRF dated February 13, 2020, Record, p.648-649, CaseLines p. A1034-A1035. [^113]: Record, pp. 658-661, CaseLines A1044-A1046. [^114]: Keith Corston Affidavit, paras. 22-23, Record, p.710, CaseLines p.A1116. [^115]: MECP letter to Chapleau Cree First Nation dated May 15, 2020, Record, pp. 721-723, CaseLines pp. A1127-A1129. [^116]: Ontario’s Factum, para. 77(i), CaseLines, p.B1475. [^117]: Ontario’s Factum, para. 130, CaseLines p.B1492. Ktunaxa Nation, para. 79; Buffalo River Dene Nation v. Saskatchewan (Energy and Resources), 2015 SKCA 90, 2015 SKCA, para. 90. [^118]: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650, paras. 47, 44. [^119]: Joel Abram states that the AIAI’s records indicate only receipt of a form letter and “discussion paper” in July 2020: Abram Affidavit, para. 48, Record, p. 2399, CaseLines, p. A2828. Similar evidence was given in respect to communications with the Attawapiskat First Nation [affidavit of Chares Hookimaw, paras. 14-19, Record, pp. 2476-2477, CaseLines pp. A2925-A2926], Fort Albany First Nation [affidavit of Robert Nagokee, paras. 19-27, Record p. 2560-2564, CaseLines pp. A3011-A3015], Magnetewan First Nation [affidavit of Samantha Noganash paras. 39-44, Record pp. 2709-2710, CaseLines pp. A3161-A3162], Mohawks of the Bay of Quinte First Nation [affidavit of Roderick Donald Maracle, para. 29, Record p.2903, CaseLines p. A3356]. [^120]: Modernizing Ontario’s Environmental Assessment Program, Record, pp. 2580-2610; CaseLines A3031-A3061. [^121]: Ontario’s Factum, para. 84, CaseLines, p.B1477. [^122]: Record, pp. 2612-2613, CaseLines pp. A3063-A3064; Ontario’s Factum, para. 86, CaseLines, p.B1478. [^123]: Record, pp. 2615-2663, CaseLines pp. A3066-A3114. [^124]: Affidavit of Robert Nagokee, para. 18; letter from and public statement of Chief Leo Metatawbin to Ontario (Exhibits “A” and “B” to the Robert Nakogee affidavit), Record pp. 2560, 2566-2572; CaseLines p. A3011, A3017-A3023. [^125]: Record, p.2568, CaseLines p. A3019. [^126]: Concerns over inadequate resources permeates the applicants’ submissions to government and industry: see for example, Record, p. 494-5; CaseLines A880-A881. [^127]: Letter from TFN to MNRF dated February 14, 2020, Record, pp. 648-651; CaseLines pp. 1035-1037. [^128]: Abram Affidavit, paras. 27-36, Record pp. 2394-2397, CaseLines pp. A2823-A2826. [^129]: Abram Affidavit, paras. 37-39, 41-42, 44, 46, Record pp. 2397-2399, CaseLines pp. A2826-A2828. [^130]: Affidavit of Samantha Nagonash, Magnetewan First Nation, paras. 22-38, Record, pp. 2703-2709, CaseLines pp. A3155-A3161; affidavit of Chief Robert Donald Maracle, paras. 19-28, Record pp. 2898-2902, CaseLines pp. A3351-A3355. [^131]: Letter from Minister Yurek to counsel for the applicants dated August 26, 2020, Record pp. 3541-3542, CaseLines pp. A4015-A4016. [^132]: A reference to the lengthy document mass-circulated to First Nations immediately before Christmas 2019, and the two webinars in January 2020. [^133]: A reference to the “Discussion Paper” circulated on July 8, 2020 and the two webinars held on July 16 and 17, 2020. [^134]: Record p.3542, CaseLines p.A4016.