CITATION: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks, 2022 ONSC 6859

DIVISIONAL COURT FILE NO.: 466/20

DATE: 20221207

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Emery, and O’Brien JJ.

BETWEEN:

MISSISSAUGA FIRST NATION

K. Kempton and N. Kennedy, for the

Applicant

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT

B. Haynes, and I. Kamal, for Ontario

OF ONTARIO, MINISTER OF THE

ENVIRONMENT, CONSERVATION

J. Terry, R. Lax, and H. Federer for

AND PARKS, MINISTER OF NATURAL

Brookfield

RESOURCES AND FORESTRY and

BROOKFIELD BRP CANADA CORP.

Respondents

HEARD at Toronto by videoconference:

June 17, 2022

REASONS FOR DECISION

O’Brien J.

Overview

[1] From 1950 to 1970, Ontario built four interconnected dams and hydroelectric facilities on the Mississagi River. The Respondent Brookfield BRP Canada Corp. (“Brookfield”) currently operates these dams. The Mississagi River and its watershed are at the heart of the Applicant, Mississauga First Nation (“MFN”). They are MFN’s birthplace, traditional territory, source of identity, and way of life. MFN is a party to the Robinson Huron Treaty of 1850, which, among other things, guarantees the rights of MFN to hunt, trap, fish, and carry out other harvesting activities recognized by treaty in its traditional territory.

[2] While MFN broadly alleges that the dams have had a devastating effect on its Aboriginal and treaty rights, this application for judicial review raises a narrower question. It arises from Ontario’s actions in relation to its power under s. 34 of the Ontario Water Resources Act.[^1] Until 2019, s. 34(1) of the OWRA prohibited hydroelectric dams from “taking water” except in accordance with a permit to take water (“PTTW”). The issue on this application is whether the PTTW process, by which Brookfield sought to continue the dams’ existing operations, triggered Ontario’s duty to consult and accommodate MFN.

[3] Brookfield acquired the dams in 2002 from Ontario Power Generation (“OPG”). Neither Brookfield nor OPG ever obtained PTTWs for the operation of the dams. Although Brookfield applied for PTTWs in 2002, the applications were returned due to inadequate information. Brookfield reapplied in 2016.[^2] Meanwhile, in around 2014, MFN began asking Ontario for consultation with respect to the PTTW process. Ontario did not initiate consultations nor did it decide the 2016 applications. Instead, in 2019, Ontario amended the OWRA and passed an associated regulation to exempt hydroelectric dams from the requirement to obtain PTTWs.

[4] MFN submits that Ontario’s failure or refusal to decide the PTTW applications breached its duty to consult and accommodate and was inconsistent with the honour of the Crown. According to MFN, PTTWs were a mechanism to authorize the dams’ operation. Without them, the dams’ rights-infringing activities could not continue. In its submission, the PTTW process therefore triggered Ontario’s duties. MFN further submits that the amendments to the legislation removed the last remaining trigger to ensure consultation on the dams’ devastating impacts to its rights. Finally, in MFN’s submission, the amendments to the OWRA removing the PTTW requirement are unconstitutional.

[5] Ontario submits the PTTW regime under the OWRA did not trigger the duty to consult and accommodate. In its submission, PTTWs would not result in any new impacts to MFN’s rights, as any rights infringements were caused by the dams’ historical operation. However, it also submits that it consulted with MFN pursuant to a different regulatory regime, under the Lakes and Rivers Improvement Act.[^3] Under this regime, proponents of hydroelectric dams were required to develop a Water Management Plan (“WMP”) for the management of water flows and levels. Ontario submits that it consulted MFN with respect to the development of the Mississagi River WMP.

[6] Ontario adds further submissions: It submits that this Court does not have jurisdiction and that any trigger for the duty to consult was eliminated with the amendments to the OWRA. It further submits that MFN has an adequate alternative remedy to judicial review: MFN can request an amendment to the WMP.

[7] Brookfield adopts many of Ontario’s submissions, and argues that the amendments to the OWRA are constitutional.

[8] For the reasons that follow, the application is dismissed. In my view, the PTTW applications did not trigger the duty to consult and accommodate. Brookfield’s applications for PTTWs only requested permits to continue operations that had been ongoing since the dams’ inception. The impacts of the dams are continuing but result from their historical operation. MFN has not proven there is a potential for novel adverse impacts. Further, decisions on the PTTW applications would not have determined whether potentially rights-infringing activities could continue, given that the dams were already being regulated under the LRIA. Because of the LRIA regulatory process, the PTTW process was not the last remaining trigger for the duty to consult and accommodate; those triggers remain under the LRIA via the WMP. Finally, because the applications for PTTWs did not trigger the duty to consult and accommodate, and because the dams continue to be subject to regulation, the amendments to the OWRA removing the PTTW process are not unconstitutional.

Preliminary Issue: Admissibility of Affidavit of Dr. Lutterman

[9] Ontario submits that the expert affidavit of Dr. Lutterman, submitted by MFN, is inadmissible because it was not before the decision-maker. Dr. Lutterman’s affidavit addresses the impact of the dams on MFN’s rights. I agree with MFN that this affidavit should be admitted. Ontario raised this argument for the first time, in passing, in its factum. This was more than a year after having received Dr. Lutterman’s affidavit and after having cross-examined her for nearly five hours.

[10] In any event, courts have recognized an exception to the rule against extrinsic evidence in judicial review applications to allow evidence that the Crown had a duty to consult. This is generally treated as a subset of the rule permitting evidence on issues of procedural fairness.[^4] In this case, although the affidavit did not form part of the record before Ontario, Ontario also never agreed to a consultation process. From 2014 to 2019, MFN repeatedly asked to be consulted, but Ontario neither agreed to nor initiated consultations before the amendments to the OWRA. In these circumstances, MFN did not have a reasonable opportunity to provide its evidence on the impacts of the dams to the decision-maker.

Primary Issues

[11] The primary issues for decision are:

1. Whether Ontario’s failure to decide the PTTW applications and to require previous owners of the dams to obtain PTTWs breached the duty to consult and accommodate and therefore was inconsistent with the honour of the Crown.

2. Whether the amendment to the OWRA and its related regulation are unconstitutional and of no force and effect.

Whether the failure to decide the PTTW applications breached the duty to consult and accommodate and the honour of the Crown

A. Standard of Review

[12] The central question in this case is whether Brookfield’s PTTW applications triggered the duty to consult. A standard of correctness is used to assess whether Crown conduct gives rise to the duty to consult and accommodate unless the administrative decision-maker’s determination was premised on an assessment of the facts.[^5] Here, Ontario did not make any initial factual assessment with respect to whether the PTTW applications triggered the duty. Instead, the amendments to the OWRA resolved the applications. As Ontario acknowledges, the correctness standard therefore applies.

B. Framework for the Duty to Consult and Accommodate

[13] In Haida Nation v. British Columbia (Minister of Forests),[^6] the Supreme Court of Canada laid out a framework for the duty to consult and accommodate (the “duty”). The duty is grounded in the honour of the Crown.

[14] The honour of the Crown is a constitutional obligation. It is not a lofty ideal or a “mere incantation.”[^7] It gives rise to specific obligations, which vary with the circumstance. The duty is one such obligation.[^8]

[15] The duty has been found to arise in instances where statutory decision-makers act on behalf of the Crown in a way that may adversely affect s. 35 rights. The Supreme Court of Canada has described the duty as a “valuable adjunct” to the honour of the Crown. The duty ensures “the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s. 35 rights.”[^9] The Crown conduct need not necessarily constitute an infringement of s. 35 rights. However, unilateral action that may adversely affect such rights may warrant intervention on judicial review.^10

[16] The duty arises when the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it.[^11] There are therefore three elements to the test: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.[^12]

[17] In this case, the focus of the parties’ submissions was on the third element of the test. With respect to the first element of the test, there is no dispute that Ontario had knowledge of MFN’s asserted s. 35 claims. Indeed, Ontario’s argument, in part, was that it properly consulted MFN on the Mississagi River through the WMP. MFN also began contacting Ontario in 2014 seeking consultation with respect to the PTTW process. Ontario does not suggest it was unaware of MFN’s asserted claims.

[18] On the second element of the test, this application focuses on Ontario’s failure to exercise, and subsequent repeal of, a statutory power. Although there was disagreement as to whether this amounted to the type of conduct that would ground a duty to consult, it is clear that Crown conduct was in issue.

[19] This application therefore turns on the third element of the test: Whether the contemplated conduct might adversely affect an Aboriginal claim or right. I turn now to that question.

C. Adverse Impact

[20] I conclude that the third element of the test is not satisfied. The PTTWs sought in this case do not constitute conduct that might adversely impact an Aboriginal claim or right. Instead, MFN is attempting to use the PTTW process to address the dams’ historical impacts. In addition, an overlapping regulatory regime remains in place such that the PTTW process is not the last remaining trigger to the dams’ ongoing operation.

1. Historical Impact of Dams

[21] MFN’s claim is an attempt to remedy the historical impact of the dams on the Mississagi River. MFN alleges that Ontario built and operated the dams starting over 50 years ago without regard to the importance of the Mississagi River watershed to its rights, culture and way of life, and without consulting or accommodating MFN for the dams’ impacts. MFN started raising the alleged impacts with Ontario as early as the 1990s. These impacts include the destruction of fisheries, the destruction of village sites on the riverbank, and reductions in the populations of waterfowl, native fish species, and other animals. MFN states in its factum that “[m]any of these impacts are permanent and ongoing; they did not just occur once then disappear. Yet still today MFN has never been accommodated for these serious and ongoing impacts.”

[22] MFN has not shown any new impact caused by the PTTW process. In Carrier Sekani, the Supreme Court of Canada emphasized that the duty is forward-looking: “[p]ast wrongs, including previous breaches of the duty to consult, do not suffice.”[^13] An “underlying or continuing breach, while remediable in other ways, is not an adverse impact” for the purposes of this analysis.[^14]

[23] The Court specifically rejected a broader application of the duty to consult. The broader approach would have imposed an obligation on the Crown to consult where there was an existing project that had an ongoing impact on Aboriginal claims or rights. Under this theory, the current government decision or action, however, inconsequential, would become the trigger for the duty to consult on the entire resource project. The Court found instead that the focus must be on the impact of the current government conduct or decision. The question, therefore, is whether the current conduct or decision “has the potential of causing a novel adverse impact on a present claim or existing right.”[^15] With respect to past conduct, the failure to consult may give rise to a variety of remedies, including damages.[^16]

[24] On the facts of the case in Carrier Sekani, the Supreme Court upheld the B.C. Utilities Commission’s conclusion that a proposed agreement to sell power to B.C. Hydro did not meet the third element of the test. As in the current case, the dam had been in operation for decades. There was no novel adverse impact because the power agreement would have no effect on the water levels on the river.

[25] Similarly, Brookfield’s applications for PTTWs in 2002 and 2016 sought to confirm the ongoing operation of the dams since their inception. Brookfield has not materially changed the facilities since their construction (other than changes arising from the development and operation of the WMP, which are intended to reduce the impact of the facilities). It has not undertaken any new expansion projects. The evidence does not otherwise reveal any new impact that might arise from the PTTW process. Given the absence of any new adverse impact, MFN’s claims amount to allegations of an “underlying or continuing breach.” For that reason, just as in Carrier Sekani, the claims must be rejected.

2. Permitting Process

[26] MFN also submits that the permitting process itself caused an adverse impact, even if there were no new physical impacts. In its submission, the permitting process raised the question of whether the dams could continue to operate. But for the grant of the permit, the rights-impacting activity of the dams would be illegal. From this perspective, MFN submits, the grant of the permit would have authorized new rights-impacting activity. In addition, in MFN’s submission, the PTTW process was particularly important as it was what MFN describes as the “sole trigger” for the dams’ impacts on MFN’s s. 35 rights.

[27] While in some cases the grant or renewal of a licence may trigger a duty to consult and accommodate, the PTTW process did not trigger the duty in this case. As further discussed below, the overlapping regulatory regime under the LRIA effectively minimized the importance of the permitting process under the OWRA. The PTTW process was not the overall determinant or “sole trigger” of whether potentially rights-infringing activity could continue. An alternate regulatory regime remains in place even though the PTTW process ultimately was eliminated. As such, there are ongoing controls over the dams’ continued operations.

Overlapping Regulatory Processes

[28] Although the PTTW process initially was intended to regulate hydroelectric dams, it became redundant because of the development of the overlapping LRIA process. Starting in 1961, the Ministry of Environment, Conservation, and Parks (“MECP”), required hydroelectric dam operators to obtain PTTWs pursuant to the OWRA. Subsection 34(1) of the OWRA prohibited anyone from taking “more than 50,000 litres of water on any day by any means except in accordance with a permit issued under section 34.1.” This prohibition was broad, as it related only to the taking of water. It did not target the management of water levels or the management of hydroelectric facilities through which water flowed, but which do not remove water.

[29] In 2002, Ontario enacted s. 23.1 of the LRIA. This provision authorized the Ministry of Northern Development, Mines, Natural Resources and Forestry (“MNRF”) to order hydroelectric dam operators to prepare and comply with a WMP. WMPs provided a formal planning framework for managing waterpower facilities and structures. WMPs were required to focus on water flows and levels on river systems with waterpower facilities and structures.

[30] The two regulatory regimes overlapped. Both addressed the management of water at a hydroelectric facility. Both regimes also focused on environmental protection. Specifically, PTTWs outlined appropriate conditions for approving water taking to ensure alignment with environmental protection. WMPs addressed the management of water levels and flows at waterpower facilities, while also maintaining environmental protections.

[31] The WMP process, however, was more comprehensive. Ontario developed guidelines for the process, called Ontario’s Water Management Planning Guidelines for Waterpower (“Guidelines”). The Guidelines stated WMPs must be developed in conjunction with other interests including Indigenous groups, resources users, interest groups, and other stakeholders. The principles for the development of WMPs included maximizing the net environmental, social, and economic benefits of waterpower operations; arresting any ongoing degradation of the riverine ecosystem from the manipulation of water levels and flows; and undertaking water management planning, without prejudice to Aboriginal and treaty rights.

[32] By 2004, the waterpower industry began expressing concerns about the dual regulatory requirements for waterpower facilities. Their submission was that whereas WMPs were tailored to waterpower facilities and their river systems, the PTTW regime was a blunt instrument that did not differentiate between consumptive and non-consumptive uses of water. In their submission, the dual regime was a source of difficulty and expense for waterpower development and operation.

[33] Since at least 2007, MNRF and MECP began working to address concerns surrounding the joint responsibilities of the two ministries, including concerns regarding regulatory overlap. In 2011, they signed a memorandum of understanding to guide co-ordination and co-operation on the review and approval of waterpower projects.

[34] In 2019, Bill 132 was passed. Bill 132 amended the exemptions to the PTTW requirement found under s. 34(2) of the OWRA by specifically adding an exemption to address dams already governed under the LRIA. Paragraph 34(2)(4) now exempts “[t]he taking of water for the purpose of constructing or operating a dam within the meaning of the Lakes and Rivers Improvement Act if the dam is associated with the production of electricity.” Bill 132 also amended the OWRA to authorize the Minister of the Environment to make regulations deeming permits to be revoked for water takings exempted from the PTTW requirement. The Minister subsequently enacted O. Reg. 103/20, which revoked PTTWs issued for the purpose of operating a dam associated with the production of electricity. The rationale for the amendments was to reduce regulatory burden by eliminating overlap between the OWRA and LRIA regimes.

Regulation of the Brookfield Dams

[35] In this context, although Brookfield attempted to comply with both regulatory regimes in the operation of the dams, its attention was primarily on creating a WMP. Specifically, when Brookfield acquired the dams in 2002, Ontario was focused on the WMP, as the water management planning regime was new at the time. Brookfield therefore complied with this process, but also concurrently applied for PTTWs out of an abundance of caution.

[36] Brookfield’s application for PTTWs in 2002 prompted some internal discussions among staff at the Ministry of the Environment (the predecessor to the MECP) that perhaps the power generating stations would be best managed under a WMP. However, those applications were eventually sent back on the basis that Brookfield had provided inadequate information.

[37] Brookfield’s WMP development process ultimately spanned eight years. MNRF approved the WMP for the Mississagi River in 2010. The Mississagi River WMP is a detailed document, totaling almost 250 pages with more than 200 additional pages of appendices. Under the WMP, Brookfield is required to maintain water levels within certain ranges. Pursuant to ss. 23.1(7) and (8) of the LRIA, Brookfield is legally required to comply with the WMP.

[38] When Brookfield resubmitted applications for PTTWs in 2016, Ontario took various steps to assess the applications. However, by that time, MECP was reviewing its approach to permitting requirements for hydroelectric dams. MECP did not see an immediate need to make a permitting decision because no urgent environmental issue had been identified. Moreover, it knew the dams were subject to regulation under the Mississagi WMP. Ultimately, before MECP reached a decision on the applications, Bill 132 removed the PTTW requirement for hydroelectric dams regulated under the LRIA. Given that Brookfield’s dams were already subject to comprehensive regulation under the Mississagi River WMP, the absence of a decision with respect to Brookfield’s PTTW applications did not cause an adverse impact on MFN’s rights.

[39] In Carrier Sekani, the Supreme Court specified certain types of decisions that may trigger a duty to consult, even if they do not cause an immediate impact on lands and resources. It described these as “strategic, higher-level decisions.” It provided as examples the transfer of tree farm licences that would have permitted the cutting of old-growth forests and the approval of a multi-year forest management plan for a large geographic area.[^17] In the full regulatory context, the PTTW process cannot be considered the type of strategic, higher-level decision that could impact lands and resources. Instead, the PTTW process was redundant. Brookfield’s operations were already subject to regulation, including specific requirements to maintain water levels consistent with environmental protection objectives. In short, the regulatory decisions regarding the dams were already being made elsewhere, through the WMP process.

[40] Further, contrary to MFN’s submission, Ontario has not removed the last trigger for the duty to consult. Section 23.1 of the LRIA empowers the Minister of MNRF to order the owner of a dam to amend the WMP. This may occur, for example, if the owner has sought approval to construct or alter a dam or other structure. The Minister also may intervene under s. 23.1(8) if an owner fails to comply with the WMP. Further, the Technical Bulletin issued by the MNRF in support of the administration of the LRIA, provides that any party with an interest in the WMP may bring forward issues. It states that any proposed major amendments to the WMP, such as changes to the operating regime or plan objectives, or changes that might adversely affect Aboriginal or treaty rights, will be subject to consultation with the public and with affected First Nations and Métis communities. In view of this process, MFN can seek consultation regarding new adverse impacts under the WMP.

[41] Ontario submits that MFN representatives were involved in the development of the WMP and that it met its duty to consult and accommodate under the WMP process. I do not make any findings on this point. As I have said, the WMP was approved in 2010. Although there is an amendment process available under the WMP, no amendment has been sought. In other words, there is no current decision or government action under the WMP process that forms the basis for this application. Meanwhile, MFN has issued a civil claim in which it seeks damages and other relief in relation to the construction and operation of the dams.

[42] The cases MFN relied on in support of its submission that the renewal of a permit triggers the duty are distinguishable. Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General)[^18] dealt with the renewal of fishing licences. Those renewals arose in the context of a complete overhaul of the relevant regulatory regime. In a separate decision, the British Columbia Supreme Court had found that the provincial regulatory regime for aquaculture was constitutionally invalid. Hundreds of provincial aquaculture licences were due to expire, and Canada was required to implement an entirely new regulatory and licensing regime. The Court in Kwicksutaineuk noted at para. 107 that this represented a “fundamental shift in the management of the aquaculture industry” that obligated the Crown to consult the affected First Nations. There was no such shift in the current case when Brookfield sought permits to continue the same operations that had been in place for decades and that were being regulated by an overlapping regime.

[43] Nova Scotia v. Pictou Landing First Nation[^19] was a case in which a pulp mill that, for 50 years, had discharged fluid effluent and airborne emissions, which settled into an effluent treatment facility. Recent legislation provided that the industrial approval for the effluent treatment facility was due to expire by a specified date. By that date, the effluent and emissions were to cease unless there was a new effluent treatment facility with a new industrial approval. The Court found that Nova Scotia was required to consult the First Nation with respect to the decision to fund the new treatment facility. This is distinguishable from the current situation in which the same facilities were seeking to continue operating in the same manner, but also in which another overlapping regime was already regulating the very subject of the permit applications.

[44] MFN also relies on West Moberly First Nations.[^20] That case involved a coal mining project in British Columbia. The mining company had applied to amend permits to allow for the drilling of new test holes and the construction of a network of roads. The province did not dispute that it had a duty to consult the First Nation but said that the duty had been fulfilled. MFN relies on the portion of the judgment in which the Court discussed the importance of taking into account historical context to fully understand the seriousness of the potential impacts on the First Nation’s treaty right to hunt. The amended permits in that case would have authorized activity in an area of fragile caribou habitat, where there remained only 11 animals in the herd.

[45] MFN submits that West Moberly is analogous to the current situation. As set out above, MFN alleges the dams have had devastating effects on its traditional territory, including by reducing the population of various species. It is, they say, “death by a thousand cuts,” with each new decision exacerbating the destruction. But the case at bar is entirely different. Unlike in West Moberly, there is no new project. While the focus must be on the adverse impact (rather than the operation of the activity in issue), the impact must be new in the sense that it is not only a continuation of a historical impact. West Moberly stands for the proposition that once there is a new adverse impact, it can be considered in its historical context. MFN has not shown that the PTTW process in the current case, under which existing operations would continue, introduced a new impact.

[46] Overall, through the PTTW applications, Brookfield was not seeking to do anything other than continue existing operations. MFN has not shown any new adverse impact. Further, the renewal of PTTWs would not have been the type of high-level decision that could impact land and resources since the dams were already being regulated elsewhere.

[47] Finally, in claiming that Ontario breached the duty, MFN also submits that Ontario failed to uphold the honour of the Crown. The honour of the Crown “is not a cause of action itself; rather, it speaks to how obligations that attract it must be fulfilled.”[^21] MFN’s analysis on this point is the same as with respect to the duty. That is, it submits that Ontario’s failure to address impacts to MFN under the PTTW process breached both the duty and the Crown’s honourable obligations. Given my conclusion that Ontario’s conduct did not breach the duty, I also conclude that there was no failure to uphold the honour of the Crown.

Whether the amendment to the OWRA and its related regulation are unconstitutional and of no force and effect

[48] MFN submits that the amendment to the OWRA is unconstitutional because it eliminates the sole trigger for consultations with respect to the impact of the dams on MFN’s s. 35 rights. It states that without that trigger, the dams can now operate in perpetuity. MFN relies on the statement by Karakatsanis J. in Mikisew Cree that “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.”[^22]

[49] Mikisew Cree also more generally holds that the law-making process does not constitute Crown conduct that triggers the duty to consult. However, given my analysis above, I do not need to determine whether or in what circumstances a legislative amendment to remove a trigger for the duty to consult could violate s. 35 of the Constitution. That is, I do not accept the linchpin of MFN’s argument, that the PTTW process was a trigger to the duty. When Ontario amended the OWRA it did not remove the last trigger for the duty. It instead removed a redundant power but maintained a different regulatory scheme through which consultation may be triggered. Therefore, the amendment to the OWRA is not unconstitutional on the basis argued by MFN.

Additional Issues

[50] The Respondents raise a number of issues that can be dealt with briefly in view of my determination of the primary issues above: Ontario and Brookfield submit that this Court lacks jurisdiction to determine the issues raised by MFN and that the issues on this application are moot; and Ontario submits that there was an adequate alternative process available to MFN in lieu of this application.

A. Jurisdiction and Mootness

[51] With respect to the question of this Court’s jurisdiction, the Respondents emphasize that, unlike the Superior Court, the Divisional Court does not have inherent jurisdiction. Specifically in this case, they submit that the Court does not have jurisdiction because Ontario did not refuse to exercise a statutory power. In any event, the statutory power that existed was eliminated. As otherwise stated by Brookfield, the current dispute is moot in view of the elimination of the PTTW regime. In addition, the Respondents submit that constitutional challenges to the validity of legislation do not fall within the Judicial Review Procedure Act.[^23]

[52] I reject the Respondents’ first submission, that Ontario did not refuse to exercise a statutory power. Paragraph 2(1)(2) of the JRPA grants this Court jurisdiction in relation to the “refusal to exercise…a statutory power.” MFN does not need to demonstrate a specific, overt refusal. A refusal can be express or implied. Neglect or unreasonable delay in performing a duty can be deemed an implied refusal.[^24] When Ontario did not make decisions on the applications for PTTWs filed in 2016 and then, three years later, amended the legislation to remove the requirement to obtain a PTTW, in my view, this was tantamount to a refusal.

[53] With respect to the second question, whether the dispute is moot, the Respondents submit that there is no practical effect to this Court making a declaration in respect of a statutory power that no longer exists. However, MFN submits that Brookfield’s applications for PTTWs triggered the duty to consult and accommodate, which must now be honoured. In view of my conclusion above, that the applications for PTTWs did not trigger the duty, I do not need to decide this issue.

[54] Finally, I find that in the circumstances of this case, this Court has jurisdiction to determine whether the amendments to the OWRA were constitutional. In appropriate circumstances, this Court has previously determined the constitutionality of legislation,[^25] regulations,[^26] and common law rules.[^27] As discussed above, MFN’s constitutional argument is entirely dependent on its submission that s. 34 of the OWRA triggered the duty to consult. The constitutional argument is ancillary to and dependent on the determination regarding the duty. As I have found that s. 34 did not trigger the duty, it follows that the constitutional argument fails. In these circumstances, addressing the constitutional challenge in this Court prevents an unnecessary multiplicity of proceedings.

B. Available Alternative Process

[55] Ontario submits that this Court should dismiss this application because there is an adequate alternative process available to MFN through the WMP amendment process. I do not need to determine this issue given my conclusion that the application should be dismissed based on Ontario’s primary argument, that the duty to consult was not triggered. However, dismissal on the basis of an existing alternative process is discretionary. I would not have dismissed the application on this basis alone. Although I have found that the regulatory process under the LRIA was overlapping and ultimately rendered the PTTW process redundant, Brookfield applied for PTTWs under an existing statutory process. MFN was entitled to seek judicial review of Ontario’s failure to reach a decision under a process that was, at the time, a separate albeit overlapping regulatory regime distinct from the LRIA.

Disposition

[56] For all of these reasons I would dismiss the application. Ontario and Brookfield advised at the conclusion of the hearing that they were not seeking costs. Therefore, no costs are ordered.

I agree: _______________________________

D.L. Corbett J.

I agree:_______________________________

Emery J.

Released: December 7, 2022

CITATION: Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks, 2022 ONSC 6859

DIVISIONAL COURT FILE NO.: 466/20

DATE: 20221207

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Emery and O’Brien JJ.

BETWEEN:

MISSISSAUGA FIRST NATION

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, MINISTER OF THE ENVIRONMENT, CONSERVATION AND PARKS, MINISTER OF NATURAL RESOURCES AND FORESTRY and BROOKFIELD BRP CANADA CORP.

Respondents

REASONS FOR DECISION

O’Brien J.

Released: December 7, 2022

[^1]: R.S.O. 1990, c. O.40 (“OWRA”).

[^2]: The permitting requirement was first introduced in 1961 under the OWRA’s predecessor legislation. Two of the dams, the Raynor and Red Rock dams, were grandfathered out of this requirement because they were commissioned before 1961. The other two dams, the Aubrey and Wells dams, built in 1969 and 1970 respectively, required PTTWs to operate. Brookfield applied for PTTWs for all four dams in 2002 and in 2016 applied for PTTWs only for the Aubrey and Wells dams.

[^3]: R.S.O. 1990, c. L.3 (“LRIA”).

[^4]: See e.g. Chaboyer v Saskatchewan, 2021 SKQB 200, 2021 Carswell Sask 474, at paras. 36-44; Chartrand v. The District Manager, 2013 BCSC 1068, 52 B.C.L.R. (5th) 381, rev’d on other grounds 2015 BCCA 345, 77 B.C.L.R. (5th) 26, at paras. 112-117; Enge v. Mandeville et al., 2013 NWTSC 33, [2013] 4 C.N.L.R. 50, at paras. 12, 17-19.

[^5]: Haida Nation, at paras. 61-63; Carrier Sekani, at paras. 64 and 78.

[^6]: 2004 SCC 73, [2004] 3 S.C.R. 511 [Haida Nation].

[^7]: Mikisew Cree First Nation, 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 24 [Mikisew Cree]; Haida Nation, at para. 16.

[^8]: Mikisew Cree, at paras 24-25.

[^9]: Mikisew Cree, at para 25.

[^11]: Haida Nation, at para. 35.

[^12]: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 [Carrier Sekani], at para. 31.

[^13]: Carrier Sekani, at para. 45.

[^14]: Carrier Sekani, at para. 48.

[^15]: Carrier Sekani, at para. 49.

[^16]: Ibid, at para. 54. See also Haida Nation, at paras. 13-14.

[^17]: Carrier Sekani, at para. 44.

[^18]: 2012 FC 517, [2012] F.C.J. No. 772 (QL) [Kwicksutaineuk].

[^19]: 2019 NSCA 75, 2019 Carswell NS 652.

[^20]: 2011 BCCA 247, 18 B.C.L.R. (5th) 234 [West Moberly].

[^21]: Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 73.

[^22]: Mikisew Cree, at para. 46.

[^23]: R.S.O. 1990, c. J.1 (“JRPA”).

[^24]: Halpern v. Canada (Attorney General), 215 D.L.R. (4th) 223 (Ont. Div. Ct.), at para. 14 [Halpern]; Turp v. Canada (Foreign Affairs), 2018 FC 12, 2018 Carswell Nat 34, at para. 98.

[^25]: Allan v. Ontario (Attorney General) (2005), 76 O.R. (3d) 616 (Ont. Div. Ct.), aff’d (2006), 85 O.R. (3d) 654 (Ont. C.A.), 2006 15626, at para. 43.

[^26]: MacLennan v. Ontario (Minister of Transportation), 2014 ONSC 2946 (Div. Ct.), 121 O.R. (3d) 134, at paras. 6-8.

[^27]: Halpern, at para. 265.