Court File and Parties

CITATION: Netmizaaggamig Nishnaabeg v. Ontario, 2024 ONSC 5765

DIVISIONAL COURT FILE NO.: 404/24

DATE: 20241017

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NETMIZAAGGAMIG NISHNAABEG (PIC MOBERT BAND), Applicant

-and-

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, as represented by the Minister of Mines, Respondent

BEFORE: FL Myers J.

COUNSEL: Donald Colborne & Theresa Bananish, for the Applicant

Thomas Lipton and Jack Douketis, for the Respondent

Corey Shefman and Graeme Cook, for Garden River First Nation

William B. Henderson and Stacy Tijerina, for Batchewana First Nation

Brian Gover and Spencer Bass, for Biigtigong Nishnaabeg

HEARD at Toronto (by videoconference): October 17, 2024

ENDORSEMENT

[1] The Applicant wants to apply for judicial review of decisions by Ministry of Mining officials adding and then refusing to remove Garden River First Nation and Batchewana First Nation from “consultation lists” compiled and utilized by the Government concerning certain regulatory decisions that will be made concerning two specific mines that the Applicant says are on its traditional territory.

[2] The Ministry listed the two other First Nations as consultation parties ostensibly under the Ministry’s Consultation Framework: implementing the duty to consult with Aboriginal communities in mineral exploration and mine production in Ontario.

[3] The Applicant alleges that the decision to put the two additional First Nations on the list of indigenous communities to be consulted in respect of the relevant mining decisions unreasonably lets those First Nations be involved in mining decisions that relate only to the Applicant and thereby undermine the Applicant’s rights.

[4] The Applicant accepts that the Crown can consult with whomever it wishes. But it says that by listing the two additional First Nations on the formal consultation list, the Crown is giving those two communities rights or recognizing their interests in a way that prejudices the Applicant’s rights. For example, it may claim that the Government is improperly broadcasting to developers of mines that the two additional First Nations ought to be consulted and brought into discussions or negotiations that properly relate only to the Applicant.

[5] The application is being brought more than 30 days after the date of the challenged decisions (to add, or to refuse to remove the two additional First Nations from the consultation lists). Therefore, if the Applicant wishes to proceed with an application for judicial review now, it needs to obtain an extension of time under s. 5 (2) of the Judicial Review Procedure Act, RSO 12990, c J.1.

[6] Although the proposed application is premised upon the Ministry having granted or recognized some consultation rights to the two additional First Nations, the Applicant does not propose to name them as parties to the application.

[7] The two additional First Nations submit that they have constitutional consultation rights concerning the mines and the mining decisions in issue. They submit that the proposed application prejudices their rights by excluding them from the consultations established by the Ministry in accordance with its published policy and as required under s. 35 of the Constitution Act, 1982.

[8] The two additional First Nations are prepared to show that they have “credible claims” needed to trigger the duty to consult under the relevant case law.

[9] The degree of historic connection of the two additional First Nations to the mines and the decisions in issue is a fact-laden inquiry. Mr. Shefman submits that a trial will likely be required to find the relevant facts if the Applicant contests the evidence.

[10] The Applicant does not necessarily oppose adding the two First Nations as parties to its proposed application for judicial review, whether as “necessary parties” under Rule 5.03 of the Rules of Civil Procedure, RRO 1990, Reg 194 or as party intervenors under Rule 13.01 (1) of the Rules. But the Applicant does not want to lose its application process. An application for judicial review is fast and inexpensive compared to a trial in an action. The Applicant will therefore be asking the court to impose terms on any participation by the additional two First Nations in the judicial review proceeding to prevent them from enlarging the factual record from whatever material the Applicant put before the Ministry in the decision-making process or is in the Record of Proceedings (once it is produced).

[11] So, three motions are contemplated. The Applicant needs an extension of time to file its proposed application for judicial review. The parties to the proceeding must be established with whatever rights they have. And it must be decided if the application will proceed before the Divisional Court or if an action will be required in the Superior Court.

[12] The Applicant asks for its extension motion to be heard first. If it does not get an extension, there will be no application and no need to determine the parties or process.

[13] But this ignores the test under s. 5 (2) of the JRPA that will be in issue on the motion for an extension of time. To obtain an extension of time, an applicant needs to show that there are apparent grounds for relief in the proposed application on its merits and that no substantial prejudice will be suffered by “any person affected by reason of the delay”. Case law also recognizes that the decision is discretionary. So, more general questions concerning the interests of justice may be considered. Unifor and its Local 303 v Scepter Canada Inc., 2022 ONSC 5683 at para. 17.

[14] Whether the Applicant is entitled to have a court determine that the Ministry unreasonably recognized consultation rights of the two additional First Nations necessarily turns on what rights, if any, those two First Nations have or ought to have. The decisions on the extension motion, of whether there is apparent merit in the proposed judicial review and whether any person is prejudiced by the extension of time being sought, also necessarily involve consideration of the roles and facts relating the two additional First Nations.

[15] The Applicant seems to be using the procedural rules of the court to try to obtain a leg-up by limiting participatory rights in the litigation to the very people whose interests it challenges. Parties’ participatory rights start with the default provisions set out in the Rules of Civil Procedure. Those process rights can be altered and limited by appropriate orders obtained on notice to the parties whose rights are sought to be limited.

[16] In my view, before the extension motion can be heard fairly on a complete record, the entitlement of the two additional First Nations to be parties must be resolved.

[17] I accept completely that this complicates the motion to add parties and the motion for an extension of time. Moreover, I accept that access to justice requires that proceedings be run as efficiently and quickly as circumstances allow. But in its seminal decision in Hryniak v Mauldin, 2014 SCC 7, at para 23, the Supreme Court of Canada reminded all that, “[o]ur civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.”

[18] I do not see it as a legitimate tactic to exclude from participation a person whose legal and constitutional interests may be in issue in a proceeding. Of course, the case will be cheaper and quicker if the challenged party is not before the court. But the right to be heard is fundamental to procedural and substantive fairness. Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), at para. 22.

[19] If hearing motions to add the two additional First Nations as parties causes unacceptable risk of cost or delay to the Applicant, it is free to consent to terms it can negotiate with the others to avoid the need for a full motion process.

[20] The Applicant remains free to try to show that the two additional First Nations have no rights or are not prejudiced by the relief it seeks. One wonders what there is to be subject to judicial review if the Ministry’s decisions did not bestow or recognize any rights on the two additional Frist Nations (that the Applicant asks the court to take away). But these are complex topics. They may simply need to be heard by a single judge and/or by a panel of the court.

[21] The issue of whether the application has merits is tied up with the issue of whether the application should proceed as judicial review or an action. Both sides rely on Whiteduck v. Ontario, 2023 ONCA 543. I agree that it will likely be an important factor in the procedural outcome.

[22] I invite the parties to agree on a schedule to see the issue of the appropriate parties and their participatory rights decided first. Then, the issues of whether an extension of time ought to be granted and whether an action is the appropriate manner of proceeding to resolve contested facts can be determined at the same time in a later motion hearing.

[23] I do not agree that the issues should all be dealt with together. If the additional Frist Nations have no or limited participatory rights, then the extension motion may be much simpler and less expensive. I would not readily set them on an expensive path to a very contested motion only to then tell them that they have no right to participate.

[24] Biigtigong Nishnaabeg is another First Nation that wishes to participate in this proceeding. It is not listed on the Government’s “consultation lists” for the relevant mines. It asks to participate as an intervenor and it is prepared to await the outcomes of the prior motions before its participation request is addressed.

[25] The convoluted nature of the procedural issues lies at the Applicant’s feet. Whether it has rights to proceed by judicial review rather than to sue for a declaration as to its consultation rights is for it to decide. No one forces an applicant or a plaintiff to bring a proceeding it does not want to bring. But it created the process issues listed above by choosing its manner of proceeding.

[26] I convene a case conference before me on October 31, 2024 at 12:00 noon by videoconference. I invite counsel to agree on scheduling steps for motion processes in accordance with the directions above. If counsel cannot agree, I will set schedule at the case conference.

[27] I am not prepared at this time to order the Government to produce its Record of Proceedings yet. I accept that there is uncertainty as to the scope of the Applicant’s proposed claim. If it particularizes its claim in a clear and binding manner, then that would likely assist. I do not accept the Applicant’s submission that it is in the dark without the Record of Proceedings. The timing of the Record of Proceedings can me a topic at the next or a later case conference.

[28] While costs are not usually granted at case conferences, this is an exception. Depending on the outcomes of the motions and the application, this whole process may be found to have been inappropriate. Costs reserved to the final disposition of this application.

FL Myers J.

Date: October 17, 2024