Indigenous Legal Issues - ONSCDC

The applicant, a self-represented off-reserve First Nations member, sought judicial review of a decision by the Chiefs of Ontario (COO) declining to intervene and provide political advocacy regarding his personal legal disputes and broader systemic concerns.

The COO brought a motion to dismiss the application for lack of jurisdiction.

The Divisional Court granted the motion, finding it plain and obvious that the application would fail.

The court held that the COO is a private voluntary association, and its decision was not public in nature, thus falling outside the scope of judicial review.

Furthermore, the political remedies sought by the applicant were deemed non-justiciable.

The moving parties brought motions to quash part of an application for judicial review for lack of jurisdiction and to strike out certain expert evidence.

The underlying application challenged a decision by the Minister of Natural Resources regarding the Abitibi River Water Management Plan and sought a declaration that the Lakes and Rivers Improvement Act regime is unconstitutional for failing to trigger the duty to consult.

The Divisional Court held that it lacked jurisdiction under the Judicial Review Procedure Act to hear the broad constitutional challenge and transferred that portion of the application to the Superior Court.

The motion to strike evidence was adjourned to the panel hearing the judicial review.

The moving parties brought motions for leave to appeal the decision of Steele J. dated October 30, 2024.

The Divisional Court dismissed the motions for leave to appeal without costs.

The applicant First Nations sought judicial review of the Ministry's decisions to amend a Crown Land Use Policy Atlas and transfer a parcel of Crown land to the Municipality of Red Lake for housing development.

The applicants argued the Ministry breached its duty to consult under s. 35 of the Constitution Act, 1982, and failed to obtain their consent.

The Divisional Court dismissed the application, finding that Treaty No. 3 allows the Crown to take up land subject to a duty to consult, which does not amount to a First Nation veto.

The court held that the duty to consult was at the lower end of the spectrum and that the Ministry's consultation process was reasonable and fulfilled its constitutional obligations.

The applicant brought an urgent motion for an interim stay pending an application for judicial review.

The parties sought a consent adjournment of the motion.

The court granted the adjournment on consent, ordering that the interim interim stay remain in place until the motion is heard, the application is decided, or the parties consent to lift it.

Cat Lake First Nation brought an urgent motion for an interim interim stay of the Ministry of Natural Resources and Forestry's authorization allowing First Mining Gold Corporation to construct an 18 km winter road.

The First Nation argued the authorization was granted without adequate consultation and would irreparably harm their Aboriginal rights.

The court found a serious issue to be tried, irreparable harm to constitutional rights, and that the balance of convenience favoured the First Nation.

The court granted the interim interim stay pending the full hearing of the motion and waived the requirement for an undertaking as to damages.

The proposed intervenor brought a motion seeking leave to intervene as an added party in an application for judicial review.

The underlying application challenged the Ministry of Energy's conclusion that the duty to consult regarding a pipeline replacement project was satisfied.

The court granted the motion, finding that the proposed intervenor had a direct interest in the proceeding, could be adversely affected by the judgment, and shared common questions of law and fact with a parallel appeal.

The proposed intervenor, WIFN, brought a motion for leave to intervene as a party in an application between HDI and Ontario.

WIFN sought to intervene to contest HDI's claimed rights under the Nanfan Treaty, arguing that any court acknowledgment of such rights could prejudice WIFN's interests in future proceedings.

The court dismissed the motion, finding that WIFN had no interest in the substantive outcome of the procedural application and that adding WIFN would substantially delay and broaden the scope of the proceedings.

The court noted that WIFN's concerns were mitigated by HDI's voluntary amendment of its notice of application.

The applicant First Nations sought judicial review to quash a Notice of Completion of an Environmental Study Report regarding the transfer of the Seaton lands by the Ontario Realty Corporation.

The applicants argued the Crown breached its constitutional and statutory duties to consult them about potential aboriginal burial sites on the lands.

The Divisional Court dismissed the application, finding no constitutional duty to consult because the applicants had surrendered their rights to the lands under the 1923 Williams Treaties.

The court also held that the statutory consultation process under the Environmental Assessment Act was procedurally fair, noting the broad nature of the assessment and the effective involvement of the Founding First Nations Circle.

The appellant appealed a decision regarding the jurisdiction of the Superior Court over a claim involving a Band Council and declaratory relief.

During the appeal, the parties agreed to reconcile most of their difficulties and issue a new Statement of Claim focusing on unjust dismissal.

The Divisional Court declined to decide the remaining issue of whether a Band Council member can sue the Band Council, leaving it to be raised against the new pleading if necessary.

No costs were awarded.

The applicant, a First Nations Constable with the Anishinabek Police Service (APS), was terminated by the Chief of Police following allegations of sexual misconduct.

The termination occurred without a hearing, contrary to the APS Code of Conduct.

The applicant sought judicial review.

The Divisional Court held that although the APS was created by a tripartite agreement and not by statute, it is a public body fulfilling a governmental function and is therefore subject to judicial review.

The court found that the applicant was a public office holder entitled to procedural fairness, which he was denied.

The decision to terminate was quashed.

The Mississaugas of Scugog Island First Nation sought judicial review of several Ontario Labour Relations Board (OLRB) decisions.

The OLRB had certified a union for employees at a casino located on the First Nation's reserve.

The First Nation subsequently passed its own Labour Relations Code and argued that it superseded the provincial Labour Relations Act, 1995, based on aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the application, upholding the OLRB's findings that it had jurisdiction to decide the constitutional question and that the First Nation failed to establish an aboriginal or treaty right to regulate labour relations.

The court also found that the OLRB's procedural rulings were not patently unreasonable.

The Attorney General of Canada sought leave to appeal an interlocutory order that dismissed its motion to strike portions of the plaintiffs' Statement of Claim regarding post-confederation annuity payments under a rectified treaty.

The motion judge had refused to strike the pleadings, reasoning that complex constitutional cases involving treaty interpretation should not be decided at the pleadings stage without a complete factual record.

The court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's decision to allow the action to proceed to trial.

The moving party brought a motion for leave to appeal a decision refusing to strike parts of the respondents' Statement of Claim.

The respondents claimed entitlement to increased annuities under a treaty.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision and noting that complex constitutional issues should generally not be decided at the pleading stage.

The plaintiffs sought leave to appeal to the Divisional Court from an order setting aside an ex parte Anton Piller order.

The motion judge had set aside the order due to material non-disclosure, including the failure of the plaintiff, a status Indian, to disclose that his undertaking as to damages was unenforceable under s. 89(1) of the Indian Act, and the failure to present a complete factual picture.

The Divisional Court found that while the failure to disclose the Indian Act provision might not alone justify setting aside the order, the overall material non-disclosure regarding the business relationship justified the motion judge's decision.

The motion for leave to appeal was dismissed.

The employer, Great Blue Heron Gaming Company, and the Mississaugas of Scugog Island First Nation brought motions to stay a decision of the Ontario Labour Relations Board (OLRB) pending judicial review.

The OLRB had determined that the Ontario Labour Relations Act applied to the employer's casino operations on the reserve, rejecting the First Nation's argument that its own Labour Code applied pursuant to aboriginal rights under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the stay motions, finding that while there was a serious issue to be tried, the applicants failed to demonstrate irreparable harm, and the balance of convenience favoured allowing collective bargaining to proceed for the 800 employees who had voted for union representation over a year prior.

The applicant First Nation brought a motion to stay proceedings before the Ontario Labour Relations Board pending judicial review.

The applicant challenged the Board's jurisdiction to decide constitutional questions regarding the applicability of labour laws to aboriginal persons.

The Divisional Court dismissed the motion, finding that the applicant failed to establish a strong prima facie case that the Board lacked jurisdiction, as the Board has the concomitant jurisdiction to decide constitutional questions arising from its power to determine questions of law.

The Court also reiterated its practice of refusing to fragment administrative proceedings absent extraordinary circumstances.

The applicants, members of the Grassy Meadows First Nation, brought an application for judicial review challenging the Minister of Natural Resources' authority to approve forest licences and management plans that allegedly infringed their Treaty 3 hunting and fishing rights.

The Minister and the licensee, Abitibi-Consolidated Inc., brought motions to quash the application.

The Divisional Court held that a single judge has jurisdiction to quash an application for judicial review.

The court quashed the application on the basis that much of the relief sought, which involved constitutional challenges and declarations against a private company, fell outside the court's judicial review jurisdiction.

Furthermore, the court exercised its inherent jurisdiction to quash the application because the complex factual and constitutional issues, including aboriginal treaty rights, required a full trial rather than a summary application.

The application was quashed with leave to commence an action.

The appellants sought to certify a class action against the federal government and others for alleged systemic physical, emotional, spiritual, and cultural abuse at a residential school operated between 1922 and 1969.

The motion judge dismissed the certification application, finding that a class proceeding was not the preferable procedure due to the highly individualized nature of the claims and the necessity of separate inquiries for each student.

The Divisional Court dismissed the appeal, upholding the motion judge's conclusion that the resolution of common issues would not significantly advance the litigation and that individual actions were the preferable alternative.

The applicants sought judicial review of the Minister of the Environment's approval of Terms of Reference for an environmental assessment regarding a proposed landfill expansion.

The core issue was the interpretation of section 6.1(3) of the Environmental Assessment Act, specifically whether the phrase 'other than' meant 'in addition to' or 'different from' the standard requirements.

The Divisional Court held that 'other than' means 'in addition to', requiring the proponent to fulfill the comprehensive environmental assessment requirements listed in section 6.1(2).

The Minister's decision approving the Terms of Reference was quashed.