Indigenous Legal Issues - ONSCDC

The applicant sought an extension of time to apply for judicial review of the Ministry of Mines' decision to add two other First Nations to consultation lists for mining projects on its traditional territory.

The applicant opposed adding the other First Nations as parties to the proceeding.

The court held that the entitlement of the other First Nations to participate as parties must be resolved before hearing the motion for an extension of time, as their rights were directly implicated by the proposed application.

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.

The appellant father appealed a trial decision awarding primary care and residence of the child to the respondent mother.

The father argued the trial judge erred in law by failing to give appropriate weight to the child's Indigenous cultural, linguistic, and spiritual upbringing and heritage.

The Divisional Court dismissed the appeal, finding that the trial judge correctly identified the legal principles and thoroughly examined the evidence.

The trial judge reasonably concluded that both parents were committed to and capable of fostering the child's Indigenous heritage, making it a non-decisive issue in this case.

No order as to costs was made.

The appellant mother appealed a trial decision finding her three children in need of protection and placing them in extended Society care.

The trial judge also reduced the mother's access from weekly to bi-monthly.

The Divisional Court dismissed the appeal regarding the protection finding and disposition, finding no palpable and overriding error in the trial judge's assessment of the risks and the mother's plan.

However, the Court allowed the appeal regarding access, finding the trial judge erred in law by failing to give full effect to section 17 of the federal Act Respecting First Nations, Inuit and Metis Children, Youth and Families, which requires promoting ties to family for Indigenous children.

The access issue was remitted to the trial judge for reconsideration.

The appellant father appealed a summary judgment order placing his twin children in extended society care.

The children, who are of First Nations heritage, had been in the care of the society since birth.

The appellant failed to meaningfully participate in the appeal hearing.

The Divisional Court reviewed the motion judge's findings regarding the lack of a genuine issue for trial, the best interests of the children regarding access, the absence of viable kinship placements, and the adequate consideration of the children's Indigenous heritage.

Finding no palpable and overriding error or error of law, the court dismissed the appeal.

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 applicant First Nation brought an application for judicial review alleging that the Crown's failure to decide applications for Permits to Take Water (PTTW) for existing hydroelectric dams breached the duty to consult and accommodate.

The Crown subsequently amended the Ontario Water Resources Act to exempt the dams from the PTTW requirement, as they were already regulated under the Lakes and Rivers Improvement Act.

The Divisional Court dismissed the application, finding that the PTTW applications did not trigger the duty to consult because they sought only to continue historical operations without introducing novel adverse impacts.

Furthermore, the legislative amendments were not unconstitutional as they did not remove the sole trigger for consultation, which remained available under the overlapping regulatory regime.

The applicant, a member of the Aamjiwnaang First Nation, sought judicial review of the Band Council's decisions to refuse her an allocation of tax-exempt unmarked cigarettes for her smoke shop.

The Council based its refusal on criminal convictions related to an unlicensed cannabis dispensary operating on the same property.

The Divisional Court dismissed the applications, finding that the Council reasonably interpreted its authority under the Tobacco Tax Act regulations to revoke quotas from retailers involved in the illegal sale of drugs.

Although the Council breached its minimal duty of procedural fairness by not giving the applicant an opportunity to respond to the information, the Court declined to quash the decisions because the outcome would not have been different.

The applicants sought judicial review of the Crown's decision to enact amendments to the Environmental Assessment Act and revoke the Forestry Regulation, arguing these actions breached the Crown's duty to consult under s. 35 of the Constitution Act, 1982.

The Divisional Court dismissed the application.

The majority held that the duty to consult does not apply to the legislative process, relying on Mikisew Cree.

Regarding the revocation of the Forestry Regulation, the majority found no constitutional duty to consult as the revocation did not adversely affect Aboriginal or treaty rights, and even if a duty existed, it was at the low end of the spectrum and the Crown's consultation was adequate.

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 moving parties brought a motion for leave to appeal an earlier order.

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

The applicant, a First Nation person operating a tobacco distribution business on a reserve, sought judicial review of the Minister's direction requiring wholesalers to pre-collect provincial tobacco tax from her.

She argued this violated her tax exemption rights under section 87 of the Indian Act and the Tobacco Tax Act regulations.

The Divisional Court dismissed the application, finding that the statutory exemption for 'exclusive use' does not apply to tobacco purchased for resale.

The court also held that the provincial pre-collection scheme is constitutional, does not conflict with the Indian Act under the paramountcy doctrine, and does not impair core federal jurisdiction under the interjurisdictional immunity doctrine.

A case management teleconference was held regarding two related applications involving Indigenous child and family services.

Counsel for the moving party did not attend due to an administrative error by court staff.

The court noted ongoing discussions to convert one of the applications into an action and directed the parties to resolve the issue or bring a motion.

The court also addressed scheduling, noting that a return date before the end of 2020 would require proof of readiness and urgency, and encouraged the parties to agree on a schedule.

Following the dismissal of the applicants' motions for a stay of a Ministerial Directive, the court determined the costs of the motions.

The intervenor's request for costs was denied, as the opposition to the stay was already mounted by the respondents.

The respondent Tikinagan sought partial indemnity costs of approximately $108,000.

The court found this amount excessive, noting the public interest nature of the case, the overlap of work with the main applications, and the principle of proportionality.

Costs were fixed at $50,000 payable to Tikinagan, with each applicant responsible for $25,000.

The applicants, Dilico Anishinabek Family Care and Fort William First Nation, brought a motion for a stay of a Minister's Directive and Designation pending their applications for judicial review.

The Directive designated Tikinagan Child and Family Services to provide child and family services to certain Indigenous children in Thunder Bay.

The court applied the three-part test for a stay.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm or that the balance of convenience favoured granting the stay.

The motion was dismissed, with written reasons to follow.

The applicant sought to review a decision quashing his application for judicial review of the Métis Nation of Ontario's (MNO) refusal to grant him membership.

The motion judge had found that MNO was a private voluntary organization, not a public body subject to judicial review.

The applicant also moved to introduce fresh evidence of a 2019 agreement between MNO and Canada.

The Divisional Court dismissed both motions, finding the fresh evidence would not have affected the result and agreeing that MNO remains a private entity subject to private law until formally recognized as a government.

The applicant sought judicial review of the Minister's decision to refuse to renew his commercial trapping licence for a specific trapline and to allocate it to an Indigenous trapper.

The applicant had initially been allocated the trapline, but the Ministry later determined it had erred in rejecting the Indigenous trapper's claim of ancestral connection to the area.

The Divisional Court dismissed the application, finding that the Minister's discretionary decision was reasonable, intelligible, and transparent.

The court also held that the applicant was afforded adequate procedural fairness, as he was kept informed and had no substantive property right to the trapline.

The applicant First Nation sought judicial review of decisions by the Ontario Lottery and Gaming Corporation and the Minister of Finance regarding the modernization of gaming in Ontario, specifically the decisions to tender and bundle a gaming zone that included the applicant's reserve.

The Divisional Court dismissed the application, finding that the impugned decisions were policy and commercial in nature and therefore not justiciable.

The court also found no bad faith, no denial of procedural fairness, and no breach of the duty to consult.

Furthermore, the court granted the respondents' motion to dismiss the application for excessive and unexplained delay that caused prejudice.

The applicant sought judicial review of a decision denying his application for citizenship in the Métis Nation of Ontario (MNO).

The MNO brought a motion to quash the application on the basis that the court lacked jurisdiction.

The Divisional Court granted the motion, finding that the MNO is a private, voluntary organization and its membership decisions do not fall within the public law sphere.

Consequently, the decisions are not subject to judicial review under the Judicial Review Procedure Act.

The applicants sought judicial review of decisions by two coroners refusing to issue a summons to a government official to testify about the composition of the jury roll in the Thunder Bay district, specifically regarding the representation of First Nations individuals.

The Divisional Court dismissed the applications, holding that coroners have no statutory authority under the Coroners Act to inquire into or remedy the process used by the sheriff to compile the jury roll under the Juries Act.

The court found no jurisdictional error or breach of natural justice in the coroners' refusals.