ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Foxgate Developments Inc.
Paul DeMelo for the plaintiff
Plaintiff
- and -
Jane Doe, John Doe, Skyler Williams, or any agent or person acting under their instructions and other persons unknown and The Corporation of Haldimand County
Defendants
Meaghen Daniel, Aliah El-Houni, Leila Gaind, and Sima Atri for the defendant, Skyler Williams
Bruce Macdonald for the defendant, The Corporation of Haldimand County
Richard Ogden, Hera Evans, and Shayna Levine-Poch for the Intervenor, the Attorney General of Ontario
HEARD: September 12 and 13, 2022 at Cayuga
REASONS FOR JUDGMENT
The Honourable Mr. Justice P. R. Sweeny
INTRODUCTION
1The plaintiff, Foxgate Developments Inc. (“Foxgate”), holds title to the lands at 1535 McKenzie Road, Haldimand County, Ontario (“the Lands”). The defendant, The Corporation of Haldimand County (“Haldimand”), is the local municipality. The defendant Skyler Williams (“Mr. Williams”) is a Haudenosaunee man who was added to these proceedings on the basis that he was a specific named individual who set up camp on the Lands. The defendants Jane Doe and John Doe represent the unidentified individuals who have occupied the Lands, “spray bombed” and damaged equipment on the Lands, and who have set fires on, damaged and blockaded roads in Haldimand.
2This is a claim by Foxgate for a permanent injunction to prevent protestors from interfering with Foxgate’s use of the Lands for the construction of 218 homes. It is also a claim for an interlocutory injunction by Haldimand to ensure that persons do not blockade or otherwise interfere with the public’s use of the roads.
3On July 30, 2020, Foxgate was granted an interim injunction restraining the individual defendants from interfering with the development of the Lands. On August 25, 2020, Mr. Williams was added as a defendant to the action. Mr. Williams filed a statement of defence. At a hearing on October 9, Mr. Williams admitted that he was in contempt of court and said he would continue to occupy the Lands. In an endorsement dated October 16, 2020, Harper J. held that he would not permit Mr. Williams to proceed against Canada and Ontario while he was not in compliance with court orders. He did hold that if Mr. Williams did comply, Mr. Williams could fully participate in the proceedings.
4On October 22, 2020, Mr. Williams indicated that he would not comply with permanent injunctions if they were ordered. The hearing proceeded without Mr. Williams’ participation.
5On October 29, 2020, Harper J. found Mr. Williams’ conduct amounted to an abuse of process, granted permanent injunctions, and ordered him to pay costs.
6On December 21, 2021, the Ontario Court of Appeal set aside the order of Harper J. striking Mr. Williams’ pleadings, the permanent injunction, and the costs awards. The matter was sent back to be considered by another judge of the Superior Court. I am that judge.
INITIAL PROCEDURAL ISSUE
7At the outset of the hearing, I raised the issue that the granting of a permanent injunction was the relief sought in the statement of claim as a final remedy. There were no affidavits of documents exchanged, no examinations for discovery held, and there were affidavits filed but no cross-examinations had been conducted on the affidavits.
8I granted the parties time to consider the issue. The parties agreed, on consent, that this matter would proceed for the determination of the issues of whether an interlocutory or permanent injunction should be granted. This would proceed as the trial of those issues and any issue as to damages would be dealt with later. This was a consent bifurcation under rule 6.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
9The parties asked that these matters be determined based on the record before me. In the circumstances, this is the just, most expeditious, and least expensive manner to determine this dispute.
10This procedural issue causes me concern, but I am satisfied that I can make the necessary findings to determine the issue with respect to the requested injunctions.
11With respect to the claim of Haldimand for a permanent injunction, the defendant Mr. Williams agreed that the only issue that would be determined is whether an interlocutory injunction is presently in place, and, if not, whether one should be granted. Haldimand does not seek a permanent injunction at this time.
FACTUAL OVERVIEW
12Foxgate purchased the Lands on September 9, 2015. They were previously used for farming and adjacent to an existing residential development. There is no notice of any claims on title except for easements for Ontario Hydro and Union Gas Limited.
13The Lands were originally approved for development in 2003. At that time, the planning applications were circulated to the Six Nations of the Grand River (“Six Nations”) and the Mississaugas of the Credit First Nations (“Mississaugas”). No response was received from the Six Nations or Mississaugas.
14On December 16, 2016, Haldimand approved an application that had been submitted for Draft Plan Approval by Foxgate. Both the application for a zoning by-law amendment and for draft plan of subdivision were the subject of a public process that included the holding of a public meeting and requests for comments from any interested parties in accordance with the applicable provision of the Planning Act, R.S.O. 1990, c. P.13.
15In accordance with the applicable regulatory process, Foxgate also notified representatives of the Six Nations and the Mississaugas of its intention to develop the property under the Grand River Notification Agreement. No comments were received from the Six Nations or Mississaugas.
16Foxgate took all the required steps to allow it to develop the Lands for the purposes of building homes. Archaeological investigations were undertaken which revealed no areas of concern. In the fall of 2018, homes were offered to the public for sale with closing dates in November 2022.
17In 2019, Foxgate entered into a Definitive Agreement with the Six Nations Elected Council (“SNEC”). This agreement transferred land to the Six Nations. It also paid funds in trust for land development of the Six Nations.
18After all the approvals were obtained and the Definitive Agreement was negotiated and signed, Foxgate began construction of site services in May 2020. Much of this work had been completed as of mid-July 2020.
19Mr. Williams became aware of the development when he noticed the work being done in July 2020. He decided to act at that point. On July 18, Mr. Williams posted publicly on Facebook: “anybody know about this development that’s supposed to go right to the front door of site in Caledonia.” He then posted: “I think it’s time for a land back occupation.”
20On July 20, 2020, approximately 12 unidentified persons entered the lands to protest the development. As part of the protest, individuals began to “spray bomb” heavy machinery, vehicles and equipment causing significant damage to the property. The effect of this occupation has been to sabotage equipment and hold up the completion of site servicing on the Lands.
21An injunction was obtained on July 30, 2020. After initially leaving the Lands, unidentified persons returned. They set up road blockades, set tires on fire on the roads and damaged the roadway.
22The road blockades are now down, but individuals are still occupying the Lands. A series of interlocutory injunctions were issued which I will review in more detail later in these reasons.
23On August 25, 2020, Mr. Williams was added as a defendant, having been identified as a protest leader and an instigator of the protest. On October 22, 2020, the permanent injunction hearing was held, and Mr. Williams did not participate. By reasons dated October 29, 2020, Mr. Williams’ defence was struck out and permanent injunctions were granted. Mr. Williams was ordered to pay costs of about $168,000.
24On December 21, 2021, the Court of Appeal set aside the order striking Mr. Williams’ pleadings, the permanent injunction, and the costs award.
25Mr. Williams has filed a statement of defence and cross-claim against Haldimand for contribution and indemnity. Because this is a bifurcated proceeding, I need not address the issue of damages and so am not required to make any determination of the cross-claim. A third-party claim was issued against the Federal Crown and Provincial Crown, but the parties have agreed that those third-party claims are not before me.
26Mr. Williams has filed responding material to this motion.
27He also served a Notice of Constitutional Question, questioning the constitutional validity of the common law test related to the granting of temporary and permanent injunctions where granting such an injunction infringes sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) and extinguishes constitutionally protected rights under s. 35 of the Constitution Act, 1982.
28The Attorney General of Ontario appeared to respond to the Notice of Constitutional Question. A letter dated September 9, 2022, advised that the Attorney General of Canada would not intervene in this hearing in response to the Notice of Constitutional Question.
29The Haudenosaunee Confederacy Chiefs Council (“HCCC”) claims to be both the hereditary and traditional governing body of the Six Nations people. The HCCC did not appear on this motion and is not a party to this action.
POSITIONS OF THE PARTIES
Foxgate
30Foxgate says it owns the property. It has complied with all applicable regulations. In fact, it has gone above and beyond the applicable regulatory framework and specifically negotiated with the SNEC. The defendants are trespassing, interfering with its clear legal rights, and a permanent injunction should be granted.
Haldimand
31Haldimand asserts that it has an existing interlocutory injunction restraining the defendants and other persons from, among other things, blocking or occupying any highways, streets, or roads in Haldimand County, interfering with free and unfettered access to same by residents of and visitors to Haldimand, and requiring them to vacate and dismantle existing blockades. It further submits that if there is no interlocutory injunction in place, it is entitled to one.
Mr. Williams
32The issue as articulated by Mr. Williams is that in a context where an injunction is sought and Indigenous rights are engaged and/or where the injunction may be disobeyed by Indigenous persons leading to potential contempt proceedings, the court must be satisfied that the Crown has properly fulfilled its obligation of consultation and ensure that consultation has occurred. In this case, as Indigenous rights are engaged and there is the potential that an injunction will be disobeyed, Mr. Williams asserts that the Crown is obligated to respond and answer for the requirement for consultation. The Crown has not appropriately engaged in consultation, and on that basis, no injunction should issue.
33Mr. Williams also asserts that because the injunction will affect him as an Indigenous person, his s. 15 and s. 7 rights under the Charter need to be considered in the law related to injunctions. He further argues that the court must consider the principles in Gladue and Ipeelee whenever there is a risk of criminalization of Indigenous persons and that applies in this case.
34On the Haldimand issue, Mr. Williams says that there is currently no interlocutory injunction in place. He further submits that no interlocutory injunction should issue. There is no evidence that further blockade will occur.
Intervenor- The AG of Ontario
35The Attorney General of Ontario intervenes in response to the Notice of Constitutional Question and submits that the law as articulated by the Court of Appeal in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, and subsequent cases provide a sufficient framework to balance constitutional claims by Indigenous communities and the property rights of third parties. Further, the common law already provides sufficient means to balance Charter values and property rights when third parties seek injunctive relief. No amendment to or expansion of the common law concerning injunctions is necessary.
ISSUES
36I heard submissions on many issues. In my view, the most appropriate way to address the issues and the arguments made is to answer the following questions:
Is an interlocutory injunction presently in existence?
Is the expert evidence tendered by Mr. Williams admissible, and if so, what weight is it to be afforded?
Does Foxgate hold legal title to the Lands?
What is the legal test for a permanent injunction generally?
What is the nature of the duty to consult?
Is the test for injunctive relief modified in circumstances where Indigenous rights are asserted?
Are Section 35 rights asserted in this case?
Does the duty to consult arise where there is the potential for criminalization of an Indigenous person’s behaviour?
Is the common law test for injunctive relief consistent with Charter values?
Must the considerations outlined by the Supreme Court of Canada in R. v. Gladue and R. v. Ipeelee be taken into consideration in determining whether an injunction should issue?
Was there notification to, and were there opportunities for participation by, the Indigenous community?
Is the test for a permanent injunction met in this case?
1. Is there an Interlocutory Injunction presently in existence?
37An interim injunction was sought by Foxgate and granted by Harper J. on July 30, 2020, on a without notice basis, restraining the defendants’ conduct with respect to the Lands. The July 30, 2020 Order specifically provided for service of the motion material in paragraph 5 as follows:
THIS COURT FURTHER ORDERS that posting of the Notice of Action, Notice of Motion, and any Court Orders at 1535 Mackenzie Road in Caledonia and the municipal offices at The Corporation of Haldimand County at 53 Thornburn St. S., Cayuga, Ontario, and by delivery of one copy of the Notice of Action and Court Orders to any persons in any way interfering with access to and from the Lands or with the Proposed Development, shall be good and sufficient service of the Notice of Motion, Notice of Action, and any Court Order on the Respondents, and other persons unknown.
38The matter was to be returnable on August 7, 2020. On August 6, 2020, Haldimand brought a motion, without notice, for an injunction to, among other things, prohibit anyone from preventing access to, and use of, the public highways and roadways in Haldimand County. On August 7, Haldimand was granted an interim injunction and the matter was made returnable August 25, 2020. The Foxgate injunction was extended to August 25, 2020. Harper J. released his endorsement on August 21, 2020, with his reasons for granting the interlocutory injunctions reported in Foxgate Development Inc v. Doe, 2020 ONSC 5038. Harper J. noted, at para. 8, that on August 7, 2020, no one had appeared to respond to the motions.
39On August 25, 2020, an order was made adding Mr. Williams as a party and deadlines were set for the delivery of responding materials. Both interlocutory injunctions were continued. In his endorsement dated October 16, 2020, with reasons reported in Foxgate Development Inc v. Doe, 2020 ONSC 6244, Harper J. addressed Mr. Williams’ claims and held that he was not allowed to pursue them. The injunctions were continued, and the matter was adjourned to October 22, 2020.
40On October 22, 2020, a hearing was held. In his endorsement of October 29, 2020, with reasons reported in Foxgate Development Inc. v. Doe, 2020 ONSC 6529, Harper J. struck out Mr. Williams’ pleadings and responding material, granted a permanent injunction, and ordered Mr. Williams to pay significant costs..
41On December 21, 2022, the Court of Appeal overturned the October 29, 2020 Order related to Mr. Williams, and sent the matter back to be determined by another judge. The Court of Appeal did not set aside any previous orders of Harper J. granting interlocutory injunctions and those prior orders were not appealed.
42It is clear on the record that the interlocutory injunctions remain in place. They were granted with reasons reported at 2020 ONSC 5038. Accordingly, Haldimand’s injunction, as set out in the order of August 25, 2020, is still in place, as is the injunction granted to Foxgate. This issue has already been determined. It is not for me to review the decision already made by Harper J. There is no need to further address the issue relating to Haldimand.
2. Is the expert evidence tendered by Mr. Williams admissible and, if so, what weight is it to be afforded?
43Mr. Williams tendered expert evidence from two experts. Neither their expertise nor the admissibility of their evidence was challenged. I will briefly review their evidence.
Dr. Shiri Pasternak
44Dr. Shiri Pasternak was retained to provide expert opinion evidence on the changing use of injunctions, and in particular the increased reliance on injunctions by extractive industries or development corporations as against First Nations people. In addition, she was asked to evaluate the legal trends in the case law with regards to injunctive relief sought by and against First Nations people.
45The report opines that bias is baked into the test for injunctive relief, thereby producing a disproportionate impact on First Nations people. This evidence, Mr. Williams submits, demonstrates that the test is inconsistent with the Charter.
46Dr. Pasternak’s opinion is based on an analysis of many different claims and disputes, and focuses on injunctions decided in the context of established or asserted s. 35 rights.
47The summary of decided cases is in essence advocacy. The analysis of the results of individual cases provides little assistance in determining the case before me.
48I must deal with the evidence and the law that applies to the case before me. If there is a similar case, I must consider it. I am bound by higher courts’ decisions, and am only to follow other Superior Court decisions that have determined an issue on similar facts. If there are distinguishing facts, I need not follow what other Superior Court judges have done.
Dr. Susan Hill
49Dr. Hill was requested to: (1) outline the historical, cultural, and legal significance of land to Haudenosaunee people and (2) evaluate the ability and the appropriateness of courts to adjudicate on the above in the context of inherent and constitutional rights defences to injunctions sought by a private corporation.
50It contains comment about the Haudenosaunee relationship to the land and land being a defining feature of Haudenosaunee identity, cultural history and legal orders. With respect to the consideration of Haudenosaunee law within Canadian courts, Dr. Hill wrote:
Leading experts related to Haudenosaunee land and legal systems concur that decades of training, study, and processing/reflection are necessary in order to understand the tenets required to adequately consider how Haudenosaunee law ought to be considered when assessing the legitimacy of the legal system in the context of the contemporary laws that can and should apply within Kanonhsyonni:ke.
51I understand that Dr. Hill’s evidence intends to elucidate the breadth of issues that arise when Indigenous rights are engaged, the understanding of which cannot be accomplished within the confines of injunction proceedings. However, this opinion does not necessarily mean that the common law test for injunctive relief as applied in such proceedings is itself incompatible with Charter values.
52This opinion does not discuss Haudenosaunee law, views or tenets in situations where an individual objects to the conduct of another, nor does it outline a dispute resolution process for situations such as the one before me. If a group of individuals disagree with decisions made by others, how is that resolved? While it provides some background information about Haudenosaunee beliefs, it is of no real value in assisting me in my decision.
3. Does Foxgate hold legal title to the Lands?
53This is an important issue because it provides the context for the dispute.
54The Lands were part of the Crown grant in 1853 to a Mr. Nichols. Since that time, title has been transferred to various persons and ultimately to Foxgate. Foxgate was a bona fide purchaser for value with no notice of any claim or interest being advanced by any Indigenous groups or persons. There has been no action taken to challenge the title.
55In John Voortman & Associates Limited v. Haudenosaunee Confederacy Chiefs Council, 2009 CanLII 14797 (Ont. S.C.), Henderson J. wrote, at paras. 53-55:
53The validity of a Crown Patent was raised in the case of The Chippewas of Sarnia Band v. Canada, 2000 CanLII 16991 (ON CA), 51 O.R. (3d) 641. In that case at para. 24 the Ontario Court of Appeal held that a Crown Patent was valid on its face and continued to have legal effect unless and until a court decides to exercise its discretion to set it aside.
54In that case, the court found that the aboriginal lands in question had never been surrendered, and therefore the validity of the Crown Patent, known as the Cameron Patent, was called into question. The court had to consider a potential remedy for the Chippewas. At para. 243 the court wrote:
“In particular, the issue was whether it is appropriate, in deciding whether or not to accord the Chippewas a remedy, for the court to consider that no claim was asserted for 150 years, and that innocent third parties may have relied on the apparent validity of the Cameron patent.”
55The court decided that because of the delay of 150 years in asserting the claim, combined with the reliance on the Patent by the registered owners, the court should use its discretion to refuse a remedy in the form of a return of or possession of the land. However, the court noted that the Chippewas still had a claim against the Crown for damages. See paragraphs 246, 248, 302, and 310 of the Chippewas case.
56In the Chippewas case, there was a determination that there had not been a surrender. In this case, no such determination is being made.
57Foxgate holds legal title to the Lands. Even if there was no surrender of the Lands, I would not set aside Foxgate’s title.
58There is no basis to challenge Foxgate’s ownership and there is no basis for Mr. Williams to assert any legal right to occupy the Lands. No authorized group or potentially authorized group has challenged Foxgate’s title. Mr. Williams is not a person authorized to assert title to the property on behalf of the Haudenosaunee, and in any event, he has not taken any positive action to do that. There is no counterclaim.
59Though there appears to be no dispute that Foxgate holds legal title to the Lands, what appears to be in dispute is how that title was acquired. I will address this issue because there appears to be a misunderstanding on the part of Mr. Williams as to the history of the Lands.
60Dr. Pasternik, in her opinion, stated that the Haudenosaunee’s original homeland was in what is now known as upstate New York. This does not appear to be in dispute.
61This is consistent with the decision of the Court of Appeal in Isaac v. Davey (1975), 1974 CanLII 40 (ON CA), 5 O.R. (2d) 610 (C.A.), aff’d [1997] 2 S.C.R. 897, where the court dealt with the issue of title to property including the Lands. Succinctly, and all too simplistically put, the Six Nations had territory in upstate New York. In 1783, after war between Britain and the American colonies had ended, , Haldimand purchased property from the Mississaugas on behalf of the Crown. This property, described as six miles on either side of the Grand River, was provided to the Six Nations in acknowledgement of the support given during the war. This did not grant title in fee simple to the property to the Six Nations. Over the course of time, the Six Nations surrendered some of the property to the Crown. The Lands are a portion of the Haldimand tract surrendered to the Crown and subsequently sold by the Crown to third parties.
62The circumstances surrounding the surrender by the Six Nations to the Crown of property is an issue which is being litigated at the present time. This claim was issued in 1995 and was recently amended. It is being case managed by Sanfilippo J. and is scheduled to be heard in 2023. In the claim, the Six Nations allege that the Crown owed and breached its fiduciary and treaty obligations to it in the 18th and 19th centuries. They seek declarations of breach of fiduciary duty, accounting, and damages and/or equitable compensation. They do not seek the return of the property or challenge the title of persons who obtained the land by Crown Patent.
63In her opinion, Dr. Pasternak refers to this ongoing case and notes that no significant redress has yet occurred. She is correct.
64In 1536412 Ontario Limited v. Haudenosaunee Confederacy Chiefs Council, 2008 CanLII 28041 (Ont. S.C.), Ramsay J. specifically addressed the issue with respect to land in the same area as the Lands in this case. At paras. 20-21, he wrote:
20The parcel of land in question was surrendered to the Crown in 1844. It was sold by the Crown in 1891, for the benefit of the Six Nations people. The Six Nations people may have a right to an accounting from the federal government with respect to the proceeds of the sale, but it will be difficult for the defendants to maintain at trial that they have an interest in the land. Aboriginal land rights can be alienated by surrender to the Crown: Delgamuukw, ¶113. Even if the defendants have evidence to challenge the validity of the surrender, they will not necessarily succeed in an action against subsequent purchasers for value without notice: Chippewas of Sarnia Band v. Canada (Attorney General), 2000 CarswellOnt 4836 (C.A.).
21I am unable to identify any other type of aboriginal right that could arise from any distinctive prior use of the land. Moreover, regulating development of residences for non-aboriginals would seem to be irreconcilable with any prior use that could reasonably be alleged to give rise to aboriginal rights: Delgamuukw, ¶128.
65Ramsay J. was dealing with an interlocutory injunction. He was not required to make the findings that I have in this case, but the analysis is similar.
66Foxgate’s situation is no different from a homeowner who owns property on the Grand River in Caledonia. The homeowner’s title is secure, as is the title of Foxgate. Mr. Williams has no basis or standing to challenge it.
4. What is the test for a permanent injunction generally?
67The general legal test applicable to permanent injunctions was expressed by the Court of Appeal in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 444 D.L.R (4th) 183, at paras. 24-25, as follows:
24We reiterate that permanent injunctions constitute extraordinary relief that must be granted sparingly. A different test applies for a permanent injunction than for an interlocutory injunction. A different test is required because, in considering an application for a permanent injunction, the court has the ability to finally determine the merits of the case and fully evaluate the legal rights of the parties. See 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 76-80; Cambie Surgeries Corp., at paras. 27-28.
25As referenced in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, in NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46, 358 Nfld. & P.I.E.R. 123, at para. 72, the Court of Appeal of Newfoundland and Labrador summarized the approach to be applied in deciding whether to grant a permanent injunction:
(i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suit should be dismissed);
(ii) Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not,
the injunction claim should be dismissed);
(iii) Is there an adequate alternate remedy, other than an injunction, that will provide
reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy);
(iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.);
(v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?
(vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been
proven or threatened or to effect compliance with its intent? [Emphasis added.]
68Mr. Williams argues that the test is modified in circumstances where Indigenous rights arise and/or where the result of the breach of an injunction would be to criminalize Indigenous persons. He submits that the Court of Appeal decision in Frontenac requires that I be satisfied that there has been appropriate consultation by the Crown and that every effort has been made to find a negotiated or legislated solution to the dispute. In order to address these arguments, I am going to first deal with the nature of the duty to consult and the role of the Crown.
5. What is the nature of the duty to consult?
69The duty to consult and, where appropriate, accommodate described in Haida Nation v. B.C. (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 arises as part of the “process of honourable negotiation” required of the Crown by s. 35(1) of the Constitution Act, 1982: Haida Nation, at para. 20. It is a constitutional principle and a core precept of Aboriginal law.
70The purposes of s. 35(1) are to recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern‑day existence with the Crown’s assertion of sovereignty, and “[t]hese same purposes are reflected in the principle of the honour of the Crown, under which the Crown’s historic assertion of sovereignty over Aboriginal societies gives rise to continuing obligations to their successors as part of an ongoing process of reconciliation”: R. v. Desautel, 2021 SCC 17, at para. 22.
71The duty to consult is triggered when the Crown has real or constructive knowledge of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it: Haida Nation, at para. 35. The Supreme Court of Canada explained in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at paras. 41, 45:
41The 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.
45The third element of a duty to consult is the possibility that the Crown conduct may affect the Aboriginal claim or right. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, including previous breaches of the duty to consult, do not suffice. [Citations omitted.]
72In Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R 227, the Supreme Court of Canada recognized the collective nature of rights guaranteed by s. 35 giving rise to the duty to consult. The court found it was an abuse of process to assert, in defence of a tort claim, that the timber licences and road permit granted to the plaintiff were not valid because of a failure to consult: at para. 37. In that case, the defendants were not authorized to act on behalf of the Indigenous community and assert a breach of the duty to consult on their own: at para. 31.
73At para. 30, LeBel J. wrote:
The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature: Beckman, at para. 35; Woodward, at p. 5-55. But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights: see, e.g., Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.
74Thus, what is required is a s. 35 right being asserted by an individual or individuals authorized to assert that right on behalf of the community and conduct which might adversely affect it. That is because the duty to consult exists to protect collective rights of the Indigenous community. The duty to consult is engagement with the community. It is not owed to any individual. It is the community interest which is the concern. The consultation is forward looking and addresses the relationship between the Indigenous community and the Crown.
75Given the nature of the duty to consult, the Supreme Court of Canada has said the duty cannot be delegated: Haida Nation, at para. 53. That is to say, if there is a duty to consult, then the Crown is the party that must do the consultation. However, the Crown need not be a party to assert that the duty to consult is not triggered.
6. Is the test for injunctive relief modified in circumstances where Indigenous rights are asserted?
76The Ontario Court of Appeal in Frontenac suggested in obiter dicta that there are special considerations that may apply to the situation related to interlocutory injunctions in circumstances similar to this case, at para. 46:
Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.
77The Court of Appeal provided this guidance at para. 48 of Frontenac:
Where a requested injunction is intended to create "a protest-free zone" for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, "The John Doe Injunction in Mass Protest Cases" (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532 S.C.R.
78Mr. Williams says that there is a duty to consult and that the court has an obligation to ensure that it has been done and encourage a negotiated or legislated solution.
79In Frontenac, there was an outstanding land claim covering the lands upon which the exploratory drilling was to be conducted. In that case, the Chiefs and other members had engaged in peaceful protest. It is important to appreciate the case the Court of Appeal had before it. In that case, although the Indigenous defendants did not fully participate in the injunction hearing, the issues with respect to the dispute over the land were well known. They were clearly articulated by the Court of Appeal. The exploratory drilling was “contentious” activity in the face of an acknowledged land claim: Frontenac, at para. 48.
80The Court of Appeal statements were obiter dicta. They were not part of the actual decision of the court. The court was deciding the appropriate punishment for contempt. As such, they provide guidance but do not provide a binding authority on the issue.
81It is important to note in para. 46 the court’s reference to “constitutionally protected aboriginal rights” being asserted. Further, at para. 48, the court refers to “a protest-free zone” for “contentious private activity that affects asserted aboriginal or treaty rights.”
82In Nalcor, the Newfoundland and Labrador Court of Appeal held that the test for injunctive relief does not involve a pre-condition that the claimant satisfy the court that the duty to consult and accommodate has been exhausted or that the court take steps to facilitate such consultation and accommodation. As Greene C.J.N.L. explained, at paras. 41-42:
41I conclude, therefore, that the principles applicable to the granting of an injunction are no different just because aboriginal claims for consultation and accommodation may be involved in the issues regarding the cause of action being asserted and the specific remedy being sought. There is no pre-condition to application of the general principles for granting or refusing an injunction that the claimant satisfy the court that the duty to consult and accommodate has been exhausted and that the court must take steps to facilitate such consultation and accommodation. If there were such pre-conditions, a defendant resisting a remedy for vindication of claimed rights would always be able to stymie, or at least significantly delay, an injunction by simply asserting that the duty to consult has not been exhausted. That result would run counter to reassertion in Behn that the duty to consult does not give aboriginal peoples “a veto” (paragraph 29).
42That is not to say, however, that claims concerning the duty to consult and accommodate are completely irrelevant to any claim for an injunction. If, indeed, the claimant asserting the cause of action on which the claim to an injunction is based, is the Crown or an agent of the Crown, the question of whether the Crown and the agent have made efforts to comply with their duty to consult and accommodate may be relevant to the exercise of the Court’s decision to deny an injunction on discretionary grounds.
83In Nalcor, the court allowed the appeal on the basis that the judge had not addressed the cause of action requirement. As such, the comments were not necessary for the decision and were obiter dicta. Nonetheless, the court was clear in its view of the matter.
84More recently, in Enbridge Pipelines v. Williams, 2017 ONSC 1642, Broad J. had before him the case where an injunction was sought by a private party. He held that the question of whether the Crown made efforts to comply with its duty to consult and accommodate was not relevant since the claimant was neither the Crown nor an agent of the Crown: at para. 33.
85At para. 34, Broad J. noted:
The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised.
86Nalcor and Enbridge hold that private parties do not need to address the issue of consultation and satisfy the court that there has been an effort at negotiation. The court in Frontenac appeared to suggest that the court does. In Behn, the court says that it is an abuse of process for an individual to assert failure to consult as a defence to a tort claim as a means of challenging Crown authorizations which could have been, but were not, challenged at the time of their issuance.
87Where does that leave us?
88In my view, based on the authorities, the court is only obliged to make every effort to encourage consultation, negotiation, accommodation, and reconciliation among competing rights and interests and must ensure that every effort has been made to obtain a negotiated or legislated solution when certain pre-conditions are present.
89Those pre-conditions include that the injunction might have an effect on s. 35 aboriginal or treaty rights asserted by a proper rights holder. Nalcor also says that the duty to consult would only arise where the Crown or its agents are parties. Thus, it is not every instance in which a party seeks injunctive relief against Indigenous persons that the Frontenac obligations arise.
7. Are Section 35 rights asserted in this case?
90Mr. Williams has specifically indicated he is not asserting a s. 35 right. However, he does assert that there are s. 35 rights outside of the courtroom. Mr. Williams submits that those unasserted rights must be taken into consideration by me and leads to the Frontenac obligations.
91In support of this position, he refers to the fact that in Frontenac, the parties did not participate in the injunction proceedings, but nevertheless, the court considered s. 35 rights. In that case, the Algonquin Ardoch First Nation had participated in protesting the mineral exploration activities, participated in negotiations, admitted its contempt, provided evidence of Algonquin Law concerning the mining company’s activities and appealed the sentence. In Frontenac, the Court of Appeal was able to articulate the collective position of the Algonquin Ardoch First Nation. There was no doubt in that case that s. 35 rights were involved.
92In contrast, in this case, no s. 35 rights are asserted. And there is no community-authorized assertion of rights. This is not a case where the Indigenous rights out there, that is, the claim about the Lands and the obligations that the Crown may have as a result of the surrender, are rights of such a nature as could be asserted by an individual. This is unlike the situation in Beaver v. Hill, 2018 ONCA 816, 428 D.L.R. (4th) 288, at paras. 38-39, where the court recognized that Mr. Hill’s “personal claim” to have the parties’ family law dispute decided according to Haudenosaunee law might be a s. 35 right capable of being asserted by an individual.
93I note that although Mr. Williams seems to recognize that collective Haudenosaunee rights are at stake and must be taken into account, it appears we have the individualization of these collective rights. Mr. Williams’ position is ultimately only representative of one or a select few persons. This is not a case where there is a conflict between two competing groups each asserting that it is the authorized representative of the collective.
94Mr. Williams was added as a defendant. He did not ask to be added. He was not put forth as a representative. His participation was not his choice. His actions are his own. He acts as an individual, as do the others who joined him. The evidence discloses that non-Indigenous persons were also involved.
95I accept the proposition that in certain circumstances, it is appropriate for the court to encourage and require the Crown to engage in a process of consultation, negotiation, accommodation and reconciliation of the competing rights and interests. However, in my view, based on the authorities, there must be an asserted s. 35 aboriginal or treaty right and the Crown must be a party.
96In this case, there being no s. 35 aboriginal or treaty rights actually asserted by a proper rights holder, there is no duty to consult. There is also no requirement to ensure that every effort has been made to obtain a negotiated or legislated solution.
97To the extent that there are any persons purported to be authorized to act on behalf the Indigenous community, the SNEC has already approved of the development and the HCCC has not appeared.
8. Does the Frontenac obligation to ensure that every effort has been made to obtain a negotiated settlement arise whenever there is the potential to criminalize an Indigenous person’s behaviour?
98Mr. Williams says that the Frontenac obligations arise not only where there are s. 35 rights involved, but also where the result of the injunction could lead to criminalization of Indigenous persons as a result of continued protest.
99I do not accept this argument. It fails to take into consideration that the Frontenac obligations must be applied where there is a s. 35 right or rights involved. In the absence of an asserted and articulated s. 35 right, this assertion becomes simply that any potential violation of an injunction by an Indigenous person is sufficient to require the direct involvement of the Crown or that the court is required to take steps to ensure that efforts have been made for a negotiated or legislated solution. This is precisely the kind of “veto” that the court in Nalcor identified as unacceptable.
100This would lead to the requirement for this process in the case of a homeowner who seeks to have an addition put on their house on the Grand River in Caledonia. The homeowner, having obtained the necessary approvals and variances, starts construction. A neighbour who is Indigenous, occupies the property and opposes the addition until the homeowner has satisfied that the Crown has consulted and that every effort has been made to negotiate a resolution. The homeowner would become subject to the whims of a neighbour.
101Faced with a similar situation in Voortman, Henderson J., in a well-reasoned and thorough decision, gave the following interpretation of Frontenac, at para. 64:
The Ontario Court of Appeal could not have meant that every private land owner in the Haldimand Tract could be subjected to an aboriginal occupation of his/her lands, and if so, then the Crown must consult about every parcel of private land in the Haldimand Tract.
102Further, there is no evidence before me of Indigenous law that supports the conduct of the defendants in this case. It was noted in Coastal Gaslink Pipeline Ltd v. Huson, 2019 BCSC 2264, at paras. 154-56:
154The defendants’ affidavit materials clearly demonstrate that they are entirely familiar with Delgamuukw and the concept of Aboriginal law and Aboriginal title. They cannot help but be aware of the uncertainties and processes for reconciliation of common law and Aboriginal law perspectives.
155There is no evidence before me of any Wet’suwet’en law or legal tradition that would allow blockades of bridges and roads or permit violations of provincial forestry regulations or other legislation. There is also no evidence that blockades of this kind are a recognized mechanism of dealing with breaches of Wet’suwet’en law.
156As in Manuel, the defendants in this case have resorted to self-help remedies, which are not condoned in Canadian law or Indigenous law. Self-help remedies, such as blockades, undermine the rule of law and the administration of justice.
103These words are apposite here. There is no evidence that the destruction of property that has happened here—the damage to equipment, the setting of fires and the damage to roadways—accords with Indigenous tenets or legal orders and there is no reason to think that it does. As I have observed, the expert evidence of Dr. Hill does not address this issue.
104In any event, there are many examples of cases where injunctions were granted in similar circumstances and there was no evidence that they were disobeyed: see e.g., 1536412 Ontario Ltd.; Voortman; Enbridge; Hydro One Networks Inc. v. The Haudenosaunee Confederacy Chiefs, 2019 ONSC 4616. These cases illustrate that just because an injunction is granted, does not mean there will be non-compliance by Indigenous persons.
105The fact that an Indigenous person says that he or she will not abide by a court order is not a reason against making the order. It is not a reason to require that there be negotiations. This would encourage self-help.
9. Is the common law test for injunctions consistent with Charter values?
106The Charter does not apply to common law injunction proceedings between private litigants. The Charter applies only to the extent that the common law is found to be inconsistent with Charter values: see Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 95.
107The party alleging that the common law is inconsistent with the Charter bears the onus of proving both that the common law fails to comply with Charter values and that, when these values are balanced, the common law should be modified: Hill, at para. 98.
108The Supreme Court described the balancing that is required in Hill, at para. 97, as follows:
When the common law is in conflict with Charter values, how should the competing principles be balanced? In my view, a traditional s. 1 framework for justification is not appropriate. It must be remembered that the Charter "challenge" in a case involving private litigants does not allege the violation of a Charter right. It addresses a conflict between principles. Therefore, the balancing must be more flexible than the traditional s. 1 analysis undertaken in cases involving governmental action cases. Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.
109Section 7 of the Charter reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof expect in accordance with the principles of fundamental justice.
110Section 15 of the Charter reads:
Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[111] Mr. Williams does not assert that his s. 7 or s. 15 Charter rights have been breached. Mr. Williams’ argument appears to be that the common law test for injunctions is inconsistent with Charter values because when injunctions are granted where Indigenous rights are in conflict with property or economic rights of private individuals, there is a disproportionate impact on Indigenous interests and potential loss of liberty resulting from the enforcement of injunctions.
112While the Notice of Constitutional Question addresses both interlocutory and permanent injunctions, I am only dealing with a permanent injunction. However, it would appear the same principles apply; that is to say, there is a balancing required.
113I have set out the test for a permanent injunction above. The balancing required to determine whether an injunction should issue does allow the appropriate flexibility for the court to consider Charter values. The common law test also provides me with a residual discretion, and I may consider the impact of the injunction on Indigenous rights.
114Mr. Williams has not established that the common law is inconsistent with Charter values. The expert evidence of Dr. Pasternak refers to the fact that injunctions have been granted to protect business interests and private property rights of individuals in more cases than the granting of injunctions to protect Indigenous rights. In these decisions, Mr. Williams suggests, courts failed to properly consider Indigenous perspectives and the history of colonialism under the RJR-Macdonald test contrary to Supreme Court jurisprudence and other appellate authority.
115The error as suggested by Mr. Williams is not in the test but the application of the test by the specific courts. While Dr. Pasternak seems to share Dr. Hill’s opinion that the law is a blunt tool for the consideration of Indigenous law in injunction proceedings, in her report, Dr. Pasternak also refers to the failure of lower courts to apply the Supreme Court’s ruling in Haida Nation. Therefore, it would follow that no modification to the law is required. What is required is the appropriate balancing.
116Further, the mere assertion that injunctions are disproportionately granted to private parties where Indigenous rights have been asserted or that Indigenous persons are at greater risk of being found in contempt does not establish that the decisions were decided contrary to Charter values.
117Even accepting the fact that the application of the test leads to more injunctions being granted in favour of business interests or private property rights only deals with decided cases. There is no evidence of what other cases were resolved without an injunction being required. A list of cases which show the number of times that injunctions have been granted in circumstances where Indigenous persons are being affected is not evidence of discrimination.
118There are cases where Indigenous persons are plaintiffs asserting Indigenous rights and this results in injunctions being issued against private party defendants. There are also cases where private party plaintiffs have been unsuccessful in obtaining injunctions against Indigenous defendants as a result of Indigenous rights being asserted.
119In Canadian Forest Products Inc v. Sam, 2011 BCSC 676, the injunction sought by the plaintiff, Canfor, was refused and an injunction to restrain Canfor from engaging in timber harvesting was granted. In Taseko Mines Limited v. Phillips, 2011 BCSC 1675, the First Nations were successful in obtaining an injunction restraining Taseko Mines from continuing with exploration work. In those cases, s. 35 rights were asserted. In Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario et al., 2011 ONSC 7708, an injunction was granted to the plaintiff to prevent drilling on traditional territory on which the Wahgoshig had held, asserted and exercised s. 35 rights. I mention these cases as examples where Indigenous parties were successful.
120In my view, there is no need to modify the common law test for injunctions to ensure they are consistent with Charter values. The balancing of competing interests is part of the test. In appropriate cases, the impact on Indigenous rights and Indigenous individuals is an important consideration. This has been done in the cases to which I have referred.
10. Do Gladue principles need to be considered in the context of granting an injunction?
121Mr. Williams asserts that Gladue principles should be considered in determining whether an injunction should issue. There is no dispute that they are to be considered in the context of contempt proceedings. That was the finding in Frontenac.
122In R. v. King, 2022 ONCA 665, the court defined the term “Gladue principles”, at para 168:
This term was coined following the ground-breaking 1999 Gladue decision. The decision in Gladue provided guidance to sentencing judges on factors to be taken into account when sentencing Indigenous offenders. These considerations inform a sentencing methodology that is designed to focus upon the particular circumstances of Indigenous offenders that could “reasonably and justifiably impact on the sentence imposed”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 72. The Gladue factors that courts are directed to consider in particular exercises of judicial reasoning include the systemic or background factors that may have impacted the Indigenous offender’s path to court and the types of sentencing procedures and sanctions that may be appropriate in the circumstances because of the offender’s particular Indigenous heritage or connection: Gladue, at para. 66; Ipeelee, at para. 72. Ultimately, as in all sentencing matters, the aim is to achieve a fit and proper sentence in the individual circumstances of the case.
123The court further noted at para 169:
As noted by Sharpe J.A. in Leonard, Gladue factors are not limited to criminal sentencing decisions. Rather, “they should be considered by all ‘decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system’ (Gladue, at para. 65) whenever an Aboriginal person’s liberty is at stake in criminal and related proceedings”: Leonard, at para. 85. Gladue principles have been used in multiple contexts beyond the sentencing environment to inform exercises of judicial discretion. These include, for example, extradition hearings, bail hearings, publication ban applications, applications to withdraw guilty pleas, not criminally responsible findings and Review Board hearings, disciplinary hearings, correctional authority decisions and more. [Citations omitted.]
124Ultimately, in that case, the Court of Appeal extended the application of these principles to an examination of the past criminal convictions of an accused in the context of a Corbett application.
125In all these situations, the focus is on the individual accused before the court. Gladue, and the subsequent cases, require the court to apply the considerations to the Indigenous person whose liberty is at stake in a criminal, quasi-criminal and related proceedings. An evidentiary link must be established to the individual before the court. That is a necessary part of the application of the Gladue factors. The Gladue report is normally that link. At a minimum, there must be evidence as to impact of the Gladue factors on the individual before the court. Consideration of Gladue principles has not been expanded to situations where the determination of community legal rights is at issue.
126The argument would appear to be similar to an argument that in a criminal trial, the judge or jury must consider the background of the accused when determining whether the essential elements of the offence have been proved beyond a reasonable doubt. There is no authority for this type of analysis.
127It is neither necessary nor appropriate to consider Gladue principles when making determinations as to whether an injunction should be granted.
11. Notwithstanding that there is no duty to consult in this case, was there notification to, and were there opportunities for, participation by the Indigenous community?
128In my view, the “context of the dispute” to which the Court of Appeal referred in Frontenac allows for a consideration of the engagement of the Indigenous community in the decision-making process. The absence of a duty to consult and Crown participation does not mean there has been no engagement with the Indigenous community. This is a factor which is quite properly taken into consideration in the context of granting or refusing to grant an injunction.
129In this case, a process has been undertaken by Foxgate to establish its right to construct homes on the Lands. The process is prescribed by law and has notice requirements and the opportunity for public participation. There are opportunities to address Indigenous perspectives. There is the Grand River Notification Agreement.
130I have outlined the duty to consult as it is understood in the context of the assertion of s. 35 rights. I have also noted that the duty cannot be delegated. But, in my view, the context of the dispute provides an opportunity for the parties to address the process for involvement of the Indigenous community.
131As the Supreme Court of Canada noted in Haida Nation, the content of the duty to consult is context-dependent; it “may vary with the strength of the claim and the circumstances” and is generally “proportionate to the preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potential adverse effect upon the right or title”: at paras. 37-39.
132Further, the Supreme Court specifically observed in para. 39 of Haida Nation that “[p]recisely what duties arise in different situations will be defined as the case law in this emerging area develops.” And develop the law has.
133In Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 2006 CanLII 41649 (ON CA), 82 O.R. (3d) 721, the Court of Appeal was dealing with contempt proceedings, and by the time the case got to the Court of Appeal, the property which had been owned by the plaintiff had been purchased by the Ontario Government. The court did not address the merits of the injunction that had been granted because it had been dissolved.
134In Frontenac, the injunction had been issued and was not appealed. The court’s reference to the duty to consult in paras. 45-48 was not fully examined. The cases cited in para. 45 were cases where aboriginal or treaty rights were clearly engaged. The court did not expressly define the content of any duty to consult or negotiate.
135In Voortman, Henderson J. held that compliance with the development process was consultation. On the duty to consult, after reviewing the authorities including Haida Nation, he found that the provision of a draft plan of subdivision for comments was sufficient to meet the Crown’s duty. Another Indigenous group identified as the Haudenosaunee Men’s Fire of Grand River appeared self-represented and asserted that the Crown had an obligation to negotiate directly with them. They asserted that the Six Nations had a legal claim to the property, Voortman did not have legal title, and the court lacked jurisdiction to make the requested order because the Crown had not consulted with the aboriginal people about this property.
136In that case, Henderson J. found that there were two entities recognized as having some authority of the Six Nations and they both had been consulted. He observed that the plaintiff was the registered owner of the property, there had been no aboriginal land claim asserted for over 150 years, and the Six Nations Council had not asserted ownership of the land. Thus, the aboriginal claim was weaker than the private landowners’ and an injunction was granted against the Indigenous protesters.
137Henderson J.’s reasoning is applicable to this case. There has been compliance with the development process. Foxgate consulted with the SNEC, an entity recognized as having authority for the Haudenosaunee. Notice was given to the Indigenous community.
138In the City of Brantford v. Montour, 2010 ONSC 6253, the defendants—members and supporters of the Haudenosaunee Development Institute—argued for the application of Frontenac. The plaintiff owned a number of undeveloped sites which were in process of being developed by various private parties. The requisite municipal and provincial approvals and building permits were obtained. The defendants claimed ownership of land as a result of past treaties and set up protests which resulted in work stoppages at these sites and blocked entry to property over public roads. They claimed that this action was about the Haudenosaunee’s sacred connection to the land, and their assertion of treaty rights and interest in the land. The defendants submitted that the injunction should not be granted based on Frontenac, as development was occurring on lands on which Haudenosaunee had asserted rights and interests, and the Crown failed to engage in good faith negotiations and consultations in an effort to resolve those disputes.
139Arrell J. distinguished the case from Frontenac, as Frontenac involved mostly undeveloped provincial Crown land which was the subject of an accepted land-claim by both the federal and provincial governments, and not privately owned land which had been deeded from a Crown patent and within long-established City borders: at para. 39. Nonetheless, Arrell J. was mindful of the Court of Appeal’s obiter at para. 43 of Frontenac that “[s]uch cases demand a careful and sensitive balancing of many important interests in assessing whether to grant the requested injunctions and on what terms,” and factored this into his analysis: at para. 40.
140Based on the weakness of the alleged land claims, the defendants’ likely inability to pay damages, and absence of Charter violation, Arrell J. concluded that the balance of convenience favoured an injunction.
141In that case, the respondents acknowledged they were given all appropriate notices under the provincial legislation, municipal by-laws and the Grand River Notification Agreement, and they elected not to respond within the times set out in the notices, or at all. Without deciding whether the City had a duty to consult, Arrell J. concluded that adequate consultation had occurred and any duty was fulfilled: at para. 58.
142Arrell J. cited Rio Tinto, at para. 59, a case which I have quoted above, and held at para. 60 that it applied to the situation before him:
In my view, that is the situation in Brantford. The lands in question have long since been altered and acquired by private landholders. The only issue, in reality, is one of possible compensation if the respondents can prove their claim.
143And we know that there is claim about the Lands: The 1995 Claim.
144There are no treaty rights at play here. To the extent that there are Indigenous rights involved, they are being addressed in the 1995 Claim. The duty to consult is not to address past decisions made by the Crown: see Rio Tinto, at para. 45. The original Crown grant of the Lands was a past decision.
145On that basis, the requirement that the court be satisfied the Crown has fully and faithfully discharged its duty does not arise. However, there has been engagement with the Indigenous community which I will take into account in applying the test for a permanent injunction below.
12. Should a permanent injunction be granted to Foxgate?
146To address this question, I will answer the questions as articulated in Nalcor, at para. 72, and adopted by the Ontario Court of Appeal in Castellano, at para. 74, to determine whether a permanent injunction should be granted to Foxgate.
(i) Has Foxgate established its legal right?
147I have already determined that Foxgate has legal title of the Lands. Once title is established, the owner has the right to prevent others from trespassing. The action of the defendants constitute trespass. They have intentionally damaged equipment. They continue to trespass.
(ii) Has Foxgate established that the wrong that has been proven are likely to recur in the future?
148Yes, they have. The evidence is clear. The defendants have not complied with the interlocutory injunction. It is clear that the trespass is likely to continue.
(iii) Is there another adequate alternate remedy?
149No, there is not. In Injunctions and Specific Performance, Mr. Justice Robert Sharpe wrote:
Under our system of law, property rights are sacrosanct. For that reason, the rules that generally apply to injunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.
Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.
150Damages are wholly inadequate. Damages will not allow for the property to be developed and the defendants cannot pay damages.
(iv) Are there any applicable equitable discretionary considerations?
151This question looks at equitable considerations, such as clean hands, laches, acquiescence or hardship, affecting the claimant’s prima facie entitlement to an injunction that would justify nevertheless denying the remedy.
152This is the portion of the test that requires the balancing of competing interests. This includes balancing Charter values and Indigenous interests depending on the circumstances of the case.
153I agree that the “social fabric” is to be considered by me. The social fabric includes the honour of the Crown, recognition of Indigenous land and sovereignty, and a commitment to reconciliation. These considerations may arise in certain cases: cases in which a s. 35 right is explicitly asserted and engaged, for example, in circumstances where protests occur related to treaty fishing and hunting rights or where the Crown grants rights to private entities for mining exploration, logging or other harvesting of natural resources.
154In the context of the dispute in Frontenac, the court identified the relevant competing interests as the private entity’s interest in pursuing the exploration plan in accordance with valid mining claims and agreements and the s. 35 rights which had been asserted over the designated Crown land. The fact that the land was subject to a land claim that was accepted for negotiation by the governments of Canada and Ontario and that the negotiations had been ongoing for more than 50 years were important factors to be considered.
155In this case, the equitable discretionary considerations differ. The disputes about the Haldimand Tract, including the Lands, are historical and are being addressed in separate litigation. Mr. Williams and the other defendants have no authorization to act on behalf of the community to raise any s. 35 rights in this proceeding. I also note that there has been engagement with the Indigenous community. The conduct of the defendants, including the destruction of property and the continuing trespass, supports the need for a permanent injunction.
156In Coastal GasLink, the court in balancing competing interests considered the following factors, at paras. 219-21:
219I must also consider that the plaintiff holds all necessary permits and authorizations to conduct the work it is attempting to perform, whereas the defendants have no legal right to blockade the Roads and obstruct the plaintiff, despite their honestly held belief that they are acting in accordance with the authority of Chief Knedebeas.
220The defendants did not challenge the validity of the plaintiff’s permits and authorizations through legal means but rather chose to pursue unlawful self-help remedies in furtherance of their goal of preventing construction of the Pipeline Project. Use of self-help remedies is contrary to the rule of law and is an abuse of process.
221There is evidence to indicate that the defendants have engaged in deliberate and unlawful conduct, for the purpose of causing harm to the plaintiff and preventing it from constructing the Pipeline Project. There is a public interest in upholding the rule of law and restraining illegal behaviour and protecting of the right of the public, including the plaintiff, to access Crown roads.
157This is the same situation I have before me. Foxgate has done all it is required to do to build the homes on the Lands. The defendants have no right to occupy the Lands.
(v) Are there any terms that should be imposed on Foxgate?
158There are no terms that need to be imposed on Foxgate as a condition of being granted the injunction. The undertaking as to damages is not required for a permanent injunction.
(vi) What should the scope of the terms be?
159The injunction should be in terms similar to those which form the interlocutory injunction and shall be as set out in the factum of Foxgate.
CONCLUSION
160For the reasons set out above, a permanent injunction shall issue in the terms set out in the factum of Foxgate at paragraphs 78 (a) to (f).
161There is no need for another order with respect to the Haldimand injunction as it is contained in the Order of Harper J. dated August 25, 2020.
Costs
162If the parties are unable to agree on costs, I will accept written submissions limited to 15 pages double-spaced plus any bills of costs or offers to settle. Foxgate and Haldimand are to deliver theirs by January 6 and Mr. Williams by January 20th. Replies limited to 5 pages by January 27, 2023.
P. R. SWEENY R.S. J.
Released: December 13, 2022