Litigating party can select legal process it wishes to pursue ‘as a general principle’: court

By Ian Burns

Law360 Canada (August 24, 2023, 1:58 PM EDT) -- Ontario’s highest court has restored parts of a legal challenge which argues the province failed to properly consult the Algonquins of Ontario when it recognized and gave wildlife harvesting rights to several Métis communities.

The lawsuit comes about as a result of dispute over hunting and fishing rights in the Ontario watershed of the Mattawa and Ottawa Rivers, which was part of the 2016 agreement in principle on a treaty between the Algonquins of Ontario (AOO) and the Crown. In 2017, Ontario recognized six Métis communities, including the Killarney and Mattawa/Ottawa River Métis, and extended harvesting rights to them in a large area that overlaps with the Algonquin settlement lands. The Supreme Court had constitutionally recognized harvesting rights for the Sault Ste. Marie Métis community in 2003 (R. v. Powley, 2003 SCC 43).

The Algonquins argued the framework agreement will cause “irreparable harm” to wildlife and fish resources in a substantial portion of their settlement area, which would impair their way of life. The motion judge struck most of the Algonquin claims, except for one which argued Ontario had breached its duty to consult the Algonquins before recognizing the Killarney and Mattawa/Ottawa River Métis communities. She gave leave to the Algonquins to amend the claim to “assert that the honour of the Crown informs the duty to consult in this case.”

But Justice Peter Lauwers, writing for a unanimous Ontario Court of Appeal, has now ruled the lower court erred when it found the Algonquins do not have standing to contest Ontario’s recognition of the alleged Métis communities. They were seeking a declaration that Ontario concluded incorrectly that there are historic Métis communities in Killarney and in the Mattawa/Ottawa River area, or alternatively, if such a historic Métis community does exist, a declaration that its harvesting rights do not extend into the Algonquin settlement area.

“The duty to consult and accommodate gives the Algonquins the necessary standing to bring the action and to claim the consequential relief sought,” Justice Lauwers wrote. “Nothing more by way of legal authority is required to underpin the consequential relief the Algonquins seek.”

The province argued, with support from the Métis Nation of Ontario (MNO), that the Algonquins were obliged to pursue their case by way of an application for judicial review, not by way of an action. But Justice Lauwers also disagreed with this.

“As a general principle, a litigating party can select the legal process it wishes to pursue, subject to the Rules of Civil Procedure and to the requirements of the law more generally. Unless the law mandates a certain form of proceeding, the party starting it can choose the legal process to its own advantage,” he wrote. “Second, it is understandable that the Algonquins would prefer a trial over judicial review in this case, given the plethora of competing expert reports in which credibility and reliability will play key roles. The Supreme Court has pointed out that a civil action might sometimes be the preferred route.”

Justice Lauwers also ruled the lower court erred in striking the Algonquins’ claim for an injunction restraining Ontario from extending harvesting rights to the Métis communities without their consent. He then gave leave to the Algonquins to amend their statement of claim “in a manner consistent with these reasons.” He was joined by Associate Chief Justice J. Michal Fairburn and Justice David Doherty in the ruling, which was issued Aug. 17 (Whiteduck v. Ontario, 2023 ONCA 543).

In a release, the Métis Nation of Ontario said it is reviewing the decision and will be considering potential next steps and options, including seeking leave to appeal.

“The Métis Nation of Ontario brought a preliminary motion to strike in order to provide clarity on what legal issues are before the court in Whiteduck v. Ontario, which is being advanced by the Algonquins of Ontario,” the release said. “The recent Ontario Court of Appeal’s decision overturned a previous court decision that struck out parts of the AOO claim. No substantive issues in this action have been determined by any court yet.”

A spokesperson for the Ontario Attorney General’s office said it would be inappropriate to comment as the matter is still before the courts. Counsel for the Algonquins of Ontario were unable to provide comment by press time.

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