On October 20, 2023, a judge in Ontario Superior Court dismissed the application from Neskantaga First Nation, challenging the Ontario government for failing to fulfill its duty to consult and accommodate. Neskantaga’s Application alleged the Crown, in consultations over plans to build an access road to the Ring of Fire mining area, made it difficult, if not impossible, for Neskantaga to participate and asked for guidance on future consultation.

In the middle of the pandemic, Neskantaga was dealing with lockdowns, struggling under a boil-water advisory that had dragged on since 1995, and facing community evacuations. All of this was on the Nation’s plate when Ontario began the consultation, imposing short timelines in their haste to build a key access road to enable mining in Ontario’s vast northern peatlands. 

Neskantaga described the purpose of the Application in their factum as twofold:  

• First, the Nation sought to clarify what steps the Ontario Crown is actually required to take to fulfill the Duty to Consult and Accommodate (“DTCA”) when an Indigenous community is in crisis. The context was consultations undertaken under the Environmental Assessment Act, and Neskantaga was seeking to ensure the DTCA is fulfilled in line with constitutional principles including the Honour of the Crown. 
• Second, Neskantaga wished to obtain clear guidance from the court on the extent the Crown can delegate consultation to project proponents – and what steps the Crown must then take to ensure the DTCA is fulfilled, particularly when a First Nation is clearly not in a position to meaningfully participate in consultations (for example because it is in a state of emergency).

Neskantaga’s Application only sought declarations from the court providing guidance and interpretation of the Environmental Assessment Act and Regulations governing consultations with First Nations and the Duty to Consult and Accommodate in line with constitutional requirements. In other words, the Application was seeking a statement from the court on how to move forward, rather than a decision on whether what had occurred in the past was right or wrong. Hence, their challenge would not have impacted on the access roads directly, but rather sought guidance for moving forward. 

Unfortunately, the court dismissed the Application on what could be interpreted as a technicality. Ontario found that the Application was not properly brought under Rule 14.05(3)(d) and (h) of the Rules of Civil Procedure. The court found it had no jurisdiction to rewrite the Environmental Assessment Act or to provide a declaration on the extent of the Duty to Consult and Accommodate as it relates to the drafting of Terms of Reference for an environmental assessment.

The upshot? Neskantaga are back where they started, facing potentially unprecedented changes in their community without having meaningfully participated in the decision-making process. 

The Devil in the Details

The relevant sections of Rule 14.05 include:

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) a determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial.

The court found that the Application was not properly brought under Rule 14.05 because there were facts at issue, and what was required was more than just an interpretation of a statute or regulation. The court stated that while it may in certain circumstances provide assistance by providing an interpretation, the court may not second-guess the choices of government in passing legislation or making decisions. The court viewed the declarations sought by Neskantaga’s Application as essentially constitutional challenges based on Aboriginal rights, or ‘de facto references’, another legal tool which was outside the jurisdiction of the court in this matter.

Because this matter was resolved without the court making findings or statements on the actual content of the issue –  the actual consultation – Nations, and their supporters, are left with no further guidance on how the Crown should be consulting Indigenous communities when they are in crisis. This is unfortunate, but it also means that while Neskantaga was unsuccessful, the loss was minimal. In some cases, when an Indigenous Nation loses in court, it can be at the risk of a negative or unhelpful precedent that can be used against Indigenous nations in the future. Fortunately, this is not the case here. 

Neskantaga will continue to pursue the ability to control development on their homelands and to reassert their rights through the Breathing Lands action. A much larger and potentially precedent-setting challenge, the Breathing Lands case is being brought by a coalition of First Nations in Northern Ontario who are taking governments to court to press for co-jurisdiction in Treaty No. 9 territory. If they are successful, Nations across Northern Ontario, including the James Bay lowlands, will obtain greater decision-making power over resource extraction projects on their lands. We are rooting for Neskantaga — and their co-plaintiffs — in that case, and invite you to learn more at raventrust.com/breathing-lands.