First Nations can be anxious to enforce their constitutional right to comprehensive and transparent consultation with provincial and federal regulators with respect to development projects potentially impacting on their traditional territory, aboriginal rights and cultural and spiritual life. This anxiety may cause an aggrieved First Nation to engage counsel to seek an interim injunction which operates for a fixed period of time, unless otherwise continued by the court. Interim injunctions are a type of interlocutory injunction intended to preserve the court's ability to do justice pending a full hearing of a legal action.
Procedure Where the application for an interim injunction is made against a provincial regulatory body on notice, the notice of motion must be served and filed with proof of service 7 days before the scheduled hearing date see Rules 37.07 (6) and 37.08(1) Ontario Rules of Civil Procedure, whereas when the application is brought against a federal regulatory body the notice must only be served and filed at least 3 days before the set hearing date Rule 362(1) of the Federal Court Rules. If a moving party does not give notice, the party will have to demonstrate urgency or the motion will be dismissed. When the regulatory body is federal, under the Federal Court Rules (374(1) interim injunctions can be granted without notice for no more than 14 days.
While First Nations may be tempted to initiate such applications for interim relief, they can be costly and ultimately, a waste of time. A recent case relating to provincial regulators offers an example:
Fort William First Nation v. Ontario (Ministry of Environment) 2014 ONSC 4474
Background Fort William First Nation, a signatory to the Robinson Superior Treaty of 1850, had applied to the Ontario Divisional Court for judicial review seeking orders halting approval of a wind farm project until the Ontario Ministries of Environment, Energy, Municipal Affairs and Natural Resources (MNR) had satisfied their constitutional duties to consult with the band. The applications had not yet been perfected. The First Nation sought an interim injunction before a single judge of the Divisional Court prohibiting the ministries and those under their control from permitting or authorizing Horizon Wind Inc. or its associates from accessing or developing a wind farm on lands that were the subject of the judicial reviews.
The First Nation regarded the land as part of its traditional territory, used for hunting, harvesting, gathering, ceremonial and culturally significant activities. In 2007 the First Nation had entered a memorandum of understanding in which the Band supported the development of a small wind farm consisting of 3 turbines to be erected outside the watershed. In 2009 Horizon had expanded the scope of the wind farm to include up to ninety wind turbines. The Band was concerned that the expanded and relocated proposal, now within the watershed ,was in the heart of Fort William traditional territory and across the gateway to all further Fort William First Nation treaty lands. The Band contended that the MNR had not adequately studied the impact of this expanded proposal on flora and fauna in the area, including endangered species ,or its effect on the watershed. The Band further contended that the other ministries had failed to conduct meaningful consultation about the expanded proposal and that once the approval for the wind farm was issued, consultation would be too late. Horizon submitted that the Band had refused its efforts to consult with them.
Court's decision The Court dismissed the motion for an interim injunction as premature because the Director of the Ministry of the Environment had to first determine whether the Crown's duty to consult had been satisfied and had yet to decide whether to grant approval for the proposal. If the Director refused to grant approval, there'd be nothing for the Court to review and if the approval was granted on conditions, those conditions could be relevant in determining whether the First Nation's concerns had been addressed. Applying the test laid down by the Supreme Court in R.J.R. Macdonald Inc. v Canada (Attorney general) [1994] 1 S.C.R.311 (serious issue to be tried, irreparable harm to the moving party if the injunction wasn't granted and the balance of convenience weighing in favour of granting an injunction) the Court said at par. 20 of its decision: "Without knowing what the Director's decision is, the court cannot conclude there is a serious issue to be tried .Nor can it be said at this time that the moving party will suffer irreparable harm if the injunction is not granted." While adequate consultation would need to be done before construction "any harm that may arise will come from construction on the land and not from the issuance of the permit per se." [19]
Some Steps which Should be Taken Pending and Following Final Approval When a First Nation feels that consultation hasn't adequately considered the potential adverse impacts on aboriginal rights and interests from a renewable energy project in Ontario its first step should be to ensure that the application for the project has included any information which the First Nation may have about any adverse impacts the project may have on constitutionally protected aboriginal or treaty rights and any measures for mitigating those adverse impacts as required under section 13 (1),Table 1 item 2 and section 17(1) 4. of Regulation 359/09. Engaging with the Ministry of the Environment and any other applicable ministries such as the MNR, and the proponent during the application process by responding to requests for information and responding to correspondence both oral and in writing, may also serve to protect First Nations' interests. If a renewable energy approval is issued and insufficiently protects First Nation's interests, an application for judicial review can be commenced in Divisional Court by serving a notice of application in accordance with the Rules of Civil Procedure (see Rule 38.06 and following and Rules 68.03 to 68.06).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
