The Grand Council Treaty 3 ("Grand Council") commenced
a judicial review in which it alleged that the Ontario Crown had
failed to consult and accommodate the Anishinaabe Nation in
relation to the issuance of a Ministerial directive ordering the
Ontario Power Authority ("OPA") to implement a program
called the Hydroelectric Contract Initiative ("HCI").
The Grand Council's position in the matter was that the
Minister's directive and other consequential decisions made by
the Crown, including the award of a contract and consent to a
change in control by the OPA in relation to five existing
hydroelectric facilities in Treaty 3, triggered the Crown's
duty to consult. The proceeding named both the Minister and
OPA as respondents in the matter.
The central issue was whether the HCI program allowed for or
would otherwise facilitate the extension of the life of the five
hydroelectric facilities, and would in turn cause new adverse
impacts to certain rights provided for under Treaty 3, such as the
harvesting of wild rice and lake sturgeon. The five
facilities in question were operated by H2O Power Limited
Partnership ("H2O") and previously owned by Resolute FP
Canada, Inc. ("Resolute"). H2O and Resolute applied
to become parties to the proceeding, but were instead added as
interveners with limited rights.
The merits of the matter were scheduled to be heard by a panel
of the Divisional Court over a five-day period commencing on June
8, 2015. On June 5, the Grand Council and the Minister
reached a negotiated settlement in the matter. The terms of
settlement provided that the judicial review was to be abandoned by
the Grand Council on a without costs basis, with no admission of
liability or wrongdoing by either party.
H2O and OPA — who were not a party to
the settlement — sought partial indemnity
costs of $335,000 and $450,399.17, respectively, against the Grand
Council in respect of the abandoned proceeding. The Grand Council
and the Minister opposed an award of costs to either.
The Divisional Court denied both claims for costs.
In relation to H2O and Resolute, the Court held that it could
find no reason to depart from the "usual rule" that
interveners are not entitled to their costs. The Court further
commented that the amount claimed by them was in any event
"excessive". Commenting more generally on the issues
raised by the judicial review, and the nature of H2O's interest
in those issues, the Divisional Court held that settlement between
the Grand Council and the Crown on the matter was to be
"celebrated" rather than discouraged, and that an award
of costs would therefore be inappropriate in the circumstances:
Most importantly the duty to
consult is the pragmatic manifestation of our collective
recognition of the constitutional position of First Nations within
Canada. The concerns raised are understood to be between nations.
Settlement of such issues is to be celebrated, not unnecessarily
impeded by the threat that the First Nations involved may have to
pay costs. Those whose commercial interests could be engaged may
have to absorb the costs of becoming involved. In this case H20
will have to.
In relation to the OPA's claim for costs, although the Court
acknowledged that it was presumptively entitled to its costs as a
respondent pursuant to Rule 38.08(3), it held that its
participation as a respondent and Crown agent in the matter was
more properly regarded to be "secondary" and duplicative
to that of the Minister. Furthermore, the Court found the
Minister's opposition to costs being awarded to another Crown
actor to be a "significant" factor in concluding that no
costs should be awarded.
The Court's decision in this matter suggests that promoting
the settlement of disputes between the Crown and Aboriginal peoples
is an object that will, at least in some cases, be a factor
strongly militating against an award of costs when a judicial
proceeding is abandoned as a result of such a settlement. The
decision further clarifies that third parties with pecuniary
interests at stake in similar disputes may have to absorb their
costs of participating in a proceeding.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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