Recently, several Treaty 9 First Nations1 announced their intention to commence litigation against the governments of Ontario and Canada challenging the Crown's exclusive jurisdiction over Treaty 9 lands. Among other things, they assert that Treaty 9 provided that the signatory First Nations would maintain their "way of life",2 including co-jurisdiction over, and shared decision-making responsibilities with, the Crown.
Through this action, these Treaty 9 First Nations also will seek to prohibit the governments from granting permits, licences or other approvals respecting land and resource development within the Treaty 9 lands without their consent until a framework for co-jurisdiction is established.
This claim will be of interest to anyone operating, or considering development projects, within the Treaty 9 lands. Treaty 9 covers approximately two-thirds of Ontario's landmass including the James Bay and Hudson Bay watersheds. Future development in this area is hoped to be a key economic driver for Ontario. For example, the "Ring of Fire" is within the Treaty 9 lands and is considered an extremely promising region for mining of nickel, copper, chrome and other critical minerals relevant to the global clean energy transition.
Relief Sought by the Plaintiffs
Based on the draft Statement of Claim, the Treaty 9 First Nations seek broad relief which, if granted, would fundamentally alter the development process in Ontario. Of most interest, and practical significance, to the resource industry will be the plaintiffs' requests that the court:
(a) declare that Treaty 9 did not include a surrender of jurisdiction to the provincial and federal governments, but rather the sharing of jurisdiction resulting in "co-jurisdiction";
(b) declare that the Treaty 9 First Nations hold treaty rights of decision-making governance authority over the Treaty 9 lands (including land under water) and natural resources on, in and from such lands;
(c) declare that all permits, approvals or authorizations of the provincial and federal governments pertaining to Treaty 9 lands granted on or after the Statement of Claim is filed without the consent of the Treaty 9 First Nations would unjustifiably infringe their jurisdiction rights and be of no force or effect;
(d) declare that the laws relating to development, including the Mining Act, Crown Forest Sustainability Act, 1994, Ontario Water Resources Act, Environmental Assessment Act, Impact Assessment Act, Fisheries Act (and others) are unconstitutional and of no force and effect respecting Treaty 9 lands; and
(e) grant an injunction restraining the provincial and federal governments from regulating the Treaty 9 lands without the plaintiffs' consent where it threatens their way of life.
As it relates to the declarations set out in (c) and (d) above, the plaintiffs will accept that they be suspended for not more than five years while the parties negotiate a co-jurisdiction regime.
The plaintiffs intend to seek other declarations and relief from the Court including damages in the amount of $95 billion stated to be calculated based on a percentage of gross revenue Ontario has earned over 120 years from the Treaty 9 area.
The intended litigation follows recent announcements and actions by the federal and provincial governments aimed at expediting the regulatory and permitting processes for resource development in Ontario. Governments are resolved to facilitate the availability of critical minerals required for a clean energy transition.3
The provincial government recently approved environmental assessment (EA) terms of reference for the Northern Road Link connecting the Ring of Fire and two First Nations to the provincial highway system.4 This EA is led by two Treaty 9 First Nations, Webequie First Nation and Marten Falls First Nation, neither of which are plaintiffs in the intended action.
In February 2023, the federal Minister of Environment and Climate Change agreed to (a) begin anew on the co-development of the terms of reference of a regional assessment in the Ring of Fire area with Indigenous communities and, (b) pursue a relationship agreement to outline how Indigenous communities, the Impact Assessment Agency of Canada and, potentially Ontario, can work together on the regional assessment.
In his recent visit to New York for the Council on Foreign Relations, Prime Minister Trudeau advocated for long-term foreign investment in Canada given, among other things, its critical minerals riches.
Other Related Actions
Similar or related announcements and actions have been brought by these and other Treaty 9 First Nations. In April 2021, Attawapiskat First Nation, Fort Albany First Nation, and Neskantaga First Nation issued a self-declared "moratorium" against any development in, or to facilitate access to, the "Ring of Fire" area.5
Three other Treaty 9 First Nations, Missanabie Cree Nation, Chapleau Cree First Nation and Brunswick House First Nation, brought litigation in September 2022 against the province, asserting that Ontario has unjustifiably infringed their Treaty rights by permitting industrial activities that have caused cumulative impacts and, in so doing, meaningfully diminished their Treaty rights. These First Nations seek, among other things, to prohibit Ontario from continuing to authorize such industrial activities.6
It is obvious that this intended litigation has a significant political element. Among other things, it is designed to "kickstart" discussions with the governments. Indeed, the plaintiffs state in the draft claim that they "seek the direction of the Court to compel Canada and Ontario to the negotiating table with the Plaintiffs". The plaintiffs also may hope to "galvanize" the resource industry to support the co-jurisdiction model.7
The legal and practical implications of possible co-jurisdiction are broad and complex, and engage the rights and interests of many beyond the named parties to the action including other Treaty 9 First Nations, Métis communities in Ontario, Northern non-Indigenous communities and industry players.
It will be interesting to see how the political and legal aspects of this matter evolve.8 Given the nature and breadth of scope, and the required supporting evidence, it is unlikely that a court would hear any motion for interim relief for months, if not considerably longer.
How, if at all, this announced action will factor into the Crown's assessment of its duty to consult and the content of that duty, and a court's view on the adequacy of the Crown's consultation on judicial review, is unknown.
1. Attawapiskat First Nation, Apitipi Anicinapek Nation, Aroland First Nation, Constance Lake First Nation, Eabametoong First Nation, Fort Albany First Nation, Ginoogaming First Nation, Kashechewan First Nation, Kitchenuhmaykoosib Inninuwug First Nation and Neskantaga First Nation.
2. "Way of Life" comprises harvesting and jurisdiction (in the sense of managing and governing the land and its uses).
3. See Bill 71, Building More Mines Act, 2023 and announcement by Deputy Prime Minister that Canada "must and will show similar generosity in fast-tracking, for example, the energy and mining projects our allies need to heat their homes and to manufacture electric vehicles", see link.
4. See Ontario Approves First Nations-led Plan for the Road to the Ring of Fire, March 6, 2023, online.
5. Such a "moratorium" does not have the force of law.
6. Also, this month, Treaty 9 First Nations filed a proposed class proceeding against the government of Canada seeking $10 billion in equitable compensation on the basis that Canada failed to diligently implement the terms of Treaty 9 by, among other things, not increasing treaty annuity payments over time and granting to Ontario a one-half interest in all mineral rights in Indian reserves within Ontario.
7. At the press conference announcing the litigation, counsel urged companies to lobby the governments in favour of co-jurisdiction with Treaty 9 First Nations.
8. It is not known for certain when the plaintiff First Nations will file their claim or whether there will be revisions to it.
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