Aboriginal Law: Treaty Rights Interpretation

Canada (Attorney General), et al. v. Restoule, et. al., 2021 ONCA 779 (40024)
In 1850, the Respondents, the Anishinaabe of the northern shores of Lakes Huron and Superior, entered into two treaties with the Crown: the Robinson‑Huron Treaty and the Robinson‑Superior Treaty (“Treaties”). The Treaties provided for cessation of a vast territory in northern Ontario, and for payment, in perpetuity, of an annuity to the Anishinaabe. The initial agreed‑upon sum was paid and an Order‑in‑Council declared them ratified and confirmed. In 1875, the annuity was increased to $4 (₤1) per person, and, in 1877, the Huron and Superior chiefs petitioned successfully for arrears on the increase since the conditions for increasing the annuity had been met long before the increase. The annuity has not changed since. The Huron Respondents initiated an action against Canada and Ontario seeking declaratory and compensatory relief related to the interpretation, implementation and alleged breach of the annuity provisions in the Robinson‑Huron Treaty; the Superior Respondents made the same claims under the Robinson‑Superior Treaty. The actions were tried together, split into three stages. At Stage One, the Treaties were interpreted, at Stage Two, the defences of Crown immunity and limitations were addressed, and, at Stage Three, the remaining issues (inter alia, damages and the allocation of liability) will be addressed. This relates to Stages One and Two; Stage Three has yet to be heard. At Stage One, the trial judge interpreted the Treaties as requiring the Crown to increase the annuity when the Crown’s net resource‑based revenues from the treaty territories are such the increase would not cause the Crown to suffer a loss. The annuity was to correspond to “fair share” of those revenues, which stood to be determined in consultation with First Nations parties. The Crown was subject to duties flowing from honour of Crown and fiduciary duty, and a duty of diligent implementation applied to the augmentation promise. At Stage Two, she rejected the Crown’s claims as to limitations and Crown immunity. A five‑member panel of the Ont. C.A. allowed the appeal of Stage One order in part (inter alia, the references to a “fair share” and to fiduciary duty were removed from the order, and the costs award to Huron parties was amended). The appeal of the Stage Two decision was dismissed. “The motion for leave to intervene filed by Biigtigong Nishnaabeg First Nation is dismissed, without prejudice to its right to bring a motion for leave to intervene in the appeal. The application for leave to appeal…is granted. The conditional application for leave to cross-appeal by Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all Members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson Huron Treaty of 1850, is granted. The conditional application for leave to cross-appeal by the Chief and Council of Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians, and the Chief and Council of the Whitesand First Nation on behalf of the Whitesand First Nation Band of Indians, is granted.”


Environmental Law: Dam Safety

3095-2899 Québec inc. v. Director of Criminal and Penal Prosecutions, 2021 QCCA 1222

The Applicant, a ski centre, performed what it characterized as maintenance work on a dam (moving rocks that had tumbled downstream in a lake). The Applicant was issued a statement of offence under s. 5 of the Dam Safety Act because it had not applied for or obtained prior authorization for the work from the Minister of Sustainable Development, Environment and Parks. A presiding justice of the peace from the Court of Québec characterized the work instead as a structural alteration of the dam within the meaning of s. 5, based on the evidence in the record, and convicted the ski centre of the offence provided for in that section. The Superior Court allowed an application for review of the trial judgment, and the ski centre was acquitted of the offence. The Qué. C.A. set aside the Superior Court’s decision, restored the trial judge’s decision and convicted the ski centre. “The motion for leave to intervene filed by Association des stations de ski du Québec is dismissed. The application for leave to appeal…is dismissed.”

Municipal Law: Zoning

1909988 Ontario Ltd. v. North Cowichan (Municipality), 2021 BCCA 414 (40040)
The Applicant sought a development permit for a motorsport circuit use. In 2019, Mr. Conway, the Municipality’s Director of Planning and Building, refused to issue a development permit to the Applicant on the grounds the Applicant’s proposed use of the land was not permitted under its zoning bylaw. In 2015, Mr. Mack, the Municipality’s then Director of Planning and Development, had issued a development permit to the Applicant for what it says was the same proposed land use in relation to an identically zoned portion of adjoining property. The Applicant sought reconsideration by municipal council of Mr. Conway’s refusal to issue a development permit. Municipal council confirmed the refusal. The Applicant sought J.R. of the reconsideration decision. The reconsideration decision was quashed by the chambers judge, and the matter remitted back to council for redetermination. The B.C.C.A. allowed the Respondent’s appeal. The chambers judge’s order was set aside, and Applicant’s underlying petition dismissed. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”