|
Indigenous - Wildlife. Whiteduck v. Ontario
In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considered competing indigenous/metis 'wildlife harvesting' rights:[1] This appeal and cross-appeal require this court to consider whether it is appropriate at the pleadings stage to strike a claim in a situation in which there might be competing Aboriginal or Indigenous interests in resources. At stake between the Indigenous parties, the Algonquins of Ontario[1] and the Métis Nation of Ontario, are harvesting rights to fish and wildlife such as deer, elk and moose in the Algonquin settlement area, which comprises the Ontario watershed of the Mattawa and Ottawa Rivers. At issue is the scope of Ontario’s duty to consult and accommodate Aboriginal interests.
[2] The Algonquins have been negotiating with Ontario and Canada under a 1994 framework to arrive at a modern-day treaty concerning, among other matters, the harvesting rights of the Algonquins to fish, hunt and trap wildlife resources within the settlement area. They reached an “Agreement in Principle” in 2016 but it provides expressly that it “shall have no legal status and shall not create legal obligations”. The statement of claim explains that the Algonquins, whose membership crosses the Ontario/Quebec border, were left out of pre-Confederation treaty negotiations and do not have a treaty with the Crown.
[3] The competing Indigenous interests at the heart of this case result from the Supreme Court’s seminal decision in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, which constitutionally recognized harvesting rights for the Sault Ste. Marie Métis community. Before Powley, the Algonquins held the only Aboriginal rights to the resources in question under Ontario’s 1991 Interim Enforcement Policy (sometimes called the “IEP” or the “Enforcement Policy”). The Policy allowed the Algonquins to harvest without complying with provincial licensing requirements and other regulations, but it limited the number of harvester cards in the interests of sustainable resource management. The motion judge accepted, at para. 25, that: “[a] sustainable harvest is fundamental to the Algonquin way of life.” She added: “[s]ince 1991, the members of the Pikwakanagan and other Algonquins have conducted a managed harvest (mainly of moose and deer) in collaboration with Ontario.” The result, she noted, is “a well-managed and sustainable Algonquin harvest.” After Powley, the Policy was extended to Métis from Métis communities recognized in that decision, but not to other Métis.
[4] However, in 2017, Ontario recognized six Métis communities – including the Killarney and Mattawa/Ottawa River Métis – purportedly under Powley, and extended harvesting rights to them under the 2018 Framework Agreement in a large area that overlaps with the Algonquin settlement area. These Métis communities are represented by the Métis Nation of Ontario.
[5] The motion judge explained, at para. 51, “[t]he Framework Agreement provided that, on an interim basis, the [Enforcement Policy] would apply to [Métis Nation] harvester cardholders [but] [i]t did not include a cap on the number of harvester cards.” The Algonquins assert, as noted by the motion judge, at para. 55, that “the Framework Agreement will cause irreparable harm to the wildlife and fish resources in a substantial portion of their settlement area, impairing their way of life.” The statement of claim asserts that some Algonquins have self-identified as Métis in order to get access to harvester cards beyond the limited number allocated to the Algonquins. The alleged result is that “ongoing harvesting by Métis has coincided with a serious decline in the moose population” in the settlement area.
....
(5) The Crown is the steward of Aboriginal resources
[23] The concept of the Crown as steward of Aboriginal resources is implied in Crown sovereignty, but is subject to the exercise of Aboriginal rights. This flows from the previous principle – the Crown’s duty to consult and accommodate is fundamental – and from McLachlin C.J.’s comments in Tsilhqot’in Nation, at para. 91: “once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.” This principle has more general application to Aboriginal rights beyond issues of title.
[24] The Crown is responsible for addressing Indigenous rights under s. 35, but what the Crown does is subject to the court’s review for constitutionality under the principles set out in this part of the reasons.
|
