Ontario Federation of Anglers & Hunters v Ontario

Background

Seven Williams Treaties First Nations sought party status in the Ontario Federation of Anglers and Hunters (OFAH)’s underlying application: Mississaugas of Alderville, Beausoleil, Chippewas of Georgina Island, Mnjikaning, Curve Lake, Hiawatha and Mississaugas of Scugog Island First Nations (the William Treaties First Nations). These First Nations have been involved in over twenty years of litigation asserting hunting, trapping, fishing and gathering rights under the William Treaties. Until recently, Ontario remained opposed to the recognition of these rights. In 2014, Ontario amended its pleading and ceased arguing for the surrender of the asserted treaty rights. Ontario then issued an Interim Enforcement Policy (IEP) that permitted the First Nations to exercise their asserted treaty rights within their traditional territories.

Declarations sought by OFAH in underlying application

Shortly after Ontario issued the IEP, OFAH commenced an application for judicial review seeking a number of declarations from the Court. Among others, OFAH sought declarations that the IEP was issued without proper jurisdiction, was invalid in relation to the Williams Treaties lands, was contrary to previous judicial decisions on the Williams Treaties, and was contrary to section 15 of the Charter.

Motions sought by Williams Treaties First Nations

This decision stems from OFAH’s application for judicial review. The Williams Treaties First Nations applied to be added as respondents to the OFAH’s judicial review. In the alternative, they applied to be added as intervenors. In either case, the Williams Treaties First Nations sought to attain the full rights of a party in the application.

Position of OFAH

OFAH opposed the motion sought by the Williams Treaties First Nations arguing that they would add nothing to the proceeding that was not already being advanced by Ontario. Further, OFAH objected to the First Nations being added as intervenors because OFAH itself had been refused intervenor status in earlier proceedings between the First Nations and Ontario regarding rights under the Williams Treaties. The Court rejected OFAH’s argument that the First Nations would have the same perspective on the issues as Ontario. OFAH’s second argument was also dismissed because it had no bearing on the motions sought by the First Nations.

Motion granted

The Court found that the declarations sought by OFAH in the judicial review would directly impact the rights of the First Nations. The declarations were sought to nullify the IEP, which would have the effect of diminishing the rights of the Williams Treaties First Nations. The Court noted that the issues raised by OFAH’s application were “fundamental to the First Nations” and the “entire proceeding is directed towards obtaining rulings that are contrary to the rights asserted by the First Nations.” In the Court’s view, “[i]t would be highly inappropriate, perhaps even impossible, to make such findings, or even entertain such arguments, in the absence of the people against whom they are directed”, stating that “[s]uch adjudications should never be made in the absence of the persons whose rights are at stake.”

The First Nations were added as respondents and given full party status in OFAH’s application for judicial review.