Ontario Federation of Anglers and Hunters et al. v. Ontario (Minister of Natural Resources and Forestry) et al., 2016 ONSC 2806

• Jurisdiction: Ontario
• Court: Superior Court of Justice of Ontario (Canada)
• Judge: Sachs, J.
• Citation: 2016 ONSC 2806,(2016), 349 O.A.C. 188 (DC)
• Date: 16 March 2016

Anglers Federation v. Ont. (2016), 349 O.A.C. 188 (DC)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MY.002

Ontario Federation of Anglers and Hunters and Angelo Lombardo (applicants) v. Minister of Natural Resources and Forestry and Alderville First Nation, Beausoleil First Nation, Chippewas of Georgina Island First Nation, Mnjikaning First Nation, Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation (respondents)

(318/15; 2016 ONSC 2806)

Indexed As: Ontario Federation of Anglers and Hunters et al. v. Ontario (Minister of Natural Resources and Forestry) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Sachs, J.

May 2, 2016.

Summary:

In the Howard case (SCC 1994), it was ruled that in the 1923 Williams Treaties the William Treaties First Nations (WTFN) had surrendered their constitutional rights under s. 35 of the Constitution Act, 1982. The WTFN (not parties to the Howard action) brought an action in the Federal Court respecting the interpretation of the Williams Treaties. The WTFN position, supported by the federal and provincial (Ontario) Crowns, was that the Williams Treaties did not include the surrender of the pre-existing treaty rights of the WTFN to hunt and fish for food, social and ceremonial purposes in the traditional areas covered by those treaties. The Ontario Minister of Natural Resources and Forestry instructed enforcement officers to apply its Interim Enforcement Policy (IEP) to the geographical boundaries of the 1923 Williams Treaties and the WTFN signatories to it. Basically, WTFN members would not be prosecuted, subject to limited exceptions, for exercising their treaty rights to hunt and fish until the Supreme Court of Canada reversed its decision in Howard or a court of competent jurisdiction set aside the Howard decision in accordance with the law in Carter (SCC 2015). The Ontario Federation of Anglers and Hunters (OFAH) applied for judicial review of the Minister's decision, seeking declarations that applying the IEP was contrary to Howard and constituted an impermissible exercise of the Crown's dispensing power. The OFAH argued that until Howard was reversed, the Minister had to enforce the law as laid out in Howard. The OFAH sought public interest standing to challenge the IEF as contrary to s. 15 of the Charter. The Minister moved to quash the OFAH's judicial review application.

The Ontario Divisional Court, per Sachs, J., allowed the motion and dismissed the judicial review application.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - In the Howard case (SCC 1994), it was ruled that in the 1923 Williams Treaties the William Treaties First Nations (WTFN), based on the factual record before the court, had surrendered their constitutional rights under s. 35 of the Constitution Act, 1982 - The WTFN (not parties to the Howard action) brought an action in the Federal Court respecting the interpretation of the Williams Treaties - The WTFN position, supported by the federal and provincial Crowns, was that the Williams Treaties did not include the surrender of the pre-existing treaty rights of the WTFN to hunt and fish for food, social and ceremonial purposes in the traditional areas covered by those treaties - The Ontario Minister of Natural Resources and Forestry instructed enforcement officers to apply its Interim Enforcement Policy (IEP) to the geographical boundaries of the 1923 Williams Treaties and the WTFN signatories to it - Basically, WTFN members would not be prosecuted, subject to limited exceptions, for exercising their treaty rights to hunt and fish until the Supreme Court of Canada reversed its decision in Howard or a court of competent jurisdiction set aside the Howard decision in accordance with the law in Carter (SCC 2015) - The Ontario Federation of Anglers and Hunters (OFAH) applied for judicial review of the Minister's decision, seeking declarations that applying the IEP was contrary to Howard and constituted an impermissible exercise of the Crown's dispensing power - The OFAH argued that until Howard was reversed, the Minister had to enforce the law as laid out in Howard - The Ontario Divisional Court, per Sachs, J., allowed the Minister's motion to dismiss the judicial review application - It was plain and obvious that the judicial review application sought to have the court rule on the Minister's exercise of prosecutorial discretion, which was not justiciable - See paragraphs 1 to 57.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See Administrative Law - Topic 3203 ].

Trials - Topic 268

Prosecution - General - Prosecutorial discretion - [See Administrative Law - Topic 3203 ].

Counsel:

Timothy S.B. Danson and Marjan Delavar, for the applicants, Ontario Federation of Anglers and Hunters and Angelo Lombardo;

Sara Blake, Kristina Gill and Padraic Ryan, for the respondent, Minister of Natural Resources and Forestry;

William Henderson and Ceyda Turan, for the respondents, Williams Treaties First Nations.

This motion was heard on March 16, 2016, at Toronto, Ontario, before Sachs, J., of the Ontario Divisional Court, who released the following judgment on May 2, 2016.