Keewatin v. Minister of Natural Resources

Appendices 305[g] An order quashing the Minister or his delegate's decision to approve SustainableForest Licence 5442253, the 1999-2019 Forest Management Plan for the WhiskeyJack Forest Management Unit and any work schedules or other approvals andauthorizations of forest operations related to that Plan, insofar as they apply to theKeewatin Lands;[h] An order prohibiting the Minister or his delegate from approving any forestlicences, forest management plans, work schedules or other approvals andauthorizations of forest operations related to the Whiskey Jack Forest ManagementUnit, insofar as they apply to the Keewatin Lands;[i] An order granting an interim stay of the operation of Sustainable Forest Licence5442253, the 1999-2019 Forest Management Plan for the Whiskey Jack ForestManagement Unit, and any work schedules or other approvals and authorizations offorest operations pursuant to that Plan insofar as they apply to the Keewatin Lands, orsuch other interim order as this Honourable Court considers proper, pending the finaldetermination of this application.2011 ONSC 4801 (CanLII)Emphasis added.[1653] The Application was quashed by Then J. on application of both the Minister and Abitibi(Keewatin v. Ontario (Minister of Natural Resources) (2003), 66 O.R. (3 rd ) 370 (Div Ct)), withleave to bring an action raising the same issues. Then J. reasoned as follows:[35] However, the relief sought belies this submission. In paragraph (a), the applicants request adeclaration that they are beneficiaries under Treaty 3 and have a right to hunt and fish in theprovincially defined Whiskey Jack Forest Management Unit. This Court cannot grant the reliefsought for two reasons. First, this declaration is not related to the exercise of a statutory power.Second, what the applicants are requesting in this paragraph is a finding of fact, and establishing thisfact is the basis for the application. The finding of facts is a key aspect of this case, but is notsomething that the Divisional Court is designed to do on judicial review. The making of such adetermination will require an extensive review of history, experts, and documents. Even if it isassumed that the applicants have these rights, there are other important factual determinations that areraised by these declarations that must be resolved before the declarations can be considered – forexample, the question of whether or not these rights have been infringed by the moving parties.[45] Unlike Masters, supra, the motion record places sufficient material before this Court todetermine that there are significant facts in dispute that require an extensive review of the evidence,including considerable expert evidence. The adjudication of the issues raised by this applicationrequires consideration of a wide range of historical, anthropological, ecological, biological andeconomic evidence in addition to evidence concerning the course of dealings between the applicants,their First Nation, the Ontario Ministry of Natural Resources and Abitibi over a considerable periodof time. The complexity and volume of this evidence is compounded by the challenges posed by thespecial evidentiary dimensions of Aboriginal and treaty rights cases. In these circumstances, it isimperative for the material facts to be found on the basis of direct exposure to evidence tendered attrial.[46] It is also likely that many material facts will be disputed. The applicants identify a number ofgrounds supporting their request for relief. The Minister disputes many of the factual assertions orassumptions on which the applicants' case appears to be premised – i.e. the fact that the loggingactivities are infringing the applicants' Treaty 3 rights. It is also possible that a number of factual