Whiteduck v Ontario, 2023 ONCA 543 – Case Summary

This decision deals with the duty to consult First Nations regarding the recognition of Métis communities.

The Algonquins and the Algonquin Opportunity (No. 2) Corporation (referred to collectively as the Algonquins) brought an action against Ontario and the Métis Nation of Ontario (MNO) for a declaration that Ontario breached its duty to consult and accommodate its interests before it recognized two purported Métis communities represented by the MNO (the Killarney and Mattawa/Ottawa River Métis communities) and extended harvesting rights to them. Ontario and the MNO brought motions to strike the Algonquins’ claim. In 2021, the Ontario Superior Court of Justice struck the Algonquins’ claim with leave to amend some of the claims. The Algonquins appealed.

Beach looking out to sea and an island (Saanichton Bay)

Photo credit: Gordon Lyall

On August 17, the Ontario Court of Appeal released its judgment setting aside the motion judge’s order and giving leave to the Algonquins to amend their statement of claim. The court held that the motion judge erred in finding that the Algonquins did not have standing to contest Ontario’s recognition of the purported Métis communities and in striking the statement of claim in its entirety with leave to amend some of the claims.

The court found that the motion judge had incorrectly intertwined the issues of the duty to consult and standing. In the motion judge’s view, only Métis have the status to contest Métis Aboriginal rights, and the Algonquins have no status to challenge Métis group rights. In finding that the motion judge had erred in coming to this conclusion, the court noted that there is legal uncertainty on the issue of how Métis rights established based on the application of R v Powley, 2003 SCC 43, which constitutionally recognized harvesting rights for the Sault Ste. Marie Métis community, are to be reconciled with competing Aboriginal rights.

Two people walking in a forest, sun shining through trees

Photo credit: Doane Gregory

Ultimately, the court found that the duty to consult and accommodate gave the Algonquins necessary standing to bring the action, and that the Algonquins had a sufficiently credible claim to harvesting rights which may give rise to a duty on Ontario’s part to consult and accommodate them respecting the recognition of harvesting rights for the purported Métis communities in the same area. The court allowed the Algonquins’ action to proceed largely as pleaded.

This decision affirms uncertainty as to how Métis rights established through the application of the Powley decision are to be reconciled with competing Aboriginal rights. It affirms that the duty to consult gives a First Nation necessary standing to challenge the recognition of Métis rights by Crown governments in areas where that First Nation has a sufficiently credible claim to Aboriginal rights.

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.