[1]               This application concerns the Crown’s duty to consult with, and accommodate the rights and interests of the Saugeen Ojibway Nation (“SON”) in connection with T & P Hayes Ltd.’s (the “Proponent’s” or “Hayes’”) application for a license for a limestone quarry (the “Project”) on the Saugeen/Bruce Peninsula.  

[2]               The parties agree that the Crown had a constitutional duty to consult SON.  They disagree on the scope of that duty and whether it was reasonably discharged.

[3]               SON argues that there had to be a “meaningful conversation” proportional to the interests at stake.  It argues that, though there were exchanges of information, a “meaningful conversation” did not happen.  It seeks a declaration to this effect, an order quashing the decision by the Minister of Natural Resources and Forestry (the “Minister”)[1] to issue a license to the Proponent, and an order that the Crown complete a constitutionally sound process of consultation and accommodation before issuing a license for the Project.

[4]               The Crown acknowledges that, at times, consultations may have been imperfect.  However, it argues that, by the end of the process, material problems had been rectified, a reasonable opportunity was given to SON to provide input and information, and the Crown’s duty to consult was reasonably discharged.  It asks that SON’s application be dismissed.

[5]               Hayes just wants to get on with quarrying limestone.  It holds title to the Project lands, which have been owned privately for many years and are not part of a reserve or claim by SON.  Hayes applied for a quarry license back in 2008, has spent considerable time and money providing MNRF with studies and plans, and does not want to be delayed further in its reasonable exploitation of the resources on its property.  It asks that SON’s application be dismissed.

[6]               I agree with SON that there has not been the “meaningful conversation” required by the constitutional duty to consult.  The process followed by MNRF does not pass constitutional muster.  From 2008 to 2011, MNRF failed to consult SON in accordance with its own assessment of the scope of that duty.  When SON learned of the Project, three and one-half years after its inception, MNRF’s approach was reactive and ­ad hoc.  MNRF created expectations in SON which were disappointed repeatedly - expectations about the process to be followed and the funding available to SON.  And in the end MNRF never followed through on its own designated processes. 

[7]               MNRF’s position – that whatever process failures there may have been along the way, by the end, SON’s substantive concerns had been heard and addressed – misses the central thrust of SON’s concerns here.  SON does not challenge the reasonableness of MNRF’s decisions about mitigation measures.  SON’s objection – and a valid objection it is – is that there has never been a proper consultation process, and that the identification of SON’s concerns remains preliminary and subject to review and change through proper consultations.

[8]               Hayes argues that the substantive results of consultation are reasonable.  One can sympathize with Hayes’ sense that it is caught between MNRF and SON.  That said, Hayes’ frustration and its interests in moving forward with the Project are not valid reasons to defeat SON’s constitutional rights.  When there are disagreements about consultations, providing a remedy for a First Nation will often cause delay.  Thus though the duty to consult is the Crown’s, proponents have an interest in facilitating the consultation process.  In this case, Hayes refused that role.  It was entitled to do this, but one consequence of its decision is further delay to complete adequate consultations.

[9]               For the reasons that follow I would set aside the Minister’s decision to issue the license for the Project, without prejudice to the Minister approving a license after reasonable consultations with SON.

[10]           In 2004, in Haida Nation, a unanimous Supreme Court of Canada undertook the “modest task” of “establishing a general framework for the duty to consult and accommodate” rights and claims of First Nations.  This new framework was a start, not an end, to analysis: in future cases “courts… will be called on to fill in details of the duty to consult and accommodate.”[2]

[11]           The duty to consult arises as part of the “process of honourable negotiation” required of the Crown by s.35(1) of the Constitution Act, 1982, which states[3] that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”[4]

[12]             “The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting those interests are being seriously pursued.”[5]  The duty to consult is a “valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose.”[6]  The goal of consultations is vindication of First Nations’ rights and reconciliation with First Nations.

[13]           The duty to consult and accommodate applies to both the federal and provincial Crown.[7]

[14]           The duty arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it….”[8]  The Supreme Court rejected an “either/or” approach of “watertight compartments” and instead held that the “concept of a spectrum may be helpful” which is to be assessed by the Crown:

[15]           The general process to be followed is:

[16]           The duty to accommodate follows from the duty to consult and may not be excluded from the outset: “[t]he contemplated process is not simply one of giving the [First Nation] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along.”[11]  The level of consultation required may change over time as the process moves forward and new information comes to light.[12] 

[17]           “Consultation must be meaningful.”[13]  The Crown “must act with honour and integrity, avoiding even the appearance of ‘sharp dealing’.”[14]  On the other hand:

[18]           There is “no duty to come to an agreement” and neither side is precluded from “mere hard bargaining”.[16]  And even where consultation and accommodation is reached in a particular case, all of this is placed within the broader context of reconciliation, which is not an atomistic event or series of events in isolation.  “Reconciliation is not a final legal remedy in the usual sense.  Rather it is a process flowing from rights guaranteed by s.35(1) of the Constitution Act, 1982.”[17]  Thus consultation, and if necessary, accommodation, is part of a process of reconciliation: “[c]onsultation in some meaningful form is the necessary foundation of a successful relationship with Aboriginal people.”[18]

[19]           “The honour of the Crown cannot be delegated.”[19]  It is “always at stake in its dealings with Aboriginal peoples.”[20]  This does not mean that third parties (such as the Proponent) cannot be involved in fulfilling the Crown’s duty to consult and accommodate.  However, “the Crown cannot contract out of its duty of honourable dealing with Aboriginal People.”[21]  Where the Crown does delegate to a third party some part of the process of consultation, “that does not relieve the Crown of the responsibility to assess whether the duty has been discharged.”[22]

[20]           These issues must be approached systematically and comprehensively; the government “may not simply adopt an unstructured administrative regime” in response to the Supreme Court’s conclusion respecting the duties to consult and accommodate.[23]

[21]           The duty to consult may arise where there is a modern treaty[24] or where no treaty has yet been signed.[25]  Even where there is a modern treaty,

[22]           The duty to consult often arises where interests of third parties are also at stake.  Affected third parties are entitled to be treated fairly and reasonably as well.  In Beckman, for example, a third party, Paulsen, sought a land grant of 65 hectares of surrendered land for farming in the Yukon.  The land was within an area subject to a treaty right of access for subsistence hunting and fishing.[30]  Paulsen applied for a land grant in 2001 and was still awaiting the outcome of his application eight years later when the case was decided by the Supreme Court of Canada, which noted that Paulsen was “entitled to a decision reached with procedural fairness within a reasonable period of time.”[31] 

[23]           Eventually, “[s]omebody has to bring consultation to an end and to weigh up the respective interests…”[32] and make a decision.

[24]           Not every case involving the duty to consult is constitutional; the source of the duty is s.35 of the Constitution Act,[33] but there is a link between constitutional doctrine and administrative law principles.[34]  The nature of the consultation and the procedural fairness requirements must be “appropriate to the circumstances”.[35]  Use of “a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided.”[36]

[25]           The evaluation of consultation and accommodation must be contextual.  The “adequacy of what passed (or failed to pass) between the parties must be assessed in light of the role and function to be served by consultation on the facts of the case and whether the purpose was, on the facts, satisfied.”[37]  Thus “[t]here must be more than an available process: the process must be meaningful.”[38]  Therefore “[i]t cannot be said that offering [a First Nation] an opportunity to participate in fundamentally inadequate consultations preserves the honour of the Crown.”[39]

[26]           To have meaningful participation in consultations, a First Nation must have sufficient expertise and resources.  This can lead to disagreement over whether funding is required, and if it is, how much is needed, and what should be done if the Crown and a First Nation disagree on these points.  In some cases, First Nations have refused to meet in the absence of “funding to ‘support… meaningful engagement in the issue’…” and when the Crown proposed funding, have “claimed that the funding provided was not adequate to support the [First Nation] in its efforts to consult….”[40]  Sometimes the First Nation has said that it was “unable to review and discuss matters… ‘because of a lack of funding and staff’.”[41]  The Crown has sometimes taken First Nations’ positions on these issues as evidence of the First Nation “not approach[ing] the consultation in good faith”.[42] 

[27]           “[T]he issue of appropriate funding is essential to a fair and balanced consultation process, to ensure a ‘level playing field’.”[43]  Reasonable efforts should be made, on both sides, to avoid funding brinksmanship.  Ultimately the decision on funding is the Crown’s, as part of its design and implementation of a consultation process, and its decisions on funding issues will be reviewed on a standard of reasonableness.

[28]           The duty to consult and accommodate is prospective, addressing proposed future actions.  For example, in Alcan v. Carrier Sekani Tribal Council, the issue was the 2007 iteration of a contract under which Alcan sold excess power to BC Hydro from its hydroelectric dam.  The dam had been built in 1951.  The issue, in 2007, concerned the 2007 agreement, in the context that the dam already existed and had been in place for over 50 years.  The propriety of building the dam in the first place, and the operation of the dam between 1951 and 2007, were not matters for consultation at the time of the 2007 agreement.  Claims arising from events prior to 2007 were to be taken up in treaty negotiations or separate civil claims.[44] 

[29]           This is not to say that the duty to consult arises in a historical vacuum.  “[H]istorical context”… can be “essential to a proper understanding of the seriousness of the potential impacts…” of a proposed activity on a First Nation’s rights.[45]  Therefore, in West Moberly, where past activities had devastated a caribou population, the relatively small impact of the proposed current project had to be placed within the context of the damage that had already been done.  In addition, the proposed activity had to be placed in the context of where it was intended to lead.  In West Moberly, exploratory drilling for coal was proposed with a view to mining coal if it was found: there was no other purpose for the exploratory program.  Consideration could be given to the potential impact of the overall project, and not just the current incremental step.[46] 

[30]           For Hayes, the issue is simple: it owns land on which it wishes to quarry limestone for use as aggregate.  It has done what is required by MNRF to obtain a license for this activity and, for Hayes, the Project’s impact on SON’s traditional territories will be minimal or non-existent.  Hayes has been at this process now for almost a decade and does not wish to be put to any further expense or delay in going about its business.

[31]           From MNRF’s point of view, there are hundreds of small limestone quarries in southern Ontario, and there is public utility in using these quarries for construction projects and other purposes in southern Ontario.  MNRF wishes to respect the realistic and practical interests of First Nations affected by these projects, but it does not want to institutionalize an expensive and duplicative process for assessing environmental and cultural impacts.  In particular, MNRF does not accept that multiple sets of expert assessments should be required for every project that may have some incidental impact on First Nations’ interests.  MNRF has recognized that the process has not gone smoothly in this particular case, but is satisfied that all substantive concerns raised by SON have been addressed reasonably.

[32]           From SON’s perspective, the Project is part of the broader issues raised by numerous aggregate projects in its traditional territory.  The cumulative impact of these projects places strain on SON’s resources, both human and financial.  The absence of a coherent consultation process aggravates the stress on SON’s resources: additional resources are spent to establish SON’s right to be consulted and then more are spent to defend SON’s view of the proper scope of meaningful consultation.  The time and money spent contesting these preliminary issues has, in this case, considerably outstripped the likely reasonable costs of substantive consultations for the Project.  This is wasteful of SON’s scarce resources.  SON has told MNRF of its preliminary concerns but cannot say more, it says, without being able to understand technical reports for which it needs expert advice.  Therefore it does not know whether its concerns have been addressed adequately, or if it has fully explained all of its concerns to MNRF.

[33]           For Hayes, consultation is the Crown’s duty.  The Crown could impose consultation requirements on a proponent, but Hayes refused to accept a unilateral imposition by MNRF of these requirements in August 2013, more than five years into the license application process.  Hayes denies that the Project will have material consequences for SON’s interests, and Hayes does not wish to be put to any further expense or delay in a conflict which it sees as being procedural and as between SON and MNRF.

[34]           For SON, consultation on the Project was disjointed, inconsistent, and an exercise in frustration.  SON has been clear that it needs funding to participate.  Funding was agreed[47] but never delivered.  SON continues to be willing to undertake consultation if it receives the promised funding.  It also continues to maintain that it may require more funding, which it will address with MNRF after it has completed its preliminary work.

[35]           It is difficult to divine a consistent approach to consultation by MNRF except for three points.  First, MNRF takes the position that it gave notice of the Project to SON in May 2008 and heard nothing from SON about the Project until September 2011.  Second, starting in 2011, MNRF sought concrete information about SON’s activities in and near the Project and felt that SON was less than forthcoming on this issue.  Third, MNRF was concerned with managing consultation costs.  The first point is not one that I accept, as I explain below.  The second and third points are both legitimate but have assumed disproportionate importance for MNRF, given the obvious problems in the consultation process in this case.  The second point is also of reduced significance now that MNRF has formally recognized a duty to consult in this case, a point that was not entirely clear for most of the discussions between MNRF and SON.  The third point, while still relevant, is largely resolved, for now, given the funding MNRF has agreed to provide to SON.

[36]           SON is made up of two First Nations: Chippewas of Nawash Unceded First Nation and Saugeen First Nation.  They are Aboriginal people within the meaning of s.35 of the Constitution Act, 1982, and “bands” pursuant to the Indian Act.[48]

[37]           The two bands make decisions respecting their shared territory through the SON Joint Council.  They have established the SON Environment Office through which they engage with government and proponents about projects, decisions or conduct in SON’s traditional territory that could affect SON’s rights, culture, resources, lands and waters.[49]

[38]           SON takes the position that its traditional territory includes the Bruce/Saugeen Peninsula, lands to the south of the peninsula and adjacent waters in Lake Huron and Georgian Bay.[50]

[39]           SON is a signatory to treaties with the Crown including Treaty 45½ (made in 1836) and Treaty 72 (made in 1854).  SON challenges the validity of Treaty 72 in separate proceedings[51] in which SON claims (among other things) Crown lands adjacent to and abutting the Project.[52]  SON also takes the position that Treaties 45½ and 72 do not surrender SON’s rights to fish, hunt, harvest, conduct spiritual ceremonies and engage in other traditional activities throughout SON traditional territory.[53]

[40]           SON takes the position that it has “proven and asserted Aboriginal and treaty rights” in its traditional territory that are protected by s.35 of the Constitution Act, 1982, including:

[41]           The Proponent, Hayes, is a private company.  It and its President own the land on which the Project is located, which is in the Municipality of Northern Saugeen/Bruce Peninsula.[57] 

[42]           The Minister has authority to administer the Aggregates Resources Act.[58]  MNRF has represented the Crown in dealings with SON and Hayes about the Project.

[43]           Hayes applied for a license for the Project pursuant to s.7(2) of the Aggregate Resources Act[59] on February 19, 2008.[60]  MNRF advised Hayes that its application was “complete” on February 27, 2008.[61]

[44]           MNRF periodically sent SON a running list of outstanding aggregate applications located in SON’s traditional territories.  Hayes’ application was added to this running list in May 2008.  SON acknowledges that these lists were emailed to it and included Hayes’ application from May 2008 onwards.  SON says that it did not know about the Project because it did not realize that the Hayes application had been added to the list.[62]

[45]           For the following reasons, I accept that SON did not know about the Project from the running list and did not learn about it until September 2011.

[46]           There were roughly 500 quarries in SON’s traditional territory.  At any given time there were dozens of license applications pending.[63]  An application could take years from the time it was requested until final decision.  Sometimes applications progressed steadily.  Sometimes they remained on the running list without apparent progress.  Sometimes they were withdrawn or otherwise removed from the running list without a license being granted.

[47]           In 2008-2011, SON did not have resources to track all quarry applications.  In May 2008, it had only one employee in the SON Environment Office and insufficient resources to assess and respond to the many issues that arose for that office.  In 2008-2011, SON and MNRF were discussing how aggregate quarry consultations ought to take place, generally, and in respect to “a number of other specific license applications.”[64]  The Hayes application was not flagged or specifically mentioned in these communications.  SON notes that its position with MNRF was that it needed funding for general capacity, and SON would have had no motive to ignore the Project; quite the opposite: it would have been further evidence supporting SON’s claim to need general capacity funding.

[48]           Hayes had public notice obligations which included posting notices at the site[65] and running advertisements in a local paper, the Wiarton Echo.[66]  A public information session for the Project was held on May 6, 2008.[67]  No public objection was received through the public notice and consultation process.[68]  MNRF and Hayes ask this court to infer that, even if SON overlooked the Project on the running list, the Project would have and did come to SON’s attention as a result of the public notices given by Hayes.

[49]           I do not accept these arguments.  First, where there is a duty to consult, the minimum Crown obligation is notice and the Crown must establish affirmatively that notice has been given.  General public notice requirements under the Aggregates Resources Act do not include notice to an affected First Nation.  Second, there is no evidence that the Project did come to SON’s attention as a result of the public notices given by Hayes.  Third, it would not be sufficient to show that the Project came to the attention of some member of SON.  As noted above, there are hundreds of quarries in the area and dozens of projects under consideration at any given time.  A member of SON might hear of a project without realizing that it was not known to the SON Environment Office.  Fourth, there was no reason for SON not to respond to Hayes’ application in 2008 deliberately, only to respond in 2011.  And fifth, there is no evidence to the contrary.^[69]

[50]           Therefore, I accept that SON did not appreciate that the Project had been added to the running list of projects back in 2008, and did not learn of it until receiving a copy of the zoning amendment for Project lands in September 2011.  Although Hayes’ application had been underway for Hayes and MNRF since May 2008, it started for SON in September 2011.

[51]           MNRF says that it completed a preliminary assessment of the Crown’s duty to consult in 2009.  MNRF says that it assessed the extent of this duty as “low” at this time.[70]  Prior to September 2011, the Crown did not advise SON of these assessments.

[52]           On the basis of these preliminary assessments, MNRF says that it concluded that SON was not entitled to more than notice of and information about the Project.[71]  The Crown acknowledges that it did not advise SON of this conclusion prior to September 2011.

[53]           Aside from placing the Project on the running list of projects, MNRF did nothing to consult with SON about the Project prior to September 2011.[72]

[54]           The Crown was obliged to do an initial assessment.  This is a requirement of constitutional stature.  This is clear from Haida Nation.  One would expect that, somewhere in MNRF’s records, there would be documents setting out MNRF’s initial assessment and explanations for it.  There are, apparently, none.  The Crown also states that it assessed the scope of its duty to consult SON at the “low end” of the spectrum in 2009, requiring the Crown to give notice and to provide SON with information about the Project.  “Scoping” is also a requirement of constitutional stature.  This, too, is clear from Haida Nation.  One would think that there would be some record to support MNRF’s 2009 conclusion respecting the scope of the duty to consult.  MNRF’s witness says in his affidavit that the assessments were made in 2009 but he provides no particulars.  He does not say who made the assessments.  He does not say what the assessments were based upon.  When asked on cross-examination to produce contemporaneous documents setting out or referring to these assessments, the question was taken under advisement.  Apparently it was never answered. 

[55]           Assuming that MNRF did put its mind to the initial assessment, and assuming that it assessed the Crown duty at the “low” end of the spectrum, this “low” level of consultation still required MNRF to give notice and to provide SON with information about the Project.  Placing the Project on the running list could be viewed as an unsuccessful, inadequate, but good faith attempt to give notice.  But there is no evidence that MNRF did anything at all to provide information to SON about the Project prior to 2011.

[56]           The improbability of MNRF’s account of events between 2008 and 2011 is tempered by SON’s approach to this issue.  SON has not pressed the obvious conclusion, either during cross-examination of MNRF’s witness or by arguing that MNRF should be disbelieved on this point.  On the basis of Browne v. Dunn[73] it would be unfair to proceed on a basis other than that which was put to this court.  And therefore I accept that MNRF did conclude in 2009 that it had a duty to consult with SON on the Project.

[57]           I have already concluded that placing the Project on the running list did not give SON effective or actual notice of the Project.  No other notice was given to SON prior to September 2011.  Therefore I find that the Crown failed to discharge its acknowledged duty to give notice of the Project to SON prior to September 2011.

[58]           In its materials, MNRF does not provide evidence that it provided any information about the Project to SON prior to September 2011.  This omission is problematic in two ways.  First, it is hard to understand why MNRF would have failed to provide any information to SON if it had scoped its duty to include providing information.  Second, the failure to provide any information to SON prior to September 2011 was a breach of MNRF’s acknowledged duty to consult.

[59]           It is neither necessary nor practically possible to decide now whether MNRF’s assessment of the scope of the Crown duty to consult SON was correct, or reasonable, back in 2009.  It is not necessary because (a) MNRF did not consult SON in accordance with the scope it had assessed, and (b) because events have moved on: MNRF has changed its position on scope, and what matters now is whether the Crown has consulted SON sufficiently to discharge the proper scope of its duty, as that duty is assessed today.  It is not practically possible because there is no record on which to review MNRF’s assessment of the scope of the Crown duty back in 2009.  Therefore I decline to decide whether MNRF’s assessment of the scope of the Crown’s duty to consult SON about the Project was correct or reasonable from 2009 to September 2011.

[60]           Between February 2008 (when it submitted its application) to September 2011, Hayes had no direct dealings with SON.  Hayes was not responsible for or involved in assisting the Crown to discharge its duty to consult with SON about the Project between 2008 and 2011.

[61]           Based on this history, I find:

[62]           SON learned of the Project from notice of a zoning change in September.  On September 9, 2011, SON’s counsel wrote for the first time to MNRF about the Project (with a copy to Hayes’ land use planning consultant):

[63]           By letter dated September 19, 2011, MNRF responded that the Project lands are not Crown lands.  MNRF ended the letter: “Please feel free to consult our office if you require any further information or have any additional questions…. Thank you for your interest in this application.”[77]  The premise of this letter is that MNRF did not consider that consultation with SON was required because the Project is not on Crown lands.

[64]           By letter dated September 22, 2011, Hayes’ land use planning consultant, Ron Davidson, wrote to counsel for SON enclosing Project documents, including copies of Davidson’s planning report, Official Plan amendment, zoning by-law amendment application, quarry license application, site plans, expert hydrogeology opinion, natural environment technical report, Ministry of Culture clearance letter and correspondence about the application back to 2008.[78] 

[65]           It was clear from the materials sent by Davidson that the Project was well advanced.   By letter dated September 23, 2011, counsel for SON wrote to MNRF, with a copy to Davidson, raising this concern and setting out SON’s expectations:

[66]           MNRF responded by letter dated October 28, 2011 as follows:

[67]           SON’s counsel responded to MNRF on November 18, 2011.  She repeated SON’s position that “it is clear that the operation” of the quarry “will have an impact on lands that are claimed.”  She then wrote:

[68]           MNRF responded on January 19, 2012.  MNRF largely repeated what it had said already: it had not heard from SON despite notice to SON in 2008.  MNRF was happy “to share and review with SON the technical reports, studies and reviews conducted as part of [the quarry] application.”  MNRF then stated that “we require further details from SON specific to how this aggregate application might adversely affect SON’s aboriginal or treaty rights.” 

[69]           Counsel for SON responded to MNRF by letter dated January 31, 2012.  In it counsel repeated SON’s position that it is clear that the proposed quarry will affect adjacent lands, which are the subject of a claim by SON.  Counsel advised that “SON has no record of being notified about this aggregate license application in 2008.”  Counsel then stated that, aside from the general description of obvious potential effects of the quarry,

[70]             By letter dated February 17, 2012, counsel for SON wrote to the Minister expressing concerns about the general failure of MNRF to consult with SON respecting aggregate quarry applications.  Counsel pointed specifically to the Project as an example where SON interests had been ignored.  Counsel closed the letter as follows:

[71]           By letter dated March 12, 2012, counsel for SON wrote to MNRF seeking a response to counsel’s letter of January 31, 2012.  In addition, counsel responded to MNRF’s position that SON was given notice of the Project on December 15, 2008.  On this point counsel wrote:

[72]           MNRF responded on March 12, 2012, enclosing copies of the running lists sent by email showing the Hayes’ application listed as pending.  In terms of a substantive response, MNRF stated:

[73]           MNRF responded to SON substantively by letter dated April 12, 2012.  The letter is stated as intended “to provide additional detail as to how we have addressed SON concerns as expressed to date.”  MNRF repeats its position that notice had been given to SON of the Project by way of emails starting in December 2008.  MNRF summarizes SON’s position (a) there are potential adverse impacts from the Project on lands over which SON asserts claims; and (b) for SON to be able to provide any further meaningful information SON would require funding of $13,000.  MNRF responded to this position as follows:

[74]           There was no “onus” on SON respecting the Crown’s initial assessments (i) as to whether a duty to consult arises at all; (ii) the scope of that duty; and (iii) the consultation process to be followed.  This is not to say that a First Nation should refuse to engage the Crown over these issues: the Crown’s assessments will be based upon the information it has.  And SON did not refuse to engage on these points: its participation from September 2011 to August 2013 was focused on these preliminary questions.  However, instead of dealing with the process issues raised by SON, MNRF seemed to address preliminary and substantive issues all at once.  This is a sort of “unstructured administrative regime” against which the Supreme Court of Canada cautioned in Haida Nation.[88]

[75]           SON’s counsel provided a preliminary response to MNRF on April 20, 2012, with more to follow a SON joint council meeting on May 3, 2012.  Counsel stated that MNRF’s letter provided more information than had been received before and then raised these concerns:

[76]                                   Counsel for SON responded further to MNRF by letter dated May 9, 2012.  Counsel argued that MNRF must consult substantively with SON and that no such consultation had yet taken place.  Counsel advised that SON was willing to meet with MNRF, and then stated “we would like to reiterate that funding must be provided for SON to be able to meaningfully engage in any subsequent consultation process that may follow that initial meeting.”[90]  Implicit in this statement is that SON was willing to meet with MNRF before receiving funding.

[77]           MNRF responded by letter from the Minister dated June 20, 2012.  The Minister advised that it was the Ministry’s position that SON was given notice of the quarry application in December 2008.  The Minister confirmed that MNRF “is committed to fulfilling any duty to consult that may arise with respect to decisions contemplated by the ministry under the ARA.”  The Minister went on to list what he understood to be the concerns raised by SON.  The Minister then stated:

[78]           MNRF then provided a further response to SON’s concerns by letter dated July 31, 2012.  MNRF noted that in July 2012, MNRF had forwarded all technical reports to SON.  In the letter, MNRF stated:

[79]           Counsel for SON responded on August 24 and September 4, 2012.  Counsel proposed September dates for a meeting.  Counsel also repeated SON’s position respecting funding and responded to points raised by MNRF on this issue:

[80]           By letter dated September 13, 2012, MNRF responded, confirming a meeting for September 24, 2012.  The letter also states:

[81]           MNRF wrote a further letter to SON dated September 21, 2012.  This letter essentially repeats information in the letter of September 13, 2012, and adds further discussion about the possible use of Ministry experts by SON.  MNRF advises that Ministry experts cannot enter into retainer agreements with SON, but that SON could rely upon the good faith of Ministry personnel.[95]

[82]             There are handwritten notes but no formal minutes of the meeting of September 24, 2012.[96]  The concerns of the parties at the meeting were generally consistent with those expressed in the correspondence leading up to the meeting.  SON took the position that it was not able to review and respond to the technical reports that had been provided without its own experts.  The estimated costs for an initial response by SON experts remained at $13,000.  MNRF did not agree to provide this funding, but did ask SON to send a budget for consideration.

[83]           MNRF remained focused on SON’s substantive concerns and with identifying SON’s interests in the lands in the area of the Project.  MNRF continued in its position that it had already provided appropriate ameliorative measures for the concerns raised by SON, all of which could be explained to SON by MNRF’s own experts.

[84]           For its part, Hayes was anxious to proceed with the Project and wanted MNRF and SON to finish consultations without delay.

[85]           On October 3, 2012, SON sent MNRF a proposed budget of $16,214 for initial consultations.[97]

[86]           MNRF responded by letter dated October 22, 2012:

[87]           SON responded by letter dated November 13, 2012, asking MNRF to reconsider its position on reduced funding, making the case that SON needed all of the requested funding “to level the playing field”.[100]

[88]           MNRF responded by letter dated January 4, 2013.  In it MNRF provided “feedback on the role of MNRF in the licensing of aggregate operations, on the potential funding for consultation, and on our assessment of the Crown’s consultation obligations.”  In this letter, MNRF sets out, really for the first time, its assessment of potential adverse impacts of the Project on SON:

[89]           SON responded to MNRF by letter dated January 25, 2013.  SON noted, correctly, that MNRF’s letter of January 4, 2013 failed to respond to SON’s letter of November 13, 2012.  SON had asked MNRF to reconsider its decision to reduce SON’s budget.  MNRF’s letter of January 4, 2013 had said nothing about this issue.  In its letter of January 25^th, SON repeated its position that its original budget was necessary to participate properly in consultations.  However SON also proposed an intermediate approach:

[90]           By letter dated February 11, 2013, MNRF purported to terminate consultations:

[91]           SON responded by letter dated February 28, 2013.  The thrust of the letter is summarized in one paragraph:

[92]           SON had a strong basis for this position.  In October, MNRF offered to fund most of SON’s proposed expert costs.  When asked to fund the rest, MNRF did not respond but instead advised that it considered that the Project would have no material effects on SON’s rights.  When SON (i) asked for a response to its request to reconsider the funding issue, and (ii) proposed proceeding without prejudice on the basis of MNRF’s October funding decision, MNRF purported to terminate consultations.

[93]           The Minister did not immediately approve the Project license, as had been indicated in MNRF’s letter of February 11, 2013.  Instead MNRF and SON met on March 25, 2013.[105]  During this meeting the essential disagreement continued: SON took the position that it did not have funds it required to participate meaningfully in consultations.  SON leaders stated that they were not “prepared to spend community money reviewing someone else’s project.”  MNRF pressed questions focused on the basis of SON’s claim that the Project could affect SON’s treaty or Aboriginal rights.  SON indicated that it hunted on adjacent lands.  SON indicated that a preliminary review by SON’s hydrogeologist led them to be concerned that the hydrogeology report presented by Hayes was not correct.  SON expressed concern that there had not been a proper archaeological assessment, and that the letter from the Ministry of Culture was not sufficient, given past errors by that Ministry that had led to disruption of ancient burial sites.  Environmentally, SON expressed concern about culturally important medicinal plants and disruption to wildlife corridors that could impact rattlesnakes, deer and other species.

[94]           A further meeting was held June 20, 2013 at MNRF offices in Owen Sound among MNRF, SON and Hayes.  From the minutes it seems that this meeting was preparatory to formalizing a consultation agreement.  A summary comment at the end of the minutes states:

[95]           By letter dated July 10, 2013, SON provided a draft agreement for “preliminary assessment” of the Project.  SON advised that the draft agreement “details our minimum requirements at this stage that would allow for proper consultation and accommodation to occur in the near future – before­ any quarrying is approved.”[108]  SON noted that MNRF had indicated that it wanted the agreement to be between SON and Hayes.  SON advised that it was prepared to proceed in that fashion provided it was understood that the duty to consult remained that of the Crown.  SON ended its covering letter by noting that it believed that it would be helpful if there was a standard process for reviewing quarry applications in future:

[96]           By letter of August 28, 2013, from MNRF to Hayes, with a copy to SON, MNRF set out the process to be followed going forward for consultation about the Project with SON.  This letter appears to conclude nearly two years of discussions establishing a consultation process. 

[97]           Hayes’ land use planning consultant, Davidson, sent Project documents to SON in the fall of 2011, shortly after SON’s first letter to MNRF.  Hayes attended two meetings with MNRF and SON – the first in September 2012 and the second in June 2013.  Hayes was sent SON’s proposed consultation agreement and budget in July 2013, and Hayes was sent MNRF’s letter of August 2013, delegating consultation responsibilities to Hayes.  Hayes did not otherwise deal with SON between September 2011 and August 2013.

[98]           On September 9, 2011, SON came forward to MNRF to assert its right to be consulted about the Project.  SON identified the basis of its alleged right to be consulted by stating its preliminary concerns about the Project.  SON requested and subsequently received technical reports and other documents related to the Project.  SON advised that it was not able to review the technical reports or provide further input without funding for its participation.  It made this position clear in October 2011.

[99]           In April 2012, MNRF refused to fund SON’s participation in consultations.  It provided no reasons for this refusal.  Subsequently MNRF asked for a budget of consultation costs.  SON provided this.  In October 2012, MNRF agreed to provide about half the requested budget, after removing costs for a hydrogeological consultant, legal fees, and travel expenses.  SON disagreed with MNRF’s budget reductions and asked MNRF to reconsider.  MNRF did not respond to this request.  Then in January 2013, SON proposed going forward with MNRF’s agreed funding, without prejudice to seeking further funds later.  MNRF did not respond to this suggestion. Instead it purported to terminate consultations and to recommend approval of a license for the Project in February 2013.  MNRF then apparently changed its position and met twice with SON, and in June 2013 requested SON to prepare a consultation agreement and budget for consideration by Hayes.  And then, in August 2013, MNRF delegated consultation with SON to Hayes, including SON’s requests for funding, while retaining oversight of the consultation process.

[100]      Based on this history, I find:

[101]      The letter of August 28, 2013 established a process for consultations.  Then, as far as SON was concerned, nothing happened.

[102]      The next correspondence in the file, for SON, was a letter from MNRF to Hayes, copied to SON, dated June 13, 2014.[112]  It is a “follow-up” to MNRF’s letter of August 28, 2013.  In it, MNRF asked Hayes to report on the status of consultations with SON: 

[103]      SON did not receive a copy of a reply to MNRF from Hayes to MNRF’s letter of June 13, 2014, or any further follow-up letter from MNRF.

[104]      The next thing that happened, for SON, is that MNRF approached a well-known archaeologist to assess the Project.  SON was not consulted about this assessment, and had recently been told by MNRF staff “that there has been no activity on this application [the Project].”  SON wrote to MNRF on December 23, 2014, to ask what was going on:

[105]      MNRF responded by latter dated January 23, 2015.  In it, MNRF confirmed that it had sought estimates for Stage 1 and Stage 2 archaeological assessments of the site.  MNRF indicated that it was “also hopeful that we can meet with you and the proponent in the near future in order to share our progress and seek your feedback with respect to resolving outstanding concerns.”[115]  Subsequently MNRF contacted SON to try to arrange a meeting.  This letter carried with it a potential repudiation of MNRF’s letter of August 28, 2013:  there had been “progress” since that time which MNRF wanted to “share” because it had not involved SON.  MNRF hoped for “feedback” in order “to resolve outstanding concerns” without acknowledging that the agreed premise of consultations since October 2012 involved funding for SON experts, a premise that was fundamental to the meetings in March and June 2013, SON’s proposal of July 2013, and MNRF’s letter of August 28, 2013.  It was almost as if MNRF considered that none of that had happened.

[106]      SON responded in a letter sent February 17, 2015.[116]  After summarizing the history of the matter, SON wrote:

[107]      MNRF responded by letter dated March 9, 2015.  MNRF started by summarizing the nature of the license application and then noted:

[108]      SON responded by letter dated April 30, 2015, reiterating SON’s position that it had not been able to participate meaningfully in consultation because of the lack of funding, and the consequent inability to review technical reports.  SON suggested that a substantive meeting would not be fruitful until its experts reviewed the technical reports and mitigation measures, something that could not happen without funding.  SON stated:

[109]      MNRF responded to SON’s letter by letter dated July 9, 2015.  In this letter MNRF provides the following history of recent events on the file:

[110]      SON responded to this letter by letter dated December 18, 2015:

[111]      MNRF responded by letter dated February 3, 2016.  In it MNRF thanked SON for its letter in which SON accepted the $10,914.  The letter then stated:

[112]      By letter dated February 18, 2016, SON responded to MNRF that it did not consider that meaningful consultation had taken place and that it was not prepared to participate or comment further on the application in the absence of a commitment to a “meaningful and adequate consultation and accommodation process.”[126]  SON returned a signed invoice showing the $10,914 as a “first instalment” of SON’s consultation costs.

[113]      On February 19, 2016, MNRF wrote back to SON indicating that the invoice could not be processed as a “first instalment”, but that if SON wished to resubmit an invoice only for the $10,914, the payment would be made.  This letter also confirmed that a recommendation would be made to the Minister to approve a license for the Project.[127]

[114]      The Minister approved a license for the Project on March 8, 2016.[128]  The license permits Hayes to remove more than 20,000 tonnes of aggregate annually.  SON was not advised of this approval until July 14, 2016.  The absence of timely notice to SON of the approval was an inadvertent mistake by MNRF.[129]

[115]      It is clear that Hayes became increasingly frustrated by the long delay in the process for approving its application.  When, in August 2013, it received the letter from MNRF that said that Hayes would be responsible to consult with SON and to fund SON’s participation in those discussions, it balked.  Hayes responded firmly to MNRF that consultation was the Crown’s obligation, and that MNRF had already said that it would handle First Nations’ concerns at no cost to Hayes;[130] and (c) that Hayes would not, at this late juncture, undertake consultations with SON. 

[116]      Hayes’ President, Ted Hayes, contacted his local Member of the Provincial Legislative Assembly (Bill Walker, MPP for Bruce-Grey-Owen Sound), who in turn contacted the Minister of Natural Resources and Forestry (Hon. Bill Mauro), to bring the slow progress of the application process to the Minister’s attention.  The goal was to obtain intervention from the Minister to get the license issued.[131]  There is some evidence that Mr Walker advised Hayes not to deal directly with SON.[132]

[117]      There was correspondence and there were meetings between Hayes, MNRF and the Minister’s office on these issues.  SON was not included in or copied with these communications.[133]

[118]      After receiving MNRF’s letter of August 28, 2013, Hayes did not deal directly with SON.  Hayes did not advise SON that it would not engage in the consultations delegated to it by MNRF.  And Hayes did not respond to SON’s inquiries after August 2013.  Hayes did have dealings with MNRF and others associated with Ontario, but SON was not privy to these other dealings.

[119]      Hayes did, however, instruct its hydrogeologist, Flanagan, to speak directly with SON’s hydrogeologist, Blackport.  Hayes also instructed its archaeological consultant, Golder, to invite SON to “monitor” the Phase II archaeological assessment being done by Golder.  None of this was on notice to SON by either Hayes or MNRF.  SON’s evidence is that it was unaware of the conversation between Flanagan and Blackport.[134]  It is not clear what SON’s response was to Golder’s invitation, on short notice, to monitor the archaeological assessment.

[120]      What is clear is that these steps to “consult” were taken without any direct contact between Hayes and SON, without any response to SON’s proposed consultation agreement, without any funding provided to SON, and with no established process for consultations.  When these events are seen together with Hayes’ refusal to undertake consultations and its communications to the local MPP and the Minister, it is absolutely clear that Hayes wanted nothing to do with direct dealings with SON.

[121]      Based on these events I find:

[122]      SON agreed to move forward in January 2013 on the basis of $8,514 in funding for experts.  It was not reasonable for MNRF to have failed to provide this funding shortly after that time.  Had that happened, it is probable that initial substantive consultations on all issues other than hydrogeology would have been completed by mid-2013.  It is not possible to know now whether SON’s substantive concerns would have been addressed to its satisfaction by that point.  Just as it is not possible to know now whether current ameliorative measures directed by MNRF will be satisfactory to SON.

[123]      The proper process now, is for MNRF to fund SON as it agreed to do, for SON to obtain the expert assistance it requires, and for the parties to then discuss SON’s concerns.  It will be for the Crown to decide what process to follow if unresolved issues remain after these consultations.

[124]      The failure of the Crown, in this case, is primarily a failure to follow its own processes.  Consultation processes are not cast in stone, and may change or evolve over time.  However, that is not what happened in this case.  MNRF changed its positions several times, but not, so far as can be determined from the record, because of material changes in circumstances regarding SON. 

[125]      This leads to a rather trite observation.  It is for the Crown to devise the consultation process.  The Crown must assess the scope of consultations correctly, but the adequacy of the consultation process is reviewed on a reasonableness standard.  Once the Crown establishes a process, if it decides to change that process in a material way, generally it is not reasonable to effect the change without explaining the change, and the reasons for the change, to the First Nation.  Here that was not done.  That failure was a breach in the Crown’s duty to consult.

[126]      SON’s stated substantive concerns are and have always been raised on a preliminary basis.  This is because SON says that it lacks the technical expertise to review Hayes’ and MNRF’s technical reports and documents.  Until SON had a chance to get advice on those materials, it was not prepared to provide a definitive list of concerns or to comment on ameliorative measures.

[127]      It would be open to the Crown, in an appropriate case, to reject a request for funding and to decide that a First Nation did not require expert assistance to participate adequately in consultations.  Such a decision would be reviewed in this court on a standard of reasonableness.  In this case, however, the Crown did agree to fund the cost of experts for SON.  Having agreed to fund those costs, it was unreasonable for MNRF to then fail to do that.  No new information emerged that would have borne upon the Crown’s agreement to fund these costs.  Thus, in finding that the Crown is obliged to provide this funding in this case, I do no more than find that the Crown is obliged to keep its word where there is no basis on which the Crown should be relieved of its agreement.

[128]      The “merits” of MNRF’s position on SON’s “substantive concerns” primarily involves consideration of whether MNRF’s views of potentially adverse effects of the Project on SON are reasonable, and whether MNRF’s conclusions about reasonable amelioration of those potential effects are reasonable.  My conclusion is that SON has not been consulted adequately on either of these points.  My conclusion is that a process had been established and then not followed for those consultations.  A review of the reasonableness of MNRF’s substantive conclusions is thus, premature.  Consultation is a process involving a First Nation.  Imposing MNRF’s view of what is reasonable, without adequate consultation with SON, would be to endorse a version of paternalism entirely inconsistent with the duty to consult: it would be tantamount to saying “we know what is best for you and we don’t need to hear from you on that issue.”

[129]      SON argues that the following issues are raised on this application for judicial review:

[130]      In view of my conclusions respecting the first set of issues, it is not necessary to decide the procedural fairness issues raised by SON.  The issue of an appropriate process for the consultations yet to come is for the Crown to decide, subject to the findings this court, given the history of consultations to date. 

[131]      There have been many problems with the consultations in this case.  These need to be approached constructively.  The goal is to get consultations on track in a way that fosters constructive relationships moving forward.  And for this court, the measuring stick, whether of correctness or of reasonableness, is applied to the status of consultations as they are at the time of the application before us.  And where the court is not satisfied that the Crown has discharged duties owed to a First Nation, the goal is to provide direction to put the parties back on track, not to punish or castigate.

[132]      This court has jurisdiction over this application for judicial review by virtue of ss. 2(1) and 6(1) of the Judicial Review Procedure Act.[135]

[133]      On judicial review, questions of law are reviewable on a standard of correctness.  Questions of fact are reviewable on a standard of reasonableness.  Questions of mixed fact and law will generally involve some deference towards the decision-maker, based on the extent to which the issue is one of fact or one of law.[136]

[134]      Crown decisions as to whether there are duties to consult or accommodate are reviewable on a standard of correctness.  The Crown’s assessments of the extent of these duties are generally questions of law, reviewable on a standard of correctness, because they define legal duties.[137]  Thus if the Crown misconceives the seriousness of a claim or the impact of infringement, this will be reviewable on a standard of correctness.[138]   That said, “scoping” the duty to consult can involve questions of fact, and where it does, the Crown’s factual findings are to be reviewed on a standard of reasonableness.[139]

[135]      The “effect of good faith consultation may be to reveal a duty to accommodate.”[140]  The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness.[141]  Counsel for MNRF in written submissions argues “that the extent and scope of the duty to consult and the adequacy of consultation are questions of mixed fact and law to be assessed on a standard of reasonableness.”[142]  The Supreme Court of Canada is explicit that the standard of review is different for assessing the scope of the duty to consult and, if there is a duty, for assessing the adequacy of consultations.  Combining the two steps of the inquiry into one with a common standard of review is, expressly, not what the Supreme Court of Canada has said. 

[136]      Process decisions of the Crown may be revisited in light of new information or circumstances.  The standard of reasonableness will generally require the Crown to keep the First Nation advised of process changes and reasons for process changes so that the process is coherent and systematic and is seen to be fair and not arbitrary.

[137]      SON and the Crown agree that the duty to consult was triggered in this case. 

[138]      The scope of the duty to consult falls along a spectrum rather than in hermetic categories.  The scope is to be based on (i) the nature and strength of the Aboriginal or treaty right (including asserted rights and title), and (ii) the seriousness of the impact on that right.

[139]      Although the law in this area is nascent, the jurisprudence is developing a rough typology that describes the duty to consult as at the “low end”, the “middle” and the “high end” of the duty to consult.  This seems to result in five general positions – the three just described, and two gradations between “low” and “middle” and between “middle” and “high”.  This is fine as a form of shorthand, but these five general positions should not be seen as tight “compartments” carrying with them defined procedural requirements.  Otherwise the analysis will quickly devolve into the kind of compartmentalized categories against which the Supreme Court of Canada warned in Haida Nation. 

[140]      In this case, MNRF says the scope is between low and the middle.  SON says it is between the middle and high.

[141]      In view of the process that was agreed between the parties, I find that:

[142]      None of the steps required to discharge the duty to consult were met in a timely way.  The requirement for notice was met when MNRF confirmed the status of the project in response to an inquiry from SON in October 2011.  Information about the Project was provided on an ongoing basis starting in September 2011.[143]  Steps (iii), (iv) and (v) have not yet taken place.

[143]      Delay in performance of steps (i) and (ii) may be cured by subsequent events.  The failure to complete steps (iii), (iv) and (v) has not been cured by subsequent events.  It therefore follows that the duty to consult has not yet been met by the Crown.

[144]      During my detailed review of the dealings among the parties I made numerous findings that various acts or omissions by MNRF were “breaches” of the Crown’s duty to consult.  As noted above, Treaties are not to be construed like commercial agreements.  Similarly, the conduct of the parties during consultations is not weighed on the basis of contract law.  The repeated “breaches” rendered the Crown duty to consult undischarged, and nothing more.  Thus when an adequate consultation process is completed, any prior failures in the process will have been cured.  The only remedy for past problems in the process lies in a request for funding to cover associated costs for SON, a request that the Crown will be obliged to decide reasonably, given all the circumstances.

[145]      In the result, based on the foregoing, I conclude that the Crown has failed to discharge its duty to consult SON about the Project.

[146]      Several additional points were raised before us:

[147]      Mr Fell’s affidavit is framed as expert evidence relating to ecology/natural heritage issues.  MNRF objects to it because (i) it was not before the Minister when he approved the license; and (ii) Mr Fell is not a properly qualified expert.

[148]      Mr Fell’s affidavit is probative in respect to whether (a) there is a duty to consult; (b) the proper scope of consultation includes an opportunity for SON to obtain independent expert advice.  The first issue – whether there is a duty to consult – is admitted.  The second issue – scope – is not.  I would refuse to strike the affidavit because it is relevant to this second issue: it is evident from reading Mr Fell’s affidavit that SON – or any non-expert – could not reasonably be expected to appreciate the ecology/natural heritage issues without expert advice. 

[149]      I would decide the second issue in favour of SON without relying upon Mr Fell’s evidence because I base my decision on the process developed by SON and MNRF, which includes funded experts for preliminary reviews of the Project.  It is not necessary to decide if funded experts would be required, in the absence of agreement, and this decision does not decide that issue, one way or the other. 

[150]      I would not strike the Fell affidavit on relevance grounds because SON was entitled to develop a record to defend all grounds it advanced on this application, not just the one upon which this court rests its decision.  The question of whether funded experts is part of the necessary consultation process is an alternative ground for SON, and it remains available to SON for purposes of any appeal that may be pursued from the decision of this court.

[151]      SON argued that bilateral discussions between Hayes and MNRF[144] were inconsistent with the honour of the Crown in the Crown’s dealings with SON.  I do not agree.

[152]      It is open to anyone to approach an MPP with their concerns.  It is one of the jobs of an MPP to help members of the public in their dealings with government.  Likewise, it is part of the role of the Minister and of MNRF to receive and respond to communications from MPP’s and from members of the public.  Just as it was open to Hayes to go to its local MPP or to approach the Minister, so too it was open to SON to communicate with the Minister and MPP’s about SON’s concerns.  I see nothing improper in the impugned communications.

[153]      SON has enumerated several “interests” it has in potential adverse effects of the Project.  One of these “interests” is the right to “protect the health and integrity of lands, waters and resources throughout SON’s traditional territories.”  This decision does not decide whether this alleged interest is a basis on which the Crown is required to consult SON in respect to the Project.   

[154]      SON has raised questions about the cumulative effect of quarries in its traditional territories.  The only response from MNRF on this point in the record before this court is that there is no requirement under provincial law to consider cumulative effects when processing an application under the Aggregates Resources Act. 

[155]      Cumulative effects can be a proper matter for consultations: the West Moberly decision provides a clear analysis as to why this is so.[145]  MNRF’s response is not an answer that satisfies the reasoning in West Moberly.  However, aside from this observation, this court does not decide whether there are (or are not) material cumulative effects requiring consultations in this case.

[156]      MNRF has agreed to fund preliminary consultation costs and SON has agreed to proceed on the basis of that funding, so it is not necessary to decide whether funding is required in the absence of agreement.   It will be for the parties to discuss what further funding, if any, will be provided to SON to complete consultations.  There are two related points worth noting, however.

[157]      First, SON sought initial funding to help understand the issues raised by the Project, and to address those issues effectively with MNRF.  SON did not ask to have all the technical work done over again by its own experts.  SON’s budget included modest legal costs.  MNRF did not explain why it rejected and continues to reject funding for SON’s reasonable legal costs to consult.

[158]      As noted above, SON is disinclined to spend its “community resources” to review someone else’s project.  That is a reasonable position. 

[159]      SON has limited resources.  It does not participate in consultations as a party to the Project.  The expense of consultation arises as a result of a proponent’s desire to pursue a project, usually for gain, and the Crown’s desire to see the project move ahead.  The Crown should not reasonably expect SON to absorb consultation costs from SON’s general resources in these circumstances.[146] 

[160]      Second, clearly the process went “sideways” in this case.  SON was put to considerable legal expense to make its case to MNRF that there is a duty to consult and that the scope of that duty includes funded experts.  It will be for the parties to decide whether and to what extent the Crown should reimburse these legal expenses on a reasonable basis, taking into account (a) the legal costs to be paid to SON as a result of this decision; (b) the legal and other costs reasonably incurred by SON in its dealings with MNRF and Hayes over the Project to this point.

[161]      The application is allowed.  The decision of the Minister to issue the Project license is set aside.  Hayes’ license application is remitted back to the Minister and MNRF pending completion of adequate consultations with SON about the Project.  As agreed among the parties, SON shall have its costs of the application from the respondents in the amount of $80,000 inclusive, payable within thirty days.