TP Hayes Decision
NEYAASHIINIGMIING - A new Ontario Court decision delivers a stinging rebuke of the conduct of the Ministry of Natural Resources and Forestry (MNRF) and a quarry operator on the Bruce Peninsula (T and P Hayes) for failure to properly consult the Saugeen Ojibway Nation. As a result of this failure, the Court has quashed approvals for the T and P Hayes quarry project.
In the case of Saugeen First Nation and Chippewas of Nawash v. Ontario (Minister of Natural Resources and Forestry) and T & P Hayes Ltd.*, the Ontario Superior Court of Justice overturned the Minister of Natural Resources and Forestry’s (MNRF) approval of T and P Hayes’ quarry licence, finding that the MNRF breached its duty to consult and accommodate the Saugeen Ojibway Nation’s Aboriginal and Treaty rights. The Court found these breaches “serious”, for the Crown had not:
- properly assessed what their duty to consult required them to do
- given early enough notice of the application to SON
- provided SON with funding to hire experts to evaluate the project
- followed a clear, agreed-to consultation process.
The SON Joint Chiefs and Councils are celebrating this monumental decision, “This comes after years of efforts to defend our constitutionally-protected rights in the face of hundreds of active quarries in our Territory. In this case, our efforts to defend our rights were met with years of stalling, denial of our rights, and a refusal to provide us with relevant information,” says Chief Lester Anoquot of Chippewas of Saugeen First Nation. “The Court has recognized that these tactics are not acceptable, and do not uphold the honour of the Crown or advance reconciliation. We hope this decision will serve as a road map for how to do better on the many other quarry applications currently in process.”
A key issue in the case was who should pay for SON’s technical experts to review the quarry project, in order to identify and address impacts to SON’s rights. The Court agreed with SON that the Crown should fund such technical reviews.
“These are not our projects and they don’t benefit our Communities. Our Communities should not have to take from already-scarce community funds needed for housing, education and other essential services to enable someone else’s project. We are asking to participate in consultation on a level playing field that doesn’t disadvantage us,” said Chief Greg Nadjiwon of Chippewas of Nawash First Nation.
The decision has led to a major change in aggregate development in the Saukiing Anishnaabekiing. It can be found at Saugeen First Nation and Chippewas of Nawash Unceded First Nation v Ontario (MNRF), 2017 ONSC 3456