The Divisional Court is grappling with a complex battle between two possibly overlapping First Nations over whether a Northern Ontario hydropower project is being lawfully evaluated under the Environmental Assessment Act and an agreement with three First Nations: Cree Nation (MoCreebec Council) v. Ontario. There is a conflict over the proper decision-making process for the project.
As Justice Molloy put it:
“[1] MoCreebec Council of the Cree Nation commenced a judicial review application in this Court by notice dated November 17, 2010. The application relates to a proposed hydroelectric generating project in the Moose River/James Bay area. The applicant was one of the parties to an agreement with the Ontario government in 1994 with respect to how the project was going to proceed. The applicant now contends that Ontario has failed to comply with its obligations under that agreement and under the Environmental Assessment Act. The application for judicial review seeks various forms of relief requiring Ontario to comply with those obligations and prohibiting further development that is not in compliance. In support of the application was filed the affidavit of Allan Jolly, the Acting Chief of the MoCreebec Council.
[2] Moose Cree First Nation is named as a party respondent in the application. Moose Cree brought a motion to strike various aspects of the judicial review application and portions of the supporting affidavit. …From the perspective of the moving party, one principal issue remains: the capacity of MoCreebec to bring this application. I also have some concerns about the form of the proceeding itself.”
Moose Cree, which is defending the the Lower Mattagami project, will own up to 25% of it.
Although the case began in 2010, it is not yet clear whether the plaintiff, the “MoCreebec Council of the Cree Nation“, actually has legal status to sue. This will be argued before a full Divisional Court panel in October:
“[17] The capacity (or status) issue is by no means a simple matter factually or legally, and it is one with profound consequences for the MoCreebec Council, not just with respect to this application, but to their status generally. In light of the complexity of the issue, the inadequate state of the record before me at present, and the significant public policy issues raised, in my view it is preferable that this motion be heard by a three-person panel of the Divisional Court, rather than by a single judge…
[21] The moving party Moose Cree First Nation shall deliver a notice of motion and, if so advised, affidavit material by May 10, 2013. The notice of motion shall clearly setting out the precise relief sought and the grounds for taking that position. Affidavit evidence may also be filed, particularly with respect to the practical problems of having an application brought by MoCreebec with the Moose Cree as a respondent, given there may be some overlap between the membership of both groups, and any other issues that may be contentious relating to the capacity of the MoCreebec Council to sue.”