OMB/LPAT/ERT/OLT decisions and outcomes

Bruce Peninsula – T & P Hayes revised

T & P Hayes Ltd. (Hayes) applied for a licence in 2008 for a limestone quarry on land that it owned in the
municipality of Northern Saugeen/Bruce Peninsula. In 2017, the Ontario Divisional Court (ODC) denied the
quarry licence after finding that The Ontario Ministry of Natural Resources and Forestry (MNRF) failed in its
constitutional duty to hold meaningful conversations or properly consult with and accommodate the Saugeen
Ojibway Nation before they approved the project (P. Loriggio).

The Chippewas of Nawash Unceded First Nation and the Saugeen First Nation are two First Nations bands
whose traditional territory encompasses the area and who collectively make decisions through the Saugeen
Ojibway Nation Joint Council (SON). The SON was formed to engage with government and proponents about
projects, decisions or conduct in the SON’s traditional territory that could affect their rights, culture, resources,
land and waters (J. Kahn & R. Amarnath).

The Supreme Court of Canada declared that before going ahead with projects such as this one, governments
must determine whether a duty to consult with First Nations arises, make a preliminary assessment of the
scope of the duty to consult, consult with the First Nation, and assess whether a duty to accommodate arises
(J. Kahn & R. Amarnath).

It was discovered by the ODC that the MNRF did not properly notify the Nation of the project until three years
after the application was filed (P. Loriggio). The MNRF and SON had engaged in a series of discussions over
the course of 2011-2013, which resulted in the MNRF delegating its responsibility to Hayes who objected and
did not directly engage with the SON again (J. Kahn & R. Amarnath). Overall, “consultation on the project was
disjointed, inconsistent, and an exercise in frustration,” said Justice David Corbett (P. Loriggio).
“In this case, while Hayes did fulfil its statutory obligations to provide the public with notice of the proposed
quarry, the Court determined that specific notice was not immediately provided by MNRF to the SON” (J. Kahn
& R. Amarnath).

As a result, the licence was revoked until proper consultations are conducted. The court also ordered that T &
P Hayes and the MNRF cover the SON’s legal costs which amounted to $80,000 (P. Loriggio).
“This decision provides important guidance to companies to ensure that First Nations are given proper notice
at the outset of an application for a project and are involved in the project consultations for the remainder of
the process” (J. Kahn & R. Amarnath).