Background
Six First Nations (Brunswick House, Chapleau Ojibwe, Flying Post, Matachewan, Mattagami, and Beaverhouse)—most of them Treaty 9 signatories—sought judicial review of the Minister of Crown-Indigenous Relations’ decision to sign the Métis Self-Government Recognition and Implementation Agreement on February 23, 2023. The agreement recognizes Métis communities in Ontario and establishes a government-to-government relationship with the Métis Nation of Ontario.
The First Nations claimed the agreement violated their constitutionally protected Section 35 rights and traditional territory. They alleged that the agreement recognized Métis communities (including the Abitibi-Inland Historic Métis Community) that lack the ancestral connection required under Supreme Court precedent, and that it would increase competition for hunting and harvesting rights in their territories without adequate consultation. The First Nations sought to quash the agreement entirely and obtain declarations of procedural unfairness and breach of the Crown’s duty to consult and act honourably.
The Court’s Holding
Justice Duchesne granted the Métis Nation of Ontario’s motion to strike, holding that the First Nations’ application was “plainly and obviously doomed to fail” on justiciability grounds. The court found that the real essence of the First Nations’ claims was an attempt to have the court overturn government policy and negotiated settlement terms based on the First Nations’ own disagreement with those policy choices.
The court distinguished between administrative decisions (which are reviewable) and negotiated government-to-government agreements (which are generally not). The court noted that the Crown had engaged in good-faith negotiations with the Métis Nation beginning in 2017 through a Framework Agreement. The decision to sign the 2023 Agreement followed Cabinet approval and represented a policy choice about how to advance reconciliation—not an administrative action susceptible to judicial review. The court emphasized that courts cannot intervene to second-guess negotiated settlements simply because another Indigenous group believes the negotiations affected their territorial interests.
The court struck substantially all of the First Nations’ grounds, including claims that the decision was unreasonable, unlawful, or procedurally unfair. However, allegations that the Minister breached the Honour of the Crown in dealings with Treaty 9 First Nations survived the motion to strike and may proceed.
Key Takeaways
- Negotiated government-to-government agreements on reconciliation, once Cabinet-approved and signed, fall outside the scope of judicial review as inherently non-justiciable policy matters.
- A First Nation cannot use judicial review to challenge negotiated agreements between the Crown and other Indigenous groups, even when claiming adverse territorial or rights impacts, without establishing a reviewable administrative decision.
- Courts will not police the substantive policy choices made during Crown-Indigenous negotiations or require a court’s approval of specific outcomes reached through negotiation.
- The Honour of the Crown remains a potential ground for challenge when the Crown’s conduct in negotiations with one group may have breached its obligations to another.
Why It Matters
This decision significantly limits judicial review of Crown-Indigenous reconciliation agreements. It establishes that once the Crown negotiates and Cabinet approves an agreement with one Indigenous group, other Indigenous groups cannot easily challenge it through the courts—even if they believe it affects their traditional territories or Section 35 rights. The ruling protects negotiated settlements from becoming subject to repeated litigation by third parties, which could deter the Crown from entering negotiated arrangements.
However, the decision leaves open the possibility of challenging the Crown’s conduct under the Honour of the Crown doctrine. This may be the primary avenue for First Nations to vindicate concerns that reconciliation negotiations unfairly prejudiced their interests. The decision also implicitly endorses a court-deferential approach to Crown-Indigenous policy-making, consistent with broader reconciliation goals, though at the potential cost of access to justice for First Nations concerned about overlapping territorial claims.