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Aboriginal Law - Hunting, fishing and logging rights - Regulation of - Constitutional issues - Canadian Charter of Rights and Freedoms - Racial discrimination - Practice and procedure - Appeals and judicial review

Thursday, March 16, 2017 @ 8:00 PM  


Motion by Lombardo and the Ontario Federation of Anglers and Hunters to set aside an order quashing their application for judicial review and notice of constitutional question. The applicants sought judicial review of a decision by the Minister of Natural Resources and Forestry to apply the Interim Enforcement Policy to the Williams Treaties First Nations. The Policy granted conservation officers prosecutorial discretion not to enforce hunting and fishing laws against individuals claiming Aboriginal hunting and fishing rights, subject to certain exceptions such as unsafe hunting or conservation interests. The Ministry’s decision to apply the Policy to the Treaty 20 area accorded with its position in Federal Court litigation involving the relevant First Nations. The applicants sought declaratory relief with respect to the constitutional validity of the Policy, and its application to the First Nations. The Minister sought to quash the application. The motion judge determined that an exercise of prosecutorial discretion was plainly and obviously not justiciable in the absence of flagrant impropriety, or an abuse of process, neither of which was established. The applicants sought an order setting the decision aside.

HELD: Motion dismissed. The motion judge’s conclusion correctly held that the judicial review application sought a ruling on an exercise of prosecutorial discretion, and that the matter was not subject to review. Lombardo’s claim of a breach of his s. 15 Charter rights was unsupported by sufficient facts showing an arguable case, as the application of the Policy did not alter his rights, impose a burden, or deny him benefits based on his race. The Policy was a Ministerial guideline that advised conservation officers. It did not stop the applicants from continuing to hunt and fish in accordance with the applicable laws. There was no basis to interfere with the decision quashing the application.