R. v. Transcanada Pipelines Limited

R. v. Transcanada Pipelines Limited Collection Decisions of the Court of Appeal Date 2000-04-05 Docket numbers C29876 Judges Weiler, Karen Merle Magnuson; Goudge, Stephen Thomas; Borins, Stephen Subject Criminal Decision Content DATE: 20000405 DOCKET: C29876 COURT OF APPEAL FOR ONTARIO WEILER, GOUDGE and BORINS JJ.A. BETWEEN: HER MAJESTY THE QUEEN IN RIGHT ) Dennis W. Brown, Q.C., OF ONTARIO as represented by the ) R. Tzimas and J. Mitchell, MINISTER OF MUNICIPAL AFFAIRS ) for the appellant AND HOUSING ) ) (Appellant) ) ) –and– ) ) TRANSCANADA PIPELINES ) Richard N. Poole and LIMITED, THE CORPORATION OF ) J. Bradford Nixon for the respondent THE TOWNSHIP OF BEARDMORE, ) TransCanada Pipelines Limited THE CORPORATION OF THE TOWN ) OF GERALDTON, THE CORPORATION ) Alan Pratt, for the respondent OF THE TOWN OF LONGLAC, THE ) Long Lake 58 First Nation CORPORATION OF THE TOWNSHIP ) OF NAKINA, LONG LAKE 58 FIRST ) H.W.R. Townshend, for the NATION, NISHNAWBE-ASKI NATION ) respondents Nishnawbe-Aski Nation and GINOOGAMING FIRST NATION, ) and Ginoogaming First Nation BOB GRAY, COMMISSIONER OF THE ) GREENSTONE RESTRUCTURING ) A. Roman, for the respondent COMMISSION, and THE TRANSITION ) Bob Gray, Commissioner of the BOARD OF THE GREENSTONE ) Greenstone Restructuring RESTRUCTURING COMMISSION ) Commission ) (Respondents) ) ) Heard: April 13 and 14, 1999 On appeal from the judgment of the Divisional Court (O’Driscoll J.) dated December 31, 1997. BORINS J.A.: [1] This appeal by Her Majesty the Queen in Right of Ontario on behalf of the Minister of Municipal Affairs and Housing (the “MMAH” or the “Minister”) arises out of the Final Proposal and Order of the Greenstone Restructuring Commission. The commission was established by the Minister under s. 25.3(1) of the Municipal Act, R.S.O. 1990, c. M. 45. [2] The Order, which implemented the Final Proposal, amalgamated the Townships of Beardmore and Nakina and the Towns of Geraldton and Longlac into a single municipality to be known as the Municipality of Greenstone. The Order also annexed to the newly created municipality unorganized townships contiguous to the boundaries of Beardmore, Geraldton and Longlac, and non- contiguous unorganized territory represented by the Caramat Local Roads Board, comprising approximately 930 square miles. [3] Three applications for judicial review were brought to the Divisional Court. Sitting as a single judge of that court, O’Driscoll J. quashed the Final Proposal and Order of the commission for reasons reported in [1998] 2 C.N.L.R. 240. This appeal, brought with the leave of this court, seeks to set aside the judgment of O’Driscoll J. In addition, there is a cross- appeal by two of the respondents, described below as NAN and GFN, for a declaration that the Final Order and Proposal of the commission infringe Aboriginal rights confirmed and protected by s.35(1) of the Constitution Act, 1982. THE PARTIES [4] As I have indicated, the Crown has appealed on behalf of the Greenstone Restructuring Commission (the “commission”). The Crown’s appeal is supported by Bob Gray, who was the sole commissioner of the commission. In addition, Mr. Gray has asked this court to state that O’Driscoll J.’s personal criticisms of him in his reasons for judgment were unwarranted. [5] The first respondent is TransCanada Pipelines Limited (“TCPL”), which owns and operates four natural gas pipelines which run through the geographic area which is the subject of this appeal, as well as three compressor stations located in this area. TCPL has traditionally paid municipal realty taxes to Beardmore, Geraldton and Longlac, and provincial land tax in respect to the portions of its pipelines which pass through the unorganized territory. It has received virtually no municipal services from Beardmore, Geraldton and Longlac. As for the unorganized territory, for the most part, it is wilderness, and is largely unoccupied. It is the position of TCPL that the result of the commisson’s Final Proposal and Order will be a significant tax, or revenue, windfall for the proposed Municipality of Greenstone (“Greenstone”). TCPL has characterized the restructuring as a “tax grab”. [6] Nishnawbe-Aski Nation (“NAN”) and Ginoogaming First Nation (“GFN”) are joint respondents. NAN is an umbrella organization representing 47 First Nations in Northern Ontario regarding common interests arising from Treaty 9 and other matters. GFN is an individual First Nation and is a member of NAN. The territorial application of Treaty 9 includes lands within Greenstone, and purports to guarantee to its beneficiaries, who are represented by NAN, land for reserves and for hunting, trapping and fishing, which are constitutionally protected rights under s.35(1) of the Constitution Act, 1982. On February 24, 1986, the Governments of Canada and Ontario signed a Memorandum of Understanding (“MOU”) with NAN, which commenced a process of negotiation to implement self-government for the NAN First Nations, including land claims. [7] NAN and GFN take the position that the proposed restructuring may result in the infringement of First Nation constitutionally protected rights and may impede, delay or thwart future land claims negotiations dependent on the MOU. [8] The final respondent is Long Lake 58 First Nation (“LL58”), a First Nation which is affiliated with NAN, but not a member of it. LL58 comprises about 1,000 members, about 400 of whom reside on the habitable portion of a reserve northeast of Thunder Bay. In response to LL58’s request for an addition to the reserve for community expansion, in 1990 the Government of Ontario stated that it was prepared to enter negotiations with LL58 to provide a larger land base for the reserve as a first step to entering into comprehensive negotiations on a wide range of items, including land claims and self-government. It is the position of LL58 that, if its lands form part of Greenstone, this would create obstacles to the settlement of its land claim and the expansion of its reserve and that traditional Aboriginal treaty and other rights may be adversely affected. LEGISLATIVE SCHEME FOR MUNICIPAL RESTRUCTURING [9] Pursuant to Schedule M of the Savings and Restructuring Act, S.O. 1996, c. 1, the Municipal Act was amended by repealing s. 25 and substituting ss. 25, 25.1, 25.2, 25.3 and 25.4 for the purpose of streamlining the process of municipal restructuring. These amendments were intended by the Ontario Government to provide municipalities with the mechanism necessary to restructure to better cope with new municipal responsibilities. The new responsibilities arise from the Government’s policy of giving greater responsibility to the municipal sector for the costs of a number of services, including policing, sewer and water, transit, public health and social housing. [10] As pointed out by Osborne J.A., on behalf of this court, in Bruce (Township) v. Ontario (Minister of Municipal Affairs and Housing) (1998), 41 O.R. (3d) 309 at 312: Before 1996, municipal restructuring took place by application to the Ontario Municipal Board under the Municipal Act, through the process established by the Municipal Boundary Negotiations Act, 1981, S.O. 1981, c. 70, or by special Act of the legislature. The 1996 Municipal Act amendments substantially changed the process for municipal restructuring. [11] The 1996 amendment removed the Ontario Municipal Board (“OMB”) from the restructuring process and introduced two restructuring processes – a restructuring proposal developed by a municipality or a local body under s. 25.2 and a restructuring proposal developed and implemented by a commission under s. 25.3, as occurred in this appeal. Under s. 25.4, the Minister may establish restructuring principles that shall be considered by municipalities, local bodies and a commission when developing a restructuring proposal. [12] The purposes of the restructuring legislation, as contained in s. 25.1, are: 25.1 The purposes of sections 25.2 to 25.4 are, (a) to provide for a process which allows municipal restructuring to proceed in a timely and efficient manner; (b) to facilitate municipal restructuring over large geographic areas involving counties or groups of counties, local municipalities in counties and in territorial districts and unorganized territory; and (c) to facilitate municipal restructuring of a significant nature which may include elimination of a level of municipal government, transfer of municipal powers and responsibilities and changes to municipal representation systems. [13] In s. 25.2(1), “restructuring” is defined as follows: “restructuring” means, (a) annexing part of a municipality to another municipality, (b) annexing a locality that does not form part of a municipality to a municipality, (c) amalgamating a municipality with another municipality, (d) separating a local municipality from a county for municipal purposes, (e) joining a local municipality to a county for municipal purposes, (f) dissolving all or part of a municipality, and (g) incorporating the inhabitants of a locality as a municipality; [14] Section 25.3 provides for the development of a restructuring proposal by a commission and stipulates the procedure that it must follow. As most of the provisions of s. 25.3 are relevant to this appeal, it is helpful to reproduce them: 25.3 (1) The Minister may establish a commission on or before December 31, 1999 at the request of a municipality in a locality or at the request of 75 or more residents of an unorganized territory in a locality. The purpose of the commission is to develop a proposal for restructuring municipalities and unorganized territory in the locality or in such greater area as the Minister may prescribe. (2) The commission shall develop a restructuring proposal for the prescribed locality or for such part of it as the commission considers advisable. (3) A restructuring proposal shall not provide for a type of restructuring other than a prescribed type of restructuring. (4) The commission shall consult with each municipality in the prescribed locality when developing the restructuring proposal and may consult with such other bodies and persons as the commission considers appropriate. (5) The commission shall prepare a draft of the restructuring proposal and shall give a copy of the draft to each municipality in the prescribed locality and make it available for inspection by members of the public in the prescribed locality. (6) The commission shall hold at least one public meeting at which any person who attends is given an opportunity to make representations about the draft. (7) The commission shall invite written submissions about the draft and shall establish a deadline for receiving them. The commission shall make the submissions available for inspection by each municipality and by members of the public in the prescribed locality. (8) The commission shall notify each municipality in the prescribed locality of its opportunity to make representations and shall advise them where they can inspect written submissions received by the commission. (9) The commission shall give notice to the public in the prescribed locality advising them of the opportunity, (a) inspect the draft; (b) to make representations at the public meeting and to give written submissions by the deadline; and (c) to inspect the written submissions received by the commission. (10) After considering the representations and submissions about the draft, the commission shall finalize the restructuring proposal and shall give a copy of it to each municipality in the prescribed locality and make it available for inspection by members of the public in the prescribed locality. (11) The commission shall give notice to the public in the prescribed locality advising them of the opportunity to inspect the restructuring proposal. . . . . . (13) The commission may make orders to implement the restructuring proposal. For the purposes of implementing the proposal, the commission has the powers under a regulation made under subsection 25.2 (11). . . . . . (18) The Minister may, for the purposes of this section, make regulations, (a) establishing a commission; (b) providing for the composition of the commission, which may be composed of one person; (c) describing the locality for which the commission shall develop a restructuring proposal; . . . . . (e) establishing types of restructuring; (20) The Minister may require that a commission follow such procedures as the Minister may provide, in addition to the procedures set out in this section. [Emphasis added.] [15] O. Reg. 143/96, made under the Municipal Act, contains the powers of the Minister or a commission for the implementation of a restructuring proposal. Of relevance to this appeal is s. 2, which states: 2. The Minister or a commission may, (a) annex part of a municipality to another municipality; (b) annex a locality that does not form part of a municipality to a municipality; (c) amalgamate a municipality with another municipality; (d) separate a local municipality from a county for municipal purposes; (e) join a local municipality to a county for municipal purposes; (f) incorporate the inhabitants of a locality as a municipality. [16] In my view, this legislative scheme discloses that the role of a restructuring commission is not adjudicative, in the sense that it does not establish a process for the resolution of a dispute between opposing parties involving a hearing in which parties present evidence. As I discuss in detail subsequently, the commission was intended by the legislature to supersede the adjudicative role performed previously by the OMB in municipal restructuring. The role of the commission in this process, which is the restructuring of political boundaries is a political process and, therefore, is essentially legislative, and neither quasi-judicial nor administrative. The commission is required to comply with the procedural conditions precedent contained in s. 25.3. In addition, it is limited to proposing the types of restructuring stipulated in s. 25.2(1) of the Act and s. 2 of O. Reg. 143/96, as well as O. Reg. 253/97 and the commission’s Terms of Reference to which I will refer subsequently. [17] As s. 25.3 makes abundantly clear, a commission is given a broad mandate and very little discretion. As s. 25.3(2) provides, it “shall develop a restructuring proposal” for the locality prescribed in the regulation that creates the commission. It cannot refuse to do so. That is its legislated task. Its discretion is limited to whether the restructuring proposal will encompass the whole of the prescribed locality, or part of it, and to the type of restructuring as prescribed by s. 2 of O. Reg. 143/96, and, in this appeal, by s. 3 of O. Reg. 253/97, which established the Greenstone Commission. BACKGROUND [18] There is an extensive history of attempts to achieve a restructuring of the geographic area in issue in this appeal leading up to the appointment of the commission. The following summary contains the relevant background. [19] In 1974, the Town of Geraldton applied to the OMB to annex four unorganized townships. The application was dismissed. [20] In 1987, Geraldton applied to the OMB to annex ten unorganized townships. After a two and one-half week hearing, which was adjourned at Geraldton’s request, the application was withdrawn. [21] In 1992, Geraldton applied to the OMB to annex seven unorganized townships, which are located within the boundaries of the proposed Municipality of Greenstone. The application was opposed by a number of parties including TCPL, NAN, GFN, LL58, as well as residents of Geraldton and the impacted unorganized townships. The Ministry of Municipal Affairs appeared as a party and presented evidence in support of the application. After a seven-week hearing in 1993, the OMB released its decision on March 11, 1994. It dismissed the application, but permitted annexation of a significantly smaller area of built-up neighbourhoods in close proximity to Geraldton’s then boundaries. [22] Before the OMB, TCPL opposed the application on the ground that there was no conceivable planning justification for such a large transfer of land, and argued that the real reason for the application was to increase assessment and, thus, tax revenues originating from the presence of pipelines through four of the five townships identified in the application. [23] The First Nations opposed the application on the ground that it was premature because it was contrary to agreements signed between the First Nations and the provincial and federal governments in respect to land claims and control over resources asserted by the First Nations over lands throughout Northern Ontario. They argued that the application should not be considered until the negotiations were concluded because parts of the territory to be considered for annexation were subject to their claims. As well, the First Nations objected to the fact that they had not been consulted as part of the annexation process. In summary, their position was that the annexation would adversely affect rights acquired by them under Treaty 9, offend agreements reached with federal and provincial governments and adversely affect outstanding land claims. [24] In its reasons for decision, the OMB stated that “in the absence of one overwhelming reason to justify annexation, the application [should] be looked at as a balancing act between the various stances of each party, through the help of a series of ‘filters’ which assist the Board in weighing the evidence before it”. The Board then went on to explain this approach, known in the Board’s jurisprudence as the “three filters” test. The three filters are: (1) The greatest common good – a consideration of the evidence of all the parties with a view to making a determination which, while attempting to address individual concerns, focuses on how best to serve the greatest common good. (2) Common sense – taking a long term view and reflecting on how a specific solution at this time will assist in preventing future planning problems and in facilitating other local government pursuits. (3) Fairness – a consideration of whether the impact of the Board’s decision will unfairly affect one or more of the parties. [25] Applying the three filters test, the OMB found that an annexation of a portion of the unorganized territories around Geraldton was warranted, but not to the extent applied for by the town. In its analysis, the OMB considered the concerns raised by TCPL and the First Nations. [26] In its reasons, the OMB addressed the concern of TCPL as follows: The question of the assessment generated by the inclusion of a significant portion of the TransCanada Pipelines was raised and warrants some consideration by the Board. If only to reaffirm what other panels of this Board have said on the matter, this Board wants to make clear that it would not support an annexation that would be based solely on the financial benefit to the Town of bringing in pipeline-related assessment. There is no doubt that there is a natural tendency on the part of some northern communities where business or commercial assessment is limited and often very difficult to increase, to look at pipeline assessment as some kind of providential manna. It is after all, for the most part, a large revenue generator with little requirement for services. In this Board’s opinion, it is only to the extent that there is some planning or development merit to an annexation application that it becomes justifiable to support boundaries reflecting an appropriate annexed area, including pipelines. Just as there is no rationale to annex strictly for the purpose of a tax grab, there is no reason to exclude pipeline lands when new boundaries have been drawn. [Emphasis added.] [27] As for the concerns raised by the First Nations, the OMB accepted that there was a formal commitment between the First Nations and the federal and provincial governments to a negotiation process which included negotiations pertaining to control over lands and resources, that the process was well- established and, although progressing slowly, was making progress. The OMB recognized that it was reasonable for the First Nations to advocate that the Board should not approve annexation of territory which included their lands until the process of land claims had been completed. It also recognized that the First Nations had a reasonable concern regarding the ambiguity of the province’s position with the Ministry of Municipal Affairs actively supporting the application without considering its effect on the land claims process. [28] The OMB went on to conclude: This being said, this Board, given its legislated authority, is empowered and has an obligation to deal with the application. While the Board could have decided to defer consideration of the matter for an indefinite period of time, it would only have done so if it had been convinced that important information was missing or that its decision would create a prejudicial situation to the First Nations which would jeopardize the rights of its members or put to question the whole negotiation process which is underway. The Board, in order to assess the degree of impact of its decision, has regard for sound planning principles. It also has regard for fairness by trying, whenever it is possible and practical to do so, to mitigate any undue adverse impact of its decision on any party. In this present case, it has considered the interest of First Nations, both as communities and as individuals, the long term pursuits they have in relation to land and their own evidence in terms of the perceived impact of annexation. It has heard from some of the native witnesses that they choose not to carry out their traditional activities in built-up or municipally organized lands. Annexing a large amount of land would thus have a direct impact not only on the land negotiations but, more importantly, on their current practices. This is largely why the Board has chosen to exclude from the annexation decision any land which is not immediately adjacent to the current town, is not already built-up or otherwise permanently occupied or used by non- natives. On that basis, the Board is satisfied that it is not taking away anything which would prejudice whatever other negotiation process is currently underway or impacting too much, if at all, the acquired right of individual members of First Nations to carry out their traditional activities over Crown land. [Emphasis added.] [29] Subsequent to the amendment of the Municipal Act in 1996, municipal officials from Beardmore, Geraldton, Longlac and Nakina began to investigate restructuring options in the form of the “Working Group for the Evaluation of Restructuring Options in the Beardmore/Geraldton/Longlac/Nakina Areas”. In March 1997, the Working Group issued a report outlining the benefits of restructuring, including the resultant increased pipeline assessment. In this regard, the report stated: The predominant source of savings from these restructuring options derives from increased assessment that would result from enlarging the four municipalities. It is estimated that pipeline assessment within the four municipalities would increase by approximately 6.7 times. This would have the effect of increasing the total assessment of the four municipalities combined by approximately 121%. These estimates do not take into account the additional assessment associated with compressor stations as a result of upgrading these facilities for cogeneration. Taxes from pipeline assessment currently provides [sic] about 77% of total own- purposes tax revenue of Beardmore, 25% of total own-purposes tax revenue of Geraldton, 2% of total own-purposes tax revenue of Longlac and no tax revenues for Nakina. Pipeline assessment currently generates 24% of the combined tax revenues of all four municipalities. Following restructuring, all other things being equal, that proportion would rise to 63%. [30] In April 1997, the municipalities submitted a restructuring proposal to the Minister under s. 25.2 of the Municipal Act entitled “The District of Grand Proposal”. It was opposed by the respondents. TCPL, NAN, GFN and LL58 each wrote to the Minister objecting to the proposed restructuring. In his letter to the Minister, the Grand Chief of NAN intimated that he represented the interests of LL58 when, in fact, he did not. On May 14, 1997, the Ministry advised the four municipalities that it would not implement the proposal. [31] On June 11, 1997, the Mayor of Geraldton wrote to the Minister requesting the appointment of a commission under s. 25.3 of the Act. Subsequently, Beardmore and Longlac withdrew their support for the restructuring proposal for the District of Grand. [32] On June 26, 1997, at a meeting with Charles Harnick, then the Attorney General for Ontario and the Minister Responsible for Native Affairs, representatives of NAN requested that there be a meeting between the MMAH and NAN, the Union of Ontario Indians and First Nations with interests in the Greenstone area. It appears that NAN received no response to its request. APPOINTMENT OF THE GREENSTONE RESTRUCTURING COMMISSION [33] On July 2, 1997, O. Reg. 253/97, made June 26, 1997, was filed establishing the Greenstone Restructuring Commission. The Minister appointed Mr. Bob Gray as the sole commissioner. Omitting the Schedule referred to in s. 1, as well as s. 4, the Regulation stated: 1. A commission is established to develop a restructuring proposal for the locality described as the Town of Geraldton, Town of Longlac, Township of Beardmore and the Township of Nakina and the unincorporated areas described in the Schedule in the Territorial District of Thunder Bay. 2. The commission shall be composed of one member to be appointed by the Minister. 3.(1) The following are the types of restructuring that may be included in the restructuring proposal to be developed by the commission: 1. Annexing part of a local municipality to another local municipality. 2. Amalgamating local municipalities. 3. Incorporating a local municipality. 4. Dissolving all or part of a local municipality. 5. Annexing unorganized territory to a municipality. 6. Incorporating a county. (2) Subsection (1) does not include a restructuring that results in, (a) an increase in the number of local municipalities; (b) any part of a county not being part of a local municipality; (c) any part of a local municipality being part of a county if any other part of the local municipality is not part of the county; (d) a county consisting of a single local municipality; (e) territory becoming unorganized territory; (f) unorganized territory becoming part of a municipality that is incorporated under paragraph 3 of subsection 3 (1). (3) Subsection (1) does not include a restructuring of a municipality outside the locality described in section 1. [Emphasis added.] [34] On June 27, 1997, the Minister issued Terms of Reference for the Greenstone Restructuring Commission which are largely procedural and are based, for the most part, on the provisions of s. 25.3 of the Act, ss. 2 of O. Reg. 143/96 and “A Guide to Municipal Restructuring” published by the MMAH in August, 1996. [35] The relevant provisions of the Terms of Reference are the following: PURPOSE The purpose of the Commission is: To develop a proposal for restructuring the Township of Beardmore, the Town of Geraldton, the Town of Longlac and the Township of Nakina including the surrounding unincorporated territory in the locality prescribed. To define the most appropriate form of municipal government for this area in terms of municipal structure, boundaries, organization, administration and responsibilities. To develop a restructuring proposal that resources and meets the needs for local governance in an efficient and effective manner, while respecting sense of community and providing appropriate access and representation. To commence an orderly and timely transition period. . . . . . MANDATE The Commission is appointed with a mandate to undertake the following process: 1. Review previous studies – The Commission shall review all applicable studies and information available with regard to the local governance issues in the defined locality including those materials submitted in support of the request for restructuring by the municipalities within the locality. 2. Restructuring proposal – The Commission shall develop a restructuring proposal for the prescribed locality or for such part of it as the Commission considers advisable. 3. Limitation – A restructuring proposal shall not provide for a type of restructuring other than a prescribed type of restructuring as set out in the Regulation establishing the Commission. 4. Consultation – The Commission shall consult with the municipalities involved and members of the public in the prescribed locality when developing the restructuring proposal and may consult with such other bodies and persons as the Commission considers appropriate. 5. Draft proposal – The Commission shall prepare a draft of the restructuring proposal and shall give a copy of the draft to affected municipalities in the prescribed locality and make it available for inspection by members of the public in the prescribed locality. 6. Public meeting – The Commission shall hold at least one public meeting in each affected municipality at which any person who attends is given an opportunity to make representations about the draft. 7. Written submissions – The Commission shall invite written submissions about the draft and shall establish a deadline for receiving them. The Commission shall make the submissions available for inspection by affected municipalities and by members of the public in the prescribed locality. 8. Notice to municipalities – The Commission shall notify the municipalities in the prescribed locality of its opportunity to make representations and shall advise them where they can inspect written submissions received by the Commission. 9. Notice to the public – The Commission shall give notice to the public in the prescribed locality advising them of the opportunity, (a) to inspect the draft restructuring proposal; (b) to make representations at the public meeting and to give written submissions by the deadline; and (c) to inspect the written submissions received by the Commission. 10. Final proposal – After considering the representations and submissions about the draft, the Commission shall finalize the restructuring proposal and shall give a copy of it to the municipalities in the prescribed locality and make it available for inspection by members of the public in the prescribed locality. . . . . . 13. Commission orders – The Commission may make an order to implement the restructuring proposal. For the purposes of implementing the proposal, the Commission has the powers under the regulations made under subsection 25.2(11) of the Municipal Act and the regulation establishing the Commission. The order shall be drafted by MMAH Legal Branch under the direction of the Commissioner. . . . . . PRINCIPLES The following principles are to be considered on a province-wide basis in regard to local government restructuring. These principles will be taken into consideration by the Commission within the context of local circumstances when developing a restructuring proposal for the designated locality. Less Government – fewer municipalities – fewer elected representatives – reduced special purpose bodies Effective Representation System – accessible – accountable – representative of population served – size that permits efficient priority-setting Best Value for Taxpayer’s Dollar – efficient service delivery – reduced duplication and overlap – ability to capture the costs and benefits of municipal services within the same jurisdiction clear delineation of responsibilities between local government bodies Ability to Provide Municipal Services From Municipal Resources – local self reliance to finance municipal services – ability to retain and attract highly qualified staff Supportive Environment for Job Creation, Investment and Economic Growth – streamlined, simplified government – high quality services at the lowest possible cost LEGISLATIVE FRAMEWORK The Commission shall ensure that the impacts of the provincial government’s recent legislative and administrative initiatives affecting municipal government shall be considered prior to the issuance of the Commission’s order. The Commission’s order shall establish a municipal government structure that will be well positioned to accommodate future changes to municipal government in Ontario. TIMING The Commission shall begin its work on July 2, 1997. The Commission shall finalize its proposal and issue an order to implement a restructuring proposal on or before September 1, 1997. The Commission shall assist the municipalities with the establishment of a transition process by September 30, 1997. THE WORK OF THE COMMISSION [36] O’Driscoll J. made several findings concerning the manner in which the commission carried out its mandate, a number of which informed the conclusions that he reached. Before outlining these findings, it is helpful to provide an overview of the evidence contained in the six-volume record which the parties filed in the Divisional Court. Subsequently, I will discuss whether certain of the affidavits filed by the parties were properly before the Divisional Court and properly considered by O’Driscoll J. [37] The appellant filed an affidavit of Douglas Barnes, the Director of the Local Government Policy Branch of the MMAH, which described the restructuring process under the 1996 amendments to the Municipal Act. In addition, the appellant filed an affidavit sworn by Ian Douglas Smith who, since 1986, was the manager in the Northwestern Regional Office of the Regional Operations Branch of the MMAH, located in Thunder Bay. This is a lengthy document which, with its attached exhibits, comprised 867 pages. It contained in substantial detail the background leading up to the appointment of the Greenstone Restructuring Commission together with the process followed by the commission. Finally, the appellant filed the affidavit of Robb Anderson, Municipal Advisor to the MMAH, who provided support to the commission, including acceptance, compilation and distribution of submissions, the provision of notices, the arrangement of meetings, the recording of proceedings and the preparation and distribution of commission reports. The focus of his affidavit is the extent of consultation between the commission and the representatives of the First Nations. [38] TCPL filed five affidavits. Richard Johnston’s affidavit indicated that the proposed Municipality of Greenstone will receive a significant revenue windfall at no cost to it by virtue of the fact that TCPL would receive no municipal services from the realty tax it would be required to pay. It was his opinion that the intent of the restructuring proposal is to raise additional realty tax revenue from TCPL. A similar opinion was expressed by Enid Slack in her affidavit. She was retained by TCPL because of her extensive experience in municipal finance and governance in Ontario. She testified on behalf of TCPL at the OMB hearings initiated by Geraldton in 1993. She also expressed the opinion that Geraldton’s 1993 application was motivated by its desire to obtain significant new realty tax revenue from TCPL. Based upon her review of the evidence before the Greenstone Restructuring Commission, she concluded that the commission failed to conduct a financial impact study and was of the opinion that neither the four municipalities, nor the commission, was able to demonstrate any significant cost savings resulting from restructuring. She concluded: “It is my opinion that this municipal restructuring, through amalgamation and annexation, is a ‘tax grab’.” [39] Robert Lehman, a registered land use planner, has been retained by TCPL since 1988. He prepared two reports in 1993 arising from Geraldton’s application before the OMB, which form part of his affidavit. He also conducted a study of all applications for annexation in Northern Ontario dealt with by the OMB prior to May 1996, from which he discerned that the OMB had identified, and applied, four “justifiable reasons” for the enlargement of municipal boundaries. Like Ms. Slack, he extensively attacked the commission’s restructuring proposal on planning principles, as well as on what he perceived to be the commission’s failure to apply the principles prepared by the Minister to guide municipal restructuring contained in the Commission’s Terms of Reference. [40] In addition, TCPL filed affidavits from Bruce Hall, a consulting land use planner, and Dana Anderson, a registered professional planner, retained by TCPL. In general, they are critical of the restructuring proposal for a number of reasons which include the commission’s rejection of the vast majority of the oral and written submissions opposed to its draft proposal and the belief that the premise of the proposal was to expand municipal boundaries for the purpose of increasing municipal assessment and tax revenues derived from TCPL to offset the perceived costs of provincial downloading of service delivery responsibility. [41] As I will discuss when I analyze the issues presented by this appeal, in my view, it is clear that the purpose of the very substantial body of evidence which TCPL placed before the Divisional Court was to attempt to demonstrate that the commission’s restructuring proposal was either incorrect, or patently unreasonable. [42] NAN and GFN filed the affidavits of the Grand Chief of NAN, Charles Fox, Peter Moonias, Lawrence Towegishig and Chief Gabriel Echum of GFN. [43] Grand Chief Fox provided evidence concerning Treaty 9 and ongoing self-government and land claims negotiations. He expressed his concern that the restructuring proposal “may affect” the constitutionally protected rights of First Nation members to use the lands encompassed by the proposal for the traditional purposes of hunting, trapping and fishing, and that the proposal “will make more difficult” the ongoing negotiations. He stated that the proposed municipality of Greenstone may pass by-laws regulating, or prohibiting, the discharge of firearms which will affect the use of the land by First Nation members, with the result that they will have to assume the expense of constitutionally challenging any such by-law. Peter Moonias, the Chairman of the Matawa Tribal Council, Chief Echum, and Lawrence Towegishig, the Deputy Chief of GFN, also expressed their concerns about possible infringements of constitutionally protected rights. In addition, Deputy Chief Towegishig expressed his concern that the inclusion of traditional aboriginal burial sites in the proposed municipality would sever the link which members of the GFN have with the land. [44] Grand Chief Fox, Mr. Moonias and Chief Echum provided evidence respecting their consultation with the commission. Grand Chief Fox stated that the only consultation he had on behalf of NAN was a meeting with the commission on July 6, 1997 to convey NAN’s opposition and a letter to the commission of July 28, 1997, following the receipt of its draft report, expressing NAN’s opposition to it. In his view, “this amount of consultation was inadequate since the amount of the affected land and the importance of the rights of the Nishnawbe-Aski should require more in depth consideration”. The only consultation with NAN of which Mr. Moonias was aware was a meeting with the commission in Thunder Bay which he attended with Grand Chief Fox. He felt that the views of NAN were not considered seriously by the commissioner whom, he believed, had essentially made up his mind about restructuring as illustrated by the fact that the commissioner was speaking about a transition team. Chief Echum said that the only consultation which his First Nation had with the commission was the same meeting attended by Grand Chief Fox and Mr. Moonias. [45] The evidence tendered by LL58 focused on the impact of the restructuring proposal on its land claim which was launched in 1995. Frank Onabigon, an elected member of the Council of LL58, described the land claim in considerable detail, including the historical facts supporting it. He described its purpose as securing a negotiated agreement that would formalize LL58’s ownership of, and its governance over, lands within its traditional territory. He explained that LL58’s aspirations for self-government would be complicated and hampered by the extension of municipal jurisdiction into areas that have traditionally been free of municipal organization. He stated that the commission made no attempt to involve LL58 in its work, and that LL58 did not participate in any of the consultation sessions it arranged. In his opinion, the commission completely failed to take into account the interests of the members of LL58 in making its restructuring proposal. [46] Paul Williams is a lawyer who, since 1982, has acquired significant experience in First Nations land rights, or claims. Based on his experience, it was his opinion that an Aboriginal claimant involved in negotiations concerning land which is within a municipality is at a distinct disadvantage compared to a claimant negotiating in respect to land which is without municipal organization. Mr. Williams provided extensive reasons for his opinion, and concluded as follows: The extension of municipal boundaries will “create” financial and political reasons which did not exist before to prevent the Ojibway people form securing their just rights. The extension would also allow a provincial government and federal governments to find refuge from their legal and fiduciary obligations. [47] In addition to the extensive documentary record, the record before the Divisional Court also contained transcripts of the cross-examinations of most of the deponents, as well as the examination of Christopher Rees, a consultant retained by the commission. [48] The appellant presented no evidence which refutes the evidence tendered by the First Nation respondents in support of their objections to a restructuring proposal which placed the lands that they occupy within a newly created municipality and subject to municipal governance. [49] In dealing with O’Driscoll J.’s findings in respect to the workings of the commission, I intend to review only his findings concerning the assistance provided to the commissioner by certain individuals, the consultation undertaken by the commissioner with representatives of the First Nation respondents and the response made to the draft restructuring proposal by TCPL and NAN. These findings are relevant to a number of the conclusions reached by the commissioner in the reasons he provided for the Final Proposal and Order. [50] I have confined my findings to these areas because, as I will explain in my analysis of the grounds of appeal, I am satisfied that the commissioner complied fully with the procedural requirements contained in the legislative scheme governing the process of the commission. In this regard, it is to be remembered that s. 25.3 (2) to (15) of the Municipal Act contain a procedural code of conditions precedent to a commission exercising its powers to develop a restructuring proposal, which are supplemented by s.25.4 of the Act, O. Reg. 143/96 and O. Reg. 253/97. I accept, as accurately demonstrating that the commissioner complied with the relevant procedural requirements, Appendix “A” to the factum filed by counsel for Bob Gray. [51] As for the assistance provided to the commissioner, before embarking on his mandate, Mr. Gray retained a consultant, Christopher Rees. Mr. Rees prepared the commissioner’s draft and final proposals by following the commissioner’s instructions concerning their contents. He did so with some assistance from Robb Anderson and Ian Smith, who were employees of the MMAH. Mr. Anderson read and provided comments with respect to the draft proposal. The Final Proposal and Order were finalized during two meetings attended by the commissioner, Mr. Rees, Mr. Anderson, Mr. Smith and Ms. Yeta Herscher, a lawyer employed by MMAH, who was counsel to the commission. [52] Mr. Anderson, who kept the records of the commission at the MMAH office in Thunder Bay, spent the majority of his time in July and August 1997, working with the commission. He attended most of the public meetings and statutory consultations undertaken by the commissioner. As well, Mr. Anderson drafted portions of the draft and final proposals. Mr. Smith provided the commissioner with selected documents used during the 1993 OMB hearing. However, he did not provide him with the reports prepared for the hearings on behalf of TCPL by Ms. Slack and Mr. Lehman, on which the OMB relied in reaching its decision. Although the commissioner asked Mr. Smith to contact “the aboriginal groups in the area”, he did not contact LL58. In this regard, it was agreed by the parties on the argument of this appeal that Mr. Smith was of the mistaken belief that NAN represented LL58. [53] As for the consultation which the commissioner had with representatives of the respondent First Nations, O’Driscoll J. found that on July 6, 1997 he met with Grand Chief Fox, Chief Echum and Mr. Moonias representing NAN and GFN. Nobody on behalf of LL58 attended this meeting. Grand Chief Fox informed the commissioner that there were outstanding legal questions concerning Aboriginal and treaty rights that could not be resolved by the commission, and requested a meeting with the Minister. No information was ever provided to the commission respecting LL58’s treaty rights or land claim, nor was LL58 ever provided with the opportunity to make submissions in respect to the draft proposal. [54] O’Driscoll J. also found that the commission made no contact with the Ontario Native Affairs Secretariat, which is responsible for native land claims in Ontario, nor with the Ministry of Natural Resources, to determine the status of LL58’s land claim or other outstanding issues with the Ontario government. [55] By his letter of July 28, 1997, Grand Chief Fox of NAN provided his comments on the draft proposal to the commissioner. He said, in part: The Commissioner’s Restructuring Proposal does not indicate any due consideration for treaty and aboriginal rights, rights which the Treaty 9 Parties submit were required to be considered by the Commissioner. Ontario is a signatory to Treaty 9, but the Commissioner’s Restructuring Proposal fails to recognize Ontario’s obligations under the Treaty. The Proposal does not strive to interfere with treaty and aboriginal rights as little as possible, as required pursuant to s. 35 of the Constitution Act. … The Commissioner’s Restructuring Proposal was also developed without regard to the province’s fiduciary obligation to the Treaty 9 Parties. No consideration whatsoever is given to the fact that Ontario is a signatory to Treaty 9, a Treaty which the Treaty 9 signatories submit was intended to promote sharing of the lands and resources by aboriginal and non-aboriginal parties in the area, not to permit, as set out in the Restructuring Proposal, a wholesale takeover by municipalities of a vast area of land within our treaty territory. In the view of the Treaty 9 Parties, Ontario has a fiduciary obligation to ensure that the Treaty obligations are met, including provision of reserve lands in accordance with that Treaty and respecting the Treaty rights to hunt, trap and fish; this obligation is clearly paramount to any discretionary expansion of municipal territory to include significant portions of the Treaty territory. [56] On July 28, 1997, counsel for TCPL provided the commissioner with his client’s response to the draft proposal. His letter stated, in part: TCPL owns and operates 7,460 kilometres of pipeline in the province of Ontario; 5,329 kilometres run through Northern Ontario. TCPL annually pays approximately $50 million in property taxes in the province of Ontario; $30 million of these taxes, including provincial land tax, are paid in Northern Ontario. TCPL is a significant investor throughout Northern Ontario and is a significant ratepayer in the Township of Beardmore and the Town of Geraldton. In 1996, TCPL paid municipal taxes of $580,580 to the Township of Beardmore and $685,670 to the Town of Geraldton. … The Draft Restructuring Proposal is completely devoid of the necessary financial analysis required for the Commission to fulfil its mandate. There is no estimate of the financial impact of the restructuring options. There is no estimate of the financial impact of recent provincial government initiatives. There is no estimate of the impact of this restructuring upon the economic viability of these municipalities nor any consideration of the proposed provincial property tax reform. There is no analysis of the impact of this restructuring on the efficiency and costs of the delivery of services and municipal administration. FINAL RESTRUCTURING PROPOSAL AND ORDER [57] The commissioner released his Final Proposal and Order on August 29, 1997. Although not required to do so, he provided extensive reasons in support of the Final Proposal. At the outset, he observed that the commission’s mandate required “that it determine the most appropriate form of municipal government for the area in terms of municipal structure, boundaries, organization, administration and responsibilities”. Subsequently he added: The Commission interprets its mandate to create the simplest, most flexible, directly accountable form of municipal government to meet the challenges of the future particularly in the light of recent and proposed future changes in responsibilities attached to all levels of government [announced by the Government of Ontario]. [58] After outlining the commission process, background information, the size and extent of the area, the local economy and current local government structures and relationships, the commissioner described “the principal issues raised by the consultation”. Among the issues raised which are relevant to this appeal, are the following: 5. What should be the Commission’s response to the position of TransCanada Pipelines? 6. What should be the Commission’s response to the position of the Nishnawbe Aski Nation and the Treaty 9 Parties? [59] The commissioner then proceeded to consider the views expressed by individuals and municipalities in response to the draft proposal. He extensively considered the objections of TCPL and NAN. [60] It is helpful to reproduce in its entirety the commissioner’s response to the concerns raised by TCPL: The Commission can understand the frustration of TransCanada Pipelines with respect to the way in which it pays property taxes in the Province of Ontario, particularly in Northern Ontario where its lines run through large amounts of unincorporated territory. The assessment of the pipelines is a natural temptation to all municipalities to enlarge their boundaries to capture that assessment and thereby increase tax revenues - particularly at a time when many municipalities are facing increased responsibilities. TransCanada Pipelines will do all it can to resist municipal expansion which it interprets simply as a “tax grab”. On the other hand, municipalities have an obligation to their residents to manage the municipality in the best way they can and they would be remiss if they did not consider all opportunities for enlarging their assessment base. The Commission can state, nevertheless, that capturing more pipeline assessment must not be the primary reason or fundamental basis for municipal restructuring. For this reason, while the Commission is prepared to extend external municipal boundaries in the Orient Bay (populated, presence of numerous businesses, economic development potential, need for services such as fire protection), it does not see the justification for extending eastwards to the Klotz Lake area. The Commission understands that the Province is currently reviewing the way in which TransCanada Pipelines (TCPL) pays property taxes and that changes may occur in the future. However, for the present, the Commission can simply acknowledge the existing system and the antagonism it generates between TCPL and some municipalities. This being said, TCPL contends that “municipal restructuring may properly be addressed without necessarily expanding municipal boundaries”. The Commission agrees that such a case may be possible but points out that its mandate is precisely to consider all options and make its restructuring decision – including whether or not boundaries need to be changed – in the best interests of all parties – not just the interests of one of them. The Commission can state categorically that the principles of the greatest common good, common sense and fairness has [sic] guided its decision. TCPL further admonishes the Commission for the lack of financial analysis required for the Commission to fulfill its mandate: financial impact of restructuring options; financial impact of recent government initiatives; impact of restructuring upon the economic viability of the municipalities; consideration of the proposed provincial property tax reform; impact of restructuring on the efficiency and cost of the delivery of services and municipal administration. The Commission has a mandate to “review all applicable studies and information available with regard to the local governance issues …..”. The Commission has done so including studies and information of which it was already aware as well as those referenced during the consultations. Whenever the Commission has identified the need for further financial impact analysis beyond existing studies and information, it has held appropriate consultations to investigate likely parameters. The Commission, however, is not under the illusion that it can know all of the financial impacts in advance of any option that is selected or in advance of a measure actually being implemented. It must use its best judgment and the Terms of Reference for the Commission state only that it “shall ensure that the impacts of the provincial government’s recent legislative and administrative initiatives affecting municipal government shall be considered (emphasis added) prior to the issuance of the Commission’s order”. The Commission has to the best of its ability considered such impacts and makes its decision on the basis of its consideration. [Emphasis added.] [61] The portion which I have italicized in the third paragraph of the commissioner’s reasons is a statement of the “three filters” guideline formerly applied by the OMB in considering applications for municipal restructuring. The paragraph from the commissioner’s reasons that I have reproduced in paragraph 57 is the final paragraph of the commissioner’s response to the concerns of TCPL. [62] As for the opposition to the draft proposal raised by NAN, the commissioner responded as follows: The Grand Chief of the Nishnawbe-Aski Nation (NAN) prepared a submission to the Restructuring Commission. The submission draws attention to the decision of the Ontario Municipal Board of 1994 with respect to an annexation application by Geraldton, wherein it is stated that the Board: “…. has regard for fairness by trying, whenever it is possible and practical to do so, to mitigate any undue adverse impact of its decision on any party. In this present case, it has considered the interest of First Nations, both as communities and as individuals, the long term pursuits they have in relation to land and their own evidence in terms of the perceived impact of annexation. It has heard from some of the native witnesses that they choose not to carry out their traditional activities in built-up or municipally organized lands. Annexing a large amount of land would thus have a direct impact not only on the land negotiations, but, more importantly, on their current practices. This is largely why the Board has chosen to exclude from the annexation decision any land which is not immediately adjacent to the current town, is not already built-up or otherwise permanently occupied or used by non-natives. On that basis, the Board is satisfied that it is not taking away anything which would prejudice whatever other negotiation process is currently underway or impacting too much, if at all, the acquired right of individual members of First Nations to carry out.” [Emphasis added in submission by Treaty 9 Parties.] The Commission agrees with this summation by the OMB and indeed agrees that the existence of two different systems to transfer land from the Province to municipalities on the one hand and to First Nations on the other “creates a great deal of confusion and anxiety for all the local groups involved.” The establishment of the Commission process has further simplified and speeded up the manner in which municipal restructuring can occur without providing any improved process for First Nations land negotiation. Furthermore, the Commission notes that area municipalities and First Nation communities have been able to work cooperatively in an atmosphere of mutual trust as evidenced by existing service sharing agreements, for instance for water, sewer and landfill. The Commission believes that such agreements are in the best interests of all parties and is mindful in its decision to further facilitate their establishment and application. Nevertheless, the Commission finds itself in a similar position to the OMB. It has been mandated by the Province to prepare a restructuring proposal and order and has no authority “to defer consideration of the matter for an indefinite period of time”. The Commission has considered the OMB principles, as stated above, in its decision and has tried to appropriately reflect them. However, it does not consider that it has created a prejudicial situation to the First Nations which would jeopardize the rights of its members. Existing treaty rights and guarantees, land claims and fiduciary obligations will be unaffected by municipal restructuring. [Emphasis added.] [63] The commissioner then stated “four initial conclusions” based on a consideration of the principal issues that he had identified previously, two of which were the commission’s response to concerns raised by TCPL, NAN and the Treaty 9 Parties. One of the “initial conclusions” was stated in this way: The Commission has been convinced of the desirability of extending the municipal boundaries as compared to those set out in the draft proposal, particularly to protect the area’s natural environment and partially to provide a reasonable basis for future economic development initiatives. However, the Commission rejects the notion that capturing increased pipeline assessment can be the primary reason for extending boundaries. Also, while the Commission is convinced that municipal restructuring will not adversely affect First Nation treaty rights and guarantees, land claims and fiduciary obligations, it must deal with the perception by NAN that it does so and in consequence limit boundary extensions to what is defensible for the reasons referred to above. [Emphasis added.] [64] Next, the commissioner referred to the three restructuring options he had stated in the draft proposal – individual municipal expansion, creation of an upper tier, and amalgamation and stated: As a preamble to reconsidering the options, the Commission wishes to emphasize that “the window of opportunity” to act decisively is now. The Province has vastly streamlined the restructuring process permitting an initial voluntary approach while providing for expediency and at low cost. No one can be certain of future Provincial policy direction but we do know that the prior process of hearings before the Ontario Municipal Board were [sic] frustrating, extremely time- consuming and very expensive. The Commission intends to avail itself of the current window of opportunity and act decisively to put forward a comprehensive municipal restructuring proposal which has a clear long-term perspective. I assume that “the window of opportunity” is a reference by the commissioner to s. 25.3(1) of the Act which precluded the Minister from establishing a restructuring commission at the request of a municipality after December 31, 1999. [65] The commissioner rejected the first two restructuring options and accepted the third option – amalgamation – as representing the only realistic long-term option. In his reasons for doing so, he made no reference to the position of TCPL or NAN. His justification for a single amalgamated municipality was, as he put it, that “it meets the Restructuring Principles in the following manner”, which consisted of a recitation of the principles contained in the Terms of Reference which are reproduced in paragraph 35 of these reasons. [66] I note that one of the reasons given by the commissioner for rejecting the option of individual municipal expansion was: “The appearance of a ‘tax grab’ of TCPL assessment would appear more evident.” [Emphasis added.] [67] Finally, the commissioner addressed the specifics of the structure of the new municipality, such as its name and boundaries, wards and councillors and area rating, and then addressed such subjects as a transition board, elections and official plans. With respect to the official plan, he made the following recommendation: It is further recommended that the provisions of any new official plan adopted by the new municipality acknowledge the treaty and aboriginal rights of First Nations, indicating that nothing in the plan affects those rights. As an example of the intent of the Commission, it is recommended that the Section 3.9 of the Geraldton and Suburban Planning Area Official Plan be incorporated into the official plan of the new municipality. “ Aboriginal Land Use Activities It is a policy of the Planning Board to recognize the importance of the traditional Aboriginal resource values wherever they have been identified in the Rural Area to exist. This includes recognition of licensed trap lines and traditional native land use activities such as wild rice harvesting, gathering of plants for medicinal or ritual purposes and resource management activities.” THE APPLICATIONS FOR JUDICIAL REVIEW [68] It is helpful, in considering the reasons of the Divisional Court, to place them in the context of the grounds for judicial review advanced by the respondents. Each of the respondents applied for judicial review under ss. 2 and 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. [69] TCPL relied on the following grounds in seeking an order to quash the Final Proposal and the Order which implements it: (a) The Final Proposal and implementation Order are ultra vires the authority of the Commissioner as being contrary to the provisions of the Municipal Act and O. Reg. 143/96 as amended by O. Reg. 557/96. (b) The Final Proposal and implementation Order are ultra vires the objects and policy of the Act. (c) The Final Proposal and implementation Order are patently unreasonable. (d) The Final Proposal and implementation Order are contrary to the principles of municipal restructuring contained in the Commission’s Terms of Reference. (e) The Commission failed to conduct the appropriate and necessary investigations and analysis to fulfill its statutory mandate. (f) The Commission ignored, or discarded, the principles of municipal reorganization historically established in that its Final Proposal is not in the greatest common good and prejudicially affects the interests of TCPL. (g) The Commissioner failed in his duty to act fairly in exercising his statutory powers under the Municipal Act. [70] In addition to seeking an order quashing the Final Proposal and Order, NAN and GFN asked for a declaration that the Final Proposal and Order infringed s. 35 of the Constitution Act, 1982, and are therefore of no force and effect. In addition to relying on the grounds for judicial review advanced by TCPL, NAN and GFN relied on the additional ground that the commissioner did not adequately consult with them, or other aboriginal governing bodies with regard to the restructuring proposal and that he did not intend to do so. As well, NAN and GFN submitted that the Final Proposal and Order “may affect potential or existing aboriginal land claims or aboriginal governance negotiations which are in progress or contemplated by the applicants”, “may affect the exercise of treaty and aboriginal rights, particularly rights regarding hunting, fishing, trapping and gathering” and Smay affect the current use of lands and resources for traditional purposes by Aboriginal persons who are represented by the Applicants”. [Emphasis added.] [71] In its application for judicial review, in addition to seeking the relief requested by TCPL, NAN and GFN, LL58 sought, in the alternative, an order varying the Final Proposal and Order, to establish, as the boundaries of the Municipality of Greenstone, the boundaries of the four municipalities, that is, to exclude the unorganized territory from the Municipality of Greenstone. [72] LL58 adopted the grounds relied on by TCPL in its application for judicial review. In addition, it relied on the following grounds: 3. The First Nation has an unresolved claim based on aboriginal rights and title, or alternatively based on treaty land entitlement or alternatively based on the Crown’s failure to give the First Nation an opportunity to enter into Treaty No. 9 in 1906; 4. The existing Reserve of the First Nation would be completely surrounded by the proposed Municipality of Greenstone if its boundaries are not altered; 5. The resolution of the Land Claim of the First Nation will likely involve the transfer of significant amounts of Crown land to the First Nation within an area reasonably proximate to the existing Reserve of the First Nation and the enormous expansion of municipal boundaries will create severe impediments to the transfer of such land; 6. Traditional activities of members of the First Nation will come under municipal jurisdiction and regulation, including taxation, if the boundaries of Greenstone are not altered. 7. The First Nation was not accorded procedural fairness in connection with the work of the Commission; 8. The Order of the Commission does not give reasons for the annexation of previously unorganized territory to the Municipality of Greenstone, or in the alternative, such reasons as are given are insufficient in law to justify the annexation of that territory; 9. The provisions of the Constitution Act, 1982, as amended, particularly section 35(1); THE REASONS FOR JUDGMENT OF THE DIVISIONAL COURT [73] As I have noted, the reasons for judgment of O’Driscoll J. are reported in [1998] 2 C.N.L.R. 240. Following an extensive review of the substance of the applications for judicial review, the parties, the personnel of the MMAH, previous annexation applications, the legislative scheme which established the commission, the workings of the commission and the reasons of the commissioner in support of the restructuring proposal at p. 272, O’Driscoll J., commenced his analysis of the issues raised by the applicants. [74] He concluded that the court’s “jurisdiction” to hear the applications is to be found in the definition of “statutory power of decision” in s. 1 of the Judicial Review Procedure Act, and in s. 2 of the Act. He then described the ambit of review which applied to the court’s review of the commission’s Final Proposal and Order. In doing so, he adopted as the appropriate standard of review the reasoning of the Divisional Court (per Archie Campbell J.) in Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) (1997), 36 O.R. (3d) 41 at 44, on an application for judicial review of an order of the Health Services Restructuring Commission. At pp. 272-3 O’Driscoll J. stated: My review of the Final Proposal and Order is confined to whether the Commission: (i) contravened the law, or (ii) exceeded its jurisdiction, or (iii) acted in such a way as to lose its jurisdiction, or (iv) failed to exercise its jurisdiction In his endorsement expressing the unanimous opinion of the Divisional Court, Campbell J. wrote: The court’s role is very limited in these cases. The court has no power to inquire into the rights and wrongs of hospital restructuring laws or policies, the wisdom or folly of decisions to close particular hospitals, or decisions to direct particular hospital governance structures. It is not for the court to agree or disagree with the decision of the Commission. The law provides no right of appeal from the Commission to the court. The court has no power to review the merits of the Commission’s decisions. The only role of the court is to decide whether the Commission acted according to law in arriving at its decision. [Emphasis added.] Thus, O’Driscoll J. concluded that the power of the court to review a decision of the commission was limited to deciding “whether the Commission acted according to law in arriving at its decision”. [75] The Divisional Court applied the standard of review articulated in Pembroke in a subsequent judicial review of another order of the Health Services Restructuring Commission in Russell v. Ontario (Health Services Restructuring Commission) (1998), 13 Admin. L.R. (3d) 196. An appeal from that decision to this court was dismissed: (1999), 175 D.L.R. (4th) 185; leave to appeal to the Supreme Court of Canada was refused on February 17, 2000: [1999] S.C.C.A. No. 395. In Russell there was no consideration given by this court to the appropriate standard of review, nor was there any reference to the standard of review articulated in Pembroke. I note, as well, that the Pembroke standard of review was also applied in Wellesley Central Hospital v. Ontario (Health Services Restructuring Commission) (1997), 3 Admin. L.R. (3d) 137 (Ont. Div. Ct.) and in Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 181 D.L.R. (4th) 263 (Ont. Div. Ct.). [76] As I understand his reasons for judgment, O’Driscoll J. allowed the three applications for judicial review on five grounds. Some of the grounds are common to all of the applications, while others are unique to TCPL’s application and the applications of the First Nation respondents. What follows is a review of each of the grounds. (1) The legality of the restructuring proposal and order [77] In a ground that is common to all of the respondents, O’Driscoll J. concluded that in ordering the amalgamation of the towns of Geraldton and Longlac and the townships of Beardmore and Nakina as a town under the name “The Corporation of the Municipality of Greenstone” and annexing thereto the unorganized territory, the commissioner exceeded his statutory jurisdiction. His reasons for this conclusion are found in the following brief passage at p. 273: Ontario Regulation 253/97, (filed July 2, 1997), which established the Commission states: “3. (1) The following are the types of restructuring that may be included in the structuring proposal to be developed by the commission: … 3. Incorporating a local municipality. (2) Subsection (1) does not include a restructuring that results in, … (f) unorganized territory becoming part of municipality that is incorporated under paragraph 3 of subsection 3(1). …” Section 25.3(3) of the Municipal Act states: “A restructuring proposal shall not provide for a type of restructuring other than a prescribed type of restructuring.” In my view, the Final Proposal and Order proposes the incorporation of a new municipality (Greenstone) and purports to annex unorganized territory to Greenstone. The annexation of such unorganized territory is directly contrary to Ontario Regulation 253/97 and, therefore, the annexation provision of the Final Proposal and Order is null and void and of no force and effect. [Emphasis added.] As I understand it, the effect of this conclusion is that the unorganized territory inhabited, in part, by the First Nation respondents, was excluded from the restructuring proposal, much as the OMB had decided in 1994. (2) Failure to consult with First Nations [78] In a ground that is common to the First Nation respondents, at p. 276 O’Driscoll J. found that “the Commission lost its jurisdiction when it failed to consult at all with LL58 and failed to properly, adequately and meaningfully consult with NAN and GFN” because these respondents “would have been impacted the most by the annexation”. He appears to have based this finding on certain conclusions reached by Wilson J. and Dickson J. in Guerin v. The Queen, [1984] 2 S.C.R. 335, which are relevant to the facts of that case, and on certain passages from the reasons of Dickson C.J.C. and La Forest J. in R. v. Sparrow, [1990] 1 S.C.R 1075 which, when read in context, are part of their analysis in respect to the burden that rests on the government when government action or legislation is challenged on the ground that it has infringed or has a negative effect on any Aboriginal right protected under s. 35(1) of the Constitution Act, 1982. Section 35(1) reads: 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [79] As well, O’Driscoll J. based this conclusion on his findings drawn from the evidence presented by the First Nation respondents, to which I have referred, that these respondents have “bona fide unresolved [land] claims” and “have genuine, well grounded fears that they will be adversely affected if the Crown lands are brought under a municipal cover”. In addition, he found that the “land claims of LL58 would be made more difficult and NAN and GFN would lose some of their traditional hunting grounds to municipal strictures”. He appeared to be critical of “the Minister Responsible for Native Affairs and all his counsel and solicitors” for not “protecting/explaining the position of the aboriginal people” to the commission. [80] On this ground, O’Driscoll J. concluded at p. 277: . …in view of the history of what has transpired between one branch of the Government of Ontario and these First Nations regarding claims and treaty rights, the Commission failed to carry out its duty to consult with and protect these aboriginal peoples from threats to aboriginal rights and interests that were being proposed and propounded by another branch of the same government. [Emphasis added.] As I interpret this finding, the judge superimposed on the legislative scheme a duty on the commission to consult with Aboriginal people whose constitutionally protected rights or land claims might be affected by a restructuring proposal. (3) Failure to apply the “three filters” test [81] The third ground on which the applications for judicial review were granted was the failure of the commissioner to apply the “three filters” test, applied previously by the OMB when it had jurisdiction over municipal restructuring, in deciding an application for municipal restructuring. O’Driscoll J. rejected the submission of counsel for the Crown that the Municipal Act does not require that the commission consider principles previously applied by the OMB in its decision-making process under different legislation and that the amendments to the Act establishing a restructuring commission, together with the principles to be considered contained in the commission’s Terms of Reference, were intended to replace any criteria for restructuring that had been established previously. O’Driscoll J. reached this conclusion at p. 279: The amendments, regulations, guidelines and terms of reference state that “these principles will be taken into consideration”. Nothing has been pointed out to me in the “new regime” that says “only these principles” will be taken into consideration. ….. In my view, the touchstones and benchmarks in restructuring and annexation that still apply are the “filters” described by the OMB: (i) the greatest good, (ii) common sense, and (iii) fairness. Nowhere in the “new process” do I see that it is to be “restructuring by ministerial or commission fiat”. Surely, the Respondents do not contend that the “three filters” are obsolete and inapplicable. [82] As I interpret this, and the following ground, O’Driscoll J. was engaged in a review of the merits of the commission’s decision which, as the Divisional Court had stated in the passage from Pembroke that he had quoted earlier, was beyond the role of the court on an application for judicial review of the commission’s decision. (4) The restructuring proposal constituted a “tax grab” [83] The fourth ground on which the judicial review was granted pertains to the application of TCPL. This ground bears the sub- title “The ‘Filters’ and TCPL”. O’Driscoll J.’s analysis considered, and applied, the evidence of the experts retained by TCPL, Mr. Lehman and Ms. Slack, to which I referred earlier, as well the following statement of the OMB in the reasons given by it following Geraldton’s 1993 application for restructuring: “There is no rationale to annex strictly for the purpose of a tax grab”. Referring to this statement, at p. 279 O’Driscoll J. concluded: “In my view, that principle remains because it complies with the ‘three filters’.” [84] On the basis of Mr. Lehman’s evidence, O’Driscoll J. found that nothing had changed since the reasons given by the OMB’s decision of March 11, 1994. As well, he accepted Ms. Slack’s opinion that there had been insufficient analysis by the commissioner to enable him to make an informed decision as to the financial impact of the contemplated restructuring and that “this municipal restructuring, through amalgamation and annexation is a ‘tax grab’.” Finally, he referred to Canadian National Railway Co. v. Fraser-Fort George (Regional District) (1996), 140 D.L.R. (4th) 23 (B.C.C.A.) in which a by-law had been quashed on the ground that it had been passed without jurisdiction because its purpose was solely to create a tax base. [85] O’Driscoll J. expressed his conclusions with respect to this ground at pp. 281-2: 3. In my view, the Commission acted without any evidence upon which to base its annexation order. It had no financial analysis or report that would in any way give credence to the annexation order. The Commission viewed this as a “window of opportunity” to order the annexation that the OMB had consistently referred to as a “tax grab” because it did not qualify under the “three filter test”. In my view, the Final Proposal is deceptive. It claims to adhere to the “three filters” of the OMB but then turns about and comes to the opposite result on the same set of facts. ….. In my view, the Commissioner lost jurisdiction and credibility when he closed his eyes to a “tax grab” and then opened his eyes, looked through a “window of opportunity” and, on the same facts, saw the basis for annexation. (5) Reasonable apprehension of bias [86] The fifth ground on which the applications for judicial review succeeded was that there was a reasonable apprehension that the commissioner was biased. O’Driscoll J. referred to a speech made by the Minister in 1996 in which he stated that the legislation was to be amended to provide for the determination of municipal restructuring by “an independent third party”, and to his earlier review of the workings of the commission, and made the following findings at p. 282: 3. In my view, the review shows beyond all doubt that MMAH was anything but a disinterested party to the outcome of this Commission. The Commission had its office in the office of MMAH, Mr. Rees “collaborated” with the Commissioner and “crafted” the Draft Proposal. The Draft Proposal did not go out until after the Commissioner met with MMAH staff and went over the text. Everything was filtered through Mr. Robb Anderson, Mr. Ian D. Smith or Mr. Rees. Mr. Ian D. Smith passed on documents from the OMB hearing that he felt were relevant. The Commissioner travelled with and socialized with MMAH personnel. 4. It would not be unfair to say that if you saw the Commissioner, there would be someone from MMAH with him. 5. The bottom line question is this: were the Applicants treated fairly in view of the conduct of the Commission? My answer is: “No”. It is difficult to ascertain whether the Commissioner was a willing or an unwilling captive of MMAH but it makes no difference. Either way, the perception of an informed spectator had to be that the Commissioner was simply doing the bidding of MMAH and doing it on a fast track. [87] After quoting Dickson J. in Martineau v. Matsqui Disciplinary Board, [1980] 1 S.C.R. 602 at 630 dealing with principles of natural justice which apply to administrative tribunals, including the duty of the tribunal to act fairly, O’Driscoll J. arrived at this conclusion at p. 283: I hold that the Commission lost jurisdiction through the appearance of bias and thereby denied fairness to the Applicants. It is not my duty or place to comment upon how a Commission under s. 25.3 of the Municipal Act should be conducted. However, I am constrained to say that this case could be used as a text book of how it should not be conducted. (6) Violation of Aboriginal or treaty rights [88] O’Driscoll J. expressly declined to consider the request of NAN and GFN that the Final Proposal and Order be quashed on the ground that they infringed their rights guaranteed by s. 35 of the Constitution Act, 1982, for the following reason found at p. 277: In view of the fact that the Applications succeed on other grounds, I do not find it necessary to go through the extensive analysis as set out in R. v. Sparrow (supra): (i) was there an infringement? (ii) if yes, was it reasonable? (iii) did it impose undue hardship? (iv) did it deny the aboriginal people the preferred means of exercising their rights? Therefore, these reasons are neutral on the question of whether or not there has been an infringement of “existing aboriginal and treaty rights” of NAN and/or GFN contrary to s. 35(1) of the Constitution Act, 1982. ISSUES [89] In my view, the overriding issue presented by this appeal is the extent of the supervisory jurisdiction of the court in an application for judicial review of a restructuring proposal made by a restructuring commission appointed under s. 25.3 of the Municipal Act to carry out a legislative function in a political process. On the basis of the findings and conclusions of the Divisional Court and the record before it, this issue can be best discussed by an analysis of the following sub-issues: (1) The role of the court on judicial review of a restructuring proposal ordered by a restructuring commission. (2) The standard of review in reviewing the Final Proposal and Order of a restructuring commission. (3) Whether the Divisional Court, in the exercise of its supervisory role, was correct in quashing the Final Proposal and Order on the grounds that the commission: (a) exceeded its jurisdiction in ordering a restructuring proposal that was precluded by the applicable legislation; (b) lost its jurisdiction by failing to consult with NAN, GFN and LL58; (c) erred in failing to apply the “three filters” test developed and applied by the OMB when it had jurisdiction over municipal restructuring; (d) erred in ordering a municipal restructuring which constituted, or resulted in, a “tax grab”; (e) performed its statutory role in a manner which gave rise to an appearance of bias on its part, thereby denying fairness to the respondents. (4) Whether this court should express disapproval of allegedly ad hominem remarks about the commissioner made by O’Driscoll J. (5) The cross-appeal of NAN and GFN. [90] There is an additional issue arising from the cross-appeal of NAN and GFN asking that the judgment of the Divisional Court be varied to include a declaration that the commission’s Final Proposal and Order infringed rights guaranteed by s. 35 of the Constitution Act, 1982 and are therefore of no force and effect. [91] As I will explain, I would allow the appeal on the ground that the Divisional Court erred in respect to each of the grounds on which it quashed the Final Proposal and Order. As well, it is my view that it is inappropriate for this court to consider the issue raised by the commissioner concerning the comments made about him personally. As for the cross-appeal of NAN and GFN, this issue was not suitable for resolution in a summary manner by the Divisional Court on the basis of the record before it and, for the same reason, cannot be considered by this court. ANALYSIS [92] Before considering the issues that I have identified, I find it helpful to elaborate on my earlier comments concerning the nature, purpose and process of a restructuring commission appointed pursuant to s. 25.3(1) of the Municipal Act. [93] As for the nature of the commission, unlike a tribunal such as the OMB which, as a creature of statute, has an ongoing function, a commission under s. 25.3 is created as needed. When the commission has developed its restructuring proposal and made its order, it is at an end. Unlike the OMB, the members of which are long serving and have developed an expertise in matters within its jurisdiction the person, or persons, appointed to a commission do not necessarily have expertise in municipal restructuring. Indeed, such persons may serve on a commission but once. Unlike the OMB, a commission is not required to hold an adversarial hearing in which opposing parties present evidence and in which a decision is reached by the application of substantive rules. At most, it is required to consult with certain parties, may consult with others and must give persons living and carrying on business in the impacted geographic area the opportunity to respond to its draft proposal. It must provide its Final Proposal by a stipulated date and, as I read the applicable legislative scheme, there is no statutory requirement that it provide reasons supporting its Final Proposal. No appeal lies from the Final Proposal and Order of a commission. No privative provision is contained in the legislative scheme that applies to a commission. [94] Therefore, a commission does not engage in an adjudicative process. In my view, the nature of the decision required of the commission is clear and is stipulated by s. 25.3(2) of the Act read together with s. 1 of O. Reg. 253/97, which created it. Section 25.3(2) states: 25.3 (2) The Commission shall develop a restructuring proposal for the prescribed locality or for such part of it as the Commission considers advisable. [Emphasis added.] The “prescribed locality” is the geographic area described in the Schedule referred to in s. 1 of the Regulation. Thus, the commission had no discretion to refuse to develop a restructuring proposal. Its discretion was limited to whether the proposal encompassed all, or part, of the prescribed locality. 1. Judicial review of a restructuring proposal ordered by a restructuring commission [95] In the context of the above background, I will consider the scope of judicial review of a restructuring proposal ordered by a restructuring commission in the exercise of its statutory powers. There is nothing which I can add to the opinion of Campbell J. on behalf of the Divisional Court in Pembroke, supra, in commenting on the role of the court in reviewing a decision of the Health Services Restructuring Commission appointed under the Ministry of Health Act, R.S.O. 1990, c. P. 40 to restructure health care services throughout Ontario. Each commission was established with a broad mandate to effect restructuring - the Health Services Restructuring Commission to restructure health services in Ontario, and a restructuring commission to develop a proposal for municipal restructuring. As well, each commission was clothed with the power to issue directions or an order in the place of the relevant Minister, and was given a relatively short period of time to complete its task. Because of the similarity of the tasks of the Health Services Restructuring Commission and a restructuring commission appointed under s. 25.3 of the Municipal Act, I am of the view that the opinion of Campbell J. applied to the role of the Divisional Court in this appeal. For the sake of convenience, I will repeat what was said by Campbell J. at p. 44: The court’s role is very limited in these cases. The court has no power to inquire into the rights and wrongs of hospital restructuring laws or policies, the wisdom or folly of decisions to close particular hospitals, or decisions to direct particular hospital governance structures. It is not for the court to agree or disagree with the decision of the Commission. The law provides no right of appeal from the Commission to the court. The court has no power to review the merits of the Commission’s decisions. The only role of the court is to decide whether the Commission acted according to law in arriving at its decision. [96] These principles are quite clear and, as noted previously, were applied in Russell, Wellesley Central Hospital and Lalonde. Indeed, early in his reasons O’Driscoll J. appeared to adopt them and stated that his review of the Final Proposal and Order was confined to whether the commission contravened the law, exceeded its jurisdiction, lost its jurisdiction or failed to exercise its jurisdiction. [97] As well, it is helpful to refer to the reasons of the Divisonal Court in Lalonde in which the directions issued by the Health Services Restructuring Commission were attacked on constitutional and administrative law grounds. In rejecting the administrative law attack, at p. 295 the Divisional Court stated that it “has repeatedly emphasized the limited scope for judicial review of directions given by the Commission” for the reasons stated by Campbell J. in Pembroke. After quoting Campbell J.’s reasons which I have quoted, the court added at p. 296: This role reflects the very broad public policy mandate assigned to the Commission by the Government for the purpose of restructuring the system of health care in Ontario. The Court can interfere only when the Commission has not acted according to law in arriving at its decision. After pointing to the many submissions received and considered by the commission, as well as the consultations in which it engaged, the court continued at p. 296: It acted on evidence and materials provided to it and applied its policy criteria regarding the quality, accessibility and affordability of health care services in the Region. The Commission’s decisions are fundamentally matters of judgment. Moreover, as the Pembroke Hospital case reminds us, they are made in a context which “engages strong feelings with the community”. Reasonable people can differ on the solutions to be applied. In my view, these observations apply to the circumstances of this appeal. [98] I would also observe that in Lalonde the parties were in agreement that the court could review the directions issued by the commission on the ground that they were “patently unreasonable” or “clearly irrational”. Without commenting on whether this constituted the appropriate standard of review, the Divisional Court found that the evidence failed to establish that the commission based its directions on irrelevant considerations, and, at p. 297, rejected the argument that the directions “should be set aside on ordinary administrative law grounds because they are patently unreasonable or based upon irrevelant considerations”. [99] I cannot say, that in principle, O’Driscoll J. was wrong in describing the limited nature of the judicial review of the commission’s Final Proposal and Order. The review is limited to a consideration of whether the commission properly exercised the powers conferred on it by the Municipal Act and the Regulations. In other words, the judicial review is limited to whether a restructuring commission, as a creature of statute, properly exercised the powers conferred on it by the legislature. Its exercise of its statutory powers is reviewable to the extent of determining whether its actions are intra vires. Such a review does not encompass a consideration of the merits of the restructuring proposal, or agreement or disagreement with it. Regrettably, O’Driscoll J. strayed from the narrow path of the review that he had charted. Perhaps because the respondents had invited him to examine the large amount of evidence which they had filed in support of their applications, as I will explain it is difficult to escape the conclusion that he applied the “three filters” test formerly applied by the OMB, assessed the merits of the restructuring proposal and substituted his own opinion for that of the commission. 2. Is there a standard by which the court, on judicial review, can review the merits the restructuring proposal? [100] In my view, prior to the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration (1999), 174 D.L.R. (4th) 193 (S.C.C.) the short answer to this question would have been “no”. There was some argument by counsel about whether the appropriate standard of review was correctness, patent unreasonableness, or reasonableness simpliciter. However, this analysis generally applies to judicial review of an adjudicative tribunal, and the commission was not such a tribunal. Clearly, it did not engage in, nor was it required to engage in, the three-step process inherent in adjudicative decision-making: finding the facts; identifying or declaring the applicable legal rule or principle; and applying the rule or principle to the facts as found. The commission was not required to make a decision at all. As I have pointed out, under s.25.3(2) the commission was given a responsibility it could not refuse: “The Commission shall develop a restructuring proposal for the prescribed locality or for such part of it as the Commission considers advisable.” [101] In my opinion, the statutory grant of power to the commission comes within the category of what has been described as “hard to review” administrative action: Donald J.M. Brown and The Honourable John M. Evans, Judicial Review of Administrative Action in Canada, (1998) Canvasback Publishing 15-61 to 15-65. As Brown and Evans point out at 15-62, the courts have narrowly circumscribed judicial review of administrative action because of its political, policy or legislative nature. In this regard, in Pembroke, supra, at p. 46, in discussing the Health Services Restructuring Commission, Campbell J. described that commission as the surrogate of the Minister, adding: “The Commission stands in the shoes of the Minister and exercises the Minister’s powers. On the spectrum between political decision-making and judicial decision-making, the Commission is close to the extreme political/legislative end of the spectrum.” Although it may not be that the restructuring commission stands in the Minister’s shoes, it is not far removed from them as its statutory role is political, policy and legislative in nature. A similar opinion was expressed by this court in Bruce (Township) v. Ontario Minister of Municipal Affairs and Housing, supra, in which judicial review was sought of a municipally generated restructuring proposal under s. 25.2 of the Municipal Act. In a comment at p. 320 which has application to this appeal, Osborne J.A. stated: “It is not for the courts to second guess the restructuring decision made by County Council.” [102] Historically the courts have limited their review of the type of administrative action at issue in this appeal to an assessment of whether the commission acted according to law in arriving at its restructuring proposal or directions as illustrated by the series of cases dealing with directions issued by the Health Services Restructuring Commission. This would exclude any consideration of the merits of the proposal or directions. [103] It is arguable that after Baker a reviewing court may go beyond this to scrutinize the administrative action using the standard of review that is appropriate to the administrative action under review. See the contrasting views of Brown and Evans at pp. 15-66 to 15-68 and Robertson J.A. in Suresh v. Canada (Minister of Citizenship & Immigration), a judgment of the Federal Court of Appeal released January 18, 2000, at paragraphs 129-141. In this appeal, the highly specialized task given to the commission together with the nature of the task, centered as it is on policy formulation, require the greatest deference of a reviewing court. As I have pointed out, this was the approach which the Divisional Court was prepared to take in Lalonde without considering Baker. In my view, unless the restructuring proposal developed by the commission is patently unreasonable, the court will not interfere. [104] The restructuring proposal developed by the commission can by no stretch be said to be patently unreasonable. It is not, in the language of Canada (Director of Investigation & Research) v. Southam Inc., [1997] 1 S.C.R. 748, irrational. The commission’s reasoning, reproduced earlier in these reasons, is clear and is there for all to see. Even if a reviewing court, after Baker, can apply a standard of review to the restructuring proposal put forward by the commission, no intervention is warranted. [105] I would, however, add the caveat that non-adjudicative administrative action is subject to review on the grounds that it is arbitrary, discriminatory, or not taken in good faith which, in my view, would include bias on the part of the commission. 3(a) The legality of the commission’s Final Proposal and Order [106] The Divisional Court found that the Final Proposal and Order was “null and void and of no force and effect” because it contravened s. 3(2)(f) of O. Reg. 253/97, which is the Regulation that established the commission. The court found that the Final Proposal and Order proposed “the incorporation of a new municipality ‘Greenstone’ and purports to annex unorganized territory to Greenstone”, which was found to be contrary to s. 3(2)(f). [107] Under s. 3(1) of the Regulation the commission was empowered to include in a restructuring proposal six types of restructuring including, inter alia, amalgamating local municipalities, incorporating a local municipality and annexing unorganized territory to a municipality. However, it was precluded by s. 3(2)(f) from including in a restructuring proposal the annexation of an unorganized territory to a municipality that is incorporated under s. 3(1). [108] It appears that O’Driscoll J. misinterpreted the nature of the commission’s Order of August 29, 1997, which is two parts. Under the first part, the Towns of Geraldton and Longlac and the Townships of Beardmore and Nakina were “amalgamated as a town under the name ‘The Corporation of the Municipality of Greenstone’.” Under the second part, the unorganized territory was “annexed to” Greenstone. As the first part of the Order did not incorporate a municipality, it follows that O’Driscoll J. operated on a misinterpretation of the nature of the Order when he declared it to be null and void. The Order did not, as he believed, annex unorganized territory to a newly incorporated municipality. [109] Therefore, O’Driscoll J. erred in finding the Final Proposal and Order to be illegal on the ground that the commission did not have the power to make it. 3(b) The duty of the Crown to consult with First Nations [110] O’Driscoll J. held that the commission lost its jurisdiction when it failed to consult with LL58, and did not consult “properly, adequately and meaningfully” with NAN and GFN. In doing so he purported to apply the reasoning of the Supreme Court of Canada in Sparrow, supra. This holding was informed by his findings that First Nations had “bona fide, unresolved [land] claims” which, as a result of the restructuring proposal, would be “made more difficult”, and that NAN and GFN would lose some of their traditional hunting grounds to “municipal strictures”. It was informed, as well, by his belief that “the Minister Responsible for Native Affairs” had not performed his duty to advocate “the position of the Aboriginal people“ before the commission. [111] Apart entirely from my view that O’Driscoll J.’s findings, which inform his conclusion, were not available on the record before him, it is my opinion that he erred in concluding that the commission had lost its jurisdiction when it failed to consult with the First Nation respondents. It will be recalled that under s. 25.3(4) of the Municipal Act the commission was required to consult only with each municipality in the geographic area in question. As for additional consultation, s. 25.3(4) provides that the commission “may consult with such other bodies and persons as the commission considers appropriate”. Therefore, under the Act no obligation was placed on the commission to consult with First Nations whose people lived on land situate within the geographic area. It follows, that even if the commission had no consultation with the First Nations, it could not lose its jurisdiction through any failure to comply with s. 25.3(4). Accordingly, any obligation that the commission may have had to consult with the First Nations had to derive from another source. [112] In my view, O’Driscoll J. incorrectly applied the concept of the Crown’s duty to consult with First Nations in setting aside the restructuring proposal on the ground of loss of jurisdiction. As I will explain, he elevated the Crown’s duty to consult with First Nations from merely being one, of several, justifactory requirements to be met by the Crown when a challenge is mounted to a law, or government action, on the ground that it unduly interferes with Aboriginal rights or treaty rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982, to an independent ground on which such a law, or government action, may be challenged. [113] The starting point is the proposition that Aboriginal rights and treaty rights are recognized and affirmed by s. 35(1). The case in which the Crown’s duty to consult with a First Nation first was discussed is R. v. Sparrow, [1990] 1 S.C.R. 1075. At issue in that case was the constitutionality of federal fishing regulations imposing a permit requirement and prohibiting certain methods of fishing. The Musqueam First Nation argued that the federal fishing requirements interfered with their Aboriginal fishing rights and were invalid pursuant to s. 35(1). At trial, the Musqueam proved that salmon is not only an important source of their food, but also plays a central role in Musqueam cultural identity. [114] The Supreme Court of Canada found for the Musqueam First Nation, holding that Aboriginal rights recognized and affirmed by s. 35(1) include practices that form an integral part of an Aboriginal community’s distinctive culture. What emerged from this case is that where a First Nation, in challenging the constitutionality of a law, or governmental action, establishes a prima facie infringement of a right recognized and affirmed by s. 35(1), it is for the government, where it intends to respond to the challenge, to establish that the law in question meets certain articulated justificatory standards. This process is similar to that applied where a law is challenged on Charter grounds and the government seeks to justify it under s. 1 of the Charter. [115] In Sparrow, one of the articulated justificatory requirements is that the Crown consult with Aboriginal people prior to introducing natural resource conservation measures that interfere with the Aboriginal right to fish. At p. 1119 the Supreme Court held that the constitutionality of fish conservation regulations that interfere with the exercise of an Aboriginal right to fish would depend, in part, “on whether the Aboriginal group in question has been consulted with respect to the conservation measures being implemented”. [116] In two subsequent decisions the Supreme Court indicated that the Crown is under a duty to consult with Aboriginal people in the event of an infringement of a treaty right recognized and affirmed by s. 35(1) and where the Crown seeks to interfere with rights associated with Aboriginal territorial interests. [117] In the first decision, R. v. Badger, [1996] 1 S.C.R. 771, the issue was whether the Treaty 9 right to hunt provided a defence under Alberta’s wildlife legislation which prohibited hunting out-of-season and hunting without a license. After finding that the right to hunt was a treaty right within the meaning of s. 35(1), the Supreme Court held that the Crown can abridge treaty rights provided the law in question meets justificatory standards similar to those that operate in relation to laws that interfere with the exercise of Aboriginal rights, which includes a duty to consult. [118] In the second decision, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, hereditary chiefs of two First Nations claimed Aboriginal title to 58,000 square kilometers of the interior of British Columbia. The Supreme Court ruled that Aboriginal title is protected by s. 35(1). The court stated at p. 1113 that where it is established that there has been an interference with rights associated with Aboriginal title, “[t]here is always a duty of consultation” which forms part of the inquiry into “whether the infringement of Aboriginal title is justified” [119] In my view, what these cases decide is that the duty of the Crown to consult with First Nations is a legal requirement that assists the court in determining whether the Crown is constitutionally justified in engaging in a particular action that has been found to prima facie infringe an existing Aboriginal or treaty right of a First Nation. It is only after the First Nation has established such infringement through an appropriate hearing that the duty of the Crown to consult with First Nations becomes engaged as a factor for the court to consider in the justificatory phase of the proceeding. Thus, as Sonia Lawrence and Patrick Macklem point out in their helpful article, From Consultation to Reconciliation: Aboriginal Rights And The Crown’s Duty To Consult (2000), 79 Can. Bar Rev. 252 at 255: … Properly understood, the duty to consult also acts as a prelude to a potential infringement of an Aboriginal or treaty right. Consultation requirements ought to be calibrated according to the nature and extent of Aboriginal interests and the severity of the proposed Crown action in order to provide incentives to the parties to reach negotiated agreements. In most cases, the duty requires the Crown to make good faith efforts to negotiate an agreement with the First Nation in question that translates Aboriginal interests adversely affected by the proposed Crown action into binding Aboriginal or treaty rights. [120] As Lawrence and MacKlem point out at p. 262, “in most cases involving the assertion of Aboriginal or treaty rights, the First Nation in question is simultaneously attempting to establish the existence of its rights and prevent interference with those rights by the Crown or a third party.” As the decisions of the Supreme Court illustrate, what triggers a consideration of the Crown’s duty to consult is a showing by the First Nation of a violation of an existing Aboriginal or treaty right recognized and affirmed by s. 35(1) of the Constitution Act, 1982. It is at this stage of the proceeding that the Crown is required to address whether it has fulfilled its duty to consult with a First Nation if it intends to justify the constitutionality of its action. [121] Although NAN and GFN challenged the commission’s Order on both the administrative law ground, based on the failure of the Crown to consult, and on the ground that the Final Proposal and Order infringed s. 35(1) of the Constitution Act, 1982, because of his finding on the administrative law ground O’Driscoll J. concluded that there was no need to deal with this issue. I note, however, that NAN and GFN based their constitutional challenge to the proposal on the ground that it may result in the infringement of constitutionally protected Aboriginal rights. Because it bears on my disposition of the cross-appeal of NAN and GFN, I find it convenient at this time to observe that if O’Driscoll J. had dealt with the constitutional challenge to the restructuring proposal, it appears to me that the evidence before him did not conclusively establish the requisite treaty or Aboriginal rights. Moreover, from this inadequate evidentiary record, in my view, it is speculative whether such treaty or Aboriginal rights, should they exist, will be impacted adversely by the restructuring proposal. [122] As well, to the extent that it is relevant, there was also a serious deficiency as to the particulars of the First Nation respondents’ land claims, including the status of the negotiations and precisely how the creation of a new municipality would in fact impede, or jeopardize, the resolution of the claims. There was no evidence that this would prevent the land claims from continuing. The land claims may, or may not, succeed in whole or in part. In my view, nothing in the record enables this court to even predict their outcome. [123] In summary, for the reasons I have given, O’Driscoll J. erred in setting aside the commission’s Final Proposal and Order on the ground that the commission lost its jurisdiction when it failed to consult the First Nation respondents. In coming to this conclusion, I have found it unnecessary to deal the position taken by the appellant, that, if the commission were under a duty to consult, there was a reciprocal duty on the First Nations to engage in the consultative process, which they had not fulfilled. However, in my view, I am bound to say that there is considerable merit to this position: see, e.g., Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 178 D.L.R. (4th) 666 at 718 per Finch J.A. (B.C.C.A.). 3. (c) Was the commission required to apply the “three filters” test? [124] The Divisional Court was of the view that the commission should have applied the “three filters” test formerly applied by the OMB when considering applications for municipal restructuring. O’Driscoll J. concluded that it was required to do so. It appears, as well, that he felt the commission was bound to follow the result reached by the OMB in 1994 on Geraldton’s restructuring application. It appears that he then examined the merits of the Final Proposal and Order and concluded, in essence, that the commission should not have developed the restructuring proposal. In examining the merits of the proposal, he took into consideration evidence which TCPL had filed and seemingly applied the “three filters” test. [125] In my view, the commission was not required to apply the “three filters” test. There are two reasons why I have reached this conclusion. The first reason is that the statutory scheme under which the commission operated did not require that it do so. The second reason is that at common law the commission was not required to follow the approach taken by the OMB, nor was it bound to reach the same conclusion which the OMB reached in 1994 on Geraldton’s restructuring application. Thus, the Divisional Court’s opinion that the “three filters” test ought to have been applied by the commission was not relevant to the commission’s jurisdiction on judicial review where, as I have explained, the issue was whether the commission had properly exercised its statutory powers. [126] Dealing with the first reason, as I have explained earlier, the legislation which provided for the appointment of a commission to develop a restructuring proposal was new legislation intended to replace the role of the OMB in respect to municipal restructuring. It did not require the commission to apply the “three filters” test in developing its restructuring proposal. Consequently, O’Driscoll J. was incorrect in interpreting the statutory scheme as containing “the touchstones and benchmarks … described by the OMB”. The principles of restructuring prescribed by the Minister were new and different. In any event, in that portion of the commissioner’s reasons which are reproduced in paragraph 60, he stated that he took into consideration principles which were identical to the “three filters” in carrying out his mandate and in arriving at a restructuring proposal that was “in the best interests of all parties … not just the interests of one of them”. This passage from the commissioner’s reasons was included in his response to the concern of TCPL that the restructuring proposal amounts to a “tax grab”, which is the next issue I will consider. [127] I do not take from the commissioner’s comments, read in the context of the totality of his reasons, that he undertook to apply these principles exclusively, or in the same manner as had the OMB. Unlike the process and restructuring principles that are prescribed by the statutory scheme, the “three filters” are not prescribed by law as conditions precedent. As well, the OMB applied the “three filters” test while performing an adjudicative role that required it to resolve competing interests. As I have explained, the commission was not engaged in an adjudicative exercise. [128] As for the second reason, the commission was not required by the principle of stare decisis to follow the decisions of the OMB. Rather, it was required to apply its own judgment, unfettered by previous decisions of the OMB, particularly its 1994 decision respecting Geraldton’s application. O’Driscoll J. asked, rhetorically, whether anything had changed since the OMB’s reasons of March 11, 1994. Whether anything had changed was a matter for consideration by the commission and not by the court, and any determination in respect to changed circumstances is not reviewable by the court on judicial review. [129] Moreover, there is a well-accepted principle of administrative law that stare decisis does not apply to administrative tribunals. A tribunal is not bound to follow its own decisions on similar issues, although it may consider an earlier decision persuasive and find that it is of assistance in deciding the issue before it. See, e.g., Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582; Domtar Inc. v. Québec (Commission d’appel en matière de lésions professionelles) (1993), 105 D.L.R. (4th) 385 (S.C.C.). [130] Thus, the Divisional Court erred in holding that the commission was required to apply the “three filters” test, that it was bound by the 1994 OMB decision and in substituting its own view of the merits of the restructuring proposal. 3 (d) Did the Final Proposal and Order constitute a “tax grab”? [131] As I have indicated previously, it is difficult to separate this issue from the previous issue because O’Driscoll J., in concluding that the restructuring proposal amounted to a “tax grab” at the expense of TCPL, purported to apply the “three filters” test in substituting his own decision for that of the commissioner. In doing so, he took into consideration the evidence of Robert Lehman, a land use planner, and Enid Slack, who is experienced in municipal finance and governance, which formed part of the material filed by TCPL. Based on this evidence, he concluded that “the commission acted without any evidence upon which to base its annexation order”. He concluded: In my view, the Commissioner lost jurisdiction and credibility when he closed his eyes to a “tax grab” and then opened his eyes, looked through a “window of opportunity” and, on the same facts, saw the basis for annexation. It appears that O’Driscoll J.’s conclusion that the annexation of the unorganized territory amounted to a “tax grab” was derived from Canadian National Railway Co. v. Fraser-Fort George (Regional District) (1996), 140 D.L.R. (4th) 23 (B.C.C.A.). [132] As I interpret what is at the heart of the position of TCPL, it has submitted that the restructuring proposal unfairly affects its economic position because it will be required to pay more taxes to the new municipality than it had paid to the province in the past. It submitted, if the commission had before it the evidence which it presented on its application for judicial review, that it would have recognized this unfairness and proposed a form of restructuring that excluded the land on which its pipelines are situated. Thus, its challenge to the restructuring proposal was on its merits. [133] I begin my analysis of this issue by repeating my conclusion that it was not open to the respondents, by way of judicial review, to challenge the proposal on its merits. Whether a particular restructuring proposal is or is not “timely and efficient”, or is or is not consistent with “the greatest good of society”, do not represent questions of law answerable on judicial review. These are policy issues that the legislature intended the commission, not the court, to decide. To reiterate what I have stated earlier, on judicial review, the court has no authority to decide such questions, nor to quash the commission’s order if it differs from the judge’s personal opinion, or that of the OMB in an earlier case, as to what form of municipal restructuring achieves “the greatest good”. Indeed, with respect, the court had no institutional expertise in arriving at political, economic and social compromises in restructuring the boundaries and the infrastructure of municipalities and unincorporated areas. [134] Moreover, the statutory scheme that applied to the jurisdiction of the commission makes no reference to the level of taxes to be paid by any particular resident, or business, in any municipality or unorganized territory – nor, indeed, to Aboriginal land claims. The commission was given a broad mandate to consider and balance a number of competing interests, which included those of taxpayers. There was no requirement that the restructuring proposal developed by the commission be tax neutral. It will be for the new municipality to determine the taxes to be paid by residents and businesses, who will have available to them the statutory means to challenge the assessment on which their municipal taxes are based. [135] The Divisional Court’s view of the merits of the restructuring proposal was informed by the affidavits of Mr. Lehman and Ms. Slack. It was Ms. Slack, in her affidavit, who provided the opinion that the annexation of the unorganized territory ordered by the commission was a “tax grab”. The court accepted this opinion and concluded that the commission, instead of carrying out its duty to weigh all of the competing interests, was motivated entirely, or primarily, by an improper desire to impose a large tax on TCPL. To repeat what has been said earlier, it was not for the court on judicial review of the commission’s restructuring proposal and order to weigh the credibility of the experts who provided evidence for TCPL against the credibility of the commission on substantive matters such as planning or the sufficiency of financial analysis. [136] O’Driscoll J. relied on Canadian National Railway Co. to support his finding that the annexation order was a “tax grab”. However, that case is clearly distinguishable on its facts. The decision in that case was based on evidence that a municipality had deliberately created boundaries that were “eccentric and gerrymandered” for the purpose of imposing a tax burden on the railway. In this appeal, there is no evidence that the annexation of the unorganized territory was for the purpose of imposing a tax burden on TCPL. Although an improper motive may permit the court to intervene on judicial review where there is a proper evidentiary foundation, in this appeal there was no evidence of a precise tax increase, if any, and no evidence of bad faith on the part of the commission, such as that it had artificially included a narrow strip of land in the annexation order for no purpose other than to capture tax revenues. Whether a complex municipal restructuring will have some income redistributive effects, with some taxpayers paying more, and others, less, is not relevant to the jurisdiction of the commission. [137] Although O’Driscoll J. placed great reliance on a purported “tax grab”, in my view, it is essentially a rhetorical expression to which no legal meaning was assigned. I believe that it can fairly be stated that by alleging a “tax grab”, TCPL was claiming that the annexation order was discriminatory. In this regard, I would refer to Gander (Town) v. Tulk (1990), 1 M.P.L.R. 123 (Newf. Sup. Ct.), in which it was held that an extension of municipal boundaries which resulted in different levels of service to taxpayers within a town was not reviewable as being discriminatory. [138] It is my opinion that the decision of the Supreme Court of Canada in Thorne’s Hardware Ltd. v. R., [1983] 1 S.C.R. 106 affords a complete answer to the position of TCPL. In that case, the appellants alleged that an Order in Council of the federal Cabinet extending the limits of St. John Harbour had been passed for improper motives to increase harbour revenues. By way of background, the Governor in Council had passed an Order in Council extending the limits of the port of St. John. As a result, the water lot of the appellants was brought within the limits of the port. Consequently, harbour dues were claimed from the appellants in respect to their ships that used their water lot. The appellants challenged the validity of the Order in Council extending the harbour limits on the ground, inter alia, that it was passed for improper motives, namely, to permit the National Harbours Board to collect harbour dues from the appellants without offering any service in return. The appellants said that this amounted to “bad faith” on the part of the Governor in Council. [139] The Supreme Court rejected the position of the appellants. Accepting that Dickson J., who delivered the judgment of the Supreme Court, was speaking about the powers of the federal Cabinet, there are passages from his reasons that apply to this appeal. It is important to recognize that in passing the Order in Council, the federal Cabinet, like the commission, was acting under statutory authority. [140] In commencing his analysis of the appellants’ position, Dickson J. stated at p. 111: The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review: Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 748. I have no doubt as to the right of the courts to act in the event that statutorily prescribed conditions have not been met and where there is therefore fatal jurisdictional defect. Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see that statutory procedures have been properly complied with: R. v. National Fish Co., [1931] Ex. C.R. 75; Minister of Health v. The King (on the Prosecution of Yaffe), [1931] A.C. 494 at p. 533. Decisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an order in council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action. This is not such a case. [141] Dickson J. continued at p. 112: Counsel for the appellants was critical of the failure of the Federal Court of Appeal to examine and weigh the evidence for the purpose of determining whether the Governor in Council had been motivated by improper motives in passing the impugned Order in Council. We were invited to undertake such an examination but I think that with all due respect, we must decline. It is neither our duty nor our right to investigate the motives which impelled the federal Cabinet to pass the Order in Council, Attorney-General for Canada v. Hallet & Carey Ld., [1952] A.C. 427, at p. 445; Reference re Chemical Regulations, [1943] S.C.R. 1, at p. 12…. [142] Dickson J. went on at pp. 114-115 to observe that in the Federal Court there was evidence from which one could conclude that the collection of harbour dues was not an unimportant consideration in the decision to extend the harbour boundaries, but that there was ample evidence that the expectation of increased revenues was not the only reason for doing so. He also observed that the appellants had not been denied an opportunity to be heard. Dickson J. then concluded at p. 115: I have referred to these several pieces of evidence, not for the purpose of canvassing the considerations which may have motivated the Governor in Council in passing the Order in Council but to show that the issue of harbour extension was one of economic policy and politics; and not one of jurisdiction or jurisprudence. The Governor in Council quite obviously believed that he had reasonable grounds for passing Order in Council P.C. 1977-2115 extending the boundaries of Saint John Harbour and we cannot enquire into the validity of those beliefs in order to determine the validity of the Order in Council. [143] As I observed earlier, the commissioner indicated that he was convinced that it was desirable to extend the municipal boundaries to protect the area’s natural environment and to provide a reasonable basis for future economic development. This illustrates that the prospect of increased tax revenues for the new municipality was not the exclusive reason for the restructuring proposal. As well, as discussed earlier, the statutory scheme did not require the commissioner to hold a hearing and the commissioner fulfilled his mandate in respect to consultation. [144] There is one final point that should be addressed. In my view, affidavit evidence should not have been received by the Divisional Court in respect to this issue. Whether the “tax grab” aspect of the commission’s Final Proposal and Order is characterized as an excess of jurisdiction, or a failure to exercise jurisdiction, it is clear that the evidence was presented to supplement the record before the commission for the purpose of demonstrating that the court should substitute its decision for that of the commission. It is precisely to avoid these kinds of non-jurisdictional, non-legal debates on judicial review that this court has held inadmissible affidavit evidence which adds to the record of the tribunal being reviewed without showing jurisdictional error: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.), leave to appeal to S.C.C. refused (1980), 35 N.R. 85n. [145] For the foregoing reasons, the Divisional Court erred in quashing the commission’s Final Proposal and Order on the ground that it constituted a “tax grab”. 3. (e) Was the commission biased? [146] O’Driscoll J. found that there was a reasonable apprehension that the commission was biased. He based this conclusion on the evidence that the commissioner received considerable assistance from staff members of the Ministry which, to him, showed “beyond all doubt that MMAH was anything but a disinterested party to the outcome of this Commission”. He found it “difficult to ascertain whether the Commissioner was a willing or unwilling captive of MMAH”, and concluded that, either way, “the perception of an informed spectator had to be that the Commissioner was simply doing the bidding of MMAH”. Consequently, he held “that the Commissioner lost jurisdiction through the appearance of bias and thereby denied fairness to the Applicants.” In my view, neither the test to be applied where it is alleged that a tribunal such as this commission was biased, nor the evidence relevant to that test, established bias. [147] As the Supreme Court of Canada explained in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 636, 638-39, the test to be applied to determine whether bias exists, which would be sufficient to nullify a decision of a tribunal, is a flexible one, which will vary with the nature and function of the decision-making body. As I have stated, the commissioner’s role required that he make a policy decision after taking into account broad social and economic factors. He was not performing an adjudicative role in the resolution of a dispute between competing parties. The applicable test to determine whether the commission acted with bias is the “closed mind” test: Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at 1197. [148] In my view, the opinion of Cory J. in Newfoundland Telephone states the test that the Divisional Court should have applied. That case concerned comments made by a member of a public utilities board responsible for regulating the telephone company. After noting at p. 636 that “all administrative bodies, no matter what their function, owe a duty of fairness to the regulated parties whose interest they must determine”, he reviewed the spectrum approach to determining bias in administrative law, and the test applied in cases involving municipal councillors, such as Old St. Boniface. In cases, where elected councillors are involved as members of a board, “dealing with planning and development”, Cory J. outlined the appropriate bias test as follows at pp. 638-39: … the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature. [149] Since the commissioner was not engaged in an adjudicative process, the test, therefore, is not whether bias can be reasonably apprehended, but whether, as a matter of fact, the requirement of open-mindedness had been lost to the extent that it can reasonably be said that he had pre-determined the nature of the restructuring proposal he was by statute mandated to develop. In other words, the reason for not imposing on the commissioner the adjudicative standard of impartiality, namely, a reasonable apprehension of bias, is that the statutory scheme under which he operated contemplates the necessity that he develop a restructuring proposal in respect to all, or part, of the geographic area stipulated in his mandate. See Zundel v. Canada (Attorney General) (1999), 175 D.L.R. (4th) 512 at 521-525 (Fed. Ct., T.D.) [150] Applying the closed mind test, and recognizing that it was incumbent on the commissioner to develop a restructuring proposal, the evidence does not support a finding that the commissioner was biased in the sense that his mind was closed to the concerns expressed by the respondents. A review of his reasons indicates that he was alert to their concerns. [151] Moreover, the evidence does not support the finding that the commissioner was the “captive” of the Ministry. There was no evidence that the Ministry had expressed its view respecting the nature of the restructuring proposal and that the commissioner merely rubber-stamped it. The commissioner fulfilled his statutory duty to consult with the municipalities, conduct meetings and entertain submissions concerning his draft proposal, and to consult with others at his discretion. Although the commissioner was provided with the assistance of Ministry staff in gathering information and drafting his reasons for the restructuring proposal, there was no evidence that these persons interfered with the integrity or independence of the commission’s decision-making process. Indeed, the evidence was to the contrary and is capable of supporting a finding that the commission came to an independent decision. [152] For the foregoing reasons, it is my opinion that the Divisional Court erred in quashing the Final Proposal and Order on the ground of bias. 4. Should this court indicate its disapproval of certain remarks made about the commissioner by O’Driscoll J.? [153] The commissioner, through his counsel, maintained that the Divisional Court in its reasons made unnecessary, harshly critical and disrespectful comments about him, which stand to have adverse consequences for his career and livelihood. In his factum, counsel for the commissioner referred to seven passages from the reasons of O’Driscoll J. that it was submitted were both gratuitous and unfair to the commissioner, as well as harmful to his reputation. Counsel invited this court to state clearly in its reasons that the personal criticisms of the commissioner were unwarranted. We were given no authority for why we should do so. [154] Given the reasons which I have outlined in finding that there were no grounds on which the Divisional Court could have interfered with the commissioner’s restructuring proposal and order, it is possible to understand that the commissioner may feel that the comments were unfair. No doubt the commissioner will draw some comfort from the result of this appeal. In all other respects, however, I do not feel that it is appropriate for this court to comment further about the remarks that the commissioner feels are unfair. 5. The cross-appeal of NAN and GFN [155] As mentioned previously, NAN and GFN have cross- appealed in the event that the appeal is allowed. They ask this court to declare that the Final Proposal and Order of the commission infringe Aboriginal rights of hunting, fishing and trapping guaranteed by Treaty 9, and, therefore, infringe Aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. The Divisional Court found it unnecessary to deal with this issue in light of its decision to quash the restructuring proposal and order on the ground that the commissioner failed to consult with NAN and GFN. [156] In my view, on the basis of the record before this court, it is impossible for this court to consider the cross- appeal. Because O’Driscoll J. considered it unnecessary to deal with this issue, he made no findings and rendered no decision for this court to review. Generally speaking, it is not for this court to act as a court of first instance and resolve issues that the court below has failed, or declined, to resolve. [157] It is important to keep in mind that there is a significant difference between judicial review of the restructuring proposal and order on administrative law principles, where the attack is on executive or administrative conduct rather than legislative enactment, which was the focus of the applications before the Divisional Court, and an attack on the restructuring proposal and order on constitutional law principles based on their effect on Aboriginal rights and treaty rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. As the case law illustrates, whether a constitutional attack is launched by a proceeding seeking a declaration of constitutional invalidity of legislation or governmental action, or whether it is raised as a defence to a criminal, or quasi- criminal, charge, the process in which the court of first instance must engage is usually complex and lengthy. This process is well illustrated by cases like Sparrow and Badger. Those who launch a constitutional attack on s. 35(1) grounds must establish an existing treaty or Aboriginal right and a prima facie infringement by government action. Should the government seek to justify its action, it must receive the opportunity to do so. O’Driscoll J. considered none of these issues. In light of the fact that the Divisional Court did not consider these issues, they cannot be litigated de novo before this court. This is not intended as a criticism of O’Driscoll J. Having quashed the Final Proposal and Order on the ground that the commissioner had failed to consult with the First Nations, he was justified in not considering the constitutional issue. [158] Because of its complexity, the constitutional issue may not be easy to decide. It would likely require the court to consider whether the legislature, in creating a restructuring commission, has provided the commissioner with an acceptable process for recognizing and affirming Aboriginal and treaty rights and for developing a proposal which does not adversely affect the process of ongoing land claims. This legislative scheme, unlike that in Halfway River, is completely silent in respect to these subjects. In other words, the legislative scheme is silent on how the commission is to approach the accommodation of competing claims and uses – on the one hand, established Aboriginal rights and treaty rights, and, on the other hand, the government’s policy with respect to municipal restructuring. These, and other possible issues, illustrate that the constitutional question is both complex and difficult. [159] There is a further observation to be made arising from the fact that the cross-appeal raises what, in my view, is an important constitutional issue. The issue concerns the impact of a restructuring proposal made under s. 25.3 of the Municipal Act on Aboriginal and treaty rights affirmed by s. 35(1) of the Constitution Act, 1982. This issue may affect many persons in Ontario in addition to the respondents NAN and GFN and the appellant. There has been no finding of the constitutional facts required to resolve this issue. As Dickson J. stated in Northern Telecom Ltd. v. Communication Workers of Canada, [1980] 1 S.C.R. 115 at 139-140: I am inclined toward the view that, in the absence of the vital constitutional facts, this Court would be ill-advised to essay to resolve the constitutional issue which lurks in the question upon which leave to appeal has been granted. One must keep in mind that it is not merely the private interests of the two parties before the Court that are involved in a constitutional case. By definition, the interests of two levels of government are also engaged. In this case, the appellant did not apply to the Court, pursuant to Rule 17 of the Supreme Court Rules, for the purpose of having a constitutional question stated. If the appellant had intended to raise a question as to the constitutional applicability of the Canada Labour Code, then the obligation was upon the appellant to assure that the constitutional issue was properly raised. As no constitutional question was stated nor notice served upon the respective Attorneys General, the Court lacks the traditional procedural safeguards that would normally attend such a case and the benefit of interventions by the governments concerned. This view was followed in Stoney Creek Indian Band v. British Columbia (1999), 179 D.L.R. (4th) 57 (B.C.C.A.) in which the Court of Appeal declined to deal with a constitutional issue in the absence of a proper constitutional record from the court below. At p. 72 Southin J.A. stated: It is not, in my opinion, in the broad public interest with which this Court must always be concerned, that a profoundly important question of constitutional law should be decided without the vital facts, both those inter partes and constitutional. [160] It is likewise, not in the public interest for this court to deal with the constitutional issue raised by the cross- appeal in the absence of a proper constitutional record. As well, the record before us is silent in respect to whether NAN and GFN have served on the Attorney General of Canada and the Attorney General of Ontario the notice of a constitutional question required by s. 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. [161] This raises the question of how the court is to dispose of the cross-appeal. The matter could be referred back to the Divisional Court to make the required findings of fact, if it is able to do so in a summary manner on the basis of a paper record, and consider arguments on the constitutional question. However, I do not think this would be an appropriate disposition of the cross-appeal. As in Stoney Creek, I very much doubt that the Divisional Court would be able to make a finding of the constitutional facts on what is, in essence, a summary application. Moreover, more than two and a half years have passed since the commissioner released his Final Proposal and Order. It would work a serious injustice on the municipalities affected by the restructuring proposal, and their residents, if the matter were to be referred back to the Divisional Court for a determination of the constitutional issue. [162] As I am satisfied that this court is in no position to give a definitive answer to the constitutional question raised by the cross-appeal and that it would not be helpful to refer this question back to the Divisional Court for a re-hearing, I believe that the better course to follow is to dismiss the cross-appeal. I do so, however, without prejudice to NAN and GFN raising the constitutional issue in a subsequent proceeding, if so advised. CONCLUSION [163] For the foregoing reasons, I would allow the appeal and set aside the judgment of the Divisional Court quashing the commission’s Final Proposal and Order. The Crown is entitled to its costs of the hearing before the Divisional Court and this court from TCPL, NAN, GFN and LL58. The cross-appeal of NAN and GFN is dismissed with costs of the cross-appeal payable to the Crown. The commissioner is neither entitled to costs, nor responsible for the payment of costs. Released: April 5, 2000 “S. Borins J.A.” “I agree K.M. Weiler J.A.” “I agree S. T. Goudge J.A.”