SUPREME
COURT OF CANADA
Between:
Andrew
Keewatin Jr. and Joseph William Fobister, on their own behalf and on behalf of
all other members of Grassy Narrows First Nation
Appellants
and
Minister
of Natural Resources, Resolute FP Canada Inc. (formerly Abitibi-Consolidated
Inc.), Attorney General of Canada and Goldcorp Inc.
Respondents
And Between:
Leslie
Cameron, on his own behalf and on behalf of all other members of Wabauskang
First Nation
Appellant
and
Minister
of Natural Resources, Resolute FP Canada Inc. (formerly Abitibi-Consolidated
Inc.), Attorney General of Canada and Goldcorp Inc.
Respondents
- and -
Attorney
General of Manitoba, Attorney General of British Columbia, Attorney General for
Saskatchewan, Attorney General of Alberta, Grand Council of Treaty # 3, Blood
Tribe, Beaver Lake Cree Nation, Ermineskin Cree Nation, Siksika Nation,
Whitefish Lake First Nation # 128, Fort McKay First Nation, Te’mexw Treaty
Association, Ochiichagwe’Babigo’Ining First Nation, Ojibways of Onigaming First
Nation, Big Grassy First Nation and Naotkamegwanning First Nation, Métis Nation
of Ontario, Cowichan Tribes, represented by Chief William Charles Seymour, on
his own behalf and on behalf of the members of Cowichan Tribes, Lac Seul First
Nation, Sandy Lake First Nation and Assembly of First Nations/National Indian
Brotherhood
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Moldaver and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 55)
|
McLachlin C.J. (LeBel, Abella, Rothstein,
Cromwell, Moldaver and Wagner JJ. concurring)
|
grassy narrows first
nation v. ontario, 2014 SCC 48, [2014] 2
S.C.R. 447
Andrew Keewatin Jr. and Joseph William
Fobister,
on their own behalf and on behalf of all
other
members of the
Grassy Narrows First Nation Appellants
v.
Minister of Natural Resources, Resolute
FP
Canada Inc. (formerly Abitibi‑Consolidated
Inc.),
Attorney
General of Canada and Goldcorp Inc. Respondents
‑ and ‑
Leslie Cameron, on his own behalf and on behalf
of all other members of the Wabauskang
First Nation Appellant
v.
Minister of Natural Resources, Resolute
FP
Canada Inc. (formerly Abitibi‑Consolidated
Inc.),
Attorney
General of Canada and Goldcorp Inc. Respondents
and
Attorney General of Manitoba, Attorney
General of British
Columbia, Attorney General for
Saskatchewan, Attorney
General of Alberta, Grand Council of
Treaty # 3, Blood Tribe,
Beaver Lake Cree Nation, Ermineskin Cree
Nation, Siksika
Nation, Whitefish Lake First Nation # 128,
Fort McKay First
Nation, Te’mexw Treaty Association, Ochiichagwe’Babigo’Ining
First Nation, Ojibways of Onigaming
First Nation, Big Grassy
First Nation, Naotkamegwanning First
Nation, Métis Nation of
Ontario, Cowichan Tribes, represented by
Chief William Charles
Seymour, on his own behalf and on behalf
of the members of
the Cowichan Tribes, Lac Seul First
Nation, Sandy Lake First Nation
and Assembly
of First Nations/National Indian Brotherhood Interveners
Indexed as: Grassy Narrows First Nation v. Ontario (Natural Resources)
2014 SCC 48
File No.: 35379.
2014: May 15; 2014: July 11.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Moldaver and Wagner JJ.
on appeal from the court of appeal for ontario
Aboriginal
law — Treaty rights — Harvesting rights — Interpretation of taking‑up
clause — Certain lands subject to treaty annexed to Ontario after signature of
treaty between Ojibway and Canada — Whether province has authority to take up
tracts of that land so as to limit harvesting rights under treaty or whether it
requires federal approval to do so — Constitution Act, 1867, ss. 91(24) , 92(5) ,
92A , 109 — Constitution Act, 1982, s. 35 — Treaty No. 3.
In 1873, Treaty 3 was signed by
treaty commissioners acting on behalf of the Dominion of Canada and Ojibway
Chiefs from what is now Northwestern Ontario and Eastern Manitoba. The Ojibway
yielded ownership of their territory, except for certain lands reserved to
them. Among other things, they received in return the right to harvest the non‑reserve
lands surrendered by them until such time as they were “taken up” for
settlement, mining, lumbering, or other purposes by the Government of the
Dominion of Canada. At the time that Treaty 3 was signed, a portion of land
known as the Keewatin area was under the exclusive control of Canada. It was
annexed to Ontario in 1912 and since that time, Ontario has issued licences for
the development of those lands.
In
2005, the Grassy Narrows First Nation, descendents of the Ojibway signatories
of Treaty 3, commenced an action challenging a forestry licence issued by
Ontario to a large pulp and paper manufacturer and which authorized clear‑cut
forestry operations within the Keewatin area.
The
trial judge held that Ontario could not take up lands within
the Keewatin area so as to limit treaty harvesting rights without first
obtaining Canada’s approval. According to her, the taking‑up clause in
the treaty imposed a two‑step process involving federal approval for the
taking up of Treaty 3 lands added to Ontario in 1912.
The
Ontario Court of Appeal allowed the appeals brought before it. That court held
that s. 109 of the Constitution Act, 1867 gives Ontario beneficial
ownership of Crown lands within Ontario. That
provision, combined with provincial jurisdiction over the management and sale
of provincial public lands and the exclusive provincial power to make laws in
relation to natural resources, gives Ontario exclusive legislative authority to
manage and sell lands within the Keewatin area in accordance with Treaty 3 and
s. 35 of the Constitution Act, 1982 .
Held: The appeal should be dismissed.
The central question on this appeal is
whether Ontario has the power to take up lands in the Keewatin area under
Treaty 3 so as to limit the harvesting rights under the treaty, or whether this
is subject to Canada’s approval.
Ontario
and only Ontario has the power to take up lands under
Treaty 3. This is confirmed by constitutional provisions, the interpretation of
the treaty, and legislation dealing with Treaty 3 lands.
First,
although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. Both levels of government are
responsible for fulfilling the treaty promises when acting within the division
of powers under the Constitution. Sections 109 , 92(5) and 92A of the Constitution
Act, 1867 establish conclusively that Ontario holds the beneficial interest
in the Keewatin lands and has exclusive power to manage and sell those lands as
well as to make laws in relation to the resources on or under those lands.
Together, these provisions give Ontario the power to take up lands in the
Keewatin area under Treaty 3 for provincially regulated purposes such as
forestry. Further; s. 91(24) of that same Act does not give Canada the
authority to take up provincial land for exclusively provincial purposes.
Second,
nothing in the text or history of the negotiation of
Treaty 3 suggests that a two‑step process requiring federal supervision
or approval was intended. The text of the taking‑up clause supports the
view that the right to take up land rests with the level of government that has
jurisdiction under the Constitution. The reference in the treaty to Canada
merely reflects the fact that the lands at the time were in Canada, not
Ontario.
Lastly,
legislation subsequent to the signature of the treaty
and which dealt with Treaty 3 lands confirmed Ontario’s right to take up that
land by virtue of its control and beneficial ownership of the territory. It did
not amend the terms of Treaty 3.
Ontario’s
power to take up lands under Treaty 3 is not
unconditional. When a government — be it the federal or a provincial
government — exercises Crown power, the exercise of that power is burdened by
the Crown obligations toward the Aboriginal people in question. Here, Ontario
must exercise its powers in conformity with the honour of the Crown, and the
exercise of those powers is subject to the fiduciary duties that lie on the
Crown in dealing with Aboriginal interests. For Treaty 3 land to be taken up,
the harvesting rights of the Ojibway over the land must be respected. Any
taking up of land in the Keewatin area for forestry or other purposes must meet
the conditions set out by this Court in Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388. If the
taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in
relation to the territories over which they traditionally hunted, fished, and
trapped, a potential action for treaty infringement will arise.
Cases Cited
Referred
to: Haida Nation v. British Columbia (Minister of Forests), 2004
SCC 73, [2004] 3 S.C.R. 511; R. v. Horseman, [1990] 1 S.C.R. 901; St.
Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46; Dominion
of Canada v. Province of Ontario, [1910] A.C. 637; Smith v. The Queen, [1983] 1 S.C.R. 554; Mikisew
Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Delgamuukw v. British
Columbia, [1997] 3 S.C.R. 1010; R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Badger, [1996] 1 S.C.R. 771; Tsilhqot’in Nation
v. British Columbia,
2014 SCC 44, [2014] 2 S.C.R. 256.
Statutes and Regulations Cited
Act
for the settlement of certain questions between the Governments of Canada and
Ontario respecting Indian Lands (1891) (U.K.), 54 & 55 Vict., c. 5,
Sch., s. 1.
Act
for the settlement of questions between the Governments of Canada and Ontario respecting
Indian Lands (1891) (Ont.), 54 Vict., c. 3, Sch., s. 1.
Constitution Act, 1867, ss. 91(24) , 92A , 92(5) , 109 .
Constitution Act, 1982, s. 35 .
Ontario Boundaries Extension Act, S.C. 1912, c.
40, s. 2.
Treaties and Other International Instruments
Treaty No. 3 (1873).
APPEAL
from a judgment of the Ontario Court
of Appeal (Sharpe, Gillese and Juriansz JJ.A.), 2013
ONCA 158, 114 O.R. (3d) 401, 304 O.A.C. 250, [2013] 3 C.N.L.R. 281, [2013]
O.J. No. 1138 (QL), 2013 CarswellOnt 2910, setting aside a
decision of Sanderson J., 2011 ONSC 4801, [2012] 1
C.N.L.R. 13, [2011] O.J. No. 3907 (QL), 2011
CarswellOnt 8900. Appeal dismissed.
Robert J. M.
Janes and Elin R. Sigurdson, for the appellants Andrew
Keewatin Jr. and Joseph William Fobister, on their own behalf and on behalf of
all other members of the Grassy Narrows First Nation.
Bruce McIvor and Kathryn Buttery, for the appellant Leslie
Cameron, on his own behalf and on behalf of all other members of the Wabauskang
First Nation.
Michael R. Stephenson, Mark Crow and Christine Perruzza, for the respondent the
Minister of Natural Resources.
Christopher J.
Matthews, for
the respondent Resolute FP Canada Inc. (formerly Abitibi‑Consolidated
Inc.).
Mark R.
Kindrachuk, Q.C., and Mitchell R. Taylor, Q.C., for the respondent the Attorney General of Canada.
Thomas F. Isaac, William J. Burden, Linda
I. Knol and Brian P. Dominique, for the respondent Goldcorp
Inc.
Heather Leonoff, Q.C., for the intervener the Attorney General of Manitoba.
Paul E. Yearwood, for the intervener the Attorney
General of British Columbia.
Richard James
Fyfe and Macrina Badger, for the intervener the Attorney
General for Saskatchewan.
Douglas B.
Titosky, for
the intervener the Attorney General of Alberta.
Zachary Davis, Peter W. Hutchins and Jessica
Labranche,
for the intervener the Grand Council of Treaty # 3.
Meaghan M. Conroy and Abram B. Averbach, for the interveners the Blood
Tribe, the Beaver Lake Cree Nation, the Ermineskin Cree Nation, the Siksika
Nation and the Whitefish Lake First Nation # 128.
Written
submissions only by Karin Buss and Kirk Lambrecht, Q.C., for the intervener the Fort
McKay First Nation.
Karey Brooks, for the intervener the Te’mexw
Treaty Association.
Donald R.
Colborne,
for the interveners the Ochiichagwe’Babigo’Ining First Nation, the Ojibways of
Onigaming First Nation, the Big Grassy First Nation and the Naotkamegwanning
First Nation.
Jason Madden and Nuri G. Frame, for the intervener the Métis
Nation of Ontario.
David M. Robbins, Dominique Nouvet and Heather Mahony, for
the intervener the Cowichan Tribes, represented by Chief William Charles
Seymour, on his own behalf and on behalf of the members of the Cowichan Tribes.
David G. Leitch, for the interveners the Lac
Seul First Nation and the Sandy Lake First Nation.
Joseph J. Arvay, Q.C., and Catherine
J. Boies Parker, for the intervener the Assembly of First Nations/National Indian
Brotherhood.
The
judgment of the Court was delivered by
The Chief Justice —
I.
Overview
[1]
In the early 1870s, Canada was a young country
looking to promote Western expansion and Confederation. Settlers travelled west
along an immigrant travel route called the Dawson Route, and British Columbia
agreed to join Confederation on the condition that Canada build a
transcontinental railway. But the immigrant travel route and the prospective
railway to the west ran through traditional Ojibway land in what is now
Northwestern Ontario and Eastern Manitoba. Canada was concerned about the
security of immigrant travellers and surveyors preparing for the construction
of the Canadian Pacific Railway (“CPR”), and feared that it may need to station
troops in the area. Securing a safe route through the Ojibway lands was
critical for the addition of British Columbia to Confederation and to the
development of the West. It was against this historical backdrop that Treaty 3,
which is at the heart of this case, was negotiated.
[2]
In 1873, Treaty 3 was signed by treaty
commissioners acting on behalf of the Dominion of Canada and Chiefs of the
Ojibway. The Ojibway yielded ownership of their territory, except for certain
lands reserved to them. In return, the Ojibway received annuity payments,
goods, and the right to harvest the non-reserve lands surrendered by them until
such time as they were “taken up” for settlement, mining, lumbering, or other
purposes by the Government of the Dominion of Canada.
[3]
The Treaty 3 lands include the Keewatin area. At
the time Treaty 3 was concluded, the Keewatin area was under the exclusive
control of Canada. In 1912, it was annexed to Ontario through The Ontario
Boundaries Extension Act, S.C. 1912, c. 40 (“1912 Legislation”), and since
that time, Ontario has issued licences for the development of lands in the
Keewatin area. In 2005, the Grassy Narrows First Nation, descendents of the
Ojibway signatories of Treaty 3, commenced an action challenging a forestry
licence for lands that fell within the Keewatin area. The legal issue in this
case is whether Ontario can “take up” lands in the Keewatin area under Treaty 3
so as to limit the harvesting rights under the treaty, or whether it needs
federal authorization to do so.
[4]
I conclude that Ontario has the authority to
take up lands in the Keewatin area so as to limit the harvesting rights set out
in Treaty 3. By virtue of ss. 109 , 92A , and 92(5) of the Constitution Act,
1867 , Ontario alone has the ability to take up Treaty 3 land and regulate
it in accordance with the treaty and its obligations under s. 35 of the Constitution
Act, 1982 . A two-step process involving federal approval for provincial
taking up was not contemplated by Treaty 3.
II.
History of Treaty 3
A.
Treaty 3 Territory
[5]
The Treaty 3 territory covers approximately
55,000 sq. mi. in what is now Northwestern Ontario and Eastern Manitoba. In
1873, Canada claimed ownership over all the Treaty 3 lands. The Keewatin area
was unquestionably under Canada’s jurisdiction at that time, but the ownership
of the rest of the Treaty 3 territory was disputed with Ontario. Since 1912,
all of the Treaty 3 territory, except for a small portion in Manitoba, has been
within the borders of Ontario. This appeal only concerns the Keewatin area.
B.
Treaty Negotiations
[6]
In 1868, Canada needed to complete a treaty with
the Ojibway in order to fulfill its promise to build a transcontinental railway
to the west and to establish an immigrant travel route across the Treaty 3
lands.
[7]
Treaty negotiations were attempted in 1871 and
1872, but failed. In 1873, intent on securing agreement, Canada appointed three
new treaty commissioners: Alexander Morris, a founder of Confederation and the
Lieutenant Governor of Manitoba, Joseph Provencher, a federal Indian agent, and
Simon Dawson, who supervised the construction of the Dawson Route.
[8]
The trial judge found that the Ojibway Chiefs
who were key players in the negotiation of Treaty 3 were in no rush to make a
deal. They were under no immediate threat, as settlers were only passing
through their territory, not settling on it. They were only prepared to
cooperate if they could retain their way of life, particularly their
traditional hunting, fishing and trapping activities.
[9]
The negotiations lasted from October 1 to
October 3, 1873. There are several historical accounts of the negotiations
leading to the conclusion of the treaty: Morris’s official report on the making
of the treaty, a record of discussions published in The Manitoban
newspaper, handwritten notes prepared by Dawson during the negotiations, the
notes taken on behalf of the Ojibway Chiefs by a Métis hired by them and a
record of negotiations published in The Manitoba Free Press.
[10]
On October 3, 1873, the parties signed Treaty 3.
The Ojibway ceded the Treaty 3 territory to Canada in return for reserves,
annuities, and goods. The treaty also provided that the Ojibway would retain
harvesting rights on the non-reserve land within the Treaty 3 territory until
the land was “taken up”.
C.
The Harvesting Rights and the Taking-Up Clause
[11]
The harvesting rights were set out in the text
of the treaty as follows (the “taking-up clause”):
. . . they,
the said Indians, shall have [the] right to pursue their avocations of hunting
and fishing throughout the [said] tract surrendered as hereinbefore described .
. . and saving and excepting such tracts as may, from time to time, be required
or taken up for settlement, mining, lumbering or other purposes by Her said
Government of the Dominion of Canada, or by any of the subjects thereof duly
authorized therefor by the said Government. [p. 6]
[12]
At the Court of Appeal, the parties disagreed
about the trial judge’s interpretation of the scope of the taking-up clause. It
was suggested by Ontario and Canada that the trial judge interpreted the treaty
so as to restrict the exercise of the taking-up clause to the Dawson Route and
the CPR line such that other areas within the Treaty 3 territory could not be
“taken up”. The Court of Appeal rejected this interpretation of the trial
judge’s findings, concluding that when her reasons are read as a whole, the
trial judge found that the taking-up clause permitted the taking up of lands
throughout the entire Treaty 3 territory, subject only to the legal limits
imposed by the honour of the Crown and s. 35 of the Constitution Act, 1982 .
The scope of the taking-up power in Treaty 3 is not at issue in this case, and
I agree with the Court of Appeal’s reading of the trial judge’s reasons.
D.
Boundary Dispute
[13]
Treaty 3 was negotiated amidst a dispute between Ontario and Canada over
Ontario’s western and northern boundaries. Canada’s position was that all the
Treaty 3 lands were under the control of the Dominion of Canada, while Ontario
took the position that its boundaries extended westward to include much of the
Treaty 3 lands. The lands that were the object of this dispute are referred to
as the “disputed territory”. The Keewatin area was not part of this dispute; it
was unquestionably under the control of Canada at the time Treaty 3 was
negotiated and signed. However, the boundary dispute, and the subsequent
legislation that settled the dispute, nonetheless provide insight into the
parties’ understanding of the taking-up clause in Treaty 3.
[14]
In 1874, Canada and Ontario reached a provisional boundary agreement.
Under this agreement, Ontario would grant patents and licences for the lands to
the east and south of the provisional boundary, while Canada would do so for
the lands west and north of the boundary. Ontario’s position in the boundary
dispute was accepted by a panel of arbitrators in August 1878. The disputed
territory was within Ontario’s borders. This ruling was endorsed by the
Judicial Committee of the Privy Council in 1884, and confirmed in reciprocal
legislation in 1891: An Act for the settlement of certain questions between
the Governments of Canada and Ontario respecting Indian Lands (1891)
(U.K.), 54 & 55 Vict., c. 5; An Act for the settlement of questions
between the Governments of Canada and Ontario respecting Indian Lands
(1891) (Ont.), 54 Vict., c. 3 (the “1891 Legislation”).
[15]
The 1891 Legislation incorporated a draft agreement between Canada and
Ontario that was ultimately executed in 1894 (the “1894 Agreement”). Article 1
of the 1894 Agreement provided that as the disputed territory belonged to
Ontario, “the rights of hunting and fishing by the Indians throughout the tract
surrendered, not including the reserves to be made thereunder, do not continue
with reference to any tracts which have been, or from time to time may be,
required or taken up for settlement, mining, lumbering or other purposes by the
Government of Ontario” (Schedule to 1891 Legislation (U.K.)). In other words,
Ontario was responsible for the “taking up” of Treaty 3 lands within its
boundaries.
E.
1912 Transfer of Keewatin
[16]
As noted above, the Keewatin area was not part of the boundary dispute
between Canada and Ontario. At the time Treaty 3 was concluded, it was part of
Canada. There was no suggestion that Ontario had any interest in the Keewatin
area at that time.
[17]
The 1912 Legislation extended Ontario’s borders to include the
Keewatin area.
III.
Judicial History
A.
The Claim
[18]
In 1997, Ontario’s Minister of Natural Resources
issued a licence to Abitibi-Consolidated Inc. (now known as Resolute FP Canada
Inc.), a large pulp and paper manufacturer, to carry out clear-cut forestry
operations on Crown lands situated within the Keewatin area. In 2005, the
Grassy Narrows First Nation, descendents of the Ojibway signatories of Treaty
3, launched an action to set aside the forestry licence on the basis that it
violated their Treaty 3 harvesting rights.
[19]
In 2006, Spies J. made a case management order
dividing the trial into two phases. The first phase consisted of two threshold
questions: (1) Does Ontario have the authority to “take up” tracts of land
within the Keewatin area so as to limit Treaty 3 harvesting rights? and (2) If
the answer to the first question is no, does Ontario have the authority under
the Constitution Act, 1867 to justifiably infringe the appellants’
treaty rights?
[20]
The second phase of the trial has not yet commenced.
B.
Judgments Below
[21]
In the first phase of the trial, Sanderson J.
concluded that the answer to both threshold questions was “no” (2011 ONSC 4801,
[2012] 1 C.N.L.R. 13). First, she found that Ontario could not take up lands
within the Keewatin area so as to limit harvesting rights without first
obtaining Canada’s approval. The taking-up clause imposed a two-step process
involving federal approval for the taking up of Treaty 3 lands, and neither the
1891 nor the 1912 Legislation altered this process with respect to the Keewatin
area. The trial judge then proceeded to answer the second question, concluding
that the doctrine of interjurisdictional immunity prevents provinces from
infringing treaty rights, even if the infringement can be justified.
[22]
The Ontario Court of Appeal allowed the appeals
of Ontario, Canada and Resolute FP Canada Inc. (“Resolute”) (2013 ONCA 158, 114
O.R. (3d) 401). The court held that the trial judge erred in concluding that
Ontario requires Canada’s approval to take up the lands in the Keewatin area.
Section 109 of the Constitution Act, 1867 gives Ontario beneficial
ownership of Crown lands within Ontario. That provision, combined with
provincial jurisdiction over the management and sale of provincial public lands
and the exclusive provincial power to make laws in relation to natural
resources (ss. 92(5) and 92A), gives Ontario exclusive legislative authority to
manage and sell lands within the Keewatin area in accordance with Treaty 3 and
s. 35 of the Constitution Act, 1982 . As the answer to the first question
was “yes”, the Court of Appeal did not consider the second question of whether
interjurisdictional immunity applies to provincial infringements of treaty
rights.
IV.
Parties and Interveners on Appeal
[23]
On appeal, there are 2 appellants, 4
respondents, and 13 interveners.
[24]
The appellants are the Grassy Narrows First
Nation, descendants of the Ojibway, and the Wabauskang First Nation, whose
traditional territory includes lands within the Keewatin area.
[25]
The first two respondents are the Attorney
General of Canada and the Ontario Minister of Natural Resources. The third
respondent is Resolute, a company that owns and operates a currently idle paper
mill on land subject to Treaty 3, but not in the Keewatin area. Resolute was a
defendant in this litigation because it was granted the forestry licence that
gave rise to this appeal. The final respondent is Goldcorp Inc., a gold
producer with a mine situated in the Keewatin area and whose operations rely in
part on permits from the provincial Minister of Natural Resources. Goldcorp was
granted status to intervene as a party at the Court of Appeal.
[26]
The Attorneys General of Manitoba, British
Columbia, Saskatchewan, and Alberta intervene in support of the respondents.
The appellants are supported by the following interveners: the Grand Council of
Treaty # 3; the Blood Tribe, the Beaver Lake Cree Nation, the Ermineskin Cree
Nation, the Siksika Nation, and the Whitefish Lake First Nation # 128,
intervening together; the Fort McKay First Nation; the Te’mexw Treaty
Association; the Ochiichagwe’Babigo’Ining First Nation, the Ojibways of
Onigaming First Nation, the Big Grassy First Nation, and the Naotkamegwanning
First Nation, intervening together; the Métis Nation of Ontario; the Cowichan
Tribes; the Lac Seul and Sandy Lake First Nations; and the Assembly of First
Nations/National Indian Brotherhood.
V.
Issues
[27]
This appeal raises the following issues:
1.
Does Ontario have the authority under Treaty 3 to “take up” tracts of
land in the Keewatin area?
2. Does
the doctrine of interjurisdictional immunity preclude
Ontario from justifying infringement of Treaty 3 rights?
VI.
Analysis
A.
The Power to Take up Lands Under Treaty 3
[28]
The central question on this appeal, simply put,
is whether the Province of Ontario has the power to take up lands in the
Keewatin area under Treaty 3, or whether this must be done by or in cooperation
with the Government of Canada. Ontario’s power to take up other Treaty 3 lands
is not at issue on this appeal.
[29]
The Court of Appeal held that the Province of
Ontario has the power to take up the lands. The trial judge, by contrast, held
that this could be done only by a two-step procedure involving approval by both
the federal and provincial governments.
[30]
I agree with the Ontario Court of Appeal that
Ontario and only Ontario has the power to take up lands under Treaty 3. This
conclusion rests on Canada’s constitutional provisions, the interpretation of
Treaty 3, and legislation dealing with Treaty 3 lands. First, although Treaty 3
was negotiated by the federal government, it is an agreement between the
Ojibway and the Crown. The level of government that exercises or performs the
rights and obligations under the treaty is determined by the division of powers
in the Constitution. Ontario has exclusive authority under the Constitution
Act, 1867 to take up provincial lands for forestry, mining, settlement, and
other exclusively provincial matters. Federal supervision is not required by
the Constitution. Second, nothing in the text or history of the negotiation of
Treaty 3 suggests that a two-step process requiring federal supervision or
approval was intended. Third, legislation dealing with Treaty 3 land confirms
that no two-step process was contemplated. I elaborate on each of these points
below.
(1)
Constitutional Provisions
[31]
Once the Keewatin lands came within Ontario’s
borders in 1912, s. 109 of the Constitution Act, 1867 became
applicable. Section 109 provides:
109. All Lands, Mines, Minerals, and Royalties belonging to the several
Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums
then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong
to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in
which the same are situate or arise, subject to any Trusts existing in respect
thereof, and to any Interest other than that of the Province in the same.
Section 109 establishes
conclusively that Ontario holds the beneficial interest in the Keewatin lands
and the resources on or under those lands. In addition, s. 92(5) of the Constitution
Act, 1867 gives the Province exclusive power over the “Management and Sale
of the Public Lands belonging to the Province and of the Timber and Wood
thereon” and s. 92A gives the Province exclusive power to make laws in relation
to non-renewable natural resources, forestry resources, and electrical energy.
Together, these provisions give Ontario the power to take up lands in the
Keewatin area under Treaty 3 for provincially regulated purposes, such as
forestry.
[32]
The view that only Canada can take up or
authorize the taking up of lands under Treaty 3 rests on a misconception of the
legal role of the Crown in the treaty context. It is true that Treaty 3 was
negotiated with the Crown in right of Canada. But that does not mean that the
Crown in right of Ontario is not bound by and empowered to act with respect to
the treaty.
[33]
The theory of the trial judge, supported by the
appellants, was that since the treaty was made with the federal Crown, only the
federal Crown has obligations and powers over matters covered by the treaty.
But this reasoning does not apply in the treaty context. For example, this
Court has held that Crown obligations to First Nations such as the duty to
consult are owed by both levels of government (Haida Nation v. British
Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511) and that
a change in the level of government responsible for regulating hunting rights
did not constitute a modification of a treaty (R. v. Horseman, [1990] 1
S.C.R. 901). Furthermore, in St. Catherine’s Milling and Lumber Co. v. The
Queen (1888), 14 App. Cas. 46 (P.C.), Lord Watson concluded that Treaty 3
purported to be “from beginning to end a transaction between the Indians and
the Crown”, not an agreement between the Government of Canada and the Ojibway
people (p. 60). In the same vein,
it is abundantly clear that
the commissioners who represented Her Majesty, whilst they had full authority
to accept a surrender to the Crown, had neither authority nor power to take
away from Ontario the interest which had been assigned to that province by the
Imperial Statute of 1867. [ibid.]
[34]
Similar views were expressed in Dominion of
Canada v. Province of Ontario, [1910] A.C. 637 (P.C.), at p. 645, and Smith
v. The Queen, [1983] 1 S.C.R. 554, at pp. 562-65.
[35]
The promises made in Treaty 3 were promises of
the Crown, not those of Canada. Both levels of government are responsible for
fulfilling these promises when acting within the division of powers under the Constitution
Act, 1867 . Thus, when the lands covered by the treaty were determined to
belong to the Province of Ontario, the Province became responsible for their
governance with respect to matters falling under its jurisdiction by virtue of
ss. 109 , 92(5) and 92A of the Constitution Act, 1867 , subject to the
terms of the treaty. It follows that the Province is entitled to take up lands
under the treaty for forestry purposes.
[36]
The appellants further argue that s. 91(24) of
the Constitution Act, 1867 grants Canada a residual and continuing role
in respect of the taking up of Treaty 3 lands. Section 91(24) provides that
Canada has jurisdiction over “Indians, and Lands reserved for the Indians”.
Thus, the appellants submit that the trial judge’s two-step process is merely a
restatement of the double aspect doctrine: to the extent that any taking up
displaces or limits the federally promised treaty rights, both aspects of the
land or resource must be addressed — the provincial aspect of the land qua
proprietary rights and the federal aspect of the land as subject to a treaty
right (Grassy Narrows’ factum, at para. 66).
[37]
Section 91(24) does not give Canada the
authority to take up provincial land for exclusively provincial purposes, such
as forestry, mining, or settlement. Thus, s. 91(24) does not require Ontario to
obtain federal approval before it can take up land under Treaty 3. While s.
91(24) allows the federal government to enact legislation dealing with Indians
and lands reserved for Indians that may have incidental effects on provincial
land, the applicability of provincial legislation that affects treaty rights
through the taking up of land is determined by Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388,
and by s. 35 of the Constitution Act, 1982 .
(2)
Interpretation of Treaty 3
[38]
The text of the taking-up clause supports the
view that the right to take up land rests with the level of government that has
jurisdiction under the Constitution. The taking-up clause provides that the
Ojibway will have continuing harvesting rights throughout the Treaty 3 lands
“saving and excepting such tracts as may, from time to time, be required or
taken up for settlement, mining, lumbering or other purposes by Her said
Government of the Dominion of Canada, or by any of the subjects thereof duly
authorized therefor by the said Government” (p. 6).
[39]
The clause does not contemplate a two-step
process involving both levels of government. It only refers to the Government
of the Dominion of Canada. The treaty, as discussed, was between the Crown — a
concept that includes all government power — and the Ojibway. The reference to
Canada reflects the fact that the lands at the time were in Canada, not
Ontario. Canada and Canada alone had beneficial ownership of the lands and
therefore jurisdiction to take up the lands. This said, Treaty 3 was
negotiated against the backdrop of a boundary dispute between Ontario and
Canada. The possibility of provincial acquisition of the lands was patent.
It follows that if the drafters of the treaty wanted Canada to have a
continuing supervisory role in taking up lands under the treaty, the treaty
would have said this.
[40]
Before this Court, the appellants rely on the
trial judge’s factual findings that the treaty commissioners contemplated and
intended a two-step process involving federal approval and supervision. In my
view, the Ontario Court of Appeal was correct in concluding that the trial
judge’s factual findings amounted to overriding and palpable errors (paras.
156-72). First, there is no evidence that Morris communicated to the Ojibway
any intention to require a two-step process, or that he intentionally drafted
the taking-up clause to require such a process — assuming that Morris’s
subjective intention is even relevant here. Second, there is no evidence that
the Ojibway intended or insisted upon a two-step process. Third, a provisional
boundary agreement reached by Canada and Ontario in 1874 to deal with the
administration of the treaty lands pending the settlement of the boundary
dispute reflects an understanding that the right to take up lands attached to
the level of government that enjoyed beneficial ownership of those lands.
Indeed, the agreement provided that if the provisional boundary was
subsequently determined to be wrong, the government found to have jurisdiction
over the lands would ratify any patents that had been issued by the other
government. Lastly, while not determinative, I would note that Ontario has
exercised the power to take up lands for a period of over 100 years, without
any objection by the Ojibway. This
also suggests that federal approval was never considered part of the treaty.
(3)
Legislation Dealing With Treaty 3 Lands
[41]
This result is also consistent with the way
subsequent governments dealt with the right to take up land under Treaty 3.
The 1894 Agreement between Canada and Ontario, incorporated in the 1891
Legislation, provided that the disputed territory belonged to Ontario and
confirmed that as such Ontario would have the power to take up that land under
the treaty. The relevant provision says:
1.
With respect to the tracts to be, from time to time, taken up for settlement,
mining, lumbering or other purposes and to the regulations required in that
behalf, as in the said treaty mentioned, it is hereby conceded and declared
that, as the Crown lands in the surrendered tract have been decided to belong
to the Province of Ontario, or to Her Majesty in right of the said Province,
the rights of hunting and fishing by the Indians throughout the tract
surrendered, not including the reserves to be made thereunder, do not continue
with reference to any tracts which have been, or from time to time may be,
required or taken up for settlement, mining, lumbering or other purposes by the
Government of Ontario or persons duly authorized by the said Government of
Ontario; and that the concurrence of the Province of Ontario is required in the
selection of the said reserves.
[42]
This expressly provides that Ontario has the
right to take up the lands. Again, there is no mention of any continuing
supervisory role for Canada in the process, or any two-step federal/provincial
process. I agree with the Court of Appeal that the 1894 Agreement confirmed
Ontario’s right to take up Treaty 3 land by virtue of its control and
beneficial ownership of the territory. It did not amend Treaty 3.
[43]
The 1894 Agreement covered the disputed
territory, not the Keewatin lands. In 1912, The Ontario Boundaries
Extension Act extended Ontario’s boundaries to include the Keewatin
territory. The 1912 Legislation included the following terms and
conditions:
2.
. . .
(a)
That the province of Ontario will recognize the rights of the Indian
inhabitants in the territory above described to the same extent, and will
obtain surrenders of such rights in the same manner, as the Government of
Canada has heretofore recognized such rights and has obtained surrender
thereof, and the said province shall bear and satisfy all charges and
expenditure in connection with or arising out of such surrenders;
(b)
That no such surrender shall be made or obtained except with the approval of the
Governor in Council;
(c)
That the trusteeship of the Indians in the said territory, and the management
of any lands now or hereafter reserved for their use, shall remain in the
Government of Canada subject to the control of Parliament.
[44]
The 1912 transfer of lands confirmed that
Ontario would stand in Canada’s shoes with respect to the rights of the Indians
in those lands (s. 2(a)). The reference to the “rights of the Indian
inhabitants” in s. 2(a) includes the harvesting rights under Treaty 3.
As the Court of Appeal said, “[t]his condition contemplates, therefore, that
Ontario could take up Keewatin lands under the treaty only to the same extent
that Canada could validly do so prior to 1912” (para. 198). Section 2(b)
provided that Canada’s approval was required for the surrender of
Aboriginal rights — not the taking up of land pursuant to the taking-up clause.
The evidence at trial was that the reference to the surrender of rights is a
reference to lands not ceded by treaty (para. 1082). Finally, s. 2(c) provided
that the trusteeship of Indians and the management of reserved lands
would remain with the Government of Canada, subject to the control of
Parliament.
[45]
In my view, this legislation means that the
federal government would remain responsible for Indians and lands reserved to
Indians under its power over Indians pursuant to s. 91(24) of the Constitution
Act, 1867 , but that the taking up of other lands within the territory would
be for the Province of Ontario alone. Nothing in the legislation contemplates a
two-step process involving both levels of government.
[46]
This legislation did not constitute a transfer
of Crown rights and obligations by Canada to Ontario, as the appellants argue,
but a transfer of beneficial interest in land. Having acquired the land,
Ontario’s constitutional power over lands within its boundaries entitled it to
take up lands, subject to the Crown’s duties to the Aboriginal peoples who had
interests in the land.
[47]
It is argued that the 1912 Legislation is not as
explicit as the 1894 Agreement with respect to Ontario’s power to take up lands
under the treaty. While that may be true, there was no need for the 1912
Legislation to use the same language as the 1894 Agreement. I have concluded
that the 1894 Agreement confirmed Ontario’s rights at the time the
parties entered into Treaty 3, while the 1912 Legislation transferred
beneficial ownership of the Keewatin lands to Ontario along with the
responsibilities which attached to those lands. Moreover, as discussed above,
the wording of s. 2(a) in the 1912 Legislation constitutes an explicit
acknowledgement that Ontario could henceforward do whatever Canada had done
before it, i.e. take up lands. The fact that the words “taking up” were not
used in the 1912 Legislation does not diminish the import of s. 2(a).
[48]
Nor did transferring to Ontario the right to
take up lands within the Keewatin area amend Treaty 3, as the appellants
suggest. The treaty allowed for the taking up of land by the beneficial owner
of the land — after 1912, this was Ontario. Changing the beneficial owner of
the land and the emanation of the Crown responsible for dealing with the lands
conveyed did not amend the treaty.
[49]
The 1912 Legislation altered which level of
government would have authority in terms of taking up the land. It did not
modify the treaty or change its partners. As this Court stated with respect to
Treaty 8 in Horseman, at pp. 935-36:
The Transfer Agreement of 1930 changed
the governmental authority which might regulate aspects of hunting in the
interests of conservation. This change of governmental authority did not
contradict the spirit of the original Agreement . . . . [Emphasis added.]
(4)
Conclusion With Respect to the Power to Take Up
Lands
[50]
I conclude that as a result of ss. 109 , 92(5)
and 92A of the Constitution Act, 1867 , Ontario and only Ontario has the
power to take up lands under Treaty 3. This is confirmed by the text of Treaty
3 and legislation dealing with Treaty 3 lands. However, this power is not
unconditional. In exercising its jurisdiction over Treaty 3 lands, the Province
of Ontario is bound by the duties attendant on the Crown. It must exercise its
powers in conformity with the honour of the Crown, and is subject to the
fiduciary duties that lie on the Crown in dealing with Aboriginal interests.
These duties bind the Crown. When a government — be it the
federal or a provincial government — exercises Crown power, the exercise of
that power is burdened by the Crown obligations toward the Aboriginal people in
question.
[51]
These duties mean that for land to be taken up
under Treaty 3, the harvesting rights of the Ojibway over the land must be
respected. Any taking up of the land for forestry or other purposes must meet
the conditions set out by this Court in Mikisew. As explained by the
Ontario Court of Appeal (at paras. 206-12), the Crown’s right to take up lands
under Treaty 3 is subject to its duty to consult and, if appropriate,
accommodate First Nations’ interests beforehand (Mikisew, at para. 56).
This duty is grounded in the honour of the Crown and binds the Province of
Ontario in the exercise of the Crown’s powers.
[52]
Where a province intends to take up lands for
the purposes of a project within its jurisdiction, the Crown must inform itself
of the impact the project will have on the exercise by the Ojibway of their
rights to hunt, fish and trap, and communicate its findings to them. It must
then deal with the Ojibway in good faith, and with the intention of
substantially addressing their concerns (Mikisew, at para. 55; Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010, at para. 168). The adverse
impact of the Crown’s project (and the extent of the duty to consult and
accommodate) is a matter of degree, but consultation cannot exclude
accommodation at the outset. Not every taking up will constitute an
infringement of the harvesting rights set out in Treaty 3. This said, if the
taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in
relation to the territories over which they traditionally hunted, fished, and
trapped, a potential action for treaty infringement will arise (Mikisew,
at para. 48).
B.
Does the Doctrine of Interjurisdictional
Immunity Preclude Ontario From Justifying Infringement of Treaty 3 Rights?
[53]
I have concluded that Ontario has the power to
take up lands in the Keewatin area under Treaty 3, without federal approval or
supervision. Provided it does so in a manner that respects the requirements set
out in Mikisew, doing this does not breach Treaty 3 harvesting rights.
If Ontario’s taking up of Keewatin lands amounts to an infringement of the
treaty, the Sparrow/Badger analysis under s. 35 of the Constitution
Act, 1982 will determine whether the infringement is justified (R. v.
Sparrow, [1990] 1 S.C.R. 1075; R. v. Badger, [1996] 1 S.C.R. 771).
The doctrine of interjurisdictional immunity does not preclude the Province
from justifiably infringing treaty rights (Tsilhqot’in Nation v. British
Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256). While it is unnecessary to
consider this issue, this Court’s decision in Tsilhqot’in Nation is a
full answer.
VII. Conclusion
[54]
I would dismiss this appeal.
[55]
Prior to this appeal, the Court ordered Ontario
and Canada to pay the appellant the Grassy Narrows First Nation advance costs of
this appeal. For that reason, there is no need for a further costs award with
respect to the Grassy Narrows First Nation. However, the appellant the
Wabauskang First Nation also seeks its costs of this appeal. With the consent
of Ontario and in light of the fact that Canada does not oppose such an order,
costs of the appeal are now also awarded to the Wabauskang First Nation, on the
same basis as the costs order earlier granted to the Grassy Narrows First
Nation.
APPENDIX A
[Treaty 3 taking-up clause]
Her Majesty further agrees with
Her said Indians that they, the said Indians, shall have [the] right to pursue their
avocations of hunting and fishing throughout the tract surrendered as
hereinbefore described, subject to such regulations as may from time to time be
made by Her Government of Her Dominion of Canada, and saving and excepting such
tracts as may, from time to time, be required or taken up for settlement,
mining, lumbering or other purposes by Her said Government of the Dominion of
Canada, or by any of the subjects thereof duly authorized therefor by the said
Government.
Constitution Act, 1867
92. [Subjects of exclusive
Provincial Legislation] In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of Subjects next
hereinafter enumerated; that is to say,
. . .
5. The Management
and Sale of the Public Lands belonging to the Province and of the Timber and
Wood thereon.
. . .
92A. (1) [Laws respecting
non-renewable natural resources, forestry resources and electrical energy] In
each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable
natural resources in the province;
(b) development, conservation and
management of non-renewable natural resources and forestry resources in the
province, including laws in relation to the rate of primary production
therefrom; and
(c) development, conservation and
management of sites and facilities in the province for the generation and
production of electrical energy.
(2) [Export from provinces of
resources] In each province, the legislature may make laws in relation to the
export from the province to another part of Canada of the primary production
from non-renewable natural resources and forestry resources in the province and
the production from facilities in the province for the generation of electrical
energy, but such laws may not authorize or provide for discrimination in prices
or in supplies exported to another part of Canada.
(3) [Authority of Parliament]
Nothing in subsection (2) derogates from the authority of Parliament to enact
laws in relation to the matters referred to in that subsection and, where such
a law of Parliament and a law of a province conflict, the law of Parliament
prevails to the extent of the conflict.
(4) [Taxation of resources] In
each province, the legislature may make laws in relation to the raising of
money by any mode or system of taxation in respect of
(a) non-renewable natural resources
and forestry resources in the province and the primary production therefrom,
and
(b) sites and facilities in the
province for the generation of electrical energy and the production therefrom,
whether or not such production is exported
in whole or in part from the province, but such laws may not authorize or
provide for taxation that differentiates between production exported to another
part of Canada and production not exported from the province.
(5) [“Primary production”] The
expression “primary production” has the meaning assigned by the Sixth Schedule.
(6) [Existing powers or rights]
Nothing in subsections (1) to (5) derogates from any powers or rights that a
legislature or government of a province had immediately before the coming into
force of this section.
. . .
109. [Property in Lands,
Mines, etc.] All Lands, Mines, Minerals, and Royalties belonging to the
several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and
all Sums then due or payable for such Lands, Mines, Minerals, or Royalties,
shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New
Brunswick in which the same are situate or arise, subject to any Trusts
existing in respect thereof, and to any Interest other than that of the
Province in the same.
Constitution Act, 1982
35. (1) [Recognition of existing aboriginal and
treaty rights] The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed.
(2) [Definition
of “aboriginal peoples of Canada”] In this Act, “aboriginal peoples of Canada”
includes the Indian, Inuit and Métis peoples of Canada.
(3) [Land claims agreements] For greater certainty, in subsection (1) “treaty
rights” includes rights that now exist by way of land claims agreements or may
be so acquired.
(4) [Aboriginal and treaty rights are guaranteed equally to both sexes]
Notwithstanding any other provision of this Act, the aboriginal and treaty
rights referred to in subsection (1) are guaranteed equally to male and female
persons.
Act for the settlement of
certain questions between the Governments of Canada and Ontario respecting
Indian Lands (1891) (U.K.), 54 & 55 Vict., c.
5, Sch. [1894 Agreement]
1. With respect
to the tracts to be, from time to time, taken up for settlement, mining,
lumbering or other purposes and to the regulations required in that behalf, as
in the said treaty mentioned, it is hereby conceded and declared that, as the
Crown lands in the surrendered tract have been decided to belong to the
Province of Ontario, or to Her Majesty in right of the said Province, the
rights of hunting and fishing by the Indians throughout the tract surrendered,
not including the reserves to be made thereunder, do not continue with
reference to any tracts which have been, or from time to time may be, required
or taken up for settlement, mining, lumbering or other purposes by the
Government of Ontario or persons duly authorized by the said Government of
Ontario; and that the concurrence of the Province of Ontario is required in the
selection of the said reserves.
Ontario
Boundaries Extension Act, S.C. 1912, c. 40 [1912
Legislation]
2. . . .
(a) That
the province of Ontario will recognize the rights of the Indian inhabitants in
the territory above described to the same extent, and
will obtain surrenders of such rights in the same manner, as the Government of
Canada has heretofore recognized such rights and has obtained surrender
thereof, and the said province shall bear and satisfy all charges and
expenditure in connection with or arising out of such surrenders;
(b) That
no such surrender shall be made or obtained except with
the approval of the Governor in Council;
(c) That
the trusteeship of the Indians in the said territory,
and the management of any lands now or hereafter reserved for their use, shall
remain in the Government of Canada subject to the control of Parliament.
Appeal
dismissed.
Solicitors
for the appellants Andrew Keewatin Jr. and Joseph William Fobister, on their
own behalf and on behalf of all other members of the Grassy Narrows First
Nation: Janes Freedman Kyle Law Corporation, Vancouver and Victoria.
Solicitors
for the appellant Leslie Cameron, on his
own behalf and on behalf of all
other members of the Wabauskang First Nation: First Peoples Law, Vancouver.
Solicitor
for the respondent the Minister of Natural Resources: Attorney General of
Ontario, Toronto.
Solicitors
for the respondent Resolute FP Canada Inc. (formerly Abitibi‑Consolidated
Inc.): Aird & Berlis, Toronto.
Solicitor
for the respondent the Attorney General of Canada: Attorney General of Canada,
Saskatoon and Vancouver.
Solicitors
for the respondent Goldcorp Inc.: Osler Hoskin & Harcourt, Calgary;
Cassels Brock & Blackwell, Toronto.
Solicitor
for the intervener the Attorney General of Manitoba: Attorney General of
Manitoba, Winnipeg.
Solicitor
for the intervener the Attorney General of British Columbia: Attorney General
of British Columbia, Victoria.
Solicitor
for the intervener the Attorney General for Saskatchewan: Attorney General for
Saskatchewan, Regina.
Solicitor
for the intervener the Attorney General of Alberta: Attorney General of
Alberta, Edmonton.
Solicitors
for the intervener the Grand Council of Treaty # 3: Hutchins Légal inc.,
Montréal.
Solicitors
for the interveners the Blood Tribe, the Beaver Lake Cree Nation, the
Ermineskin Cree Nation, the Siksika Nation and the Whitefish Lake First Nation #
128: MacPherson Leslie & Tyerman, Edmonton and Calgary.
Solicitors
for the intervener the Fort McKay First Nation: Henning Byrne, Edmonton;
Shores Jardine, Edmonton.
Solicitors
for the intervener the Te’mexw Treaty Association: Janes Freedman Kyle Law
Corporation, Vancouver.
Solicitor
for the interveners the Ochiichagwe’Babigo’Ining First Nation, the Ojibways of
Onigaming First Nation, the Big Grassy First Nation and the Naotkamegwanning
First Nation: Donald R. Colborne, Victoria.
Solicitors
for the intervener the Métis Nation of Ontario: Pape Salter Teillet, Toronto.
Solicitors
for the intervener the Cowichan Tribes, represented by Chief William Charles
Seymour, on his own behalf and on behalf of the members of the Cowichan Tribes:
Woodward & Company, Victoria.
Solicitors
for the interveners the Lac Seul First Nation and the Sandy Lake First Nation:
Keshen & Major, Kenora, Ont.
Solicitors for the
intervener the Assembly of First Nations/National Indian Brotherhood: Farris,
Vaughan, Wills & Murphy, Vancouver.