Court File No.: 35379

IN THE (ON APPEAL FROM A JUDGMENT OF THE COURT OF APPEAL FOR ONTARIO)

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 (Plaintiffs)

-and-

MINISTER OF NATURAL RESOURCES and RESOLUTE FP CANADA INC. (formerly ABITIBI-CONSOLIDATED INC.) RESPONDENTS (Defendants)

-and-

THE ATTORNEY GENERAL OF CANADA RESPONDENTS (Third Party) -and-

LESLIE CAMERON on his own behalf and on behalf of all other members of WABAUSKANG FIRST NATION RESPONDENTS (Interveners)

-and-

GOLDCORP INC. RESPONDENTS (Intervener)

FACTUM OF THE INTERVENER THE ATTORNEY GENERAL OF SASKATCHEWAN

ANDREW KEEWATIN JR. and JOSEPH WILLIAM FOBISTER on their own behalf and on behalf of all other members of GRASSY NARROWS FIRST NATION APPELLANTS (Plaintiffs)

-and-

MINISTER OF NATURAL RESOURCES and RESOLUTE FP CANADA INC. (formerly ABITIBI-CONSOLIDATED INC.) RESPONDENTS (Defendants)

-and-

THE ATTORNEY GENERAL OF CANADA RESPONDENTS (Third Party) -and-

LESLIE CAMERON on his own behalf and on behalf of all other members of WABAUSKANG FIRST NATION RESPONDENTS (Interveners)

-and-

GOLDCORP INC. RESPONDENTS (Intervener) R. James Fyfe Lynne Watt Aboriginal Law Branch Gowling Lafleur Henderson LLP Ministry of Justice Barrister’s & Solicitors 820-1874 Scarth Street Suite 2600, 160 Elgin Street REGINA, SK S4P 4B3 OTTAWA, ON K1P 1C3 Tel: (306) 787-7846 Tel: (613)786-8695 Fax: (306) 787-9111 Fax: (613)788-3509 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Agent for the Intervener, The Attorney General for Saskatchewan The Attorney General for Saskatchewan Saskatchewan

TABLE OF CONTENTS

PAGE

PART I OVERVIEW OF ARGUMENT 1

PART II STATEMENT OF ISSUES 1

PART III ARGUMENT 2

A. Uncertainty and Legislative Vacuums 2 B. Section 35 3 C. The Core of s.91(24) 7 D. Impairment 9 E. R. v. Morris 10

PART IV COSTS 10

PART V NATURE OF THE ORDER SOUGHT 10

PART VI TABLE OF AUTHORITIES 11

PART I-OVERVIEW AND FACTS

1. The Attorney General for Saskatchewan C'Attorney General") was granted leave to intervene by order ofKarak.atsanis J. dated March 26, 2014.

2. The Attorney General adopts the facts as set out in the factums of Ontario and Canada.

3. This factum focuses on the doctrine of interjurisdictional immunity. The Attorney General has argued before this Court in a number of matters in the last several years that the doctrine should be either abandoned or very narrowly construed. 1 The Attorney General's discomfort with interjurisdictional immunity is particularly acute in this case because the doctrine has the potential to eviscerate provincial jurisdiction to utilize provincial Crown lands. This case also highlights the doctrine's potential to make redundant s.35 of the Constitution Act, 1982 and to remove provinces from the important process of reconciliation.

4. The Attorney General submits that s.35 rights do not properly belong in the core of s.91(24). The scope and location of such rights are inherently uncertain and the notion of non­ absolute rights is conceptually incompatible with immunity. The "status test" articulated by Justice Beetz in Four B best defines the core of s.91(24) because it relates to a core of federal power; and not to abstract notions of "lndianness". If fall within the core, then in order to read s.91(24) and s.35 harmoniously, the test for impairment should be extinguishment.

PART II- STATEMENT OF ISSUES

5. The Attorney General will address the issue of whether provincial legislative jUrisdiction over provincial Crown lands is limited by the application of interjurisdictional immunity. In particular, the Attorney General will address whether s.35 rights fall within the core of s.91(24) and, if they do, what the proper test is for determining impairment of the core.

1 For example: R v Morris, 2006 SCC 59 [Morris] [Ontario's Book of Authorities ["OBA"], Vol. II, Tab 41]; Canadian Western Bank v Alberta, 2007 SCC 22 [Canadian Western Bank] [Saskatchewan's Book of Authorities ["SBA"] Tab 3]; Roger William v British Columbia [decision pending]. - 2 -

PART ID - ARGUMENT

A. Uncertainty and Legislative Vacuums

6. The importance of this case extends well beyond the interpretation of Treaty No. 3 and Ontario's particular ability to take up lands in Keewatin. The Appellant, Wabauskang First Nation ("Wabauskang"), urges this Court to clarify that the primary question for trial is whether Ontario's forestry legislation is constitutionally applicable in light of federal jurisdiction under s.91(24) of the Constitution Act, 1867. Wabauskang argues that this question can be answered by application of R v Morris and interjurisdictional immunity. They say that Treaty rights fall within the core of s.91(24) and that provincial laws that impair that core - on a standard that is "similar, if not identical" to the primafacie infringement standard- are inapplicable.2

7. That proposed approach puts into question the ability of any province to take up provincial Crown lands. The implications demonstrate why the doctrine of interjurisdictional immunity should either be completely abandoned or very narrowly construed.

8. The most concerning implication is the permanent evisceration of provincial authority to take up and develop provincial land. In addition, there are myriad uncertainties that flow from this result. Provincial jurisdiction would ebb and flow depending on judicial interpretation of the scope of varying Treaty rights and in relation to different treaties. Provincial jurisdiction would be lost for matters having more than an "insignificant interference" with s.35 rights.3 This entails a loss of provincial jurisdiction over an indeterminate but potentially vast amount of land. How much land is at issue, and in respect to which provincial legislation, cannot be known a ·priori and could only be determined on. a case-by-case basis. This is precisely the type of constitutional uncertainty that the Court disapproved of in Canadian Western Bank.4

2 Factum of the Appellant, Leslie Cameron on his own behalf and on behalf of all other members of Wabauskang First Nation, at para 115. 3 Morris, supra note 1 at para 53 [OBA, Vol. II, Tab 41 ]. 4 Supra note 1 at para 43 [SBA Tab 3]. - 3 -

9. The loss of provincial jurisdiction to utilize provincial lands would also create pernicious legal vacuums. There is no federal jurisdiction to grant dispositions on provincial lands. 5 This creates the potential that neither level of government could authorize the development of these lands. This is interjurisdictional immunity taken to its absurd conclusion and cannot have been the intention of the Constitution's framers. It violates the principle of exhaustiveness, which this Court has described as "an essential character" of the distribution of legislative powers.6 Alternatively, the principle of exhaustiveness would leave the federal government with default jurisdiction to grant dispositions for provincial lands in these circumstances. This would fly in the face of St. Catherine's Milling, and sections 109, 92 and 92A of the Constitution Act, 1867.

B. Section 35

10. Interjurisdictional Immunity makes s.35 redundant. IfTreaty rights are placed at the core of s.91 (24 ), and impairment of that core is synonymous with prima facie infringement, then no constitutional space is left for s.35 in relation to the provinces. The inquiry is transferred from s.35, where the primafacie test was developed, to s.91(24). Once primafacie infringement is found under s.91(24), the inquiry is ended. 7 No s.35 analysis occurs.

11 . Section 35's role, under this approach, would be to govern only the relationship between the federal government and Canada's Aboriginal peoples. This is inconsistent with this Court's numerous statements that s.35 equally engages the provinces. This Court stated unequivocally in Sparrow that s.35 "affords aboriginal peoples constitutional protection against provincial legislative power."8 The Court recognized that s.35 represents the willingness of both levels of government to subject their laws to constitutional scrutiny:

By giving aboriginal rights constitutional status and priority [under s.35], Parliament and the provinces have sanctioned challenges to social and economic policy objectives in legislation to the extent that aboriginal rights are affected.

s St. Catherine's Milling and Lumber Co. v The Queen (1889), 14 AC 46 at para 16 (JCPC) [St. Catherine 's Milling] [SBA Tab 29]; Ontario Mining Co. v Seybold, [1902) AC 73 (JCPC) [OBA, Vol. I, Tab 29]; Smith v The Queen, P983] 1 SCR 554 at 562 [OBA, Vol. II, Tab 51]. Reference re Same-Sex Marriage, 2004 SCC 79 at para 34 [SBA Tab 27). 7 Morris, supra note l at para 55 [OBA, Vol. II, Tab 41]. The Attorney General will speak more to Morris later in this factum. 8 R v Spar;ow, [1990] 1 SCR 1075 at 1105 [Sparrow] [SBA Tab 25]. - 4 -

Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test ofjustification. 9

12. The s.35 analysis developed in Sparrow was subsequently found to apply in the Treaty context in Badger. 10 The Court subsequently stated in Cote:

But it is quite clear that the Sparrow test applies where a provincial law is alleged to have infringed an aboriginal or treaty right in a manner which cannot be justified[... ]. The text and purpose of s.35(1) do not distinguish between federal and provincial laws which restrict aboriginal or treaty rights, and they should both be subject to the same standard of constitutional scrutiny.11

13. One year later the Court in Delgamuukw relied on Cote and held that provincial governments can justifiably infringe .12 Provincial authority to infringe Treaty 13 4 fights under s.35 was reiterated in both Marshall No. 1 and Marshall No. i • Citing the rule that one part of the constitution cannot abrogate another, the Court in Paul held that s.91(24) does not remove s.35's role in protecting against unjustified provincial infringements. 15

14. It would be incongruent for the Court to have stated on these numerous occasions that s.35 has constitutional space for justified provincial infringements without accepting that such space exists under s.91(24). Indeed, the Court turned its attention to the core of s.91(24) in both Delgamuukw and Paul without giving any indication that justified provincial infringements would impennissibly affect or impair that core. 16

15. futerjurisdictional immunity also swims against the tide of modem constitutional interpretation. In Canadian Western Bank and subsequent cases, this Court limited the doctrine's application to past precedents and has replaced "effects" with the more stringent

9 Sparrow, ibid at 1110 [emphasis added] [SBA Tab 2S]. 10 R v Badger, [ 1996] 1 SCR 771 at para 85 [Badger] [SBA Tab 16]. 11 R v Cote, [ 1996] 3 SCR 139 at paras 74, 78 [SBA Tab 17]. 12 De/gamuukw v British Columbia, [1997] 3 SCR 1010 at para 160 [Delgamuukw] [SBA Tab 4]. 13 Marshall v Canada, (1999] 3 SCR 456 at para 56 [Marshall No. I] [SBA Tab 11). 14 Marshall v Canada, [1999] 3 SCR S33 at para 24 [Marshall No. 2] [Canada's Book of Authorities ["CBA"] Tab 21]. IS Paul v British Columbia (Forest Appeals Commission), 2003 sec SS at paras 24-25 [Paul] [SBA Tab 14]. 16 Delgamuukw, supra note 12 at para 181 [SBA Tab 4 ]; Paul, ibid at para 33 [SBA Tab 14] . - 5 -

"impairment" standard. The doctrine is to be applied with restraint17 and has been characterized as largely superfluous. 18 The Court stated in lnstite:

In summary, the doctrine of interjurisdictional inununity is narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism.19

16. In the other direction, this Court has sanctioned progressively greater provincial participation in the lives of Aboriginal people. This trend started with the rejection of the enclave theory in Cardinal and 8Ubsequent cases in which provincial laws of general application were found to apply to Indians and Indian reserves. 20 In Kitkatla the Court allowed the provinces room to single out and regulate matters in relation to Indians where such measures are sufficiently integrated into a "carefully balanced" provincial scheme.21 The Court also followed Chief Justice Dickson's directive in OPSEU that caution should be exercised before limiting provincial jurisdiction where, as here, Canada accepts provincial jurisdiction.22

17. With respect to Treaty and Aboriginal rights, the Court has given the provinces a prominent and expanding role in the process of reconciliation under s.35. That role began with the justification test established for s.35 infringements that allowed for a balancing of rights with provincial interests.23 The provincial role grew dramatically with Haida Nation, where the Court preferred the honour of the Crown as s.35's core precept over the narrower (and federal) fiduciary relationship.24 This development marked a doctrinal shift from a notion of the federal government as the sole protector of Aboriginal interests to one that holds the · federal and provincial Crowns equally responsible to promote the process of reconciliation.

17 Canadian Western Bank, supra note 1 at paras 33, 47 [SBA Tab 3]. 18 Ibid at para 46 (SBA Tab 3]. 19 Canada (Attorney General) v PHS Community Services Society, 201 1 SCC 44 at para 70 [Insite] [SBA Tab 2]. 20 Cardinal v Attorney General ofAlberta , [1974] SCR 695 at paras 15-16 [CBA Tab 4]; Four B Manufacturing v United Gannent Workers, (1980] 1SCR1031 at 1049 [Four B] [SBA Tab 5]; NILITU,O Child and Family Services Society v B.C. Government and Service Employees Union, 2010 SCC 45 [SBA Tab 12]. 21 Kitkatla Band v British Columbia, 2002 SCC 31 at para 62 [Kitkatla] [SBA Tab 10]. 22 Ontario (Attorney General) v OPSEU, [1987) 2 SCR 2 at 19-20 [OPSEU] [SBA Tab 13] cited in Kitkatla, ibid at paras 72-73 [SBA Tab 10]. See also: Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13 at paras 25- 26 [SBA Tab 28]. 23 See e.g. Halfway River First Nation v British Columbia, 1999 BCCA 470 at paras 145-167 [SBA Tab 8]; R v Maurice, 2002 SKQB 68 at para 18 [SBA Tab 22]. 24 Haida Nation v British Columbia (Minister ofForests), 2004 SCC 73 at paras 16-18 [Haida Nation] [SBA Tab 7]. - 6 -

18. The constitutional workload in relation to Aboriginal and Treaty rights has been placed squarely under s.35. In the opening sentence of Mikisew the Court characterized the process of reconciliation under s.35 as "[t]he fundamental objective of the modem law of aboriginal and treaty rights."25 This was echoed one year later in R v Sappier.26 Reconciliation has now evolved into what Professor Newman refers to as a "dynamic" and "creationary" constitutional process that structures the relationship between the Crown and Aboriginal peoples.27

19. Interjurisdictional immunity has no place in this process. The doctrine is not a response to the goal of reconciliation. Rather, as this Court noted in Canadian Western Bank, it was originally developed in the narrow context of protecting federally incorporated companies.28 Far from providing the normative grounding for the dynamic process of reconciliation, the doctrine is a static and legalistic attempt to protect watertight cores of jurisdiction. Chief Justice Dickson described it in OPSEU as an "undertow" against · the strong current of the flexible pith and substance and double aspect doctrines.29 It likewise flows against the tide of reconciliation.

20. Reconciliation is a human, face-to-face process that takes place on the ground through consultation. That process has been ongoing between Aboriginal peoples and the provinces in far greater measure than with the federal Crown. This is because s.35 rights are exercised largely on provincial lands and provincial land-use decisions .most commonly trigger the duty. Saskatchewan has been consulting with Aboriginal peoples on various matters before and since Sparrow30 but with greater frequency following Haida and Mikisew.

25 Mikisew Cree First Nation v Canada (Minister ofCanadian Heritage), 2005 SCC 69 at para 1 [Mikisew] [OBA, Vol. I, Tab 24]. 26 2006 SCC 54 at para 22 [SBA Tab 24]. 27 Dwight Newman, "Reconciliation: Legal Conception(s) and Faces of Justice" in John D. Whyte, ed, Moving Towards Justice: Legal Traditions and Aboriginal Justice (Regina: Purich Publishing Ltd., 2008) at 85 [SBA Tab 31]. 28 Supra note 1 at para 39 [OBA, Vol. II, Tab 41]. 29 Supra note 22 at 18 [SBA Tab 13]. 30 See e.g. R v Crowe, [1997] 3 CNLR 191 (Sask Prov Ct) at 199-205 [SBA Tab 18], aff'd [1998) 3 CNLR 155 (Sask QB); R v Maurice, [2002] 2 CNLR 244 (Sask Prov Ct) at paras 84-90 [Maurice] [SBA Tab 21] , aff'd 2002 SKQB68. - 7 -

21 . Interjurisdictional immunity applied to the taking up of provincial lands would thwart this process of compromise and dialogue. If provincial jurisdiction is limited to insignificant impacts on rights, so is the opportunity for consultation. This is because provinces do not, and need not, consult or accommodate about matters beyond their jurisdiction. As a result it is unclear when, if ever, provincial consultation duties would be triggered in relation to land use decisions.

C. The Core of s.91(24)

22. The Attorney General submits that the ·most predictable and useful articulation of s.91(24)'s core was provided by Justice Beetz in Four B as "necessary incidents of [Indian] status such for instance as registrability, membership in a band, the right to participate in the election of Chiefs and Band Councils, reserve privileges etc. "3 1 This articulation refers to unassailable aspects of federal jurisdiction such as the power to define "Indian status" and to determine rights and privileges flowing thereunder. The articulation has been followed by various courts in finding that s.91(24)'s core includes Band govemance.32 Saskatchewan accepts that it has no authority to legislate within that core or to impair Parliament's ability to do so.

23. Justice Beetz's articulation provides a definitive core of legislative power without reference to the abstract concepts of "Indianness" or "Indians qua Indians". Those concepts implicitly assume that Indians have vital aspects analogous to federal companies or undertakings. The assumption is misplaced in light of ongoing uncertainty surrounding the meaning of "Indian" under s.91(24) and the diversity of peoples that may fall under that head of power.33 Moreover, those concepts distract from the key question (as applied for example in relation to aeronautics)34 of what falls within the core of the federal power. The core of s.91(24) is what is essential to the federal power, not what is the essence of an "Indian''.

31 Supra note 20 at 1048 [SBA Tab 5]. 32 See e.g. Whitebear Band Council v Carpenters Provincial Council Saskatchewan, [ 1982] 3 CNLR 181 at para 30 (Sask CA) [SBA Tab 30]; Francis v Canada, [1981] 1FC225 at paras 17-20 (FCA) [SBA Tab 6] rev'd on other grounds, [1982] 2 SCR 72; R v Paul Band Indian Reserve No. 133 (1983), 29 Alta LR (2d) 310 at para 21 (Alta CA) ~SBA Tab 23]. 3 See e.g. Her Majesty the Queen v. Daniels, 2014 FCA 101 [SBA Tab 9]. 34 Quebec (Attorney General) v Lacombe, 2010 SCC 38 at para 66 [SBA Tab 15]. - 8 -

24. Including s.35 rights within the core of s.91(24) creates uncertainty. The scope and content of such rights vary across the country and from community to community; they evolve over time;35 they may include incidental rights;36 and modem Treaty rights are the product of recent and yet-to-be concluded negotiations. Such rights create a core that is - to quote from Canadian Western Bank - "difficult to define, except over time by means of judicial interpretation triggered serendipitously on a case by case basis."37 They cover a variety of evolving and sometimes undetermined activities occurring in various and sometimes undetermined locations. While such uncertainty sits well with the dynamic constitutional process unfolding under s.35, it sits ill for s.91(24).

25. Rights and immunity are mutually exclusive. As noted above, the Court has stated on numerous occasions that s.35 rights are subject to justified infringements. They are not absolute.38 In Sparrow, the Court rejected the notion that s.35 rights are more securely protected than Charter rights, even though s.35 rights are subject to no textual limitation such as s.1 of the Charter.39 Rights under Canada's Constitution are subject to being balanced against the public interest. Immunity is incompatible with this conception. If s.35 rights fall within the core of s.91(24), interjurisdictional immunity becomes a constitutional trump card. The right always triumphs, no matter how beneficial or pressing the provincial measure may be. The Court's majority in R v Kapp declined to interpret s.25 of the Charter as a constitutional trump card, specifically due to its concern with the goal of reconciliation.40 For the very same reason, the Court should refuse to interpret s.91(24) as granting such immunity.

26. Leaving s.35 rights out of s.91(24)'s core creates a clear demarcation between the division of powers and s.35 analyses: core federal power relating to status, Band governance etc. is immunized under s.91(24), while s.35 protects constitutional rights. Admittedly, this would make the Treaty protection clause in s.88 of the redundant. This result, however, is

35 Morris, supra note 1 at paras 30-33 [OBA, Vol. II, Tab 41]. 36 R v Sundown, [1999] I SCR 393 at paras 27-30 {SBA Tab 26]. 37 Supra note 1 at para 43 [SBA Tab 3). 38 Sparrow, supra note 8 atl 109 [SBA Tab 25]; Delgamuukw, supra note 12 at para 160 {SBA Tab 4]. 39 Sparrow, ibid at 1108-1109 [SBA Tab 25J. 40 2008 SCC 41 at paras 64-65 [SBA Tab 20]. -9 - preferable than interpreting s.88 to make s.35 redundant, as happened in Morris.41 An ordinary statute like the Indian Act should not wag the constitutional dog.42

D. Impairment

27. In the alternative, if s.35 rights fall within s.91(24)'s core, the appropriate impairment standard is extinguishment. The extinguishment standard was suggested in Delgamuukw and has been followed in Saskatchewan. 43 Since provincial legislation evincing a clear and plain intent to extinguish rights would be ultra vires, interjurisdictional immunity is left to protect s.91(24)'s core from provincial measures that have the effect of extinguishing rights. Moreover, the extinguishment standard can reconcile s.91(24) with s.35, to wit: provincial measures having the effect of extinguishing rights would impair s.91(24)'s core and would not be invigorated under s.88 of the Indian Act;44 infringements justified under s.35 would apply ex proprio vigore; unjustified infringements would be inapplicable under s.52(1) of the Constitution Act, 1982 and would not be saved by s.88 because that provision is intended to overcome the effects of interjurisdictional immunity, not s.35. In this way, interjurisdictional immunity. is given only very limited application, and quite rightly, while s.35's pwpose is given full scope.

28. Prima facie infringement should not be equated with impairment. As argued above, it has the potential to eviscerate provincial jurisdiction over an undetermined amount of provincial land and to effectively remove the provinces from s.35 reconciliation. Moreover, prima facie infringement was developed not for a division of powers analysis, but as part of the s.35 test that includes justification. The relatively low prima facie standard makes sense under s.35 precisely because infringements may be justified on the other side of the balancing ledger. This logic breaks down under s.91(24), where justification is unavailable.

41 Supra note I at paras 51-55 [OBA, Vol. II, Tab 41]. 42 See R v Grumbo, [1998] 3 CNLR 172 at para 24 (Sask CA) [SBA Tab 19]. 43 Delgamuukw, supra note 12 at para 181 [SBA Tab 4]; Maurice, supra note 30 at paras 52-61 [SBA Tab 21]. 44 Delgamuukw, ibid at para 183 [SBA Tab 4]. - 10 -

E. R. v. Morris

29. The Attorney General submits that this Court should revisit R v Morris light of Canadian Western Bank and subsequent cases that have effectively "shifted the parameters of the debate" 45 for interjurisdictional immunity and s.91(24). Morris was not cited as authority either in Canadian Western Bank or in the Court's most recent s.91(24) decision, NILITU,0. Moreover, interjurisdictional immunity's broad implications for provincial jurisdiction were not addressed in Morris, and s.91(24) was not reconciled with s.35. Alternatively, Morris is distinguishable. That case concerned British Columbia's authority to regulate a Treaty right. The Court did not grapple with provincial jurisdiction to take up lands. Moreover, in Mikisew the Court adopted a "no meaningful right to hunf' test for determining infringement for the taldng up context. Therefore the prima facie infringement standard adopted in Morris is inapposite for determining whether a provincial taking up impairs the core of s.91(24).

PART IV-COSTS

30. The Attorney General does not seek costs and asks that no costs be awarded against it.

PART V - NATURE OF THE ORDER SOUGHT

31. The Attorney General requests that the appeal be denied. The Attorney General also requests pennission to present oral argument at the hearing of the appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED dated at Regina, Saskatchewan, this 29th day of April, 2014.

r~~...a~~. -- R James Fyfe Macrina Badger Counsel for the Intervener Counsel for the Intervener The Attorney General for Saskatchewan The Attorney General for Saskatchewan

4 ~ Canada (Attorney General) v Bedford, 2013 SCC 72 at para 46 [SBA Tab l]. - 11 -

PART VI - TABLE OF AUTHORITIES

CASES PARAGRAPHS

Canada (Attorney General) v Bedford, 2013 SCC 72. 29

Canada (Attorney General) v PHS Community Services Society, 2011SCC44. 15

Canadian Western Bank v Alberta, 2007 SCC 22 3, 8, 15, 19, 24, 29 Cardinal v Attorney General ofAlb erta, [1974] SCR 695. 16

Delgamuukw v British Columbia, [1997] 3 SCR 1010. 13, 14' 27

Four B Manufacturing v United Garment Workers, [1980] 1SCR1031. 4,22, 16

Francis v Canada, [1981] 1FC225 (FCA). 22

Haida Nation v British Columbia (Minister ofForests), 2004 SCC 73 17, 20

Halfway River First Nation v British Columbia, 1999 BCCA 470. 17

Her Majesty the Queen v Daniels, 2014 FCA 101. 23

Kitkatla Band v British Columbia, 2002 SCC 31. 16

Marshall v Canada, [1999] 3 SCR 456. 13

Marshall v Canada, [1999] 3 SCR 533. 13

Mikisew Cree First Nation v Canada (Minister ofCanadian Heritage), 2005 18,20,29 SCC69.

NILITU,O Child and Family Services Society v. B.C. Government and Service 29, 16 Employees Union, 2010 SCC 45.

Ontario (Attorney General) v OPSEU, (1987] 2 SCR 2. 16, 19

Ontario Mining Co. v Seybold, [1902] AC 73 (JCPC). 9

Paul v British Columbia (Forest Appeals Commission), 2003 SCC 55. 13, 14

Quebec (Attorney General.) v Lacombe, 2010 SCC 38. 23

R v Badger, [1996] 1 SCR 771. 12 - 12 -

R v Cote, [1996] 3 SCR 139. 12, 13

R v Crowe, [1997] 3 CNLR 191 (Sask Prov Ct). 20

R v Grumbo, [1998] 3 CNLR 172 (Sask CA). 26

R v Kapp, 2oos 8 sec 41. 25

R v Maurice, [2002] 2 CNLR 244 (Sask Prov Ct). 20,27

I R v Maurice, 2002 SKQB 68. 17

R v Morris, 2006 SCC 59. 3, 6, 8, 10, 24, 26,29 R v Paul Band Indian Reserve No. 133 (1983), 29 Alta LR (2d) 310 (Alta CA). 22

R v Sappier, 2006 SCC 54. 18

R v Sparrow, [1990] 1 SCR 1075. 11, 12, 20, 25

R v Sundown, [1999] 1SCR393. 24

Reference re Same-Sex Marriage, 2004 SCC 79. 9 i Roger William v British Columbia [decision pending]. 3

Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13. 16

Smith v The Queen, [1983] 1SCR554. 9

St. Catherine's Milling and Lumber Co. v The Queen (1889), 14 AC 46 (JCPC). 9

Whitebear Band Council v Carpenters Provincial Council Saskatchewan, [1982] 22 3 CNLR 181 (Sask CA).

SECONDARYMATERALS PARAGRAPHS

Dwight Newman, "Reconciliation: Legal Conception(s) and Faces of Justice" in 18 John D. Whyte, ed, Moving Towards Justice: Legal Traditions and Aboriginal Justice (Regina: Purich Publishing Ltd., 2008).