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Court File No.: 35379 in the SUPREME COURT of CANADA (ON APPEAL from a JUDGMENT of the COURT of APPEAL for ONTARIO) BETWEEN: AN

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Court File No.: 35379 in the SUPREME COURT of CANADA (ON APPEAL from a JUDGMENT of the COURT of APPEAL for ONTARIO) BETWEEN: AN Court File No.: 35379 IN THE SUPREME COURT OF CANADA (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 Treaty rights 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 Aboriginal title.12 Provincial authority to infringe Treaty 13 4 fights under s.35 was reiterated in both Marshall No.
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