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35379 in the Supreme Court of Canada (On Appeal from Court of Appeal for Ontario)

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35379 in the Supreme Court of Canada (On Appeal from Court of Appeal for Ontario) SCC File No: 35379 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM 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/Respondents) and LESLIE CAMERON on his own behalf and one behalf of all other members of WABAUSKANG FIRST NATION APPELLANTS (Intervener) And MINISTER OF NATURAL RESOURCES RESPONDENT (Defendant/Appellant) and RESOLUTE FP CANADA INC. (FORMERLY ABITIBI-CONSOLIDATED INC.) RESPONDENT (Defendant/Appellant) and THE ATTORNEY GENERAL OF CANADA RESPONDENT (Third Party/Appellant) and GOLDCORP INC. RESPONDENT (Intervener) and ATTORNEY GENERAL OF MANITOBA, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF 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, FORM McKAY FIRST NATION, TE’MEXW TREATY ASSOCIATION, OCHIICHAGWE’BABIGO’INING FIRST NATION, OJIBWAYS OF ONIGAMING FIRST NATION, BIG GRASSY FIRST NATION, NAOTKAMEGWANNING FIRST NATION, METIS NATION OF ONTARIO, COWICHAN TRIBES represented by CHIEF WILLIAM CHARLES SEYMOUR on his own behalf and of the members of COWICHAN TRIBES, LAC SEUL FIRST NATION, SANDY LAKE FIRST NATION, and ASSEMBLY OF FIRST NATIONS/NATIONAL INDIAN BROTHERHOOD INTERVENERS FACTUM OCHIICHAGWE’BABIGO’INING FIRST NATION, OJIBWAYS OF ONIGAMING FIRST NATION, BIG GRASSY FIRST NATION, NAOTKAMEGWANNING FIRST NATION (Intervener) Counsel for the Interveners, By Their Agent: OCHIICHAGWE’BABIGO’INING FIRST NATION, OJIBWAYS OF ONIGAMING FIRST Ed Van Bemmel NATION, BIG GRASSY FIRST NATION, GOWLING LAFLEUR HENDERSON LLP NAOTKAMEGWANNING FIRST NATION 160 Elgin Street Donald Colborne Suite 2600 1125 Fort Street Ottawa, ON K1P 1C3 Victoria, BC V8V 3K9 Tel: 613.233.1781 Tel: 807.344.6628 Fax: 613.563.9869 Fax: 807.983.3079 Email: [email protected] Counsel for the Appellants, ANDREW By Their Agent: KEEWATIN JR. AND JOSEPH WILLIAM FOBISTER ON THEIR OWN BEHALF AND ON Guy Regimbald BEHALF OF ALL OTHER MEMBERS OF GOWLING LAFLEUR HENDERSON LLP GRASSY NARROWS FIRST NATION 160 Elgin Street Robert Janes Suite 2600 JANES FREEDMAN KYLE LAW CORPORATION Ottawa, ON K1P 1C3 816-1175 Douglas Street Tel: 613.233.1781 Victoria, BC V8W 2E1 Fax: 613.563.9869 Tel: 250.405.3460 Email: [email protected] Fax: 250.381.8567 Counsel for the Appellants, LESLIE CAMERON By Their Agent: ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHER MEMBERS OF WABAUSKANG Guy Regimbald FIRST NATION, Applicant GOWLING LAFLEUR HENDERSON LLP Bruce Stadfeld McIvor 160 Elgin Street FIRST PEOPLES LAW CORPORATION Suite 2600 300-111 Water Street Ottawa, ON K1P 1C3 Vancouver, BC V6B 1A7 Tel: 613.233.1781 Tel: 604.685.4240 Fax: 613.563.9869 Fax: 604.681.0912 Email: [email protected] Counsel for the Respondent, MINISTER OF By Their Agent: NATURAL RESOURCES Michael Stephenson, Peter r. Lemmond, Mark Crow Robert E. Houston, Q.C. and Candice Telfer BURKE-ROBERTSON MINISTRY OF THE ATTORNEY GENERAL 441 MacLaren Street, Suite 200 Crown Law Office – Civil Ottawa, ON K2P 2H3 720 Bay Street, 8th Floor Tel: 613.236.9665 Toronto, ON M7A 2S9 Fax: 613.235.4430 Tel: 416.326.4008 Email: [email protected] Fax: 416.326.4181 Counsel for the Respondent, RESOLUTE FP By Their Agent: CANADA INC. formerly known as ABITIBI- CONSOLIDATED K. Scott McLean Christopher J. Matthews DENTONS CANADA LLP AIRD & BERLIS LLP 1420-99 Bank Street Brookfield Place, 181 Bay Street Ottawa, ON K1P 1H4 Suite 2800, Box 754 Tel: 613.783.9600 Toronto, ON J5J 2T9 Fax: 613.783.9690 Tel: 416.863.4146 Email: [email protected] Fax: 416.863.1515 Counsel for the Respondent, ATTORNEY By Their Agent: GENERAL OF CANADA Mark R. Kindrachuck, Q.C. and Mitchell R. Taylor, Christopher M. Rupar Q.C. ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA 50 O’Connor Street, Suite 500, Room 557 123-2ND Avenue South, 10th Floor Ottawa, ON K1A 0H8 Saskatoon, SK S7K 7E6 Tel: 613.670.6290 Tel: 306.975.4765 Fax: 613.954.1920 Fax: 306.975.6240 Email: [email protected] Counsel for the Respondent, GOLDCORP INC. By Their Agent: William J. Burden, Linda I. Knol and Erin Craddock CASSELS BROCK & BLACKWELL LLP Patricia J. Wilson 2100 Scotia Plaza, 40 King Street West Osler, Hoskin & Harcourt LLP Toronto, ON M5H 3C2 340 Albert street, Suite 1900 Tel: 416.869.5963 Ottawa ON K1R 7Y6 Fax: 416.640.3019 Tel: 613.787.1009 Fax: 613.235.2867 Email: [email protected] Counsel for the Intervener, ATTORNEY By Their Agent: GENERAL OF MANITOBA Michael Conner Henry S. Brown, Q.C. ATTORNEY GENERAL OF MANITOBA GOWLING LAFLEUR HENDERSON LLP 1205-405 Broadway 160 Elgin Street Winnipeg, MB R3C 3L6 Suite 2600 Tel: 204.945.6723 Ottawa, ON K1P 1C3 Fax: 204.945.0053 Tel: 613.233.1781 Fax: 613.563.9869 Email: [email protected] Counsel for the Intervener, ATTORNEY By Their Agent: GENERAL OF BRITISH COLUMBIA Paul E. Yearwood Nadia Effendi ATTORNEY GENERAL OF BRITISH COLUMBIA BORDEN LADNER GERVAIS LLP 3rd Floor, 1405 Douglas Street World Exchange Plaza Victoria, BC V8W 9J5 100 Queen Street, Suite 1300 Tel: 250.356.6519 Ottawa, ON K1P 1J9 Fax: 250.387.0343 Tel: 613.237.5160 Fax: 613.230.8842 Email: [email protected] Counsel for the Intervener, ATTORNEY By Their Agent: GENERAL OF SASKATCHEWAN Richard James Fyfe Henry S. Brown, Q.C. ATTORNEY GENERAL OF SASKATCHEWAN GOWLING LAFLEUR HENDERSON LLP Constitutional Law Branch, 8th Floor 160 Elgin Street 820, 1874 Scarth Street Suite 2600 Regina, SK S4P 4B3 Ottawa, ON K1P 1C3 Tel: 306.787.7886 Tel: 613.233.1781 Fax: 306.787.9111 Fax: 613.563.9869 Email: [email protected] Counsel for the Intervener, ATTORNEY By Their Agent: GENERAL OF ALBERTA Douglas B. Titosky Henry s. Brown, Q.C. ATTORNEY GENERAL OF ALBERTA GOWLING LAFLEUR HENDERSON LLP Aboriginal Law 160 Elgin Street 1000-10025-102A Avenue Suite 2600 Edmonton, AB T5J 2Z2 Ottawa, ON K1P 1C3 Tel: 780.643.0858 Tel: 613.233.1781 Fax: 780.643.0852 Fax: 613.563.9869 Email: [email protected] Counsel for the Intervener, GRAND COUNCIL By Their Agent: OF TREATY #3 Peter W. Hutchins, Zachary Davis and Robin Brian A. Crane, Q.C. Campbell GOWLING LAFLEUR HENDERSON LLP HUTCHINS LEGAL INC. 160 Elgin Street 204, rue du Saint-Sacrement Suite 2600 Bureau 300 Ottawa, ON K1P 1C3 Montreal, QB H2Y 1W8 Tel: 613.233.1781 Tel: 514.849.2403 Fax: 613.563.9869 Fax: 514.849.4907 Email: [email protected] Counsel for the Interveners, BLOOD TRIBE, By Their Agent: BEAVER LAKE CREE NATION, ERMINESKIN CREE NATION, SIKSIKA NATION AND Marie France Major WHITEFISH LAEK FIRST NATION #128 SUPREME ADVOCACY LLP Meaghan M. Conroy and Abram B. Averbach 100-340 Gilmour Street MACPHERSON LESLIE & TYERMAN LLP Ottawa, ON K2P 0R3 10235 101st Street, Suite 2200 Tel: 613.695.8855 Edmonton, AB T5J 3G1 Fax; 613.695.8580 Tel: 780.969.3500 Email: [email protected] Fax: 780.969.3549 Counsel for the Intervener, FORT MCKAY FIRST By Their Agent: NATION Karin Buss Marie France Major HENNING BYRNE LLP SUPREME ADVOCACY LLP 1450-10505 Jasper Avenu 100-340 Gilmour Street Edmonton, AB T5J 3N4 Ottawa, ON K2P 0R3 Tel: 780.421.1707 Tel: 613.695.8855 Fax: 780.425.9438 Fax; 613.695.8580 Email: [email protected] Counsel for the Intervener, METIS NATION OF By Their Agent: ONTARIO Jason Madden and Nuri. G. Frame Henry s. Brown, Q.C. PAPE SALTER TEILLET GOWLING LAFLEUR HENDERSON LLP 546 Euclid Avenue 160 Elgin Street Toronto, ON M6G 2T2 Suite 2600 Tel: 416.916.2989 Ottawa, ON K1P 1C3 Fax: 416.916.3726 Tel: 613.233.1781 Fax: 613.563.9869 Email: [email protected] Counsel for the Intervener, COWICHAN TRIBES, By Their Agent: REPRESENTED BY CHIEF WILLIAM CHARLES SEYMOUR, on his own behalf and on Henry s. Brown, Q.C. behalf of the members of COWICHAN TRIBES GOWLING LAFLEUR HENDERSON LLP David M. Robbins 160 Elgin Street WOODWARD & COMPANY Suite 2600 Second Floor - 844 Courtney Street Ottawa, ON K1P 1C3 Victoria, BC V8W 1C4 Tel: 613.233.1781 Tel: 250.383.2356 Fax: 613.563.9869 Fax: 250.380.6560 Email: [email protected] Counsel for the Interveners, LAC SEUL FIRST By Their Agent: NATION and SANDY LAKE FIRST NATION David G. Leitch Christopher Rootham KESHEN & MAJOR NELLIGAN O’BRIEN PAYNE LLP 120 Second Street South, Suite 200 1500-50 O’connor Street Kenora, ON P9N 1E9 Ottawa, ON K1P 6L2 Tel: 807.468.3073 Tel: 613.231.8311 Fax: 807.468.4893 Fax: 613.788.3667 Email: [email protected] Counsel for the Interveners, ASSEMBLY OF By Their Agent: FIRST NATIONS/NATIONAL INDIAN BROTHERHOOD Jeffrey W. Beedell Joseph J. Arvay, Q.C. and Catherine J. Boies Parker GOWLING LAFLEUR HENDERSON LLP FARRIS VAUGHAN WILLS & MURPHY 160 Elgin Street P.O. Box 10026, Pacific Center South Suite 2600 25th Floor, 700 West Georgia Street Ottawa, ON K1P 1C3 Vancouver, BC V7Y 1B3 Tel: 613.233.1781 Tel: 604.684.9151 Fax: 613.563.9869 Fax: 604.661.9349 Email: [email protected] i FACTUM OF THE INTERVENERS I N D E X Part I – Overview of the Position of the Interveners 1 Part II – Overview of Issues 1 Part III – Statement of Argument 2 A. Status of the Indian Reserves Under Treaty 3 2 B. The Implications of First Nations Being Left Out of the Post-Treaty 6 Process C. A Resolution of the Case That Will Not Continue Injustices 7 Part IV – Submissions on Costs 10 Part V – Order Sought 10 Part VI – Table of Authorities 11 11 Part VII – Statutes and Other References 1 FACTUM OF THE INTERVENERS PART I – OVERVIEW OF THE POSITION OF THE INTERVENERS 1.
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