SCC File No: 35379

IN THE SUPREME COURT OF (ON APPEAL FROM COURT OF APPEAL FOR )

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

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, , 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, FIRST NATION, , and ASSEMBLY OF /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 , 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 2 B. The Implications of First Nations Being Left Out of the Post- 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. These Interveners are individual First Nations with reserves in the formerly Adisputed territory@ south of the English River. Their primary traditional harvesting areas are also south of the river.

2. These Interveners wish to address three issues:

(A) The potential implications of a decision that could affect Indian reserves;

(B) The implications of First Nations having been left out of the post-treaty implementation process; and

(C) A resolution of this case that will not continue past injustices.

PART II – OVERVIEW OF ISSUES

3. These Interveners have Indian reserves, and claims against the Crown associated with the reserves, that could be undermined if this Court=s judgment is overly broad. There are two types of land rights under Treaty 3: harvesting rights and reserves. In post-treaty dealings between Canada and Ontario these were often treated in the same way and at the same time, but they are distinct. The present case addresses only harvesting rights, not reserves, a matter that must be made clear in any judgment herein so as to prevent inadvertent harm to the First Nations= interests in their reserves.

4. These Interveners are direct descendants of the Ojibway people who were not heard or represented in the St. Catherine’s Milling1 and Seybold2 cases that arose in the 19th century and that are the basic case law upon which the Respondents rely. These cases turned on the concept that Indians had no land rights. Canadian law has now left this erroneous concept behind. These Interveners were also not heard or represented at the trial of the present case. This Court should

1 St. Catherine’s Milling and Lumber Co. v The Queen (1888), 14 AC 46 (PC) affirming (1887)13 S.C.R. 577; affirming (1886), 13 O.A.R. 148 (C.A.); affirming (1885), 10 O.R. 196 (Ch. Div.) [St. Catherine’s] 2 Ontario Mining Company v. Seybold, [1903] A.C. 73 (P.C.), at 79, affirming (1901), 32 S.C.R. 1; affirming (1900), 32 O.R. 301 (Div. Ct.); affirming (1899), 31 O.R. 386 (H.C.J.) [Seybold] 2 therefore fashion a result that does not perpetuate the original error in the old cases, and does not once again fix the rights of people who should have been but were not heard.

5. These Interveners support the Appellants= submissions that treaty harvesting rights are as a constitutional matter within exclusive federal jurisdiction. They also urge that these matters do not solely involve Crown governments. There must also be a role for the Aboriginal parties to the treaty, and they submit this should be in the form of a requirement for Aboriginal consent to application of the treaty so as to allow Ontario to take up land under its terms.

PART III – STATEMENT OF ARGUMENT

Issue A – Status of the Indian Reserves Under Treaty 3

6. The treaty contains two principal land-related provisions: the right to reserves of land; and the right to harvest natural products throughout the treaty territory.

7. These two land-related provisions are dealt with in the same paragraph of the 1891 legislation.

“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 ... it is hereby conceded and declared that ... the rights of hunting and fishing by the Indians ... do not continue with reference to any tracts required or taken up by the Government of Ontario ...; and that the concurrence of the Province of Ontario is required in the selection of the ... Reserves”3

8. There is thus a danger of conflating the two rights. On the face of the treaty they are plainly distinguishable from one another. They also have distinctly different post-treaty histories. Evidence of this part of post-treaty history was not relevant to the matters at issue in the trial, and only some of it appears on the trial record. Nor was there evidence at trial of what impact a decision affecting the reserves could have. Despite this, the trial decision includes statements about the legal status of the reserves prior to 1915.

3 An Act for the settlement of questions between the Governments of Canada and Ontario respecting Indian Lands, S.O. 1891, c. 3, s. 1 and Schedule; An Act for the settlement of certain questions between the Governments of Canada and Ontario respecting Indian Lands, S.C. 1891, c. 5, s. 1 and Schedule 3

9. These Interveners asked the Ontario Court of Appeal to address this matter, and it did so at paragraph 229 of its decision4:

“[229] It was unnecessary for the trial judge to make statements concerning the legal status of Treaty 3 reserves prior to 1915. Those matters were not in issue and their resolution was not necessary for the proper adjudication of the claims before her. Accordingly, the trial judge=s comments regarding Treaty 3 reserve lands are obiter dicta and nothing in these reasons should be taken as suggesting that those comments are correct.”

10. These Interveners have a deep interest in the status of the Indian reserves that were set aside for their use and benefit. Their interest includes claims and issues with the Crown that are based on their tenure in the reserves. They therefore ask that this Court take care, as did the Court of Appeal, to pronounce a judgment that cannot be read in such a way as to affect the Indian reserves.

Issue B – The Implications of First Nations Being Left Out of the Post Treaty Process

11. Justice Spies= case management order dated June 28, 2006 limited the trial in the first phase of this action to two questions. The first applied only to the AKeewatin lands@. The second was wider: Adoes Ontario have the authority ... to justifiably infringe the rights of the plaintiffs to hunt and fish as provided for in Treaty 3".5

12. Despite that the rights of these Interveners and many other First Nations could be profoundly affected by the case, they were not joined as parties nor given notice that their treaty rights were in issue. The trial decision ranged far beyond technical legal questions north of the English River. Justice Sanderson accepted the plaintiffs= contention in respect of the first of the two questions for trial, but in doing so and in addressing the second and wider question she pronounced in broad terms upon many aspects of the treaty. Her statements were not limited to the Keewatin lands or to the plaintiffs.

13. If these Interveners had been before the court at the trial they would have had the opportunity to present their own evidence about how treaty rights are actually honoured, or not honoured, so as to provide a fuller Aboriginal perspective and more complete evidence about the post treaty conduct of the parties to the treaty. The absence of these Interveners from the trial in this case repeated in the 21st century what happened to their predecessors in the 19th and the 20th centuries.

4 Keewatin v. Ontario (Minister of Natural Resources) 2013 ONCA 158 at paragraph 229 5 Keewatin v. Ontario (Minister of Natural Resources), 2011 ONSC [“SCJ”] 4

14. In the St. Catherine=s Milling case the land in issue, south of what is now the City of Dryden, was part of the traditional territory of First Nations including the present Intervener Naotkamegwanning First Nation. There was a one day trial, at Toronto, on May 18, 1885.6 No Ojibway people knew it was happening.7 That moment in Canadian history was just 6 days after the battle of Batoche. Thousands of Ontario militiamen were on the Prairies pursuing Poundmaker and Big Bear. It is in this context that the trial judge called the ancestors of these Interveners A... scattered bands of Ojibways, most of them presenting a more than usually degraded Indian [email protected] This was an era of belief in racial hierarchies, and expectation that Indians would disappear as separate peoples. Today these beliefs and expectations are gone. In particular the true nature of traditional Ojibway society in the Treaty 3 area is now documented.9 Also, it is now accepted that Aboriginal people are entitled to represent themselves.

15. Ancestors of these Interveners were also the ones left out of the Seybold case. Seybold involved land that was part of AReserve 38B@, near the City of Kenora, supposedly surrendered by the Indian band that was a predecessor of the present intervener Ochiichagwe=babigo=ining First Nation. But that band played no part in the case. The trial judge (Chancellor Boyd, who was also the trial judge in St. Catherine’s) wrote: AThe Indians are not in any way represented in this litigation, and I do not and could not prejudice their claims against any government by what I now [email protected] The case proceeded through all levels upon this presumption that the Indian band had no interest at stake.

16. The Seybold decisions through the appeals show that the trial judge=s presumption was not well founded. Ontario, far from cooperating in carrying out the treaty, asserted that the reserve wasn=t a reserve at all, and that despite promises made at the time of the treaty the reserve interest did not include mineral rights.11 Matters were resolved for the mining companies but not for the band.

17. The trial record herein includes a letter from Jim Netamequon of the Assabaska Band. The present Interveners the Big Grassy First Nation and the Ojibways of Onigaming First Nation are the successors of the historical Assabaska band, on the south east shores of . He wrote, evidently in his own words:

6 St. Catherine’s 10 O.R. 196, paragraph 5 7 SCJ paragraphs 1016, 1027 8 St. Catherine’s 10 O.R. 196, paragraph 64 9 SCJ at paragraphs 219 - 230, 255 - 257 10 Seybold 31 O.R. 386 at paragraph 40. 11 Ibid 38-40; 32 O.R. 301 at paragraph 12 5

“We were told when first treaty made time we Shake hands we Said that we never have any change and if happens to be change we will talk over again Settled that up over again.”12

18. In spite of this understanding on the Aboriginal side that if there is a change the treaty parties will meet and settle matters no such thing ever happened. But there were many Crown-only actions. Some of the more notable ones occurred in 1891, 1894, 1902, 1915, 1924 and 1986. The 1891 statutes and 1894 agreement are in the record in some detail in this case. The Crown actions in 1902, 1915, 1924 and 1986 appear in statute law.

19. In 1902, the final decision in the Seybold case refers to an agreement made by counsel for Canada and Ontario at the time of the hearing.

A... (A)cting under authority from their respective governments, [counsel] have arranged terms for their adoption which will, it is hoped, have the effect of finally settling in a statesmanlike manner all questions between the governments relating to the reserves@ .13

20. This optimistic note is belied, however, by the subsequent string of legislation and agreements. In 1915 there was unilateral Ontario legislation that includes a reduction in the reserves14. In 1924 there was reciprocal legislation and an agreement implementing part of the 1902 agreement referred to above.15 In 1988, 1989, and 2010 there was further legislation to approve a 1986 agreement and to authorize further agreements.16

21. It is evident on the face of the above legislation that it is largely based on difficulties created by the St. Catherine’s and Seybold decisions including their interpretation and application up to and including the Smith17 decision. Taken together all of this Crown government activity shows many decades of disputation between Ontario and Canada, but without Aboriginal participation.

22. In each of the St. Catherine’s, Seybold and Smith cases, Canada was found to have acted as if it was a land owner when it actually had no land interest of its own. In St. Catherine’s Canada granted a timber licence. In Seybold Canada patented land. In Smith Canada sued for possession of land.

12 SCJ at paragraph 1141 13 Seybold [1903] A.C. 73 at paragraph 16 14 An Act to confirm the title of the Government of Canada to Certain Lands and Indian Lands, S.O. 1915, c. 12 15 An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario Respecting Lands, S.C. 1924, c.4 16 Indian Lands Agreement (1986) Act, S.C. 1988, C. 39; Indian Land Agreement Confirmation Act, 1989; and Indian Lands Agreement (1986) Confirmation Act, 2010, c.1, Schedule 10. 17 Smith v. The Queen [1983] 1 SCR 544 [“Smith”] 6

Canada failed in all these cases because it was not the federal government but the province that had administration and control of the Crown=s title.

23. In St. Catherine’s, Canada asserted that it could grant a timber licence because in the treaty it had purchased the Indians= land rights so could sell them. The courts rejected this stating that the Indians had no rights to sell to Canada, and

“The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden.”18

24. The common thread of the cases that followed, and the agreements and statutes cited above that were made in attempts to accommodate the cases, is that Indians had no land rights. This concept is expressed in the statement of the Judicial Committee in St. Catherine’s that:

A... the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign.@19

25. As recently as the Smith case the above statement played a central role20, but only a year later, in the 1984 Guerin case, after surveying jurisprudence including Smith, Justice Dickson wrote that Indian title is a A...unique interest in land... Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of an Aboriginal right”.21

26. The 1989 Paul decision in this Court stated that in St. Catherine’s Athe right was characterized as purely personal for the sole purpose of emphasizing its generally inalienable nature.@ The right was Atruly sui generis ... more than the right to enjoyment and occupancy.@22

27. In 1990, in the Sparrow case, this Court observed that Athe leading cases defining Indian rights in the early part of the century were essentially concerned with settling legislative jurisdiction or the rights of commercial enterprises.@23

18St. Catherine’s, 14 AC 46 at p. 56 19 Ibid, at p. 54 20 Smith at page 569. The band`s right in the reserve was merely “... a personal right which by law must disappear upon surrender by the person holding it; such an ephemeral right cannot be transferred...” 21 Guerin v. The Queen [1984] 2 SCR 335, at 382 22 Canadian Pacific Ltd. v. Paul [1988] 2 S.C.R. 654, at 677, 678 23 R. v. Sparrow [1990] 1 SCR 1075 at p. 1103 7

28. In 2001, in the Osoyoos case this Court again stressed the sui generis nature of Indian land interests, and observed that “our understanding of the nature of Aboriginal interests in land has continued to develop.”24 “Native land rights are in a category of their own”25

29. Once the idea is set aside that Indian land interests “disappear” upon surrender because they are “merely personal”, the law must accommodated such interests. They would seem to be cognizable26 and vested27 land interests, although they may be outside the traditional tenures. As such, it is difficult to conceive that they could possibly fall anywhere except within the “Indians and lands reserved for Indians” power under s. 91(24) of the Constitution Act, 1867. Also they are not land rights of the Crown, administration and control of which may be either federal or provincial, they are land rights of Indians. They stand by themselves and have different origins.

30. This applies to harvesting rights under the treaty. These rights must fall within federal jurisdiction. In fact the Respondent Ontario concedes at paragraph 79 of its factum that they fall within the “Trust existing in respect thereof and ... any Interest other than the province” exceptions to provincial proprietary interests under s. 109 of the Constitution Act, 1867. This has to mean they fall outside provincial powers generally. They are also protected by s. 35(1) of the Constitution Act, 1982.

Issue C - A Resolution of this Case That Will Not Continue Injustices

31. These Interveners reject the cheery optimism of Ontario that although the province took Aregrettable steps@ in the past28, more recently Atremendous progress has been made@29. No evidence of such progress is referred to in Ontario=s factum or the trial reasons. First Nations are entitled to something more substantive when their treaty rights are in issue.

32. These Interveners submit that the Court should not countenance Ontario Astepping into Canada=s shoes@ in a constitutionally questionable manner and outside the terms of the treaty. The record of Canada - Ontario disputation for over 100 years, sketched above, shows that Ontario has consistently acted against Indian land rights.

24 Osoyoos Indian Band v. Oliver (Town) [2001] 3 SCR 511 at paragraph 41 25 Ibid at paragraph 42 26 Haida Nation v. British Columbia (Minister of Forests) [2004] 3 SCR 511 at paragraph 39; Wewaykum Indian Band v. Canada [2002] 4 SCR 245, at paragraphs 78, 80 27 Dikranian v. Quebec (Attorney General), [2005] SCR at paragraphs 37, 38 28 Ontario Factum at paragraph 32 29 Ibid at paragraph 55 8

33. The Crown activity after the treaty was unilateral, without Aboriginal consent. This state of affairs should not be permitted to continue.

“... unilateral Crown action ... not only ignores the mutual promises of the treaty, both written and oral, but also is the antithesis of reconciliation and mutual respect.”30

“Some cases may even require the full consent of the Aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to Aboriginal lands.”31

34. Consent is called for not only in the judgements of this court but also by the United Nations Declaration of the Rights of Indigenous peoples.32

35. Ontario=s present position that as a Crown entity it is obliged to respect treaty rights is Anew found@33. If Ontario returns to form, when not before the courts, First Nations will have to pursue extra-judicial remedies, or be forced to bring complex court actions, that they cannot afford.34

36. These Interveners submit that the better course for this Court is to correct the fact that Aboriginal people were left out of not just the old court cases, but the entire process of treaty implementation. After they signed the treaty they were effectively discarded, as were their land rights, despite their understanding that land and resources were to be shared.35 They had no part in the series of agreements, statutes and cases cited above. The rights of governments and of private third parties were assiduously protected lest they be disturbed in the slightest by any Indian interest, while Indian interests were ignored or whittled down. It is not appropriate to permit this process to continue.

37. These Interveners specifically endorse the relief sought by the party intervener Wabauskang First Nation, that the Court of Appeal’s decision that Ontario can unilaterally take up lands under the treaty be set aside; and also that the infringement question be determined in the second phase of the trial, where there can be a full record.

38. But these Interveners ask for an additional related order. They submit that this Court should require that there be Aboriginal consent if the treaty is to be applied such that Ontario replaces Canada

30 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), [2005] 3 SCR 388 at paragraph 49 31 Delgamuukw v British Columbia, [1997] 3 SCR 1010 at paragraph 168 32 Articles 19, 28.1, 32.2, published by the United Nations, Munich 2008 33 SCJ at paragraph 1208 34 ...Aprotracted litigation has become the sport of kings in the sense that only kings or equivalent can afford it@. (Kerr v. Danier Leather Inc., [2007] 3 S.C.R. 331, per Binnie, J. at paragraph 63) 35 SCJ paragraphs 486,510, 630,730,781-3,794, 795-801,803,913,917,926,1118,1182-1191,1191,1236,1293,1295,1573,1631 9 as the emanation of the Crown to take up land and thereby remove it from the inventory where harvesting rights may be exercised. The required consent to be:

- retroactive, so as not to impact existing tenures, - not unreasonably withheld, to permit adjudication if necessary, and - given prior to phase two of the trial, to encourage settlement of all issues by negotiation and within a reasonable time.

39. Any change from Canada being the Crown entity that can take up land under the treaty to Ontario being that entity should have occurred only with the informed consent of the Aboriginal parties to the treaty. Obtaining such consent would have entailed agreement settling appropriate terms and procedures to be followed if land is to be taken up by Ontario. It is not too late for the Crown to carry out the consultation that should have occurred long ago, so that Aboriginal consent can be given, and reconciliation of the parties can be achieved in regard to the difficult issues raised in this case.

40. These Interveners point out one problem, however, that stands in the way of Crown - Aboriginal negotiations. As long as the Mikisew decision is capable of being interpreted such that when land is taken up infringement does not occur until “no meaningful right” remains, it will be difficult for negotiations to succeed36.

41. Such a “tipping point” theory is not consistent with this Court’s treatment of consultation, where there is a spectrum, depending on the strength of the Aboriginal interest.37 For example, what if dams are to be built that will flood vast territories, but there will still be at least some hunting and fishing possible on now isolated islands? Is there no infringement, because a First Nation`s entire territory is not submerged and therefore the tipping point was not reached?

42. In Mikisew the taking up issue was addressed not in the abstract, but by reference to oral promises made at the time of , and by reference to individual First Nations.

“If the time comes that in the case of a particular Treaty 8 First Nation “no meaningful right to hunt” remains over its traditional territories, the significance of the oral promise that “the same means of earning a livelihood would continue after the treaty as before it” would clearly be in question, and a potential action for treaty infringement, including the demand for a Sparrow justification, would be a legitimate First Nation response.”38

36 Ontario`s factum at paragraph 51 is to this effect 37 Haida footnote 27 at paragraphs 43 - 45 38 Mikisew footnote 32 at paragraph 48 10

43. Oral promises in this treaty obviously were not identical with such promises in other treaties, and the situations of individual First Nations are equally obviously unique to the particular community. Thus these Interveners ask the Court to make it clear that Mikisew 's references to "no meaningful rights" is not to a tipping point in place of a spectrum, and that the question of at what point taking up ofland constitutes infringement depends on the treaty including its oral terms and on the particular situation of the affected First Nation.

44. Further, although these Interveners deny that Ontario can take up land under the treaty, if the decision of the Court of Appeal in respect of this question is affirmed, the lack of Aboriginal consent still constitutes a legally impermissible lacuna. These Interveners therefore request the above order requiring Aboriginal consent, whether the appeal herein is allowed or dismissed.

PART IV -SUBMISSIONS ON COSTS

45. These Interveners seek no costs and ask that no costs be awarded against them.

PART V - ORDER SOUGHT

46. These Interveners request an order granting them leave to present oral argument not exceeding ten (10) minutes at the hearing of this matter.

All of which is respectfully submitted this '2!T/1" day of April, 2014.

R. Colborne, Counsel for the Interveners, Ochiichagwe'Babigo'Ining first Nation, Ojibways ofOnigaming First Nation, Big Grassy First Nation, Naotkamegwanning First Nation 11

Part VI – Table of Authorities Page Canadian Pacific Ltd. v. Paul [1988] 2 S.C.R. 654 6 Delgamuukw v British Columbia, [1997] 3 SCR 1010, [1997] SCJ No. 108 8 Dikranian v. Quebec (Attorney General), 2005 SCC 73 [2005] S.C.J. No. 75 7 Guerin v. The Queen [1984] 2 SCR 335, at 382 6 Haida Nation v. British Columbia (Minister of Forests) (2004), 245 D.L.R. (4th) 7, 9 33 (S.C.C.) Keewatin v. Ontario (Minister of Natural Resources) 2013 ONCA 158 3 Keewatin v. Ontario (Minister of Natural Resources) 2011 ONSC 3, 4, 5, 8 Kerr v. Danier Leather Inc., [2007] 3 S.C.R. 331, 2007 SCC 44 8 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 8, 9 SCC 69, [2005] 3 SCR 388 Ontario Mining Co. v. Seybold (1899), 31 O.R. 386 (H.C.), aff'd (1900), 32 O.R. 1, 4, 5 301 (Div. Ct.), aff'd (1901), 32 S.C.R. 1, aff'd (1902); [1903] A.C. 73 (P.C.) Osoyoos Indian Band v. Oliver (Town) (2001), 206 D.L.R. (4th) 385 7 R. v. Sparrow [1990] 1 SCR 1075 6 Smith v. The Queen (1983), 147 D.L.R. (3d) 237 (S.C.C.) 5, 6 St. Catherine’s Milling and Lumber Co. v The Queen (1888), 14 AC 46 (PC); 1, 4, 6 affirming (1887), 13 S.C.R. 577; affirming (1886), 13 O.A.R. 148 (C.A.); affirming (1885), 10 O.R. 196 (Ch. Div.) Wewaykum Indian Band v. Canada [2002] 4 SCR 245, at paragraphs 78, 80 7

Part VII – Statutes and Other References

An Act for the settlement of questions between the Governments of Canada and 2 Ontario respecting Indian Lands, S.O. 1891, c. 3, s. 1 and Schedule; An Act to confirm the title of the Government of Canada to Certain Lands and 5 Indian Lands, S.O. 1915, c. 12 An Act for the Settlement of Certain Questions between the Governments of 5 Canada and Ontario Respecting Indian Reserve Lands, S.C. 1924, c.4 United Nations Declaration on the Rights of Indigenous Peoples, Articles 19, 8 28.1, 32.2, published by the United Nations, Munich 2008 Indian Lands Agreement (1986) Act, S.C. 1988, C. 39 5 Indian Land Agreement Confirmation Act, 1989 5 Indian Lands Agreement (1986) Confirmation Act, 2010, c.1, Schedule 10 5

12

54-55 VICTORIA.

CHAP. 5. An Act foL' the settlement of eel'tain qnestions between the Governluents of Canada and Ontario respect­ ing Indian Lq,nds. [Assented to 10th July, 1891.] ER MA.JF:STY, by and with the advice and consent of H the Senate and House of Commons of Canada, enacts as follows :-

1. It shall be lawful for the Governor in Council, if he shall Pow'dtl con­ see fit, to enter into an agreement with the Government of fem . Ontario in accordance with the terms of the draft of a proposed agreement contained in the schedule to this Act, with any modification or additional stipulations which may be agreed to by the two Governments; and such agreement, when entered Effect uf into, and every matter and thing therein, shall be as binding agn·emellt. on the Dominion of Canada as if the same were specified and set forth in an Act of this Parliament; and the Governor in Enforcement Council is hereby authorized to carry out the provisions of the thereof. agreement so to be entered into.

SCHEDULE. Agreement made on bebalfof the Government of Canada on the one part, and on behalf of the Government of Ontario on the other part. Whereas by Articles of a 'rreaty made on the third of Octo­ ber, one thousand eight hundred and seventy-three, between lIer Most Gracious :Majesty the Queen, by Her commissioners the Honourable Alexander Morris, Lieutenant Governor of Manitoba and the North-West Territories, Joseph Albert Norbert Provencher and Simon James Dawson, on the one part, and the tribe of the Ojibbeway Indians, inha­ bitants of the country \"ithin the limits thereinafter defined and described, by their chiefs, chosen and named as thereinafter mentioned, of the other part, which said treaty is usually 79 known 13 2 Chap. 5. Indian Lands. 54-55 VICT. known as the North-West Angle Treaty, No.3, the Saulteaux tribe of the Ojibbeway Indians and all other the Indians inhabiting tho country therein defined and described surren­ dered to Her Majesty all their rights, titles and privileges whatsoever to the lands therein defined and described on cer­ tain terms and considerations therein mentioned: And whereas by the said treaty, out of the lands so sur­ rendered, reserves were to be selected and laid aside for the benefit of the said Indians; and the said Indians were amongst other things hereinafter provided to have the right to pursue their avocations of hunting and fishing throughout the tract surrendered, subject to Elich regulations as might, from time to time, be made by the Government of the Dominion of Canada, and saving and excepting such tracts as might, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by the said Government of the Dominion of Canada or by any of the subjects thereof duly authorized therefor by the said Governmeut : And whereas the true boundaries of Ontario have since · been ascertained and declared to include part of the territory surrendered by the said treaty, and other territory north of the height of land with respect to which Indians are nnder­ stood to make a claim as being occupants thereof, according to their mode of occupying, and as not having yet surrendered their claim thereto or interest therein: And whereas before the true boundaries had been declared as aforesaid, the Government of Canada had selected and set aside certain reserves for the Indians in intended pursuance of the said treaty and the said Government of Ontario was no party to the selection, and has not yet concurred therein: And whereas it is deemed desirable for the Dominion of Canada and the Province of Ontari9 to come to a friendly and just understanding in respect of the said matters, it is there­ fore agreed as follows :- 1. With respect to the tracts to be, from time to time, taken np 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. 2. That to avoid dissatisfaction or discontent among the Indians, full enquiry will be made by the Government of 80 Ontario 14 1891. Indian Lands. Ohap.5. 3

Ontario as to the reserves heretofore laid out in the territory, with a view of acquiescing in the location and extent thereof unless some good reason presents itself for a different course. 3. That in case the Government of Ontario after such enquiry is dissatisfied with the reserves or any of them already selected, or in case other reserves in the said territory are to be selected, a joint commission or joint commissions shall be appointed by the Governments of Oanada and Ontario to settle and determine any question or all questions relating to such reserves or proposed reserves. 4. That in case of aU Indian reserves so to be confirmed or hereafter selected, the waters within the lands laid out or to be laid out as Indjan reserves in the said territory, including the land covered with water lying between the projecting head­ lands of any lake or sheets of water, not wholly surrounded by an Indian reserve or reserves, shall be deemed to form part of such reserve, including islands wholly within such headlands, and shall not be subject to the public common right of fishery by others than Indians of the band to which the reserve belongs. 5. That this agreement is made without prejudice to the jurisdiction of the Parliament of Oanada, witb respect to inland fisheries under the British North America Act, one thousand eight hundred and sixty-seven, in case the same shall be decided to apply to the said fisheries herein mentioned. 6. That any future treaties with the Indians in respect of territory in Ontario to which they have not hitherto surren­ dered their claim aforesaid, shall be deemed to req1lire the concurrence of the Government of Ontario.

OTT A \V A; PI"int",d uy BROW~ CHA:lIUEUr.t~, L:lw }>I"intt'r to the Qllt't'n'l; l\Io~t Exct'Ut'nt ~1ajesty"

81 OHAP. 15

II Ohap. 12. CON'PIRlUTIOK 01 TITLa or DOXINION. 5 OM. V.

ClIAPTER 12.

An Act to confil m the title of the Government ot Canada to certain lands and Indian Lands. A.uented to 8th April, 1916.

HEREAS under a treaty known as " The N orthweet W Angle Treaty, No.3," certain Indians 8urreu...... red to Her late Majesty Queen Victoria ail their rights, titles and privileges to the lands therein d~ed and described, out of which reserves were to be seloot.ed and laid aside for the benefit of the said Indians; and whereas after the true boundaries of Ontario had been ascertained and declared it was found that certain of the reserves \!elected and laid aside were within the said boundaries; and whereas in pursuance of the terms of an agreement dated 16th April, 1894, between the Government of Canaa~ and the Go"ernment of Ontaric, ilie Government of Ontario has made lull enquiry as to We said reserves 80 laid out, and it bas b~n decided to acquic3ce in the location and extent thereof with the exception of that known 118 Indian Resernl 240. in the Quetioo Foreot Resen-e, and subject to the modifications and additioDal stipulations of said agreement hereinafter set forth; alld whereas the GO\ ernment of Canada has deposited in the P"partment of I-ands. Forest~ lind Mines "f Olli.ario piaoB of said reservr,s;

Therefore n;., Majesty, hy and ,\"ith the advi('e and con­ I I Bent of the LC!riaJnti\ C' Asse-mhl.v nt the Pr",\ iuee of Ontal'1o, 1\ onacts 118 tollows;-

: r Lands traM- 1. Tho said rr ~(,T\rs as shown on said »Jans, with tbe ex­ , feJ'l"ed to I DominIon <'eption of rn~.inn Reserve 24-C, ill the Quetico FOl'eflt I I' ~~n~~:rl Rf'Srr\'f', arp lH'Trh" transferred t:Q thr Go\'ernmcn t of I Canllda. whose' ti Ih,' thorrto is hf'fC'h.Y confirmen. find subject to 1111 tru8ts, condition~ IInil q1lalificlltions now o"{isting rE'­ ~p{'('tin/!: lands lleld in tl'll~t bv the Government of Oanndn for TIldin1l8 and (\IIhj('(·t to 1111' provi~ion!\ 0)[ tlll' foll (,wing 1\('('1 inns. 16

1915. CONFIRMATION OJ!' TITLE OF D01UNION. Chap. 12. 33

2. All water powers which in their natural condition &t!~~r;!:~~n the average low stage of water have a greater capacity thaopowet8. 500 horsepower, and s\1ch alea of land, including roa:.!s in connection therewitb, as 'may be oecesstlry for the de\'eJop- ment and utilization thereof, and the Jund co.ered with water lying between the projecting headlands of any lake or sheets of water not wholly surrounded by Itn Indian rf:l'lerre or reserres aod islands wholly within such headlands shall not ,be deemed to fQIIm part of Buch reserve, but shall coo- tinue to be the property of the Province, and The Bed of Navigable Waters Act shall apply, notwithstanding any-Rev. Slat thing contained in the fourth paragraph of the agreemen! c. 31. hereinbefore mentioned.

3. The area of the said reserves BO transferred has becn Arlee. anfd pr ce 0 computed and settled at 20,672 aCfes, and p:lJrnent therc-1e.M. for at $:!. per acre, being the S11m of $20,672. i. s to bE: madp by the Goyernment of Canada to the Government of Ont.ll'ir. .

4. In case of the exercise by the Go':ernmcnt of OntarioCompen8l!.­ of the rights as to water powers under the provisions ofi~O~a~()s SOO.lon" 2 0 f tlh'IS Act , CGmpellSatlOll'h s a II be pal'd b-:> sal'dwlIerecrown exercl&es the (If ~ht.st"" Government. to Superintendent-Genera1_ Indi:m "" we. er A~al!'s for the benefit ot the Indians to the extent o{powets. ten per cent. of all moneys rc'Cei,ed in connt'l: 1ir .n therp- with, whcthrr for purchases, rentals, ro;valties ()r otherwisp.

CH.\I'T EI{ 17

40 Chap. 15. INDIAN LANDS. 14 Geo. V.

CHAPTER 15.

An Act for the settlement of certain questions between the Governments of Canada and Ontario respecting Indian Reserve Lands.

Assented to 17th April, 1()24.

IS MAJESTY, by and with the advice and consent of H the Legislative Assembly of the Province of Ontario, enacts as follows :-

Short title. 1. This Act may be cited as The Indian Lands Act, 1924.

Agreement 2. The agreement between the Dominion of Canada and w1thDom- '4°11., tf the Province of Ontario, in the terms set out in Schedule ?n3~~1~n~8 . "A" hereto, shall be as binding on the Province of Ontario as if the provisions thereof had been set forth in an Act of this Legislature, and the Lieutenant-Governor in Council is hereby authorized to carry out the provisions of the said agreement.

SCHEDULE "A". Memorandum of Agreement made in triplicate this 24th day of March, 1924. Between:

THE GOVBRNMnNT OF TlIE DOMINION 011 CANADA, acting herein by the Honourable Charles Stewart, Superintendent Gentral of Indian AlTairs, of tht first part, -and-

TUB GOVBRNMBNT OF THB PROV1N~B OF ONTARIO, acting herein by the Honourable James Lyone, Minister of Lands and Forests, and the Honourable Charles McCrea, Minister of Mines, of the second part. Whereas (rom time to time treatiea have been made with the Indiana (or the surrender for various considerations of thdr personal and UIU­ fructuary rights to territoriea now included in the Province of Ontario such conliderationl includinl{ the eetting apart (or the exclu.ive uee ot the Indiana of cerlain defineo areas of land known as Indian Reaervel;

And whereaa, except 81 to 5uch Reserves, the said territories were by the said treatiel freed, for the ultimate benefit of the Province of Ontari0l of the burden of the Indian ri,htl, and became .ubject to be adminllterea by the Government of the laid Province for the 8()le benefit thereof; And 18

1924. INDIAN LANDS. Cha~. 15. 41

And whereae the 8urrender of the whole or lOme portion of a Reserve by the band of Indians to whom the same was allotted has, in respect of certain Reserves in the Provinces of Ontario and Quebec, been under consideration in certain appeals to the Judicial Committee of the Privy Council. and the respective rights of the Dominion of Canada and the Province of Ontario, upon 8uch surrenders being made. depend upon th!' law as declared by the Judicial Committee of the Privy Council and otherwise affecting the Reserve in question, and upon the circumstances under which it was set off; And whereas on the 7th day of July, 1902. before the determination of the last two of the said appeals, it had been agreed between counsel for the Governments of the Dominion of Canada and the Province of Ontario, respectively, that, as a matter of policy and convenience, aDd \IIithout thereby affecting the constitutional or legal rights of either of the said Governments, the Government of the Dominion of Canada should have full power and authority to sell, lease and convey title- in fee simple or for any less estate to any lands forming part of any Reserve thereafter surrendered by the Indians, and that any such sales, leases or other con­ veyances 3S had theretofore been made by the said Government should be confirmed by the Province of Ontario, the Dominion of Canada. how­ ever, holding the proceeds of any lands so &Old. leased or conveyed subject, upon the extir.cbon of the Indian interest therein and so far as such proceeds had been converted into money, to such rights of the Province of Ontario as might exist by law; And whereas by the said agreement it was further provided that, as to the Reserves set aside for the Indians under a certain treaty made in 1873 and recited in the Schedule to the Dominion Statute, 54-55 Victoria. chapter 5, and the Statute of the Province of Ontario. 54 Victoria, chapter 3, the precious metals should be considered to form part thereof and might be disposed of by the Dominion of Canada in the same way and subject to the same conditions as the land in which they existed, and that the question whether the precious metals in the lands included in Reserves set aside under other treaties were to be considered as forming part thereof or not, should be expressly left for decision in accordance with the cir­ cumstances and the law gov~ming each. Now this agreement witnesseth that the parties hereto, in order to settle all outstanding questions relating to Indian Reserves in the Province of Ontario, have mutually agreed, cubject to the aPl?rovaJ of the Parlia­ ment of Canada and the Legislature of ~he ProvlOce of Ontario, as follows:-

1. All Indian Reserves in the Province of Ontario heretofore or here · after set aside, shall be administered by the Dominion of Canada for the benefit of the band or bands of Indians to which each may have been or may be allotted; portions thereof may, upon their surrender for the purpose by the said band or bands, be sold, leased or otherwise disposed of by letters patent under the Great Seal of Canada. or otherwise under the direction of the Govemment of Canada, and the rroceeds of such sale. lease or other disposition applied for the benefit 0 such band or bands, provided, however, that in the event of the band or bands to which any 8uch Reserve has bee-n allot~ed becoming extinc:t. or if, for any other reason, such Reserve, or any portion thereof, is declared by the Superintendent General of Indian Affairs to be no longer required for the benefit of the lIlIid band or banos, the same shall theleafter be administered by, and (or the benefit of, tlte Province of Ontario, and any balance of the pr~ds of the sale or other disposition of any portion thereof then remaining under the control of the Dominion of Canada shall, 10 far as the same is not still required to be allPlied for the benefit of the said band or bands of Indiana, be paid to the Province of Ontario, tOiether with accrued unexpended simple interest thereon. 2. Any 88le, lease or other disposition made pursuant to the provisiona of the last preceding paragraph may include or may be limited to the mineral, (including the precious metals) contained in or under the landa IOld, leal!'d or otherwiae diaposed of, but every grant ahall be 8ubject to the provi,ioll' of the Statute of the Province of Ontario entitled, "The Bed ('f Navigable Waters Act," Revised Statutes of Ontario, 1914, Chapter 31. 1.

DIGITAl. 19

42 Chap. 15. INDIAN' LANDS. 14 Geo. V.

3. Any penon authorized under the laws of the Province of Ontario lo enter upon land for the purpose of prospecting (or minerals thereupon shall be permitted to prOIl~t for minerals in any Indian Reserve upon obtaining permission so to do from the Indian Agent for 8uch Reserve and upon complying with lIuch conditions all may be attached to 8uch permission, and may stake out a mining claim or claims on such Reserve.

4. No person not 80 authorized under the laws of the Province of Ontario shall be given permission to prospect (or minerals upon any Indian Reserve.

5. The rules governing the mode of staking and the size and number 0 f mining claims in force from time to time in the Province of Ontario or in the part thereor within which any Indian Rellerve lies shall apply to the staking of mining claims on any such Reeerve, but the staldng of a mining claim upon any Indian Reserve shall confel' no rights upon the person by whom such claim is staJced except such 38 may be attached to such staking by The Indian Act or other law relating to the disposition of Indian Lands. 6. Except as provided in the next following paragraph, one·half of the consideration payable, whether by way of purchase money, rent, royalty or otherwise, in respect of any !'ale, lease or olher disposition of a minin, claim staked as aforesaid, and, if in any.other sale, lease or other dispoSI­ tion hereafter made of Indian Reserve lands in the Province of Ontario. any minerals are included, and the consideration for such sale, lease or other disposition was to the knowledge of the Department of Indian Affairs affected by the existence or supposed existence in the said lands of such minerals, one·half of the consideration payahle in respect of any lIuch other sale, lease or other disposition. shall forthwith upon its receipt from time to time. be paid to the Province of Ontario; the other half only shall be dealt with by the Dominion of Canada as provided in the paragraph of this agreement numbered 1. 7. The last preceding paragraph shall nol apply to the sale, lease or other disposition of any mining claim or minerals on or in any of the .,. lands set apart as Indian Reserves pursuant to the hereinbefore recited treaty made in 1873. and nothing in this agreement shall be deemed to i detract from the rights of the Dominion of Canada touching any lands or minerals granted or conveyed by His Majesty for the use and benefit , of Indians by letters patent under the Great Seal of the Province of ,. Upper Canada. of the Province of Canada or of the Province of Ontario, or in any minerals vested for such use and bc:nefit by the operation upon any such letters patent of any statute of the Province of Ontario. 8. No water power included in any Indian Reserve, which in its natural ccndition at the average low stage of water has a ~(eater capacity than 500 hor5e-\>Ower, shall be dispoIWd of by the Dominaon of Canada except with the consent of the Gov

9. Every sale, lease or other disposition heretofore made under the Great Seal of Canada or otherwise under the directions of the Government of Canada of lands wt.i.:h were at the time of such sale, lease or other disposition included in any Indian Reserve in the Pr('vince of Ontario, i. hereby confirmed, whether or not such sale, lease or other disposition included the precioUII metals, but subject to the provisions of the aforesaid statute of the Province of Ontario entitled "The Bed of Navig-olble Wate" Act," and the consideration received in respect of any such sale, leaec or other disposition shall be and continue to be dealt with by the Dominion of Caanda in accordance with the provisions of the parag~aph of thi. agreement numbered I, and the consideration received in rupect of any sale, lease or other disposition heretofore made under the Great Seal of the Province of Ontario, or under the direction of the Government of the laid Province of any lands which at any tit:1e formed part of an)' Indian Reserve, .hall remain under the exclusive control and at the disposition o( the Province of Ontario. 10. 20

•

1924. INDIAN LANDS. Chap. 15. 43

10. Nothing herein contained, except the provision for the application of The Bed of Navigable Waters Act aforesaid, shall affect the interpretation which would apart from this agreement, be put upon the words of any letters ~tent heretofore or hereafter issued under the Great Seat of Canada or the Great Seal of the Province of Ontario, or of any lease or other con· veyance, or of any contract heretofore or hereafter made under the direction of the Government of Canada or of the Provinc:e of Ontario. In witness whereof these presents have been signed by the parties thereto the day and year above written. Signed on behalf of the Governml'nt of Canada by the Honourable Charles Stewart, Superintendent General of eRAS. STEWART. I ndian Affairs, in the presence of:

DUNCAN C. SCOTT. Sil[ned on behalf of the Government of the Province of Ontar;v by the Hon· JAMES LYONS (L.S.) ourable James Lyons, Minister of Lands and Forests, and by the Hon· ourable Charles McCre,l, Minister of C. MCCREA (L.S.) Mines. in the presence of: W. C. CArN.

CHAPTER

OGTAl 21

35-36-37 ELIZABETH II 35-36-37 ELIZABETH II

CHAPTER 39 CHAPITRE 39

An Act to provide for the implementation of Loi de mise en oeuvre d'un accord concernant an agreement respecting Indian lands les terres indiennes de I'Ontario in Ontario

[Assented to 28th July. 1988] [Sanctionnee Ie 28 juillet 1988]

Her Majesty, by and with the advice and Sa Majeste, sur I'avis et avec Ie consente­ consent of the Senate and House of Com­ ment du Senat et de la Chambre des commu­ mons of Canada, enacts as follows: nes du Canada, edicte :

Short title 1. This Act may be cited as the Indian 1. Titre abrege : £oi sur ['accord de 1986 Titre abrege Lands Agreement (1986) Act. concernant les terres indiennes.

Definitions 2. In this Act, 2. Les definitions qui suivent s'appliquent Definitions "agreement" "agreement" means the agreement between a la presente loi. .accord. the Government of Canada and the Gov­ «accord» Accord concJu entre Ie gouverne­ .accord. Uagreemtnl" ernment of Ontario set out in the schedule; ment du Canada et Ie gouvernement de "specific "specific agreement" means a specific agree­ I'Ontario et figurant a I'annexe. agreement" ment referred to in the agreement, entered «accord particulier» Accord particulier vise a -accord .accord particulier­ parriculief> into by the Government of Canada, the I'accord et concJu conformement a celui-ci "specific Government of Ontario and a band of entre Ie gouvernement du Canada, Ie gou­ agreement" Indians or group of bands of Indians pur­ vernement de l'Ontario et une bande ou un suant to the agreement. groupe de bandes d'Indiens.

Binding on Her 3. The agreement shall be binding on Her 3. L'accord lie Sa Majeste du chef du Obligation de Majesty Sa Majeste Majesty in right of Canada and the Gover­ Canada et Ie gouverneur en conseil est auto­ nor in Council is hereby authorized to carry rise a en mettre en oeuvre les dispositions. out the provisions of the agreement.

Indian Act to 4. The Indian Act shall continue to apply 4. La Lo; sur les Indiens continue de s'ap­ Application de apply I. lDi sur les to reserve lands and surrendered lands that pliquer aux terres des reserves et aux terres Indi.ns are the subject of a specific agreement. cedees faisant I'objet d'un accord particulier.

Regulations 5. The Governor in Council may make 5. Le gouverneur en conseil peut prendre Rtglements regulations respecting the procedures to be des reglements concernant la procedure de adopted for the confirmation of a specific ratification d'un accord particulier confor­ agreement under paragraph \O(a) of the mement a l'alinea lOa) de l'accord. agreement.

1079 22

2 C.39 Indian Lands Agreement (1986) 35-36-37 ELlz. II

Specific 6. (1) Where a band confirms a specific 6. (I) Dans les cas ou une bande ratifie un Accords ••rccmenll agreement pursuant to paragraph 10(a) or accord particulier conformement A I'alinea paniculim (b) of the agreement, the specific agreement lOa) ou b) de I'accord, eet accord particulier and any notification from the council of the et tout avis du conseil de bande vise A I'alinea band referred to in paragraph lO(b) of the lOb) de I'accord lient les membres presents agreement bind all existing and future mem­ et futurs de la bande, de meme que Ie conseil bers of the band and the council of the band de la bande et ses successeurs. and its successors. Effect or (2) For greater certainty, where a specific (2) II demeure entendu que l'accord parti­ Obliption de confirmation agreement is confirmed by order of the Gov­ culier ratifie par deeret du gouverneur en Sa Majcst~ ernor in Council, by order of the Lieutenant conseil, par deeret du lieutenant-gouverneur Governor of Ontario in Council and by the en conseil de I'Ontario et par la bande visee band to which the specific agreement relates, lie Sa Majeste du chef du Canada. the specific agreement shall be binding on Her Majesty in right of Canada. CominB into 7. This Act or any provision thereof shall 7. La presente loi ou telle de ses disposi­ Entr6ccn force come into force on a day or days to be fixed tions entre en vigueur Ii la date ou aux dates viBlicur by proclamation. fixees par proclamation.

1080 23

1988 Accord de 1986 concernanlies lerres indiennes cb. 39 3

SCHEDULE ANNEXE (Section 2) (article 2) THE 1986 INDIAN LANDS AGREEMENT ACCORD DE 1986 SUR LES TERRES INDIENNES The Agreement witnesseth that the parties hereto have L'accord atteste que les parties se sont entendues sur ce qui agreed as follows: suit: I. Definitions I. Definitions (a) "Band", "Council of the Band", "Surrender", "Cus· a) cbande», .cession-, cconseil de la bande», ccoutume» et tom", and "Indian" have the same meaning as those words in clndien. S'entendent au sens de la £oi sur les Indiens, the Indian Act, R.S.C. 1970, c. 1-6, as the same may be chapitre 1-6 des Statuts revises de 1970, y compris ses amended from time to time; modifications; (b) "land" includes any interest in land; b) cmineraux. Sont compris parmi les mineraux I'or, I'argent (c) "minerals" includes gold, silver and all other metals, et tous les autres metaux, precieux ou communs, de meme precious and base, and coal, natural gas, oil, salt, sand and que Ie charbon, Ie gaz naturel, Ie petrole, Ie sel, Ie sable et Ie gravel; gravier; (d) "1924 Agreement" means the agreement between c)

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4 C. 39 Indian Lands Agreement (1986) 35-36-37 ELlz. II rights of any band or the recourse which any band would, atteinte aux droits ou recours que detiendrait une bande a absent such agreement, have against any person or land, includ­ regard de quiconque ou de terres, y compris la Couronne ou Ie ing the Crown and Crown lands. domaine public.

7. If Canada has collected money or collects money on 7. Si Ie Canada a per~u ou per~oit des sommes d'argent pour behalf of any band or bands pursuant to sales or other disposi­ Ie compte d'une bande ou de bandes a la suite de ventes ou tions of land or interests in land, Ontario acknowledges thaI autres formes d'alienation de terres ou d'interets y afferents, Canada may continue to administer that money for the usc and l'Ontario reconnait que Ie Canada peut continuer d'administrer benefit of the band or bands, but in no case shall money ces sommes d'argent au profit et a ('usage de la bande ou des collected by Canada expressly on behalf of Ontario be deemed bandes en question, mais celles que Ie Canada per~oit expresse­ to be money collected by Canada on behalf of a band or bands. ment pour Ie compte de l'Ontario ne sont en aucun cas conside­ rees comme per~ues pour Ie compte de ceUe bande ou de ces bandes. 8. This Agreement shall come into force when it is confirmed 8. Le present accord entre en vigueur a ('entree en vigueur de by the Parliament of Canada and the Legislature of Ontario sa ratification par Ie Parlement du Canada et par la Legislature and such confirmations come into force. de (,Ontario. 9. A specific agreement shall come into force when it is 9. Un accord particulier entre en vigueur a sa ratification confirmed by Orders in Council of both Canada and Ontario tant par la bande que par decret en conseil du Canada et de and is confirmed by the band. (,Ontario. 10. Confirmation by a band of a specific agreement shall 10. II y a ratification d'un accord particulier par une bande : take place a) soit a la suite d'un referendum tenu en conformite avec les (a) by a Referendum conducted pursuant to regulations reglements que Ie gouverneur en conseil prend en application made by the Governor General in Council under the author­ de la loi de mise en oeuvre du present accord; ity of the Act of Parliament implementing this agreement, or b) soil conformement a la coutume ou a la constitution de la (b) pursuant to the band's custom or constitution, provided bande, pourvu que Ie conseil de la bande donne au ministre that the Council of the band gives written notification to the des Affaires indiennes et du Nord canadien et au ministre des Minister of Indian Affairs and Northern Development and to Ressources naturelles de l'Ontario un avis ecrit portant qu'jJ the Minister of Natural Resources for Ontario that confirma­ y a eu ratification conformement a la coutume ou a la tion took place pursuant to the band's custom or constitution, constitution de la bande, selon Ie cas. as the case may be. 11. Where a specific agreement affects or deals with lands, 11. Dans les cas ou un accord particulier concerne des terres lands affected shall be described in a schedule to the specific ou produit des effets a ('egard de terres, celles-ci doivent faire agreement. ('objet d'une delimitation en annexe de I'accord particulier. 12. No specific agreement entered into by any band shall be 12. Un accord particulier conclu par une bande ne lie une binding upon any other band or have any effect on any other autre bande ou n'a d'effet a son egard que si celle-ci I'a ratifie. band unless it has been confirmed by that other band. 13. A specific agreement may be amended by the parties or 13. Les parties a un accord particulier ou leurs successeurs their successors in the same manner as it was originally made. peuventle modifier selon les modalites de sa conclusion.

QUEEN'S PRINTER FOR CANADA (i:I IMPRIMEUR DE LA REINE POUR LE CANADA OlTAWA,1988

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Excerpts from United Nations Declaration on the Rights of Indigenous Peoples Published by the United Nations March 2008

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, far and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Article 32

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.