File No. 35379

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM A JUDGMENT OF THE 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 ATION APPELLANTS (Plaintiffs/Respondents) AND BETWEEN: LESLIE CAMERON on his own behalf and on behalf of all other members of APPELANTS (Intervener) - AND- MINISTER OF NATURAL RESOURCES AND RESOLUTE FB CANADA INC. (formerly ABITIBI-CONSOLIDATED INC.) RESPONDENTS (Defendants/Appellants) -AND- THE ATTORNEY GENERAL OF CANADA RESPONDENT (Third Party/Appellant) -AND- GOLDCORP INC. RESPONDENT (Intervener) -AND- ATTORNEY GENERAL OF , ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA, GRAND COUNCIL OF TREATY #3, BLOOD TRIBE, , , SIKSIKA NATION, WHITEFISH LAKE FIRST NATION #128, FORT McKAY FIRST NATION, TE’MEXW TREATY ASSOCIATION, OCHIICHAGWE’BABIGO’INING FIRST NATION, OJIBWAYS OF ONIGAMING FIRST NATION, , NAOTKAMEGWANNING FIRST NATION, MÉTIS NATION OF ONTARIO, COWICHAN TRIBES, represented by CHIEF WILLIAM CHARLES SEYMOUR, on his own behalf and on behalf of the members of COWICHAN TRIBES, and , ASSEMBLY OF /NATIONAL INDIAN BROTHERHOOD INTERVENERS

FACTUM OF THE INTERVENER THE GRAND COUNCIL OF TREATY #3

Peter W. Hutchins Brian A. Crane, Q.C. Zachary Davis Gowling Lafleur Henderson LLP Jessica Labranche 160 Elgin Street, 26th Floor HUTCHINS LEGAL INC. Ottawa, Ontario K1P 1C3 204, rue Saint-Sacrement, Suite 300 Montreal, Quebec H2Y 1W8

Tel : 514-849-2403 Tel: 613-233-1781 Fax : 514-849-4907 Fax: 613-563-9869 [email protected] [email protected] [email protected] [email protected]

Counsel for Intervener The Grand Agent for Intervener The Grand Council of Treaty #3 Council of Treaty #3

Robert J.M. Janes Guy Régimbald Janes Freedman Kyle Law Corporation Gowling Lafleur Henderson LLP 1122 Mainland Street, Suite 340 160 Elgin Street, 26th Floor Vancouver, British Columbia V6B 5L1 Ottawa, Ontario K1P 1C3

Tel: 250-405-3460 Tel: 613-786-0197 Fax: 250-381-8567 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Andrew Keewatin Jr. and Agent for Andrew Keewatin Jr. and Joseph William Fobister and all other Joseph William Fobister and all other members of Grassy Narrows First members of Grassy Narrows First Nation Nation

Bruce McIvor Guy Régimbald Kathryn Buttery Gowling Lafleur Henderson LLP First Peoples Law 160 Elgin Street, 26th Floor 111 Water Street, Suite 300 Ottawa, Ontario K1P 1C3 Vancouver, British Columbia V6B 1A7

Tel: 604-685-4240 Tel: 613-786-0197 Fax: 604-681-0912 Fax: 613-563-9869 [email protected] [email protected] [email protected]

Counsel for Leslie Cameron and all Agent for Leslie Cameron and all other other members of Wabauskang First members of Wabauskang First Nation Nation

Michael Stephenson Robert E. Houston, Q.C. Peter R. Lemmond Burke-Robertson LLP Mark Crow 441 MacLaren Street, Suite 200 Attorney General of Ontario Ottawa, Ontario K2P 2H3 Crown Law Office – Civil 720 Bay Street, 8th floor Toronto, Ontario M5G 2K1

Tel: 416-326-4008/416-326-4155 Tel: 613-236-9665 Fax: 416-326-4181 Fax: 613-235-4430 [email protected] [email protected] Peter.Lemmond@ontario,ca [email protected]

Counsel for the Minister of Natural Agent for the Minister of Natural Resources Resources

Christopher J. Matthews K. Scott McLean Aird & Berlis LLP Dentons Canada LLP Brookfield Place 99 Bank Street, Suite 1420 181 Bay Street Ottawa, Ontario K1P 1H4 Suite 1800, Box 754 Toronto, Ontario M5J 2T9

Tel: 416-863-4146 Tel: 613-783-9600 Fax: 416-863-1515 Fax: 613-783-9690 [email protected] [email protected]

Counsel for Resolute FP Canada Inc. Agent for Resolute FP Canada Inc. (formerly Abitibi Consolidated Inc.) (formerly Abitibi Consolidated Inc.)

Mark R. Kindrachuk, Q.C. Christopher M. Rupar Mitchell R. Taylor, Q.C. Attorney General of Canada Department of Justice Canada 50 O’Connor Street 123 - 2nd Avenue South, 10th Floor Suite 500, Room 557 Saskatoon, Saskatchewan S7K7E6 Ottawa, Ontario K1P 6L2

Tel.: 306 975-4765 Tel.: 613 941-2351 / 613 370 6290 Fax: 306 975-5013 Fax: 613 954-1920 [email protected] [email protected] [email protected]

Counsel for Attorney General of Agent for Attorney General of Canada Canada

William J. Burden Patricia J. Wilson Linda I. Knol Osler, Hoskin & Harcourt LLP Erin Craddock Suite 1900, 340 Albert Street Cassels Brock & Blackwell LLP Ottawa, Ontario 40 King Street West K1R 7Y6 Scotia Plaza, Suite 2100 Toronto, Ontario M5H 3C2

Tel: 416-869-5963 Tel: 613-787-1009 Fax: 416-640-3019 Fax: 613-235-2867 [email protected] [email protected] [email protected] [email protected]

Counsel for Goldcrop Inc. Agent for Goldcorp Inc.

Michael Conner Henry S. Brown, Q.C. Attorney General of Manitoba Gowling Lafleur Henderson LLP Constitutional Law Branch 160 Elgin Street, Suite 2600 1205 – 405 Broadway Box 466, Station D Winnipeg, Manitoba R3C 3L6 Ottawa, Ontario K1P 1C3

Tel: 204-945-6723 Tel: 613-233-1781 Fax: 204-945-0053 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Intervenor Attorney Agent for Intervener Attorney General General of Manitoba of Manitoba

Paul E. Yearwood Nadia Effendi Attorney General of British Columbia Borden Ladner Gervais LLP Aboriginal Litigation Division World Exchange Plaza 1405 Douglas Street, 3rd Floor 100 Queen Street, Suite 1300 P.O. Box 9270, Station Prov Govt Ottawa, Ontrio K1P 1J9 Victoria, British Columbia V8W 9J5

Tel: 250-356-6519 Tel: 613-237-5160 Fax: 250-387-0343 Fax: 613-230-8842 [email protected] [email protected]

Counsel for Intervener Agent for Intervener Attorney General of British Columbia Attorney General of British Columbia

Richard James Fyfe Henry S. Brown, Q.C. Attorney General of Saskatchewan Gowling Lafleur Henderson LLP Constitutional Law Branch 160 Elgin Street, Suite 2600 1874 Scarth Street, Suite 820 Box 466, Station D Regina, Saskatchewan S4P 4B3 Ottawa, Ontario K1P 1C3

Tel: 306-787-7886 Tel: 613-233-1781 Fax: 306-787-9111 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Intervener Attorney Agent for Intervener Attorney General General of Saskatchewan of Saskatchewan

Douglas B. Titosky Henry S. Brown, Q.C. Attorney General of Alberta Gowling Lafleur Henderson LLP Aboriginal Law 160 Elgin Street, Suite 2600 10025 – 102A Avenue N.W. Box 466, Station D City Centre Pl., 10 Floor Ottawa, Ontario K1P 1C3 Edmonton, Alberta T5J 2Z2

Tel: 780-643-0858 Tel: 613-233-1781 Fax: 780-643-0852 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Intervener Attorney Agent for Intervener Attorney General General of Alberta of Alberta

Meaghan M. Conroy Marie-France Major Abram B. Averbach Supreme Advocacy LLP Macpherson Leslie & Tyerman LLP 340 Gilmour Street, Suite 100 10235 – 101 Street, Suite 2200 Ottawa, Ontario K2P 0R3 Edmonton, Alberta T5J 3G1

Tel : 780-969-3500 Tel: 613-695-8855 ext. 102 Fax : 780-969-3549 Fax: 613-695-8580 [email protected] [email protected] [email protected]

Counsel for Intervener Blood Tribe, Agent for Intervener Blood Tribe, Beaver Lake Cree Nation, Ermineskin Beaver Lake Cree Nation, Ermineskin Cree Nation, Siksika Nation and Cree Nation, Siksika Nation and Whitefish Lake First Nation #128 Whitefish Lake First Nation #128

David M. Robbins Henry S. Brown, Q.C. Woodward & Co. Lawyers LLP Gowling Lafleur Henderson LLP 844 Courtney Street, 2nd Floor 160 Elgin Street, Suite 2600 Victoria, British Columbia V8W 1C4 Box 466, Station D Ottawa, Ontario K1P 1C3

Tel: 250-383-2356 Tel: 613-233-1781 Fax: 250-380-6560 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Intervener Cowichan Tribes Agent for the Intervener Cowichan Tribes

Karin Buss Marie-France Major Henning Byrne LLP Supreme Advocacy LLP 1450 – 10405 Jasper Avenue 340 Gilmour Street, Suite 100 Edmonton, Alberta T5J 3N4 Ottawa, Ontario K2P 0R3

Tel: 780-421-1707 Tel: 613-695-8855 ext. 102 Fax: 780-425-9438 Fax: 613-695-8580 [email protected] [email protected]

Kirk Lambrecht, Q.C. Shores Jardine LLP Suite 2250, 10104 – 103 Avenue Edmonton, Alberta T5J 0H8 Tel : 780-448-9275 Fax : 780-423-0163 [email protected]

Counsel for Intervener Fort McKay First Agent for Intervener Fort McKay First Nation Nation

David G. Leitch Christopher Rootham Keshen & Major Nelligan O’Brien Payne LLP 120 Second Street South 50 O’Connor Street Suite 200 Suite 1500 Kenora, Ontario P9N 1E9 Ottawa, Ontario K1P 6L2

Tel: 807-468-3073/416-322-3037 Tel: 613-231-8311 Fax: 807-468-4893 Fax: 613-788-3667 [email protected] [email protected]

Counsel for Intervener Lac Seul First Agent for Intervener Lac Seul First Nation Nation

Jason Madden Henry S. Brown, Q.C. Nuri G. Frame Gowling Lafleur Henderson LLP Pape Salter Teillet LLP 160 Elgin Street, Suite 2600 546 Euclid Avenue Box 466, Station D Toronto, Ontario M6G 2T2 Ottawa, Ontario K1P 1C3

Tel: 416-916-2989 Tel: 613-233-1781 Fax: 416-916-3726 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Intervener Metis First Agent for Intervener Metis First Nation Nation of Ontario of Ontario

Donald R. Colborne Brian A. Crane, Q.C. Barrister & Solicitor Gowling, Lafleur Henderson LLP 1125 Fort Street 160 Elgin Street, 26th Floor Victoria, British Columbia V8V 3K9 Ottawa, Ontario K1P 1C3

Tel: 807-344-6628 Tel: 613-233-1781 Fax: 807-983-3079 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Intervener Agent for Intervener Ochiichagwe’babigo’ining First Nation Ochiichagwe’babigo’ining First Nation

David G. Leitch Christopher Rootham Keshen & Major Nelligan O’Brien Payne LLP Suite 200, 120 Second Street South 50 O’Connor Street, Suite 1500 Kenora, Ontario P9N 1E9 Ottawa, Ontario K1P 6L2

Tel: 807-468-3073/416-322-3037 Tel: 613-231-8311 Fax: 807-468-4893 Fax: 613-788-3667 [email protected] [email protected]

Counsel for Intervener Sandy Lake Agent for Intervener Sandy Lake First First Nation Nation

Karey Brooks Brian A. Crane, Q.C. Janes Freedman Kyle Law Corporation Gowling, Lafleur Henderson LLP 1122 Mainland Street, Suite 340 160 Elgin Street, 26th Floor Vancouver, British Columbia V6B 5L1 Ottawa, Ontario K1P 1C3

Tel: 604-687-0549 Tel: 613-233-1781 Fax: 604-687-2696 Fax: 613-563-9869 [email protected] [email protected]

Counsel for Intervener Te’mexw Treaty Agent for Intervener Te’mexw Treaty Association Association

Joseph J. Arvay, Q.C. and Jeffrey W. Beedell Catherine J. Boies Parker Gowling Lafleur Henderson LLP Farris, Vaughan, Wills & Murphy LLP 2600 – 160 Elgin Street PO Box 10026, Pacific Centre South Ottawa , ON K1P 1C3 25th Floor, 700 West Georgia Street Vancouver BC V7Y 1B3 Tel: 604-684-9151 Tel: 613-786-0171 Fax : 604-661-9349 Fax: 613-788-3587 [email protected] [email protected]

Counsel for Intervener, Assembly of Agent for Intervener, Assembly of First First Nations/National Indian Nations/National Indian Brotherhood Brotherhood

- i -

Table of Contents Factum of the Intervener Grand Council of Treaty #3

Part I – Overview ...... 1 Part II – Questions in Issue ...... 2 Part III – Argument ...... 2 A. The Parties Intended that only the Federal Government Could Take Up ...... 3 The Crown’s Intentions ...... 3 The Anishinaabeg’s Intentions ...... 4 B. The 1891/1894 Legislation/Agreement neither Confirmed nor Amended Treaty 3 ...... 7 C. Remedies and Reconciliation ...... 8 Part IV – Submissions on Costs ...... 10 Part V – Orders Sought ...... 10 Part VI – List of Authorities ...... 11 Part VII – Schedule of Status and Treaties ...... 13 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 ...... 13 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 ...... 15 Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) ...... 17 Treaty No. 3, signed 3 October 1873 ...... 17

- 1 -

PART I – OVERVIEW “For my part, I would have the fullest reliance as to these Indians observing a treaty and adhering most strictly to all its provisions, if, in the first place, it were concluded after full discussion and after all its provisions were fully understood by the Indians, and if, in the next, it were never infringed upon by the whites, who are generally the first to break through Indian treaties”1

1. Canada and Ontario broke through Treaty 3 and the Court of Appeal condoned this. This Court can repair the damage done.

2. The Grand Council suggest that Sioui articulated the true consequence of treaty making – unilateral action is foreclosed – and Mikisew identified the leitmotif of modern treaty law: reconciliation through acknowledging and honouring what lay behind the parties’ desire to make treaty and their understanding of what they were doing.2

3. In making Treaty 3, the Anishinaabeg sought to protect their lifestyle and resource use from encroaching settlers. Canada sought the Anishinaabeg’s cooperation and friendship to secure a route west. The prevailing policy was to protect First Nations by interposing Canada between them and provincial governments, which represented settlers’ interest. The taking up clause, as written, reconciles the parties’ intentions.

4. In interpreting the taking up clause, the Court of Appeal ignored the Treaty’s text and the evidence of the parties’ intentions. It found that, as beneficial owner of Treaty 3 lands in the province, only Ontario can take up such lands. The Court of Appeal erred and failed to interpret Treaty 3 so as to uphold the Crown’s honour: it disregarded both the Treaty and Canada’s exclusive authority under s. 91(24) to permit activities – such as settlement, mining, lumbering – that are incompatible with continued Anishinaabeg harvesting. It ignored the limits – existing trusts and interests other than the province’s – that s. 109 places on provincial ownership.

5. Legislation passed by both Canada and Ontario in 1891 and an Agreement they ratified in 18943 purported to empower Ontario to take up Treaty 3 lands in the province. The Court of

1 Dawson Report on the Line of Route between Lake Superior and the Red River Settlement (1868) at p. 28, Exhibit 1-4, tab 53;AR Vol 15, Tab 67, p. 21 2 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005] 3 SCR 388 [Mikisew] at para. 1, Book of Authorities of the Appellant, Grassy Narrows First Nation, (“GBA”), Vol. I, tab 15, R. v. Sioui, [1990] 1 SCR 1025 at 1063 [Sioui], BA, tab 11 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, AR, Vol, 37, Tab 76, p. 148; 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, AR,

- 2 -

Appeal found that this confirmed Ontario’s power to take up lands under the Treaty 3 regime. Again, it erred. The Anishinaabeg did not sign the 1894 Agreement. They were not consulted during its negotiation or the accompanying legislative process. The 1891/1894 Legislation/Agreement cannot confirm the Treaty 3 regime; it does not reflect the Anishinaabeg’s intentions.

6. The Anishinaabeg, Canada, and Ontario all have parts to play in authorizing activities and uses of Treaty 3 lands that effect Anishinaabeg harvesting, the specifics of which would best be defined by an agreement between these three actors framed by this Court’s directions. The Grand Council urges this Court to set the stage for true cooperative federalism in Treaty 3 territory to direct the negotiation of an agreement that would cast Canada’s three distinct orders of government – federal, provincial, and Aboriginal4 – in mutually supportive roles.

PART II – QUESTIONS IN ISSUE

7. The Court of Appeal erred 1) in holding that the province has the exclusive right to “take up” tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the Appellants to hunt or fish as provided for in Treaty 3 and 2) in setting aside the Trial Judge’s findings of fact concerning the interpretation of Treaty 3 and failing to interpret the Treaty so as to give effect to the intentions of the parties at the time the Treaty was made.

PART III – ARGUMENT 8. The Grand Council endorses the Appellants’ position that the Court of Appeal erred in law in finding that federal involvement in taking up Treaty 3 lands would conflict with the constitution.

9. To take up, within the meaning of the Treaty, is to permit activities incompatible with continued Treaty protected harvesting; pursuant to the Treaty and s. 91(24), only the federal government can take up. Ontario, the beneficial owner of Treaty 3 lands within the province, cannot take up, but has the sole authority to permit the use of lands in ways that, absent permission, are reserved solely to the owner. However, the trusts and interests other than the province’s – including Treaty 3 harvesting rights5 – that burden Ontario’s beneficial ownership of

Vol, 37, Tab 76, p. 166 [1891 Legislation]; Agreement between Government of Canada and Government of Ontario of April 16, 1894, AR, Vol, 9 Tab 76, p. 161 [1894 Agreement]. 4 Report of the Royal Commission on Aboriginal Peoples Vol. 2 (Ottawa, 1996) p. 244, Book of Authority [“BA”], tab 19; Campbell v. British Columbia (Attorney General), 2000 BCSC 1123, at para. 81, BA, tab 1; Hydro-Quebec v. Canada (A.G.) and Coon Come [1991] 3 CNLR 40, at p. 21, BA, tab 3; 5 Ontario Mining Co. v. Seybold [1903] AC 73 at para 3 BA, tab 6,

- 3 - s. 109 lands bridle Ontario’s authority as owner.

10. If the Court of Appeal was correct and only Ontario can take up Treaty 3 lands in the province – which the Grand Council denies explicitly – the Court of Appeal erred in failing to provide a remedy that reconciles the Treaty and the constitution. A. The Parties Intended that only the Federal Government Could Take Up

11. This Court must choose, from among the possible interpretations of the parties’ common intentions, the one that best reconciles the Anishinaabeg’s interests with the Crown’s.6 This Court must rely on the Anishinaabeg and federal representatives’ voices and consider the context in which the treaties were negotiated and written.7

The Crown’s Intentions

12. The Treaty’s text, which the Crown prepared, is unambiguous: only the Government of the Dominion of Canada or its duly authorized subjects may take up Treaty 3 lands.

13. The Court of Appeal correctly found that the Crown’s negotiators intended that only the federal government could take up or authorize the taking up of Treaty 3 lands8, but it erred in not considering the broader legal and political context in which this intention was formed – the policy of the time that the federal government would exercise its powers pursuant to s. 91(24) to protect First Nations against the interests of settlers and local majorities.9 In the Annuities Case, this Court found Treaty 3 to be a concrete expression of this policy:

The case as it presents itself to my mind is that the Dominion was assigned by the “British North America Act,” sec. 91, sub-sec. 24, quoted above, the high, honourable, and onerous duties' of the guardians of the many races of Indians then within or that might at any future time fall within the borders of Canada; that these duties were to be discharged as occasion called for, having in mind always the peace, order and good government of Canada and, as part and parcel thereof and not the least factor in promoting all implied therein, the due observance of those duties towards the Indians, which the policy of the British Crown had rendered of paramount importance; that the discharging, in a statesmanlike way, when the several occasions I have recited called for, these high duties of national importance they were discharged all the better by being freed from the trammels of being confined

6 R. v. Marshall, [1999] 3 SCR 456 at para. 14, GBA, tab 27; Sioui at 1069, BA, tab 11 7 R. v. Marshall, [1999] 3 SCR 456 at para. 14, GBA, tab 27 8 Keewatin v. Ontario (Natural Resources) 2013 ONCA 158 at para. 145 (“Appeal Reasons”), Appellants’ Record (“AR”), Vol 2, Tab 3, p. 46 9“Report on the affairs of the Indians in Canada”, by D. Daly in Sessional Paper, No. 2, vol. 4 (1847), Appendix T, BA, tab 20; Peter W. Hogg, Constitutional Law of Canada, Volume 1, 5th ed. looseleaf (Carswell, 1997) at p. 28-2, GBA, tab 52

- 4 -

within the narrow views that the provincial range of vision might have restricted action to, if the needs and wishes of a single province were to be considered, or even the dominant factor used as a guide, perhaps to the detriment of national interests;10

14. Consistent with this precedent, the Trial Judge found as fact that Canada and the Treaty Commissioners concluded Treaty 3 with the intention of protecting the Anishinaabeg’s interests from those of settlers and the provinces:

Part of the rationale for the placement of s. 91(24) with the federal government was protection of the minority Indian interest. I accept Milloy’s evidence that Treaty Commissioners intended to interpose Canada between the Indians and settlers.11

15. Canada’s belief in 1873 that it was the beneficial owner of the territory covered by Treaty 3 was not the only, or even the primary, reason for its being given exclusive authority to take up lands therein. In pursuit of pressing national interests, including western expansion, the Crown needed to secure the Anishinaabeg’s cooperation and friendship. To do so, the Crown promised that Canada would protect the Anishinaabeg’s rights against settlers and local governments.12

16. The Court of Appeal decided that the Treaty was made with the Crown, not Canada, and that the promise in the taking up clause was the Crown’s, not Canada’s.13 This approach deviates from that of Lord Loreburn in the Annuities Case, who directed that although Treaty 3 was concluded by the Crown, it must be interpreted “as if what was done by the Crown in 1873 had been done by the Dominion Government, as in substance it was in fact done”14. As a result, where the Treaty obliges the federal government to do something – such as pay annuities or, in this case, authorize takings up – the federal government bears that obligation.

17. The Court of Appeal ignored the protective purpose of Canada’s obligations under the taking up clause, failed to give effect to the Crown and Anishinaabeg’s intentions, and erred in law.

The Anishinaabeg’s Intentions

18. The Court of Appeal disregarded the Anishinaabeg’s intentions entirely.

10 Province of Ontario v. Dominion of Canada, (1909) 42 SCR 1 [Annuities Case] at 117 & 118, Idington J., (see also Duff J. at 124) aff’d [1910] AC 637 (PC), BA, tab 7 [emphasis added] 11 Keewatin v. Minister of Natural Resources, 2011 ONSC 4801 at para. 735 (“Trial Reasons”), AR, Vol 1, Tab 2, p. 164; see also paras. 412 – 425, 721, 732, 736, 739 & 742, AR, Vol 1, Tab 2, p. 106-108, 162, 164-65; Report of J.S. Milloy, Exhibit 3, AR, Vol 55, Tab 83, p. 36-38; Morris Text, AR, Vol 59, Tab 89, p. 122-23; Order of Her Majesty in Council Admitting Rupert’s Land and the North-Western Territory into the Union, 23 June 1870, RSC, 1970, no. 9, pp. 257-277, Exhibit 1-4, Tab 82, AR, Vol 16, Tab 67, p 18- 20, 23-24, 26, 30 12 Trial Reasons at para. 459, AR, Vol 1, Tab 2, p. 114 13 Appeal Reasons at para. 139, AR, Vol 2, Tab 3, p. 44 14 Dominion of Canada v. Province of Ontario, [1910] AC 637 (PC) at 645, GBA, Vol I, tab 8

- 5 -

19. The evidence demonstrates and the Trial Judge found that the Anishinaabeg understood the federal government to be responsible for the Treaty’s enforcement.15 Following the Treaty’s conclusion, when the Anishinaabeg faced difficulty exercising their harvesting rights, either because of provincial regulations or resource use by settlers, they sought the federal government’s help.16 As Chief Bob Roy of the Whitefish Bay Band told a federal Indian Agent in 1938:

They [the Anishinaabeg signatories of Treaty 3] know the Dominion Government took over Canada. Now the Ontario Government has taken over, but it was the Dominion Government we made the Treaty with. One point was the fish in the Lake; the Indians should have the fishing in the Lake and also the game. They understood that was their own.17

20. The Respondent Minister of Natural Resources argues that although the Anishinaabeg complained to the federal government about Ontario enforcing its regulations to the detriment of their harvesting, no such complaints involved takings up. The Anishinaabeg would not have made this distinction. From their perspective, the issue would have been which government – if any – could limit their harvesting, not the legal means used to effect the limitation.

21. The record permits various interpretations of the Anishinaabeg’s understanding of the taking up clause, all of which compel the conclusion that, under the Treaty, only the federal government can take up.

22. First, the Anishinaabeg could have understood the Treaty text literally. Alexander Morris’s report of 14 October 1873 supports this interpretation: “[a]fter a reading of the Treaty, and an explanation of it in Indian by the Hon. James McKay, it was signed.”18 If an explanation consistent with the text was given to and understood by Anishinaabeg prior to signing, then the parties’ common intention was that only the federal government could take up Treaty 3 lands.

15 Trial Reasons at para. 903, AR, Vol 1, Tab 2, p. 191 16 Joan Lovisek Expert Report, Exhibit 28 [“Lovisek Report”], AR, Vol 62, Tab 108, p. 149-168; Letter from Chief Kishikoka to Joseph E Cauchon, dated December 29th, 1877, Exhibit 1, tab 400, AR, Vol 24, Tab 71; Letter from Indian Agent Pither to the Department of the Interior Meredith, dated January 3, 1878, Exhibit 1, tab 402, AR, Vol 24, Tab 71; Letter from Chiefs of Assabaskashing to Superintendent of Indian Affairs, dated July 18th, 1892, Exhibit 1, tab 608, AR, Vol 38, TAB 76; Letter from Supervisor of Indian Timber Lands H.J. Bury to Deputy Minister of Indian Affairs, dated September 17th, 1929, Exhibit 1, tab 845, AR, Vol 54, Tab 81; Letter from Indian Agent Frank Edwards to General Superintendent M. Christianson, dated April 15th, 1939, Exhibit 1, tab 858, AR, Vol 54, Tab 81; 17 Memorandum of a Conversation in the Office of the Indian Agent, date June 11th, 1938, Exhibit 1, tab 852, AR, Vol. 54, Tab 81, p.149 18 Trial Reasons at para. 856, AR, Vol 1, Tab 2, p. 182; Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), Exhibit 9 [“Morris Text”], AR, Vol 58, Tab 89, p. 80

- 6 -

23. Alternatively, as the Trial Judge found, the Commissioners may never have explained the taking up clause to the Anishinaabeg, who may have signed the Treaty believing that no government other than their own could authorize activities inconsistent with their continued harvesting.19 If so, the Treaty must be read as permitting only the federal government to take up lands for the following reasons: 1) the Commissioners misled the Anishinaabeg regarding the degree to which the Treaty protects their rights; 2) the role that the taking up clause gives to the federal government serves, at least in part, to protect the Anishinaabeg’s rights; 3) interpretations of treaties that impact First Nations’ rights must maintain the Crown’s honour and integrity;20 4) the promise of a federal role in takings up cannot be amputated from the Treaty on the basis that the Crown hid it from the Anishinaabeg to begin with, particularly not when the Crown led the Anishinaabeg to believe that their harvesting rights would receive more protection than is offered by the taking up clause’s text.

24. Finally – and this is both specifically denied and unsupported by the evidence and the Trial Judge’s factual findings – the Anishinaabeg could have been indifferent to the distinction between the federal and provincial governments and not have cared which level of government took up lands. If so, the Treaty must nevertheless be read as permitting only the federal government to take up lands for the following reasons: 1) the role that the taking up clause gives to the federal government serves, at least in part, to protect the Anishinaabeg’s rights; 2) if the Anishinaabeg failed to understand the nature of the protection the Crown promised them, or the distinction between Canada and Ontario, it is because they were the more vulnerable, less informed party; 3) the Crown has a duty to take a broad, purposive approach to the interpretation of treaty promises and to act diligently to fulfil such promises;21 4) it would be dishonourable for the Crown to ignore or retract a treaty promise with a protective aspect on the grounds that the Commissioners failed to explain it or that the Aboriginal party did not or could not understand its legalistic details.

25. The taking up clause is not a vestigial clause, as the Court of Appeal found, that has lost its function in the course of constitutional evolution. “While are capable of evolution

19 Trial Reasons at paras. 864 & 865, AR, Vol 1, Tab 2, p. 185 20 R. v. Badger, [1996] 1 SCR 771 [“Badger”] at para. 41, GBA, Vol II, tab 24 21 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 SCR 623 at paras. 73 & 75, BA, tab 5

- 7 - within limits, […] their subject matter […] cannot be wholly transformed”.22 The Court of Appeal erred in law by transforming a clause that protects the Anishinaabeg’s rights from Ontario’s exploitation of lands and resources to one that enables such exploitation.23

26. The taking up clause exemplifies federal power and responsibility under s. 91(24) to defend First Nations’ rights from being trammeled by provinces pursuing resource revenues. Section 91(24) is a protection of minorities built into the constitution: the Courts may not dismantle it24, and the Courts may not disassemble the treaties concluded pursuant to it.

B. The 1891/1894 Legislation/Agreement neither Confirmed nor Amended Treaty 3

27. The Court of Appeal was right to conclude that article 1 of 1891/1894 Legislation/Agreement did not amend Treaty 3, but erred in law in concluding that it confirmed that under the “Treaty 3 regime” Ontario has exclusive authority to take up lands.25

28. If the Court of Appeal is correct that the federal government is constitutionally powerless to play any role in taking up Treaty 3 lands of which Ontario is the beneficial owner – and this is specifically denied – then, as the Court of Appeal found, the 1891/1894 Legislation/Agreement confirmed Ontario’s exclusive constitutional authority to take up such lands.

29. However, it is impossible that the 1891/1894 Legislation/Agreement confirmed the “Treaty 3 regime”. The Treaty 3 regime is determined by the intentions of the parties: the Crown and the Anishinaabeg. The Anishinaabeg were not a party to the 1894 Agreement: they were informed of neither its negotiation nor its conclusion.26 The 1894 Agreement did not confirm the Anishinaabeg’s intentions and could not confirm the treaty regime.

30. Nor did the 1891/1894 Legislation/Agreement, as the Trial Judge found,27 amend Treaty 3 and extinguish the Anishinaabeg’s right to have only the federal government taking up.

31. The Anishinaabeg have always understood that Treaty 3 could only be amended through

22 R. v. Marshall; R. v. Bernard [2005] 2 SCR 220 at para. 25, Book of Authorities of the Respondent, Minister of Natural Resources, (“OBA”), Vol II, Tab 40; R. v. Marshall, [1999] 3 SCR 533 at para. 19, BA, tab 10 23 Appeal Reasons at paras. 139 & 140, AR, Vol 2, TAB 3, p. 44-5 24 Re The Regulation and Control of Aeronautics in Canada [1932] AC 54, [1931] UKPC 93 at 7, BA, tab 15 cited in Re: Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54 at 71, BA, tab 12; see also Reference re Secession of Quebec, [1998] 2 SCR 217 at para. 81, BA, tab 13 25 Appeal Reasons at paras. 180 & 181, AR, Vol 2, Tab 3, p. 59 26 Trial Reasons at paras. 1016, 1027 & 1394, AR, Vol 1, Tab 2, p. 211-12 & 275 27 Trial Reasons at para. 1242, AR, Vol 1, Tab 2, p. 250

- 8 - renegotiation, as was summarized by Jim Netamequon of the Assabaska band in 1927: “we were told when first treaty made time we Shake hands we Said that we never have any change and if it happens to be change we will talk it over again Settled that up over again.”28

32. Treaties are sacred compacts. “The very definition of a treaty thus makes it impossible to avoid the conclusion that a treaty cannot be extinguished without the consent of the Indians concerned.”29 The 1891/1894 Legislation/Agreement could not have extinguished Treaty 3 rights because the Anishinaabeg never consented to such extinguishment.

33. To conclude that the 1891/1894 Legislation/Agreement amended the Treaty and extinguished the Anishinaabeg’s rights would besmirch the Crown’s honour: 1) if the Crown unilaterally amended the Treaty and extinguished the federal protection promised in the taking up clause, it did so by assuming discretionary control over specific Aboriginal interests30; the Crown did not execute the purported amendment in a manner consistent with its fiduciary obligations: it did not disclose the amendment to the Anishinaabeg and did not ensure ongoing protection of their harvesting rights; 2) the 1891/1894 Legislation/Agreement offered the Anishinaabeg no compensation or quid pro quo for the removal of federal protection in takings up;31 3) it would have been dishonourable and injurious to the Anishinaabeg for Canada to amend the Treaty unilaterally to remove federal protection in takings up without consulting with or seeking the Anishinaabeg’s consent; the 1891/1894 Legislation/Agreement must be interpreted in a way that maintains the Crown’s honour and fulfills the Crown’s promises;32 it cannot be interpreted as amending Treaty 3.

C. Remedies and Reconciliation

34. Treaty 3 and s. 109 buttress the Appellants’ position: only Canada can take up Treaty 3 lands and only Ontario, in consultation with the Anishinaabeg, can authorize the use of Treaty 3 Crown land. Where processes internal and external to a treaty require complementary federal and

28 Trial Reasons at para. 1141, AR, Vol 1, Tab 2, p. 233; Lovisek Report, AR, Vol 62, Tab 108, p. 161-62 29 Sioui at 1063, BA, tab 11 30 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 SCR 623 14 at para. 73, BA, tab 5 31 R. v. Horseman [1990] 1 SCR 901 at 932 & 936, BA, tab 9 32 Badger at para. 41, GBA, Vol II, tab 24; Upper Canada (Attorney General) v. Harrison, [1866] OJ No. 288 at paras. 15 & 16, BA, tab 18; Hunter v. Richards, 1912 CarswellOnt 345, 22 OWR 408 at para. 25, BA, tab 2; The King v. Garside and Mosley (1834), 2 AD&E 266, 111 ER 103 (KB) at p. 107, BA, tab 17

- 9 - provincial action regarding similar subject matter, both levels of government must act.33

35. If, however, and this is explicitly denied, the Court of Appeal is correct and the constitution denies the federal government any role in taking up Treaty 3 territory beneficially owned by Ontario, then the constitution and Treaty are at odds. The Court of Appeal acknowledged this problem, but refused to face it. Instead, it ignored the Treaty.34 It erred in law by failing to provide a remedy that reconciles the Treaty and the constitution.

36. Treaties are sacred.35 Treaties are especially sacred to their First Nations parties, who never forgot them and whose identities are shaped by them. Where the constitution’s architecture cannot support a treaty promise, the solution cannot be to discard First Nations’ constitutionally protected treaty rights. The sacred does not so easily give way to the convenient.

37. Court decisions that rewrite or ignore Treaty terms with results that no treaty party intended do not and cannot further reconciliation. Such results are anathema to treaties’ sacred nature and the fundamental objective of modern aboriginal and treaty law.36

38. Reconciliation is a long, hard road – those who travel it must travel together. It is not enough for Ontario to say, “Trust us”, or for Canada to say, “I’m not coming”. In the past, as the Interveners Big Grassy et al. detail, Canada and Ontario addressed problems arising from the federal-provincial territorial dispute and Treaty 3 through agreements between themselves. Without the Anishinaabeg’s participation, such agreements could not solve these problems definitively. The only path that leads to a lasting resolution of these issues is the negotiation of an agreement on the process for taking up between Canada, Ontario, and the Anishinaabeg. Such an agreement would be a new milestone in reconciliation.

39. The Grand Council urges this Court to declare that, under Treaty 3, only Canada can take up and that Canada, Ontario, and the Anishinaabeg must negotiate an agreement that respects the following principles: 1) only Canada can authorize activities incompatible with the continuing exercise of harvesting rights; 2) only Ontario can permit the use of lands in ways that, absent permission, are reserved solely to the owner; 3) Canada and Ontario must consult and

33 Quebec (Attorney General) v. Moses, [2010] 1 SCR 557 at para. 8, BA, Tab 8 34 Appeal Reasons at para. 148, AR, Vol 2, TAB 3, p. 47 35 Sioui at 1063, BA, tab 11; Simon v. The Queen, [1985] 2 SCR 387 at 401, BA, tab 16; Badger at para. 41, GBA, Vol II, tab 24 36 Mikisew at para. 1, GBA, Vol. I, tab 15

- 10 - accommodate the Anishinaabeg - whose harvesting rights are a trust or other interest that burden

Ontario's beneficial land owners~p - regarding all decisions that might impact Treaty 3 harvesting rights. This would be consistent with the relief granted in Mahe v. Alberta, where this Court declared the rights at stake and left the legislature to enact enabling legislation to "ensure that the appellants' rights are realized while, at the same time, leaving government with the 37 flexibility necessary to fashion a response suited to the circumstances" •

40. The proposed declaration need not result in the uncertainty that the Respondents Goldcorp and Resolute FP Canada fear. It is open to tllis Court to declare that existing permits for use of Treaty 3 lands invalidly granted by Ontario will continue to have the same force and effect they would have had if they had been validly granted for a period of time that this Court determines is required for Canada, Ontario, and the Anisllinaabeg to reach an agreement on takings up.38 The parties could return to this Couti for further direction, should the need arise.

41. The proposed agreement would be a fresh attempt at the 189111894 Legislation/Agreement, this time including the Anisrunaabeg. It would clear the way for further development of Treaty 3 territory, without depriving the Anishinaabeg of the protections they were promised in 1873. It would pave a route forward that respects both Treaty 3 and the constitution using the only vehicle robust enough to unite the Anishinaabeg and the Crown on the road of reconciliation: consent.

PART IV- SUBMISSIONS ON COSTS 42. The Grand Council seeks no costs and asks that no costs be awarded against it.

PART V- ORDERS SOUGHT 43. The Grand Council seeks orders 1) granting the Appeal, setting aside the order of the Court of Appeal and restoring the order of the Superior Court and 2) permitting the Grand Council to make oral submissions for not more than fifteen (15) minutes at the hearing of this appeal. ALLtl u :E~ SUBMITTED THIS ?.'f"oA Y OF APRIL 20 14

Peter W. Hutchins Zachary Davis I Jessica Labranche Counsel for the Intervener Grand Council of Treaty 3

37 Mahe v. Alberta [1990] 1 SCR 342 at 392-393, BA, tab 4; see also Nunavik v. Canada (Minister ofCanadian Heritage), [ 1998] 4 CNLR 68 at paras. 99-100, I06 & II 0 38 Re Manitoba Language Rights, [ 1985] I SCR 72 1 at 758, BA, tab 14 - 11 -

PART VI – LIST OF AUTHORITIES

Cases Factum paragraphs

Campbell v. British Columbia (Attorney General), 6 2000 BCSC 1123

Dominion of Canada v. Province of Ontario, [1910] AC 637 16 (PC)

Hydro-Quebec v. Canada (A.G.) and Coon Come 6 [1991] 3 CNLR 40

Hunter v. Richards, 1912 CarswellOnt 345, 22 OWR 408 33

Mahe v. Alberta [1990] 1 SCR 342 39

Manitoba Metis Federation Inc. v. Canada (Attorney General), 24, 33 [2013] 1 SCR 623

Mikisew Cree First Nation v. Canada (Minister of Canadian 2, 37 Heritage), [2005] 3 SCR 388

Nunavik Inuit v. Canada (Minister of Canadian Heritage), 39 [1998] 4 CNLR 68

Ontario Mining Co. v. Seybold [1903] AC 73 9

Province of Ontario v. Dominion of Canada, (1909) 42 SCR 1 13

Quebec (Attorney General) v. Moses, [2010] 1 SCR 557 34

Re: Authority of Parliament in relation to the Upper House, 26 [1980] 1 SCR 54 at 71

Reference re Secession of Quebec, [1998] 2 SCR 217 26

Re Manitoba Language Rights, [1985] 1 SCR 721 40

Re The Regulation and Control of Aeronautics in Canada [1932] 26 AC 54, [1931] UKPC 93

R. v. Badger, [1996] 1 SCR 771 23, 33, 36

R. v. Horseman [1990] 1 SCR 901 33

- 12 -

R. v. Marshall, [1999] 3 SCR 456 11

R. v. Marshall, [1999] 3 SCR 533 25

R. v. Marshall; R. v. Bernard 2005 SCC 43 25

R. v. Sioui, [1990] 1 SCR 1025 2, 11, 32, 36

Simon v. The Queen, [1985] 2 SCR 387 36

The King v. Garside and Mosley (1834), 2 AD&E 266, 111 ER 33 103 (KB)

Upper Canada (Attorney General) v. Harrison, [1866] OJ No. 288 33

Other sources

Report of the Royal Commission on Aboriginal Peoples 6 Vol. 2 (Ottawa, 1996) p. 244

“Report on the affairs of the Indians in Canada”, by 13 D. Daly in Sessional Paper, No. 2, vol. 4 (1847), Appendix T,

Peter W. Hogg, Constitutional 13 Law of Canada, Volume 1, 5th ed. looseleaf (Carswell, 1997) at p. 28-2

- 13 -

PART VII – SCHEDULE OF STATUS AND TREATIES

Factum paragraphs

An Act for the Settlement of Questions Between the Governments 5, 27, 28, 29, 30, of Canada and Ontario, Respecting Indian Lands, S.O. 1891, c.3, 32, 33, 41 s.1 and Schedule,

An Act for the Settlement of Certain Questions Between the 5, 27, 28, 29, 30, Governments of Canada and Ontario, Respecting Indian Lands, 32, 33, 4 S.C. 1891, c.5. s.1 and Schedule,

Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) 4, 9, 13, 26, 34

Order of Her Majesty in Council Admitting Rupert’s Land 14 and the North-Western Territory into the Union, 23 June 1870, reprinted in RSC, 1970, No. 9, pp. 257-277 [Reproduced in full in the Record of the Appellant Grassy Narrows, Vol 16, Tab 67]

Treaty No. 3, signed 3 October 1873 5, 12

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

[Reproduced in full in the Record of the Appellant Grassy Narrows, Vol. 37, Tab 76, p. 166]

HER MAJESTY, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: –

(1) It shall be lawful for the Governor in Council, if he shall see fit, to enter into an agreement with the Government of 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 into, and every matter and thing therein, shall be as binding on the Dominion of Canada as if the same were specified and set forth in an Act of this Parliament; and the Governor in Council is hereby authorized to carry out the provisions of the agreement so to be entered into. ______

SCHEDULE

- 14 -

Agreement made on behalf of 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 Treaty made on the third of October, one thousand eight hundred and seventy-three, between Her 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, inhabitants of the country within the limits thereinafter defined and described, by their chiefs, chosen and named as thereinafter mentioned, of the other part, which said treaty is usually known as the North-West Angle Treaty, No. 3, the Saulteaux Tribe of the Ojibbeway Indians and all other the Indians (sic) inhabiting the country therein defined and described surrendered to Her Majesty all their rights, titles and privileges whatsoever to the lands therein defined and described on certain terms and considerations therein mentioned;

And whereas by the said treaty, out of the lands so surrendered, 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 such 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 Government;

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 understood 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 Ontario to come to a friendly and just understanding in respect of the said matters, it is therefore agreed as follows: –

1. With respect to the tracts to be, from time to time, taken up for settlement, mining, lumbering or other purposes and to the regulations required in that behalf, as in the said treaty mentioned, it is hereby conceded and declared that, as the Crown lands in the surrendered tract have been decided to belong to the Province of Ontario, or to Her Majesty in right of the said Province, the rights of hunting and fishing by the Indians throughout the tract surrendered, not including the reserves to be made thereunder, do not continue with reference to any tracts which have been, or from time to time may be,

- 15 -

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.

[…]

6. That any future treaties with the Indians in respect of territory in Ontario to which they have not hitherto surrendered their claim aforesaid, shall be deemed to require the concurrence of the Government of Ontario.

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

[Reproduced in full in the Record of the Appellant Grassy Narrows, Vol, 37, Tab 76, p. 148]

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: –

(1) It shall be lawful for the Lieutenant-Governor in Council, if he shall see fit, to enter into an agreement with the Government of Canada 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 into, and every matter and thing therein, shall be as binding on this Province as if the same were specified and set forth in an Act of this Legislature, and the Lieutenant-Governor in Council is hereby authorized to carry out the provisions of the agreement so to be entered into.

SCHEDULE

Agreement made on by the ______on behalf of the Government of Canada on the one part, and on behalf of the Government of Ontario on the other part subject, etc.

Whereas by Articles of a Treaty made on 3rd October, 1873, between Her 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 Saulteaux Tribe of the Ojibbeway Indians, inhabitants of the country within the limits thereinafter defined and described, by their chiefs, chosen and named as thereinafter mentioned, of the other part, which said treaty is usually known as the North-West Angle Treaty, No. 3; The Saulteaux Tribe of the Ojibbeway Indians and all other the Indians (sic) inhabiting the country therein defined and described surrendered to Her Majesty all their rights, titles and

- 16 - privileges whatsoever to the lands therein defined and described on certain terms and considerations therein mentioned.

And whereas by the said Treaty out of the lands so surrendered, 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 such 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 Government.

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 understood 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 Ontario to come to a friendly and just understanding in respect of the said matters, it is, therefore, agreed as follows, subject to confirmation as already mentioned: –

1. With respect to the tracts to be from time to time taken up for settlement, mining, lumbering or other purposes and to the regulations required in that behalf as in the said Treaty mentioned, it is hereby conceded and declared that, as the Crown lands in the surrendered treaty (sic) 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.

[…]

6. That any future treaties with the Indians in respect of territory in Ontario to which they have not hitherto surrendered their claim aforesaid, shall be deemed to require the concurrence of the Government of Ontario.

- 17 -

Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.)

VI. DISTRIBUTION OF LEGISLATIVE POWERS

Powers of the Parliament

Legislative Authority of Parliament of Canada

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

[…]

24. Indians, and Lands reserved for the Indians.

SECTION 109

Property in Lands, Mines, etc.

109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.

[Explanatory notes] Manitoba, Alberta and Saskatchewan were placed in the same position as the original provinces by the Constitution Act, 1930, 20-21 Geo. V, c. 26 (U.K.). These matters were dealt with in respect of British Columbia by the British Columbia Terms of Union and also in part by the Constitution Act, 1930. Newfoundland was also placed in the same position by the Newfoundland Act, 12-13 Geo. V1, c. 22 (U.K.). With respect to Prince Edward Island, see the Schedule to the Prince Edward Island Terms of Union.

Treaty No. 3, signed 3 October 1873

- 18 -

[Full transcribed text available on Aboriginal Affairs and Northern Development Canada website: http://www.aadnc-aandc.gc.ca/eng/1100100028675/1100100028679]

Treaty 3 between Her Majesty the Queen and the Saulteaux Tribe of the Ojibbeway Indians at the Northwest Angle on the Lake of the Woods with Adhesions

(REPRINTED 1966) (REPRINTED 1978)

LAYOUT IS NOT EXACTLY LIKE ORIGINAL

TRANSCRIBED FROM: ROGER DUHAMEL, F.R.S.C. QUEEN'S PRINTER AND CONTROLLER OF STATIONERY OTTAWA, 1966

Cat. No. Ci 72-0366

[…]

Her Majesty further agrees with Her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.

[…]