COURT OF APPEAL FOR ONTARIO

DATE: 20000404

DOCKET: C32170, C32188 and C32202

M25663

OSBORNE A.C.J.O.

B E T W E E N : E. Ria Tzimas for Her Majesty
The Queen in Right of Ontario

THE CHIPPEWAS OF SARNIA BAND
Plaintiff
(Respondents/Appellants)

- and - Earl A. Cherniak, Q.C. for the
Chippewas of Sarnia Band

Gary Penner for the Attorney
General of Canada

ATTORNEY GENERAL OF CANADA
and HER MAJESTY THE QUEEN IN
RIGHT OF ONTARIO
Defendants
(Respondents/Appellants)

Philip Tunley for Dow Chemical
Canada Inc. and Union Gas
Limited

Gerard T. Tillman for Bank of
Montreal, T-D Bank and
Canada Trustco Mortgage Co.

- and -

CANADIAN NATIONAL RAILWAY
COMPANY, DOW CHEMICAL CANADA
INC., THE CORPORATION OF THE
CITY OF SARNIA, LTD., ONTARIO
HYDRO NETWORKS COMPANY INC.
UNION GAS LIMITED,
INTERPROVINCIAL PIPELINE INC.,
THE BANK OF MONTREAL, THE
TORONTO-DOMINION BANK and
CANADA TRUSTCO MORTGAGE
COMPANY
Defendants (Respondents)

Jeff G. Cowan, Mary Anne
Aldred and Brian A. Crane,
for the other responding parties

Alan Pratt for the moving party
Chief Lisa Eshkakogan
Ozawanimke on behalf of the
Algonquin Nation in Ontario

Paul Williams, for all remaining
moving parties

Heard: March 28, 2000
(Telephone Conference Call)

[1] Chief Richard K. Miskokomon on behalf of the Chippewas of the Thames, Chief Mary Jane Wardell on behalf of the Ojibways of Thessalon, and Martin Bayer, on behalf of the United Chiefs and Councils of Manitoulin, all represented by Mr. Williams, seek an order granting them leave to intervene in these appeals pursuant to the provisions of Rule 13.03(2) which provides:

13.03 (2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice of Ontario or the Associate Chief Justice of Ontario.

[2] In short, these moving parties contend that they have an interest in the outcome of these appeals and have something to add to the relevant issues which will be of assistance to the panel of this court hearing the appeals.

[3] Mr. Williams, on behalf of the three moving parties that he represents, also seeks leave to file a Supplementary Case on Appeal consisting of the affidavits filed on this motion and any cross-examinations on those affidavits.

[4] I am satisfied that these moving parties have an interest in the outcome of these appeals and that, to some degree, they can usefully add to the issues that will be before the court. I think, therefore, that the moving parties ought to be permitted to intervene, as parties, but on the following conditions:

• These moving parties will take the record as it stands.

• That record will not be expanded.

• The moving parties will deliver one factum, not to exceed • thirty pages in length unless, by order of Goudge J.A., the • appeal management judge, the moving parties are given leave to • file a longer factum.

• The time for delivery of the moving parties’ factum will be • determined at an appeal management meeting by Goudge J.A.

• The length of time granted the moving parties for oral • argument, if any, will be determined by Goudge J.A. following • receipt of the moving parties’ and the other parties’ factums.

[5] Chief Lisa Eshkakogan Ozawanimke on behalf of the Algonquin Nation in Ontario, also seeks an order pursuant to Rule 13.03(2) permitting the Algonquin Nation to intervene in these appeals.

[6] The Algonquin Nation’s position is somewhat different from that asserted by the other moving parties. The Algonquin Nation seeks to intervene as a party so that it can move to strike out paragraphs 93, 94, 95, 96 and 172 of the factum of Her Majesty The Queen in Right of Ontario. In those paragraphs, Ontario makes reference to the claims and assertions of aboriginal rights and title of the Algonquin and Nipissing Nations. It is apparent from Mr. Pratt’s helpful factum that the Algonquin Nation seeks leave to intervene in order that it may respond to the references in these paragraphs of Ontario’s factum to Ontario’s assertion of aboriginal rights and title and to the legal inferences that Ontario appears to draw from them in these appeals. Simply put, if granted leave to intervene, the Algonquin Nation proposes to move before Goudge J.A. to limit, or eliminate, the right of Ontario to argue matters which the Algonquin Nation contends are prejudicial to it. In particular, the Algonquin Nation is concerned that in its factum Ontario has brought into question Algonquin’s Nation’s rights to unextinguished aboriginal title.

[7] It appears to me that if the Algonquin Nation is successful on its subsequent motion referable to paragraphs 93, 94, 95, 96 and 172 of Ontario’s factum, its involvement in the appeal would end with the motion. If the Algonquin Nation’s motion referable to Ontario’s factum is unsuccessful, Mr. Pratt has indicated that he would be prepared to file a substantive factum. This factum would address, “issues which concern it.” I expect that the Algonquin Nation would include the issues whether the surrender procedures in the Royal Proclamation, 1763 have the force in law in 1879 and the validity of the letters patent, which in the case of the Algonquin Nation permitted the settlement of Ottawa and a number of other towns in the Ottawa Valley without first obtaining a surrender from the Algonquin Nation.

[8] Although Ontario has not objected to an order granting the Algonquin Nation leave to intervene, Ontario will oppose any motion for an order striking the paragraphs in question from its factum or in any way constraining the argument of Ontario or any other party to these multiple appeals.

[9] While I understand the concern of the Algonquin Nation that this appeal may have implications for their ongoing negotiations with Ontario and the federal government, negotiations that have been ongoing since 1992, I am not persuaded that the Algonquin Nation would have anything new to add to the arguments that will be made by the parties to this appeal. Specifically, counsel for the Chippewas will make the same or very similar submissions that it would appear the Algonquin Nation would make with respect to the question whether the surrender procedures in the Royal Proclamation have the full force of law and as to the validity and effect of the letters patent. Nor do I think that the paragraphs in question in Ontario’s factum will compromise Ontario’s obligation to negotiate fairly with the Algonquin First Nation.

[10] Paragraphs 93, 94, 95 and 96 of Ontario’s factum are found in that part of the factum in which he scope of the Royal Proclamation of 1763 is brought into issue. These paragraphs of the factum contain largely evidentiary, historical references clearly intended to be illustrative. The references in the paragraphs of the Ontario factum to which I refer do not in and of themselves establish the propositions to which they are directed. Similarly, paragraph 172 of the Ontario factum (which is situated in that part of the factum dealing with the effect in law of the Cameron transaction, the orders in council approving it and the letters patent to Cameron) contains references of an historical nature intended to support the proposition contained in the latter part of paragraph 172 that “… when the governor granted lands in which the Indian right of occupancy existed the grants were not invalid or void. The Crown considered that there might be a case for compensation to the Indians.” In my opinion, this assertion, without more, will not work to the disadvantage of the Algonquin First Nation.

[11] In the circumstances, I am not persuaded that the order sought by the Algonquin Nation should issue. This motion is therefore dismissed.

[12] No costs.

“C.A. Osborne A.C.J.O.”

Released: April 4, 2000