COURT OF APPEAL FOR ONTARIO

CITATION: Keewatin v. Ontario (Natural Resources), 2012 ONCA 472

DATE: 20120703

DOCKET: M41405, M41465, M41468, M41472, M41473, M41474 (C54314)

Sharpe J.A. (In Chambers)

BETWEEN

Andrew Keewatin Jr. and Joseph William Fobister on their own behalf and on behalf of all other members of Grassy Narrows First Nation

Plaintiffs (Respondents)

and

Minister of Natural Resources

Defendant (Appellant)

and

Resolute FP Canada Inc. (formerly Abitibi-Consolidated Inc.)

Defendant (Appellant)

and

The Attorney General of Canada

Third Party (Appellant)

Counsel:

Robert Janes and Elin Sigundson for Keewatin et al

Michael Stephenson and Mark Crow, for the Minister of Natural Resources

Christopher Matthews, for Resolute FP Canada Inc. (formerly Abitibi)

William J. Burden and Linda I. Knol, for Goldcorp Inc.

Sean Fairhurst, for Ermineskin First Nation et al

Gary Penner and Barry Ennis, for the Attorney General of Canada

Peter Hutchins and Robin Campbell, for Grand Council Treaty 3

Bruce McIvor, for Wabauskang First Nation and Big Grassy First Nation

David Leitch, for Lac Seul First Nation

Heard: June 28, 2012

ENDORSEMENT

[1] This appeal involves important issues relating to Aboriginal Harvesting Rights under Treaty 3 and whether Ontario has jurisdiction to grant logging permits that involve “taking up” portions of the lands covered by Treaty 3 (the “Keewatin Lands”) or to otherwise limit or qualify the Aboriginal rights at issue.

[2] The following parties move for intervener status pursuant to Rule 13 of the Rules of Civil Procedure: Goldcorp Inc. (“Goldcorp”); Grand Council of Treaty 3 (“Grand Council”); Leslie Cameron on his own behalf and on behalf of all other members of Wabauskang First Nation (“Wabauskang”); Lac Seul First Nation (“Lac Seul”); Big Grassy First Nation, Ochiichagwe’Babigo’Ining Ojibway Nation, Ojibways of Onigaming First Nation, Naotkamegwanning First Nation and Shoal Lake #40 First Nation (“Big Grassy”); and Ermineskin Cree Nation, Muskeg Lake Cree Nation #102, Whitefish (Goodfish) Lake First Nation #128 and Samson Cree Nation (“Treaty 6”).

[3] Goldcorp and Wabauskang seek party status pursuant to rule 13.01, failing which they seek status as friends of the court pursuant to rule 13.02.

[4] All other moving parties seek status as friends of the court pursuant to rule 13.02.

[5] The appellants and respondents to the appeal do not oppose any of the moving parties being permitted to intervene as friends of the court. The respondent Grassy Narrows First Nation (“Grassy Narrows”) opposes the motions for party status. The appellants the Attorney General of Canada (“Canada”) and the Minister of natural Resources (“Ontario”) do not take strong positions on that issue: Ontario opposes the motions for party status but not strongly, and Canada supports the motions but again, not strongly. The respondent Resolute FP Canada Inc. supports the party status motions.

[6] There are also issues raised with respect to the scope of possible argument by the interveners as well as with respect to the admission of further evidence.

1. Motions to intervene as friends of the court

a. Grand Council

[7] The Grand Council represents twenty-eight First Nation communities of the Anishinaabe Nation. These communities all have reserves in the territory of Treaty 3. The legal and treaty rights of these communities are clearly affected by the judgment under appeal. I am satisfied that it would be only fair to allow the Grand Council to participate in this appeal as a friend of the court. I am also satisfied that it would assist this court to have before it the perspective of the Grand Council as the representative body of these First Nations communities.

b. Lac Seul

[8] Lac Seul is a Treaty 3 First Nation and its traditional territory includes portions of the Keewatin Lands. Lac Seul has indicated that it will support the trial judgment on the same record but on different legal grounds. I am satisfied that it would assist court to have that different perspective before it when deciding this appeal.

c. Big Grassy

[9] The Big Grassy moving parties are five Treaty 3 First Nations who have reserves located in the "Disputed Territory" south of the English River and adjacent to the Keewatin Lands. They enjoy and exercise the same Harvesting Rights under Treaty 3 as those of the respondent Grassy Narrows. Big Grassy is particularly concerned about certain portions of the trial judge's reasons relating to the 1891 legislation and the 1894 agreement between Canada and Ontario and the implications of those instruments for the status of reserve lands south of the English River. I will return to the question of the permissible scope of argument on that issue but, for the purpose of determining intervener status, I am satisfied that it would assist this court to have the particular perspective offered by these applicants.

d. Treaty 6

[10] Counsel clarified in oral argument that the Treaty 6 interveners seek friend of the court status. The First Nations communities in this group have Treaty Harvesting Rights under Treaty 6 in Alberta and Saskatchewan in virtually identical language to the rights at issue in this appeal. I am satisfied that it would assist this court to decide the issues before us to have the perspective of these First Nations communities who have virtually identical Treaty Harvesting Rights but under a different Treaty.

Motions to intervene as friends of the court: conclusion

[11] Accordingly, I grant the motions of these four proposed interveners to participate in this appeal as friends of the court pursuant to rule 13.02 on the usual terms, namely, that they must accept the record as it is and that they are not permitted to expand the issues beyond those raised by the original parties.

2. Motion to intervene as parties

a. Goldcorp

[12] Goldcorp seeks to be added as party pursuant to rule 13.01. Goldcorp is a large mining company with extensive operations in the Keewatin Lands. Goldcorp employs over 1000 people in the area and has significant financial and economic interests that it asserts could be affected by these proceedings.

[13] Grassy Narrows submits that Goldcorp should not be given party status, essentially on the ground that to do so would be to disrupt its right as plaintiff to control the litigation of its carefully focussed claim in relation the impact of specific forestry and clear-cut logging activities on its Treaty 3 Harvesting Rights.

[14] That argument must be considered in light of the way in which this litigation has been structured with the full participation of Grassy Narrows. The litigation has been divided into two phases. The first phase was to answer two questions:

Question One:

Does Her Majesty the Queen in Right of Ontario have the authority within that part of the lands subject to Treaty 3 that were added to Ontario in 1912, to exercise the right to “take up” tracts of land for forestry, within the meaning of Treaty 3, so as to limit the rights of the Plaintiff to hunt or fish as provided for in Treaty 3?

Question Two:

If the answer to question/issue 1 is “no”, does Ontario have the authority pursuant to the division of powers between Parliament and the legislatures under the Constitution Act, 1867 to justifiably infringe the rights of the Plaintiffs to hunt and fish as provided for in Treaty 3?

[15] Those questions have been answered by the judgment under appeal and it is common ground that appeal rights are triggered at this stage. The specific claims relating to forestry and clear-cut logging will be dealt with at the second stage. The declaration under appeal is broad in its scope:

THIS COURT DECLARES AND ADJUDGES THAT the Province of Ontario does not have the authority within that part of the lands subject to Treaty 3 that were added to Ontario in 1912 [the “Keewatin Lands”], to exercise the right to take up tracts of land for forestry, within the meaning of Treaty 3, so as to limit the geographical area over which the plaintiffs are entitled to exercise their rights to hunt or fish as provided for in Treaty 3.

THIS COURT DECLARES AND ADJUDGES THAT the Province of Ontario does not have the authority pursuant to the Constitution to justifiably infringe the rights of the Plaintiffs to hunt and fish as provided for in Treaty 3 so as to validly authorize forestry operations.

[16] In my view, the issue of intervention must be assessed on the basis of the scope of that declaration rather than on the specifically focussed judgment Grassy Narrows hopes to secure after the second phase of the trial. Grassy Narrows participated in and presumably stands to benefit from the rather unusual structure for the litigation and must, accordingly, live with the consequences.

[17] Goldcorp operates pursuant to licenses and permits granted by Ontario. While the specific focus of the respondent’s claim relates to forestry and clear-cut logging, the Treaty 3 provision at issue on this appeal provides for tracts of Treaty 3 lands being taken up for “settlement, mining, lumbering or other purposes…” Goldcorp submits that any ruling with respect to lands being taken up for “lumbering” will necessarily have implications for lands taken up for “mining”.

[18] I am satisfied that given its breadth, the declaration under appeal directly affects Goldcorp’s legal and property rights and that it follows that Goldcorp has satisfied all three elements of rule 13.01, namely, Goldcorp has an interest in the subject matter of the proceeding, Goldcorp may be adversely affected by the judgment and the issue of Goldcorp’s legal and property rights in the Keewatin Lands raises a question of law in common with the issues raised in these proceedings.

[19] I am also satisfied that Goldcorp’s participation as a party would not unduly delay or prejudice the determination of the rights of the parties. Goldcorp does not seek to expand the issues beyond those raised by the original parties. It would, in my opinion, be unfair to deny Goldcorp an opportunity to be heard in a case that appears to have significant implications for its legal and property rights. I conclude that I should exercise my discretion in favour of allowing Goldcorp to intervene as a party to this appeal.

b. Wabauskang

[20] I am satisfied that Wabauskang also meets the test for party status. Grassy Narrows and Wabauskang were both represented by Chief Sakatcheway at the negotiation of Treaty 3 in 1873 and Wabauskang’s traditional territory includes lands within the Keewatin Lands. Members of the Wabauskang First Nation enjoy and exercise precisely the same Treaty Harvesting Rights and they are affected by precisely the same licenses and logging activities as Grassy Narrows. As their Aboriginal rights are directly affected by the judgment under appeal, they meet the test for permission to intervene as a party pursuant to rule 13.01.

[21] Wabauskang does not seek to expand the issues beyond those raised by the original parties. I am satisfied that Wabauskang’s participation as a party would not unduly delay or prejudice the determination of the rights of the parties and that I should exercise my discretion in favour of allowing Wabauskang to intervene as a party to this appeal.

Motion to intervene as parties: conclusion

[22] Accordingly, I grant both Goldcorp and Wabauskang leave to intervene in this appeal as parties pursuant to rule 13.01.

3. Evidence

a. Goldcorp

[23] Goldcorp asks for leave to file evidence to demonstrate its interest in the litigation and to describe the nature and extent of its activities. It is submitted that this is simply to provide background and context for its participation in this litigation. Goldcorp has filed the relatively short affidavit it seeks to introduce but concedes that portions of that affidavit relating to its history of consultation with First Nations should be deleted.

[24] As a single judge I have no power to admit fresh evidence. In my view, however, Goldcorp should be permitted to file a redacted version of the affidavit that is before me on this intervention motion to be used solely for the purpose of explaining to the panel the basis for Goldcorp’s intervention in this appeal. The affidavit is not, without further order of a panel of this court, admissible with respect to issues of adjudicative fact that might arise on the appeal.

b. Grand Council

[25] The Grand Council indicated that it was having further archival research done as to the 1891 legislation and the 1894 agreement. The Grand Council asks that the order provide that it is at liberty to move to introduce further evidence if the archival research bears fruit.

[26] It is obviously impossible to assess the admissibility of evidence yet to be produced or whether the Grand Council could justify a departure from the usual order that a friend of the court must accept the record as it stands. Any order relating to such evidence would be entirely hypothetical and speculative. Accordingly I make no order with respect to this evidence.

4. Scope of permissible argument

[27] Considerable argument was addressed to the concerns expressed by Big Grassy and the Grand Council regarding certain statements made by the trial judge in her reasons relating to the 1891 legislation and the 1894 agreement, particularly in relation to the impact of those instruments on the extinguishment of treaty rights in the Disputed Lands.

[28] I am not persuaded that at this stage of the proceedings it is possible or practicable for me to attempt to provide specific or fine-tuned directions with respect to the scope of the arguments the various interveners should be permitted to make. In my view, the most appropriate order is the usual order, namely, that the interveners must accept the record as it is and that the interveners are not permitted to expand the issues beyond those raised by the original parties.

[29] I recognize that this may leave unresolved competing arguments as to what issues were raised or decided at trial and as to whether the trial judge went beyond those issues in her reasons for judgment. Those arguments may be addressed by way of motion after the factums are filed when, hopefully, the issues will have been more clearly defined and joined.

5. Factum length

[30] In this appeal, we will have very extensive written submissions from the parties. While I recognize that this is an unusually complex case and that it is of great importance to the interveners, there is a limit to the assistance the court can derive from further lengthy written arguments.

[31] Accordingly, I order that the friend of the court interveners be permitted to file factums of up to 20 pages each and that the party interveners be permitted to file factums of up to 30 pages.

[32] I note that Wabauskang and Big Grassy are represented by the same counsel and propose to file a joint factum. In my view, that could be confusing and unhelpful. Accordingly, I direct that they file separate factums, each dealing with their own particular perspectives. I hardly need add that it is quite acceptable for these parties or any other party to simply adopt a position taken in the factum of another party or intervener if so advised.

6. Time for oral argument

[33] In my view, it would be premature to set the time limits for oral argument of these interveners. No time limits have yet been set for the parties and I direct that time limits be set after all factums have been filed.

7. Filing dates

[34] It appears to be more or less common ground that the interveners should file their factums not later than October 15, 2012.