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

Transcription

1 Court File No 5 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) BETWEEN: NISHNAWBE-ASK1 NATION and GINOOGAMING FIRST NATION, LONG LAKE 58 FIRST NATION. and TRANSCANADA PIPELINES LIMITED Applicants (Applicants) - and- THE CORPORATION OF THE TOWNSHIP OF BEARDMORE, THE CORPORATION OF THE TOWNSHIP OF NAKINA, and THE CORPORATION OF THE TOWN OF LONGLAC Applicants (Respondents) - and - 20 HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF MUNICIPAL AFFAIRS AND HOUSING, and BOB GRAY, COMMISSIONER OF THE GREENSTONE RESTRUCTURING COMMISSION Respondents 25 (Respondents) -and- THE CORPORATION OF THE TOWN OF GERALDTON, and THE TRANSITION BOARD OF THE GREENSTONE RESTRUCTURING COMMISSION (Respondents) MEMORANDUM OF ARGUMENT FOR LEAVE TO APPEAL Alan Pratt, Barrister & Solicitor Gowling, Strathy & Henderson 3550 Tonvood Drive. Barristers & Solicitors R.R. #I, Dunrobin. Ontario Suite 2600, I60 Elgin Street KOA 1 TO Ottawa, Ontario 40 Telephone: (613) KIM 8S3 Facsimile: (613) Telephone: (613) Solicitor for the Applicant Facsimile: (613) Ottawa Agents for the Applicant

2 CONTENTS PART I: STATEMENT OF FACTS... 1 A: Introduction... I B: Procedural History 1 5 C: Facts Relating to the First Nation PART 11: POINTS IN ISSUE... 6 PART 111: ARGUMENT... 7 A: Consultation and Procedural Fairness ) Enabling Statute and Terms of Reference 2) Procedural Fairness ) Relationship between Aboriginal Peoples and the Crown ) Summary of Duty ofconsuliation in this Case... I I B: The Standard of Judicial and Appellate Review... I3 C: National Importance of the Issue PART IV: ORDER REQUESTED PART V: TABLE OF AUTHORITIES... 21

3 PART I: STATEMENT OF FACTS A: Introduction 1. Long Lake 58 First Nation ("the First Nation") seeks leave to appeal to this Honourable Court from the decision of the Ontario Court of Appeal dated April The Ontario Court of Appeal reversed the decision of the Divisional Court rendered December 31,1997. The Divisional Court had quashed the Final Proposal and Order of the Greenstone Restructuring Commission dated August 29, 1997 for a variety of reasons. 2. This application raises issues that are novel in this Court and, in the submission of 10 the First Nation, are of national importance. They address the interplay between asserted aboriginal rights and title and the duty of statutory decision-makers to consult with or to afford procedural fairness to a First Nation that has made such an assertion. I5 3. A concurrent application on behalf of Nishnawbe-Aski Nation ("NAN") and Ginoogaming First Nation ("GFN) raises additional issues in connection with established treaty rights. The concurrent application on behalf of TransCanada Pipelines Limited ("TCPL") raises additional administrative law issues related to the standard of deference appropriate to the decision of the Commission. The First Nation adopts the statements of facts of those applications, as well as their submissions, insofar as they are not inconsistent with the submissions herein. 20 B: Procedural History 4. The proceedings involve judicial review of the Final Proposal and Order of the Greenstone Restmcturing Commission dated August That Commission. comprised of a single individual, had ordered the "restructuring" of four municipalities in northern Ontario into the single Municipality of Greenstone and had annexed to 25 Greenstone a large tract of previously municipally unorganized territory totaling approximately 930 square miles. The Divisional Court had quashed the Order for a variety of reasons. The Court of Appeal reinstated it.

4 Reasons of Ontario Divisional Coun, page 49; Application Record, page 93. Reasons of Ontario Coun of Appeal, page 88; Application Record, page The First Nation objected and continues to object to the annexation of territory, asserting that this part of the Commission's Order had serious adverse impacts upon its 5 pending land claims and that the Commission completely failed to consult with it. The First Nation did not and does not object to the Coniniission's Order insofar as it merely amalgamated or combined the four municipalities within their existing boundaries. C: Facts Relating to the First Nation I0 6. The Reasons of the Divisional Court included a summary of the rights and claims of the First Nation, based on uncontroverted evidence. It can be summarized as follows: a. The First Nation and its ancestors have used and occupied the area surrounding Long Lake, Ontario from a time before the arrival of Europeans. b. The First Nation today has approximately 1,000 members; 400 reside on the habitable portion of the Reserve, a tract of 612 acres located 186 miles (300 kilometers) northeast of the City of Thunder Bay, Ontario. The Reserve is mostly swamp and is crossed by Highway 11 and two (2) railway rights of way. c. In 1980, because of serious social and other problems due to overcrowding and its lack of land, the First Nation passed a Band Council Resolution directed to the Minister of Natural Resources seeking an addition to the.reserve for community expansion. d. In 1990 [the Reasons of the Divisional Court erroneously identified this year as 19831, the Government of Ontario stated: "Ontario's response to the Anishinabek land claim as it relates to Long Lake 58 First Nation is that Ontario recognizes the historical fact that the ancestors of the Long Lake First Nations did not sign

5 the Robinson Superior Treaty [1850]. We are prepared to negotiate a resolution of the matter." e. In December the Government of Ontario stated: "Ontario is prepared to enter comprehensive negotiations with Long Lake 58 First Nation on a wide range of items, including land claims and self government... As a first step, we are prepared to enter negotiations with you to provide a larger land base for Long Lake Indian Reserve 58." f. Counsel advised the Divisional Court that the Government of Ontario's 1990 undertakings have not been implemented nor have they been expressly rescinded. g. In August 1995, the First Nation's land claim was resubmitted in a somewhat altered form. Historical research is underway to clarify certain factual points in the "Statement of Comprehensive Claim". h. The First Nation in its 1995 claim sought interim relief in the form of a freeze on all disposition of Crown land within the traditional territory of the First Nation as set out in the 1995 Comprehensive Claim. The Government of Ontario has not answered the claim for interim relief. i. In the alternative, the First Nation bases a claim on Treaty 9 arising out of the mistaken conclusions of Crown officials that the First Nation was represented at the signing of the Robinson Superior Treaty of 1850 and, as a result, was deprived of an opportunity to participate in Treaty 9 in j. The First Nation wishes to settle its land claim and expand its land base by acquiring Crown land within its traditional tsrritory that is contiguous or close to the present Reserve. Reasons of Ontario Divisional Coun, pages 6-7: Application Record, pages 50-1

6 7. The First Nation's reserve is located entirely within the "prescribed locality" within which the Commission was to consider municipal restructuring. The First Nation is not a "municipality" within the meaning of section and 25.4 of the Municipal Acf, R.S.O. 1990, c. M.45, as amended. 8. The First Nation submits that it had a right to receive notice and to have an opportunity to comment on the annexation aspect of the Commission's mandate as a matter of procedural fairness, or to be consulted by the Commission, in the circumstances of this case by virtue of the fact that it has made an assertion of aboriginal rights and title, or alternatively, treaty rights, and is likely to be entitled to an expanded land base as a result of negotiations. 9. The Divisional Court held that the Commission did not consult "at all" with the First Nation. His Lordship added that the First Nation and the other aboriginal parties "would have been impacted the most by the annexation." Reasons of Ontario Divisional Court, page 42; Application Record, page The First Nation adduced evidence to demonstrate the serious impact of the annexation of territory into municipal jurisdiction upon its rights and pending claims: a. The purpose of the land claim launched in 1995 was to secure a negotiated agreement that would formalize the First Nation's ownership of, and its governance over, lands within its traditional territory. Reasons of Ontario Court of Appeal. at paragraph 45. page 27; Application Record, page 122. b. ;-The First Nation's aspirations for self-government would be complicated and hampered by the extension of municipal jurisdiction into areas that have traditionally been free of municipal organization. Reasons of Ontario Court af Appeal, at paragraph 45, page 27; Application Record, page 122, c. The evidence of a legal practitioner experienccd in aboriginal land rights or claims was that an Aboriginal claimant involved in negotiations concmming

7 land which is within a municipality is at a distinct disadvantage compared to a claimant negotiating in respect of land which is without municipal organization. Extensive reasons for that opinion were provided. (Counsel can advise that those reasons included the obvious fact that a municipality that had secured a major taxpayer utility such as TCPL as the result of the annexation of territory would naturally resist giving up that territory in favour of a First Nation once it had come to rely on the additional tax revenue.) Reasons of Ontario Court of Appeal, at paragraph 46, pages 27-8; Application Record, pages The Court of Appeal noted that no evidence had been tendered by the Crown to lo refute the evidence tendered by the First Nation in support of its objections to a restructuring proposal which placed the lands that they occupy within a newly created municipality and subject to municipal governance. Reasons of Ontario Court of Appeal. page 28; Application Record. page 123. I5 12. Despite its observation that the First Nation's land claim was "described in considerable detail" and that the First Nation's evidence provided "extensive reasons" for the assenion that the First Nation would be at a "distinct disadvantage" because of the Commission's decision to annex land to the new municipality, the Court of Appeal later in its reasons unaccountably criticized the factual record on those same matters as incomplete: As well, to the extent that it is relevant, there was also a serious deficiency as to the particulars of the First Nation respondents' land claims, including the status of the negotiations and precisely how the creation of a new municipality would in faci-impede, or jeopardize, the resolution of the claims. There was no evidence that this would prevent the land claims from continuing. The land claims may. or may not, succeed in whole or in pan. In my view. nothing in the record enables this court to even predict their outcome. Reasons of Ontario Court of Appeal, at paragraph 45, page 27: ("described the land claim in considerable detail,") paragraph 46, page 27 ("extensive reasons" for opinion that First Nation was at a disadvantage with dealing with land in a municipality) and paragraph 122, page 68; Application Record, pages 122 and 163.

8 13. The Court of Appeal noted that no consultation had occurred with the First Nation. The Commissioner did not meet with the First Nation. Although the Commissioner had asked to meet with "the aboriginal groups in the area" his delegate, an official with the Ontario Ministry of Municipal Affairs and Housing, did not contact the 5 First Nation. It was agreed by the parties that that official "was of the mistaken belief that NAN represented" the First Nation. Reasons of Ontario Court of Appeal, at paragraph 52, pages 29-30; Application Record. pages Due to the lack of notice, no-one on behalf of the First Nation attended the July meeting between the Commission and NAN and GFN. 10 Reasons of Ontario Court of Appeal, at paragraph 53, page 30; Application Record. page No information was ever provided to the Commission respecting the First Nation's treaty rights or land claim, nor was the First Nation ever provided with the opportunity to make submissions in respect to the draft proposal. Reasons of Ontario Coun of Appeal, at paragraph 53, page 30; Application Record. page The Commission made no contact with the Ontario Native Affairs Secretariat (which is responsible for land claims in Ontario), or with the Ministry of Natural Resources to determine the status of the First Nation's land claim or other outstanding issues with the Ontario government. Reasons of Ontario Court of Appeal, at parag~aph 54, page 30: Application Record, page PART 11: -. POINTS IN ISSUE 17. This application for leave to appeal raises issues of national significance to First Nation communities and to Canadian society generally, including: a. What is the obligat~on of a statutory decision-maker to afford procedural fairness to, or to consult with, a First Nation when its decision will affect the rights and interests of the First Nation where the merits of the First Nation's

9 4. Consultation -- The Commission shall consult with the municipalities involved and members of the general public in the prescribed locality when developing the restructuring proposal and may consult with such other bodies and persons as the Commission considers appropriate. Reasons of Court of Appeal, paragraph 35, pages 19-21; Application Record. pages It is submitted that the Terms of Reference varied the statutory duty to consult and lo imposed an additional duty upon the Commission to consult with "members of the general public" within the locality. This duty had to be fulfilled in light of the purpose of consultation, namely that the impacts that annexation of previously unincorporated territory would have on those "members of the public" with an interest in that territory. This includes the First Nation due to its unresolved land claims to that territory. 2) Procedural Fairness 23. Among the grounds forjudicial review that was relied upon by the First Nation was that: The First Nation was not accorded procedural fairness in connection with the work of the Commission. Reasons of Ontario Court of Appeal, quoting the F it Nation's Notice of Application, at paraglaph 72. page 41; Application Record. page Apart from quoting this paragraph, the Court of Appeal's reasons did not refer to the First Nation's arguments about procedural fairness in concluding that the Commission did not breach any duty to consult the First Nation. The Court of Appeal regarded the Commission's function as "a political process and, therefore, is essentially legislative,.~ 25 and neithe'i quasi-judicial nor administrative." Reasons of Court of Appeal, paragraph 16, page 10; Application Record, page It is submitted that this case raises novel and important issues about the duty of procedural fairness generally, and particular issues about that duty when the rights and claims of First Nations are involved.

10 26. This Court has recently restated the duty of procedural fairness as follows: The fact that a decision is administrative and affects "the rights, privileges or interests of an individual" is sufficient to trigger the application of the duty of fairness the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decisionmaker. Baker v. Canada (Minister of Citizenship and immigration), [I S.C.R paragraph 20 (citing Cardinal v. Director of Kent institution. [I S.C.R. 643, at p. 653) and paragraph The British Columbia Court of Appeal has held that no curial deference is owed, neither by the court of judicial review at first instance, nor by the Court of Appeal, when a statutory decision-maker has breached a duty of procedural fairness HalfwqV River First Nation v. E.C. (Ministry ojforesrs), [I C.N.L.R. I (B.C.C.A.), paragraph 58, page 23, per Finch J.A. (for the majority.) This conclusion is directly at odds with the decision of the Ontario Court of Appeal in this case. 29. There can be little doubt that a duty of procedural fairness, if it were owed to the First Nation by the Commission, was breached. The Commission made an attempt, but failed, to involve the First Nation in any consultation. 25 3) Relationship between Aboriginal Peoples and the Crown. 30. In addition, the Court of Appeal held that any duty to consult that was derived from the law of aboriginal and treaty rights was triggered only after a First Nation had proven the existence of its aboriginal or treaty rights as well as aprima facie infringement of them in an independent proceeding. Reasons of Ontario Coun of Appeal, paragraph 119, pages 66-7: Application Krcord, pages

11 3 1. The Court of Appeal referred to a recent article in the Canadian Bar Review on the question of consultation with Aboriginal peoples which it described as "helpful." Reasons of Coun of Appeal. paragraphs 119 and 120. pages 66-7; Application Record, pages referring to Sonia Lawrence and Patrick Macklem, "From Consultation to Reconciliation: Aboriginal 5 Rights and the Crown's Duty to Consult" (2000), 79 Can. Bar Rev The Court of Appeal misapprehended the thrust of the article, which actually urged that the duty to consult operate "ex ante" or prior to the proof of aboriginal rights. stating in part: But the Court's treatment of the duty in Delgamuukw as part of a justification of an infringement of an existing right illuminates only one consequence of breach of the duty, namely, that breach will affect the constitutionality of a Crown or third party action that amounts to an infringement. If the duty also operates to minimize reliance on litigation, as a means of determining the nature and scope of Aboriginal and treaty rights, it must also apply in cases where a First Nation asserts rights that have yet to be formally recognized by a court of law or treaty. [Emphasis added.] Lawrence and Macklem, bid, at page Lawrence and Macklem also argue that the particular content of the duty of consultation may vary along a spectrum, at one extreme merely requiring the Crown "to act in a procedurally fair manner to the First Nation," and at the other extreme imposing "a requirement that the Crown attempt in good faith to negotiate an agreement that identifies the respective rights of the parties to the territory in question." Lawrence and Macklem, ihid, at page T~E Court of Appeal found "considerable merit" in the proposition that "there was a reciprocal duty on the First Nations to engage in the consultative process, which they had not fulfilled." It is clear that the latter comment cannot apply to the First Nation, in that it was not consulted at all by the Commission and had no opportunity to decide 30 whether and how to engage in any consultation attempt by the Commission. It is thus apparent that the Court of Appeal did not consider the submissions of the First Nation

12 b. The law of procedural fairness as applied to the facts of the present case; and c. The possibility that the law of aboriginal and treaty rights requires consultation ex ante where there is a of infringement of such rights 39. This Court has stated that: 5 In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the 10 exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. 15 [Emphasis added.] R I,. Adarns, [I S.C.R. 101 at paragraph It is submitted that the legislatures of the Provinces are subject to at least a similar duty to structure discretionary decision-making regimes that risk infringing aboriginal rights, in that aboriginal rights and title are subject to exclusive federal legislative 20 authority. Provincially appointed decision-makers are thus obliged to confine their decisions to matters within provincial authority, including taking reasonable steps to avoid risking infringements of aboriginal rights and title in carrying out their duties. Delgarnuukwv. B C, [I S.C.R at paragraphs 174 (aboriginal title)and 181 (aboriginal rights) Tk- threshold issue is whether the evaluation of a "risk" of infringement of aboriginal rights requires the aboriginal party to first prove the existence of those rights, or whether the assessment of that risk becomes part of the procedural obligations of the decision-maker. Whether the First Nation party has an onus of establishmg the right before seeking relief from decisions made under such a regime will depend upon the 30 nature of the risk of impact upon the asserted right and the relief sought by the First Nation.

13 42. The present case squarely poses the question of whether a First Nation has a right to be consulted (or to be afforded the most basic elements of procedural fairness) when a discretionary decision-maker appointed by a provincial Minister under provincial legislation is considering a decision that "risks" infringing any aboriginal rights or title 5 that the First Nation may have, and where that decision may jeopardize prospects for an honourable reconciliation of rights. lo 43. It is clear that conduct may comply with the requirement of "notice" and the right to be heard as part of a duty of procedural fairness on one hand, and "consultation" as referred to in the aboriginal and treaty rights jurisprudence on the other, as part of the Crown's duty to justify infringements of those rights. They are doctrinally distinct, the first derived from the duty of decision-makers to give notice to those whose rights they affect and the second derived from the sui generis nature of the rights of aboriginal peoples. Holfwoy RNer Firs1 Notion v B.C.. supra at page 44, per Finch J.A. for the majority As the law develops it may well be that a convergence of the law of notice and consultation in these two contexts will occur, in that both are relevant considerations when a statutory decision-maker's discretion is exercised in such a way as to impact First Nations who may assert or may clearly possess aboriginal or treaty rights. 45. The conclusion of the Ontario Court of Appeal in this case is directly contrary to 20 the approach taken by the British Columbia Court of Appeal in the Halfway River case. No application for leave to appeal that case to this Court has been filed... B: he Standard of Judicial and Appellate Review 46. The First Nation adopts the submissions in the Applications of TCPL and NAN and GFN on the standard ofjudicial review. In addition, howe\,er. the First Nation 25 wishes to make additional submissions on the question of the standard of review when procedural fairness is in issue.

14 47. The Court of Appeal wrote: In my view, the overriding issue presented by this appeal is the extent of the supervisory jurisdiction of the court in an application for judicial review of a restructuring proposal made by a restructuring commission appointed under s of the Municipul Act to carry out a legislative function in a political process. Reasons of Court of Appeal. paragraph 89, page 52; Application Record. page 147, 48. The Commission was a single-person, single-purpose, temporary and non-expert body. Despite this, the Court of Appeal extended curial deference due to the "legislative" nature of its task. Reasons of Court of Appeal, paragraph 16, page 10; Application Record, page Based on these attributes, the Court of Appeal considered: The review is limited to a consideration of whether the commission properly exercised the powers conferred on it by the Municipal Act and the Regulations. In other words, the judicial review is limited to whether a restructuring commission. as a creature of statute, properly exercised the powers conferred on it by the legislature. Its exercise of its statutory powers is reviewable to the extent of determining whether its actions are intra vires. Such a review does not encompass a consideration of the merits of the restructuring proposal, or agreement or disagreement with it. Reasons of Court of Appeal, paragraph 99, page 58; Application Record, page 153, 50. The Court of Appeal concluded that "unless the Commission's decision is patently unreasonable, the court will not interfere." Reasons of Court of Appeal. paragraph 103. page 61; Application Record. page In tiddition, the Court of Appeal made no comment on whether the Commission 25 was obliged to accord procedural fairness, although this was at the heart of the First Nation's submissions and which had been accepted by the Divisional Court as a matter going to the jurisdiction of the Commission. The Court of Appeal thus did not address whether a denial of procedural fairness is reviewable under a different standard of review than the substance of the decision itself.

15 52. This Court has recently clarified that the standard ofjudicial review of all administrative decision-making is to be determined using a "pragmatic and functional" approach, within a spectrum involving "correctness" and "patent unreasonableness" at the extremes. The application of this test to different types of decision-making can raise 5 issues of national importance. This case raises the issue of the standard ofjudicial review of a decision that is alleged to have denied procedural fairness in the face of assertions of aboriginal rights and title. Baker v. Canado (Minister ojcitirenship and immigration), supra, at paragraph 55 See also Psim v. British ColumbIa (Superinfendent oferokers). [I S.C.R. 557, Canada (Director o/lnvesrigation andraeurch) v. S outh Inc.. [I S.C.R Purhpanalhan v. Canada (Minister ofcitizenrhip and/mmigraiion). [I S.C.R By contrast the British Columbia Court of Appeal has held that there is no element of curial deference owed by neither the original court ofjudicial review nor the Court of Appeal when matters of procedural fairness are in issue. IS Hal* River Firsr Nation v. B.C.. supra, at page %per Finch J.A. (for the majority.) 54. The Alberta Court of Appeal has also held that breach of a duty of consultation goes to the jurisdiction of a decision-maker and is reviewable on a standard of correctness. Lakeland College Faculry Asrociarion v. Bwrd of Governors oflakland College ( 1998), D.L.R. (4') 338 at pages (Alla.C.A.) 55. Furthermore. and in any event, it is submitted that the Commission acted in a manner that was patently unreasonable in coming to conclusions about the nature of its decision lipon the rights of the First Nation without even consulting with it. For example. the Commission stated this: Existing treaty rights and guarantees, land claims and fiduciary obligations will be unaffected by municipal restructuring.... while the Comn~ission is convinced that municipal restructuring will not adversely affect First Nation treaty rights and guarantees, land claims and fiduciary obligations, it must deal with the perception by NAN that it does so and

16 in consequence limit boundary extensions to what is defensible for the reasons referred to above. Find Order andproposol. Greenstone Restructuring Commission, August Application Record, pages 17 and 20. Application Record, pages 23 and The Commission "convinced itself of these conclusions in the absence of any communication with the First Nation, or any other information about its assertions of rights, and this in itself is a patently unreasonable conclusion justifying judicial review C: National Importance of the Issues lo I5 57. The issues raised by the First Nation directly address the practical utility and legal enforceability of aboriginal and treaty rights. If, as the Court of Appeal suggests, aboriginal and treaty rights give rise to a duty to be consulted only after the rights are proven to exist and to have been proven to have beenprimafacie infringed, Aboriginal peoples would be forced to engage in a decades-long and crushingly expensive process of litigating every aboriginal right of First Nation in every location in Canada before statutory decision-makers will be required even to consult with them, unless provincial legislatures have so specified. 58. The law of aboriginal and treaty rights has evolved rapidly during the past 10 years. Yet the decisions of this Court have, to date, tended to establish broad principles governing those rights rather than addressing issues related to their protection, 20 recognition and enforcement in practice. This application gives this Court an opportunity to address the interplay between the assertions of such rights and administrative law remedies based on the doctrine of procedural fairness In 1990, this Court addressed the meaning of the constitutional recognition and affirmation of "existing aboriginal and treaty rights" in the Sparrow case. In 1996, this 25 Court addressed the particular meaning of aboriginal rights in Van der Peer, including the proof required. In 1997, this Court addressed the legal rules governing aboriginal title in the Delgamuukw case, again including the rules governing proof.

17 R. v. Sparrow, [I S.C.R. 1075; R v. Van der Peer. [I S.C.R. 507; Delgamuukw v. BC. [I S.C.R The honour of the Crown is always at stake in its dealing with aboriginal peoples. R v. Badger, ( S.C.R. 771, at paragraph 41,per Cory J; R. v. Marshall, [I S.C.R at paragmphs 49-52, per Binnie J. 61. This Court has said that reconciliation is the very purpose of the constitutional guarantee of aboriginal and treaty rights:... what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown. [Emphasis added.] R. v. Van der Peer, supra, at paragraph In Baker, this Court described the duty of discretionary decision-makers to respect fundamental rights and principles in exercising any discretion:... though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter Baker v. Canada (Minister ofcilizenship and lmmigrorion). suprafat paragraph Aboriginal rights, including aboriginal title. are part of the fundamental constituti&al fabric of Canada: Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25. a nonderogation clause in favour of the rights of aboriginal peoples. The "promise" of s. 35. as it was termed inr. v. Sparrow, [I S.C.R at p recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to

18 them by successive governments. The protection of these rights, so recently and arduously achieved. whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value. Rekrence re Secession of Quebec, [I S.C.R. 217, at paragraph If the decision of the Court of Appeal in this case stands, First Nations who have not successfully prosecuted court actions to prove the existence and prima facie infringements of their aboriginal or treaty rights are entitled to no consideration from decision-makers like the Commission unless the legislature has thought to list them 10 among the parties with whom the Commission must consult. 65. Such a requirement places First Nations in jeopardy of continual infringements of constitutionally protected rights that are of ancient origin, predating contact with Europeans in the case of aboriginal rights and predating the assertion of sovereignty in the case of aboriginal title. For the law to deny them the right to be accorded procedural I5 fairness upon proof of a risk of infringement of those rights, as opposed to proof of the right itself and its prima facie infringe= is to deny those rights meaning in practice. It reduces their constitutional recognition and affirmation to empty symbolism. Such a result would dishonour the rule of law as well as the honour of the Crown. 66. Under this view of the law, First Nations who wished to protect their aboriginal or 20 treaty rights would be driven into the courts, compelled to assemble the evidence required and to incur the expense and delays associated with the most complex litigation known to our legal system. The First Nation, for example, would be compelled to undertake litigation comparable in scale to the Delgumuukw case: The trial was lengthy and very complex. There were 3 18 days of testimony. There were a large number of witnesses, lay and expert. The volume of evidence is enormous. 'To quote the trial judge at pp : A total of 61 witnesses gave evidence at trial, many using translators from their native Gitksan or Wet'suwet'en language; "word spellers" to assist the official reporters were required for many witnesses; a further 15 witnesses gave their evidence on commission; 53 territorial affidavits were filed; 30 deponents were cross-examined out of court; there are pages of

19 transcript evidence at trial; 5898 pages of transcript of argument; 3,039 pages of commission evidence and 2,553 pages of cross-examination on affidavits (all evidence and oral arguments are conveniently preserved in hard copy and on diskettes); about 9,200 exhibits were filed at trial comprising, I estimate, well over 50,000 pages; the plaintiffs' draft outline of argument comprises 3,250 pages, the province's 1,975 pages, and Canada's over 1,000 pages; there are 5,977 pages of transcript of argument in hard copy and on diskettes. All parties filed some excerpts from the exhibits they referred to in argument. The province alone submitted 28 huge binders of such documents. At least 15 binders of reply argument were left with me during that stage of the trial. The result was a judgment of over 400 pages in length. I5 Delgamuukw, supra. a1 paragraph The position of the First Nation is simply that it had a right to be told of the Commission's proposals, to be asked about its interests that were relevant to those proposals, and to have its response taken seriously. Such a procedure would have minimized the risk of infringement of the First Nation's rights, would have promoted 20 reconciliation and would have lessened the risk of litigation. The duty to consult arose from impacts that the Commission was "convinced" were not real, but which the Divisional Court held were real. The Court of Appeal did not question that conclusion that the impacts were real. 68. In the Sparrow case, this Court described the constitutional recognition and 25 affirmation of "existing aboriginal and treaty rights" section 35 (1) of the Constitution Acr as a "substantive promise" to Aboriginal peoples Tk constitutional recognition afforded by the provision therefore gives a measurc of control over govemment conduct and a strong check on legislative power. While it does not promise immunity from govemment regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden ofjustifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1). R. v Sporrux,, supra, at page I l I0

20 69. That substantive promise will be seen as illusory and will be dishonoured unless it means at least that First Nations have a right to be consulted in the circumstances of this case. 70. It is submitted that this case raises legal issues of pressing national significance. 5 and which, if leave to appeal is granted, will advance the progress of Canadian jurisprudence both with respect to the rights of Aboriginal peoples, but also with respect to administrative law in other contexts. PART IV: ORDER REQUESTED 71. The Applicant therefore requests leave to appeal to this Honourable Court lo All of which is ~espectfdly submitted this 1'' day of June, d a n Pntt, ~arrister - & Gowling, Strathy & Henderson 3550 Torwood Drive, Barristers & Solicitors R.R. #1, Dunrobin, Ontario KOA 1TO Suite 2600, 160 Elgin Street Ottawa, Ontario 20 Telephone: (613) Facsimile: (613) KIM 8S3 Telephone: (613) Facsimile: (613) Solicitor for the Applicant Ottawa Agents for the Applicant Long Lake 58 First Nation

21 PART V: TABLE OF AUTHORITIES Cases 5 Baker v. Canada (Minister of Citizenship andimmigration), [I S.C.R. 817 Canuda (Director of lnvrsrigation andresearch) 1,. Sourhum Inc.. [I S.C.R Delgamuukw 1,. B.C., [I S.C.R Halfway River First Nation v. B.C. (Ministry of Forests), [I C.N.L.R. 1 (B.C.C.A.) Lakeland College Faculty Association v Board of Governors of Lakeland College (1998), I62 D.L.R. (4'h) 338 (A1ta.C.A.) Pezim v. British Colurnhia (Superintendent ofbrokers), [I S.C.R. 557 Pushpanarhan v. Canada (Minister of Citizenship and Immigration), [I S.C.R R. v. Adams, S.C.R. 101 R. v. Badger, [I S.C.R. 771 R. v. Marshall, [I S.C.R R. v. Sparrow, [I S.C.R R. v. Van der Peer, [I S.C.R. 507 Reference re Secession of Quebec, [I S.C.R. 217 Statutes.~ ~unici~oi~cl, R.S.O. 1990, c. M.45, as amended by S.O. 1996, c. 1 Other Authorities 35 Sonia Lawrence and Patrick Macklem, "From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult" (2000). 79 Can. Bar Rev. 252