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

B E T W E E N: IN THE SUPREME COURT OF CANADA Court File No. (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) NISHNAWBE-ASKI NATION and GINOOGAMING FIRST NATION, LONG LAKE 58 FIRST NATION, and TRANSCANADA PIPELINES LIMITED - and- THE CORPORATION OF THE TOWNSHIP OF BEARDMORE, THE CORPORATION OF THE TOWNSHIP OF NAKINA, and THE CORPORATION OF THE TOWN OF LONGLAC - and - Applicants (Applicants) Applicants (Respondents) 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 - and - Respondents (Respondents) THE CORPORATION OF THE TOWN OF GERALDTON, and THE TRANSITION BOARD OF THE GREENSTONE RESTRUCTURING COMMISSION (Respondents) MEMORANDUM OF ARGUMENT OF THE NISHNAWBE-ASKI NATION AND THE GINOOGAMING FIRST NATION ON AN APPLICATION FOR LEAVE TO APPEAL

- ii - TABLE OF CONTENTS OVERVIEW... 1 PART I STATEMENT OF FACTS... 1 The Applicants... 1 The Greenstone Restructuring Commission... 2 Treaty and Aboriginal Rights... 2 Lands and Governance Negotiations... 4 The Decision of the Divisional Court... 5 The Decision of the Court of Appeal... 7 PART II POINTS IN ISSUE...8 PART III ARGUMENT... 9 An Administrative Law Duty to Consult Aboriginal People... 9 The Process in which Treaty Rights can be Considered... 12 The Application of Deference to Legislative Decisions... 14 PART IV - ORDER REQUESTED... 14 PART V TABLE OF AUTHORITIES... 17

- 1 - OVERVIEW 1. This is an application for leave to appeal. It arises from a municipal restructuring order dated August 29, 1997, creating a municipality in northern Ontario called Greenstone, and made by Bob Gray, a sole commissioner appointed for a single purpose under the Ontario Municipal Act. Bob Gray s order was quashed on judicial review by the Ontario Divisional Court on December 31, 1997. The Court of Appeal for Ontario allowed an appeal on April 5, 00. 2. This case involves the following issues, which are of public importance in the submission of the Applicants: (a) (b) (c) Can there be an administrative law duty to consult Aboriginal people when a decision is being made which may affect their rights? Can the Treaty rights of Aboriginal people only be considered in a full trial proceeding, or is it possible (providing there are no or few factual disputes) to consider treaty rights in simpler proceedings? Can a one-person, single-purpose commission properly be considered legislative and granted the deference which would be due a legislature? 3. Further, with respect to the first two of these issues, there are conflicting judgments of the Courts of Appeal for Ontario and British Columbia. PART I STATEMENT OF FACTS The Applicants 4. The Respondent Nishnawbe-Aski Nation ( NAN ) is an Aboriginal organization which represents 47 First Nations in northern Ontario. The Respondent Ginoogaming First Nation ( GFN ) is an individual First Nation and a member of NAN.

- 2 - Reasons for Decision of O Driscoll J., 31 December, 1997, p. 7, Application Record, Tab 11, p. 125. The Greenstone Restructuring Commission 5. On July 2, 1997, the Minister of Municipal Affairs and Housing (the "Minister"), appointed Bob Gray as the sole member of a Commission (the "Commission") appointed pursuant to s. 25.3 of the Municipal Act, to develop and implement a municipal restructuring proposal for the Township of Beardmore, the Town of Geraldton, the Town of Longlac, and the Township of Nakina and extensive unincorporated territory in the area. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 23-7, Application Record, Tab 11, pp. 141-5. 6. On August 29, 1997, the Commission released a Final Restructuring Proposal and Order. The Order purported to create a single amalgamated municipality, called Greenstone, comprised of the four existing municipalities of Beardmore, Geraldton, Longlac and Nakina, together with extensive unorganized territory. The Municipality of Greenstone would have been approximately 0 miles long and 12 miles wide, and have a population of about 6000 persons. The Order was to be finally implemented on January 1, 1998. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 34, Application Record, Tab 11, p. 152. Final Restructuring Proposal and Order for Beardmore, Geraldton, Longlac and Nakina and Surrounding Unincorporated Territory, by Bob Gray, Commissioner, August 29, 1997, Application Record, Tab 6, pp. 45-91. Treaty and Aboriginal Rights 7. Much of the area of land to be included in the Municipality of Greenstone is land currently used by First Nations members for the traditional purposes of hunting, trapping, fishing and gathering. These activities are of the utmost importance to the life, economy and

- 3 - culture of First Nations. In addition, the exercise of these activities is a constitutionally protected Treaty right. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 7, Application Record, Tab 11, p. 125. See also: Report of the Royal Commission on Aboriginal Peoples, (Ottawa: Minister of Supply and Services, 1996), Vol I, pp. 631-4. Constitution Act, 1982, s. 35. 8. These Applicants represent beneficiaries of Treaty Number Nine. The territory to which Treaty Nine is applicable includes lands which were to be within the Municipality of Greenstone. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 7, Application Record, Tab 11, p. 125. 9. Treaty Number Nine guarantees to its beneficiaries, inter alia, land for reserves, and hunting, trapping and fishing rights. And His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the government of the country, acting under the authority of His Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. The James Bay Treaty, Treaty No. 9, Exhibit A to the Affidavit of Charles Fox, p. 18, Application Record, Tab 2, p. 24 Reasons for Decision of O Driscoll J., 31 December, 1997, p.7, Application Record, Tab 11, p. 125.. For lands within its boundary, a municipality has the power to pass by-laws regulating or prohibiting the discharge of firearms which would affect the use of the land by Nishnawbe- 30 Aski persons.

- 4 - Reasons for Decision of O Driscoll J., 31 December, 1997, p. 7, Application Record, Tab 11, p. 125. Municipal Act, R.S.O. 1990 c. M.45, s. 2(36). 11. The municipalities of Beardmore, Geraldton and Longlac have already enacted bylaws which regulate or prohibit the discharge of firearms. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 7, Application Record, Tab 11, p. 125. By-Law No.4 of the Corporation of the Improvement District of Beardmore; By-Law No.94-1714 of the Corporation of the Town of Geraldton; By-Law No.154 of the Corporation of the Improvement District of Longlac; Exhibits G, H, and I, Affidavit of Charles Fox, Application Record, Tabs 3, 4, and 5, pp. 40-4 12. These Applicants assert that the constitutional protection of treaty and Aboriginal rights will shield First Nations persons from the effects of such by-laws, but if such by-laws were made and attempts were made to enforce them, this would cause hardship and inconvenience to individual aboriginal persons who will have to defend the exercise of their rights. Many Nishnawbe-Aski persons have no regular income and may not be able to defend their rights. Further, these persons in particular are the very people who rely most heavily on traditional harvesting activities for sustenance. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 7-8, Application Record, Tab 11, pp. 125-6. Lands and Governance Negotiations 13. In 1986, NAN, Canada and Ontario commenced a process of negotiation to implement self-government for NAN First Nations. This process was established by a Memorandum of Understanding ("MOU") signed February 24, 1997 and an Addendum to it was signed December 1, 1989. Negotiations under MOU had been inactive but governance negotiations between NAN, Canada and Ontario were resuming when this litigation commenced.

- 5 - Reasons for Decision of O Driscoll J., 31 December, 1997, p. 8, Application Record, Tab 11, p. 126. 14. These Applicants assert that the proposed boundaries for the Municipality of Greenstone may foreclose options available to NAN and its member First Nations, with respect to land claims and negotiations to implement self-government. The inclusion of a large amount of land within the new municipality means that the municipality is an additional "stakeholder" with respect to that land. This will make more difficult any negotiations in the MOU process concerning ownership of or jurisdiction over such land, especially since federal and provincial policies mandate the consideration of municipal factors in such situations. Affidavit of Charles Fox, para. 14, Application Record, Tab 7, p. 95 15. As part of the MOU negotiations with NAN, an Interim Measures Agreement ("IMA") was entered into in 1990, which provided that NAN receive notification of planned developments which might affect NAN or its members. While the term of the IMA has officially expired, NAN still receives the kind of notifications which the IMA contemplates. The IMA applies to lands in Ontario covered by Treaties Number Nine and Five, except those lands "within the boundaries of organized municipalities." The creation of the Municipality of Greenstone, therefore, would limit the scope of the IMA significantly. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 8, Application Record, Tab 11, p. 126. Affidavit of Charles Fox, para.11, Application Record, Tab 7, p. 94. The Decision of the Divisional Court 16. The Divisional Court quashed the Final Proposal and Order of the Commission for a number of independent reasons, as follows:

- 6 - (a) (b) (c) (d) the Commission ordered a type of restructuring which was not permitted by the relevant regulations; the Commission was required to consult with First Nations in the area, but failed to consult at all with Long Lake #58, and failed to consult properly, adequately and meaningfully with the Nishnawbe-Aski Nation ( NAN ) and the Ginoogaming First Nation ( GFN ); the "three filter" test used in a previous hearing by the Ontario Municipal Board, which was explicitly adopted by the Commission, still represents the benchmark for restructuring proposals. However, the Commission applied this test in a way which was "overwhelmingly" unreasonable, and made conclusions without any evidence. the Commission appeared to be biased Reasons for Decision of O Driscoll J., 31 December, 1997, p. 38-48, Application Record, Tab 11, pp. 156-166. 17. The Divisional Court did not consider the argument made by these Applicants that the Final Proposal and Order of the Greenstone Restructuring Commission infringed their Treaty rights, because this was not necessary in view of the success of the Application on other grounds. However, (contrary to the assertion made in the reasons of the Court of Appeal) the requisite Notice of Constitutional Question had been given and was filed at the hearing in the Divisional Court. All parties were content to argue the matter fully on the basis of the record as it existed, and indeed counsel from the Ministry of the Attorney General specialized in Aboriginal law argued the Treaty rights issue on behalf of Ontario. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 42-43, Application Record, Tab 11, pp. 160-1. Notice of Constitutional Question (Divisional Court), Application Record, Tab 8, p. 99-4. 18. The Divisional Court summarized its reasons by observing:

- 7 - It is not my duty or place to comment upon how a Commission under s. 25.3 of the Municipal Act should be conducted. However, I am constrained to say that this case could be used as a text book of how it should not be conducted. Reasons for Decision of O Driscoll J., 31 December, 1997, p. 49, Application Record, Tab 11, p. 167. The Decision of the Court of Appeal 19. The Court of Appeal set aside the Divisional Court s order, thus restoring the order of the Commission creating the Municipality of Greenstone. The Court of Appeal found that all of the reasons of the Divisional Court were wrong. Overall the thrust of the judgment was that a restructuring commission was acting in a way which was essentially legislative and that therefore Courts should defer to the judgment of the Commission. Reasons for Decision of Borins, J.A., 5 April, 00, p., 55-61, Application Record, Tab 13, pp. 181, 226-32.. More specifically, the Court of Appeal: (a) (b) (c) (d) decided that the type of restructuring done was permitted by the relevant regulations decided that administrative law placed no duty at all on decision makers to consult with First Nations about matters that may affect their rights. A duty to consult could only be considered by a Court, in the context of a constitutional law argument, if a First Nation first establishes a specific treaty right and a violation of it. decided that the Commission was not required to apply the three filter test, and that a Court was not entitled to consider whether or not the Commission permitted a tax grab. decided that the appropriate standard of bias was not an appearance of bias, but a closed mind test, and the Court s view of the evidence was that the Commission did not have a closed mind.

- 8 - (e) refused to deal with the substance of the argument about infringement of treaty rights because in its view the evidence was insufficient to consider this argument. Reasons for Decision of Borins, J.A., 5 April, 00, p. 61-88, Application Record, Tab 13, pp. 232-259. 21. With respect to the Treaty rights issue, contrary to the assertion made in the reasons of the Court of Appeal, the requisite Notice of Constitutional Question had been given and was filed in the Court file of the Court of Appeal. All parties were content to argue the matter fully on the basis of the record as it existed, and indeed counsel from the Ministry of the Attorney General specialized in Aboriginal law argued the Treaty rights issue on behalf of Ontario. Notice of Constitutional Question (Court of Appeal), Application Record, Tab 9, p. 5-111. PART II POINTS IN ISSUE 22. This case involves the following issues, which are of national importance in the submission of the Applicants: (a) (b) (c) Can there be an administrative law duty to consult Aboriginal people when a decision is being made which may affect their rights? Can the Treaty rights of Aboriginal people only be considered in a full trial proceeding, or is it possible (providing there are no or few factual disputes) to consider treaty rights in simpler proceedings? Can a one-person, single-purpose commission properly be considered legislative and granted the deference which would be due a legislature?

- 9 - PART III ARGUMENT An Administrative Law Duty to Consult Aboriginal People 23. A duty to consult Aboriginal people about developments which affected them arose from judgments of this Court in the context of whether or not a prima facie infringement of Aboriginal rights could be justified. R. v. Sparrow, [1990] 1 S.C.R. 75 at 1119 Delgamuukw v. B.C., [1997] 3 S.C.R. at 1113 24. This duty to consult with Aboriginal people has been applied in the context of judicial review to add content to administrative law doctrines of fairness, both as a matter of the common law duty of fairness, and as an aid to interpreting general grants of discretion about who should be consulted, and, in some cases, as a free-standing duty based on the Crown s fiduciary obligations to Aboriginal people. 25. For example, in Halfway River, at the first level, Dorgan J. quashed a forest cutting permit for a number of reasons, including inadequate consultation with the First Nation as a matter of administrative law procedural fairness at common law, with no statutory reference. On appeal, Finch, J.A. decided there was a positive duty to consult the First Nation about a forest cutting permit as part of an administrative process that is procedurally fair, apparently based on a reference to First Nations in the preamble to the Forest Code and a general statutory discretion to provide opportunities for input to interested or affected persons. Huddart J.A., concurring, decided that there was a duty to consult the First Nation, flowing from the Crown s fiduciary and constitutional responsibilities, but outside the Sparrow justification analysis. Halfway River First Nation v. B.C. (Ministry of Forests), [1997] 4 C.N.L.R. 45 at 76-8 (B.C.S.C.).

- - Halfway River First Nation v. B.C. (Ministry of Forests) (1999), 178 D.L.R. (4 th ) 666 (B.C.C.A.) at 685-6 and 699-700 (per Finch J.A.), and at 719-26 (per Huddart J.A.) 26. In Nunavik Inuit, an application for judicial review was before the Federal Court, based on the refusal of the Minister of Canadian Heritage to undertake not to create a National Park without the consent of the Nunavik Inuit. The Court granted a declaration that the Minister had a duty to consult and negotiate in good faith with the Nunavik Inuit before creating a National Park. The Court based this in the constitutional and fiduciary duty of the Crown, but the case was purely about procedural, not substantive, rights, and the reasoning was outside any kind of justification analysis. Nunavik Inuit v. Canada (Minister of Canadian Heritage) (1998), 164 D.L.R. (4 th ) 463 at 465, 492-3 and 497-8 (F.C.T.D.) (per Richard A.C.J. as he then was, now C.J.) 27. In Cheslatta Carrier, the Court ordered a consultation process with the Aboriginal petitioners, having found a breach of the duty to consult them. This was based both in the common law duty of fairness and in specific statutory requirements. Cheslatta Carrier Nation v. British Columbia, [1998] 3 C.N.L.R. 1 at 14 and 22-3 (B.C.S.C.) (per Williams C.J.S.C.) 28. In the case at bar, by statute, the Commission was required to consult with any municipality in the area and had discretion about who else it would consult. Municipal Act, R.S.O. 1990 c. M.45, s. 25.3(4) 29. In the case at bar, the Court of Appeal for Ontario did not follow the above authorities concerning consultation with Aboriginal people, for example, by using them to inform the proper exercise of the discretion to consult, or by applying them in the context of a common law duty of fairness. Rather, the Court of Appeal ruled that the duty to consult Aboriginal people did not apply in administrative law, but could only apply in the context of a

- 11 - constitutional law case after a treaty or aboriginal right, and an infringement of it, had first been proven. Reasons for Decision of Borins, J.A., 5 April, 00, p. 66-7, Application Record, Tab 13, p. 237-8. 30. It is submitted that whether or not a duty of consultation with Aboriginal people arises in administrative law when a decision which may impact on aboriginal or treaty rights is being made is of national significance. This is all the more so when it is seen that the approach of the Court of Appeal for Ontario in the case at bar diverges significantly from the jurisprudence of the British Columbia Courts (including the Court of Appeal) and the Federal Court. Halfway River First Nation v. B.C. (Ministry of Forests) (1999), 178 D.L.R. (4 th ) 666 (B.C.C.A.) Nunavik Inuit v. Canada (Minister of Canadian Heritage) (1998), 164 D.L.R. (4 th ) 463 (F.C.T.D.) 31. Further, the implication of the decision in the Court of Appeal for Ontario in this case is that there is no way for a First Nation to compel a decision-maker to consult with them before a decision is made about matters which may impact their rights. On the basis of this, it seems that a decision maker is entitled to assume (as Bob Gray did) that Aboriginal or Treaty rights would not be impacted, and only if a First Nation first proves this wrong in an independent legal proceeding can the issue of consultation be raised. It is submitted that it would be more congruent with the nature of administrative decision making to require a decision maker to investigate fully and fairly what impacts his or her decision might have, and to make any appropriate inquiries and consultations. Therefore, it is submitted that a more appropriate trigger for a duty of consultation would be a possible impact, rather than a judicially proven impact, on treaty or Aboriginal rights. This would permit the duty to consult

- 12 - to fulfil its purpose: to encourage the resolution of disputes between Aboriginal people and the Crown by negotiation, rather than by litgation. It is submitted that it is in the public interest for this Court to give guidance on this point, since there are a multitude of administrative decisions (eg natural resource use allocation and regulation) regularly being made which have a possible impact on Treaty or Aboriginal rights. S. Lawrence and P. Macklem, From Consultation to Reconciliation: Aboriginal Rights and the Crown s Duty to Consult (00), 79 Can. Bar Rev. 252, especially at 254-5, 262, and 267. The Process in which Treaty Rights can be Considered 32. Despite the text of Treaty being in evidence and there being uncontested evidence that these Applicants were beneficiaries of that Treaty, the Court of Appeal stated that it appeared that the evidence did not conclusively establish the requisite treaty or Aboriginal rights. See above, paras 7-9. Reasons for Decision of Borins, J.A., 5 April, 00, p. 68, Application Record, Tab 13, p. 239. 33. It is submitted that the question of the amount and type of evidence that is required to establish a Treaty right is of public importance, and that if more evidence is required than is in the record in this case, it would be of public interest for this Court to give guidance on what more, precisely, would be required. 34. Despite the requisite notices of Constitutional question being given, and the parties (including the Attorney General of Ontario) having argued the Treaty rights issue on its merits, the Court of Appeal decided that the record was insufficient to even consider the Treaty rights argument either in that Court or on referral back to the Divisional Court. The

- 13 - Court of Appeal implied that a Treaty right could only be considered with the full procedures of a legal action, rather than summarily. See above, paras 17 and 21. Reasons for Decision of Borins, J.A., 5 April, 00, p. 84, Application Record, Tab 13, p. 255. 35. While the proof of Aboriginal rights is almost always extremely complex, proof of a Treaty right can be far more straightforward, where, as in this case, no interpretive challenge is made to the plain meaning of the written text of the Treaty. 36. A similar situation is that constitutional law challenges can be considered in an application, as long as the facts are not unduly complex or disputed. Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 14.05 (g.1) 37. While a practice issue such as this is not typically one of public importance, it is submitted that in this instance it is of public significance, since this will affect the procedures which First Nations are required to use to legally assert their rights. An action is far more onerous procedurally than an application, and could lead to a delay (and hence a denial) of justice, even in cases where a First Nation asserts a straightforward interpretation of a welldefined Treaty right. This factor is accentuated by the reluctance of Courts to grant interlocutory injunctions in such situations. S. Lawrence and P. Macklem, From Consultation to Reconciliation: Aboriginal Rights and the Crown s Duty to Consult (00), 79 Can. Bar Rev. 252 at 275. 38. Further, on this practice point, the decision of the Court of Appeal is at odds with a decision of the British Columbia Court of Appeal.

- 14 - Halfway River First Nation v. B.C. (Ministry of Forests) (1999), 178 D.L.R. (4 th ) 666 (B.C.C.A.) especially at 693-4 (per Finch J.A.). The Application of Deference to Legislative Decisions 39. There is no dispute that Bob Gray was granted broad discretion under the Municipal Act, and that deference by Courts to this is appropriate. Baker v. Canada, [1999] 2 S.C.R. 817 at 854-5. 40. However, the Court of Appeal stated that Bob Gray s role was essentially legislative, and neither quasi-judicial nor administrative. Because of this characterization, the Court of Appeal rejected as inapplicable the spectrum analysis for deference, whereby on a pragmatic and functional approach, various factors are considered in choosing the applicable standard (correctness, unreasonableness, or patent unreasonableness). Rather, the Court of Appeal seems to have concluded, solely on examining the nature of the decision in question, that the highest possible standard of deference should be applied, if indeed the Court should review the decision at all. The Court did not consider any of the other factors in the spectrum analysis, such as expertise or political accountability of the decision maker. Reasons for Decision of Borins, J.A., 5 April, 00, p., 59-61, Application Record, Tab 13, p. 181 and 230-2. 41. It is submitted that it is a question of public significance whether a one-person, onepurpose decision-maker, appointed by a Minister, should be accorded deference equal to that accorded a legislature, without considering any factors beyond that of the nature of the decision to be made. PART IV - ORDER REQUESTED 42. These Applicants seek an order that leave to appeal be granted.

- 15 - ALL OF WHICH IS RESPECTFULLY SUBMITTED 1 June, 00 Morris / Rose / Ledgett LLP Barristers & Solicitors Canada Trust Tower, BCE Place Suite 2700, 161 Bay St. Toronto, ON M5J 2S1 H. W. Roger Townshend Tel: (416) 981-9454 Fax: (416) 863-9500 Solicitors for the Nishnawbe-Aski Nation and the Ginoogaming First Nation \\NTS2\FILENO\62922\PLEADING\hwrt scc leave factum.doc

- 16 - PART V TABLE OF AUTHORITIES Cases Baker v. Canada, [1999] 2 S.C.R. 817... 15 Cheslatta Carrier Nation v. British Columbia, [1998] 3 C.N.L.R. 1 (B.C.S.C.)... 11 Delgamuukw v. B.C., [1997] 3 S.C.R.... 9 Halfway River First Nation v. B.C. (Ministry of Forests) (1999), 178 D.L.R. (4 th ) 666 (B.C.C.A.)..., 12, 14 Halfway River First Nation v. B.C. (Ministry of Forests), [1997] 4 C.N.L.R. 45 (B.C.S.C.).... Nunavik Inuit v. Canada (Minister of Canadian Heritage) (1998), 164 D.L.R. (4 th ) 463 (F.C.T.D.)... 11, 12 R. v. Sparrow, [1990] 1 S.C.R. 75... 9 Statutes Constitution Act, 1982, s. 35... 3 Municipal Act, R.S.O. 1990 c. M.45... 4, 11 Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194... 14 Other Authorities Report of the Royal Commission on Aboriginal Peoples, (Ottawa: Minister of Supply and Services, 1996)... 3 S. Lawrence and P. Macklem, From Consultation to Reconciliation: Aboriginal Rights and the Crown s Duty to Consult (00), 79 Can. Bar Rev. 252... 13, 14