COURT OF APPEAL FOR ONTARIO

Court File No. M21842 M21857 COURT OF APPEAL FOR ONTARIO BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF MUNICIPAL AFFAIRS AND HOUSING, and THE CORPORATION OF THE TOWN OF LONGLAC and Moving Parties TRANSCANADA PIPELINES LIMITED LONG LAKE 58 FIRST NATION THE CORPORATION OF THE TOWNSHIP OF BEARDMORE, THE CORPORATION OF THE TOWN OF GERALDTON, THE CORPORATION OF THE TOWNSHIP OF NAKINA, BOB GRAY, COMMISSIONER OF THE GREENSTONE RESTRUCTURING COMMISSION, and THE TRANSITION BOARD OF THE GREENSTONE RESTRUCTURING COMMISSION and Responding Parties NISHNAWBE-ASKI NATION and GINOOGAMING FIRST NATION Responding and Cross-Moving Parties FACTUM OF THE NISHNAWBE-ASKI NATION AND THE GINOOGAMING FIRST NATION ON THE MOTIONS FOR LEAVE TO APPEAL AND THE MOTION FOR LEAVE TO CROSS-APPEAL Suite 2700-161 Bay St. Canada Trust Tower - BCE Place Toronto ON M5J 2S1 Morris/Rose/Ledgett H.W. Roger Townshend Tel: (416) 981-9454 Fax: (416) 863-9500 Solicitors for The Nishnawbe-Aski Nation and the Ginoogaming First Nation

-ii- TO: Attorney General for Ontario Crown Law Office - Civil 720 Bay St., 8th Floor Toronto, ON M5G 2K1 Dennis W. Brown, Q.C. Tel: (416) 326-4156 Fax: (416) 326-4181 Solicitors for Her Majesty the Queen in Right of Ontario AND TO: McKitrick, Jones 17A Cumberland St. S. Thunder Bay, ON P7B 5G1 Allan G. McKitrick, Q.C. Tel: (807) 345-1251 Fax: (807) 345-0043 AND TO: Solicitors for the Transition Board of the Greenstone Restructuring Commission Poole Milligan Yonge Corporate Centre Suite 330 4100 Yonge St. North York, ON M2P 2B5 Richard N. Poole J. Bradford Nixon Tel: (416) 221-4100 Fax: (416) 221-6340 Solicitors for TransCanada Pipelines Ltd.

- iii - AND TO: Alan Pratt 3550 Torwood Dr. R.R. #1 Dunrobin, ON K0A 1T0 Tel: (613) 832-1261 Fax: (613) 832-4978 AND TO: Solicitor for Long Lake 58 First Nation Ministry of Municipal Affairs and Housing Legal Services Branch 16th Floor, 777 Bay St. Toronto, ON M5G 2E5 Stephen Scharbach Tel: (416) 585-6034 Fax: (416) 585-4003 Solicitor for Bob Gray, Commissioner of the Greenstone Restructuring Commission AND TO: Rene Larson Law Office 2821 Arthur St. E., Suite 200 Thunder Bay, Ontario P7E 5P5 Rene Larson Katja Huitikka Tel: (807) 623-6465 Fax: (807) 623-1354 Solicitors for the Corporation of the Town of Longlac

Court File No. M21842 M21857 COURT OF APPEAL FOR ONTARIO BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTER OF MUNICIPAL AFFAIRS AND HOUSING, and THE CORPORATION OF THE TOWN OF LONGLAC and Moving Parties TRANSCANADA PIPELINES LIMITED LONG LAKE 58 FIRST NATION THE CORPORATION OF THE TOWNSHIP OF BEARDMORE, THE CORPORATION OF THE TOWN OF GERALDTON, THE CORPORATION OF THE TOWNSHIP OF NAKINA, BOB GRAY, COMMISSIONER OF THE GREENSTONE RESTRUCTURING COMMISSION, and THE TRANSITION BOARD OF THE GREENSTONE RESTRUCTURING COMMISSION and Responding Parties NISHNAWBE-ASKI NATION and GINOOGAMING FIRST NATION Responding and Cross-Moving Parties FACTUM OF THE NISHNAWBE-ASKI NATION AND THE GINOOGAMING FIRST NATION ON THE MOTIONS FOR LEAVE TO APPEAL AND THE MOTION FOR LEAVE TO CROSS-APPEAL PART I - FACTS 1) Except as stated below, for the purposes of the motions for leave to appeal, the Nishnawbe-Aski Nation (NAN) and the Ginoogaming First Nation (GFN) accept the facts as stated in the factum of Her Majesty the Queen in Right of Ontario as represented by the Minister of Municipal Affairs and Housing ("Ontario") and in the factum of the Corporation of the Town of Longlac ("Longlac").

-2-2) NAN and GFN do not accept that the Greenstone Restructuring Commission (the "Commission") complied with all the requirements of s. 25.3 of the Municipal Act, asserted as a fact in paragraph 31 of Ontario's factum and paragraph 15 of Longlac's factum, as this is a conclusion of law. 3) NAN and GFN do not accept, as asserted in paragraph 17 of Longlac's factum, that the Commission reviewed "all applicable studies and information available with regard to local governance issues". The Divisional Court found that the Commission reviewed "selected documents", and specified some materials which were available to the Ministry of Municipal Affairs which were not forwarded to the Commission. Reasons for Decision of O'Driscoll J., December 31, 1997, p.27, Motion Record filed by Attorney General for Ontario, Tab B, p.33. 4) NAN and GFN do not accept, as asserted in paragraph 21 of Longlac's factum, that the Commission "commented" on the legal tests applied by the Ontario Municipal Board in past hearings involving some of the same territory - the Commission stated "categorically" that these principles guided its decision. Reasons for Decision of O'Driscoll J., December 31, 1997, p.35, Motion Record filed by Attorney General for Ontario, Tab B, p.43. 5) NAN and GFN do not accept the characterization of the intention of legislative amendments asserted as fact in paragraph 21 of Longlac's factum, since this is a conclusion of law. 6) NAN and GFN do not accept, as asserted in paragraph 21 of Longlac's factum, that "First Nations throughout the subject area were aware of and concerned about the proposed restructuring". It is accepted that NAN, GFN and the Aroland First Nation were aware and concerned. However, there is insufficient evidence (or no evidence) of this as applied to the First Nations of Long Lake #58, Rocky Bay, Sand Point, Poplar Point, Red Rock and Lake Nipigon Ojibway. 7) With respect to assertions about who was represented by NAN in paragraph 23 of Longlac's Factum and paragraph 65 of Ontario's factum, NAN denies that it represented the "First Nations in the area". NAN

-3- represented GFN and the Aroland First Nation. In one letter only, sent to the Minister of Municipal Affairs and Housing concerning an earlier restructuring proposal, before the appointment of the Commission, NAN unintentionally and erroneously stated that it also represented Long Lake #58 First Nation. NAN does not, and did not claim to represent any of the other First Nations in the area. Testimony of Charles Fox, Transcript, November 12, 1997, pp. 39-47 and 66-7. 8) With respect to the assertion in paragraph 65 of Ontario's factum that a representative of Long Lake 58 "may not" have been present at a specific meeting, the Divisional Court specifically found, prompted by an admission by counsel for Ontario, that "Grand Chief Fox, Chief Echum and Peter Moonias were telling the truth when they swore that Chief Abraham was not at the July 6, 1997 meeting". The inference is inescapable that the Ministry's witness were not telling the truth when they swore to the contrary. Ontario appears to be resiling from an admission made at the hearing of the application. Reasons for Decision of O'Driscoll J., December 31, 1997, p.28, Motion Record filed by Attorney General for Ontario, Tab B, p.34. 9) The Divisional Court quashed the Final Proposal and Order of the Commission for a number of independent reasons, as follows: a)the Commission ordered a type of restructuring which was not permitted by the relevant regulations; b)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 NAN and GFN; c)the "three filter" test used in a previous hearing by the Ontario Municipal Board, which was explicitly adopted by the Commission, still represent the benchmark for restructuring proposals.

-4- However, the Commission applied this test in a way which was "overwhelmingly" unreasonable, and made conclusions without any evidence. d)the Commission appeared to be biased Reasons for Decision of O'Driscoll J., December 31, 1997, p. 38-49, Motion Record filed by Attorney General for Ontario, Tab B, p.46-56. 10)The Divisional Court summarized this by observing: 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., December 31, 1997, p. 49, Motion Record filed by Attorney General for Ontario, Tab B, p.56. PART II - ISSUES RAISED BY THE MOVING PARTIES 11) The Divisional Court quashed the Commission's Order for four independent sets of reasons, as set out above. Any one of these reasons would justify the Court's ruling. Therefore, unless all of these reasons are in error, the ruling of the Court must stand. Further, unless the moving parties meet the tests for leave to appeal with respect to all of the issues they raise, an appeal would be pointless. Consultation with First Nations 12) The Divisional Court found that Long Lake #58 had not been consulted at all by the Commission. It is submitted that this is a question of fact alone, from which no appeal to this Court lies. Courts of Justice Act, R.S.O. 1990 c. C.43, s. 6(1)(a)

-5-13) It is established law that First Nations must be consulted about developments that may affect them. R. v. Sparrow, (1990) 70 D.L.R. 4th 385 (S.C.C.) at 416-7. Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans), [1997] F.C.J. No.984, para. 54-57 (F.C.T.D.) R. v. Jack [1996] 2 C.N.L.R. 113 (B.C.C.A.) at 132-3 R. v. Sampson [1996] 2 C.N.L.R. 184 ( B.C.C.A.) at 206-8 R. v. Noel, [1995] 4 C.N.L.R. 78 (N.W.T. Terr. Ct.) at 94-5 Halfway River First Nation v. British Columbia (Ministry of Forestry), [1997] B.C.J. No. 1494, p. 27-30 (B.C.S.C.). 14) It is therefore submitted that the moving parties have failed to establish that they have raised an "arguable question" concerning consultation with First Nations. The O.M.B. "Filter" Test 15) The moving parties submit that the "three filter" test used by the Ontario Municipal Board in the context of municipal restructuring is no longer applicable. If this is so, this constitutes an admission that the Commission was in error since it explicitly adopted this test. If it is not so, the challenge to the ruling of the Divisional Court evaporates. Thus, either option leads to the result that the Commission's decision was fatally flawed. 16) It should also be observed that the "three filters" in question are greatest common good, common sense, and fairness. The position of the moving parties appears to be that a Restructuring Commission is not required to use common sense or be fair. 17) It is therefore submitted that the moving parties have failed to establish that they have raised an "arguable question" concerning the O.M.B. "filter" test.

-6- PART III - ADDITIONAL ISSUE - THE CROSS-APPEAL 18) In the Divisional Court, NAN and GFN argued that the Commission's Order infringed their treaty rights, as protected by s. 35 of the Constitution Act, 1982. The Divisional Court found it unnecessary to deal with this question since the applications succeeded on other grounds. Reasons for Decision of O'Driscoll J., December 31, 1997, p. 42-3, Motion Record filed by Attorney General for Ontario, Tab B, p.50-51. 19) It is therefore submitted that the decision of the Divisional Court cannot be reversed without a determination of this question. It is submitted that it would be more convenient for this Court to deal with this question than to remit the question to O'Driscoll J. for a decision, should the appeal be successful on the issues relied on by O'Driscoll J. PART IV - ORDER REQUESTED 20) NAN and GFN seek an order dismissing the motions for leave to appeal by Ontario and by Longlac. 21) In the alternative, should leave to appeal be granted, NAN and GFN seek an order allowing their motion for leave to cross-appeal. ALL OF WHICH IS RESPECTFULLY SUBMITTED April 30, 1998 Suite 2700-161 Bay St. Canada Trust Tower - BCE Place Morris/Rose/Ledgett

-7- 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

-8- Schedule A - List of Authorities R. v. Sparrow, (1990) 70 D.L.R. 4th 385 (S.C.C.) Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans), [1997] F.C.J. No.984 (F.C.T.D.) R. v. Jack [1996] 2 C.N.L.R. 113 (B.C.C.A.) R. v. Sampson [1996] 2 C.N.L.R. 184 ( B.C.C.A.) R. v. Noel, [1995] 4 C.N.L.R. 78 (N.W.T. Terr. Ct.) Halfway River First Nation v. British Columbia (Ministry of Forestry), [1997] B.C.J. No. 1494 (B.C.S.C.).

-9- Schedule B - Statutes Courts of Justice Act, R.S.O. 1990 c. C.43, s. 6(1)(a) 6(1) An appeal lies to the Court of Appeal from, (a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court;

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO et al and TRANSCANADA PIPELINES LIMITED ET AL Moving Parties Responding Parties Court File No. M21842 M21857 COURT OF APPEAL FOR ONTARIO Proceeding commenced at Toronto FACTUM ON THE MOTIONS FOR LEAVE TO APPEAL AND TO CROSS APPEAL MORRIS/ROSE/LEDGETT Barristers and Solicitors Canada Trust Tower, BCE Place Suite 2700 161 Bay Street Toronto, Ontario M5J 2S1 H.W. Roger Townshend Phone: (416) 981-9400 Fax: (416) 863-9500 Solicitors for The Nishnawbe-Aski Nation and the Ginoogaming First Nation

(Responding and Cross-Moving Parties) HWRTLAPX.FAC @ N:\62922\hwrt