32 | Big Suits
Richler, Joel
Blake, Cassels &
Graydon LLP
(416) 863-2735
jr@blakes.com
Mr. Richler's commercial
litigation practice
embraces trials,
appeals, arbitrations
and mediations before
administrative tribunals,
the courts of Ont, BC and
NB, the FC and the SCC.
He also acts as arbitrator
and mediator.
Rigaud, Sylvain
Norton Rose Fulbright
Canada LLP
(514) 847-4702
sylvain.rigaud@
nortonrosefulbright.com
Mr. Rigaud's practice
focuses mainly on
business restructuring
and insolvency, and has
maintained an active
commercial litigation
practice at trial and on
appeal in bankruptcy-
related disputes and in
complex valuation and
loss quantifi cation cases.
Rodrigue, Sylvie
Torys LLP
(416) 865-8105
srodrigue@torys.com
Partner at the Montreal
and Toronto offi ces of
Torys LLP. Focuses on
class-action defence and
corporate/commercial
litigation. Acts as counsel
in multiple high-profi le
multi-jurisdictional
litigation.
Riendeau, Alain
Fasken Martineau
DuMoulin LLP
(514) 397-7678
ariendeau@fasken.com
Mr. Riendeau practises in
the areas of bankruptcy,
insolvency and corporate
commercial litigation.
He has been involved
in many complex
fi nancial disputes, large
restructurings, signifi cant
class-action cases and
high-profi le securities
litigation.
Rochon, Joel P.
Rochon Genova LLP
(416) 363-1867
jrochon@
rochongenova.com
Mr. Rochon, managing
partner at Rochon
Genova LLP, heads
the fi rm's class-action
practice. He has served
as lead counsel on
numerous national class
actions, including Nortel,
Toyota and ongoing
cases involving CIBC,
SNC Lavalin and Lac-
Mégantic.
Rook, QC, John F.
Bennett Jones LLP
(416) 777-4885
rookj@bennettjones.com
Mr. Rook specializes
in commercial,
administrative and
competition law
litigation, and appears
in the courts and before
administrative tribunals
throughout Canada. He
is recognized among
the most sought-after
competition litigators
in Canada.
LEXPERT®Ranked Lawyers
fi sh (harvest) throughout the surrendered territory except
on land that is "required or taken up for settlement, mining,
lumbering or other purposes" by the "Government of the
Dominion of Canada."
In 1873, at the time that Treaty 3 was entered into, Canada
controlled the Keewatin Territory. Canada annexed the Kee-
watin Territory to Ontario in 1912. Ontario has administered
the Keewatin Territory since, and has taken up lands without
the involvement or authorization of Canada by, for example,
issuing land patents, establishing municipalities, recording
mining claims, and issuing mining leases and timber licenses.
In 1997, Ontario issued a sustainable forestry license to
Abitibi-Consolidated Inc. (now Resolute FP Canada Inc.),
which authorized Abitibi to carry out clear-cut forestry op-
erations in parts of the Keewatin Territory. In 2000, Grassy
Narrows First Nation commenced a proceeding to challenge
that sustainable forestry license on the basis that it infringed
their harvesting rights under Treaty 3.
In August 2011, the Ontario Superior Court of Justice
held that (i) Ontario does not have the authority to take up
land in the Keewatin Territory if the taking up would signifi -
cantly interfere with Treaty 3 harvesting rights unless Can-
ada fi rst approved the taking up; and (ii) Ontario does not
have the authority to infringe Treaty 3 harvesting rights even
if the infringement can be justifi ed under s. 35 of the Act.
In March 2013, the Court of Appeal for Ontario over-
turned the decision of the Superior Court. e Court of
Appeal held that Ontario does have the authority to take up
lands in the Keewatin Territory so as to limit the First Na-
tions' harvesting rights, and that such taking up by Ontario
does not require Canada's approval. e Court of Appeal
declined to opine on whether Ontario has the authority to
infringe Aboriginal treaty rights if the infringement can be
justifi ed under s. 35 of the Act.
On July 11, 2014, the SCC upheld the Court of Appeal's
decision that Ontario has the authority to take up lands in the
Keewatin Territory so as to limit the First Nations' harvesting
rights without the approval of Canada. Central to the SCC's
decision is its conclusion that Treaty 3 is a treaty between the
First Nation signatories and the Crown, not between the First
Nation signatories and Canada. As Crown representatives,
both Canada and Ontario are responsible for fulfi lling the
Treaty 3 promises within their respective spheres of jurisdic-
tion as established by the Constitution Act, 1867.
Section 109 of the Constitution Act, 1867 gives Ontario
benefi cial ownership over the lands within its boundaries,
and s. 92A and s. 92(5) give it the authority to administer
the lands within its boundaries by, for example, issuing min-
ing and forestry licenses. Together, these sections give On-
tario – and only Ontario – the authority to take up lands in
the Keewatin Territory for settlement, mining, forestry and
other provincial purposes.
e SCC confi rmed its 2005 decision in Mikisew Cree First
Nation v. Canada (Minister of Canadian Heritage) that the
Crown's authority to take up treaty lands is not unconditional.
Treaty harvesting rights must be respected. Accordingly, when
taking up Treaty 3 lands (i) Ontario has the duty to consult
with the First Nations that may be aff ected by the taking up,
and to accommodate their interests when appropriate; and (ii)
Ontario cannot take up so much Treaty 3 land that the First
Nations' right to harvest in their traditional territories be-
comes meaningless. If the Crown takes up so much land that
the right to harvest is rendered meaningless, then a potential
action for treaty infringement may arise.
