Lexpert Special Editions

2014 Special Edition - Litigation

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

Issue link: https://digital.carswellmedia.com/i/423404

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Page 31 of 39

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.

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