Chippewas v. Can. (A.G.), (2000) 139 O.A.C. 201 (CA)

• Judge: Osborne, A.C.J.O., Finlayson, Doherty, Charron and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 21, 2000
• Jurisdiction: Ontario
• Citations: (2000), 139 O.A.C. 201 (CA)

Chippewas v. Can. (A.G.) (2000), 139 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. JA.001

The Chippewas of Sarnia Band (plaintiff/appellant/respondent) v. Attorney General of Canada, Her Majesty the Queen in Right of Ontario, and Canadian National Railway Company, Dow Chemical Canada Inc., The Corporation of the City of Sarnia, Amoco Canada Resources Ltd., Amoco Canada Petroleum Company Ltd., Ontario Hydro Networks Company Inc., Union Gas Limited, Interprovincial Pipe Line Inc., The Bank of Montreal, The Toronto-Dominion Bank, and Canada Trustco Mortgage Company individually and as class representatives (defendants/respondents/appellants/cross-appellants)

(C32170; C32188; C32202)

Indexed As: Chippewas of Sarnia Band v. Canada (Attorney General) et al.

Ontario Court of Appeal

Osborne, A.C.J.O., Finlayson, Doherty, Charron and Sharpe, JJ.A.

December 21, 2000.

Summary:

The Chippewas of Sarnia Band brought an action claiming ownership of four square miles in the City of Sarnia and its outskirts, now occupied by over 2,000 individuals, organizations and businesses. The defendants alleged that the land had been purchased from the Chippewas in 1839. A Crown patent was granted in respect of the land in 1854. The parties brought various motions and cross-motions for summary relief.

The Ontario Superior Court, in a decision reported at 101 O.T.C. 1, determined numerous issues summarily. The parties appealed and cross-appealed many of the determinations.

The Ontario Court of Appeal allowed the appeal and cross-appeal in part. The court refused to exercise its discretion to grant any remedy that either directly or by necessary implication would set aside the Crown patent. This did not affect the Chippewas' right to proceed against the Crown for damages.

Administrative Law - Topic 3207

Judicial review - General - Discretionary nature of judicial review - The Ontario Court of Appeal discussed the discretionary nature of public law remedies - See paragraphs 255 to 261.

Administrative Law - Topic 3207

Judicial review - General - Discretionary nature of judicial review - The Ontario Court of Appeal stated that "the underlying rationale for the discretionary nature of public and administrative law remedies in general, and the consideration of delay and its consequences for third parties in particular, reflects the polycentric nature of the rights and interests implicated. There is more at stake than the rights of the individual or group asserting the claim and the applicable legal principles must reflect that element. ... a remedy may be refused where delay by the aggrieved party in asserting the claim would result in hardship or prejudice to the public interest or to third parties who have acted in good faith upon the impugned act or decision." - See paragraphs 257 to 258.

Administrative Law - Topic 3207

Judicial review - General - Discretionary nature of judicial review - The Chippewas of Sarnia claimed ownership of 2,540 acres in and around the City of Sarnia and argued that an 1859 Crown patent respecting the lands was void - They sought, inter alia, declaratory relief recognizing their right to the disputed lands and submitted that there was no place for the exercise of discretion in the matter - The Ontario Court of Appeal stated that aboriginal property rights were fundamental constitutionally protected rights and courts did not have an open-ended discretion to enforce or deny aboriginal property rights to suit the convenience of the case - However, aboriginal rights were an integral aspect of the Canadian legal landscape - Their shape, definition and enforcement did not and could not exist in a vacuum - The court stated that "in the Canadian legal tradition, no right is absolute, not even constitutionally protected aboriginal rights. ... The same need for reconciliation between the aboriginal rights, and the rights of the Crown and third parties is applicable in the case of treaty rights" - See paragraphs 262 to 263.

Administrative Law - Topic 3241

Judicial review - General - Choice of writs - General - [See Administrative Law - Topic 3201 ].

Administrative Law - Topic 3306

Judicial review - General - Bars - Delay - [See second Administrative Law - Topic 3207 ].

Crown - Topic 4405

Actions by and against Crown in right of a province - General - Prerogative writ - The Ontario Court of Appeal stated that "in modern times, in the domain of administrative law, the prerogative writs have been replaced by statutory remedies for judicial review, yet the principles they embrace continue to apply. A party may no longer seek a prerogative writ to challenge the validity of official or governmental acts, but the availability of the modern remedy of judicial review will be determined by reference to the foundational principles developed under the earlier regime of the prerogative writs." - See paragraph 252.

Equity - Topic 2002

Equitable defences - General - Application of - [See second Indians, Inuit and Métis - Topic 5561 ].

Estoppel - Topic 1161

Estoppel in pais (by conduct) - Representation - By conduct - Acquiescence - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Estoppel - Topic 1327

Estoppel in pais (by conduct) - Acquiescence - Standing by without objection - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Estoppel - Topic 1365

Estoppel in pais (by conduct) - Laches or delay - Claim to title to land - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Indians, Inuit and Métis - Topic 802

Personal or legal rights - General - Limitation of actions - The Chippewas of Sarnia Band claimed ownership of 2,540 acres in and around the City of Sarnia, that was now occupied by over 2,000 individuals, organizations and businesses - The Ontario Court of Appeal held that neither the Crown Liability and Proceedings Act nor the Nullum Tempus Act applied to the proceedings because the Chippewas' claim against the landowners was not a "proceeding by the Crown" within the meaning of either of those statutes - See paragraphs 221 to 235.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - General - Limitation of actions - The Chippewas of Sarnia Band claimed ownership of 2,540 acres in and around the City of Sarnia - A motions judge summarily determined a number of motions - The Ontario Court of Appeal held that the motions judge correctly concluded that neither of two pre-Confederation limitations statutes evidenced the clear and plain intent necessary to extinguish aboriginal or treaty rights and that, consequently, the statutes did not affect the disputed lands - The court agreed that there were no statutory limitations that barred the Chippewas' claim in this case - See paragraphs 221 to 229 and 236 to 242.

Indians, Inuit and Métis - Topic 802

Personal or legal rights - General - Limitation of actions - [See second Real Property - Topic 6086 ].

Indians, Inuit and Métis - Topic 4404.1

Treaties and proclamations - General - Effect of Imperial legislation - The Chippewas of Sarnia claimed ownership of 2,540 acres in and around the City of Sarnia - The defendants claimed that the land had been sold and surrendered in 1839 - A motions judge summarily determined a number of matters - On appeal, the Ontario Court of Appeal stated that it had previously determined that the surrender provisions of the Royal Proclamation of 1763 were revoked by the Quebec Act of 1774 and that the motions judge erred in departing from its authority when he determined otherwise - However, the court held that little turned on whether the surrender provisions of the Royal Proclamation had the force of law at the relevant time - Instead, the court adopted the view that surrender was necessary as a result of the established protocol between the Crown and First Nations peoples that aboriginal title could be lost only by surrender to the Crown - Therefore, the precise legal status of the Royal Proclamation at the time of the sale was of no consequence to the decision - See paragraphs 19 and 186 to 219.

Indians, Inuit and Métis - Topic 4406

Treaties and proclamations - General - When applicable - [See Indians, Inuit and Métis - Topic 4404.1 ].

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - General - Extinguishment - [See second Indians, Inuit and Métis - Topic 802 ].

Indians, Inuit and Métis - Topic 4409.1

Treaties and proclamations - General - Limitations on - [See third Administrative Law - Topic 3207 ].

Indians, Inuit and Métis - Topic 5402

Lands - General - Disposition of Indian lands - The Chippewas of Sarnia claimed ownership of 2,540 acres in and around the City of Sarnia - The defendants claimed that the land had been sold to Cameron and surrendered in November 1839 - A motions judge summarily determined a number of matters - The Ontario Court of Appeal accepted the motions judge's conclusion that there was no surrender in November 1839, but disagreed with his description of the Cameron transaction as a "private sale" between Cameron and three chiefs - The negotiations were conducted with the knowledge of and under the authority of Crown officials in the Indian Department - The terms of the transaction were reviewed and changed by the Chief Superintendent of Indian Affairs and only then approved by the Crown - The ultimate terms were dictated by the Crown for the protection of the Chippewas - See paragraph 114.

Indians, Inuit and Métis - Topic 5402

Lands - General - Disposition of Indian lands - [See second Indians, Inuit and Métis - Topic 802 and Real Property - Topic 5042 ].

Indians, Inuit and Métis - Topic 5464

Lands - Surrender of lands - What constitutes a surrender - The Chippewas of Sarnia claimed ownership of 2,540 acres in and around the City of Sarnia - A motions judge summarily determined a number of matters - On appeal, the Ontario Court of Appeal agreed that, through bureaucratic oversight, the land had never been surrendered after it was sold - See paragraphs 89 to 184.

Indians, Inuit and Métis - Topic 5561

Lands - Land claims - General - The Chippewas of Sarnia claimed ownership of 2,540 acres of land in and around the City of Sarnia - They sought, inter alia, a declaration of their rights to the disputed lands - The Ontario Court of Appeal stated that "in the case of a claim to aboriginal title, a court must approach the issue of delay with extreme caution and with due regard to the nature of the right at issue. Aboriginal claims often arise from historical grievances. These claims reflect the disadvantages long suffered by aboriginal communities and the failure of our society and our legal system to provide adequate responses. There is a significant risk that denial of claims on grounds of delay will only add insult to injury. It is plainly not the law that aboriginal claims will be defeated on grounds of delay alone. The reason and any explanation for the delay must be carefully considered with due regard to the historically vulnerable position of aboriginal peoples." - See paragraph 267.

Indians, Inuit and Métis - Topic 5561

Lands - Land claims - General - The Chippewas of Sarnia sought a declaration of ownership respecting certain lands that they had allegedly sold in 1839 - They claimed that because they had not surrendered the lands, the only possible conclusion was that their aboriginal title remained unextinguished and they had a present entitlement to possession - They relied on the nemo dat quod non habet principle (no one gives what he does not have) and submitted that a Crown patent in respect of the lands could not convey title - They submitted that aboriginal title was strictly legal rather than equitable in nature and that the application of equitable doctrines to preclude their claim would constitute an unauthorized extinguishment of aboriginal title in favour of private interests, contrary to the fundamental rule that aboriginal title can only be surrendered to the Crown - The Ontario Court of Appeal rejected the submissions - The Chippewas could not escape the fact that, from a private law perspective, they were claiming remedies that were discretionary in nature and subject to equitable defences - See paragraphs 276 to 295.

Indians, Inuit and Métis - Topic 6003

Aboriginal rights - General - Protection of - [See third Administrative Law - Topic 3207 ].

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - General - Extinguishment - [See second Indians, Inuit and Métis - Topic 802 ].

Indians, Inuit and Métis - Topic 6018.1

Aboriginal rights - General - Limitations on - [See third Administrative Law - Topic 3207 ].

Indians, Inuit and Métis - Topic 6018.1

Aboriginal rights - General - Limitations on - The Chippewas of Sarnia claimed ownership of 2,540 acres of land now occupied by over 2,000 individuals, organizations and businesses - The lands had allegedly been sold in 1839 and were the subject of an 1854 Crown patent - The Ontario Court of Appeal refused to exercise its discretion to grant any remedy that either directly or by necessary implication would set aside the Crown patent - Exceptional circumstances existed - It was only through bureaucratic oversight that the lands were never surrendered - For more than 150 years the Chippewas did not complain, but gave every indication that they fully accepted and acquiesced in the transfer of their lands - Innocent third parties had relied upon the patent's apparent validity - The defences of 1) laches and acquiesence and 2) good faith purchaser for value applied.

Limitation of Actions - Topic 520

Equitable limitation periods - Laches - General - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Limitation of Actions - Topic 581

Equitable limitation periods - Acquiescence - General - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available - The Chippewas of Sarnia claimed ownership of 2,540 acres in and around the City of Sarnia - A motions judge summarily determined a number of matters - On appeal, Ontario challenged the motion judge's authority to decide the case on motions for summary judgment - The Ontario Court of Appeal accepted that, in some instances, the motions judge made findings of fact and drew inferences from evidence which was to some degree conflicting - However, none of the parties had objected to the motions judge deciding the issues on summary judgment and, apart from the expert witnesses, there were no living witnesses who could give relevant evidence - Nothing would be gained by sending the matter to trial - The court exercised its authority to make a "just" decision on appeal (Courts of Justice Act, s. 134(1)(c)) and refused to give effect to that ground of appeal - See paragraphs 31 to 37.

Practice - Topic 9017

Appeals - Restrictions on argument on appeal - Failure to object at trial - [See Practice - Topic 5702 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - The Ontario Court of Appeal stated that "the requirements for the admission of fresh evidence are as follows: 1. The evidence should not generally be admitted if, by due diligence, it could have been adduced at trial. 2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the proceeding. 3. The evidence must be credible in the sense that it is reasonably capable of belief. 4. The evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced, be expected to have affected the result." - See paragraph 28.

Real Property - Topic 5042

Title - Establishing title - By Crown grant - The Chippewas of Sarnia claimed ownership of 2,540 acres in and around the City of Sarnia - They sued the defendants seeking, inter alia, declaratory relief recognizing their right to the disputed lands - The defendants defended on the basis that the Chippewas had sold the land to Cameron in 1839 and that Cameron had been granted a patent for the land in 1853 - The Ontario Court of Appeal stated that "a patent that suffers from a defect that renders it subject to attack will continue to exist and to have legal effect unless and until a court decides to set it aside." - See paragraph 261.

Real Property - Topic 5042

Title - Establishing title - By Crown grant - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Real Property - Topic 6086

Title - Extinguishment, prescription and adverse possession - Defences - Purchase of land in question by bona fide purchaser without notice - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Real Property - Topic 6086

Title - Extinguishment, prescription and adverse possession - Defences - Purchase of land in question by bona fide purchaser without notice - The Chippewas of Sarnia claimed ownership of 2,540 acres of land now occupied by over 2,000 individuals, organizations and businesses - The lands had allegedly been sold to Cameron in 1839 and were the subject of an 1854 Crown patent - Cameron sold the last parcel of land and was completely off title in 1861 - A motions judge held that a rigid and unqualified application of the doctrine of good faith purchase for value was too drastic given the nature of the aboriginal claim that was being asserted - He imposed an "equitable limitation period" of 60 years during which the aboriginal right would survive - The Ontario Court of Appeal rejected this approach - The 60 years was not a limitation period at all, but an "extension period" that suspended the operation of a valid defence - The court stated that the reconciling of aboriginal title and treaty claims with the rights of innocent purchasers should be done on a case-by-case basis.

Real Property - Topic 6090

Title - Extinguishment, prescription and adverse possession - Defences - Delay - [See second Indians, Inuit and Métis - Topic 6018.1 ].

Cases Noticed:

Ontario (Attorney General) v. Bear Island Foundation et al. (1984), 49 O.R.(2d) 353 (H.C.), affd. (1989), 32 O.A.C. 66; 68 O.R.(2d) 394 (C.A.), affd. [1991] 2 S.C.R. 570; 127 N.R. 147; 46 O.A.C. 396, refd to. [paras. 19, 298].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 251 N.R. 1; 250 A.R. 314; 213 W.A.C. 314, refd to. [para. 28].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 28].

National Trust Co. v. Bouckhuyt (1987), 23 O.A.C. 40; 61 O.R.(2d) 640 (C.A.), refd to. [para. 36].

Scarborough Golf and Country Club v. Scarborough (City) et al. (1988), 31 O.A.C. 260; 66 O.R.(2d) 257 (C.A.), leave to appeal refused; (1989), 103 N.R. 399; 37 O.A.C. 91, refd to. [para. 36].

Shaver Hospital for Chest Diseases v. Slesar (1979), 27 O.R.(2d) 383 (C.A.), leave to appeal refused [1981] 1 S.C.R. xiii; 38 N.R. 353, refd to. [para. 36].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 202].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 203].

Skerryvore Ratepayers Association et al. v. Shawanaga Indian Band et al. (1993), 68 O.A.C. 68; 16 O.R.(3d) 390 (C.A.), leave to appeal refused [1994] 2 S.C.R. v; 178 N.R. 228; 72 O.A.C. 157, refd to. [para. 212].

Chippewas of Kettle and Stony Point v. Canada (Attorney General) et al. (1996), 95 O.A.C. 365; 31 O.R.(3d) 97 (C.A.), affd. [1998] 1 S.C.R. 756; 226 N.R. 121; 109 O.A.C. 321, refd to. [para. 212].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 238].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 240].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 241].

R. v. Hughes (1865), L.R. 1 P.C. 81 (P.C.), refd to. [para. 250].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 253].

Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; 121 N.R. 323; 38 Q.A.C. 253, refd to. [para. 255].

Homex Realty and Development Co. v. Wyoming (Village), [1980] 2 S.C.R. 1011; 33 N.R. 475, refd to. [para. 256].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 256].

Bailey v. Du Cailland (1905), 6 O.W.R. 506 (Div. Ct.), refd to. [para. 259].

Fitzpatrick v. R. (1926), 59 O.L.R. 331 (C.A.), refd to. [para. 260].

Boulton v. Jeffrey (1845), 1 E. & A. 111 (C.A.), refd to. [para. 260].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 262].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 263].

R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.A.), refd to. [para. 263].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 263].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 263].

Hongkong Bank of Canada v. Wheeler Holdings Ltd., [1993] 1 S.C.R. 167; 148 N.R. 1; 135 A.R. 83; 33 W.A.C. 83, refd to. [para. 279].

Russian Commercial & Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438, refd to. [para. 279].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 279].

Dyson v. Attorney General, [1911] 1 K.B. 410, refd to. [para. 279].

Robertson v. Robertson (1875), 22 Gr. 449 (Ch.), refd to. [para. 281].

Ontario Housing Corp. v. Ong (1988), 63 O.R.(2d) 799 (C.A.), refd to. [para. 281].

Holmsten v. Karson Kartage Konstruction Ltd. (1997), 33 O.T.C. 397; 33 O.R.(3d) 54 (Gen. Div.), refd to. [para. 281].

St. Mary's Indian Band et al. v. Cranbrook (City), [1997] 2 S.C.R. 657; 213 N.R. 290; 92 B.C.A.C. 161; 150 W.A.C. 161, refd to. [para. 286].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161, refd to. [para. 288].

LeMesurier v. Andrus (1986), 12 O.A.C. 299; 54 O.R.(2d) 1 (C.A.), refd to. [para. 289].

Canson Enterprises Ltd. et al. v. Boughton & Co. et al., [1991] 3 S.C.R. 534; 131 N.R. 321; 6 B.C.A.C. 1; 13 W.A.C. 1, refd to. [para. 289].

United Scientific Holdings Ltd. v. Burnley Borough Council, [1978] A.C. 904 (H.L.), refd to. [para. 289].

Malloch v. Principal Officers of Her Majesty's Ordnance (1847), 3 U.C.Q.B. 387, refd to. [para. 293].

Alcock v. Cooke (1829), 5 Bing. 340 (C.P.), refd to. [para. 294].

R. v. Wilkes (1770), 4 Burr. 2527, refd to. [para. 296].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, appld. [para. 297].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1 (T.D.), refd to. [para. 298].

R. v. Smith - see Canada v. Smith and Ontario (Attorney General) et al.

Canada v. Smith and Ontario (Attorney General) et al., [1983] 1 S.C.R. 554; 47 N.R. 132, refd to. [para. 298].

Statutes Noticed:

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 22 [para. 223].

Crown Liability and Proceedings Act, S.C. 1952-53, c. 30, sect. 32 [para. 230].

General Quiet of the Subjects Against All Pretences of Concealment Whatsoever, An Act to Amend and Render More Effectual An Act made in the Twenty-First Year of the Reign of King James the First, entitled (U.K.) (1769), 9 Geo. III, c. 16, generally [para. 224, footnote 16].

Limitations of Actions and Suits Relating to Real Property and the Time of Prescription in Certain Cases, An Act Respecting the, S. Prov. C. 1859, 22 Vict., c. 88, generally [para. 224, footnote 18]; sect. 1 [para. 236].

Nullum Tempus Act - see General Quiet of the Subjects Against All Pretences of Concealment Whatsoever, An Act to Amend and Render More Effectual An Act made in the Twenty-First Year of the Reign of King James the First.

Quebec Act, 1774, R.S.C. 1985, App. II, No. 2, generally [para. 19].

Real Property, and to Render the Proceedings for Recovering Possession Thereof in Certain Cases, Less Difficult and Expensive, An Act to Amend the Law Respecting (U.C.) (1834), 4 Will. IV, c. 1, generally [para. 224, footnote 17]; sect. 16 [para. 236].

Royal Proclamation, 1763, R.S.C. 1985, App. II, No. 1, generally [para. 10].

Authors and Works Noticed:

Bagot Report - see Rawson, W., Davidson, John, and Hepburn, William, Bagot Commission Report.

Birks, Rights, Wrongs and Remedies (2000), 20 Oxford J. of Legal Studies 1, p. 16 [para. 296].

Brown, D.J.M., and Evans, J.M., Judicial Review of Administrative Action in Canada (1998) (Looseleaf), paras. 3:1100 [para. 257]; 3:5100 [para. 258].

Evans, J.M., de Smith's Judicial Review of Administrative Action (4th Ed. 1980), generally [para. 251]; pp. 579 [para. 258]; 585 [para. 250].

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997) (Looseleaf), pp. 2-7, 2-8 [para. 186].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (3rd Ed. 1999), pp. 404 [para. 261]; 583 [para. 258].

McGhee, John M.A., and Baker, P.V., Snell's Equity (30th Ed. 2000), pp. 41, 42 [para. 281].

Rawson, W., Davidson, John, and Hepburn, William, Bagot Commission Report (1844), generally [para. 54, footnote 5].

Sarna, Lazar, The Law of Declaratory Judgments (2nd Ed. 1988), pp. 17, 18, 19 [para. 279].

Wade, William, and Forsyth, Christopher, Administrative Law (7th Ed. 1994), generally [paras. 251, 264]; pp. 343, 344 [para. 261]; 615 [para. 250]; 718 [paras. 253, 261].

Zamir, Itzhac, The Declaratory Judgment (1962), pp. 7, 8, 9 [para. 279].

Counsel:

Earl A. Cherniak, Q.C., Elizabeth K.P. Grace and H. Sandra Bang, for the appellant;

Charlotte Bell, Q.C., Gary Penner and Scott Warwick, for the Attorney General of Canada;

J.T.S. McCabe, Q.C., and E. Ria Tzimas, for Her Majesty the Queen in Right of Ontario;

Kenneth R. Peel, for Canadian National Railway Company;

M. Philip Tunley and Jane A. Langford, for Dow Chemical Canada Inc. and Union Gas Limited;

Gerard T. Tillmann and Norman W. Feaver, for The Corporation of the City of Sarnia, Bank of Montreal, The Toronto-Dominion Bank and Canada Trustco Mortgage Company;

Jeff G. Cowan, for Amoco Canada Resources Ltd. and Amoco Canada Petroleum Company Ltd.;

Joseph Agostino, for Ontario Hydro Networks Company Inc.;

Brian A Crane, Q.C., for Interprovincial Pipe Line Inc.;

M. Celeste McKay and Alan Pratt, for the intervener, Chief Lisa Eshkakogan Ozawanimke on behalf of the Algonquin Nation in Ontario;

Paul Williams, for the intervener, Chief Richard K. Miskokomon on behalf of the Chippewas of the Thames et al.

This appeal was heard on June 19-29, 2000, by Osborne, A.C.J.O., Finlayson, Doherty, Charron and Sharpe, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on December 21, 2000.