Message: D11-7846

From: BoardSec
To: Maureen Connor
Cc: Irina Kuznetsova
Sent: 2011-04-25 at 11:59 AM
Received: 2011-04-25 at 11:59 AM
Subject: FW: EB-2011-0065, EB-2011-0068 - Time to File Response by First Nations





______________________

John Pickernell

Assistant Board Secretary

Ontario Energy Board

416-440-7605

Fax: 416-440-7656

Website: www.ontarioenergyboard.ca

Official Correspondence: BoardSec@ontarioenergyboard.ca

E-filings: https://www.errr.ontarioenergyboard.ca



Address:

P.O. Box 2319

2300 Yonge Street 27th Floor

Toronto, ON

M4P 1E4

______________________





_____

From: David Leitch [mailto:davidgleitch@sympatico.ca]
Sent: April 24, 2011 9:34 AM
To: kannis@mccarthy.ca; BoardSec
Cc: keshenlaw@kenora.com; sharon.wong@blakes.ca; gvegh@mccarthy.ca
Subject: RE: EB-2011-0065, EB-2011-0068 - Time to File Response by First Nations



Board Secretary,

As indicated in my previous letter, I am away from my office this weekend. My apologies for not writing on firm letterhead.

However, I must immediately record my clients' objection to the process outlined in the latest letter from the Applicants' lawyers, dated April 21, 2011.

Having withdrawn their objection to my clients being granted intervenor status, the Applicants' lawyers now recommend that the Board leap directly into the fact-finding process by imposing a timetable for written interrogatories.

In addition to proposing an unrealistic timetable, the Applicants' lawyers ignore two fundamental legal issues, both identified by the Supreme Court's decision in Rio Tinto and both preliminary to any fact-finding process.

The first is the Board's jurisdiction, as a quasi-judicial tribunal, to deal with duty to consult issues. The Court identified three possibilities, stating that the corrrect answer will depend on a correct reading of the legislation creating the tribunal.

The second issue relates to the parties before the Board. The Court stated that the duty to consult can be triggered by managerial changes that set the stage for adverse effects on the potential or established rights of First Nations. In order to make findings of that kind in the present case, the Board will need evidence from the purchasers of the assets, Bluearth and its partners. The Applicants' lawyers only represent the sellers, parties who seek to divest themselves of managerial control over the assets in question.

In my clients' submission, the Board cannot enter into the fact-finding process without first addressing these two preliminary legal issues.

Unlike the Applicants' lawyers, my clients do not presume to tell the Board what its procedural order should be. They do ask the Board to recognize the importance of these preliminary legal issues for the subsequent fact-finding process.

David Leitch


David Leitch


_____

From: kannis@mccarthy.ca
To: BoardSec@oeb.gov.on.ca
CC: davidgleitch@sympatico.ca; keshenlaw@kenora.com; sharon.wong@blakes.ca; gvegh@mccarthy.ca
Date: Thu, 21 Apr 2011 12:24:08 -0400
Subject: EB-2011-0065, EB-2011-0068 - Time to File Response by First Nations

Please find attached a letter proposing a schedule for the hearing regarding EB-2011-0068 and EB-2011-065. Two hard copies have been sent to the Board. The letter has been uploaded to RESS for both Board files.



Yours truly,



Kristyn Annis





McCarthy Tétrault

Kristyn Annis
Associate
Business Law
kannis@mccarthy.ca
T: 416-601-7624

McCarthy Tétrault LLP
Box 48, Suite 5300
Toronto Dominion Bank Tower
Toronto ON M5K 1E6

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