Anjalika Rogers

The Missanabie Cree First Nation moved to certify a class action on behalf of all Treaty 9 First Nations, seeking declarations and damages for alleged breaches of treaty obligations by Canada and Ontario.

The defendants opposed certification on the sole ground that a class action was not the preferable procedure.

The court held that the collective nature of treaty rights is incompatible with the opt-out mechanism of a class action, which risks fragmented outcomes and multiple proceedings.

The court found that a representative action, which allows individual First Nations to participate on their own terms without risking parallel interpretations, is a reasonably available and superior alternative.

The motion for certification was denied.

Nine parties brought motions to intervene in an action concerning the interpretation of the Robinson Huron Treaty and the boundaries of the plaintiff's reserve lands.

Eight of the proposed intervenors were neighbouring First Nations who are also signatories to the Treaty, while the ninth was an unincorporated litigation trust.

The Superior Court of Justice granted party intervenor status to the eight First Nations, finding they had a direct interest in the boundary dispute and could provide useful context without overwhelming the plaintiff's case.

The court imposed strict conditions on their participation to prevent undue delay.

The motion by the litigation trust was dismissed, as it was not a rights-holder itself and its participation would be duplicative and unduly prejudicial to the plaintiff.

The Attorney General of Canada sought summary judgment to dismiss a claim by Atikameksheng Anishnawbek First Nation, arguing that their request to re-delineate reserve boundaries constituted a collateral attack and abuse of process on a 1889 judgment (Francis).

The First Nation argued the Francis decision was unfair as they were not an equal party.

The court dismissed Canada's motion, exercising its residual discretion to allow the claim to proceed to trial, emphasizing that while re-litigation doctrines are important, justice and reconciliation, particularly for Indigenous rights, can override them when there was a structural unfairness in prior proceedings.