Michael Ernest McCulloch

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.

This costs endorsement addresses the entitlement of the Chippewas of Nawash Unceded First Nation and Saugeen First Nation (SON) to costs from Ontario following a partially successful appeal.

SON had sued Canada and Ontario for Aboriginal title to submerged lands and for breaches of fiduciary duty.

The Court of Appeal allowed SON’s title claim appeal to the extent of remitting the matter back to the trial judge for a determination on a more limited portion of the claim area, while dismissing their treaty claim appeal.

SON had settled costs with Canada and was not seeking costs for the treaty claim.

The court found that SON was the overall successful party on the title claim appeal against Ontario, as they obtained the relief sought (remittal), and Ontario's position was to dismiss the claim entirely.

The quantum of costs sought by SON was deemed reasonable given the complexity and public importance of the appeal.

The appellants, the Chippewas of Nawash Unceded First Nation and the Saugeen First Nation, appealed the dismissal of their claim for Aboriginal title to submerged lands in Lake Huron and Georgian Bay, and their claim for breach of fiduciary duty regarding the Crown's failure to protect their lands from settler encroachment under Treaty 45 ½.

The Court of Appeal upheld the trial judge's dismissal of the broad Aboriginal title claim but remitted the matter to determine if title could be established over a smaller, specific area.

The Court affirmed that the Crown breached its treaty promise and the honour of the Crown by failing to diligently protect the lands, but agreed no fiduciary duty was owed.

The Court also allowed the municipalities' cross-appeal, dismissing the action against them on the basis that a constructive trust over municipal roads was an inappropriate remedy.

This decision addresses a motion for intervener status in an appeal concerning novel issues of Aboriginal title to submerged lands and the public right of navigation.

The Court of Appeal for Ontario granted intervener status to four Indigenous communities, finding they could make a useful contribution to the appeal.

The order stipulated that interveners could not raise new issues and that affidavits filed in support of the motions were for contextual purposes only, not for adjudicative facts.

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

A case management conference was held to review the progress of the action.

The parties reported compliance with several steps in the established timetable, including the delivery of pleadings, supplementary affidavits of documents, and written examination questions.

However, due to the volume and scope of the written questions, the parties requested an adjournment to assess the time needed to respond.

The court adjourned the conference to allow the parties to confer and propose a variation to the timetable.

The 12th Case Management Conference addressed the timetable for expert reports and pleading amendments in a complex Indigenous litigation.

The Plaintiff sought a simultaneous exchange of expert reports, arguing for procedural reciprocity and efficiency.

The Defendants advocated for a sequential timetable, asserting it would allow them to better understand and respond to the Plaintiff's case, aligning with common practice in similar complex litigation.

The court adopted the Defendants' sequential timetable for expert reports, finding no basis to deviate from established practice in complex land claims.

The court also granted leave for the Plaintiff to amend its Statement of Claim, with the formal filing deferred due to COVID-19 court closures.

The 11th Case Management Conference addressed the trial process and timetable for a complex action involving historic evidence.

The parties agreed to a bifurcated trial but disagreed on the degree of bifurcation.

The plaintiff proposed a four-phase structure (two liability, two remedies/crossclaims), while the defendants proposed a two-phase structure (all liability in Phase 1, all remedies/crossclaims in Phase 2).

The court adopted the two-phase structure, finding it more efficient and less prone to inconsistencies, while reserving the right for parties to seek further refinement at the pre-trial stage.

A detailed timetable for pleadings, discovery, and documentary production was also established to keep the action on track for a 2022 trial.

The Anishinaabe beneficiaries of the Robinson Huron and Robinson Superior Treaties of 1850 brought actions seeking declarations regarding the interpretation of the annuity augmentation clause in the Treaties.

The Treaties provided for a perpetual annuity that the Crown promised to increase if the ceded territory produced an amount enabling the Crown to do so without incurring loss, provided the amount paid to each individual did not exceed £1 ($4) per year, or such further sum as Her Majesty may be graciously pleased to order.

The Court held that the Crown has a mandatory obligation to increase the collective annuities when economic circumstances warrant, and that the $4 cap applies only to individual distributions, not the collective entitlement.

The Court also found that the Crown owes an ad hoc fiduciary duty to the beneficiaries to engage in the process of determining whether the economic circumstances warrant an increase.

This endorsement addresses two motions to intervene in a land claim action brought by the Cree Nation of Eeyou Istchee against the Crown.

The Moose Cree First Nation sought to intervene as a necessary party, claiming exclusive Aboriginal title to a portion of the disputed lands.

The Nishnawbe Aski Nation (NAN), a political territorial organization representing 49 First Nations, sought to intervene as an added party, asserting a general interest in the interpretation and application of Treaty #9.

The court granted the Moose Cree First Nation status as a necessary party without conditions under Rule 5.03, acknowledging its direct territorial claim.

The Nishnawbe Aski Nation was granted status as a friend of the court under Rule 13.02, with specific limitations on its participation, as it lacked a direct or immediate interest in the substance of the claim independent of its members.

The court emphasized the complexity of multi-lateral disputes between First Nations in the context of reconciliation.