Court File and Parties

COURT FILE NO.: C-0673-01 DATE: 2022-03-02 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Chief and Council of Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians, The Chief and Council of the Whitesand First Nation on behalf of the Whitesand First Nation Band of Indians Plaintiffs

– AND –

The Attorney General of Canada, the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario Defendants

BEFORE: The Honourable Madam Justice Patricia C. Hennessy

COUNSEL: Harley Schachter/Kaitlyn Lewis, for the plaintiffs The Red Rock First Nation and The Whitesand First Nation Glynis Evans/Scott Warwick/Claudia Tsang, for Defendant the Attorney General of Canada Thomas Lipton/Ram Rammaya, for the Defendant the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario Jeremy Greenberg/Julian Falconer, for Proposed Intervener Namaygoosisagagun Ojibway Nation Theresa Bananish, for Netmizaaggamig Nishnaabeg First Nation Peter Hollinger, for Pays Plat First Nation Lori Kruse, for Biinjitiwaabik Zaaging Anishinaabek First Nation Alan Pratt/Jordan Sewell/Long Lake No. 58 First Nation Bob Botsford/Lucas Jewitt, for Bingwi Neyaashi Anishinaabek First Nation Kim Fullerton, for Animbiigoo Zaagi’igan Anishinaabek First Nation Brian Gover/Spencer Bass, for Biigtigong Nishnaabeg First Nation Ceyda Turan, for Michipicoten First Nation Robert Janes Q.C./Christina Gray, for Gull Bay First Nation T. Michael Strickland/Samuel Crow, for Fort William First Nation Bruce McIvor, for Teme-Augama Anishnabai

HEARD: February 11, 2022; Additional Written Submissions February 14 and 18, 2022

Endorsement on Motion by Namaygoosisagagun Ojibway Nation to Intervene

[1] The Namaygoosisagagun community seeks leave to intervene under r. 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in the Robinson Superior Treaty action. The plaintiffs and Gull Bay First Nation (“Gull Bay”) oppose their intervention. The Crown defendants consent to the intervention and Canada proposes a proviso to the Order.

[2] At present, Namaygoosisagagun is not recognized as a band under the Indian Act, R.S.C. 1985, c. I-5, nor as a Robinson Superior Treaty (the “Treaty”) beneficiary. Namaygoosisagagun is engaged in a process with Canada with respect to its claim for band status. It also claims that it is a beneficiary of the Treaty. The Namaygoosisagagun community has an undefined number of members, but it is suggested that it is somewhere between 94 and 149 individuals.

[3] Rule 13.01(1) provides that a person may move for leave to intervene as an added party if the person claims:

(a) an interest in the subject matter of the proceeding; or

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

[4] In considering the question of leave, the court shall consider whether the proposed intervenor can make a useful contribution to the case without causing undue delay or prejudice the determination of the rights of the parties to the proceedings: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.). See also: Ahousaht Indian Band and Nation v. Canada (Attorney General), 2018 BCCA 413, at para. 18. The court may make such order as is just.

[5] The plaintiffs and Gull Bay oppose the intervention of Namaygoosisagagun. They submit that the request by Namaygoosisagagun does not meet the test for intervenor status under r. 13.01(1). Namaygoosisagagun submits that it meets the test for intervenor status, that it claims a genuine and direct interest in the proceeding. The plaintiffs and Gull Bay submit that “Namaygoosisagagun Ojibway Nation” is a prospective entity that does not yet exist and has no current members and on that basis the motion for leave to intervene should be denied. Further, they state that Namaygoosisagagun’s proposed intervention is unnecessary, unwarranted, would delay and prejudice the plaintiffs and that in any event any their legitimate interests would be protected because eligible Namaygoosisagagun members are already members of other Robinson Superior Treaty bands.

[6] The plaintiffs also focus on the problems arising from the reality that as an unrecognized First Nation, Namaygoosisagaun’s membership is undetermined and there is no finite list of band members. A number of the individuals who are listed as members of the Namaygoosisagagun community are registered members of other First Nation bands, some within the Robinson Superior Territory and some outside of the Robinson Superior Territory.

[7] Further to oral submissions, counsel for Namaygoosisagagun sought to introduce new evidence which purported to identify the members of the Namaygoosisagagun community. Both Namaygoosisagagun and the plaintiffs made written submissions on the question of the admission of new evidence on membership. Although the plaintiffs noted a number of problematic issues with the proposed new evidence, they indicated that they did not object to its late admission. I have considered those submissions and will permit the proposed evidence to form part of the record.

[8] The new evidence included an affidavit that was filed in the Federal Court proceedings with lists of names of individuals who are seeking to form a “newly recognized” status band.

[9] Notwithstanding this new evidence, the plaintiffs maintain their position that Namaygoosisagagun’s unrecognized status remains a significant barrier to their intervention. The rights at issue in this proceeding are collective rights to the annuity, not individual rights. The plaintiffs submit that Namaygoosisagagun lacks any present interest sufficient to permit them to represent a collective interest and there is no basis for any individual members of any collective to pursue intervener status.

[10] While some of the individuals that the group seeks to represent either do not hold Indian Act status or are currently members of bands who are not Robinson Superior Treaty beneficiaries, possibly 18 of them are currently members of Whitesand First Nation, already a named plaintiff. Namaygoosisagagun suggests in their Factum that they may wish to present a theory of distribution of damages that is somewhat different than the theory proposed by the other plaintiffs. [1] However, the affidavit from Chief Paavola of the Namaygoosisagagun community suggests that the community can fit into the “plaintiffs’ proposed distribution scheme(s)”. [2] The plaintiffs submit that this situation represents an impermissible conflict, especially on the issue of a theory of distribution.

[11] The plaintiffs submit that until a new band is constituted, the 94 to 149 or more individuals are simply a group of individuals, and the proposed intervener cannot fairly claim at this point in time to represent persons who are members of other bands. [3] The interest of individuals who are currently members of other bands are adequately represented whether or not they reside on reserve.

[12] On the question of prejudice and delay, the plaintiffs agree with Canada’s submission, discussed below, and highlight the clear risk that Namaygoosisagagun will seek to use this case as a platform to advance their legitimacy as a band and prejudge the outcome of the long outstanding process. [4]

[13] Namaygoosisagagun submits that it can provide an Anishinaabe perspective on the treaty terms and the distribution of compensation. [5] The Anishinaabe perspective on the treaty terms was fully explored in the Stage One trial where it was necessary for the task of treaty interpretation. Notably this evidence was not introduced by specific bands but rather on behalf of the First Nations throughout each territory. Both plaintiff groups relied on the evidence adduced by the other as it pertained to the territories as a whole. Namaygoosisagagun does not identify what new or distinct evidence on Anishinaabe perspective that they could or need bring in this proceeding. The material does not demonstrate that any useful or necessary contribution can be made in the Stage 3 trial by Namaygoosisagagun on Anishinaabe perspectives.

[14] The plaintiffs’ fundamental objection to Namaygoosisagagun’s intervention is rooted in the fact that at this point there is no cognizable collective recognized as a band. Nevertheless, the history of Namaygoosisagagun’s efforts to achieve band status is not contradicted. Against the backdrop of this effort, Namaygoosisagagun seeks to protect their contingent interest by way of an intervention. Namaygoosisagagun’s contingent interest is distinguished from the contingent interest of the First Nations in both the Group of 3 and the Group of 7. Namaygoosisagagun’s first contingency is on their recognition as a band under the Indian Act, which creates a possible interest in the proceeding. However, this contingency may not be determined before the trial on this matter either begins or ends. The contingency interest of the Group of 3 and the Group of 7 are not dependent on any determination of their status to be recognized, but on their status as a beneficiary under the Robinson Superior Treaty.

[15] The Crown defendants consent to the intervention of Namaygoosisagagun on terms that are consistent with those that govern the intervention of the Group of 7 intervenors. [6] In addition, however, Canada seeks a specific term to the intervention order, that Namaygoosisagagun shall not seek to prove or have determined in these proceedings any issues regarding Namaygoosisagagun’s claim for band status, its rights under s. 35 of the Constitution Act, 1982, and whether it is a beneficiary under the Robinson Superior Treaty. These matters are already subject to an independent settlement process between Canada and Namaygoosisagagun, which is being monitored by the Federal Court.

[16] Although Canada takes the position that Namaygoosisagagun meets the rather low threshold for intervenor status in r. 13.01(1), it highlights the risk that Namaygoosisagagun’s participation will cause delays and complications especially over possible attempts to adduce evidence in support of its claim for band status. The risk is that the very issues they do not want to litigate in this proceeding will bleed into this proceeding. Canada points out that should Namaygoosisagagun be granted intervenor status, it will be necessary to confine their participation to the same terms as the Group of 7 in order to avoid or manage the risk that Namaygoosisagagun will seek to file evidence in support of their status claim and/or to have their issues regarding status pre-judged. In addition to the risk that adducing such evidence has on the Federal Court process, there is also the significant risk of delay to these proceedings. Any delay to these proceedings will have an enormous impact on the 14 other parties and their counsel teams.

[17] The Group of 7 is made up of First Nation bands who are not Treaty signatories and who do not seek a determination that they are beneficiaries of the Treaty but who nonetheless claim a contingent interest to the extent that they are determined to be Treaty beneficiaries. The Group of 7 First Nations are all aboriginal rights-bearing collectives. Namaygoosisagagun is not at this time a rights-bearing collective but seeks a contingent interest in the proceeding.

[18] Namaygoosisagagun undertakes that as an intervenor in this proceeding, it would not seek to address nor does it seek a determination of any of the issues related to its pursuit of band status, its s. 35 rights or whether it is a Robinson Superior Treaty beneficiary. Namaygoosisagagun submits that it will accept Canada’s proposed restrictions on participation and the conditions set out in the consent orders which apply to the Group of 7 and the Group of 3. [7]

[19] Although Namaygoosisagagun may not at this time be recognized as a First Nation band within the Robinson Superior Treaty territory, they have a contingent interest as a collective in claim for increased annuities. This interest meets the low threshold set out in r. 13.01(1).

[20] However, even if a proposed intervenor satisfies one of the criteria in r. 13.01(1), the decision to add the proposed intervenor as a party is a discretionary one. Factors that guide this exercise of discretion include whether the proposed intervenor’s interests are adequately represented or whether there will be undue delay or prejudice to the parties: Peel; Halpern v. Toronto (City) Clerk (2000), 51 O.R. (3d) 742 (Div. Ct.), at para. 14; Lederer v. 372116 Ontario Ltd. (2000), 50 O.R. (3d) 282 (S.C.), at paras. 9-11.

[21] Allowing Namaygoosisagagun to intervene is not without significant risks of delay and over-complication of an already complex matter. On the other hand, Namaygoosisagagun’s contingent collective interest, cannot be considered or protected without allowing their participation as an intervener in this proceeding. Therefore, I adopt the proposal by Canada, to include a condition of the leave to intervene that would manage this risk.

[22] The order granting Namaygoosisagagun leave to intervene will include the strict condition that Namaygoosisagagun shall not seek to prove or have determined in these proceedings any issues regarding Namaygoosisagagun’s claim for band status, its rights under s. 35 of the Constitution Act, 1982, and whether it is a beneficiary under the Robinson Superior Treaty. In addition, the order shall prohibit Namaygoosisagagun from leading any evidence or making submissions in conflict with the position taken by the plaintiffs on the issue of distribution. Counsel shall prepare a draft order for my review.

[23] At this time, individuals who are members of other First Nations may raise distribution issues within the governance models existing within their home First Nations.

[24] This proceeding has been managed over a number of years through the cooperative work done by all parties and counsel teams with a goal to maintain its timely progress. The participation of the interveners should continue in the same manner, with a view to avoiding any possible delay this proceeding. All parties are encouraged to keep this goal at the forefront.

The Honourable Madam Justice Patricia C. Hennessy

Released: March 2, 2022

Footnotes

[1] Factum of Namaygoosisagagun, at para. 42. [2] Affidavit of Chief Helen Paavola dated January 5, 2022, at para. 29. [3] Further Submissions of the Plaintiffs, at para. 48. [4] Factum of the Plaintiffs, at para. 57; Further Submissions of the Plaintiffs, at para. 51. [5] Factum of Namaygoosisagagun, at para. 42. [6] The “Group of 7” is comprised of Biigtigong Nishnaabeg First Nation (a.k.a. Ojibways of the Pic River First Nation), Netmizaaggamig Nishnaabeg First Nation (a.k.a. Pic Mobert First Nation), Pays Plat First Nation, Long Lake No. 58 First Nation, Bingwi Neyaashi Anishinaabek (formerly Sand Point First Nation), Biinjitiwaabik Zaaging Anishinaabek (formerly Rocky Bay First Nation), and Animbiigoo Zaagi’igan Anishinaabek First Nation. [7] The “Group of 3” is comprised of Fort William First Nation, Gull Bay First Nation, and Michipicoten First Nation.