Chief Kirby Whiteduck et al. v. Her Majesty the Queen in Right of Ontario et al.
COURT FILE NO.: CV-18-00603975-000
DATE: 20200918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHIEF KIRBY WHITEDUCK on his own behalf and on behalf of the ALGONQUINS, and the ALGONQUIN OPPORTUNITY (NO. 2) CORPORATION
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF NATURAL RESOURCES AND FORESTRY and THE MINISTER OF INDIGENOUS AFFAIRS
- and -
MÉTIS NATION OF ONTARIO
- and -
MÉTIS NATION OF ONTARIO SECRETARIAT INC.
Defendants
Alan Pratt, Robert J. Potts, Stephen R. Moore, for the Plaintiffs
Lisa La Horey, Jeffrey Claydon, for the Defendant, HMQ in Right of Ontario
Jaimie Lickers, for the Defendant, Métis Nation and Métis Nation of Ontario Secretariat Inc.
HEARD: September 15, 2020
REASONS FOR DECISION
LEIPER J.
Overview
[1] This motion is for a representation order under Rule 10 of the Rules of Civil Procedure.
[2] Rule 10 permits a court to appoint a person to represent a party or parties with interests in the proceedings who cannot be ascertained or cannot represent themselves.
[3] The Plaintiffs propose to have Chief Kirby Whiteduck act on behalf of the “Algonquins.” They define “Algonquins” to mean members of the Pikwakanagan community and other persons represented by the Algonquins of Ontario of Algonquin or Nipissing ancestry with primary ties to and Aboriginal rights within a portion of Eastern Ontario in the watershed of the Ottawa and Mattawa Rivers. In their materials, the parties also refer to the “Algonquins” as the “Algonquins of Ontario” or “AOO.” I will also use those terms in these reasons as appropriate.
[4] Chief Kirby Whiteduck is the former Chief of the Pikwakanagan community, having served 17 years as Chief. He did not stand for re-election and in March 2020 he ceased to be the Chief of Pikwakanagan. He is now the Chief Negotiator for self-governance for the AOO. Although he is now former Chief Whiteduck, for the purposes of these reasons, I will refer to him as Chief Whiteduck.
[5] The motion arises in the context of ongoing multi-year negotiations between the Algonquins or AOO and the governments of Ontario and Canada concerning the constitutionally protected rights of the Algonquins to hunt, fish, trap and otherwise harvest natural resources in a region of Eastern Ontario described as the “Settlement Area.”
[6] The goal of the negotiations is to arrive at a modern-day treaty for the AOO with the provincial and federal governments. The negotiations have been ongoing since 2016 under an Agreement in Principle which includes a map of the settlement area.
[7] As part of the negotiation process, Ontario approved an Interim Enforcement Policy (“IEP”) allowing the AOO to harvest in the settlement area until a final modern-day treaty is approved. These harvesting rights are greater than those afforded to the public at large. For example, the AOO are permitted to hunt moose in Algonquin Park, a large portion of which falls within the settlement area.
[8] In 2017, Ontario recognized two Métis Nation communities. Ontario then extended harvesting rights to these Métis communities in an area that overlaps the settlement area which is the subject of the Algonquin-Ontario negotiations. The Plaintiffs have raised concerns about over-harvesting and sustainable hunting practices arising from Ontario’s decision.
[9] The Plaintiffs will argue at trial that Ontario’s decision was based on a flawed analysis of historic facts and law. They will argue that Ontario failed to consult meaningfully with the AOO before making the decision to grant harvesting rights to two other communities in the area under negotiation.
[10] The Plaintiffs submit that this litigation does not seek to add to any existing rights enjoyed by the AOO. Rather, its aim is to avoid improper encroachment by another group as a result of a decision which they will argue was flawed and taken without meaningful consultation with them.
Positions of the Parties
[11] Ontario consents to the order for representation, without prejudice to its right to challenge the justiciability of the claim in later proceedings.
[12] Métis Nation of Ontario and the Métis Nation of Ontario Secretariat Inc. (collectively, “Métis Nation”) oppose the motion. They argue that the AOO do not represent the Algonquin Nation (which includes people on both sides of the Ottawa river and in two provinces, Ontario and Quebec) from which any of their land rights derive, or alternatively, the proposed representative does not have authorization from the AOO to serve in that capacity. They challenge the class to be represented as being incapable of sufficient definition. Finally, Métis Nation objects to Chief Whiteduck as an appropriate representative because he is no longer Chief of Pikwakanagan and there is no evidence of his ability to bear the costs of the litigation.
Background Facts
[13] Until March of 2020, Chief Whiteduck was the elected Chief of the Algonquins of Pikwakanagan, a “band” within the meaning of the Indian Act.
[14] The AOO are an “aboriginal people of Canada” within the meaning of s. 35 of the Constitution Act, 1982. The AOO is an unincorporated entity which was created to negotiate with the governments of Ontario and Canada in the Algonquin-Ontario negotiations.
[15] On August 25, 1994, Pikwakanagan, Ontario and Canada entered a Framework for Negotiations. This Framework recognized that treaty negotiations should include the participation of all persons with Algonquin Aboriginal rights in Ontario.
[16] On October 18, 2016, the AOO, Ontario and Canada executed an Agreement-in-Principle (“AIP”) setting out the elements of a future AOO Treaty and the commitment of the parties to completing the treaty negotiations. The AOO Treaty is anticipated to address the Algonquins’ constitutionally protected rights to hunt, fish, trap and otherwise harvest renewable resources within the AOO settlement area.
[17] The AIP also addresses who will benefit from the treaty. That document included certain anticipated beneficiary criteria for the AOO Treaty. It included those persons who possess Algonquin Aboriginal rights and title through primary activities and use and occupation of land in the past and present in Ontario both at the time of European contact and the assertion of Crown sovereignty, including proven Algonquin ancestry and being part of a rights-bearing Algonquin collective.
[18] At the time of the 2016 ratification vote to approve the AIP, a total of 7,694 adult persons enrolled to participate in that vote under the eligibility rules then in place, including 661 adult members of Pikwakanagan.
[19] The AOO acts through elected representatives, known as Algonquin Negotiation Representatives (“ANRs”). There are 7 ANRs from Pikwakanagan, including Chief Whiteduck and nine additional elected ANRs from the Algonquin communities of Antoine, Bonnechere, Greater Golden Lake, Shabot Obaadjiwan, Ottawa, Whitney and Area, Kijicho Manito Madaouskarini Mattawa of North Bay, and Snimikobi. This litigation was initiated by the ANRs.
[20] The members of the class to be represented by Chief Whiteduck are not yet fully ascertainable because the treaty has not yet been finalized. The beneficiary criteria continue to be refined: In January of 2020, the ANRs approved a more detailed set of beneficiary criteria and a process for determining applications from proposed beneficiaries under any AOO modern-day treaty. The new beneficiary criteria must be ratified once the treaty negotiations are complete.
Analysis: Should a Representation Order Be Made under Rule 10?
[21] The scope for representation permitted by Rule 10 is broad. It includes, “any person or class of persons who are unborn or unascertained or who have a present, future, contingent or unascertained interest in or may be affected by the proceeding and who cannot be readily ascertained, found or served.”
[22] The onus is on the plaintiffs to show that a Rule 10 order should be made on a “balance of convenience: Police Retirees of Ontario Inc. v. Ontario Municipal Employees’ Retirement Board, 1997 CanLII 12271 (ON SC), [1997] O.R. No. 3086, 35 O.R. (3d) 177 (Ont. Ct. Gen. Div.) at paras. 15 and 18.
[23] A proposed plaintiff must provide information about the essential characteristics of the group s/he proposes to represent: Police Retirees of Ontario Inc. v. Ontario Municipal Employees’ Retirement Board, at para. 19.
[24] In determining whether there are common issues among members of a proposed class to be represented in litigation, a purposive approach to the question of commonality should be adopted. Although each member of the class need not be identically situated in relation to the opposing party, resolution of the issue must be capable of resolving each class member’s claim. Success by any one member must mean success for all members of the class on the common issue. If there is a combination of common and individual issues, the court may need to look at the significance of the common issues. (Western Canadian Shopping Centres v. Dutton, 2001 SCC 46 at paras. 39-40).
[25] Both parties referred to the British Columbia case of Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276. In that case, the court considered the application of a rule which is the equivalent to Ontario’s Rule 10. The British Columbia Court of Appeal upheld the motions judge’s decision to deny representation to the Hwlitsum First Nation in an indigenous title claim. The court considered four questions in that case on the question of representation:
(a) whether the collective of rights-bearers on behalf of whom they purport to act is capable of clear definition;
(b) whether there are issues of law or fact in common to all members of the collective so identified;
(c) whether success on the petition means success for the whole collective so defined; and,
(d) whether the proposed representatives adequately represent the interests of the collective.
[26] The Métis Nation submission effectively put the tests in Western Shopping and Hwlitsum in play. I will consider them on an issue by issue basis during the analysis.
[27] The Plaintiffs rely on the following factors to support their position that a balance of convenience favours appointing Chief Whiteduck as the representative for the Algonquins as collective rights holders:
a) no claim is made for a binding declaration of rights; it is a challenge to the process by which Ontario granted harvesting rights to another community in an area overlapping the settlement area;
b) the rights of the class being advanced are wholly collective in nature;
c) the class can be generally described but is not wholly ascertainable;
d) the class is large and dispersed;
e) the proposed representative Plaintiff was the political representative of the Algonquins of Pikwakanagan who, under the Proposed Beneficiary Criteria, will be included as beneficiaries of the Algonquins of Ontario Treaty and form part of the class;
f) the proposed representative Plaintiff has for many years been an ANR and formed part of a broader leadership body elected by Algonquins enrolled under the Beneficiary Criteria in the AIP and who represent the class;
g) as a former Chief and an ANR of long standing, the proposed representative Plaintiff can continue to take direction from and has extensive experience in providing leadership for the broader Algonquin population from whom the class will ultimately be comprised; and
h) individual participation from members of the group would add nothing to the trial record, which would primarily take the form of historical documentation and expert testimony.
[28] The Métis Nation makes four arguments for dismissing the Plaintiff’s motion. These are:
A. The Algonquin Nation has not approved this litigation;
B. The collective rights-bearers sought to be represented are not sufficiently defined;
C. The Algonquins of Ontario did not approve Chief Whiteduck as their representative;
D. Chief Whiteduck is not a suitable representative: he is no longer Chief/no evidence about his ability to bear costs.
[29] I will discuss each of these arguments in turn.
A. Was Approval from the Algonquin Nation Required?
[30] The Métis Nation submits that where a set of collective indigenous rights are being litigated, as a threshold matter, and prior to considering the commonality test from Western Shopping, the court must first determine who holds the collective rights being advanced, and whether the proposed representative Plaintiff has the authority or standing to represent that collective. It relies on the approach applied in Gitxaala Nation Council et al v Gitxaala Treaty Society et al., 2007 BCSC 1845.
[31] The Métis Nation argues that the true rights holders must be identified. They submit in this case that the rights holder is not the AOO, but the Algonquin Nation, which includes Quebec Algonquins. It argues that the source of any indigenous rights held by the AOO stems solely from its relationship to the larger Algonquin Nation, which since contact, has been subdivided by provincial boundaries and the operation of Canadian law, including the Indian Act.
[32] The Plaintiffs respond that they do not purport to take any authority from, or act on behalf of the Algonquin Nation. They do no assert rights and title under section 35 of the Constitution Act. In this way, they distinguish this litigation from the claims being made in Gitxaala Nation. Ontario has recognized and is negotiating with the AOO. The alleged breaches by Ontario by permitting undue encroachment by another group concern the subject matter of those treaty negotiations with a defined treaty partner, that has the authority of the community it represents, to act in the interests of the “Algonquins” as defined in the AIP.
[33] In Hwlitsum, the HFN sought declarations of Aboriginal rights and title. The HFN asserted they were descendants of the collective rights-holders. However, there were other, unaffiliated, First Nations with rights in the relevant area which derived from historic rights-holders. Some of these descendants were members of other bands. HFN was of more recent vintage and had authority to represent a subset of the whole collective. This meant that the HFN could not bring a representative claim to advance the collective rights of the Nation.
[34] Métis Nation draws a comparison between the HFN in Hwlitsum and the AOO. I disagree. The claims are different. In Hwlitsum, the HFN sought to establish rights of a Nation of which they were only a subset. The judge who determined the standing application found that this was a single family which attempted to reconstitute itself as a First Nation to assert title claims under s. 35 of the Constitution Act.
[35] Here, the claim does not seek to establish section 35 claims of rights or title on behalf of the broader Algonquin Nation, or the AOO as a subset of the Algonquin Nation. The claim arises solely out of the actions taken by Ontario as part of the Algonquin-Ontario negotiations pursuant to the AIP. It concerns a settlement area for which there has been some recognition of Ontario Algonquin rights. The claim is to protect these preliminary rights from encroachment.
[36] Although there may be other members of the Algonquin Nation who may belong to the beneficiary class and can benefit from the outcome of this litigation, this does not extend the proposed representation to the entire Algonquin Nation. The AOO are an entity recognized for the purposes of negotiation and are seeking relief in the context of actions taken by one of the negotiating partners, which affects their existing rights and those of the collective which they already represent at the negotiating table.
[37] As the Plaintiffs have submitted, the class of “Algonquins” is comprised of the individuals in Ontario whose Aboriginal rights are the subject-matter of the ongoing treaty negotiations and are adversely impacted by the decisions and actions of Ontario and the Métis Nation. This class is capable of general description. After the conclusion and ratification of a final treaty, the class can be defined through an enrollment process. That will lead to a more precise composition of the class. Accordingly, it is not ascertainable.
[38] I conclude that the threshold issue of the collective rights holders to be represented by Chief Whiteduck does establish that it is the Algonquin Nation. Accordingly, authorization from the Algonquin Nation is not required. The collective rights holders are as defined by the Plaintiffs: individuals in Ontario whose Aboriginal rights are the subject-matter of the ongoing treaty negotiations.
[39] I consider next the issue of whether the Plaintiffs are able to define sufficiently the class of the collective rights-bearers.
B. Are the Collective Rights-Bearers Sufficiently Defined?
[40] Métis Nation argues that the AIP and the January 2020 refinements to the proposed beneficiary criteria are insufficiently defined. They submit that the documents include subjective criteria such as “present-day cultural or social connections to an Algonquin collective.” They argue that subjective criteria such as this mean that the class is inadequately defined. Further, the criteria are subject to ratification. It is not known when this will happen.
[41] The Plaintiffs respond that the criteria define a collective that is not yet ascertained due to the stage of the negotiation. Rule 10 contemplates ensuring that unascertained members of a class will receive representation. They argue that the class is sufficiently defined: it is the class of people who meet the final criteria for inclusion as a group which derives the benefits of rights negotiated in the AIP and ultimately in the treaty negotiations between Ontario, Canada and the Algonquins.
[42] The wording of Rule 10 permits an appointment of a representative for “any person or class of persons who are unborn or unascertained or who have a present, future, contingent or unascertained interest in or may be affected by the proceeding and who cannot be readily ascertained, found or served.” This applies to the class of those who are affected by the decisions of Ontario over harvesting in the settlement area. They are not all ascertainable, but their grouping is known, and criteria have been developed that can reasonably be concluded to form the basis for final criteria once treaty negotiations are completed.
[43] Given the AIP and the current reliance on the interim rights accorded to this group, I conclude that the group is neither too nebulous, or ill-defined to say that the collective rights bearers are insufficiently defined. The exact membership is not known now for the reasons above. Rule 10 is intended to address circumstances such as these.
[44] I find that the definition of the collective rights bearers is sufficiently defined. This is a factor which weighs in the favour of the Plaintiffs.
C. Did the Algonquins of Ontario give the necessary authority nominate Chief Whiteduck as a representative Plaintiff?
[45] The Métis Nation also submits that the AOO did not authorize Chief Whiteduck to represent them in this litigation.
[46] They argue that this action can only be authorized by vote of a majority of the rights holders. Her the litigation was approved by vote of the ANRs, the negotiating representatives of the AOO. The Métis Nation submits that the Plaintiffs have produced no evidence that the ANRs consulted with their respective communities and members before launching this litigation.
[47] Métis Nation notes that there are some ongoing challenges to the AOO authority to represent them in the ongoing treaty negotiations. The Traditional Grandmothers of Pikwakanagan have commenced an action on behalf of all the members of the Algonquin Anishinabe Nation against Chief Whiteduck, the Council and the AOO for an order declaring that the AOO do not have the authority to negotiate the constitutional rights of the Algonquins of Pikwakanagan First Nation and the Algonquin Anishinabe Nation. There has been no decision in that suit.
[48] The Plaintiffs respond that they have obtained the explicit, unanimous support from the leaders of each of the 10 Algonquin communities in Ontario to appoint Chief Kirby Whiteduck as the proposed representative Plaintiff. The ANRs have clear authority to advance this claim on behalf of their members, the Algonquins, and to appoint Chief Kirby Whiteduck as their proposed representative Plaintiff. On September 19, 2018, by motion, the ANRs authorized Chief Whiteduck to act as the proposed representative Plaintiff in this case. As such the Plaintiffs argue that he has the full support of the councillors of Pikwakanagan and the other nine ANRs to act in that capacity.
[49] The authority of the ANRs is set out in a document entitled, “The Terms of Reference for Algonquin Negotiation Representatives” (the “Terms of Reference”). These terms state, in part:
The role and responsibility of the Algonquin Negotiation Representatives (“ANR’s”) is to represent the interests of the Algonquins of Ontario (“Algonquins”) with respect to their Traditional Territory in Ontario (“Traditional Territory”) in negotiations (“Negotiations”) with the governments of Canada and Ontario (the “Governments”) leading to the execution of a Tripartite Treaty (the “Treaty”) with the Governments.
Mandate of the ANR’s
3.The ANR’s additionally agree that, in order to fulfill their mandate, among other things, they will be required to:
a) take all necessary measures to advance the Negotiations leading to the Treaty;
b) act in the interests of the Algonquins while reflecting the uniqueness of each Community of Algonquins;1[…]”
[50] The Plaintiffs argue that this mandate includes their ability to launch “defensive litigation” against encroachments to the subject matter of the Algonquin-Ontario treaty negotiations. This is how they characterize Ontario’s decision to recognize Métis rights within a portion of the AOO Settlement Area and permitting those purporting to be Métis to exercise harvesting rights as if they had Aboriginal rights.
[51] The ANRs have had the authority to negotiate on behalf of the AOO for years. They have been recognized by the governments with whom they are negotiating, and they have obtained interim rights for those with rights in the settlement area. Under the terms of their mandate, they can “take all necessary measures to advance the Negotiations leading to the Treaty.” This lawsuit consists of requests for declaratory and injunctive relief to address government decisions which are alleged to impair the current rights enjoyed by the rights holders. There are challenges to the ability to represent, but these have not been adjudicated. The wording of the mandate is broad, the ambit of the action concerns actions taken that specifically impact treaty negotiations. I conclude that the ANR approval is sufficient to ground the Rule 10 motion.
D. The Challenge to Chief Whiteduck’s Suitability as a Representative Plaintiff
[52] The Métis Nation argues that Chief Whiteduck has not established that he can pay costs of the litigation. In the Police Retirees case, Kitely, J. considered the solvency of the proposed representative corporate plaintiff.
[53] Here Chief Whiteduck was examined, but not questioned on his capacity to fund costs orders during this litigation. There is an absence of evidence on this point. Costs might be a live issue in the balance of convenience calculation, but without any evidence to call his capacity into question or to establish his capacity to pay costs, I will treat this as a neutral factor in the assessment of balance of convenience.
[54] The Métis Nation also raises the issue of whether Chief Whiteduck is an appropriate representative given that he has decided not seek re-election as of March of 2020.
[55] Chief Whiteduck is a member of the rights-bearing collective. He held a leadership role for 17 years and has acted as part of the negotiating team throughout. He has authored a book on the Algonquin. His interests are aligned with the interests of the class.
[56] In Slate Falls, [2004] O.J. No. 3860 (Ont. S.C.J.) Horkins, J. considered the characteristics of the proposed representative relative to the class, including his membership in the class and his ability to communicate with a geographically remote members of a large class.
[57] Chief Whiteduck’s role in his community and as a representative for the broader collective in the treaty negotiations support his application to be a representative Plaintiff. There is no requirement that a representative occupy a particular role or have a title to be considered. Given that the questions of representation focus on a purposive analysis, I have looked to the substance of his past knowledge and representation. I find that his experience as Chief and ANR favours his application. His decision to step down as Chief does not diminish his knowledge and experience, particularly in the context of this litigation.
The Significance of Ontario’s Consent to the Order
[58] In the Police Retirees case at para. 33, Kitely , J. noted the significance of the consent given by OMERS to the representation order because of OMERs’ role with the parties.
[59] I requested submissions from the parties made submissions on the significance of Ontario’s consent to the order of representation.
[60] Métis Nation conceded that although this is a factor to be considered, it is not determinative and was made subject to Ontario’s rights to challenge the litigation on other grounds.
[61] The Plaintiffs argued that if the motion for representation was as flawed as portrayed by the Métis Nation, it would have expected that Ontario would have challenged this order. They argue that the consent is a persuasive factor.
[62] I include Ontario’s consent as one factor among the many discussed above. However, it is not determinative, given that Ontario made no submissions about the rationale for its consent.
Conclusion
[63] I find that the balance of convenience favours making the order sought by the Plaintiffs. I have considered the following factors in arriving at this conclusion:
a) The claim being advanced is wholly collective in nature;
b) The claim is being made by a sufficiently defined group of collective rights holders, albeit all members are not yet capable of being ascertained;
c) As an indigenous claim, this action does not seek to establish s. 35 rights or title: it is a narrow claim for declaratory and injunctive relief relative to a government decision which is alleged to impair existing rights of the collective rights-holders;
d) The proposed representative Plaintiff, Chief Whiteduck, is a member of the collective rights-holders, a former Chief of one of the communities represented in the treaty negotiations and a former treaty negotiator;
e) There is sufficient evidence that the ANRs had a mandate as part of the advancement of treaty negotiations to authorize Chief Whiteduck to serve as a representative Plaintiff;
f) One of the parties, Ontario, has consented to the naming of Chief Whiteduck as representative Plaintiff.
Costs
[64] If the parties are not able to agree as to costs, they may provide brief written submissions (maximum 4 pages) on or before October 8, 2020.
Leiper J.
Released: September 18, 2020
COURT FILE NO.: CV-18-00603975-000
DATE: 20200918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHIEF KIRBY WHITEDUCK on his own behalf and on behalf of the ALGONQUINS, and the ALGONQUIN OPPORTUNITY (NO. 2) CORPORATION
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF NATURAL RESOURCES AND FORESTRY and THE MINISTER OF INDIGENOUS AFFAIRS
- and -
MÉTIS NATION OF ONTARIO
- and -
MÉTIS NATION OF ONTARIO SECRETARIAT INC.
Defendants
REASONS FOR DECISION
Leiper J.
Released: September 18, 2020