Court File and Parties

COURT FILE NO.: C-0673-01 DATE: 2022-04-14 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, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and the ATTORNEY GENERAL OF ONTARIO as representing HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendants

• AND –

BIIGTIGONG NISHNAABEG FIRST NATION (ALSO KNOWN AS BEGETIKONG ANISHNABE FIRST NATION OR OJIBWAYS OF THE PIC RIVER FIRST NATION); NETMIZAAGGAMIG NISHNAABEG FIRST NATION (ALSO KNOWN AS PIC MOBERT FIRST NATION), PAYS PLAT FIRST NATION, LONG LAKE NO. 58 FIRST NATION, BINGWI NEYAASHI ANISHINAABEK (FORMERLY KNOWN AS SAND POINT FIRST NATION), BIINJITIWAABIK ZAAGING ANISHINAABEK (FORMERLY ROCKY BAY FIRST NATION), and ANIMBIIGOO ZAAGI’IGAN ANISHINAABEK FIRST NATION Intervenors

– AND –

BATCHEWANA FIRST NATION Moving Party

Endorsement on Motion by Batchewana First Nation for Joinder and Leave to Intervene

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 Brian Gover/Spencer Bass, Biigtigong Nishnaabeg First Nation (a.k.a. Begetikong Anishnabe First Nation or 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. Collectively, these First Nations are the “Group of 7”. Ceyda Turan, for Michipicoten First Nation William B. Henderson, for Batchewana First Nation

HEARD: February 28, 2022

Endorsement

[1] Batchewana First Nation (“Batchewana”) seeks an order joining it as a necessary party plaintiff in this action pursuant to r. 5.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or, in the alternative, leave to intervene as an added party Plaintiff pursuant to r. 13.01(1). Batchewana also seeks an extension of time for filing this Motion.

[2] For reasons set out below, the motion for joinder and/or leave to intervene is dismissed.

[3] It is not necessary to join Batchewana as a party to this action to enable this Court to effectively and completely adjudicate on the issues in the proceeding as per r. 5.03.

[4] Batchewana does not meet any of the three criteria for leave to intervene as per r. 13.01. In any event, the intervention of Batchewana would unduly delay this action and impose a prejudice on the parties that would be outweighed by any contribution they might make to this action.

Overview

[5] In this complex matter involving an interpretation of the Robinson Superior Treaty, the plaintiffs have made a claim for damages against the Crown for augmented annuities (the “Superior action”). This matter is being heard together with what may be called a companion action by the Huron Anishinaabe First Nations with respect to the Robinson Huron Treaty (the “Huron action”). Since 2016 the two matters have been managed and heard together, although the actions remain separate. The cases have been split into three stages. The decision in Stage One involved treaty interpretation and Stage Two involved consideration of limitations and crown liability. Stage Three is scheduled to begin in the fall of 2022 to hear the claim for compensation including damages, Crown liability and, inter alia, a share of the net crown revenues from the treaty territory.

[6] The two sets of plaintiffs are distinct groups of Anishinaabe First Nations who reside on the north shores of the two great lakes. Their Treaty territories are defined in the respective treaties.

[7] In the Huron action, the plaintiffs have proceeded pursuant to a representation order which lists 21 First Nations as beneficiaries of the Robinson Huron Treaty (the “Huron Treaty”). Batchewana is one of the Huron plaintiffs.

[8] It is worthwhile to explain the fundamental structure of this litigation. The plaintiff groups are separately represented in these two actions. This action, the Superior action, was started in 2001 in Thunder Bay in the Northwest Region and the Huron action was started in Sudbury in the Northeast Region in 2014. [1]

[9] The claims were based on the Robinson Treaties, both negotiated and made in September of 1850. The two treaties are very similar and the language of the two augmentation clauses is identical. As a result, for litigation efficiency and the obvious desire to avoid the potential of inconsistent findings, the decision was made to have the two actions tried together. However, the actions were not consolidated. Each set of plaintiffs called their own expert witnesses. The Huron plaintiffs also called Elders and community members. As part of the case management process, it was agreed that the evidence called by one set of plaintiffs could be relied upon by the other set of plaintiffs. A single set of reasons was delivered on the interpretation of the augmentation clause, but separate judgements were delivered, one for each case. Those judgements determine that the respective First Nation Treaty Parties have a collective treaty right to have their promised annuity payments increased from time to time if net Crown resource-based revenues from their respective treaty territories permit the Crown to do so without incurring loss: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1, at Appendix A, para. 1(a) (Huron Action) and para. 1(a) (Superior Action).

[10] In the fall of 2021, a number of First Nations sought to intervene in this action: the current beneficiaries, i.e., those who claim to be Superior Treaty beneficiaries, [2] the contingent beneficiaries, i.e., those who the defendants claim are Superior Treaty beneficiaries, [3] or who claim to be unrecognized Superior Treaty beneficiaries. [4]

[11] The Group of 7 and Group of 3 First Nations, contingent or current Superior Treaty beneficiaries, were parties to consent orders permitting them to intervene in this action on terms that they would not lead evidence, make argument, or tender expert evidence touching upon the manner of allocation or distribution of any net global award that is inconsistent with the manner of allocation and distribution that has been agreed to among the plaintiffs, the Group of 3, and the Group of 7, which is to be based on relative 2018 populations. The terms of the Order permitting Namaygoosisagagun’s intervention reflect the terms of the consent orders and prohibit them from making submissions in conflict with the plaintiffs’ position on the issue of distribution: Restoule v. Canada (Attorney General), 2022 ONSC 1294, at para. 22.

[12] As a result of the recent Intervention orders and the Representation Order, the Superior plaintiffs and interveners now represent 13 First Nations as current, contingent, or unrecognized beneficiaries of the RST.

[13] Batchewana, a signatory to and beneficiary of the Huron Treaty and one of the Huron plaintiffs, seeks an order joining its claim for damages or in the alternative seeks intervener status into this action with 13 from the Superior Territory.

[14] In essence, Batchewana says that it is entitled to receive augmented annuities under the Huron Treaty as well as augmented annuities from the Superior Treaty calculated on the basis of resource revenues derived from territory within the Superior Territory. It is this claim for a portion of augmented annuities attributable to revenues from the Superior Territory which is a new and contested issue.

Relevant Facts

[15] Batchewana’s status as a plaintiff in the Huron action derives from the fact that it was a signatory to the Huron Treaty and is therefore a beneficiary of the Huron Treaty.

[16] For its proposed claim in this action, Batchewana relies on the surrender clause in the Huron Treaty, which reads as follows:

[I]nhabiting and claiming the eastern and northern shores of Lake Huron from Penetanguishene to Sault Ste. Marie, and thence to Batchewanaung Bay on the northern shore of Lake Superior, together with the islands in the said lakes opposite to the shore thereof, and inland to the height of land which separate the territory covered by the charter of the Honorable Hudson's Bay Company from Canada, as well as all unconceded lands within the limits of Canada West to which they have any just claim ... on behalf of their respective tribes or bands, do hereby fully, freely and voluntarily surrender, cede, grant, and convey unto Her Majesty, Her heirs and successors for ever, all their right, title and interest to and in the whole of the territory above described [except for certain reservations (15 in all) set forth in the annexed schedule]… (emphasis added)

[17] In plain words, Batchewana, together with other Huron Treaty First Nations, were conceding their “just claims” to land in Canada West outside the limits of the Huron Territory. Batchewana says that the lump sum payment and perpetual annuity under the Huron Treaty compensated them for their land interests or Indian title both within the Huron Territory and outside the Huron Territory to which they had any “just claim”.

[18] Batchewana asserts that it has “just claims” to areas outside of the Huron Territory, including among other points: the area of the Agawa River settlement at the mouth of the Agawa River and Batchewana River where it flows into Batchewana Bay. These areas fall within the territory of the Superior Treaty.

[19] Batchewana was not a signatory to the Superior Treaty, does not contend to be a beneficiary of the Superior Treaty nor otherwise governed by the Superior Treaty.

Positions of the Parties

[20] Batchewana seeks an order extending the time to bring this motion, and an order to be joined as a necessary party to this proceeding under r. 5.03(1) and in the alternative, for leave to intervene as an added party under r. 13.01(1).

[21] The plaintiffs resist the motions and ask the court to dismiss the motions.

[22] The interveners, the Group of 7 and Michipicoten First Nation (a member of the Group of 3 interveners), adopt the arguments of the plaintiffs and also resist the motions.

[23] The defendant Ontario does not take a position on the motions. At this time, Ontario will not speculate on what position they will take if Batchewana files a Statement of Claim which would ask for relief that could be interpreted to be a claim for ‘double dipping’.

[24] The defendant Canada submitted that it was not opposing the motions. Through counsel, Canada stated that it was their preference that the dispute as raised by Batchewana should be decided as between the First Nations without involvement of Canada. However, as the submissions developed, counsel for Canada indicated that their position was based on an understanding of the proposed claim that would not increase Canada’s risk.

Batchewana’s Position

[25] On the issue of joinder, Batchewana asserts that it is advancing a justiciable treaty right to an allocation of a portion of the damage award attributed to the Superior Territory by virtue of the net Crown revenues from that area.

[26] Batchewana’s proposed claim is based on the assertion that in 1850, at the time the two treaties were signed, Batchewana had “just claims” to lands situated within the Superior Territory. Batchewana says that it becomes a necessary party in Stage Three of this trial because Stage Three will deal with the quantification of damages arising from the Crown’s failure to augment the Treaty annuities in a manner consistent with the Augmentation Clause of the Huron Treaty, damages now directly linked to net Crown revenues from the lands ceded pursuant to the Robinson Treaties.

[27] Batchewana does not claim that they are Superior Treaty beneficiaries, nor will they be claiming to share in the Superior Treaty augmentation entitlement, or the compensation payable for failing to honour the Superior Treaty terms.

[28] In support of this motion, Batchewana relies on the affidavit of Chief Dean Sayers who says at para 7:

“The fundamental issue is whether BFN’s Robinson Huron Treaty annuities – which represent, in part, compensation for the cession of our just claims in the Robinson Superior Treaty (“RST”) area– are to be augmented on the basis of net Crown revenues from the lands where we had those just claims.”

[29] Batchewana proposes to claim that the promise to augmented annuities in the Huron Treaty, properly construed, was intended to allow the Batchewana to share in resource revenues from not only the Huron Territory, but also from lands outside of the Huron treaty territory and inside the Superior Territory. Therefore, Batchewana says they have a claim derived from net Crown revenues generated in part of the Superior Territory.

[30] Batchewana submits that the most efficient way to have the merits of their claim before the Court is to recognize them as a necessary party in this action so that there will be complete and effective adjudication of the issue of allocation, and that this will avoid a multiplicity of proceedings.

[31] Batchewana further submits that joinder as a necessary party meets the objective of ensuring that proceedings are the most economical and cost-effective deployment of resources in bringing forward their constitutionally protected treaty rights.

[32] On the issue of leave to intervene, Batchewana asserts that it shares an interest in common with the other plaintiffs in the subject matter of Stage Three since it relates directly to the allocation of net Crown revenues in the Superior Territory and that Batchewana will be adversely affected if those revenues are allocated without its claims being heard.

[33] Batchewana submits that its joinder or intervention will not cause prejudice or delay because the Stage Three trial will not begin for another six months, and it does not seek to participate in the quantification of damages or the attribution of net Crown revenues as between the Treaty areas. It submits that its financial impact on the parties’ recovery of damages is not prejudice.

Stay Proposal

[34] Batchewana states they propose to join in this claim with new pleadings and then immediately seek a stay of that proceeding. They would not participate in the portions of the trial dealing with the quantification of net crown revenues in the Superior Treaty, boundary issues or in the attribution of total damages as between the two Treaty territories. The claim that Batchewana wishes to advance is a claim only against the Crowns.

[35] Batchewana submits that the Superior action includes all the interested parties. If Batchewana is not in Superior action, it must go through convolutions to get all parties to table. Batchewana says it is efficient to admit Batchewana here and it will cause no prejudice or delay to the other parties. They submit that it is up to Crown to pay damages in manner which does not impact on other First Nations in the Superior territory.

[36] Batchewana submits that this proposed approach means that their joinder or intervention will not cause prejudice or delay of Stage Three.

Position of the Plaintiffs, the Group of 7 and Michipicoten

[37] The responding parties, which include the plaintiffs, the Group of 7 and Michipicoten (from the Group of 3), oppose the motion and make a number of arguments against an order for joinder and or leave to intervene:

• The proposed Batchewana claim is properly a Huron Treaty claim, at the same time inconsistent with the Huron position and in any event subject to res judicata and is an abuse of process.
• Batchewana is not a necessary party under r. 5.03.
• Batchewana is not a proper intervener under r. 13.01.
• Batchewana’s proposed claim would cause significant delay and prejudice, either as a joined party or as an intervener.
• Batchewana’s proposed intervention is an attempt to litigate a boundary issue, which will especially prejudice Michipicoten.

[38] The responding parties focus their response on what they say is the fundamental flaw of the proposed claim: that Batchewana’s claim is a uniquely Huron Treaty issue, which seeks an interpretation of the Huron treaty, which interpretation is contrary to the position the Huron plaintiffs successfully advanced in Stage One. They submit that at its core, Batchewana’s claim requires the Crown to pay Batchewana, one of the Huron bands, an enhanced Huron Treaty entitlement arising from their alleged entitlement to compensation for the cession of their ‘traditional territories’ which are now within the Superior Treaty territory.

[39] It is not controversial that Batchewana’s claimed interest in the case relates entirely to its status as a Huron Treaty beneficiary and to their alleged entitlement to increased annuities under the Huron Treaty. However, the responding parties submit, that determinations in Stage Three of the Superior action, will not determine Batchewana’s rights under the Huron Treaty, especially since Batchewana is not seeking a portion of the augmented annuities under the Superior Treaty.

[40] The responding parties underscore that Stage Three of the within action will consider the Superior Treaty and focus on issues of quantification and compensation for the beneficiaries of the Superior Treaty and the issue of crown allocation. Therefore, in Stage Three of this action, the Court will not consider or interpret the Huron Treaty and its determinations will have no impact on Batchewana’s rights under the Huron Treaty.

Position of the Responding Parties on Issue of Inconsistency with the Huron Treaty Claim

[41] As a plaintiff in the Huron action, Batchewana claimed that the purpose of the Huron Treaty augmentation clause was to “allow the Robinson Huron Treaty Anishinabek to share in resource revenues from the Treaty territory”. The responding parties say that the Huron plaintiffs, of which Batchewana is a part, did not claim for a share of the net revenues from lands outside of the Huron Territory. However, Batchewana now proposes to claim that the Huron Treaty augmented annuity promise, properly construed, was intended to allow Batchewana to share in resource revenues from lands outside of the Huron Treaty territory in addition to those within the Huron Territory. This proposed claim calls for an interpretation of the Huron Treaty which the responding parties submit is inconsistent with Batchewana’s own pleadings in the Huron case. Batchewana seeks to join or intervene in this action to advance this new issue, i.e., the interpretation of the “just claim” clause of the Huron Treaty, an interpretation different than or inconsistent with the interpretation advanced on their behalf in Stage One, on which they were successful. Consequently, they submit that Batchewana is and has been a party in the action where its presence is necessary for the interpretation of the Huron Treaty.

[42] The responding parties further argue that the decision in Stage One of the Huron action, determined that there is a collective entitlement to the Chiefs and their Tribes and that there is one treaty annuity to be augmented for the benefit of the First Nation treaty parties: Restoule v. Canada (Attorney General), 2018 ONSC 7701, 431 D.L.R. (4th) 32, at paras. 397, 463-464, 534. The responding parties say that the collective treaty annuity right is not an amalgamation of the individual rights of the First Nations from within the Treaty territory. The collective right is to be quantified in Stage Three from evidence on the issue of net revenues from each separate Treaty Territory. The treaty annuity right under the Huron Treaty is confined to a consideration of revenues from the Huron Territory and not from revenues from outside of the treaty territory as Batchewana now seeks to advance.

Position of the Plaintiffs on Res Judicata and Abuse of Process

[43] The plaintiffs submit that the proposed Batchewana claim is barred by res judicata and abuse of process and in any event discloses no reasonable cause of action.

[44] It is not necessary to make a determination of these arguments in light of the findings on the motion under rr. 5.03 and 13.01.

[45] The plaintiffs also submit that the motion has not been brought in a timely manner. They say that the issues raised on these motions were known to Batchewana since at least 2008, that Batchewana has been represented and participated in this litigation since 2014 and that the proper time to seek a new interpretation of the Treaty was before or at Stage One. The plaintiffs say that it is now too late for Batchewana to raise this issue. The plaintiffs further submit that Batchewana did not meet the timelines ordered as part of the Case Management process for the filing of motions for leave to intervene.

Position of the Responding Parties on Joinder, r. 5.03

[46] The responding parties say that this action is concerned with the promise of an augmented annuity under only one Treaty, the Superior Treaty. However, the Batchewana claim relies entirely on its status as a Huron Treaty beneficiary and seeks an interpretation of the Huron Treaty. The opposing parties say that since Batchewana is not seeking a portion of the augmented annuities under the Superior Treaty, the court’s determination in this matter will not and cannot determine Batchewana’s Huron Treaty rights and therefore that it is not necessary to joint Batchewana in the present proceedings for it to protect its purported interests under the augmentation clause of the Huron Treaty.

[47] The plaintiffs also dispute that Batchewana will be adversely affected if the funds in the Superior action are distributed without its claims being heard because Batchewana’s claims are against the Crown, who have a statutory obligation to pay their judgments. [5]

Position of Responding Parties on Leave to Intervene, Rule 13.01

[48] The responding parties submit that Batchewana does not meet any of the threshold tests in r. 13.01(1). They say that Batchewana has no interest in the subject matter of this proceeding and will not be adversely affected by a judgment in the proceeding.

[49] On the question of whether there are common issues of fact or law, the plaintiffs acknowledge that because Huron action and Superior action are being tried together, there are questions of law or fact in common, e.g., crown allocation. However, because Batchewana is already a full party to the Huron action, it needs no intervener status to protect its rights on those issues which are common to both actions. The Group of 7 says that the new issue that Batchewana seeks to raise is either irrelevant to this proceeding or a new issue that is not common to any of the existing parties.

[50] The plaintiffs submit that in the circumstances of this litigation, the proper threshold question is whether the proposed new Batchewana claim shares questions of law or fact in common with one or more of the questions in the Superior action that are either not raised or could have been raised in the Huron action.

[51] But on the one possible shared issue, the quantification of the net Crown revenues from part of the Superior Territory, Batchewana has taken the position that it does not seek to participate in the quantification of net crown revenues in the Superior Territory.

[52] The subject of this proceeding is the proper interpretation of the Superior Treaty, not the Huron Treaty, and the determination of compensation including a monetary judgement payable by the Crown to the Superior Treaty beneficiaries, not the Huron Treaty beneficiaries. Among other things, the responding parties say that the proposed issue is really a boundary issue or an Aboriginal title issue, both of which have an entirely different sets of evidentiary requirements than are presently contemplated by this litigation.

[53] The responding parties further submit that the prejudice caused by Batchewana’s proposal outweighs any benefits their participation might have.

Position of the Responding Parties on Delay and Prejudice

[54] The responding parties submit that even if Batchewana meets one of the threshold criteria for intervener status that it ought not to be granted leave in light of the significant prejudice and delay that would be imposed on the other parties.

[55] The responding parties submit that granting Batchewana intervener status would derail the trial, cause exorbitant delay, and make the proceedings unmanageable. They further submit that allowing the motion for intervener status will also trigger the litigation of a new issue, being determination of net resource revenue from specific locations, an issue which would not otherwise be the subject of evidence nor judicial determination and an issue which the other 13 Nations have taken great care to ensure will not be raised in the litigation. The plaintiffs further submit that among other evidentiary requirements, genealogy evidence will be necessary if either the boundary issue or the issue of quantification of damages based on historic traditional territories are litigated.

Position of the Responding Parties on the Boundary Issue

[56] Batchewana says they are not pursuing a boundary issue notwithstanding that the responding parties view the issues raised as a distinct boundary issue. If it is not otherwise resolved, the boundary issue between the Huron and the Superior territories is or will be tackled by the plaintiffs in each of the separate actions. Batchewana’s position risks being in conflict with their own position as a plaintiff in the Huron litigation and if it is not in conflict, it is necessarily within the ambit of the Huron case and its counsel.

[57] Michipicoten seeks relief against joinder under r. 5.05 in light of the prejudice that would flow from the need to retain and call additional expert and elder evidence to respond to Batchewana’s claims with respect to its traditional territory.

Discussion

Joinder: Is Batchewana a necessary party?

[58] Rule 5.03(1) states, “Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.”

[59] Rule 5.03(4) states: “The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.”

[60] In Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2015 ONSC 7969, 128 O.R. (3d) 501 (“OFAH”), the Court said at paras. 10-11:

In determining whether a person is a "necessary party", the court must consider whether they are likely to be affected or prejudiced by the order being sought. If the order sought will determine the rights of a person who is not a party, that person is entitled to be added so that his voice will be heard before his rights are determined.

One of the main purposes underlying these rules is to ensure that all parties are before the court when an order is made affecting their rights. This will avoid a multiplicity of proceedings and the risk of inconsistent results. (footnotes omitted).

[61] The interest Batchewana seeks to advance and protect arises under the Huron Treaty. Batchewana claims now that they are a necessary party in the Superior action because Stage Three will deal with damages arising from the Crowns’ failure to augment the Treaty annuities in a manner consistent with the Augmentation clause of the Huron Treaty.

[62] There is a fundamental flaw in Batchewana’s argument. They are seeking to join or intervene in an action that is distinctly framed to determine the annuity augmentation obligations of the Crowns under the Superior Treaty, when they are not and do not claim to be beneficiaries of the Superior Treaty. This action will not, as claimed in para. 3 of their Factum, address the Crown’s failure to augment annuities in a manner consistent with the augmentation clause of the Huron Treaty.

[63] Many problems arise from this flawed premise. Batchewana is already before the court as a Huron plaintiff arguing that they are entitled to damages arising from the Crown’s failure to augment the Huron Treaty annuities in a manner consistent with the Huron Treaty. However, this action on the Superior Treaty is concerned only with the annuity promise in the Superior Treaty and not the Huron Treaty. The basis of Batchewana’s claimed interest arises entirely from its status as a Huron Treaty beneficiary. Batchewana does not rely on any provision in the Superior Treaty to support its claim.

[64] Batchewana is not seeking a portion of the increased annuities under the Superior Treaty, nor do they seek to participate in the evidentiary or argument parts of the litigation on which findings will be made to quantify the increase.

[65] The assertion that a determination or calculation of the Huron Treaty augmented annuities should take into account resource revenues from areas outside of the Huron Territory is, however, directly inconsistent with the position successfully argued by the Huron plaintiffs of which Batchewana is a part.

[66] Batchewana is already a party in the action where its presence is necessary, that is the Huron action. As Batchewana makes no claim for a share in the augmentation to the annuities paid pursuant to the Superior Treaty, its joinder in the present proceeding is not necessary to enable the Court to effectively and completely adjudicate on the issues, namely the scope of the Defendants’ obligation under the Superior Treaty augmentation clause to the Superior Treaty beneficiaries.

[67] It is not necessary to join Batchewana as a party in the present proceedings for it to protect its purported interests under the augmentation clause of the Huron Treaty. Batchewana suffers no prejudice by not being able to advance their claim for enhanced augmented annuities under the Huron Treaty in the Superior action.

[68] In OFAH, the court set out the considerations for determining whether a person could properly be joined as a necessary party and ordered the joinder of a First Nation in an action that sought the interpretation of a Treaty. However, the circumstances of this case differ completely from those in OFAH. In that case, the applicant Federation sought a determination of the rights of the First Nations flowing from the Williams Treaties to which the First Nations were parties, but the Federation was not. The determination the Federation sought would directly affect the First Nations, so the First Nations sought to join the proceeding under r. 5.03. Molloy J. found at para. 15, that “[i]t is hard to imagine relief that more directly affects the rights of the First Nations. Indeed, they are the ones most directly affected by the relief sought.” She added the First Nations as party respondents and found, at para. 18, that the “entire proceeding is directed towards obtaining rulings that are contrary to the rights asserted by the First Nations [parties seeking joinder].” As discussed above, Stage Three of this proceeding will not deal with damages arising from the augmentation clause of the Huron Treaty, nor will it deal with the Huron Treaty in any manner. This trial will focus solely on obligations arising from the Superior Treaty to the Superior Treaty beneficiaries.

[69] Batchewana further argues that an allocation of net Crown revenues from the “just claims” lands will be made in the Superior action. However, the only damages sought in this trial are the collective damages arising from any net revenues in the Superior Territory. There is no claim for damages attributable to specific lands within the Territory. There is no claim for allocation of the collective territorial damages to specific First Nation beneficiaries. The claims to be determined in Stage Three follow the interpretation of the Treaty made in Stage One.

[70] The motion for joinder is dismissed.

Intervener Status

[71] In order to be granted intervener status as a party under rule 13.01(1), it is only necessary to meet one of the three criteria:

• An interest in the subject matter of the proceeding
• That Batchewana may be adversely affected by a judgment in the proceeding; or
• That there exists between Batchewana 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.

[72] Batchewana’s claim does not meet any of these criteria. As explained above, Batchewana does not have an interest in Superior Treaty claim by the beneficiaries of the Superior Treaty for compensation for a violation of the annuity clause. Batchewana’s rights as a beneficiary under the Huron Treaty will not be adversely affected by the outcome of this proceeding.

[73] An award of compensation flowing from the promises in the Superior Treaty will not detrimentally impact Batchewana’s claims to compensation under the Huron Treaty. No judgment in the Superior action will affect the proposed Batchewana claim. As Michipicoten says in its response, the Crown fulfilling its treaty obligations to one group of First Nations does not preclude it from fulfilling its treaty obligations to another group. Batchewana will not lose its treaty rights as a result of the outcome of this action. Batchewana has not demonstrated that it needs to participate in an issue that stands to be affected by the determinations in the Superior case.

[74] There are common issues of fact and law between Batchewana and the Superior plaintiffs. However, these issues will be decided on common evidence as between the Huron and Superior plaintiffs and Batchewana’s interests remains an integral part of the Huron plaintiffs. Batchewana’s proposed issue of entitlement to additional or enhanced annuities would have been more directly related to and logically raised in the Huron action at Stage One.

[75] The single new issue which Batchewana now raises, one of entitlement to augmented annuities arising from historical interest in lands now outside of the Huron Territory, and on which it bases its request for intervention, is not common with the Superior plaintiffs, defendants, or interveners in this case. The issue of entitlement to compensation related to or arising from the “just claims” lands of Batchewana arise only and uniquely from the Huron Treaty.

[76] In any event, as noted above, on the issue of quantification of net crown revenues from the Superior Territory, Batchewana states that it will not participate.

[77] Batchewana cannot show that any of the issues in the Superior case will touch on the merits of Batchewana’s new claim for enhanced augmentations to the annuity.

[78] Batchewana cannot and will not attempt to make any useful contribution to the Stage Three proceedings of quantification of compensation or damages arising from the failed promise to augments annuities as framed by the pleadings and by the decision in Stage One.

Delay and Prejudice

[79] Rule 13.01(2) directs the Court to consider “whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding”.

[80] Should Batchewana have established a common issue, which they have not, the considerations for intervention weigh heavily against an order permitting Batchewana’s intervention in this case in any event.

[81] Michipicoten, which is one of the Group of 3 interveners, states that its own traditional territory overlaps with the lands claimed by Batchewana in the Superior Territory. The proposed claim is clearly controversial and contentious.

[82] The responding parties identify significant prejudice and delay that would arise if Batchewana were permitted leave to intervene to raise this issue, whether as a boundary issue, an Aboriginal title issue, or simply a claim to lands which overlap with traditional territories claimed by Michipicoten.

[83] If Batchewana is permitted to introduce this new, either treaty interpretation or boundary issue, the plaintiffs identify requirements for new pleadings; procedural challenges to the pleadings; substantial research, expert reports, and evidentiary material; pre-trial discovery of documents; re-negotiation of the terms for intervention of 10 First Nation parties recently made on consent; and re-negotiation of the proceeds-sharing model among the plaintiffs and interveners. All of these steps would cause significant delay and completely upset the litigation process and timetable which has proceeded by way of cooperative case management, with Batchewana as an active participant.

[84] As this case has been structured, it has not been necessary for Michipicoten or the other First Nations to arrange for expert historical and anthropological witnesses as well as lay witnesses to opine on the extent of their traditional territories, harvesting activities, and the resource revenues that are derived from it its traditional territories. However, if permitted to intervene with their proposed claim, both Batchewana and the responding parties would be forced into this situation. This is not a speculative argument. Batchewana concedes that Michipicoten would have to respond.

[85] The parties and the court appreciate the nature and extent of evidence that was gathered and tendered during Stage One where the focus was treaty interpretation. There is no doubt that significant delay and complication would result if Batchewana were permitted to proceed with their claim.

[86] As the responding parties point out, the terms of intervention of the Group of 3 and the Group of 7 are based upon consent Orders, made after significant negotiations. The terms of that Order include that the interveners not lead any evidence, expert or otherwise, upon the manner of allocation or distribution of any net global award that is inconsistent with the manner of allocation and distribution that has been agreed to among the plaintiffs, the Group of 3, and the Group of 7 interveners, which is a population-based, not a land-based model.

[87] These consent orders defining the terms for the interveners were based on the reasonable presumption that there was no issue before the court requiring determination of contested traditional territories. The agreement significantly stream-lined the evidence and the issues to the benefit of both the court and the parties. Batchewana could not be joined or permitted to intervene with their new issue without substantial amendments to the existing Orders affecting the 11 interveners. It is far from guaranteed that consent could be reached on terms that would satisfy the plaintiffs and the interveners.

[88] Batchewana’s entry into the litigation, as an intervener or as a joined party, risks shattering this accord and inserting significant issues into the litigation. The disruption and undermining of these intervention orders caused by adding Batchewana to this action compounds the prejudice.

[89] The responding parties suggest that the Batchewana is asserting a claim for Aboriginal title. An Indigenous group holding Aboriginal title rights to land have a collective right to use, control, and enjoy the land, and hold it for the benefit of future generations. Claims for aboriginal title have different and extensive evidentiary requirements that usually require multi-year preparation. An Indigenous group claiming Aboriginal title must show that the land was sufficiently occupied prior to sovereignty, that there is a continuity between present and pre-sovereignty occupation, and there was exclusive occupation at sovereignty: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256, at paras. 24-32. In this case, issues relating to the effects of Batchewana’s 1859 land surrender would come into play as well as historical and anthropological issues. As noted above, none of that research has been done for this litigation which is now proceeding on basis of the findings from Stage One. The other First Nation plaintiffs have not advanced claims for Aboriginal title. A case for Aboriginal title, if inserted or overlaid on this claim would render the proceedings unmanageable in their current form.

[90] But it is not necessary to determine on this motion whether Batchewana is asserting Aboriginal title or something akin to Aboriginal title. What is clear is that in order to support their claim of entitlement to annuities from the contested “just claim” land in the Superior Territory, Batchewana, Michipicoten, and possible other Group of 3 First Nations would be required to adduce significant historical evidence of their traditional and treaty harvesting activities in the disputed area, whether in Stage Three or following Stage Three. Batchewana suggests that by waiting until the end of Stage Three, they can somehow avoid the enormous prejudice and delay that would surely result from dealing with the issue in Stage Three. However, as the plaintiffs point out, to the extent that Batchewana continues to assert its claim after Stage Three and seeks determination of the claim before distribution of any award for compensation to the Superior plaintiffs, the prejudice and delay remain as oppressive burdens upon them.

[91] These fundamental problems with the Batchewana claim send it into contortions to avoid the obvious delay and prejudice that would ensue from either joinder or intervention. One of these contortions is Batchewana’s proposal to start an action to be joined and then seek immediately to have that action stayed. This proposal is further addressed below.

Is Batchewana making a Boundary Claim?

[92] The responding parties note that Batchewana appears to be seeking a determination of the boundary between the two territories, even though Batchewana denies that this is their claim. The Batchewana claim is based on the presumption that the ultimate award will be based on a proportionate share of net Crown resource revenues from specific locations where the Crown derived its resource revenues rather than simply treating the entire Superior Territory as a whole. But this approach is not the approach adopted by either of the plaintiffs in the respective actions and consequently not the manner in which the evidence was gathered or tendered to date. In order to succeed in their proposed claim and based on the judgment in Stage One, Batchewana will have to prove a boundary which includes their pre-1850 Aboriginal title lands.

[93] Batchewana further asserts that should there be no agreement on boundary by the end of Stage Three, Batchewana proposes to seek what can only be called a boundary determination at that time. However, the boundary issue will be addressed by both the Huron and Superior plaintiffs in Stage Three for the purpose of determining net crown revenues per territory. What Batchewana is proposing to do is to take one position on boundary as part of the Huron plaintiffs’ case and a different position on boundary as an intervener in the Superior action. But one First Nation cannot be permitted two different theories on the issue of boundary. Batchewana’s approach would appear to undermine the position of the Huron plaintiffs and the Huron plaintiffs’ position as representative of all of the First Nation signatories, including Batchewana, to the Huron Treaty.

[94] As I understand from the case management process, there have been some discussions on this boundary issue between the parties. Counsel has specifically asked the Court to allow time for the matter to be resolved through Anishnaabe law and protocols. In his affidavit, Chief Sayers from Batchewana says that “a proper and appropriate presence in both actions now entering Stage Three of trial will nurture that process”.

[95] There is a disconnect here. There is no need to further complicate an already complex and pandemic-delayed litigation in order to nurture an out of court process between and amongst these sophisticated and represented First Nation parties.

The Suggestion for a Stay

[96] Finally, Batchewana seeks to stay the very proceedings they are asking to be joined. It is difficult if not impossible to reconcile this request with an argument that they are a necessary party to the litigation and that it would be unjust to permit the adjudication of the Superior plaintiffs’ rights without also addressing Batchewana’s rights. Batchewana suggests that they would argue their issue after the completion of Stage Three if it remains unresolved. However, this approach cannot overcome the delay and prejudice which would ensue if they were permitted to raise their treaty interpretation issue in Stage Three. The plan for a stay and then having Batchewana prove its case does not achieve the goal of avoiding a multiplicity of proceedings. A stay would only put off for another day the prejudice and delay, and perhaps even compound it. Without a doubt, any further litigation on this issue after Stage Three would delay any distribution of a global award to the Superior Treaty beneficiaries. This is an enormous prejudice and undermines the Stage Three trial process.

Timeliness

[97] The matter of when and how Batchewana has raised this proposed claim is dealt with throughout the reasons set out above. Issues of timing and how the case was split into three phases was a matter of significant discussion and ultimately agreement within the case management process. It was agreed that Stage One would deal with treaty interpretation matters. Stage One was managed from 2015-2017, heard in 2017-2018 and a decision released in December 2018. It is simply too late now to bring up a new and controversial issue of treaty interpretation that could have been raised in Stage One. Batchewana has options available to it which have been identified. Their own desire to approach this issue through Anishinaabe protocols and laws is highly encouraged and is preferable to upending this litigation at this late stage.

Conclusion

[98] Batchewana’s proposed claim asserts that the true purpose of the Robinson Huron annuity augmentation promise was to share the Crown wealth from the ‘ceded territory’ as opposed to the Crown wealth from the ‘Treaty territory’. Their argument is defeated by the fact that Batchewana actively participated in Stage One in which they claimed that the purpose of the Huron Treaty annuity promise was to share the Crown wealth from the ‘Treaty territory’ and not the ceded territory. It is further defeated by the judgment of Stage One that there is a collective treaty right to have the annuity payment increased if net Crown resource-based revenues from the Treaty Territory permit the Crown to do so without incurring loss.

[99] Batchewana has other opportunities to raise and seek to resolve this issue with the other signatories to the Robinson Huron Treaty, with whom they are the plaintiffs in the Huron action.

[100] This issue of a new and different Treaty interpretation does not belong in the quantification stage and cannot be inserted either by joinder or intervention in Stage Three. Batchewana is not a necessary or proper party to the determination of the issues before the court in Stage Three of this action, i.e., a determination of net Crown revenues in the Superior Territory and compensation owed to the beneficiaries of the Superior Treaty for a claim of breach of the Superior treaty promise. Their position is untenable in law.

[101] Batchewana’s proposed intervention will not make any discernable contribution to the proceedings sufficient to counterbalance the significant disruption caused by the increase in the magnitude, timing, complexity, and costs of the action, whether within or following Stage Three: Halpern v. Toronto (City) Clerk (2000), 51 O.R. (3d) 742 (Div. Ct.), at para. 20; M. v. H. (1994), 20 O.R. (3d) 70 (Gen. Div.), at p. 77.

[102] The motion to be added as a necessary party or for leave to intervene is dismissed.

Costs

[103] Counsel should use their best efforts to come to an agreement on costs. If they are unable to do so, they may submit brief written submissions, any offers of settlement and Cost outlines to me as follows:

• The responding parties within 30 days
• Batchewana within 60 days and
• The responding parties in Reply within 75 days.

Footnotes

[1] The Huron action is often referred to as the Restoule action.

[2] Fort William First Nation, Gull Bay First Nation, and Michipicoten First Nation. Collectively, these First Nations are the “Group of 3”.

[3] Biigtigong Nishnaabeg First Nation (a.k.a. Begetikong Anishnabe First Nation or 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. Collectively, these First Nations are the “Group of 7”.

[4] Namaygoosisagagun Ojibway Nation (“Namaygoosisagagun”).

[5] Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 30; Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 28.

The Honourable Madam Justice Patricia C. Hennessy Released: April 14, 2022