COURT FILE NO.: CV-16-70862

DATE: 2026/03/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kitigan Zibi Anishinabeg and Jean-Guy Whiteduck, on their own behalf and on behalf of all other members of the Algonquin Anishinaabe Nation, Plaintiffs

-and-

Attorney General of Canada and National Capital Commission, Defendants

BEFORE: The Honourable Justice Flaherty

COUNSEL:
Eamon Murphy and Julian Riddell, counsel for the Plaintiffs

Zoe Oxaal, Kelly Keenan, and Amanda McGarry, counsel for the Defendants

HEARD: February 13, 2026

REASONS FOR DECISION

[1] This motion raises the following issue: are the plaintiffs required to bring a motion under r. 12.08 of the Rules of Procedure, R.R.O. 1990, Reg. 194 (“Rules”) to obtain the court’s authorization to continue this representative proceeding?

[2] The plaintiffs, Kitigan Zibi Anishinabeg and Jean-Guy Whiteduck, commenced this action on their own behalf and on behalf of all other members of the Algonquin Anishinaabe Nation (“AAN”). Among other things, they seek a declaration that the AAN has Aboriginal title to certain federally-held lands along the Ottawa River, within the meaning of s. 35(1) of the Constitution Act, 1982. These lands, referred to as the Kichi Sipi Claim, include Parliament Hill, the Supreme Court, LeBreton Flats, and portions of three islands in the Ottawa River.

[3] This motion is brought by the defendants. They submit that a r. 12.08 motion is mandatory under the Rules, including in matters involving s. 35 claims. Moreover, ongoing negotiations with the Algonquins of Ontario (“AOO”) and the AOO’s potentially overlapping land claim underscore the importance of addressing representation issues at the outset of this litigation.

[4] The plaintiffs submit that a r. 12.08 motion is not required in the circumstances of this case. They state that the AOO negotiations do not, in fact, overlap with the Kichi Sibi Claim. Requiring a representation motion in this Aboriginal title case would be inconsistent with the principles of reconciliation and access to justice. In any event, nothing further would be gained by a representation motion: all represented parties have received notice and none have objected to being represented. The plaintiffs’ alternative argument is that any representation issues in this case are best determined at the outset of the trial.

[5] For the reasons that follow, I find that the plaintiffs must bring a r. 12.08 motion before trial. The court’s authorization is required to bring this representative action.

OVERVIEW

[6] The statement of claim was filed in December 2016, but placed in abeyance until approximately 2023. The pleadings remain open, and the finalization of a discovery plan is on hold pending the resolution of this motion. The timetable agreed to by the parties contemplates the action being set down for trial before March of 2028.

The Claim

[7] The plaintiffs bring this action on behalf of the AAN, which is defined in the statement of claim as comprised of 11 Indian Act bands in Ontario and Quebec, including Kitigan Zibi Anishinabeg (located in Quebec) and Pikwakanagan (located in Ontario.)[^1]

[8] The plaintiffs last amended their statement of claim on February 10, 2025. It seeks the following relief:

[a] A declaration that the AAN has Aboriginal title to the Kichi Sibi Land Claim, within the meaning of s. 35(1) of the Constitution Act, 1982;

[b] A declaration that the Treaty of Swegatchy is a binding treaty of peace and friendship between Canada and the AAN, which requires Canada to protect the AAN’s Aboriginal title lands and hunting grounds, including the Kichi Sibi Land Claim;

[c] A declaration that Canada and the National Capital Commission (“NCC”) have infringed the AAN’s Aboriginal title and have not justified the infringements;

[d] A declaration that Canada has breached its duty to consult and accommodate the AAN’s Aboriginal title interests and has failed to uphold the honour of the Crown; and

[e] A declaration that Canada dishonourably breached certain Crown promises.

Negotiations

[9] Before filing the claim, Kitigan Zibi attempted to engage in negotiations with Canada over the Kichi Sibi Claim. In 1989, it submitted a comprehensive land claim to the federal government on behalf of Kitigan Zibi and four other AAN bands. In 1994, Kitigan Zibi submitted a second comprehensive claim, this time solely in its own name. Both claims included the Kichi Sibi Claim.

[10] The federal government did not accept either claim for negotiation, the reasons it provided were that: (a) the government’s policy was not to negotiate on an individual band basis; and (b) members of other Algonquin First Nations may have equally valid rights in the land claimed.

[11] In 1983, the Algonquins of Pikwakanagan submitted a petition on behalf of the Algonquin Nation to Canada and Ontario, claiming the lands of the Ottawa River watershed, including the Kichi Sibi Claim. Canada accepted Pikwakanagan’s claim for negotiation, and as of at least 2000, these negotiations expanded to include the Algonquins of Ontario (“AOO”). The AOO is comprised of one Indian Act band (Pikwakanagan) and nine non-Indian Act band communities.

[12] In 2016, Canada, Ontario, and the AOO reached a non-binding agreement in principle, which forms the basis for negotiating a final treaty. Among other things, the parties agreed that a final treaty would constitute a full and final settlement of Aboriginal title of the AOO in Canada (other than in Quebec). Through these negotiations, proposed settlement lands have been identified, although not finally agreed to by the AOO, Canada, and Ontario. Notably, the proposed settlement lands do not include the Kichi Sibi Claim.

[13] The parties to this action disagree about the status of the AOO negotiations. Canada’s chief negotiator affirmed that discussions are ongoing. Although the plaintiffs are not party to the AOO negotiations, they obtained information from websites and through an access to information request, which identifies challenges the AOO is experiencing with its governance, membership, and structure. The plaintiffs believe that Canada’s negotiations with the AOO have been on hold for two years.

[14] The parties disagree about other aspects of the AOO negotiations, including whether they are relevant to the need for a representation motion. For example, the defendants question whether Pikwakanagan’s interests are aligned with those of the rest of the group the plaintiffs seek to represent. They also raise concerns that the AOO includes nine non-Indian Act band communities who claim an interest in the Kichi Sibi Claim, but who are not part of the group the plaintiffs seek to represent.

[15] According to the plaintiffs, the exclusion of non-Indian Act communities has no bearing on a pre-trial motion or whether a representative action should proceed. The plaintiffs have also raised a number of concerns about the AOO negotiations. Kitigan Zibi and other communities of the AAN with reserves in Quebec are not included, although their territory includes land in Ontario. The plaintiffs also expressed concern about how the AOO has determined its membership, which includes groups the plaintiffs do not recognize as title-holding Algonquin Anishinaabe communities.

[16] As I discuss in more detail later in these reasons, these issues cannot and need not be resolved in the context of this pre-trial motion.

Notice

[17] In June 2024, Kitigan Zibi sent letters to the represented AAN communities (including Pikwakanagan), providing them with notice of the Kichi Sibi Claim and explaining that these communities are represented in the claim. Kitigan Zibi invited the AAN communities to provide them with band council resolutions authorizing the plaintiffs to bring this action and to include them in the represented group. Five of these ten communities provided band council resolutions. None of the other communities have objected to being represented by the plaintiffs in this proceeding.

[18] The AOO and Pikwakanagan have received copies of the plaintiffs’ amended claim. In response to correspondence from Canada, both the AOO and Pikwakanagan indicated they have no instructions regarding the representation issues in this action.

ANALYSIS

[19] Should the court direct the plaintiffs to bring a motion under r. 12.08 for an order authorizing this action as a representative action?

[20] Rule 12.08 states:

Where numerous persons are members of an unincorporated association or trade union and a proceeding under the [Class Proceedings Act, 1992] would be an unduly expensive or inconvenient means for determining their claims, one or more of them may be authorized by the court to bring a proceeding on behalf of or for the benefit of all.

[21] Broadly speaking, the purpose of r. 12.08 is to ensure that the plaintiffs are an appropriate collective to bring a representative action, in the sense that there are issues of law and fact common among the members of the collective, and that success of the claim would mean success for the whole collective. Rule 12.08 also ensures that the interests of the represented groups are adequately represented by the plaintiffs. This mechanism is important, as all members of the represented groups will be bound by the outcome of the proceeding, whether or not they participate in the litigation: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 40.

[22] While they disagree about the need for a r. 12.08 motion, the parties agree that the following criteria apply in determining whether the court should exercise its discretion and allow representative claims under s. 35 to proceed:

[a] is the collective of rights-bearers on behalf of whom the plaintiffs purport to act capable of clear definition?

[b] are there issues of law or fact common to all members of the collective so defined?

[c] would success on the petition mean success for the whole collective so defined?

[d] would the proposed representatives adequately represent the interests of the collective?

See Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276 at para. 8.

DISPOSITION

[55] For these reasons, the defendants’ motion is granted. The plaintiffs are directed to bring a motion pursuant to r. 12.08 to seek the court’s authorization to bring their action as a representative proceeding.

[56] No costs were sought and none are awarded.

[57] A case management conference has been scheduled for April 20, 2026, at 3 p.m. EST. The conference will proceed virtually. Counsel is encouraged to discuss a timetable for the r. 12.08 motion in advance of the conference.

Justice Flaherty

Date: March 5, 2026

COURT FILE NO.: CV-16-70862
DATE: 2026/03/05

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: Kitigan Zibi Anishinabeg and Jean-Guy Whiteduck, on their own behalf and on behalf of all other members of the Algonquin Anishinaabe Nation, Plaintiffs

-and-

Attorney General of Canada and National Capital Commission, Defendants

COUNSEL:
Eamon Murphy and Julian Riddell, counsel for the Plaintiffs

Zoe Oxaal, Kelly Keenan, and Amanda McGarry, counsel for the Defendants

REASONS FOR DECISION

Flaherty J.

Released: March 5, 2026

[^1]: The terms “band” appears in the Indian Act, R.S.C., 1985, c. I-5 to describe the elected governing body of a First Nation. This term is not the contemporary terminology. However, where these reasons reference the terms in the legislation, I use the terminology from the statute.