Atikameksheng Anishnawbek v. Canada, 2026 ONSC 3878
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ATIKAMEKSHENG ANISHNAWBEK, Plaintiff
– and –
THE ATTORNEY GENERAL OF CANADA and HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Defendants
– and –
DOKIS FIRST NATION, HENVEY INLET FIRST NATION, MISSISSAUGA FIRST NATION, SAGAMOK ANISHNAWBEK, TEME AUGAMA ANISHNABAI and TEME AUGAMA ANISHNABEK, WAHNAPITAE FIRST NATION, WHITEFISH RIVER FIRST NATION, WIIKWEMKOONG UNCEDED TERRIRORY, and ROBINSON HURON TREATY ANISHINAABEK, Proposed Intervenors
BEFORE: Justice E.M. Morgan
COUNSEL: Ryan Lake, Anjalika Rogers, and Geneviève Boulay, for the Plaintiff
Isabel Crew, Madeline Torrie, and Jamie Irwin, for the Defendant, Attorney General of Canada
Dona Salmon and Michael Saad, for the Defendant, HMK in Right of Ontario
Ben Mills and Jack Walsh, for Dokis First Nation
Adam Wheeler, for Henvey Inlet First Nation
Julian Riddell, for Mississauga Fist Nation
Stuart Wuttke, for Sagamok Anishnawbek
Katherine Brack and Melissa Rumbles, for Teme Augma Anishnabai and Teme Augama Anishnabek
Patrick M. Nadjiwan, for Wahnapitae First Nation
Stuart Wuttke, for Whitefish River First Nation
Graham S. Ragan and John J. Wilson, for Wiikwemkoong Unceded Territory
Donald E. Worme, KC, Daniel McCoy, and Mark Ebert, for the Robinson Huron Treaty Anishinaabek
HEARD: June 1-2, 2026
MOTION FOR INTERVENTION
I. Background
1Nine parties have applied to intervene in this action pursuant to Rule 13.01 of the Rules of Civil Procedure.
2In the Fresh As Amended Statement of Claim, the Plaintiff seeks an expansion of its current reserve lands and proposes a new interpretation of Item 6 of the Schedule to the Robinson Huron Treaty, a multilateral agreement concluded in 1850 between the British Crown and a number of First Nations represented by their leaders at the time (the “Treaty”). Item 6 describes the Plaintiff’s reserve with reference to its then leader, Chief Shawinakeshick:
6th. Shawinakeshick and his Band, a tract of land now occupied by them and contained between two rivers called White Fish River and Wanabitasebe, seven miles inland.
See Ontario (Attorney General) v. Restoule, 2024 SCC 27, at Appendix – Text of the Robinson Treaties.
3The Plaintiff claims that when and if it is properly interpreted, Item 6 established for the Plaintiff’s use and benefit a reservation that is approximately 2,883 square kilometres (the “Claimed Lands”). That is more than 20 times larger than the Plaintiff’s current reserve, which is 174 square kilometres.
4The Plaintiff has pleaded – both in the existing version of its pleading and in a newly proposed amended version – that it has an “entitlement” to the Claimed Lands beyond the boundaries of its current reserve. The Plaintiff further claims that it has not “ceded, released, surrendered or yielded its interest in” the Claimed Lands.
5The Plaintiff and the two tiers of government as Defendants are in the final stages of trial preparation. They have exchanged, or will shortly be exchanging, a number of expert reports. They have had a summary judgment motion containing an ample evidentiary record which considered the impact of a 19th century court ruling on the same treaty Item and reserve boundary claim: Atikameksheng Anishnawbek v. Canada, 2024 ONSC 4012. That decision directed the matter to go to a full trial. Nine witnesses for the Plaintiff – the Plaintiff’s elders – have already provided trial testimony in chief and have been cross-examined pursuant to Rule 36.01.
6The boundary issue at the heart of the claim – i.e. the interpretation and mapping of Item 6 of the Treaty’s Schedule of Reservations – was first adjudicated in 1889: Francis v. Attorney General of Ontario (1889), reported at [1980] 4 CNLR 5, 1889 CarswellOnt 21 (Ch Div). The present action revisiting the issue was commenced in 2008, dismissed for delay in 2021, and revived with a Fresh As Amended Statement of Claim in 2022. Although some rescheduling may be inevitable once there are intervening parties participating in the trial, it is imperative that any substantial delay at this point be avoided. The Plaintiff’s claim is already 18 years old by one count and/or 137 years old by another count.
7Nine parties have applied to intervene in the action. Eight of them are other First Nations who are neighbours of the Plaintiff’s and co-signers of the Treaty. The ninth applicant for intervention is the Robinson Huron Treaty Anishinaabek (“RHTA”), an unincorporated entity represented by Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, the plaintiffs in a separate action relating to the Treaty, Restoule v. Canada (Attorney General), 2021 ONCA 779 (“Restoule”). RHTA is comprised of First Nations rights-holders, but it is an advocacy and litigation funding collective and is not itself a claimant of any rights under the Treaty or otherwise.
II. The test for intervention
8To qualify as an Intervenor, an applicant must satisfy the basic criteria set out in Rule 13.01:
(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(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.
9Courts in Ontario have traditionally held that the criteria for permitting an Intervenor to participate in an action should not be interpreted with undue strictness: Trempe v. Reybroek (2002), 2002 CanLII 49410 (ON SC), 57 OR (3d) 786 (SCJ). In principle, the discretion to allow an Intervenor is a broad one, and is considered part of the Court’s power to control its own process: Finlayson v. GMAC Leaseco Ltd./GMAC Location ltée, 2007 CanLII 4317 (ON SC), [2007] O.J. No. 597 (SCJ). Accordingly, any identifiable and realistic interest in the subject matter of the action could suffice as a basis for a party’s intervention: Reference re Workers' Compensation Act, 1983 (Nfld.), 1989 CanLII 23 (SCC), [1989] 2 SCR 335, at 340.
10That said, in recent years a number of caveats have been expressed in order to keep the trial process on track. For example, in Feldberg v Andrews, 2021 ONSC 1099, at para 8, Justice Papageorgiou stated that intervention should not be permitted where it would render proceedings “unduly ponderous, onerous and unwieldy”. Applying this logic, Justice Cavanagh held in Brown v. Hanley, 2017 ONSC 7400, at paras 47, 54, that an interest in the outcome or precedential effect of a proceeding is not sufficient; rather, the proposed intervenor must have an interest in the actual dispute between the parties.
11As a general proposition, “an intervention is welcomed if the intervenor will provide the Court with fresh information or a fresh perspective on an important constitutional or public issue”: see Reference re Workers' Compensation Act, 1983 (Nfld.) (Application to intervene), 1989 CanLII 23 (SCC), [1989] 2 SCR 335, at 340, quoting Brian Crane, Practice and Advocacy in the Supreme Court (British Columbia Continuing Legal Education Seminar, 1983), at p. 1.1.05. It is now part of the test to consider not only whether the proposed Intervenor has a recognizable interest in the matter, but whether, as Justice Lax said in Fairview Donut Inc. v. TDL Group Corp., 2008 CanLII 60983 (ON SC), [2008] O.J. No. 4720, at paras. 5, 9-10, it would make a “useful addition or contribution to the resolution of the issues” or, contrarily, “serve to take the proceeding off into a tangent”.
12With this approach in mind, Justice Hennesy denied an application to intervene in Red Rock First Nation v. Canada (Attorney General), 2022 ONSC 2309, at para 39, a case whose factual context hits close to home. The party who brought the unsuccessful application claimed an interest in the action based solely on its status as a Huron Treaty beneficiary, and where it was not established that the proposed Intervenor would add any new perspective to the issues in the case. Moreover, the would-be Intervenor’s interest was related to, but distinct from, the subject matter of the trial, and the outcome of the trial would not actually determine any of the applicant’s rights.
III. The proposed Intervenors
13Each of the proposed Intervenors seeks full party Intervenor status in the upcoming trial. This includes the right to: 1) file materials and lead evidence, including fact evidence and expert evidence touching on issues raised by the Plaintiff; 2) cross-examine any witness called by any party; 3) make oral and written submissions; 4) seek costs as a party to the action.
14Although eight of the nine applicants bear similarities to each other, it is worth briefly reviewing each of their applications in turn.
a) Dokis First Nation
15Dokis First Nation (“Dokis”) is the successor in interest to Chief Michel Dokis and the Dokis Band which was a signatory to the Treaty. Dokis is identified in the treaty’s Schedule of Reservations as Item 9: “Ninth – Dokis and his Band, three miles square at Wanabeyakokaun, near Lake Nipissing and the island near the Fall of Okickandaw”.
16Dokis is an Aboriginal people within the meaning of section 35 of the Constitution Act, 1982. It is also a Band under the Indian Act, R.S.C., 1985, c. I-5 (as amended), and is situated on land that is recognized as a reserve under the Indian Act.
17The affidavit submitted by Chief Gerry Duquette describes the range of Dokis traditional territory and provides evidence of Dokis exercising its rights over and within the Claimed Lands, from before the signing of the Treaty until the present day. The rights exercised within these lands include hunting, fishing, trapping, harvesting and communal cultural activities. Counsel for Dokis submits that these activities are a present-day continuation of Dokis’ use and occupation of its traditional territory.
18The Claimed Lands include Dokis traditional territory – i.e. territory over which Dokis exercises its inherent jurisdiction and engages in hunting, fishing, trapping, harvesting, cultural and other traditional activities. Dokis submits that it may be adversely affected by the relief sought by the Plaintiff in respect to the Claimed Lands because the relief could have the effect of disposing, diluting or displacing Dokis’ inherent, Aboriginal and treaty rights in parts of Dokis traditional rights as well as its right to be consulted.
19Counsel for Dokis submits that Dokis intends to introduce evidence and advance arguments at trial in this action demonstrating that the Claimed Lands include Dokis traditional territory and that Dokis has inherent, Aboriginal, and treaty rights in and to Dokis traditional territory that could be negatively affected or otherwise limited by any finding of the Court in the upcoming trial. This potentially includes any finding with respect to the boundaries of the Plaintiff’s reserved land under the Treaty. It is Dokis’ submission that its evidence in this area would make a useful contribution to the determination of all matters raised in the action.
b) Teme Augama Anishnabai and Teme Augama Anishanabek
20These two groups have applied to intervene as one party. Teme Augama Anishnabai and Teme Augama Anishinabek (together, the “Teme Augama”) collectively hold and exercise rights protected under section 35 of the Constitution Act, 1982 in respect of territory in northeastern Ontario, including the area known as N’dakimenan. Teme Augama maintain they have never ceded or surrendered Aboriginal title and rights over N’dakimenan, whether through the Treaty or otherwise.
21Teme Augama Anishinabek is a Band within the meaning of the Indian Act. It holds reserve lands located at Bear Island on Lake Temagami. In 1884, reserve lands were selected for the Teme Augama at Austin Bay on the shores of Lake Temagami. But these lands were never set aside as a reserve. Today’s Bear Island reserve was not officially set aside for the Teme Augama until 1971.
22In Ontario (Attorney General) v. Bear Island Foundation, 1991 CanLII 75 (SCC), [1991] 2 SCR 570, the Supreme Court of Canada held that Teme Augama had adhered to and deemed them to be beneficiaries of the Treaty. It further held that the Crown breached its fiduciary obligations by failing to fulfil treaty obligations owed to Teme Augama, including the payment of annuities and the provision of reserve lands.
23Following that, in 1997 Teme Augama Anishinabek filed a claim in 1997 against Canada in Federal Court and Teme-Augama filed a claim against Ontario in this Court. Those claims allege that the Crown breached its treaty and fiduciary obligations to Teme Augama to the Treaty, and seek to clarify the legal relationship of Teme Augama with the Crown. Furthermore, in 2008 Teme Augama Anishinabek submitted a claim to the Specific Claims Tribunal in respect of the Crown’s outstanding treaty and fiduciary obligations to Teme Augama. That claim alleges that the Crown failed to set aside the lands at Austin Bay as reserve lands as promised under the Treaty, and also claims that the lands set aside as the Bear Island Reserve in 1971 are inadequate to fulfil the Crown’s reserve obligations under Treaty.
24Counsel for Teme Augama submit that the determination of the Plaintiff’s boundary claim will have implications for the interpretation and implementation of the Treaty as well as for the Crown’s reserve obligations under the Treaty and the entitlement to benefits arising from the use and development of lands within the Treaty territory. As such, it is Teme-Augama’s position that they have a direct interest in, and may be adversely affected by, the determination of the Plaintiff’s claim.
25Teme Augama submit that in light of the Bear Island decision and the Treaty terms, they hold rights – including rights within the meaning of section 35 of the Constitution Act, 1982 – and rights that apply to the entire Treaty territory. This includes rights related to lands and waters which are the subject of the Plaintiff’s claim. The determination of the issues in the claim may therefore directly affect Teme-Augama’s ability to exercise their constitutionally protected harvesting rights by effectively removing portions of the Claimed Lands from the overall Treaty territory.
26Needless to say, the Treaty, including all of the reserve lands and Treaty territory, covers a finite quantity of land. As several of the counsel have pointed out during the course of these motions, the Treaty presents land as a zero-sum game. That is, whatever is determined to belong solely to one signing party is not available as of right to any other signing party.
27Teme Augama seek an Order allowing them to fully participate as a party in the trial. This includes submitting both fact evidence and expert opinion on their own history and land use and needs, as well as cross-examining other parties’ witnesses and making final submissions on all points of relevance to them.
c) Henvey Inlet First Nation
28Henvey Inlet First Nation (“HIFN”) is an Aboriginal people under section 35 of the Constitution Act, 1982 and a Band for the purposes of the Indian Act. It is the successor in title and interests to Chief Wagamake and his Band who were signatories to the Treaty. HIFN’s territory includes French River Reserve #13, which lies immediately to the west of the Plaintiff’s reserve, and Henvey Inlet Reserve No. 2 located on Henvey Inlet. Chief M. Wayne McQuabbie has deposed that these reserves are in the vicinity of two villages occupied by Wagamake's people at the time of the Treaty.
29HIFN has already commissioned a research report by Dr. Nathan Smith, a historian and consultant on 19th century indigenous history, investigating the historical occupation and use of its traditional territory. In Dr. Smith’s report he describes the boundaries of HIFN’s traditional territory, including lands that were exclusively occupied by Wagamake and his Band, together with surrounding lands shared by a number of peoples and used for hunting, fishing, trapping, and gathering in accordance with traditional protocols. Counsel for Henvey HIFN also describes oral history that they propose submitting that apparently accords with this expert report.
30The Claimed Lands at issued in this action includes territory that form part of what HIFN asserts is the traditional territory of Wagamake’s Band’s in the 19th century and thus of HIFN as its present-day successor. Chief McQuabbie’s affidavit outlines the possible impacts of the Plaintiff’s claim on Henvey Inlet’s interests, its members use and occupancy of lands within the Claimed Lands, and its members exercise of Aboriginal and Treaty rights within the area of the Claimed Lands. Chief McQuabbie lists these concerns as follows:
a) interference with Henvey Inlet First Nation’s existing and future interests in its traditional territory;
b) frustration of the exercise by Henvey Inlet First Nation members of their constitutionally protected Aboriginal and treaty rights within its traditional territory;
c) harm to Henvey Inlet First Nation’s claims in current and pending legal proceedings, including claims and proceedings related to its traditional territory, Treaty implementation, and Crown misconduct; and
d) the potential that this Court may find it necessary to interpret the text of the Treaty based on evidence introduced by the parties without the participation of Henvey Inlet First Nation, which findings may directly affect Henvey Inlet First Nation’s rights, benefits, and obligations as a signatory to the Treaty.
31Counsel for HIFN seek an Order permitting them to file materials and lead evidence at the trial of this action, including by calling lay or expert witnesses in response to the issues raised by the Plaintiff, to cross-examine any witnesses called by any party, to make oral and written submissions, and to seek costs on behalf of their client.
d) Mississauga First Nation
32Mississauga First Nation (“MFN”) is an Anishinaabe First Nation and an Aboriginal people within the meaning of s. 35(1) of the Constitution Act, 1982. MFN’s present-day reserve is located at the mouth of the Mississagi River, along the north shore of Lake Huron. The MFN reserve borders on the Plaintiff’s reserve; it is the neighbour to the east of the Plaintiff’s current reserve lands. Like the Plaintiff, it is a party to the Treaty.
33As described by MFN’s current leader, Chief Brent Niganobe, the Claimed Lands encompass lands MFN historically occupied and used for harvesting activities such as hunting and blueberry picking. Chief Niganobe goes on to depose that blueberries, in particular, are an important traditional food for MFN and are sacred to it, making the entire area of the Claimed Lands of great significance. Chief Niganobe deposes that MFN continues to maintain a connection to the Claimed Lands and to exercise stewardship responsibilities over its lands and waters in accordance with Anishinaabeg law. MFN also asserts that it possesses constitutionally protected Aboriginal rights throughout the Claimed Lands.
34Counsel for MFN submit that if the relief that the Plaintiff seeks is granted, it would have a serious adverse impact on MFN’s inherent, constitutionally-protected rights in that it could preclude MFN and its members from exercising those rights on the Claimed Lands without first having to obtain the Plaintiff’s consent. While the Plaintiff asserts that there is no reason to think that MFN will be denied the Plaintiff’s consent to harvesting on its land, MFN states that is not an answer to its assertion of exclusivity and the consequent dependence of MFN on the Plaintiff’s exercise of discretion in granting or denying access.
35Further, the harvesting activities described by Chief Niganobe take place within what are supposed to be Treaty territory shared by all of the First Nation parties to the Treaty, and in which MFN and the other signatories enjoy Treaty rights. If the Plaintiff were successful in establishing that its own reserve lands encompass all of what it claims, it will have obtained possession and exclusive control over what MFN considers to be shared land.
36Counsel for MFN submit that “the court’s focus should be on determining whether the contribution that might be made by the Intervenors is sufficient to counterbalance the disruption caused by the increase in the magnitude, timing, complexity and costs of the original action”: Halpern v. Toronto (City) Clerk, 2000 CanLII 29029, at para 20 (Div Ct). It is MFN’s view that it has a unique perspective to bring to the proceedings, and will provide a useful and counterbalancing contribution to the court’s determination of the issues at hand through its advancement of evidence regarding the nature and importance of MFN’s historic and present-day use and occupation of the Claimed Lands. MFN also proposes exploring the nature of the Claimed Lands as shared Treaty territory among all of the Anishinaabe of Lake Huron lands.
37MFN seeks to adduce evidence of its own historic use and occupation of the Claimed Lands, and to make legal argument about those lands and the Treaty more generally. It has indicated in its motion materials a commitment to fashioning its contribution to the trial in collaboration with other parties and Intervenors in an effort to avoid duplication of evidence and argument to the extent possible.
e) Wahnapitae First Nation
38Like most of the other parties moving to intervene in this matter, Wahnapitae First Nation (“WFN”) is a Band within the meaning of the Indian Act and an Aboriginal people within the meaning of s. 35 of the Constitution Act, 1982. WFN’s currently recognized reserve is located on the north shore of Lake Wahnapitae. Chief Larry Roque has deposed that the traditional territories claimed by WFN are located in the watershed of Lake Wahnapitei, including the Wahnapitae River.
39Chief Tagawinini signed the Treaty on behalf of WFN. Item 11 of the reservations from the lands ceded to the Crown in the Treaty provides:
Eleventh – Tagawinini and his Band, two miles square at Wanabitibing, a place about forty miles inland, near Lake Nipissing.
40Collectively and individually, the members of WFN claim that certain Aboriginal and Treaty rights that are protected by s. 35 of the Constitution Act, 1982 may be adversely affected by the Plaintiff’s claim. These include: a) the Treaty right to harvest wildlife within their traditional territory; b) site-specific Aboriginal rights within their traditional territories; and, c) the right to negotiate with the Crown for lands within their traditional territories to fulfill any unmet Treaty reservation entitlements.
41It is WFN’s position that the Plaintiff’s expansive claim under Item 6 of the Treaty substantially overlaps with WFN’s own traditional territories in which it exercises these rights. By way of example, the Treaty sets out the following harvesting rights asserted by WFN:
[T]he full and free privilege to hunt over the Territory now ceded by them, and to fish in the waters thereof, as they have heretofore been in the habit of doing; saving and excepting such portions of the said Territory as may from time to time be sold or leased to individuals or companies of individuals, and occupied by them with the consent of the Provincial Government.
42According to Chief Roque, WFN claims that the lands where they had been in the habit of hunting and fishing included all of their traditional territories. As such, WFN submits that the court cannot consider the Plaintiff’s rights in the Clamed Lands without full participation of WFN as a direct interest holder in the matter.
43Furthermore, WFN has filed a specific claim with the federal and Ontario Crowns based on the view that where the Treaty says “miles”, the First Nations parties understood it to mean the French “league”. The basis of this claim is that due to the historic relations between the First Nations and the French, and because the interpreters at the Treaty negotiation were French, the units of measure common to French maps applied. This claim has been supported by ample historical documentation. It is now settled with the federal Crown and is currently under negotiation with the Crown in Right of Ontario.
44In the Fresh As Amended Statement of Claim, the Plaintiff appears to interpret the phrase “7 miles inland” as used in Item 6 to refer to miles rather than to leagues. Again, WFN submit that a court cannot fairly adjudicate these disputed measurements without input from WFN. No other party – certainly neither the federal government nor the province – is in a position to provide an adversarial counterweight to the Plaintiff’s position. It will make a substantial difference to WFN if Item 6 places the outside boundary of the Plaintiff’s reserve lands 7 miles inland rather than 7 leagues inland.
45Accordingly, WFN has both a geographic interest in the question of the Plaintiff’s reserve size, as well as an interpretive interest in whether, in the circumstances of the Treaty, “miles” means “leagues”. Both have the potential to impact in a consequential way on WFN, and both appear to require WFN’s participation if due process is to be served. As their counsel bluntly state it in their factum: “The case as pleaded, if successful for the Plaintiff, will resolve the dispute between the Plaintiff and the Wahnapitae First Nation, diminish [WFN’s] Treaty and Aboriginal rights, remove lands from potential settlement, and resolve a significant legal issue relating to the use of miles as a unit of measure in the Treaty, all of which could adversely affect [WFN].”
46Counsel for WFN concedes that granting party status to WFN will necessarily case some delay and some additional costs. After all, to make its point WFN will have to adduce expert historical evidence, perhaps revisiting some of the evidence it compiled for its other litigation both in the courts and in the Special Claims process. However, it argues that the delay and cost are not undue, and that WFN’s interests must be properly represented. WFN submits that this case is part of the larger national project of reconciliation, which is a necessary and inclusive process for all interest holders.
f) Wiikwemkoong unceded territory
47Wiikwemkoong is an Anishinaabe First Nation and a Band within the meaning of the Indian Act. Its members are Aboriginal peoples and rights holders under section 35 of the Constitution Act, 1982.
48Chief Duker Peltier has deposed that Wiikwemkoong is an amalgamation of three Anishinaabe communities: the Manitoulin Island Band, the Point Grondin Band, and the South Bay Band. Those three communities held referendums on the same day in 1968 and, as a result, formed the Wiikwemkoong Indian Reserve. Chief Peltier further relates that, as an amalgamated entity, Wiikwemkoong oversees the interest in the Wikwemikong Unceded Reserve and Point Grondine reserve lands. In cross-examination, he explained that these lands were reserved for the Point Grondin Band, to which Wiikwemkoong is the successor in interest. Item 3 of the reservations to the Treaty states:
3rd. Kitcheposkissegun (by Papasainse), from Point Grondine, westward, six miles inland by two miles in front, so as to include the small Lake Nessinassung (a tract for themselves and their Bands).
49In 1998, Wiikwemkoong commenced an action against Canada and Ontario in which it claimed Aboriginal title to over 23,000 islands, including Manitoulin Island, located along the northern and eastern shores of the Georgian Bay. The parties ultimately agreed on a proposed settlement which, among other things, is to transfer to Wiikwemkoong a parcel consisting of approximately 1,041 acres of land in the Altee Township along Highway 637 and adjacent to one of Wiikwemkoong’s reserves, the Point Grondine 3 reserve. This parcel is known as the Wolf Creek Block. As Chief Peltier explains it, this land was selected as part of the government’s Additions to Reserve Policy, in keeping with the principle that the lands must be adjacent and continuous to existing reserve lands held by Wiikwemkoong.
50The Wolf Creek Block lies entirely within the Plaintiff’s Claimed Lands as identified in the Fresh As Amended Statement of Claim. Counsel for Wiikwemkoong submit that given the Plaintiff’s claim to exclusive title and/or an order for possession of lands forming part of the Wiikwemkoong’s proposed settlement lands, Wiikwemkoong has a genuine, direct, and substantial interest in this matter, warranting its participation as an Intervenor.
51Counsel for Wiikwemkoong further submit that a boundary determination as sought by the Plaintiff could risk undermining lengthy and now concluded negotiations with Canada and Ontario aimed at resolving portions of Wiikwemkoong’s claim, and that this potential impact of the Plaintiff’s claim makes it necessary for the Court to hear Wiikwemkoong’s evidence and arguments at the trial of this action. They further point out that Wiikwemkoong will make useful contributions that no other party is positioned to advance. Specifically, it is Wiikwemkoong’s view that its participation will assist the Court in regard to the nature of its distinct and current interest in the Wolf Creek Block, including the historic and policy basis for that interest.
g) Whitefish River First Nation
52Like all but one of the other proposed Intervenors, Whitefish River First Nation (“WRFN”) is an Aboriginal people under section 35 of the Constitution Act, 1982, a Band for the purposes of the Indian Act, and a party to the Treaty. Its location is on the shores of Georgian Bay and the North Shore Channel, just southwest of the Plaintiff. Esther Osche, a councillor of the WRFN, deposes that the present-day location is within the WRFN’s traditional territory.
53As legal counsel for WRFN explain it, under the Treaty a specific tract of each First Nation party’s traditional territory was reserved for its exclusive use and occupation; the remainder of the Treaty territory was to be shared by all of the signatories with the Crown. WRFN submits, and the Supreme Court has stated, that this sharing of the Treaty territory was part of the Crown’s “ongoing relationship with the Anishinaabe based on the values of respect, responsibility, reciprocity and renewal”: Ontario (Attorney General) v. Restoule, 2024 SCC 27, at paras. 175-6, 197.
54Along with the sharing of the Treaty territory, the Crown promised to survey each First Nations’ reserve Lands and guaranteed that their hunting and harvesting rights in their respective traditional territories would be preserved. In addition, the Treaty provided that the First Nations parties thereto would collectively be paid an annuity which would be augmented from time to time based on the wealth produced from the entire treaty territory: Ibid., at para. 42. As such, each First Nation that is a party to the Treaty has unique and exclusive rights in their reserve lands, collective rights to hunt, harvest, fish and gather foods and medicines throughout the treaty territory, and to share in the augmented annuity.
55WRFN submits that the Claimed Lands as identified in the Plaintiff’s pleading are currently part of the treaty territory within which WRFN has collective Treaty rights including harvesting, hunting, fishing, and gathering traditional foods and medicines, as well as a right as a signatory to share in the wealth generated from those lands through an augmented annuity. Councillor Osche relates that WRFN’s research into its land and resource use throughout the Treaty territory identifies multiple locations within the Claimed Lands where its citizens carryout traditional harvesting practices and cultivation. As a party Intervenor, WRFN proposes to adduce evidence of this history and these practices at trial.
56Furthermore, counsel for WRFN submit that a finding with respect to the measurement of the Plaintiff’s reserve lands will have an impact on how WRFN’s own reserve lands are measured. WRFN currently has its own outstanding claim against the Crown regarding reserve lands that it contends were not included or managed in accordance with the Crown’s fiduciary duties and obligations under the Treaty. WRFN’s reserve lands form Item 4 under the Treaty, described as:
4th. Wabakekik, three miles front, near Shebawenaning, by five miles inland, for himself and Band.
57Like some of the other proposed Intervenors, WRFN argues that at the time of the Treaty, the reference to “miles” was understood by the First Nations parties to mean French “leagues”, which would make the distance roughly 2.5 to 3.0 times longer. Councillor Osche contends that, according to these measurements, WRFN’s reserve lands under the Treaty were intended to be nine miles frontage by fifteen miles inland. As a result, WRFN’s claimed reserve lands overlap and conflict with the Plaintiff’s Claimed Lands.
58As WRFN’s counsel explain it in their factum, if the Plaintiff’s claim were granted, WRFN’s interests could be reduced or effectively be extinguished. More specifically, its claim for a larger reserve land could be defeated, its ability to exercise its traditional rights in the treaty territory could be reduced, and its share of the augmented annuity could be reduced.
59In view of these interests, WRFN seeks party Intervenor status in the upcoming trial, with a right to have access to the complete evidentiary record, to adduce evidence, to examine and cross-examine witnesses, make oral and written submissions, and to serve a factum and book of authorities.
h) Sagamok Anishnawbek
60Sagamok Anishnawbek (“Sagamok”) is an Anishinaabe First Nation. It is a Band within the meaning of the Indian Act and an Aboriginal people within the meaning of section 35 of the Constitution Act, 1982. It occupies a reserve situated on a peninsula between the north shore of Lake Huron and the southern shore of the Spanish River, which is within its traditional territory.
61Sagamok is also a party to the Treaty, which was signed by its leaders at the time, Chiefs Namassin and Naoquagabo. Item 5 of the Treaty’s list of reservations provides:
5th. Namassin and Naoquagabo and their Bands, a tract of land commencing near La Cloche, at the Hudson Bay Company’s boundary; thence westerly to the mouth of Spanish River; then four miles up the south bank of said river and across to the place of beginning.
62As explained earlier in these reasons, each of the First Nation signatories to the Treaty reserved a tract of land from their traditional territory for their exclusive use and possession; and they also each agreed to share the remaining treaty territory with the Crown based on the values of respect, responsibility, reciprocity, and renewal: Restoule, at para. 18. For its part, the Crown guaranteed the ongoing receipt of a collective annual annuity payment based on the wealth derived from the entire treaty Territory. It also assured the First Nations parties the continued exercise of harvesting rights and other traditional uses and rights in their respective traditional territories and throughout the shared treaty territory. Thus, each of the First Nations parties to the Treaty have unique rights in their reserve lands and collective rights in the treaty territory.
63Chief Angus Toulouse has deposed that Sagamok’s research into their historic land use will demonstrate that they have used lands within the Plaintiff’s Claimed Lands as a gathering place and for traditional harvesting practices, including berries, medicine plants and animals. Counsel for Sagamok submit that these practices represent constitutionally protected Aboriginal and Treaty rights, and that the prospect of their diminishment due to the Plaintiff’s claim gives Sagamok a direct interest in the upcoming trial and in this action.
64Chief Toulouse has also attested to the fact that the Claimed Lands overlap in some areas with Sagamok’s “Area of Concern for Heightened Consultation”- i.e. an area of land where conduct or decisions made by governments and others may adversely affect Sagamok and their interests. Sagamok’s counsel explain that this includes environmental and human impacts relating to citizens’ health, safety, Aboriginal and Treaty rights. It also includes impacts on Sagamok’s non-human relations such as the land, water, air, plants and animals for which Sagamok is obliged to care under Anishinaabe law.
65Sagamok also shares with other proposed Intervenors a concern about the augmented annuity promised to the First Nations parties under the Treaty. As already explained, the Treaty calls for sharing the wealth produced by the Treaty territory in the form of a collective annuity. The Treaty terms provide that the annuity increases are tied to the economic productivity of the surrendered lands, which represents a significant collective economic benefit to all of the First Nations parties. Any substantial reduction in land considered part of the Treaty territory will inevitably impact negatively on the calculation of wealth derived from the Treaty territory which makes up the basis of Treaty annuity payments.
66In addition to all of that, Sagamok also has outstanding claims relating to deficiencies in its own current reserve boundaries. One of those claims has been filed at the Specific Claims Tribunal as Sagamok Anishnawbek First Nation v. Canada, SCT file no. SCT-3001-22. That claim relates to the failure to include in Sagamok’s reserve land a 10-square-mile parcel of land known as the “La Cloche Tract”. As with the Plaintiff’s reserve land, after the Treaty was concluded, the Crown was obligated to survey lands reserved for Sagamok as described in Item 5 of the Treaty’s reservations. Sagamok has submitted that Canada excluded the La Cloche Tract from the 1852 survey, thereby breaching its Treaty obligations.
67Sagamok’s counsel contend that this Court’s resolution of the Plaintiff’s claim in respect of the delayed and allegedly erroneous survey of the Plaintiff’s reserve lands will impact on Sagamok’s claim in a direct way. That is, it has the potential to “show an adverse impact…’in a greater way than any member of the general public’”: McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972, at para. 21 (ON CA), quoting John Doe v. Ontario (Information and Privacy Commissioner) (1991), 87 DLR (4th) (Div. Ct.). In Sagamok’s view, this special interest in the outcome of the present action provides grounds for the Court to exercise its discretion in its favour in permitting it to participate as a party Intervenor in the trial and the ongoing action: see Reference re Workers' Compensation Act, supra, at 339-340.
i) Robinson Huron Treaty Anishinaabek
68The Robinson Huron Treaty Anishinaabek, as represented by Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers, and Roger Daybutch (“RHTA”), has, like the other proposed Intervenors, applied to be a party Intervenor with the right to fully participate in presenting evidence, examining and cross-examining witnesses, and making written and oral argument at the upcoming trial of this action.
69Unlike the other proposed Intervenors, the RHTA is not itself a First Nation. It is likewise not a rights holder under section 35 of the Constitution Act, 1982, nor is it a Band for the purposes of the Indian Act. Further, it is not a party to the Treaty. Its members are all of those things, but the RHTA itself is an unincorporated entity that serves as a litigation support/funding association and trust for its membership.
70Counsel for the RHTA describe this organization and its origins in their factum, as follows [footnotes omitted]:
The RHT Anishinaabek established a trust under Canadian law under the name Robinson Huron Treaty Litigation Fund (the “RHTLF”), as a vehicle to pursue the Restoule Action. Within the Anishinaabe system of law and governance, the RHT Anishinaabek serves as a contemporary Regional Council Fire comprised of the 21 common Council Fires and the successor to the RHT Anishinaabek that entered into the Treaty with the British Crown in 1850, through its Commissioner William Benjamin Robinson.
A key decision of the RHT Anishinaabek was to initiate the Restoule Action to address the Crown’s breach of the Treaty’s augmentation promise. The RHT Anishinaabek agreed to pursue the claim through a representative action and six (6) citizens were selected as representative plaintiffs to represent the collective. A Representation Order under Rule 12.08 of the Rules of Civil Procedure was issued on May 3, 2016, authorizing the Representative Plaintiffs to advance the collective positions of the RHT Anishinaabek on shared rights and interests, including on Treaty interpretation and the manner in which Treaty commitments are understood, and how the Treaty relationship is framed and maintained through Indigenous legal principles and responsibilities.
71The trust deed establishing the RHTA makes it clear that the aim of the trust is to support not just any litigation, but specifically the annuities litigation that resulted in the Supreme Court’s Restoule decision of July 26, 2024. The participants in the trust, and the impetus for the trust’s formation, are described in the first sentence of the preamble:
WHEREAS the Lake Huron First Nations, who are the Settlors of the Trust, are signatories to, or have members who receive or are entitled to receive annuities under, the Robinson Huron Treaty of 1850;
72The list of First Nations creating the trust includes the Plaintiff (under its former name, Whitefish Lake First Nation) as well as the other proposed Intervenors bringing the present set of motions. It also includes several First Nations that have not applied to intervene in this action.
73The purposes of the trust are set out explicitly in the body of the trust deed. These purposes appear entirely devoted to the annuities litigation – i.e. to the Restoule case. The essential work of the trust is contained in the “Constitution and Name” provisions that follow immediately after the definitions of the trust deed’s terminology. Those provisions state:
This Trust is created and constituted once a minimum of thirteen (13) Lake Huron First Nations become party to and Settlors of this Trust. The name of the Trust shall be ‘Robinson Huron Treaty Litigation Fund’ (the ‘Fund’).
3.1 Purposes
The purposes of the Robinson Huron Treaty Litigation Fund hereby constituted are as follows:
a) To undertake and pursue litigation and/or negotiations related to the Annuities Claim on behalf of the Settlors of the Trust and/or their members who receive or are entitled to receive annuities under the Robinson Huron Treaty of 1850, as well as others who receive or are entitled to receive annuities under the said Treaty;
b) To serve as an effective and stable entity for the ongoing cooperation of the Settlors of the Trust, made-up of a consistent body of individuals, the Trustees, who are informed and aware of the historical and legal complexities involved in the Annuities Claim, such that they are able to make fully informed and strategically effective decisions with regard to the litigation/negotiation in the best interests of the Fund purposes and the Beneficiaries;
c) To act as a vehicle to receive monies from the Settlors of the Trust and other sources to fully and effectively carry-out the litigation related to the Annuities Claim;
d) To retain, pay and provide ongoing instructions to legal counsel;
e) To ensure that there shall always be an ongoing liaison between the Trustees and the Settlors of the Trust with regard to the conduct of the litigation;
f) To ensure timely, appropriate, and ongoing communications with the Beneficiaries with regard to the litigation;
g) To develop for the approval of the Settlors of the Trust, a Compensation Disbursement Agreement for the distribution of any compensation/settlement proceeds;
h) To serve as a vehicle for the receipt of any compensation/settlement proceeds and for the distribution of said proceeds, in accordance with a Compensation Disbursement Agreement; and
i) To pay any cost awards made by the court if the litigation is unsuccessful.
74To be clear, the purposes listed in article 3.1 of the trust deed are the only purposes specified for the trust. Although the RHTA has presented itself here as embracing a broader set of concerns and advocacy goals, it is constituted in its formative deed as no more, and no less, than a trust, or Fund, established for the above-mentioned purposes.
75As counsel for the RHTA point out in their factum, the RHTA’s involvement in the Restoule action commenced with a required formal step: “[a] Representation Order under Rule 12.08 of the Rules of Civil Procedure was issued on May 3, 2016, authorizing the Representative Plaintiffs to advance the collective positions of the RHT Anishinaabek…”
76That Order, signed by Justice Hennessy – the trial judge in Restoule – contains the style of cause of Restoule et al. v. Attorney General of Canada et al., and is under the Court file number of the Restoule case: C-3512-14. In its operative section, it provides:
Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers, and Roger Daybutch are hereby authorized to bring the within proceeding on their own behalf and on behalf of all members of the Ojibwa (Anishinabe) Nation who are beneficiaries of the Robinson Huron Treaty of 1850, excepting the members of the Temagami First Nation;
77That representation Order was necessary in order to bring the Restoule action, since the RHTA – i.e. the trust or the Fund – is not a juridical person; it is an unincorporated entity with no inherent right or authority to commence or engage in litigation. “[A]n unincorporated association, which has no legal status apart from its individual members cannot sue or be sued as an entity absent legislation providing otherwise”: Ontario Health Coalition and Advocacy Centre for the Elderly v. Ontario, 2025 ONSC 415, at para. 33.
78As Plaintiff’s counsel point out, no similar representation Order under Rule 12.08 has been sought by the RHTA for its motion to intervene here, and none has been issued by the Court. This Court has recently held in Anishinabeg v. Attorney General of Canada, 2026 ONSC 1139, at para. 40, citing Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276, at paras. 17-18, that while claims by First Nations require a “functional, purposeful, flexible and generous approach”, that flexibility “appl[ies] to the substantive resolution of claims to Aboriginal rights and title, not to the preliminary issue of who has the legal capacity to advance the claim.” The question of a litigant’s status to engage in litigation is subject to the generally applicable formal requirements under the Rules of Civil Procedure.
79This is not just a formalistic or technical/procedural requirement. The purpose of a representation Order is to ensure that the persons bring the claim “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”: Anishinabeg, at para. 21. This principle applies to an intervention as well as to the issuing of a claim. The point of principle is to ensure that the litigant purporting to represent a collective really does represent that collective.
80Accordingly, an authorization to enter a judicial proceeding cannot be implicit in the formation of a trust or other such arrangement. Rather, members of the trust must specifically authorize any involvement in litigation since the litigants are the collective membership, not the unincorporated body: Kelly v. Canada (Attorney General), 2013 ONSC 1220, at para. 46, aff’d 2014 ONCA 92.
81This need to ensure that the intervention represents the will of the collective is reflected in the RHTA trust deed itself. Article V of the deed sets out the decision-making process for the collective members:
5.2 Decision Making
The Trustees shall make all reasonable efforts to reach a consensus with respect to all matters. Where there is a difference of opinion, in pursuing consensus, the Trustees may decide by a 50% vote of the Trustees present in the meeting where the matter is being considered, to ask the Chiefs in Assembly to designate an Elder or Elders from within the Lake Huron region to assist the Trustees in conceiving consensus. Once an Elder is designated, the Trustees shall assemble at the direction of the Elder, at a location named by the Elder and engage in deliberations and activities directed by the Elder with a view to achieving a consensus.
Should any difference of opinion remain after such efforts, in relation to the commission or omission of any actor the exercise of any discretion or otherwise howsoever in the execution of the provisions of this Indenture, then, the Trustees may convene a meeting and decide the matter by a show of hands and a 70% majority of the Trustees present will carry the vote.
82As counsel for the RHTA state, decisions for the collective members of the trust are made by Council Fire. In the cross-examination of Chief Adam Pawis of the Shawanaga First Nation, testifying on behalf of the RHTA, confirmed that a Council Fire is “a formal gathering of the leadership and representatives of the 21 Lake Huron First Nations to deliberate, speak, listen and arrive at shared understandings on matters of common concern.”
83It is apparent from the record before me that no proper Council Fire or meeting of the trustees was ever held with respect to the decision to apply to intervene in the present case. The affidavit of the Plaintiff’s Chief Gimaa Nootchtai attests to the fact that the decision to intervene was for the collective a “significant issue” that was referred to a meeting of all trustees, but that the Plaintiff’s representatives and leadership were excluded from the meeting. In cross-examination, Chief Pawis conceded that the consensus procedure described in article 5.2 of the trust deed was not followed in reaching this decision. As he put it, “the individuals that were in conflict didn’t express the need to use an Elder.”
84The essence of the trust’s consensus-based decision-making, the significance of the Council Fire, and the rationale for a representative order under the Rules of Civil Procedure, are all the same: to ensure that a representative party in a court proceeding really is representative of the interests that it purports to serve. Nothing in any of those processes authorizes an unincorporated body to engage in litigation and to take a position against a dissenting member who was excluded from what purports to have been the collective’s authorization process.
85The process described by the RHTA in making the decision to apply to intervene here does not measure up to this principle. Indeed, in papering over dissent, that process could be seen as reflecting the opposite of the consensus-based common interest that the trust deed and the principles of representative litigation require: see Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 22.
86Counsel for RHTA submit in their factum that their client opposes the Plaintiff’s claim for a re-drawing of its reserve boundaries because that could impede negotiations being carried on by the trustees on behalf of the trust’s beneficiaries. That may or may not turn out to be the case. But the spectre of that difficulty is more a reflection of the Treaty than a product of the Plaintiff’s claim. As counsel for the RHTA put it in paragraph 20 of their factum, and as the other proposed Intervenors have tacitly described it, the Treaty’s structure itself has prompted claims by the signing parties that are, by their nature, “competing, zero-sum boundary or status contests among beneficiaries.”
87In short, the RHTA trustees and their representatives could steer the litigation where, as in Restoule, the collective interests of the beneficiaries were pitted against the Crown. But the trustees step outside of the role for which the trust was constituted if they and their representatives engage in litigation and take sides in a contest in which one beneficiary’s gain will be another’s loss. The whole of the First Nations parties to the Treaty, as the RHTA would describe itself, is not greater than the sum of its parts.
88The RHTA is a coordinating, funding, and working group that serves a particular interest of its members; but it does not have an interest of its own where its members diverge. Under these circumstances, RHTA would not be a unified, consensus voice that lends its experience and expertise to the proceedings; rather, it would be a partisan, taking the side of only some of its membership.
89RHTA’s counsel make the further argument, at paragraph 13 of their factum, that, “The RHT Anishinaabek’s participation is necessary to ensure that this Honourable Court has a complete evidentiary record in relation to the Claimed Lands, which are the subject matter in this claim, and on the extent of any potential adverse effects that any disposition in this claim could have.” At the hearing of this motion, counsel emphasized the wealth of evidence and expertise that the RHTA has amassed during the years of pursuing the Restoule claim, much of which could provide useful input into the issues in the present action.
90I agree that the RHTA and its trustees may be a valuable resource for First Nations litigants and Intervenors in this action. But that does not mean that the trust needs to be party Intervenor in its own right. Most of the points it intends to make are similar to, or supportive of, those that the other proposed Intervenors intend to make.
91If the RHTA can be a resource for those parties without being a participant itself, the Court may benefit from its input while avoiding having one more Intervenor to whom the Plaintiff will have to directly respond. Having RHTA as a background resource for any party or Intervenor may provide useful information and depth to the proceedings. But having the RHTA participate in the proceedings as an Intervenor, purportedly representing the collective position of the First Nations Treaty partners but in fact opposing one of those partners, would be an undesirable pile-on and unduly prejudicial to the Plaintiff.
IV. Terms of Intervenor participation
92The challenge in addressing this set of Intervenor motions is to, on one hand, accommodate the participation in the action of the eight First Nations applying for party Intervenor status and, on the other hand, ensure that the Intervenors do not participate in a way that causes great delay or that overwhelms the parties to the action. After all, the upcoming trial must not lose its focus as an adversarial trial of the Plaintiff’s claim against Canada’s/Ontario’s defense; the Intervenors should have input, but the process cannot become a multilateral inquiry into the Treaty’s allocation of reserve lands and Treaty territory at large.
93It is obvious, but deserves to be emphasized, that the Plaintiff has brought the claim and it is the Plaintiff’s narrative that is front and centre. To take perhaps the starkest example, I have heard, pursuant to Rule 36.01, the trial testimony of nine of the Plaintiff’s elders, each of whom gave an oral history of their family and related family memories of their traditional practices and traditional lands. Some of those witnesses testified in English, and others in the Ojibway language through an interpreter.
94Without commenting on the legal significance of the Plaintiff’s elders’ evidence (which must wait for the conclusion of the trial), it is not controversial to say at this point that the testimony was of great importance to each of the witnesses. It was generally cathartic and profound for them to relate their oral history, and for them to have the Court’s full attention while they did so.
95It is obvious that the trial judge must ensure that, whatever the result, the claim played out at trial is the Plaintiff’s – i.e. that of its members, its elders, and its leadership. The elders, leaders, members, and historians of the other eight First Nations that have applied to intervene may help lend perspective and shed additional light on the narratives presented by the Plaintiff’s elders and other witnesses. But it is the Plaintiff’s narratives that are at issue and it is the Plaintiff’s case to win or lose. Any evidence presented by the neighbouring First Nations plays a supporting, but secondary role in the overall process.
96If the Court were to hear the same type of testimony as it heard from the Plaintiff’s elders from nine elders for each of the eight proposed Intervenors, the narrative and, frankly, the experience of the Plaintiff’s elders, would be lost. That is, it would be both overwhelmed in an excess of information and undermined by losing its centrality. The proverb says that, ‘Everyone deserves their day in court’. I will add with great respect, however, that everyone does not deserve the same day in court. This proceeding is the Plaintiff’s, not their neighbours; first and foremost, it is the Plaintiff’s ‘day in court’.
97Counsel for the Attorney General of Canada has proposed that anyone permitted to participate in the trial as a party Intervenor must do so subject to a series of guidelines and terms. The proposed Intervenors have not opposed that practical suggestion. I also agree with it, and have added some guidelines and terms of my own.
98Pursuant to Rule 13.01(2), the following conditions are to be imposed on all party Intervenors in order to ensure that the trial proceeds efficiently and without distraction:
An Intervenor shall be entitled to participate in both the liability (Phase 1) and the remedy phase, if reached (Phase 2), of the trial of this action, on the terms set out below.
An Intervenor shall not make any counterclaims, crossclaims, or third-party claims, or seek any relief in this trial and this action;
An Intervenor shall serve and file its pleadings within 30 days from the filing of the Plaintiff’s Amended Fresh as Amended Statement of Claim or from being granted leave to intervene, whichever is later. Intervenors’ pleadings are not to address every issue in the action, but are to be narrowly focused on the Intervenor’s particular interest in the action as set out in its Notice of Motion herein. An Intervenor shall not be entitled to raise any new causes of action.
Atikameksheng Anishnawbek, the Attorney General of Canada, and His Majesty the King in Right of Ontario (the “Parties”) may serve and file responsive pleadings within 30 days after receiving an Intervenor’s pleading;
An Intervenor may serve request(s) to admit in accordance with the Rules of Civil Procedure within 30 days from the filing of the Amended Fresh as Amended Statement of Claim or from being granted leave to intervene, whichever is later. Any Party served with a request to admit shall respond within 45 days or such other time as the Intervenor and Party served may agree;
An Intervenor may adduce fact or expert evidence in the Action by affidavit, which shall serve as the affiant’s entire evidence in chief. Intervenors and their counsel shall have no right to examine any witness in chief or to cross-examine any witness, whether of a Party or of another Intervenor, without specific leave of the trial judge.
Any affiant on behalf of an Intervenor may be cross-examined by any or all of the Parties as of right. The scope of Intervenors’ evidence shall be limited to issues that are both raised in the Amended Fresh as Amended Statement of Claim or the Fresh as Amended Statements of Defence, and that engage the Intervenor’s interests as described in its pleading;
An Intervenor shall inform the Parties within 60 days from the filing of the Amended Fresh as Amended Statement of Claim or from being granted leave to intervene, whichever is later, if they intend to serve an expert report. An Intervenor shall include in its notice of intention to serve an expert report, if any, a detailed statement regarding the subject(s) to be addressed in the expert report, the name of the expert, and a proposed deadline for the service of the report. Any expert report submitted by an Intervenor must be specifically tailored to that Intervenor’s interest as set out in their pleading;
Subject to further direction by the trial judge, an Intervenor may make written and oral arguments at trial, but shall make an effort not to duplicate the arguments made by a Party and shall confine the scope of its arguments to the issues that engage its interests as described in its pleading;
An Intervenor shall not have the right to re-open the Plaintiff’s elders’ oral history evidence taken under Rule 36.01 in December 2023, whether for the purposes of further cross-examination or for any other purpose;
An Intervenor shall make best efforts to not unreasonably delay the hearing of the trial and shall adhere to any procedural deadlines established by the Court;
An Intervenor shall have access to all materials filed by the Parties and by other Intervenors in this action, and shall have access to all evidence and transcripts of witnesses in the trial (including the transcripts of the testimony given by the Plaintiffs’ witnesses under Rule 36.01);
An Intervenor shall comply with the agreement between the Parties that no documentary discovery shall be conducted for Phase 1 of the trial and that the documentary record for Phase 1 shall consist of the expert reports filed by the parties and the documents cited therein;
An Intervenor will not unreasonably withhold its consent to agreements between the Parties related to the efficient conduct of the trial, including but not limited to agreements related to the development of a joint book of documents, and others;
An Intervenor shall have the right to have counsel attend and, at the discretion of the presiding judge, participate in any pre-trial case conference or trial management conference, with the exception of any case conference or motion dealing with any new proposed Intervenors or with the prospect of interventions or participation by other property holders within the Claimed Lands;
The Order granting leave to intervene is without prejudice to the rights of any Intervenor, the Plaintiff, the Attorney General of Canada, or His Majesty the King in Right of Ontario to maintain and pursue their claims or defences in any other litigation, claim, proceeding, or negotiation. Participation in the action by an Intervenor shall not be taken for any purpose as abandonment of any assertion made in any other proceeding or negotiation and shall be without prejudice to any further steps that they may take in any of those other proceeding or negotiations.
An Intervenor shall have no right to seek costs from any Party or other Intervenor, and no costs shall be sought from any Intervenor. Each Intervenor shall bear their own costs.
IV. Disposition
99The motions by Dokis First Nation, Teme Augama Anishnabai/Teme Augama Anishnabek, Henvey Inlet First Nation, Mississauga First Nation, Wahnapitae First Nation, Wiikwemkoong Unceded Territory, Whitefish River First Nation, and Sagamok Anishnawbek are granted. Each of those shall participate in the upcoming trial of this action as a party Intervenor, on the basis of the terms set out in points 1 through 17 of the paragraph immediately above.
100The motion by Robinson Huron Treaty Anishnaabek is dismissed.
101There will be no costs awarded for or against any party or any proposed Intervenor in respect of this set of motions
Morgan J.
Date: July 13, 2026