Anishinabeg v. AGC et al, 2026 ONSC 4430

Court File and Parties

CITATION: Anishinabeg v. AGC et al, 2026 ONSC 4430

COURT FILE NO.: CV-16-70862

DATE: 2026/07/31

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 Anishinabe Nation, Plaintiffs

-and-

Attorney General of Canada and National Capital Commission, Defendants

BEFORE: The Honourable Justice Flaherty

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

Zoe Oxaal, Kelly Keenan, Amanda McGarry, Siobhan Doody, counsel for the Defendants

Counsel for the Proposed Intervenors, Algonquins of Pikwakanagan First Nation: Bruce McIvor and Melissa Rumbles.

Counsel for the Proposed Intervenors, Antoine Nation, Bonnechere Algonquin First Nation, Algonquins of Greater Golden Lake First Nation, Kijicho Manito Madaouskarini Algonquin Nation, Mattawa/North Bay Algonquin First Nation, Ottawa (Omami Ininiwak First Nation), Shabot Obaadjiwan First Nation, Snimikobi Algonquin First Nation & Whitney and Area Algonquins (“Nine Algonquin Collectives”): Gordon S. Campbell and Matthew Hodgon

HEARD: July 31, 2026

REASONS FOR DECISION

Flaherty J.

1This decision deals with motions to intervene in a representation motion, which was brought by the plaintiffs under r. 12.08 of the Rules of Civil Procedure (“Rules”).

2The following groups seek leave to intervene:

• The Algonquins of Pikwakanagan First Nation (“Pikwakanagan”)
• Timiskaming First Nation (“Timiskaming”) and Wolf Lake
• Nine Algonquin Collectives (“Collectives”).

3For the reasons that follow, Pikwakanagan’s request to intervene as an added party in the plaintiffs’ representation motion is granted. The Collectives’ motion is dismissed. These findings are without prejudice to their ability to seek leave to intervene in the underlying action.

4This decision does not address Timiskaming First Nation and Wolf Lake’s motions to intervene. Counsel for the plaintiffs indicated that they intend to amend their statement of claim to remove Timiskaming and Wolf Lake as members of the collective they seek to represent. At the court’s direction, counsel for Timiskaming and Wolf Lake were advised of the proposed amendments to the statement of claim and asked to advise the court by August 4 whether they wish to proceed with their motions. If needed, their motions will be addressed after August 4, 2026.

OVERVIEW

5The 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"). The Statement of Claim defines the AAN as being comprised of the following 11 Indian Act bands¹ in Ontario and Quebec:

• Kitigan Zibi Anishinabeg;
• Algonquins of Pikwakanagan First Nation;
• Kebaowek First Nation;
• Wolf Lake;
• Nation Anishinabe du Lac Simon;
• Communauté anicinapek de Kitcisakik;
• Long Point First Nation;
• Timiskaming First Nation;
• Mitchikanibikok Inik (Algonquins of Barriere Lake);
• Conseil de la Première Nation Abitibiwinni; and
• Apitipi Anicinapek Nation.

6In the underlying action, the plaintiffs seek (among other things) 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.

7In a decision rendered in April 2026, I held that a r. 12.08 motion was mandatory and that the court’s authorization was required for the plaintiffs to bring this representative action: Anishinabeg et al. v. AGC et al., 2026 ONSC 1139.

THE REPRESENTATIVE MOTION

8The plaintiffs have now brought a r. 12.08 motion. Pursuant to an order dated May 20, 2026 (“Order”), the plaintiffs served their notice of motion on certain communities, which the parties identified as interested third parties. The Order did not require that the Collectives be served. However, it stated that any interested third party who wished to intervene in the r. 12.08 motion must file and serve its materials by July 3, 2026 and that such motions would be determined in writing based on the materials filed.

9At this stage, and as contemplated in the Order, the requests to intervene concern the r. 12.08 motion, not the underlying action.

10I begin by discussing the nature and scope of the r. 12.08 representation motion, as this will be relevant to assessing the requests to intervene. Broadly speaking, the purpose of a r. 12.08 motion is to ensure that the plaintiffs are an appropriate collective to bring a representative action. Under r. 12.08, the court must consider the following criteria in deciding whether to allow a representative claim to proceed:

• Is the collective of rights-bearers on behalf of whom the plaintiffs purport to act capable of clear definition?
• Are there issues of law or fact common to all members of the collective so defined?
• Would success on the petition mean success for the whole collective so defined?
• 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.

11Importantly, the purpose of the representation motion is not to decide whether the plaintiffs’ definition of the rights holder is substantively correct. A r. 12.08 motion does not involve determining the proper rights holder: that is a matter for trial.

THE MOTIONS TO INTERVENE

Legal Principles

12Rule 13.01 of the Rules set out the following test for determining motions to intervene as added parties:

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.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

13The proposed intervenors have the onus of showing that they meet the r. 13.01 criteria in respect of the representation motion. The applicable legal principles are not in dispute and were recently summarized as follows in Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and His Majesty the King in Right of Ontario, 2023 ONSC 3604 at paras. 25 – 29:

• In considering the request for leave to intervene, the court must consider the nature of the case, the issues that arise, and the likelihood that the proposed intervenors will make a useful contribution to the resolution of the matter, without causing injustice to the immediate parties.
• The court takes a liberal approach to the interpretation of r. 13.01(1)(a). That said, the proposed intervenors must establish a “genuine and direct interest in the outcome of the proceeding.”
• If the proposed intervenor meets one of the three criteria in r. 13.01(1), the court will consider r. 13.01(2) and may deny the request to intervene if the intervention would cause undue delay or prejudice.

Pikwakanagan

14Pikwakanagan is a band within the meaning of the Indian act. It has asserted rights to land along the Ottawa river watershed, including the area that is the subject of the plaintiffs’ action. In addition, Pikwakanagan is part of the collective the plaintiffs seek authorization to represent.

15The respondent consents to Pikwakanagan’s request to intervene. The plaintiffs do not oppose it.

16Pikwakanagan’s request to intervene is granted. I am satisfied that it meets the test for intervention under r. 13.01. As one of the members of the group the plaintiffs seek to represent, Pikwakanagan has a genuine and direct interest in the subject matter of the representation motion, including whether the plaintiffs can adequately represent Pikwakanagan’s interests. Its participation would not cause undue delay or prejudice.

Nine Algonquin Collectives

17The Collectives state that they are non-Indian Act band Algonquin Nations and part of the historic and continuing Algonquin Anishinabe Nation. They state they are distinct rights-bearing Indigenous collectives within traditional Algonquin territory, including in the Ottawa River watershed.

18The Collectives are part of a group involved in negotiations with Canada and Ontario regarding lands in downtown Ottawa and elsewhere in Eastern Ontario. According to the Collectives and Canada, the settlement area being discussed in those negotiations include the Kichi Sipi Claim.

19The plaintiffs submit that the Collectives have no standing to move to intervene. This is because the Order did not require they be served with the r. 12.08 motion materials.

20I disagree. Rule 13.01 provides that any person who is not a party may seek leave to intervene. Similarly, the Order contemplates motions by any “interested third party.” There is nothing in either the Rule or the Order that limits the ability to bring a motion to intervene to persons who received court-ordered notice of the proceeding. The Collectives’ motion to intervene is therefore properly before the court.

21Unlike Pikwakanagan, the Collectives are not part of the group the plaintiffs propose to represent. Moreover, the Collectives do not consent to be represented by the plaintiffs. In essence, the Collectives seek to intervene because they take issue with how the plaintiffs have defined the AAN.

22The Collectives say the plaintiffs cannot and do not represent the entirety of the Algonquin Nation. They seek to provide evidence of additional collectives who form part of the Algonquin Nation, but who are not part of the group the plaintiffs propose to represent. In this respect, the Collectives submit that they have a direct and substantial interest in the outcome of the r. 12.08 motion because the relief sought has the potential to affect how representation of the Algonquin Anishinabe Nation is understood “in this ligation and beyond.” They submit:

The nine Algonquin Collectives as Moving Parties do not seek to challenge the Plaintiffs' ability to represent their own members or those Indian Act band communities that have authorized them to act on their behalf. Rather, the nine Algonquin Collectives seek to ensure through their proposed intervention that this Honourable Court is apprised that the Plaintiffs' asserted definition of the Algonquin Anishinabe Nation is not universally accepted and excludes other Algonquin Indigenous collectives who form part of the historic and continuing Algonquin Anishinabe Nation […]

23According to the Collectives, they stand to be adversely affected by the r. 12.08 motion because its outcome could undermine their position. Specifically:

Other First Nations, governments or third parties could later misinterpret or attempt to rely upon a broad Algonquin representation order in favour of the Plaintiffs as amounting to judicial recognition that the Plaintiffs represent all Algonquin interests in Ontario as well as Quebec, thereby prejudicing the nine Collectives’ distinct rights, claims and identities.

24As it concerns the r. 12.08 motion, I am not satisfied that the Collectives meet the test for intervention under r. 13.01.

25As noted, the statement of claim seems to define “all members” of the AAN as the plaintiffs and the 11 bands. Clearly, the Collectives disagree with that assertion. Significantly, however, the representation motion is not about whether the plaintiffs’ definition of the AAN is correct, exhaustive, or accepted. The question before the court on a r. 12.08 is whether the collective the plaintiffs have proposed for the purposes of this action meets the criteria under the rule. Whether that collective is the proper rights holder is a matter for trial.

26To put it differently, the r. 12.08 motion will not determine whether the Collectives are part of the Algonquin Nation. It will not determine whether the Collectives’ interests or desired outcomes align with those of the plaintiffs. On the motion, the court will simply decide whether the plaintiffs meet the test to represent the group they have proposed. As noted, the Collectives are not and do not wish to be part of that group.

27The fact that the Collectives are involved in negotiations regarding the Kichi Sibi Claim may be relevant at other stages of this action. However, these negotiations do not establish a direct and genuine interest in the subject matter of the r. 12.08 representation motion. Again, the Collectives are not part of the group that the plaintiffs seek to represent, nor do they wish to be. They also do not take issue with the plaintiffs’ ability to represent other communities.

28I am not persuaded that the Collectives would be adversely impacted by the outcome of the representation motion. The court’s role will not be to define or approve a definition of the Algonquin Nation for any purpose beyond representation under r. 12.08 within the context of this specific action. In my view, any prejudice from a potential misinterpretation of the decision is speculative.

29Thus, I find that the Collectives do not meet the criteria at r. 13.01(1) and the motion to intervene is dismissed on this basis. I would also conclude that the proposed intervention goes beyond the scope of the representation motion and raises issues about how the AAN should be defined more broadly. I would also dismiss the Collectives’ motion because the proposed intervention would not assist me in determining the issues raised in the r. 12.08 motion and would unduly delay and complicate the matter.

DISPOSITION

30For these reasons, Pikwakanagan’s motion is granted. The Collectives’ motion is dismissed.

NEXT STEPS

31This decision will be provided to counsel for all parties and all intervenors and proposed intervenors. Once all motions for leave to intervene have been determined, the parties and the intervenor(s) may request a case conference if directions are required, including regarding the role of intervenors and whether they should be permitted to cross examine on affidavits.

32In future, in addition to uploading their documents to Caselines, counsel should file them with the court and ask that they be brought to my attention. Judges are not automatically notified when materials are uploaded to Caselines.

Justice Flaherty

Date: July 31, 2026

CITATION: Anishinabeg v. AGC et al, 2026 ONSC 4430

COURT FILE NO.: CV-16-70862

DATE: 2026/07/31

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 Anishinabe Nation, Plaintiffs

-and-

Attorney General of Canada and National Capital Commission, Defendants

REASONS FOR DECISION

Flaherty J.

Footnotes

1. 1The 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.