W. Derksen

The court determined costs following a 20-day trial concerning the ownership of a two-chain strip of land adjacent to the Agency One Reserve.

The plaintiffs, a group of First Nations, were largely unsuccessful in their claim for a declaration of ownership but succeeded on a threshold res judicata issue.

The Corporation of the Town of Fort Frances, a defendant, sought partial indemnity costs from the plaintiffs.

The court rejected the plaintiffs' argument that they were public interest litigants and that costs should be waived or deferred, finding their claim had significant proprietary and financial interests.

While acknowledging the Crown's role in the historical uncertainty, the court found no compelling policy reason to relieve the plaintiffs of costs in relation to Fort Frances, which was not a Crown authority.

The court fixed costs for Fort Frances, reducing a specific expert disbursement.

The plaintiff First Nations sought a declaration that a two-chain strip of land along the shores of Rainy Lake and Rainy River formed part of the Agency One Reserve, created pursuant to Treaty #3.

The court reviewed extensive historical, ethnohistorical, and surveying evidence regarding the creation of the reserve in the 1870s.

The court found that the Crown intended to exclude the two-chain allowance from the reserve to accommodate the Dawson Route and the developing forestry industry.

The court further held that this exclusion did not breach the Crown's fiduciary duty or the honour of the Crown, as the Ojibway retained access to the shoreline and no express promise had been made to include it.

The plaintiffs' claims were dismissed.