William Bertram Henderson

The Missanabie Cree First Nation appealed a trial decision that determined the "crystallization date" for calculating their Treaty No. 9 reserve land entitlement was 1906, the year they adhered to the Treaty.

The Court of Appeal dismissed the appeal, affirming that the trial judge correctly interpreted the Treaty's reserve clause and the common intention of the parties, and properly distinguished other treaty cases.

The court also addressed ancillary issues, admitting fresh evidence of a settlement between Canada and MCFN, lifting a sealing order on the settlement, and dismissing Canada's abuse of process motion to dismiss the appeal against it.

Batchewana First Nation sought to be joined as a necessary party plaintiff or, alternatively, for leave to intervene as an added party plaintiff in the Robinson Superior Treaty action, which concerns claims for augmented annuities.

The motion was dismissed.

The court found that Batchewana, a beneficiary of the Robinson Huron Treaty, was not a necessary party to the Superior action, as its claim for augmented annuities based on "just claims" to lands within the Superior Territory was inconsistent with its prior position in the Huron action and did not directly relate to the Superior Treaty's interpretation or compensation.

The court also found that Batchewana did not meet the criteria for intervention and that its proposed intervention would cause undue delay and prejudice to the complex, multi-stage litigation.

The applicants brought a motion to set aside an order of the motions judge, which added the Williams Treaties First Nations as necessary parties or interveners to an application for judicial review and awarded substantial indemnity costs against the applicants.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact in the motions judge's conclusion that the First Nations would be directly affected by the declarations sought.

The court also upheld the costs award, noting that the applicants persisted with an unnecessary motion despite being on notice that elevated costs would be sought.

The plaintiff First Nation brought an action against Canada and Ontario for failing to set aside a reserve for them under Treaty No. 9 in 1906.

The parties agreed that a reserve should have been set aside.

The threshold issue at trial was determining the 'crystallization date'—the point in time at which the band's population should be assessed to calculate the size of the reserve.

The plaintiffs argued the population should be determined as of the date the reserve is actually set aside or the date of the court's declaration.

The Crown argued the population should be determined as of the date the treaty was made.

The court held that the common intention of the parties, based on the text of the treaty and its historical context, was that reserves were to be set aside and sized according to the population at the time the treaty was made.

The moving parties brought a motion to adjourn the hearing of a judicial review application scheduled for February 2016.

The moving parties argued that their counsel was unavailable, they were not consulted on the date, and there was insufficient time to prepare a proper response, including conducting cross-examinations.

The court applied the factors for granting an adjournment and found that proceeding in February would deny the moving parties the opportunity to fairly make out their case.

The motion was granted and the hearing was adjourned to October 2016.

Several First Nations moved to be added as party respondents in a judicial review application challenging Ontario’s Interim Enforcement Policy permitting First Nations to hunt and fish for food, social and ceremonial purposes on lands subject to the 1923 Williams Treaties pending resolution of related litigation.

The applicant organization opposed the motion, arguing the First Nations should not participate as parties or should be limited to intervenor status.

The court held that the proceeding directly targeted the asserted treaty and Charter rights of the First Nations and that effective adjudication required their participation.

The First Nations met the test for mandatory joinder under Rule 5.03 of the Rules of Civil Procedure and would also qualify as party intervenors under Rule 13.01.

As they were plainly proper parties and were forced to bring the motion after the applicant resisted their participation, the court awarded them substantial indemnity costs.

The appellants challenged findings that the Indian Act provision restricting band election voting to members ordinarily resident on the reserve violated the equality rights of off-reserve band members.

The Court held that off-reserve band member status is an analogous ground under s. 15(1), and that the complete denial of voting rights in band governance perpetuated disadvantage and denied substantive equality.

The infringement was not justified under s. 1 because a total exclusion of non-residents was not minimally impairing.

The Court declared the impugned words in s. 77(1) invalid in their general application, suspended the declaration for 18 months, and denied an immediate constitutional exemption.

The appellant, a status Indian and member of the Hiawatha Band, was convicted of fishing out of season contrary to the Ontario Fishery Regulations.

He appealed, arguing that he had an existing treaty right to fish under section 35(1) of the Constitution Act, 1982.

The Supreme Court of Canada dismissed the appeal, upholding the lower courts' findings that the 1923 Treaty, which contained a broad 'basket clause', validly extinguished the Band's fishing rights in the Otonabee River area.

The Court found no ambiguity in the treaty and concluded that the signatories understood its terms.