William B. Henderson

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.

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.