• The Ontario Superior Court of Justice Made Orders In An Aboriginal Title Proceeding to Deal With The Vexing Issue of How to Deal With Overlapping Claims and The Competing Interests of Other Indigenous Groups.
  • October 5, 2017 | Author: Scott Kerwin
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • The Ontario Superior Court of Justice made orders in an Aboriginal title proceeding to deal with the vexing issue of how to deal with overlapping claims and the competing interests of other Indigenous groups.The plaintiffs in this action are a grouping of a number of Cree nations that claim both Aboriginal title and rights to a significant area of northern Ontario near James Bay and the border with Quebec. They seek a declaration of Aboriginal title, and damages for breach of title.

    Other Indigenous groups claim both Aboriginal rights and title to the same area. The plaintiffs amended their pleadings to state that their claim is “without prejudice to any existing rights other Aboriginal peoples may hold with respect to these lands”. The plaintiffs, however, maintain a claim of “exclusive use and occupation” of the lands, and do not concede that they have anything less than exclusive rights. Justice Lederer identified the problems arising from this situation as follows:

    As I understand it the Cree Nation of Eeyou Istchee is not conceding that it does not have exclusive rights; it is simply acknowledging that it may not, leaving it to other First Nations to come forward and make their own claims when and if they chose to do so. The underlying proposition is that the Cree Nation of Eeyou Istchee, through this action, is out to prove the validity of its claims and have them recognized. The Cree Nation of Eeyou Istchee submitted that the idea that there can be more than one holder of the contested rights is accommodated by "the established doctrine of shared or joint Aboriginal title."

    In short, this proceeding would permit the Cree Nation of Eeyou Istchee to establish its claim to Aboriginal title and rights as well as any damages arising from the breach of that title and those rights. Should others make coincident claims it may be that the Cree Nation of Eeyou Istchee will oppose them but if other claims are proved they will share the title and the rights. The problem is in the acknowledgment that other First Nations may have such claims. At least one of those other First Nations says that it has a claim to "exclusive aboriginal title". There are at least seven other First Nations who may make the same claims. By those who do, the Cree Nation of Eeyou Istchee is said, in effect, to be an interloper. These other First Nations were not named as parties. If the Cree Nation of Eeyou Istchee obtains rights as a result of a judgment of this court it will be difficult, if not impossible, for the others to obtain the exclusive title and rights they may claim. There will be a decision of this court to the contrary.

    The Moose Cree First Nation and the Nishnawbe Aski Nation brought separate motions to be joined as parties to the action. The Moose Cree First Nation claims exclusive rights to a portion of the area covered by the plaintiffs' Aboriginal title claim. The Nishnawbe Aski Nation is described as a "political territorial organization" representing Treaty 9 signatories, and does not assert its own claim of Aboriginal title. At least nine of its members, including the Moose Cree First Nation, claim lands within the plaintiffs' title claim. These member nations (other than the Moose Cree) do not seek party status at this time, but rely on the motion brought by the Nishnawbe Aski Nation.

    The plaintiffs conceded that the Moose Cree First Nation had a right to intervene in the action on the imposition of suitable conditions. They opposed the joinder of the Nishnawbe Aski Nation on the basis that it did not have the authority of the individual First Nations, and that its interest in the proceeding (the impact and interpretation of Treaty 9) is irrelevant.

    Justice Lederer referred to the concept of "reconciliation", and quoted a description of this concept found in the final report of the Truth and Reconciliation Commission of Canada. He noted:

    These motions reflect a disagreement between First Nations. Which of them should properly be parties to this action and on what, if any, terms? Which of them have valid claims to aboriginal title and rights? In the absence of agreement between these First Nations this is, and with orders to intervene being made, will remain a multi-lateral instead of a bi­lateral dispute. It does not take much to see that this will complicate the process. Nonetheless, it appears that the parties are prepared to proceed on this basis. On behalf of the court, I am less sanguine that this approach can work in an efficacious and effective way.

    Justice Lederer expressed concern about the complications of this action being litigated as a "multi-lateral as opposed to a bi-lateral problem", and how the litigation can be structured to fairly and expeditiously deal with the issues. This motion demonstrated the difficulties in dealing with these concerns. Lederer J. stated:

    To be clear this is not a tweaking of issues here and there. These disagreements are fundamental to the breadth of the case.

    Lederer J. identified one "conundrum" as being whether to allow the other First Nations to have full participation at the outset and narrow the issues over the course of the litigation, or to "start narrow and allow issues to broaden out" during the proceeding. Lederer J. stated:

    This is a land claim. It speaks to our effort to find reconciliation. In this situation not only is the court being asked to resolve a dispute between First Nations and the Crown but, at the same time to resolve internecine ("mutually destructive") disagreements between First Nations. The problem is not made easier by the failure of the two levels of government which are, after all, the defendants in the action and a main player in our effort to find reconciliation, to make any contribution to how it should be resolved.

    The Court concluded that the Moose Cree First Nation should be added as a necessary party without conditions. Accordingly, the Moose Cree will file a pleading that will identify the issues of concern to it, and it would be governed by the same rules and right of participation as all parties including the rules relating to costs. Lederer J. stated:

    As for the complications this may cause the Cree Nation of Eeyou Istchee, I say only that I accept the proposition that it cannot have considered and brought this action without having realized that it would be seen by others as treading on rights those others thought they had established. The Cree Nation of Eeyou Istchee should have expected that those other First Nation communities and interests would feel compelled to respond.

    The Nishnawbe Aski Nation was added as a “friend of the court” under Ontario's court rules, and therefore will have a more limited role in the litigation. It would be entitled to notice of, and may attend, all court appearances and examinations for discovery. It will be entitled to electronic copies of all pleadings, motions, documents and transcripts. At trial, the Nishnawbe Aski Nation will not be permitted to call evidence or cross-examine witnesses, file expert reports, or supplement the evidentiary record, without the consent of the parties or leave of the court. It will not be permitted to raise new issues. Subject to further directions of the court, the Nishnawbe Aski Nation would be able to make written and oral arguments at trial. Lederer J. commented on the need for assistance from this party:

    It is clear that the court will need assistance. As matters stand there is only one party before the court making a territorial claim contrary to the claims being made by the Cree Nation of Eeyou Istchee. Reconciliation as explained by the Summary of the Final Report of the Truth and Reconciliation Commission of Canada... places a broader responsibility on the parties and the court than simply accepting what is provided. It would not be consistent with the goal of reconciliation or that broader responsibility to cede even a shared interest in land to the Cree Nation of Eeyou Istchee only because no one else is present. What if there are others who, like the Moose Cree First Nation believe they have an exclusive right to use and occupy some portion of the land in question. The possibility has been raised that seven of the members of the Nishnawbe Aski Nation could make such claims. Clearly it would be better if such interests were directly represented. As it is they are not. It may be that there are general considerations that apply across the area as a result of Treaty #9, its words, the application of the Honour of the Crown to those words or some other aspect of the context of its preparation.

    The Court again referred to the complicating factor that the Nishnawbe Aski Nation is not making its own territorial claim, and that its individual members are not making a claim at this time. For that reason, the Nishnawbe Aski Nation can only be added to the litigation in a limited role.

    Justice Lederer concluded the judgment with further statements about the unique nature of Aboriginal title litigation:

    Finally, I remind the parties that the court has its own responsibilities and concerns. It may be that in claims such as this the court must recognize the special place First Nations hold in our governmental and constitutional framework. They are nations taking proceedings against the Canadian nation. Nonetheless, when parties bring these matters to court it is incumbent on them to recognize that the court has its own procedures, rules and processes which must be respected. It is for the court to control its process and to do what it can to ensure that the proceedings brought before it are fair and that it has the information it requires to render a proper decision. Case management is a tool used by the court to assist it and the parties in fulfilling these goals.

    With these principles in mind, Justice Lederer directed counsel for the Nishnawbe Aski Nation to approach each of the seven member nations who may have Aboriginal claims to the area, and explain to them the concerns that he has expressed, and to seek their advice as to their intentions in respect of this proceeding.