Case information

Aboriginal law — Treaty rights — Historic treaties — Treaty No. 9 —Reserve entitlement clause — Interpretation — First Nation entitled to receive reserve comprised of no more than one square mile per family of five — Reserve not created within a reasonable time — As of what point in time population of First Nation should be determined in applying reserve entitlement formula set out in Treaty No. 9.

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Treaty No. 9 is comprised of a series of treaties entered into during 1905 and 1906. It concerns the use of the lands generally north of the divide separating the watersheds where the rivers and lakes flow north to James Bay and south to Lake Superior. It called for the First Nations to, inter alia, surrender any claim to and to agree to extinguish aboriginal title to approximately 90,000 square miles of land. In exchange, the Crown promised to, inter alia, “lay aside reserves for each band, the same not to exceed in all one square mile for each family of five, or in that proportion for larger or [and] smaller families” (Settlement of Indian Claims-Treaty No. 9, quoted in the Joint Expert Report, January 2015, at para. 10.1(a)). The Missanabie Cree adhered to the treaty by the “meet and pay” method, which focused on establishing pay-lists, explaining what accepting the money meant, and distributing annuity payments. From 1914 onwards, individuals identifying themselves as Missanabie and identified as Missanabie on pay lists sought their rights under Treaty No. 9.

When Treaty No. 9 was made, those acting for the Crown did not understand that a group of Crees resident at Missanabie, a railway station, constituted a band, associating them instead with a larger band located at Moose Factory, on James Bay. Despite that, the reserve provided to the Cree of Moose Factory did not account for those who had received their first payment at Missanabie. As a result, no reserve was set aside for the Missanabie Cree First Nation (“MCFN”). The matter was further complicated by other errors in the recording of reserves. The MCFN engaged in a long course of action to right this historical wrong. Ontario and Canada now agree that the MCFN had been a party to Treaty No. 9 since 1906, that a reserve should have been set aside for the MCFN, and that a reserve should now be set aside for the MCFN, but the parties disagreed about the proper way to correct the failure to allocate the reserve a hundred and ten years later.

In 2010, Ontario transferred 15 square miles of land to the Missanabie without prejudice to their right to continue this litigation, and, in 2018, those lands were confirmed as a “reserve”. The MCFN sought a declaration that they were entitled to a reserve based on the current population of the band, which would have resulted in a reserve 70 square miles in size. Two procedural orders restricted the matter under consideration to a threshold issue: “As of what point in time (the “Crystallization Date) should the Population of the Missanabie Cree be determined for the purposes of applying the reserve entitlement formula stipulated by Treaty 9?” The parties presented joint expert evidence and submitted an Agreed Statement of Facts.

The trial judge found that, under Treaty No. 9, reserve entitlements should be assessed as at the time of entry into treaty. The Court of Appeal dismissed the appeal. It granted a motion to admit a Settlement Agreement as fresh evidence, but dismissed the Crown’s motion to continue a sealing order over the Settlement Agreement and negotiation protocol and a motion to dismiss the appeal for abuse of process and to enforce Settlement Agreement.