The Ontario Superior Court of Justice dismissed an action brought on behalf of the beneficiaries of Treaty 3, to enforce the “maintain schools” clause in the treaty, as being non-justiciable. The order was made without prejudice to the plaintiffs bringing a “properly constituted and justiciable action” for a breach of Treaty 3. The Court held that the issues raised in the action did not have a sufficient legal component, and essentially involved political questions about the allocation of funds for education. The Court also held that the action was not properly constituted as there was uncertainty as to who was the proper rights holder for Treaty 3, and whether the plaintiffs had been properly authorized to bring this action on behalf of the rights holder.

The Court reviewed the background facts to the negotiation of Treaty 3 in 1873. The plaintiffs allege that the Boundary Waters Anishinaabeg had a Grand Council that led the negotiations. Treaty 3 provides for the surrender of lands and the creation of reserves. There are now 28 reserve communities within Treaty 3 (26 in Ontario, and 2 in Manitoba). One clause of Treaty 3 provided that Her Majesty agreed to “maintain schools for instruction” in the reserves. The plaintiffs allege that this provision imposed a duty on Canada to provide educational services, and that Canada has breached this provision. They point to many factors that give rise to special circumstances in the provision of education to these areas, such as the remote nature of the reserves and the lack of infrastructure. They claim that, due to Canada’s breach of Treaty 3, the level of education achieved for Treaty 3 beneficiaries is well below that of the average Canadian.

The plaintiffs seek a wide array of declaratory relief against Canada, equitable damages of $100 million, and an order that Canada report to the Court on a monthly basis on the steps that it is taking to remedy the Treaty breach.

The plaintiffs argued that the Grand Council that had originally negotiated Treaty 3 continues to exist and advances the interests of all Treaty 3 beneficiaries. The plaintiff Chief Diane Kelly had been the Grand Chief when this action began. The newly-elected leader of the Grand Council is Grand Chief Warren White. The five other plaintiffs in this action are the chiefs of individual Anishinaabe First Nations. The plaintiffs claim that the Grand Chief is the proper representative of the beneficiaries of Treaty 3.

The Grand Council consists of the chiefs of the 28 communities. The Court noted that the band councils of the 28 Indian Bands that constitute the Treaty 3 beneficiaries had not individually authorized any action against the Crown.  The Chief of an Indian Band has no separate authority independent of the Band Council. The current Grand Chief was authorized by the Grand Council to be the representative plaintiff.

There were three applications before the Court:

  • an application to substitute Grand Chief White for Grand Chief Kelly as a co-plaintiff, and to substitute the newly-elected chiefs of two other First Nations as co-plaintiffs;
  • an application by the plaintiffs pursuant to Rule 12.08 of Ontario’s Rules for an order that Grand Chief White be authorized to bring this action as a representation action on behalf of all Treaty 3 beneficiaries; and,
  • an application by Canada under Rule 21 of the Rules to strike the action on the basis that it is non-justiciable.

Canada’s Application to Strike Claim

The Court granted the Rule 21 application to strike the action as being non-justiciable.

It was not disputed that the interpretation of a treaty, and a declaration of rights under the treaty, are justiciable issues. The determination of whether a treaty has been breached is a justiciable issue. Canada submitted that the action, as presently pleaded, essentially asks for a “commission of inquiry” into 100 years of educational policy. This type of inquisitorial proceeding was criticized in cases like Lax Kw’alaams v. Canada. Justiciability is a doctrine founded upon a concern with the appropriate role of the courts as the forum for dispute resolution. It involves an inquiry as to whom amongst various law makers should decide particular types of disputes. Purely academic matters are not justiciable. A dispute will not be justiciable if the question lacks sufficient legal component. A purely political dispute is not justiciable. The mere presence of a legal issue does not make an essentially political dispute justiciable. Perell J. held that a dispute may not be justiciable for different categories of reasons:

…without meaning to be comprehensive, it appears to me that a dispute may not be justiciable for different categories of reasons, including: (1) the subject or topic of the dispute may be beyond the institutional competence of the court; (2) the subject or topic of the dispute may lack sufficient legal content; (3) the dispute may be political and not juridical, which is perhaps a variant of the insufficient legal content category; and (4) the dispute may be about investigating a problem and negotiating or recommending a solution as opposed to solving the problem by the application of law to pleaded and determined facts.

The Court agreed with Canada’s submissions that the issues framed by the plaintiffs in this action do not have a sufficient legal component to warrant the intervention of the Court. The issues are best left to the executive branch of government, as they involve political questions. The allocation of funds for education services is essentially a matter of political debate. A political dispute about education policies and education funding decisions should be resolved outside the courtroom.

The proposed representation action therefore “has it backwards”. The policy and political issues in this case are the substance of the dispute, not just the context of a legal dispute about Treaty 3. Counsel for the plaintiffs had essentially conceded that the purpose of the action was “to get the Crown to the negotiating table”.

Action is Procedurally Unsound

Mr. Justice Perell, at paras. 47-75 of the Reasons for Judgment, provides a helpful summary of the basic principles of the law of Aboriginal and Treaty rights, including many procedural matters. Aboriginal and treaty rights are communal rights, and it is necessary that all persons affected by the decision are before the court. Perell J. referred to the discussion of the B.C. Court of Appeal in William v. British Columbia on who is the proper “rights holder” to bring a claim. An Indian Band is not always the proper entity to assert an Aboriginal right. The determination of who is the rights holder may require a trial. If the rights holders are an unincorporated association, then the action can only proceed as a representation action.

The distinction between a class action and a representation action was reviewed by the Court. Rule 12.08 of Ontario’s Rules of Civil Procedure relates to representation actions. It provides that where numerous persons are members of an “unincorporated association”, and a class action proceeding would be unduly expensive or inconvenient, a representation action may be brought. There is no certification test. Unlike a class action, members of the class in a representation action cannot “opt out”.

The Court reviewed and summarized, at paragraphs 103 to 122 of the Reasons for Judgment, the civil procedure for Aboriginal rights and breach of treaty claims. The preferable way to adjudicate such claims is in a civil proceeding, not in the context of a regulatory prosecution. All proper and necessary parties would be before the Court. The Court’s decision would bind the rights-holding Aboriginal collective. The proper party would be the “rights holder”. Persons belonging to the community to which the Aboriginal right adheres are necessary parties and should be joined. A class proceeding is inappropriate for communal Aboriginal and treaty rights claims “because the individual class members would be entitled to opt out”.

The necessity of a representation order depends upon whether or not the “rights holder” has the capacity to sue or be sued. If so, then a representation order is not necessary. Indian bands have the capacity to sue and be sued. If the 28 Indian Bands of the Treaty 3 area are the proper rights holder, as alleged by Canada, then a representation order is not necessary. Further, the action as currently constituted would be defective because the 28 bands are not joined as parties. If a band council does not authorize the Band to be added as a party plaintiff, then it can be added as a party defendant by the existing plaintiffs.

The plaintiffs disagreed that the “rights holder” of the Treaty 3 rights consists of the 28 bands. They seek an order that the Grand Chief be the representative plaintiff for the beneficiaries of Treaty 3 (an “unincorporated association” within the meaning of Rule 12.08).

Perell J. concluded that this dispute about the appropriate rights holder for Treaty 3 could not be determined on an interlocutory motion, but must be decided as part of the Treaty claim. Given the parties’ competing positions, the action as currently constituted is “procedurally unsound”. Chief White is a proper party to advance the Treaty 3 claim, but his proposed representation action “wants for necessary parties”.

Assuming that the plaintiffs could frame the issues in this case so that they are justiciable, Perell J. provided the following guidance on how the action could be constituted:

Thus, in the case at bar, to resolve the dispute about who is the rights holder and to have the proper parties before the court, requires that Grand Chief White either: (1) bring a representation action for the beneficiaries of Treaty 3 with the authorization of all of the 28 reserve bands (by band council resolutions); or (2) bring a representation action but join as a party defendant any band that does not authorize his representation action.

Perell J. further commented:

The justiciable issue for the action would be some articulation of the issue whether the Crown is presently breaching the maintain schools promise of Treaty 3 at any of the 28 reserve communities.

The Court also held that this action fails the test for a representation action because the breach of fiduciary duty claim is untenable, and the claim is not justiciable. Mr. Justice Perell concluded that the plaintiffs had not pleaded any basis to assert a breach of fiduciary duty. They had not pleaded a basis for disloyalty or the other hallmarks of a breach of fiduciary duty.

Substitution of Co-Plaintiffs

But for its Rule 21 motion and its opposition to the Rule 12.08 motion of the plaintiffs, Canada did not oppose the motion to substitute three of the co-plaintiffs.


The Court granted Canada’s motion to dismiss the action without prejudice to the plaintiffs commencing a properly constituted and justiciable action for the breach of Treaty 3. The parties were granted leave to submit written submissions on costs.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin


Aboriginal Law