Canada (A.G.) v. Anishnabe of Wauzhushk, (2003) 179 O.A.C. 210 (CA)

• Judge: O'Connor, A.C.J.O., Moldaver and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 27, 2003
• Jurisdiction: Ontario
• Citations: (2003), 179 O.A.C. 210 (CA)

Canada (A.G.) v. Anishnabe of Wauzhushk (2003), 179 O.A.C. 210 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. DE.018

The Attorney General of Canada (applicant/respondent by way of appeal/respondent by way of cross-appeal) v. Anishnabe of Wauzhushk Onigum Band, Anishnaabeg of Naongashing Band, Big Grassy Band, Buffalo Point First Nation, Couchiching First Nation , Eagle Lake Band, Grassy Narrows First Nation, Iskatweizaagegan #39 Independent First Nation, Lac Des Mille Lacs Band, Lac La Croix Band, Lac Seul Band, Naicatchewenin Band , Naotkamegwanning Band, Nicickousemenecaning Band , Northwest Angle #33 Band, Northwest Angle #37 Band, Ochichagewe'babigo'ining First Nation, Ojibway Nation of Saugeen Indian Band, Ojibways of Onigaming First Nation, Rainy River Band , Seine River First Nation, Shoal Lake #40 Band, Slate Falls Nation, Stanjikoming First Nation , Wabaseemoong Independent Nations, Wabauskang First Nation, Wabigoon Lake Ojibway Nation and Washagamis Bay Band (respondents/ respondents by way of appeal/appellants by way of cross-appeal / appellant by way of appeal )

(C39333)

Indexed As: Canada (Attorney General) v. Anishnabe of Wauzhushk Onigum Band et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Moldaver and Gillese, JJ.A.

December 3, 2003.

Summary:

The Crown brought an application seeking a ruling as to which bands were the beneficial owners of a reserve commonly known as the Agency One Reserve. The only parties who responded to the application were four bands known as the Rainy Lake Bands and seven bands known as the Rainy River Bands.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 722, found that the reserve was set apart solely for the use and benefit of the Rainy Lake Bands. The court declined to award costs. The Rainy River Bands appealed. The Rainy River Bands and Rainy Lake Bands (by way of cross-appeal) both sought leave to appeal the costs order.

The Ontario Court of Appeal dismissed the Rainy River Bands' appeal. The court granted the band groups leave to appeal the costs order, set aside the order and ordered the Crown to pay their costs on the application.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves or Métis lands - Creation of (incl. allocation of) - The Crown sought a ruling as to which bands were the beneficial owners of the Agency One Reserve - The applications judge found that notwithstanding its provisional nature, a 1875 Order-in-Council created the Reserve but did not clarify which Indians or Bands were entitled to the benefit of the Reserve - A 1908 surrender of Reserve lands for the creation of a municipal park was "a distinct unequivocal act" indicating the Crown's intention that the Rainy Lake Bands were the only beneficial owners of the Reserve - Subsequent to 1908, the Crown's intention remained clear - There was no evidence of any interest or claim by the Rainy River Bands prior to the institution of the proceeding - The Ontario Court of Appeal dismissed the Rainy River Bands' appeal - It was open to the applications judge to rely upon the evidence relating to the events in 1908 and after in reaching the conclusion that the Reserve was set aside only for the Rainy Lake Bands - See paragraphs 9 to 44.

Practice - Topic 7452

Costs - Solicitor and client costs - Entitlement to - Neglectful conduct - [See Practice - Topic 7468 ].

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to - Against the Crown - The Crown sought a ruling as to which bands were the beneficial owners of the Agency One Reserve - The applications judge found that the reserve was set apart solely for the use and benefit of one group of bands (the Rainy Lake Bands) - The applications judge held that an award of costs was not appropriate - The Ontario Court of Appeal awarded the Rainy Lake Bands and another group of bands which responded to the application (Rainy River Bands) costs on a substantial-indemnity basis - The federal Crown held reserve lands as a fiduciary for the beneficiary bands - This application was instituted to clarify the Crown's obligations in its fiduciary role - The application was similar to an executor of an estate seeking directions - Typically, in such a case, responding beneficiaries were indemnified for their costs - The application resulted directly from the Crown's failure in 1875 and after to clearly specify which bands were the intended beneficiaries of the reserve grant - The positions adopted by the Rainy River Bands, while not successful, were not unreasonable - See paragraphs 45 to 53.

Cases Noticed:

Ross River Dena Council Band et al. v. Canada et al. (2002), 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1 (S.C.C.), refd to. [para. 21].

Counsel:

John S. Tyhurst, for the Attorney General of Canada;

Donald R. Colborne, for Couchiching First Nation, Naicatchewenin Band, Nicickousemenecaning Band and Stanjikoming First Nation;

Alan Pratt and Carla M. McGrath, for the Rainy River Band.

This appeal was heard on October 27, 2003, before O'Connor, A.C.J.O., Moldaver and Gillese, JJ.A., of the Ontario Court of Appeal. O'Connor, A.C.J.O., released the following decision of the court on December 3, 2003.