Ontario (Attorney General) v. Bear Island Foundation et al., (1991) 127 N.R. 147 (SCC)

• Judge: McLachlin and Stevenson, JJ.
• Court: Supreme Court (Canada)
• Case Date: August 15, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 127 N.R. 147 (SCC);4 OR (3d) 133;1991 CanLII 75 (SCC);127 NR 147;JE 91-1268;[1991] 3 CNLR 79;28 ACWS (3d) 628;20 RPR (2d) 50;46 OAC 396;83 DLR (4th) 381;[1991] SCJ No 61 (QL);[1991] 2 SCR 570

Ont. (A.G.) v. Bear Island Foundation (1991), 127 N.R. 147 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Bear Island Foundation and Gary Potts, William Twain and Maurice McKenzie, Jr. on behalf of themselves and on behalf of all other members of the Teme-Augama Anishnabay and Temagami Band of Indians (appellants) v. Attorney General for the Province of Ontario (respondent) and Attorney General of Canada, Attorney General of Quebec, Attorney General of British Columbia, Attorney General for Alberta, Attorney General of Newfoundland, Union of Ontario Indians, Association of Iroquois and Allied Indians, National Indian Brotherhood/Assembly of First Nations, Mocreebec and Randy Kapashesit and Delgamuukw, also known as Earl Muldoe, on his own behalf and on behalf of all members of the House of Delgamuukw, and others (intervenors)

(No. 21435)

Indexed As: Ontario (Attorney General) v. Bear Island Foundation et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, Gonthier,

McLachlin and Stevenson, JJ.

August 15, 1991.

Summary:

The province of Ontario claimed title to approximately 4,000 square miles of un-patented land in Ontario. The defendants, including members of the Temagami Indian Band, claimed that the land was burdened by aboriginal rights possessed originally by the Temagami Indian Band. The province commenced an action against the defendants seeking declaratory and injunctive relief respecting the land. The defendants counterclaimed for declaratory relief respecting their aboriginal rights.

The Ontario High Court, in a decision reported 48 O.R.(2d) 353, allowed the province's action and dismissed the counterclaim. The defendants appealed.

The Ontario Court of Appeal, in a decision reported 32 O.A.C. 66, dismissed the appeal, holding that any aboriginal rights which originally existed respecting the land were extinguished. The defendants appealed again.

The Supreme Court of Canada dismissed the appeal.

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - Extinguishment - The Temagami Indians claimed aboriginal rights respecting 4,000 square miles of unpatented land in Ontario - The Supreme Court of Canada affirmed that any aboriginal rights originally enjoyed by the Temagami Indians were extinguished by the Robinson-Huron Treaty of 1850.

Cases Noticed:

Stein Estate v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 5].

N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; 76 N.R. 212, refd to. [para. 5].

Beaudoin - Daigneault v. Richard, [1984] 1 S.C.R. 2; 51 N.R. 288, refd to. [para. 5].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 6].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 6].

Statutes Noticed:

Robinson-Huron Treaty of 1850.

Counsel:

W. Ross Murray, Q.C., and Wendy J. Earle, for the appellants;

J.T.S. McCabe and Lorna E. Boyd, for the respondent;

W.I.C. Binnie, Q.C., W.A. Hobson, Q.C., and Susan L. Reid, for the intervenor, the Attorney General of Canada;

René Morin, for the intervenor, the Attorney General of Quebec;

D.M.M. Goldie, Q.C., and Norman J. Prelypchan, for the intervenor, the Attorney General of British Columbia;

Robert J. Normey, for the intervenor, the Attorney General for Alberta;

Deborah J. Paquette, for the intervenor, the Attorney General of Newfoundland;

William B. Henderson and Alan Pratt, for the intervenor, Union of Ontario Indians;

Brian A. Crane, Q.C., for the intervenor, Association of Iroquois and Allied Indians;

Pete W. Hutchins, Diane H. Soroka and Franklin S. Gertler, for the intervenor, National Indian Brotherhood/Assembly of First Nations;

Murray Klippenstein and Gary Stein, for the intervenors, Mocreebec and Randy Kapashesit;

David Paterson and Louise Mandell, for the intervenor, Delgamuukw, also known as Earl Muldoe, on his own behalf and on behalf of all members of the House of Delgamuukw, and others.

Solicitors of Record:

Borden & Elliot, Toronto, Ontario, for the appellants;

Attorney General for Ontario, Toronto, Ontario, for the respondent;

McCarthy, Tétrault, Toronto, Ontario, for the intervenor, the Attorney General of Canada;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor, the Attorney General of British Columbia;

Attorney General for Alberta, Edmonton, Alberta, for the intervenor, the Attorney General for Alberta;

Attorney General of Newfoundland, St. John's, Newfoundland, for the intervenor, the Attorney General of Newfoundland;

Blaney, McMurtry, Stapells, Toronto, Ontario, for the intervenor, Union of Ontario Indians;

Gowling, Strathy & Henderson, Ottawa, Ontario, for the intervenor, Association of Iroquois and Allied Indians;

Hutchins, Soroka & Dionne, Montreal, Quebec, for the intervenor, National Indian Brotherhood/Assembly of First Nations;

Iler, Campbell & Associates, Toronto, Ontario, for the intervenors, Mocreebec and Randy Kapashesit;

Mandell Pinder, Vancouver, British Columbia, for the intervenor, Delgamuukw, also known as Earl Muldoe, on his own behalf and on behalf of all members of the House of Delgamuukw, and others.

This appeal was heard on May 27, 28, 29 and 30, 1991, before Lamer, C.J.C., La Forest, Gonthier, McLachlin and Stevenson, JJ., of the Supreme Court of Canada. The following decision was delivered by the court on August 15, 1991.