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CITATION: Couchiching FN Et Al V AG Canada Et Al, 2014 ONSC 1076 COURT FILE NO.: CV-98-0910 DATE: 2014-02-19 ONTARIO SUPERIOR CO

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CITATION: Couchiching FN Et Al V AG Canada Et Al, 2014 ONSC 1076 COURT FILE NO.: CV-98-0910 DATE: 2014-02-19 ONTARIO SUPERIOR CO CITATION: Couchiching FN et al v AG Canada et al, 2014 ONSC 1076 COURT FILE NO.: CV-98-0910 DATE: 2014-02-19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) COUCHICHING FIRST NATION, ) D. Colborne, M. Wente, R. Pelletier, B. NAICATCHEWENIN FIRST NATION, Edwards, counsel for the Plaintiffs ) NICICKOUSEMENECANING FIRST NATION, and STANJIKOMING FIRST ) NATION Plaintiffs ) ) - and - ) ) THE ATTORNEY GENERAL OF CANADA ) J. Tyhurst, C. Collins-Williams, counsel for and HER MAJESTY THE QUEEN IN Defendant The Attorney General of Canada. ) RIGHT OF ONTARIO, and THE R. Regenstreif, M. Burke, counsel for CORPORATION OF THE TOWN OF FORT ) Defendant Her Majesty The Queen in Right FRANCES of Ontario. J. Morse, W. Derksen, counsel for Defendant The Corporation of the Town of Fort Frances Defendants ) ) - and - THE INTERVENERS Lawrence Phillips counsel for the Interveners HEARD: February 19, 20, 21, 22, 25, 26, 27, 28, March 1, 4, 5, 6, 7, 20, 21, 22, 25, 26, 27, 28, 2013 2 Table of Contents INDEX OF EXPERT WITNESSES .............................................................................................................4 BIOGRAPHICAL INDEX ........................................................................................................................6 GENERAL MAP OF SUBJECT LANDS .....................................................................................................7 INTRODUCTION .................................................................................................................................8 ISSUES ............................................................................................................................................. 10 THE CENTURY PRIOR TO THE SIGNING OF TREATY #3 ........................................................................ 12 OJIBWAY USE AND OCCUPANCY OF THE RAINY LAKE/RAINY RIVER WATERSHED INCLUDING THE AGENCY ONE RESERVE SITE .......................................................................................................... 12 THE HISTORY OF THE DAWSON ROUTE THROUGH THE RAINY LAKE/RAINY RIVER REGION ............. 21 THE DEVELOPMENT OF THE FORESTRY INDUSTRY THROUGH THIS AREA ........................................ 30 DISCUSSION ................................................................................................................................. 35 TREATY #3 NEGOTIATIONS AND THE CREATION OF THE AGENCY ONE RESERVE ................................. 38 THE INTENTIONS AND EXPECTATIONS OF THE CROWN AND OJIBWAY REGARDING THE AGENCY ONE RESERVE AND THE TWO CHAIN ALLOWANCE .................................................................................... 47 THE CADDY SURVEY OF THE AGENCY ONE RESERVE .......................................................................... 56 THE EVIDENCE OF THE SURVEY EXPERTS ........................................................................................... 57 FURTHER SURVEYS SUBSEQUENT TO CADDY’S SURVEY ..................................................................... 65 C.C. FORNERI D.L.S. SURVEY OF McIRVINE TOWNSHIP ................................................................... 66 D.J. GILLON O.L.S. SURVEYS .......................................................................................................... 67 THE ONTARIO and MINNESOTA POWER Co. v. THE KING [1925] A.C. 196 (J.C.P.C.) ............................. 72 THE TRIAL DECISION ..................................................................................................................... 72 APPEAL TO THE SUPREME COURT OF CANADA .............................................................................. 82 APPEAL TO THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL ...................................................... 82 FACTS RELEVANT TO DEFENCE OF LACHES, LIMITATIONS AND DELAY ................................................ 83 CLAIMS FOR FLOOD DAMAGE ....................................................................................................... 83 KNOWLEDGE OF OMPC DECISION ................................................................................................. 84 1930’S ROAD EXCHANGE .............................................................................................................. 84 DEVELOPMENT ON TWO CHAIN ALLOWANCE WITHOUT PROTEST BY PLAINTIFFS .......................... 85 EVENTS BETWEEN THE 1970’S AND THE START OF THIS LITIGATION ............................................... 86 DISCUSSION OF THE ISSUES .............................................................................................................. 94 IS THE PLAINTIFFS’ CLAIM BARRED ON THE BASIS OF RES JUDICATA, ISSUE ESTOPPEL, ABUSE OF PROCESS AND ONTARIO AND MINNESOTA POWER CO. v. THE KING [1925] A.C. 196? .................... 94 3 WAS THE TWO CHAIN ALLOWANCE SET ASIDE AS PART OF THE AGENCY ONE RESERVE OR WAS IT EXCLUDED FROM THE RESERVE? ................................................................................................. 102 WAS IT INTENDED, PURSUANT TO TREATY #3 OR THE RESERVE SELECTION NEGOTIATIONS, THAT TWO CHAIN ALLOWANCE WAS TO BE PART OF THE AGENCY ONE RESERVE SUCH THAT THE FAILURE TO INCLUDE IT WITHIN THE RESERVE AS SURVEYED WAS A BREACH OF AGREEMENT, A BREACH OF THE CROWN’S FIDUCIARY DUTY OR A BREACH OF THE HONOUR OF THE CROWN? ....................... 121 IS THE PLAINTIFFS’ CLAIM BARRED ON THE BASIS OF LACHES, LIMITATIONS OR DELAY ................ 129 IF THE TWO CHAIN ALLOWANCE IS INCLUDED IN THE AGENCY ONE RESERVE DID TITLE TO IT VEST IN THE TOWN OF FORT FRANCES PRIOR TO PROVINCIAL CONFIRMATION OF THE RESERVE .............. 129 CONCLUSION.............................................................................................................................. 130 COSTS ........................................................................................................................................ 130 4 INDEX OF EXPERT WITNESSES FOR THE PLAINTIFFS A. Dr. C. Miller. Scope of Expertise for Dr. Cary Miller: Historian and ethnohistorian specializing in the use of written documentation, ethnographic documentation, and oral evidence to reconstruct the past cultures of Aboriginal peoples, as well as the history of contact between Aboriginal peoples and the European newcomers throughout the western Great Lakes regions of the United States and Canada, with a specialization in Anishinaabeg societies. Report Exhibit #37 B. Dr. B. White. Scope of Expertise for Dr. Bruce White: Historian and anthropologist specializing in the use of written documents, oral tradition, and archaeological evidence to reconstruct the past cultures of Aboriginal peoples, as well as the patterns of interaction between Aboriginal peoples and the European newcomers, throughout the western Great Lakes regions of the United States and Canada. Report Exhibit #37 C. Mr. R. J. Stewart, B.Sc., O.L.S., C.L.S. Scope of Expertise for Mr. R.J. Stewart: Surveying practice, principles and procedures including interpretation of survey- related historical records such as instructions, descriptions, plans, field notes, reports, diaries, and related correspondence, Ontario lands and Canada lands. Surveying practice, principles and procedures employed in the application of legal principles in surveyor opinions on boundaries and related title questions; including historical evidence interpretation and the effect of relevant common law principles, statutes and regulations, executive government orders, etc. Interpretation of plans of survey and legal descriptions for parcels of land. Report Exhibit #10. FOR CANADA A. Dr. A. von Gernet. Scope of Expertise for Dr. Alexander von Gernet: Dr. von Gernet is an anthropologist and ethnohistorian qualified to give expert opinion evidence on the use of archaeological data, written documentation and oral evidence to reconstruct the past cultures of Aboriginal peoples, as well as the history of contact between Aboriginal peoples and European newcomers throughout Canada and parts of the United States. Report Exhibit #55 B. Dr. V. Lytwyn. Scope of Expertise for Dr. Victor Lytwyn: Qualified as an historian and historical geographer to give expert opinion evidence on historical records research, the interpretation of historical records including maps, and 5 Canadian history including the historical facts relating to Treaty 3, the setting aside and administration of reserves pursuant to such Treaty, and the development of westward transportation routes in Canada in the 19th century. Report Exhibit #65 FOR THE CORPORATION OF THE TOWN OF FORT FRANCES A. Dr. J. Williams. Scope of Expertise for Dr. Jeremy Williams: Registered Professional Forester in Ontario with knowledge and expertise concerning the matters of the forests in Northwest Ontario, the history of the woodshed (and watershed as it relates to forestry) associated with Fort Frances, including forestry history, management, and operations, and more particularly with regard to: The development of the forest industry in the 1870’s, context, how it was managed and operations conducted, including reference to seasonality and use of water; The beginnings of the forest industry in the Rainy Lake, Lake of the Woods, and related area/region (the “Area”); Progression of the forestry industry generally and in the Area in the time period into the 1900’s, context, its importance, management, operations and changes in operations; Other aspects and components of the forest industry generally and with reference to the Area, including mills, dams, roads, and other
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