Treaty 9 Jurisdiction Case not just a northern Ontario issue

Written by: Kenji Tokawa

Last month, treaty rights found a strong advocate in northern Ontario.

On April 26, 2023, ten Treaty 9 nations launched a historic lawsuit to take back jurisdiction over their territories. In their draft statement of claim, to be filed in court this summer, they advocate:

• the treaty promised protection for their way of life
• their jurisdiction over lands, waters, and resources was and remains essential to that way of life
• the nations did not consent to cede, release, or surrender their jurisdiction
• the Crown needs the nations’ consent to activities and laws that affect Treaty 9 territory, otherwise it breaches the treaty

In the bigger picture, these are not just Treaty 9 issues. Very similar language to Treaty 9 is in:

• Treaty 3
• Treaty 4
• Treaty 5
• Treaty 6
• Treaty 7
• Treaty 8
• Treaty 10, and
• Treaty 11.

But for the most part, treaty nations have not yet tested their jurisdiction in court.

In the 1970s, a preliminary challenge to Treaties 8 and 11 exposed that the Indigenous signatories may not have given up their rights over the land either. In that case, federal Crown lawyers refused to even attend the trial. A full airing of the facts and law did not occur, and the matter was not definitively decided.

For each treaty nation, the success of each case will depend on:

• the kind of historic and other evidence they put before the Crowns and the courts, and
• the arguments they make to defend their jurisdiction.

That is the expertise of the s 35 Practice Group at Woodward and Company. Along side the courageous clients we work with, we have a proven track record of strategic, precedent-setting success in rights cases and in negotiations. We are proud to say that we:

• represent ten (so far) Treaty 9 nations in this historic case,
• represented the first Indigenous group to prove Aboriginal title (Tsilhqot’in Nation v British Columbia, 2014 SCC 44),
• represented the first Indigenous groups to win an injunction to protect traditional lands based on their claim to Aboriginal title (MacMillan Bloedel v Mullin [Clayoquot and Ahousaht] [1985] BCJ No 2355 (BCCA)), and
• represent the Cowichan Nation in proving title to their historic village at Tl’uqtinus and their right to fish for food in the area.

To find out more about how the Treaty 9 case affects your nation, please contact: