Canada tried to quash First Nation land claim with this handwritten 1889 ruling. It failed

A lot is at stake, literally thousands of square kilometres of land in Ontario which was arguably never ceded by the First Nation band that previously occupied it

Published Sep 09, 2024  •  Last updated 0 minutes ago  •  5 minute read

A microfilm scan of the handwritten 1889 decision that set the Atikameksheng Anishnawbek First Nation's land boundary as it exists today, which it claims is much smaller than what was promised in an older treaty. Photo by Court handout

Earlier this summer, an Ontario Superior Court judge inspected a historical document, and he was pleased, impressed even.

It was a handwritten stack of papers, cursive but unadorned, clear and not at all frilly, capably following invisible lines, and written in a practised hand that saved its restrained flourishes for the curlicued squiggles that precede capital Fs or As or Gs.

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This, thought the judge, is “surprisingly aesthetic and easily legible handwriting.”

“In reading it, one cannot help but commend the penmanship of its author,” commented Justice Edward M. Morgan in a new ruling. Even the wet ink smears were few and far between.

But this was not an exercise in antique handwriting analysis and appreciation. The first handwritten words announce the significance: “This action is brought by the Attorney General of Ontario on behalf of Her Majesty the Queen against John Harvey Francis …”

That Queen in question was Victoria, not Elizabeth, and as he read this handwritten court judgment from 1889, almost as old as Canada itself, Justice Morgan was faced with a vexing problem.

What is the best before date on a judicial ruling? How settled is settled law? Can a court’s decision go stale? How about after more than a century? This was a valid handwritten decision issued in January 1889 after a five day trial by Justice Thomas Ferguson sitting in the Ontario High Court of Justice Chancery Division, which was the Superior Court of record for Ontario at the time.

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But what if it was wrong? And what if it took 135 years to see why?

Certainly, a lot was at stake, literally thousands of square kilometres of land near Sudbury, Ont., which was arguably never ceded by the First Nation band that previously occupied it.

While finality of judgments is important in the justice system, it is not more important than justice itself

Justice Edward M. Morgan

Atikameksheng Anishnawbek is now based west of Sudbury, on reserve lands that measure just 174 square kilometres.

But the First Nation says this is just a small part of the land set out for their exclusive benefit in the treaty their ancestral Chief Shawinacishick signed with Canada in 1850, as part of a wider effort to settle Indigenous land claims, and in this case recognize the First Nation’s assistance in the War of 1812. The true extent of their land, according to their ongoing lawsuit against Canada, is about 2,670 square kilometres.

The problem was that the treaty signed in 1850 set out an area, but it was never properly surveyed at the time.

So, 30 years later in the 1880s, when there was a broader clash in Canadian federalism over resource rights, especially timber, conflicts arose over who could make money from issuing permits, Canada or Ontario.

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That was the main point of Ferguson’s decision in the 1889 Francis case, to set the boundaries, and decide whether Canada or Ontario could profit from timber licences on the rest. In the end, Canada won.

That case was nominally against people who had received timber licences, but as Justice Morgan found after reviewing the handwritten judgment from the five-day trial, it was in effect a legal fight between Ontario and Canada over the Atikameksheng Anishnawbek land. And the Atikameksheng Anishnawbek were not even a party to the trial.

The result was to set the boundaries as they remain today.

“We say the boundaries as surveyed in 1884 are smaller and do not reflect the area promised in treaty,” said Ryan Lake, lawyer for Atikameksheng Anishnawbek in an interview.

In a hearing argued in June and decided in September, Justice Morgan was faced with two opposite arguments, each plausible in its way.

This was a motion for summary judgment. Canada sent lawyers to argue the case should be thrown out without a trial, basically because there had already been a trial 135 years ago.

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The First Nation claims the old decision “can be revisited because it is old, unfair, and wrong,” Morgan wrote. “The Attorney General of Canada, on the other hand, says that the Francis decision cannot be revisited because it is old and long in force, right or wrong.”

“The jurisprudential question at the heart of this motion is the finality of judgments, including very old ones,” Morgan wrote.

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What he ultimately decided, after inquiring into the authenticity of the document, was that: “While finality of judgments is important in the justice system, it is not more important than justice itself.”

It is true, Morgan decided, that this lawsuit by Atikameksheng Anishnawbek is an effort to relitigate a matter the court has already decided, which is typically not allowed. Their lawsuit is technically an abuse of process in this sense, Morgan found, and a “collateral attack,” which is to say it is trying to re-argue a decision without first properly overturning it.

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But dismissing the First Nation’s case on those grounds, which Canada and Ontario argued for, would be to take a “superficial” view, Morgan said.

“A deeper view of the Francis proceeding demonstrates that although the raison d’être of the doctrines barring re-litigation is the stability of judicial rulings, application of those doctrines in the present circumstance will only perpetuate a structural injustice that Justice Ferguson was powerless to avoid,” Morgan wrote.

The First Nation, then known as the White Fish Lake Band, was excluded from the 1889 trial, but some of its members did testify, including its then Chief Mongowin, son of Shawenakishichik, who described important landmarks. Lake points out that he was elderly and blind at the time, and not best placed to evaluate the maps shown to him.

In any case, the handwritten decision set the boundary as it exists today, which the First Nation claims is much smaller than what was promised in the older treaty.

As Morgan described it, citing a judicial precedent, “injustice can arise from the result of a previous legal process that was designed for a different purpose or that took place in a different context than the present action…. (W)hat was fair and just in carving out jurisdiction between Ontario and Canada in Francis (in 1889), was structurally unfair and unjust in determining the rights and title of (the First Nation).”

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So the modern trial, Morgan decided, can proceed on all issues, primarily the wider land claim. No trial date is set.

Although it involves the same treaty, this Atikameksheng Anishnawbek case is separate from the settlement last year of cases related to the Robinson Huron Treaty, which was about annual payments tied to resource revenues promised to First Nations for use of their lands, but never fully paid. Canada and Ontario have each pledged $5-billion under the legal settlement.

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