Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs sought certification of a class action under The Class Actions Act, representing successor bands to Treaty 6, alleging Canada breached treaty obligations by failing to address the opioid crisis.

• Central to the claim were the interpretation and application of the “Pestilence” and “Medicine Chest” clauses of Treaty 6, with plaintiffs arguing these imposed a duty on Canada to provide aid during health crises.

• The admissibility of internet-based news articles and a non-expert affidavit was challenged, raising questions about evidentiary standards at the certification stage.

• The court found the pleadings disclosed a cause of action, an identifiable class existed, and two of three proposed common issues were valid, but the plaintiffs failed to show a class action was the preferable procedure.

• The court emphasized that treaty rights are collective and require consistent interpretation, making representative actions more suitable than class actions for such claims.

• Certification was ultimately denied due to the lack of a preferable procedure and an insufficiently workable litigation plan for advancing the action on behalf of the class.

Facts of the case

The Lac La Ronge Indian Band and the Peter Ballantyne Cree Nation, acting as plaintiffs, applied to the King’s Bench for Saskatchewan to have their proceeding certified as a class action under The Class Actions Act. The proposed class consisted of the successor First Nation Indian Bands to the signatories of Treaty 6, a historic agreement between the Crown and various Indigenous peoples across Alberta, Saskatchewan, and Manitoba. The plaintiffs alleged that the opioid addiction epidemic had caused widespread harm throughout Treaty 6 Territory, including increased crime, cultural erosion, family breakdown, unemployment, and significant health impacts such as malnutrition, overdoses, and death.

The plaintiffs claimed that Canada, represented by the Attorney General, was obligated under Treaty 6—specifically the “Pestilence” and “Medicine Chest” clauses—to provide medical care and assistance during times of calamity, such as the opioid crisis. They asserted that Canada had failed to consult with class members or implement effective abatement and treatment programs, thus breaching its treaty obligations.

Policy terms and clauses at issue

The two key Treaty 6 provisions at issue were:

• The “Pestilence” clause, which requires the Crown to provide assistance to Indigenous peoples in the event of pestilence or famine, as deemed necessary by the Chief Superintendent of Indian Affairs.

• The “Medicine Chest” clause, which obligates the Crown to maintain a medicine chest at the Indian agent’s residence for the benefit of Treaty 6 members.

The plaintiffs argued that these clauses, interpreted in light of modern treaty jurisprudence, imposed ongoing obligations on Canada to address health crises like the opioid epidemic. The court noted that while both clauses were referenced, only the Pestilence clause was advanced as the basis for a common issue, with the Medicine Chest clause serving to inform its interpretation.

Evidentiary challenges and admissibility

Canada challenged the admissibility of certain evidence submitted by the plaintiffs, including internet-based news articles and an affidavit from a speech pathologist without expertise in opioid addiction. The court admitted the news articles, finding them reliable due to their source (CBC) and relevance to establishing a factual basis for certification criteria. The affidavit was admitted for the limited purpose of demonstrating that some scientific basis exists for the claims, not as expert opinion.

Certification criteria and analysis

The court systematically addressed the five statutory criteria for class action certification:

1. Cause of action: The pleadings disclosed a reasonable cause of action, as breach of treaty rights is a recognized legal basis.

2. Identifiable class: The class was clearly defined as the 47 bands recognized as Treaty 6 successors, with objective criteria for membership.

3. Common issues: Two proposed common issues—whether the opioid crisis constitutes a “pestilence” or “calamity” under Treaty 6, and whether Canada is obliged to provide assistance—were accepted. A third issue, regarding the form of relief, was rejected as too vague and individualized.

4. Preferable procedure: The court found that a class action was not the preferable procedure. It emphasized that treaty rights are collective, and allowing bands to opt out of a class action could lead to inconsistent interpretations and fragmented litigation. Representative actions, which bind all parties and promote consistency, were deemed more appropriate for treaty rights claims.

5. Representative plaintiff and litigation plan: While the proposed representative plaintiff was suitable, the litigation plan was found lacking in detail and practicality, particularly regarding the distribution of relief and consideration of existing government programs.

Ruling and outcome

The court denied the application for certification as a class action. Although the plaintiffs met several certification criteria, they failed to establish that a class action was the preferable procedure for resolving the common issues. The court highlighted the importance of consistent and unified interpretation of treaty rights and found that a representative action or conventional lawsuit would better serve the interests of the parties and the justice system. No monetary award or costs were ordered, as the decision was limited to the procedural question of certification. The plaintiffs’ claim may still proceed by other procedural means, but not as a class action.