Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of the February 11, 2022 Representation Order under Rule 10.01(1), including whether the “group” of Treaty 1 annuitants covered by the order includes Brokenhead Ojibway First Nation and Swan Lake First Nation and their memberships.

• Questions about whether an individual Treaty 1 annuitant (the plaintiff) can bring and prosecute a claim relating to Treaty 1 annuity payments on behalf of all annuitants, in contrast to claims advanced by First Nations governments or as a proposed class action.

• Challenges to the admissibility and weight of the affidavits of Chiefs Gordon Bluesky and Jason Daniels, particularly their use of information-and-belief evidence without clearly identified sources, inclusion of historical material, and statements characterized as argument rather than evidence.

• Striking of the affidavit of Dr. Victor P. Lytwyn on the basis that it did not meet the requirements for expert opinion evidence, including the absence of clear opinion, cited sources for historical summaries, a statement of independence, and disclosure of instructions.

• Reliance on Rule 10.03 to seek relief from the binding effect of the Representation Order, and the court’s analysis of whether the Moving Parties’ interests differ from those of the plaintiff and RRAFN or whether there is “some other sufficient reason” to set the order aside.

• Consideration of whether treaty annuity and treaty interpretation claims should proceed by representative action rather than class action, in light of the collective nature of treaty rights and the incompatibility of opt-out mechanisms with the need for a single binding interpretation.

Background and parties

The proceeding concerns annuity payments by the Crown pursuant to Treaty 1, signed in 1871. The plaintiff, Zongidaya Nelson, brings the claim on his own behalf, on behalf of Roseau River Anishinabe First Nation (RRAFN), and as representing a group of persons who are entitled to receive an annuity payment from the Crown pursuant to Treaty 1. The defendant is the Attorney General of Canada. The Moving Parties on this motion are Brokenhead Ojibway First Nation and Swan Lake First Nation. The parties agree that there are seven Treaty 1 First Nations: Roseau River Anishinabe First Nation, Long Plain First Nation, Sagkeeng Anicinabe Nation, Sandy Bay Ojibway First Nation, Pequis First Nation, Swan Lake First Nation, and Brokenhead Ojibway First Nation. The plaintiff seeks relief in relation to the payment of an annuity by the Crown under Treaty 1. In 2022, the Court granted a Representation Order in favour of Mr. Nelson to advance the claim “on his own behalf and on behalf of the Roseau River Anishinabe First Nation, to represent a group of persons who are entitled to receive the annuity payment pursuant to Treaty 1 from the Crown,” and directed that notice of the claim and the order be provided to the Chiefs and Councils of all Treaty 1 First Nations other than RRAFN by registered mail, with a report back to the Court and the defendant on service. The Moving Parties now ask the Court to vary that Representation Order to exclude them and their memberships and to declare that any decision after trial will be without prejudice to their rights and claims.

Procedural history and steps leading to the motion

The court set out a timeline of relevant events. On July 22, 2019, the plaintiff filed the statement of claim. On July 5, 2021, RRAFN passed a Band Council Resolution providing its full authorization to the plaintiff to advance the claim. On February 11, 2022, Justice Edmond granted the Representation Order on a consent basis. On January 19, 2023, the plaintiff and his counsel met with Treaty 1 First Nations, including the Moving Parties, to discuss the action, the Representation Order, and questions. On January 23, 2023, the plaintiff served the Treaty 1 First Nations, including the Moving Parties, with the claim and the Representation Order by registered mail. On November 20, 2023, the plaintiff and his counsel met with leadership from each Treaty 1 First Nation, including the Chiefs of the Moving Parties, and gave a presentation that stated the claim was “on behalf of the group of people who receive an annuity under Treaty 1.” On February 20, 2024, counsel for the plaintiff wrote to the Treaty 1 First Nations, including the Moving Parties, and repeated that all annuitants were included in the claim, and asked that they attend an advisory circle. On March 28, 2024, trial dates were set for February 2026 at a case management conference. On January 20, 2025, the Moving Parties (and two other plaintiffs) filed a claim in the Federal Court of Canada alleging breaches of Treaties 1 and 2, proposed to proceed as a class action (the “Proposed Class Action”). On February 14, 2025, plaintiff’s counsel again wrote to the Treaty 1 First Nations, including the Moving Parties, repeating that all annuitants were included and again asking them to attend an advisory circle. On February 26, 2025, the Moving Parties advised the plaintiff that they intended to bring a motion to be excluded from the action, and on May 16, 2025, they filed the motion. The plaintiff’s affidavit also refers to additional points of contact with the Moving Parties, which the judge accepted but did not list in detail.

The evidentiary rulings on the Chiefs’ affidavits

The affidavits of Chief Gordon Bluesky and Chief Jason Daniels, filed on behalf of the Moving Parties, became a focus of the evidentiary issues. Rule 39.01(4) allows an affidavit for use on a motion to contain information-and-belief evidence if the source of the information is specified. The defendant argued that both affidavits contained multiple assertions of fact introduced by phrases such as “I am told and do verily believe” without identifying the source, and that they also included statements that were argumentative and not proper evidence. The Moving Parties invoked case law emphasizing flexible treatment of Indigenous evidence, including Mitchell v. M.N.R. and Winnipeg (City) v. Caspian Projects Inc., where courts recognized that strict source-identification requirements should not always be applied rigidly if the source is obvious when the affidavit is read generously. The court observed that some of the challenged evidence related to events around the signing of Treaty 1 in 1871 and acknowledged that such information would have been passed down over a lengthy period of time from various sources, making strict compliance with Rule 39.01(4) difficult. The judge was prepared to apply the rules flexibly in light of the nature of the historical evidence. At the same time, relying on Interlake Reserves Tribal Council Inc. et al. v. Manitoba, the judge noted that courts must assess whether a witness is a reasonably reliable source of history and differentiate reliable Indigenous traditional knowledge from speculation, opinion, and argument. The Bluesky and Daniels affidavits did not set out details of historical sources or traditional knowledge, which made it difficult to assess reliability. The judge also found that while historical evidence on Treaty 1 interpretation would be important at trial, it was not particularly relevant to deciding how to interpret or vary the Representation Order on this motion. As a result, the court attached little weight to the historical evidence in the Bluesky and Daniels affidavits for purposes of the motion. In addition, the court agreed with the defendant that some portions of those affidavits amounted to argument, including beliefs on why the interests of Treaty 1 First Nations would be better served by the Proposed Class Action and why First Nations governments, and not the plaintiff, ought to prosecute claims about Treaty 1 annuity payments. The judge treated these as submissions and did not consider them as evidence.

The expert affidavit of Dr. Victor P. Lytwyn

The Moving Parties filed an affidavit from Dr. Victor P. Lytwyn, who holds a Ph.D. in historical geography and stated that he is an expert in treaty and Aboriginal rights. He attached two documents described as “expert opinion reports,” one about the signing of Treaty 1 and the other about additional promises outside of Treaty 1. The plaintiff argued that this affidavit was inadmissible for several reasons: the notice of motion did not indicate that expert evidence would be relied on; the Lytwyn affidavit was only served on June 17, 2025, leaving no opportunity to respond in kind; the plaintiff’s request for disclosure of the letter of instruction to Dr. Lytwyn was refused, and counsel for the Moving Parties objected to questions about his retainer and instructions at Chief Bluesky’s cross-examination; Dr. Lytwyn’s curriculum vitae did not show specific expertise on Treaty 1; the two reports did not state the questions asked, the materials reviewed, a statement of independence, or an acknowledgement of a duty to the court; one report appeared to summarize a historical document without identifying the source; the other reproduced text of historical documents that were not in evidence; and overall the reports did not provide opinion evidence or assist the court. The Moving Parties responded that the Lytwyn affidavit was filed as “further and other materials,” that it provided important and uncontroversial historical context, and that Dr. Lytwyn had not been cross-examined and the underlying documents had not been requested. The court concluded that there were multiple problems with admissibility. Although the affidavit described the attached documents as “expert opinion” reports, they did not express an opinion or analysis on issues before the court; instead, they summarized historical information without citing sources, and their relevance to the motion was unclear. The affidavit did not contain a statement of independence or duty to the court, and the instructions given to Dr. Lytwyn were not disclosed. The judge was not satisfied that the requirements in R. v. Mohan or White Burgess Langille Inman v. Abbott and Haliburton Co. had been met, and ordered that the Lytwyn affidavit be struck from the court record.

The challenged portions of the plaintiff’s affidavit

Paragraphs 68 to 75 of the plaintiff’s affidavit described various claims and matters involving the Moving Parties’ counsel of record, Maurice Law. The Moving Parties submitted that these paragraphs were scandalous, frivolous, and vexatious, and should be struck under Rule 25.11, or at least given no weight. The court found that, at best, those paragraphs attempted to explain why the plaintiff had concerns about Maurice Law acting as class counsel in the Proposed Class Action, which was not relevant to the motion. At worst, they appeared designed to embarrass the firm by pointing to situations where it had encountered or could have encountered negative or adverse outcomes. The judge found them irrelevant to the issues before the court and concluded that they should not have been included. Paragraphs 68 through 75 of the plaintiff’s affidavit, together with the referenced exhibits, were struck from the record.

Whether the Representation Order applies to the Moving Parties

Although the Moving Parties did not raise the applicability of the Representation Order in their notice of motion, they raised it in their motion brief and oral submissions. The plaintiff objected to that approach but the judge agreed to consider the issue. Rule 10.01(1) allows the appointment of a representative for persons or a class of persons who have an interest in, or may be affected by, a proceeding. The court found that the Treaty 1 First Nations, including the Moving Parties, clearly have an interest in or may be affected by the proceeding because their members are entitled to Treaty 1 annuity payments. The Representation Order states that the plaintiff will represent “a group of persons who are entitled to receive the annuity payment pursuant to Treaty 1 from the Crown.” The term “group” is not defined in the order. The Moving Parties argued that their memberships were not part of this group. Because the order was granted on consent and without reasons, the judge reviewed the record that had been before Justice Edmond. The statement of claim stated that the plaintiff is a representative plaintiff for a class of persons described as “all persons … who are Indians of the Treaty 1 First Nations and who are entitled to receive payments pursuant to Treaty 1 from Canada.” It also stated that seven First Nations, including the Moving Parties, are successors to the original Treaty 1 signatories and that their members are beneficiaries entitled to annuity payments under the treaty. These provisions remained substantively the same through later amendments. In March 2021, the claim was amended to seek, as alternative relief, an order that the plaintiff represent “all individual members of Treaty 1 First Nations in relation to their interests in this proceeding,” in the context of converting the claim from a proposed class action to a representative action. These provisions, along with a June 2021 joint brief and case management conference memorandum stating that the plaintiff would represent “a group of persons who are Indians of the Treaty 1 First Nations and who are entitled to receive payments pursuant to Treaty 1 from Canada” and that the action would have precedential value for all Treaty 1 First Nations and all individual annuity recipients beyond RRAFN, led the judge to conclude that the “group” in the Representation Order is defined by that context. The court held that the scope of the Representation Order includes the Moving Parties and their memberships. The judge also noted that if only RRAFN’s membership had been intended, there would have been no need to refer to a “group” of annuitants and no need to order service of the claim and order on the other Treaty 1 First Nations. The court rejected the Moving Parties’ submission that a November 2022 amendment expanded the group beyond the original scope, and rejected the argument that bringing the claim on behalf of RRAFN derogated from the group definition, noting that the plaintiff is a member of RRAFN and that RRAFN is one of the Treaty 1 First Nations.

The motion to vary the Representation Order

The Moving Parties asked that the Representation Order be varied so that it would not bind them or their memberships, and that the court declare that any decision after trial would be without prejudice to their rights and claims. They argued that the promise to provide treaty annuities was made to the “bands” as a collective right recognized and affirmed by s. 35(1) of the Constitution Act, 1982; that only First Nations have standing to challenge the interpretation or alleged breach of collectively held treaty rights; that allowing individuals to assert treaty rights separately from First Nations would allow the Crown to exploit a power imbalance and dilute its treaty obligations; that they had not been consulted and had not authorized the plaintiff to represent them; that they were not bound by RRAFN’s Band Council Resolution; that their interests conflicted with those of the plaintiff; that evidence from First Nations would be necessary at trial to complete the record; that claims about annuitants’ treaty rights should proceed as class actions with opt-out rights; that the motion was not a collateral attack, because Rule 10.03 contemplates relief from the binding effect of a representation order; and that there was no evidence that granting their motion would derail the trial scheduled for February 2026. The plaintiff argued that his interests were aligned with the Moving Parties, that they had been given an opportunity to participate in the action, that the motion was a collateral attack on an unappealed order, that the Moving Parties had not satisfied Rule 10.03, and that the trial should not be derailed and that the Moving Parties had challenged the legitimacy of the action, questioned his standing, and sought to diminish its scope. The defendant’s submissions largely mirrored those of the plaintiff.

Legal framework under Rules 10.01 and 10.03 and relevant case law

The Representation Order was made under Rule 10.01(1), which allows a judge to appoint a person to represent a class of persons who have an interest in, or may be affected by, a proceeding. Rule 10.01(2) provides that such an order is binding on the represented persons, subject to Rule 10.03. Rule 10.03 allows a judge to order that a person will not be bound where the order was obtained by fraud or non-disclosure of material facts, where the person’s interests were different from those represented at the hearing, or where there is “some other sufficient reason” to set it aside. The Moving Parties did not rely on the fraud or non-disclosure ground at the hearing, and the judge noted there was no evidence of either on the record. The court reviewed several decisions addressing treaty rights, collective rights, standing, and procedure, including Gill v. Canada, Soldier v. Canada (Attorney General), Kelly v. Canada (Attorney General), Behn v. Moulton Contracting Ltd., Horseman v. Canada, Ontario (Attorney General) v. Restoule, Chief Derek Nepinak and Chief Bonny Lynn Acoose v. Canada, and Anderson v His Majesty the King in the Right of Alberta. From these authorities, the court noted in particular that treaty rights are collective rights but may have an individual aspect; that class actions with opt-out provisions raise problems when interpreting collective treaty rights because they can lead to multiple proceedings and interpretations; and that representative actions are often considered preferable for treaty interpretation disputes. The court also observed that Federal Court Rule 114, which governed representative actions in some of these cases, differs from Rule 10 in Manitoba.

Application of Rule 10.03 to the Moving Parties’ request

The judge considered whether the Moving Parties’ interests were different from those of the plaintiff and RRAFN under Rule 10.03(b). To do so, the court compared the relief sought in this action and in the Proposed Class Action. In both, the core relief included declarations that the defendant is required to index or augment the annuities paid under Treaty 1, declarations that it breached its obligations by failing to do so, orders quantifying the annuities after indexation or augmentation, and orders for payment of indexed or augmented amounts from and after 1872. The judge concluded that the relief sought is very similar, and that for the purposes of Rule 10.03(b) the Moving Parties’ interests were not different from those of the plaintiff and RRAFN. Under Rule 10.03(c), the judge then considered whether there was “some other sufficient reason” to set aside the Representation Order as it applies to the Moving Parties. The court emphasized that the parties agreed that Treaty 1 annuity payments have always been made directly to individual annuitants, not to the Treaty 1 First Nations. The Moving Parties argued that it was an extraordinary step to bind First Nations that were not formally before the court and that the plaintiff ought to have consulted them and obtained Band Council Resolutions. The court noted that RRAFN leadership is involved in the action and that three other Treaty 1 First Nations have expressly supported the plaintiff’s claim. The judge accepted that all Treaty 1 First Nations, including the Moving Parties, were kept informed of the status of the claim and given multiple opportunities to become involved, including through consultation and a proposed advisory circle, but that the Moving Parties chose not to participate. In distinguishing Kelly and Yahaan v. Canada, the judge highlighted differences in the specific treaty rights at issue and the Federal Court’s rule requiring authorization for representative actions. Referring to Behn, Restoule, and Nepinak, the judge accepted that the right to an annuity under Treaty 1 is a collective right that may be asserted by an individual beneficiary, and rejected the argument that Band Council Resolutions from each Treaty 1 First Nation were required to proceed. The judge concluded that the plaintiff, as a member of a Treaty 1 First Nation, could bring the claim on behalf of the group of annuitants. The court also rejected the suggestion that the plaintiff lacked the ability to vigorously prosecute the claim, stating that he had demonstrated sufficient understanding of the claim and had brought the action to trial with the guidance of counsel. The court underscored that treaties were meant to impose obligations into the distant future, that court decisions interpreting treaties are binding upon all Canadians, that treaty interpretation must result in one binding outcome with no “second chance” for a different interpretation, and that class proceedings with opt-out provisions can lead to multiple proceedings, interpretations, and outcomes, making them inappropriate in treaty interpretation cases. In light of the decision in Nepinak, the judge stated that it was difficult to see how the Proposed Class Action could be certified. The court also noted that the certification motion had not been heard and, to the judge’s knowledge, no hearing date had been set, while the trial in this action was already scheduled for February 2026. On this basis, the judge was not satisfied that there was any sufficient reason to set aside the Representation Order as it relates to the Moving Parties.

Outcome of the motion and effect on the parties

In conclusion, the judge held that little weight should be attached to, or no consideration given to, significant portions of the Bluesky and Daniels affidavits for the purposes of the motion, ordered that the Lytwyn affidavit be struck from the court record, and struck paragraphs 68 through 75 of the plaintiff’s affidavit and their corresponding exhibits. The court found that the Representation Order applies to the Moving Parties and their memberships, that it should not be varied to exclude them, and that there would be no declaration that any decision after trial would be without prejudice to their rights and claims. The motion was dismissed. Neither the plaintiff nor the defendant sought costs of the motion, and the court therefore made no order as to costs. As a result, the Moving Parties’ motion was not granted and no monetary award, damages, or costs were ordered, so no specific amount was awarded in favour of any party in this decision.