The Ontario government is asking a court to dismiss a lawsuit brought by 10 Treaty 9 First Nations that challenges who gets to decide how land and resources are used across much of northern Ontario.

The case was argued Thursday at the Ontario Superior Court of Justice in Toronto and continues Friday. 

The lawsuit, filed in April 2023, seeks to change how decisions about land, water and natural resources are made in Treaty 9 territory, an area that covers about two-thirds of the province.

The First Nations involved claim they never agreed to cede, release, surrender or yield up their jurisdiction to govern and care for the lands, as it says in the written treaty, which was first entered into law in 1905.

What happened in court

The province is asking the court to end the case before it goes any further, arguing the lawsuit should be dismissed without a full hearing or trial because, in its view, it cannot succeed under Canadian law.

Lawyers representing Ontario told the court that even if all the facts described by the First Nations are assumed to be true, the claims go beyond what the Constitution allows and therefore should not move forward.

They argue that while treaties protect certain Indigenous rights, they do not give First Nations the power to veto or control provincial and federal laws and while Indigenous treaty rights must be respected, Ontario believes those rights exist within that system, not outside of it.

The province's lawyers say the courts have repeatedly ruled that consent is not required for governments to act, even though governments must consult Indigenous communities and justify any actions that affect treaty rights.

On the same day as the hearing, Prime Minister Mark Carney and Ontario Premier Doug Ford signed an agreement aimed at accelerating development of major projects in the province, like building the road to the Ring of Fire mineral deposit, which is in Treaty 9 territory.

Lawyer Kate Kempton, representing the First Nations, told the court that Ontario’s motion asks for the case to be shut down before any evidence is presented, something she said would be inappropriate given the issues at stake.

Kempton said the lawsuit is not about undoing Canada’s Constitution or denying Crown sovereignty. Instead, she said it asks a narrower question about what the Crown promised when Treaty 9 was signed, and what legal obligations flow from those promises today.

She argued treaties are not limited to the written text alone, but also include what was said and understood at the time they were negotiated. Kempton told the court that evidence, which has not yet been heard in court, will be key to understanding what First Nations agreed to and what they were promised.

At the heart of the case, she said, is a core treaty promise that First Nations would be able to continue their way of life. 

“This is Ontario's motion to strike out a case before any evidence is before the court, before any legal argument on the merits. It is to shut down First Nations attempts, in their view, a fight for their lives by way of their own laws and their own cultures and their own ways of life on their own lands,” she told the court. 

Kempton argued that governance over land and resources was an essential part of that way of life, pointing out that First Nations had long-standing systems for managing and regulating land use before Treaty 9 was signed.

She said the First Nations are not claiming exclusive control, but shared authority, meaning decisions about land use would involve federal and provincial governments and First Nations, rather than being made unilaterally.

Kempton rejected the suggestion that the lawsuit seeks “extraordinary” or unprecedented remedies. She told the court the claims may sound broad only because the treaty promises themselves were broad.

What Treaty 9 First Nations are arguing

"This case provides an opportunity for the Crown to act honorably. And for the courts to give additional guidance about how treaty relationships are understood and implemented today," said National Chief Cindy Woodhouse Nepinak of the Assembly of First Nations at a press conference before the hearing.

"Together, we call upon the government of Ontario to come to the negotiating table and work honorably with Treaty 9 First Nations to develop a mutually agreeable framework for land and resource decision-making. The bottom line is that Treaty 9 requires the Crown to act in partnership with First Nations. Treaty 9 calls for partnership, it calls for respect," she said.

The lawsuit argues that by approving mining, forestry, water use and other developments without consent, the federal and provincial governments have harmed the land and made it harder for First Nations to exercise treaty rights such as hunting and fishing.

The First Nations are asking the court to recognize a system of shared decision-making called co-jurisdiction where governments and First Nations would jointly decide how Treaty 9 lands are used.

The lawsuit is seeking $95 billion in damages for Treaty 9 First Nations, as well as injunctions to prevent the provincial and federal governments from enforcing regulations in the treaty lands without the consent of the First Nations.

The hearing continues on Friday and there is no word on when the judge will issue a decision.