Ontario (Attorney General) v. Bear Island Foundation

Supreme Court of Canada – [1991] 2 S.C.R. 570

Ontario Aboriginal titleTreaties

In a very short decision, the Supreme Court of Canada confirms that the Robinson-Huron Treaty has extinguished aboriginal rights on the Nation’s traditional territory. The Court appears to take into account the fact that the Crown’s breach of fiduciary duty is being discussed in negotiations.


Did the Robinson-Huron Treaty extinguish the Temagami Band’s Aboriginal title to their traditional territory?


Yes, the Robinson-Huron Treaty extinguished the Temagami’s title (unanimous decision).


Between: The Bear Island Foundation and Gary Potts, William Twain and Maurice McKenzie, Jr. on behalf of themselves and on behalf of all other members of the Teme-Augama Anishnabay and Temagami Band of Indians

And: Ontario

Interveners: Canada, Quebec, British Columbia, Alberta, Newfoundland, Union of Ontario Indians, Association of Iroquois and Allied Indians, National Indian Brotherhood / Assembly of First Nations, Mocreebec, Randy Kapashesit and Delgamuukw, also known as Earl Muldoe, on his own behalf and on behalf of all members of the House of Delgamuukw, and others


In 1850, the Crown entered into the Robinson-Huron Treaty with Aboriginals living in the Lake Huron area. The different nations were to cede their Aboriginal title to their traditional lands in exchange for annuities and the establishment of reserves. From 1856 to 1882, treaty annuities were given to Indian bands in the region, but not to the Temagami Band. In 1880, Indian Affairs declared that the Temagami Band was never party to the Robinson-Huron Treaty.

This changed in 1883, when the Band started to receive annuities (Bennett, 1991). In 1943, a 1.8 square miles reserve was established for the benefit of the Temagami Band on Bear Island, on land purchased from the Ontario government.

In 1973, the Band succeeded in stopping development on Maple Mountains, Crown lands that were part of their traditional territory, by filing a land caution at the Ontario Land Titles Office (Potts, 1998). They secured the caution the following year for 4,000 square miles.

In 1979, the Band systematically rejected the treaty annuities as part of its strategy to obtain a settlement from the Ontario government for their Aboriginal title (Bennett, 1991).

From 1974 to 1984, Ontario began proceedings against the Bear Island Foundation to confirm the Crown’s title and reject any other forms of interest, title or right on the part of the Band to the tract of lands.


Ontario: The Temagami do not possess an Aboriginal right with respect to the land since this right was extinguished either by the Robinson-Huron Treaty or by an unilateral act by the Ontario government.

The Temagami Band, represented by the Bear Island Foundation: Their members hold an Aboriginal right to the tract of lands in question which gives them a right of possession. The criteria set forth by the trial judge, who insisted on their need to prove the presence of an organized society within the Teme-Augama Anishnabai when the Royal Proclamation of 1763 was adopted, imposed an impossible burden on the Band of proving their Aboriginal title. They would have to prove the exclusive use of the lands by the Band (Bennett, 1991).

Decision of the lower courts

Provincial Court of Ontario (1984): The Temagami do not possess an Aboriginal right to the land. Even if they had ever had the right to the tract of land, the Robinson-Huron Treaty of 1850 has annulled it. They were represented by another band at the signing and, by accepting annuities from 1883 to 1979, the Band implicitly accepted the terms of the treaty.

Ontario Court of Appeal (1989): The Foundation’s appeal is dismissed on the same grounds as in the lower court’s decision, namely, that the Band’s Aboriginal right has been extinguished by the Robinson-Huron Treaty.

Reasons for Judgement


Lamer, La Forest, Gonthier, McLachlin et Stevenson (decision by ‘The Court’).


This case has a highly factual basis. As a consequence, the Court could not overturn the decisions made in the lower courts without a clear mistake in the trial judge’s appreciation of those facts, such as a mistake on the burden of proof: did the Band had to prove their exclusive occupation of their traditional territory?

When the Royal Proclamation of 1763 came into effect, the Teme-Augama Anishnabai had an Aboriginal title to their traditional lands even though they were not an organized society from a European standpoint. Nevertheless, it was needless to study the Band’s claim in detail since the Robinson-Huron Treaty extinguished the Band’s Aboriginal right. The fact that the Band accepted the annuities in 1883 shows that they were party to this treaty.

The subsequent breach by the Crown of its fiduciary duty by not giving the Band a reserve until 1943 does not change the abrogation of the Aboriginal rights by the treaty. These issues are under negotiation.


At the time, the Delgamuukw case had just been decided in the British Columbia Supreme Court. It was not until 1997 that a Supreme Court decision was made in which Aboriginal title was defined and the criteria to be met for it to be recognized were established.

Related Cases

Rv. Howard, [1994] 2 S.C.R. 299

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010


Bennett Richard. 1991. The Affirmation of Aboriginal Rights in Canada: Delgamuukw and Bear Island, Aboriginal Law Journal 62. On-line. http://www.austlii.edu.au/au/journals/AboriginalLB/ 1991/62.html. Consulted June 13, 2009.

Potts Gary. 1998. Bushman and dragonfly [The struggle of the Teme-Augama Anishnabai to win back and protect their homeland in the Temagami region], Journal of Canadian Studies, Summer 1998. On-line. http://findarticles.com/p/articles/mi_qa3683/is_199807/ai_n8800205. Consulted June 13, 2009.

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