Who is a First Nation & Who Gets to Decide?

Who is and isn't a First Nation, who gets to decide, and what are the required attributes of a First Nation? These fundamental identity questions sometimes play out far from the view of non-Indigenous peoples, at other times less quietly at Crown-Indigenous negotiations tables, and occasionally in the public spotlight of Canada's judicial system.

In Anishinabeg v. AGC et al, 2026 ONSC 4430 the Ontario Superior Court of Justice grappled with how to deal with proposed interventions on a representation motion where the moving party Kitigan Zibi Anishinabeg (an Algonquin First Nation in Quebec located 130 km away from the Title claim location), was pursuing a civil action claiming Aboriginal Title to Parliament Hill and surrounding federal Crown lands asserting the action was "on behalf of all other members of the Algonquin Anishinaabe Nation," which it defined as 11 Indian Act status bands, 10 of which are located in Quebec.

The Court required the plaintiffs to bring a motion to establish the basis for representing the Algonquins they claimed to be representing. Eleven First Nations then sought to intervene in this motion, such was its significance to them!

I was counsel of record to nine of the potential intervenors (together with my co-counsel Matt Hodgson), none of whom had ever distinctly asserted their legal personality in Canada's Court system, despite longstanding negotiations with Canada and Ontario in the Algonquin Comprehensive Claim process. Referred to by the Court as the Nine Algonquin Collectives, they are: "Antoine Nation, Bonnechere Algonquin First Nation, Algonquins of Greater Golden Lake First Nation, Kijicho Manito Madaouskarini Algonquin Nation, Mattawa/North Bay Algonquin First Nation, Ottawa (Omami Ininiwak First Nation), Shabot Obaadjiwan First Nation, Snimikobi Algonquin First Nation & Whitney and Area Algonquins."

Importantly, the Court found that all Nine Collectives had standing to move to intervene: "The Collectives' motion to intervene is therefore properly before the Court." While it might seem minor on its face, this was an important recognition contributing to First Nation legal personality, just as Canada and Ontario's acceptance of the Nine Collectives as equal parties at the Algonquins of Ontario negotiation table was a major step towards recognized legal personality.

The point the Nine Collectives were making was that "the Plaintiffs' asserted definition of the Algonquin Anishinabe Nation is not universally accepted and excludes other Algonquin Indigenous collectives who form part of the historic and continuing Algonquin Anishinabe Nation."

The Court found that "whether that collective [proposed by the plaintiffs] is the proper rights holder is a matter for trial" where "These findings are without prejudice to [the Nine Collectives'] ability to seek leave to intervene in the underlying action." The struggle for First Nation recognition can take many forms.

Author Gordon Scott Campbell practices Indigenous and Aboriginal law throughout Canada, with a focus on Ontario and Manitoba. Learn more about him at fnadvocates.ca.