Court of Queen=s Bench of Alberta  
Citation: Goodswimmer v Canada (Attorney General), 2016 ABQB 384  
Date: 20160708  
Docket: 9703 06332  
Registry: Edmonton  
Between:  
Chief Melvin Goodswimmer and Jerry Goodswimmer, Walter Goodswimmer,  
Francis Goodswimmer, Pierre Chowace, Mildred Chowace and Donald Badger,  
Councillors of the Sturgeon Lake Indian Band and on Behalf of the Sturgeon Lake Indian  
Band and the Sturgeon Lake Indian Band  
Plaintiffs  
- and -  
The Attorney General of Canada and Her Majesty the Queen in Right of Alberta  
Defendants  
- and –  
The Attorney General of Canada and Her Majesty the Queen in Right of Alberta  
Third Party  
_______________________________________________________  
Reasons for Judgment  
of the  
Honourable Madam Justice D.A. Sulyma  
_______________________________________________________  
Corrected judgment: A corrigendum was issued on July 15, 2016; the corrections  
have been made to the text and the corrigendum is appended to this judgment.  
Corrected judgment: A corrigendum was issued on January 11, 2017; the  
corrections have been made to the text and the corrigendum is appended to this  
judgment.  
Page: 2  
Table of Contents  
I.  
Introduction......................................................................................................................... 6  
Executive summary............................................................................................................. 6  
SLCN’s Application to Amend........................................................................................... 9  
Materials Filed .................................................................................................................. 10  
II.  
III.  
IV.  
A. Briefs and additional materials ......................................................................................... 10  
B. The Pleadings.................................................................................................................... 11  
C. The Evidence .................................................................................................................... 13  
1. Canada’s evidence ........................................................................................................ 13  
Affidavit of Tatjana Sopiwynk ......................................................................................................13  
Affidavit of Sean Kennedy ............................................................................................................13  
Affidavit of Linda Sturney.............................................................................................................17  
2. Alberta’s evidence ........................................................................................................ 18  
Affidavit of Steven Andres ............................................................................................................18  
3. SLCN ............................................................................................................................ 18  
Moses #1 – “Re TLE’s”.................................................................................................................19  
Moses #2........................................................................................................................................20  
Moses #3........................................................................................................................................22  
Reid #123  
Evidence of Mr. Sunshine..............................................................................................................23  
D. Admissibility and weight of the affidavits........................................................................ 26  
1. Law ............................................................................................................................... 26  
i.  
Rules of Court...................................................................................................................26  
Purpose of r 13.18(3) ........................................................................................................28  
Affidavits relied on by Organizations...............................................................................28  
An ‘authorized person’ .....................................................................................................30  
ii.  
iii.  
iv.  
2. Analysis ........................................................................................................................ 31  
i. SLCN applications............................................................................................................33  
Page: 3  
a. Mr. Kennedy’s affidavit and his identification of exhibits in Ms. Sopiwynk’s  
affidavit................................................................................................................. 33  
b. Mr. Andres’ Affidavit ........................................................................................... 36  
c. Ms. Sturney’s and Ms. Sopiwynk’s affidavits...................................................... 36  
Canada’s applications .......................................................................................................37  
a. Moses #1............................................................................................................... 38  
b. Moses #2............................................................................................................... 39  
c. Moses #3............................................................................................................... 41  
d. Moses #4............................................................................................................... 41  
e. Reid #1.................................................................................................................. 42  
ii.  
E. Conclusion on striking affidavits...................................................................................... 42  
Facts .................................................................................................................................. 42  
V.  
VI.  
Canada’s Applications ...................................................................................................... 48  
A. Application to strike.......................................................................................................... 48  
1. Abuse of Process: r 3.68(2)(d)...................................................................................... 49  
i.  
Is this action abusive for raising the same issues as the 1987 Action?.............................51  
2. No reasonable cause of action: r 3.68(2)(b).................................................................. 56  
i.  
Do the release and indemnity provisions establish that there is no reasonable cause of  
action?...............................................................................................................................57  
ii.  
Do limitations bar this action?..........................................................................................57  
3. Frivolous, irrelevant and improper pleadings: r 3.68(2)(c) .......................................... 57  
B. Application for summary dismissal .................................................................................. 57  
1. What is the test for summary judgment? ...................................................................... 57  
2. Is the record sufficient to permit me to reach a fair and just disposition?.................... 60  
i.  
Canada said Bill C-31 members do not fall within the treaty land entitlement process ...61  
Mr. Kennedy said Canada would not require a release.....................................................61  
Loss of Use Damages not mentioned in Release..............................................................62  
Bill C-3 .............................................................................................................................63  
Mr. Metcs’ expert evidence ..............................................................................................63  
SLCN doesn’t think ongoing obligations are included in the Release..............................63  
Canada concealed its research on the effect of Bill C-31 .................................................66  
ii.  
iii.  
iv.  
v.  
vi.  
vii.  
3. The Release................................................................................................................... 67  
i. Interpretive approach ........................................................................................................67  
Page: 4  
ii.  
What claims were released?..............................................................................................70  
a. CPP ....................................................................................................................... 70  
b. Bill C-31 members/Bill C-3 members:................................................................. 71  
c. Damages for loss of use:....................................................................................... 71  
d. Sturgeon Lake and lakebed:.................................................................................. 71  
e. Land in severalty:.................................................................................................. 72  
Is the Release enforceable.................................................................................................75  
Was there fraud or misrepresentation? Was there informed consent?..............................79  
Was the Referendum flawed? ...........................................................................................80  
Conclusion on the Release................................................................................................84  
iii.  
iv.  
v.  
vi.  
4. Limitation period .......................................................................................................... 84  
i.  
What limitation legislation applies?..................................................................................85  
ii.  
Is there an express trust and do s. 14 of the Judicature Act and ss. 40 and 41 of the LAA  
apply?................................................................................................................................87  
iii.  
Allegations of fraud ..........................................................................................................88  
Discovery of the causes of action .....................................................................................89  
Declaratory relief is not subject to limitation periods.......................................................91  
Limitations legislation are unconstitutional......................................................................93  
Conclusion ........................................................................................................................94  
iv.  
vi.  
vii.  
viii.  
C. Conclusion ........................................................................................................................ 94  
VII. Alberta’s application......................................................................................................... 94  
A. The Claims against Alberta............................................................................................... 94  
B. No reasonable claim: r 3.68(2)(b)..................................................................................... 97  
C. Frivolous, irrelevant, improper, and abuse of process: r 3.68(c) and (d)........................ 100  
1. Claims against Alberta are statute barred ................................................................... 100  
2. Collateral attack .......................................................................................................... 100  
3. Relitigating decided issues.......................................................................................... 102  
i.  
Issue estoppel..................................................................................................................102  
a. Same issues......................................................................................................... 103  
b. Consent Order is a final decision........................................................................ 104  
c. Same parties........................................................................................................ 104  
d. Discretion of the Court........................................................................................ 105  
Cause of action estoppel .................................................................................................106  
ii.  
Page: 5  
iii.  
Abuse of process.............................................................................................................107  
D. Duty to consult................................................................................................................ 107  
VIII. SLCN’s application to amend the Statement of Claim................................................... 108  
A. Proposed Amendments ................................................................................................... 108  
B. The law on applications to amend .................................................................................. 110  
C. Analysis........................................................................................................................... 111  
D. Conclusion ...................................................................................................................... 115  
IX.  
X.  
Constitutional Notices..................................................................................................... 115  
Conclusion ...................................................................................................................... 115  
Indemnity and Costs ....................................................................................................... 116  
XI.  
Appendix 1.................................................................................................................................. 119  
Appendix 2.................................................................................................................................. 123  
Affidavit of Sarah Lander....................................................................................................... 123  
SLCN Affidavits..................................................................................................................... 123  
Moses #4 ............................................................................................................................. 123  
Affidavits of Paul Emerson Reid ........................................................................................ 125  
Reid #2125  
Affidavit of Robert Metcs, Alex Van Kralingen, and Tara Smock .................................... 125  
Affidavit of Lawrence Courtoreille .................................................................................... 125  
Affidavits of Carlene Scott ................................................................................................. 126  
Scott #1 ........................................................................................................................................126  
Scott #2 ........................................................................................................................................127  
Scott #3 ........................................................................................................................................127  
Affidavits of Arlene Sunshine, Ron Soto, Lawrence Soto, and Margaret Kappo .............. 127  
Affidavit of Kimberly E. Dean ........................................................................................... 128  
Affidavit of David Khan ..................................................................................................... 128  
Page: 6  
I.  
Introduction  
The Sturgeon Lake Indian Band, otherwise known as the Sturgeon Lake Cree Nation  
[1]  
(SLCN) sued Canada and Alberta for breaches arising from Treaty 8 and a 1990 Treaty Land  
Entitlement Agreement (the 1990 TLE Agreement). This Agreement was entered into as a  
settlement of an action by SLCN in 1987 (the 1987 Action), following a Band Referendum (the  
Referendum) approving the settlement and was then incorporated into the Consent Order of  
Miller ACJ resolving the 1987 Action. Canada now applies to either strike or summarily dismiss  
the action because under the 1990 TLE Agreement, the SLCN completely released Canada and  
Alberta from all claims arising under Treaty 8. Canada also asserts that the claims are brought  
outside the limitation period. Alberta agrees with Canada, and has brought its own application to  
strike the claims against it.  
II.  
Executive summary  
[2]  
The SLCN pleaded, asserted, and argued a wide variety of things, using language  
developed over thirty years of jurisprudence dealing with aboriginal law and the relationship of  
Canada with its First Nations, including the important goals of reconciling the interests of  
aboriginal societies with the broader political community, fulfilling treaty rights, negotiating land  
claims in good faith, the nature of aboriginal title and the duty to consult when developing  
resources on land claimed by Aboriginal peoples, and the suis generis nature of rights and  
obligations arising from the Crown’s relationship with Aboriginal peoples.  
[3]  
But SLCN has relied on these concepts without attention to the context in which they  
arise. It is not enough to assert, for example, a free standing fiduciary duty and a breach of that  
duty without considering whether the dealings in question give rise to fiduciary obligations  
(Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14, at paras 49-50).  
Similarly, it alleges breach of the duty to consult without considering the context under which  
the duty to consult arises -- when Crown action might adversely affect aboriginal interests; the  
content of that duty -- which varies with the context; and to whom that duty is owed -- the  
aboriginal group holding the s. 35 rights, not the individual (Behn v Moulton Contracting Ltd,  
2013 SCC 26 at paras 27-30).  
[4]  
Counsel for SLCN spent much time, particularly in oral argument, suggesting that  
Canada and Alberta breached the duty to consult because individual members of the Band did  
not have legal advice, because Band members who did not live on the reserve did not vote in the  
Referendum, because new members under the amendments to the Indian Act did not have a voice  
in the negotiations or Referendum, and because the Referendum was flawed. I doubt that the  
duty to consult can arise in a negotiation in which all parties participate, but even if there is such  
a duty, Canada fulfilled it. The SLCN was represented by experienced lawyers, paid for by  
Canada; the Band expressly acknowledged it received independent legal advice in the 1990 TLE  
Agreement; the individual members could and did attend the negotiation meetings; Canada and  
Alberta participated in an information meeting about the settlement; and there were additional  
materials describing the settlement were provided to members.  
[5]  
SLCN also argued that this Court must determine whether the compensation provided in  
the 1990 TLE Agreement satisfied Canada’s obligations under Treaty 8. I conclude that this is an  
untenable argument and demonstrates the underlying problems of both this action and the  
SLCN’s response to Canada and Alberta’s applications. Going into negotiations for the 1990  
   
Page: 7  
TLE Agreement, all parties agreed that the terms of Treaty 8 had not yet been fulfilled. SLCN  
sued over that entitlement (the 1987 Action) and, rather than pursue its claims in the courts, it  
entered into three way negotiations with Canada and Alberta to resolve the claims. The parties  
reached an agreement to resolve the action. These negotiated terms were more than Canada and  
Alberta asserted were required under Treaty 8 and less than what SLCN argued was its  
entitlement. In other words, the 1990 TLE Agreement represented a compromise of the parties’  
positions. If SLCN believed that the settlement was insufficient, it could have refused to execute  
the Agreement and continued its action in the courts, and the court would then have resolved  
what the SLCN was entitled to under Treaty 8.  
[6]  
What SLCN cannot now do is bring another action covering all the same claims and  
issues raised in the earlier settled action and argue that the 1990 TLE Agreement did not meet  
the terms of Treaty 8. That is the point of including a release in a negotiated settlement –  
Releasors agree that the terms of a settlement agreement satisfies their claims and they therefore  
release the defendants from any further claims for the same cause of action.  
[7]  
The SLCN further argues that the Release, at least as interpreted by Canada and Alberta,  
extinguished its treaty and constitutional rights in a manner that breached fiduciary and trust  
obligations. Again this demonstrates a fundamental misunderstanding of the nature of modern  
treaty land entitlement agreements (TLEs), releases, and fiduciary and trust obligations. When  
entering into modern TLEs and treaties, the honour of the Crown requires Canada to reconcile  
aboriginal and public interests: Quebec (Attorney General) v Moses, 2010 SCC 17 (at para 116).  
In that decision, LeBel and Deschamps JJ noted that modern agreements “reflect a mixture of  
rights, obligations, payments and concessions that have already been carefully balanced” (para  
116). Properly understood within the context of the surrounding circumstances, the Release does  
not extinguish Treaty rights; it represents the SLCN’s agreement that its rights related to land  
under Treaty 8 have been fulfilled.  
[8]  
The SLCN’s assertion that contracts with First Nations are not bound by the “strict  
principles of contract law” misstates current law both aboriginal and contract. Contract law  
requires courts to interpret agreements according to the text of the document, as elucidated by  
surrounding circumstances. Surrounding circumstances  
must never be allowed to overwhelm the words of that agreement The goal  
of examining such evidence is to deepen a decision-maker's understanding of the  
mutual and objective intentions of the parties as expressed in the words of the  
contract. (Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 at para 57).  
[9]  
Similar principles apply to the interpretation of modern aboriginal agreements. Binnie J  
in Moses (at para 6) stated:  
…it is necessary to approach this case on the basis of the terms the parties  
actually negotiated and agreed to as set out in the text of their agreement rather  
than on general observations and ideas which, in my respectful view, are  
unsupported by the text.  
[10] In this case, the evidence established that the parties fairly and fully negotiated the  
SLCN’s claims under Treaty 8, including shortfall land claims, additional land claims, land in  
severalty claims, damages for loss of use, and claims to Sturgeon Lake and its lakebed. The  
parties disagreed on whether Treaty 8 promised land based on the SLCN population on the date  
Page: 8  
the Treaty was signed (“date of Treaty signing” or DOTS), on the date of the first survey  
(DOFS), on the current population (CP), or based on the theory of current population in  
perpetuity (CPP). They reached an agreement on an amount of land and cash that was more than  
that at DOFS, but less than CP or CPP. The parties were aware that the SLCN population was  
rapidly increasing by virtue of An Act to Amend the Indian Act, (also known as Bill C-31). I  
infer from the surrounding circumstances that the Release in the 1990 TLE Agreement released  
Canada and Alberta from all claims dealing with land arising from Treaty 8, including all those  
claims related to Bill C-31, CP, CPP, Sturgeon Lake, and loss of use damages. In releasing all  
future claims related to Treaty 8 land entitlement, the SLCN also released any potential claim  
arising from Bill C-3.  
[11] Specifically, in relation to Canada’s applications, I conclude that the paragraphs of the  
Statement of Claim dealing with the same issues that were raised in the 1987 Action and  
resolved by Consent Order incorporating the 1990 TLE Agreement must be struck as an abuse of  
process. The struck claims are:  
Paras 14-17, 20-21, 22(d) and (e). These paragraphs make allegations  
surrounding the Treaty 8 negotiations. The 1987 Action concerned the Treaty 8  
negotiations and addressed land entitlement shortfall;  
Paras 35-42, 52-54: These paragraphs allege that Treaty 8 provided for continuing  
provision of land as population increased and that Canada has failed to provide  
additional lands based on population increases; that was the SLCN’s position in  
negotiations, leading to the 1990 TLE Agreement.  
Paragraph 43 is struck to the extent it includes paras 14-17, 20-22 and 35-42;  
Paragraph 44 is struck. It is virtually identical to para 12 in the 1987 Action;  
Paras 47 is struck as it relates to Sturgeon Lake;  
Paragraphs 58 and 75, to the extent they seek land for new members as a result of  
Bill C-31, which was raised as part of the negotiations leading to the 1990 TLE  
Agreement;  
Paras 71-76: These paragraphs allege that SLCN is entitled under Treaty 8 to  
lands based on their current population and that the SLCN are entitled to lands in  
severalty. Each of these assertions were raised and resolved in the 1987 Action  
[12] Alternatively, I would also summarily dismiss these same paragraphs on the basis of the  
terms of the release or again alternatively because they were filed outside of the limitation  
period. I further conclude, based on the terms of the Release and the limitation period, that  
paragraphs 26-34 and 45-47 are summarily dismissed. As well, the claims in paragraphs 60-76  
related to the 1990 TLE Agreement are summarily dismissed.  
[13] While I struck or dismissed claims in Canada’s application, I also addressed Alberta’s  
application to strike, even though many of the same claims were involved. In response to my  
request, Alberta confirmed its oral submissions that it was seeking to strike paragraphs 6-8, 48-  
54, 58-63, and 69-76. Paragraphs 6-7 are bare assertions of a fiduciary relationship between  
SLCN and Alberta and SLCN and Canada. There are fiduciary aspects to these relationships, but  
not all obligations in the relationship are fiduciary. I will not strike these paragraphs, but note  
that without more, they do not establish any basis for the alleged breaches later in the claim.  
[14] Paragraph 8 is a statement that Alberta is a necessary party to this action. I will not strike  
this paragraph. Paragraphs 48-51 plead the facts that SLCN claims support the allegations in  
Page: 9  
paragraphs 52-54. I order all these paragraphs struck because legislation and treaties cannot give  
rise to fiduciary obligations. Further, these paragraphs constitute a collateral attack on the  
Consent Order of Miller ACJ and also run afoul of the res judicata doctrine. I also strike  
paragraphs 58, 60-63 and paragraphs 69-76, as they too constitute a collateral attack on the  
Consent Order of Miller ACJ.  
[15] I will not allow the proposed amendments to the Fourth Amended Statement of Claim  
that deal with land, and I adjourn the application to amend the claims dealing with annuity  
payments and economic benefits.  
III.  
SLCN’s Application to Amend  
[16] SLCN also brought an application to amend the Fourth Amended Statement of Claim. I  
decided that the stay and summary dismissal application would proceed first, and I would then  
deal with the amendment application.  
[17] Canada argues that the SLCN, anticipating that its amendment application would proceed  
first, based some of its arguments upon the assumption that the amendments would be granted.  
Thus, SLCN’s written arguments raise claims that have not been pleaded; these arguments are  
often enmeshed in arguments dealing with pleaded claims.  
[18] I have chosen to address the SLCN’s arguments about unpleaded claims within the strike  
and dismissal applications because the evidence for all applications will essentially be the same  
and because the tests are similar, although not identical. In an application to strike the test  
includes whether the claim is an abuse of process (see for example: Behn, or there is no  
reasonable cause of action see for example: R v Imperial Tobacco Canada Ltd, 2011 SCC 42).  
In a summary dismissal, the Defendant have an evidentiary burden to prove there is no issue for  
trial and there is then a shift to the Plaintiffs to “put its best forward” with evidence to establish  
there is merit to its claims that can only be resolved at trial (see for example: Windsor v  
Canadian Pacific Railway, 2014 ABCA 108).  
[19] An application to amend a statement of claim can be refused if, among others, the  
amendments do not disclose a cause of action or if the amendment would be vexatious,  
embarrassing or an abuse of process (both akin to an application to strike). Further, the  
application should be dismissed if it is clear that the amendment is bound to fail on the merits  
and there is no genuine issue for trial. In other words, “the amended claim would not survive a  
summary judgment application.”: CHS v Alberta (Director of Child Welfare), 2006 ABQB 528  
(at para 11) (per Slatter J as he then was), aff’d 2006 ABCA 355; cf: Attila Dogan Construciton  
and Installation Co Inc v AMEC Americas Ltd, 2014 ABCA 74 (at para 26) discussed further in  
these Reasons at para 573; see also Mikisew Cree First Nation v Canada, 2000 ABQB 899 (at  
para 7); Rago Millwork & Supplies Co Ltd v D Woodhouse Construction Ltd (1981), 28 AR  
499 (QB) (para 16); WR v Alberta (Attorney General, 2004 ABQB 979 (at para 10); Balm v  
3512061 Canada Ltd, 2003 ABCA 98 (at para 25; cf at para 29); Brar v. Roy, 2005 ABCA 269  
(at paras 17-18).  
[20] If the strike application or dismissal applications are successful, the amendment  
application would be unsuccessful for much the same reasons.  
[21] I will, however, also expressly deal with the application to Amend the Statement of  
Claim to ensure that all the arguments raised by the parties are addressed.  
 
Page: 10  
IV.  
Materials Filed  
A. Briefs and additional materials  
[22] The parties filed numerous briefs and materials, as follows:  
Canada  
Brief and materials filed November 7, 2014, consisting of three volumes:  
Volume 1: Written Submissions  
Volume 2: Additional Evidence  
Volume 3: Authorities  
Written Reply Brief filed December 23, 2014, consisting of three volumes:  
Volume 1: Written submissions  
Volume 2: Additional Evidence  
Volume 3: Authorities  
Reply Brief, filed January 15, 2015, to Plaintiff’s Application to further amend  
their fourth Amended Statement of Claim, consisting of three volumes:  
Volume 1: Written submissions  
Volume 2: Additional Materials  
Volume 3: Authorities  
Alberta  
Brief and Materials, filed December 22, 2014, consisting of four volumes:  
Volume 1: Written submissions  
Volume 2: Additional Documents  
Volume 3: Authorities  
Volume 4: Authorities  
Brief and Materials filed January 15, 2015, in response to the Plaintiffs’  
Application to Amend Statement of Claim, consisting of two volumes:  
Volume 1: Written submissions  
Volume 2: Authorities  
SLCN  
Brief and Materials filed December 16, 2014, consisting of three volumes:  
Volume 1: Written submissions  
Volume 2: Authorities (filed December 17, 2014);  
Volume 3: Authorities (filed December 17, 2014)  
Brief and materials filed January 15, 2015, consisting of two volumes:  
   
Page: 11  
Volume 1: Written submissions  
Volume 2: Authorities  
Brief filed April 13, 2015 re: De facto Doctrine.  
B.  
The Pleadings  
[23] In the current pleadings, the Fourth Amended Statement of Claim, the Plaintiffs state that  
they “bring this action on their own behalf, on behalf of the Sturgeon Lake Cree Nation and on  
behalf of all members of the Sturgeon Lake Cree Nation, all of whom have the same interests in  
these proceedings.” The claim pleads the following:  
Alberta is a necessary party to this action because of its obligations under the  
National Resources Transfer Agreement, Schedule II of Constitution Act, 1930,  
20-21 George V, c. 26 (U.K.) (NRTA);  
The oral promises made by the Treaty Commissioners form part of Treaty 8 or a  
collateral agreement of the Treaty;  
The rights under Treaty 8 include promises not to interfere with hunting, trapping,  
and fishing; promises to set aside lands of 128 acres per person for lands in  
common and 160 acres person for lands in severalty; promises that the First  
Nations would select their land where they chose as long as they were not already  
taken up for settlement;  
Canada breached a duty to SLCN to disclose the full value of the lands and their  
mines and minerals before they were ceded. As a result Canada acquired the lands  
for less than its actual value;  
Treaty Commissioners orally promised that land would be provided in the future  
based upon current population value CP or CPP but, in breach of these promises,  
Canada’s policy is to provide land calculated based on the population as of the  
date of first survey (DOFS);  
SLCN seeks a right to land based on CPP that includes SLCN members that  
acquired their Indian status under Bill C-31; Bill C-31 discriminates among the  
classes of descendants of “Indians” in terms of who is entitled to pass on “Indian  
status”;  
Canada induced the Band to accept reserves upon the express representation that  
Sturgeon Lake and its renewable and non-renewable resources, including the  
waterbed, formed part of the reserves. Alternatively, during the survey of the  
reserves, the surveyor included the lake within the reserves;  
The NRTA imposed the same trust, fiduciary and treaty obligations on Alberta as  
imposed on Canada by Treaty 8;  
The 1990 TLE Agreement was far short of what SLCN was entitled to under  
Treaty 8 and Canada breached its fiduciary duty to the SLCN by supporting the  
1990 TLE Agreement;  
While negotiating the 1990 TLE Agreement, Canada and Alberta failed to  
disclose material facts including that the SLCN were entitled to select land based  
on CPP and were entitled to mineral rights in whatever land they selected, and  
were entitled to select lands with existing mineral leases, and that there were vast  
amounts of mineral wealth in the surrendered lands;  
 
Page: 12  
Despite the fact that the SLCN’s representatives impressed upon Canada and  
Alberta during negotiations for the 1990 TLE Agreement that its membership had  
doubled as a result of Bill C-31, this fact was not taken into account in the amount  
of land provided to SLCN;  
The Release given by the SLCN in the 1990 TLE Agreement was given without  
informed consent.  
[24] Appendix 1 of these Reasons consists of a table summarizing the claims in the Fourth  
Amended Statement of claim, identifying which Defendant or Defendants are the subject of the  
claim, what cause of action the claim relates to, and whether the claim is in relation to land.  
[25] Canada filed its Statement of Defence, consisting of a general denial, the expiry of  
limitation periods, and the release and indemnity provisions of the 1990 TLE Agreement.  
[26] The 1990 TLE Agreement arose as a negotiated settlement to an earlier action brought by  
SLCN against Alberta in Action # 8703-14909 (the 1987 Action). Several pleadings from the  
1987 Action file have been attached as exhibits to several affidavits filed in this action, including  
the Statement of Claim, the Affidavit of then Chief Goodswimmer, and the Consent Judgment  
signed by Miller ACJ. The 1987 Statement of Claim pleaded the following:  
The Band entered into Treaty 8 under the assurance that the treaty would not lead  
to any interference with their mode of life, and guaranteed them the right to  
pursue their usual vocations throughout their traditional lands;  
Treaty 8 promised that the Band would be provided with the means to gradually  
modify their way of life with the promise to set aside reserves and provide  
agricultural implements and livestock for their use;  
Treaty 8 provided for 128 acres per person living on reserves and 160 acres per  
person of land in severalty for Indians who wished to live separate and apart from  
Band reserves; these lands were to be set aside over a period of time or in gradual  
stages;  
Crown representatives induced the Band to accept reserves upon the express  
representation that Sturgeon Lake and its renewable and non-renewable resources,  
including the waterbed, formed part of the reserves. Alternatively, during the  
survey of the reserves, the surveyor included Sturgeon Lake within the reserves;  
Under the Constitution Act 1930 (NRTA), Canada transferred its interests in all  
Crown lands, mines, minerals and royalties derived therefrom within Alberta to  
Alberta, subject to any trusts and to any third party interests;  
The Band has not received its full entitlement to land, and Canada has  
acknowledged that not enough reserve land was set aside and additional treaty  
land entitlement is owed to the Band. The next step, according to Canada is for  
Canada, Alberta and the Band to enter into negotiations;  
Notwithstanding these pending negotiations, Alberta has unilaterally purported to  
offer petroleum and natural gas leases and licenses throughout the Band’s  
traditional lands;  
This purported offer for sale of licenses and leases is ultra vires the Province and  
impinges upon the Band’s unfulfilled treaty rights under Treaty 8;  
Treaty 8 impressed upon Canada an express or constructive trust or fiduciary duty  
to protect that Band’s reserves and the disposition of its traditional lands; further  
Page: 13  
Alberta was impressed with the same trust and cannot dispose of its interests in  
these lands without consultation and concurrence from the Band; and  
The Band retained the right to have the non-renewable resources within its  
traditional lands exploited in a manner consistent with the Band’s evolving  
economic needs and with maintaining its traditional way of life.  
C.  
The Evidence  
1.  
Canada’s evidence  
[27] Canada filed the following Affidavit evidence:  
The Affidavits of Tatjana Sopiwynk, filed January 14, 2005 (dealing with early  
procedural history) and July 10, 2013, consisting of three volumes with exhibits  
numbered from A ZZZZZ;  
The Affidavit of Sean Kennedy, filed March 17, 2014, with exhibits A-M;  
The Affidavit of Linda Sturney, filed October 15, 2014 with exhibits A-H.  
[28] It also filed two volumes of additional evidence:  
Volume 2 Additional Evidence filed November 7, 2014 consisting of 5  
documents, tabbed 1-5; and  
Volume 2 Additional Evidence, filed December 23, 2014, consisting of five  
documents, tabbed 1-5.  
[29] SLCN filed the transcripts of cross-examination on these affidavits: Mr. Kennedy, Ms.  
Sopiwynk, and Linda Sturney.  
[30] The SLCN has applied to strike these affidavits. Brief summaries of the affidavits  
follow.  
Affidavit of Tatjana Sopiwynk  
[31] Ms. Sopiwynk deposed that she worked on this action as a paralegal since September  
2004, and that her duties included managing Canada’s producible document collection,  
reviewing some of SLCN’s and Alberta’s producible documents, and requesting and reviewing  
records from the Court of Queen’s Bench of Alberta in Action No. 8703 14909 (the 1987  
Action), and in particular the Consent Order in that Action. The affidavit consists primarily of a  
recitation of many of Canada’s producible documents placed within the historical context of the  
SLCN’s claims, dating from 1980.  
[32] Ms. Sopiwynk’s affidavit includes three appendices. Appendix 1 contains a chart cross-  
referencing the documents in Canada’s producible documents with those in Alberta and SLCN’s  
producible collection, thus illustrating where the parties had the same documents. Appendix 2  
sets out defined terms and Appendix 3 sets out an alphabetical list of people named in the  
exhibits.  
Affidavit of Sean Kennedy  
[33] Mr. Kennedy deposes that he is employed by Aboriginal Affairs and Northern  
Development Canada (DIAND) as a Litigation Information Analyst. He indicates that he has  
       
Page: 14  
worked for DIAND since May 1979, first as a researcher for the Office of Native Claims (ONC).  
From February 1981 he served progressively as a claims analyst (February 1981 July 1986), as  
an acting senior claims analyst, an assistant negotiator, and a negotiator for the Specific Claims  
Branch (July 1986 April 1, 1991); and as a policy analyst on secondment from the Specific  
Claims Branch (April 1991- August 1991). From September 1991 to October 2011, he was a  
self-employed consultant, hired by Canada as a lead negotiator in various claims. Since October  
2011, he has been employed as a litigation information analyst.  
[34] Mr. Kennedy indicates that while employed at DIAND, beginning in 1984, he worked  
extensively on the Sturgeon Lake land entitlement claim and negotiations, and served as  
Canada’s negotiator leading to the eventual agreement among Canada, Alberta, and SLCN. He  
continued work on the file after the agreement was reached, including working on documenting  
the settlement agreement and on the approval of the agreement by SLCN by referendum. He  
deposes that he met with, corresponded with, and spoke, to many SLCN members in regards to  
this file, including the SLCN Chief, councillors, members, employees, and elders.  
[35] Mr. Kennedy further deposes that he believes he has more direct knowledge of the SLCN  
file than anyone else who worked for Canada.  
[36] Mr. Kennedy then goes on to say he has reviewed Ms. Sopiwynk’s affidavit and the  
documents attached as exhibits. He says that he can identify many of the documents and records  
from DIAND’s files, that he was familiar with the records at or about the time they were  
prepared, and swears that they were made in the usual and ordinary course of carrying out the  
work of the Specific Claims Branch. He further swears that most of the records in Ms.  
Sopiwynk’s affidavit were prepared by him, sent by him, copied to him or reviewed by him on or  
close to the dates that appear on the records. He also swears that the documents are accurate and  
reflect the parties’ positions at the time they were prepared.  
[37] Attached as Appendix 1 to Mr. Kennedy’s affidavit is a Table that sets out some of the  
records in Ms. Sopiwynk’s Affidavit that were prepared by him, or sent by him, copied to him or  
reviewed by him, but he says that his knowledge of the records is not limited to those set out in  
the Table. The Affidavit goes on to expressly deal with some of the documents, including the  
Minutes of two March 21, 1989 meetings, prepared by his colleague Derek Dawson. He swears  
that he attended the meeting described in the notes and that the document is accurate and reflects  
the meeting discussions (para 14 and Ex NNN and OOO of Sopiwynk Affidavit).  
[38] Mr. Kennedy’s affidavit then sets out his experiences in dealing with this file, his  
recollections of meetings, his dealings with the representatives of Alberta and SLCN, his  
discussions and memories of other SLCN band members, and his work on the file.  
[39] The following chart sets out the documents in the Sopiwynk Affidavit that were not  
expressly mentioned in Mr. Kennedy’s affidavit as having been reviewed by, sent by, or sent to,  
him (Appendix 1 of Kennedy Affidavit). These documents were raised during cross-  
examination on his affidavit, and the following chart summarizes his responses to questioning as  
to whether he recalled the documents.  
Page: 15  
Sean Kennedy's Cross-examination on Affidavit  
Exhibit  
Level of recollection  
A
B
C
D
E
saw it  
none  
none  
none  
did not see it at the time, but saw it later  
none  
W
X
I recall versions of this; I would have seen it at the time  
Y
This was a document in the 1987 Action. Kennedy did not have first hand  
knowledge of these documents but they had been brought to his attention :  
see p 40, ll 22 page 41, ll 5)  
Z
(asked and then abandoned: see page 41, lines 1125)  
AA  
This was a document in the 1987 Action. Kennedy did not have first hand  
knowledge of these documents; he does not remember seeing the  
Goodswimmer affidavit in 1989 or referring to it in negotiations: see p 40, ll 22  
page 41, ll 5, and p 41, ll11-25)  
BB  
(skipped: see page 41, line 26 page 42, line 1)  
none  
QQ  
NNN  
OOO  
likely saw them, but does not remember (pp 42, ll 7-15)  
does not recall seeing them at the time of they were made (1989), but does  
remember them today from reviewing files for this litigation; (p. 42, ll16-23)  
QQQ  
ZZZ  
not involved in drafting, but aware of various versions at the time  
I recall the content; I may have seen a version that was not signed  
none  
AAAA  
LLLL  
no recollection seeing the document as a whole; maybe parts of it  
Page: 16  
Sean Kennedy's Cross-examination on Affidavit  
Exhibit  
MMMM  
NNNN  
OOOO  
PPPP  
Level of recollection  
saw it  
saw it  
saw it  
none  
QQQQ  
RRRR  
SSSS  
(not mentioned, would be page 46 or 47)  
I don't know, though I recall seeing several newspaper articles  
none  
TTTT  
none  
UUUU  
XXXX  
none  
vague  
YYYY  
none  
ZZZZ  
saw it  
AAAAA  
BBBBB  
FFFFF  
IIIII  
none  
none  
none  
no recollection, though I recall the context of it  
I recall the Order in Council, but not the covering letter  
none  
JJJJJ  
KKKKK  
LLLLL  
not sure, thought I recall the subject matter  
MMMMM none  
NNNNN none  
Page: 17  
Sean Kennedy's Cross-examination on Affidavit  
Exhibit  
OOOOO  
QQQQQ  
RRRRR  
SSSSS  
Level of recollection  
none  
none  
none  
none  
none  
none  
none  
TTTTT  
UUUUU  
VVVVV  
WWWWW none  
XXXXX  
YYYYY  
ZZZZZ  
none  
none  
none  
Affidavit of Linda Sturney  
[40] Lynda Sturney deposes that she is employed as a project manager and team leader for the  
Litigation Management and Resolution Branch of DIAND, assigned as litigation project manager  
for this action. Her evidence is that she has reviewed the Sopiwynk and Kennedy Affidavits and,  
on the basis of her review of these affidavits and her knowledge of the proceedings generally,  
she believes there is no merit to the action. Her reasons for this belief include:  
Her review of the status of the document production and questioning in this  
action;  
There is no merit to the SLCN’s claim based on CP or CPP, noting that Canada’s  
position has been that entitlement should be based on the population at the date of  
first survey (DOFS). In any event SLCN abandoned that position in negotiations  
in their Sixth Proposal. Further, the 1990 TLE Agreement was intended to settle  
any claims based on land under Treaty 8, including any claims to land based on  
CP or CPP, and the Agreement included a full and final release of any such  
claims. Further, the SLCN was out of time in bringing its claim.  
For the same reasons, there is no viable claim based on mines and minerals title;  
There is no merit to a claim based upon the quality of the land, as the initial  
survey granted additional land to account for some muskeg within the reserve. As  
 
Page: 18  
well, the 1990 TLE Agreement settled and released all land claims arising from  
Treaty 8 and the claim is brought out of time.  
There is no merit to the claim to the Sturgeon Lake lakebed as the evidence  
establishes that the lakebed never formed part of the reserve, and in any event the  
1990 TLE Agreement settled and released all land claims arising from Treaty 8  
and the claim is brought out of time.  
There is no merit to the claim based upon land in severalty because Canada’s  
position is that the land in severalty was an option only available at the time of an  
original land survey of a reserve, and in any event the 1990 TLE Agreement  
settled and released all land claims arising from Treaty 8 and the claim is brought  
out of time.  
There was land and money provided to SLCN in consideration for the 1990 TLE  
Agreement.  
The 1990 TLE Agreement was approved by the SLCN members by referendum,  
conducted by the SLCN Chief and Council.  
The Action was filed on April 2, 1997 and the original version of the claim does  
not refer to the 1990 TLE Agreement. The first pleading was therefore filed  
almost one hundred years after the original land survey for the SLCN. The  
Amended Statement of Claim was filed on or about July 25, 2000, and it refers  
extensively to the 1990 TLE Agreement. The last execution of the Agreement  
was no later than January 11, 1990, therefore the claim is out of time.  
2.  
Alberta’s evidence  
[41] Alberta filed affidavits by Sarah Lander and Steven Andres. Mr. Andres was cross-  
examined on his Affidavit and SLCN filed the transcript.  
[42] The SLCN applied to strike Mr. Andres Affidavit. A Brief summary of his affidavit  
follows. A summary of Ms. Lander’s affidavit is in Appendix 1.  
Affidavit of Steven Andres  
[43] Steven Andres, employed by Alberta Aboriginal Relations as the Director of Land  
Claims, deposed that, based on his review of the documents attached to his affidavit the SLCN  
entered into a settlement of their claim, the SLCN release Alberta from claims to land  
entitlement, and ACJ Miller signed a Consent Order approving the settlement of SLCN’s claim..  
Those documents include:  
1. Exhibit A: A copy of the 1990 TLE Agreement, as produced in the Plaintiff’s  
production in this action;  
2. Exhibit B: A copy of the executed release, from Alberta’s document production;  
3. Exhibit C: A certified true and faithful transcript of the proceedings before ACJ  
Miller, as produced in the Plaintiff’s production in this action.  
3.  
SLCN  
[44] Karl Moses swore four affidavits, as representative of the SLCN Chief and Council, as  
follows:  
1. Karl Moses Affidavit re TLEs (Moses #1), filed August 29, 2014;  
2. Karl Moses Affidavit (Moses #2), filed August 29, 2014;  
     
Page: 19  
3. Karl Moses Affidavit re: Will Say statements (Moses #3), filed October 31, 2014;  
4. Karl Moses Affidavit re: Discoverability (Moses #4) filed December 19, 2014. A  
summary of this affidavit can be found in Appendix 2.  
[45] Paul Emerson Reid, a lawyer with Rath & Company, filed two affidavits as follows:  
1. Paul Emerson Reid Affidavit (Reid #1) filed November 20, 2014;  
2. Paul Emerson Reid Affidavit (Reid #2) filed March 2, 2015. A summary of this  
affidavit can be found in Appendix 2.  
[46] Carlene Scott, a legal assistant employed by Rath & Company, filed three affidavits as  
follows:  
1. Carlene Scott Affidavit (Scott #1), filed January 28, 2015;  
2. Carlene Scott Affidavit (Scott #2), filed February 5, 2015;  
3. Carlene Scott Affidavit (Scott #3), filed March 5, 2015. Summaries of these  
affidavits can be found in Appendix 2.  
[47] Kimberley Dean and David Khan, both employees with Rath & Company filed affidavits,  
filed March 4, 2015 and April 16, 2015 respectively. Summaries of these affidavits can be found  
in Appendix 2.  
[48] As well SLCN filed affidavits by Robert Metcs, Alex Van Kralingen, and Tara Smock as  
expert evidence. Lawrence Courtoreille, a former Chief of Mikisew Cree First Nation (MCFN),  
swore an affidavit in support of SLCN. Summaries of these affidavits can be found in Appendix  
2.  
[49] SLCN also filed affidavits, on February 20, 2015, by Arlene Sunshine, Ron Soto,  
Lawrence Soto, and Margaret Kapo, members of SLCN who were residents on the SLCN  
Reserve at the time of the Referendum vote to approve the 1990 TLE Agreement. Summaries of  
these affidavits can be found in Appendix 2.  
[50] Ron Sunshine, the SLCN Chief at the time of the 1990 TLE Agreement swore an  
affidavit on February 13, 2015.  
[51] Canada filed the transcripts of cross-examination on affidavits of Mr. Moses, Ms. Smock,  
Mr. Sunshine, Ms. Scott, Mr. Reid, and Ms. Dean.  
[52] Canada applied to strike Moses #1 and to give limited or no weight to Moses #2 and #3  
and to Mr. Reid’s November 20, 2014 Affidavit. A brief summary of those four affidavits  
follow.  
Moses #1 – “Re TLE’s”  
[53] In Moses #1, Mr. Moses deposed that under the 1990 TLE Agreement, SLCN received  
$6,148,835 in cash and 16,207 acres of land and at the time the SLCN population was 932.  
[54] Mr. Moses then appends to his affidavit evidence related to 13 TLE Agreements from  
other Bands. In some cases, he provides the actual agreements, and in others, he appends third  
party records, without attribution of where the records originated. Based on these records, he  
sets out the terms of these TLE Agreements: the amount of land provided, cash provided, if any,  
and whether there was a release clause, if known. Mr. Moses also deposes to the population of  
some of the bands at the time of the agreement, or the population used as the basis for  
establishing entitlement.  
 
Page: 20  
Moses #2  
[55] Mr. Moses, in Moses #2, deposed that he was a duly elected member of Chief and  
Council for SLCN, and that he was selected by Chief and Council to act as its representative in  
this lawsuit. He deposed that the Proposal, dated December 18, 1987, by Chief Ronald Sunshine  
prompted the negotiations leading to the 1990 TLE Agreement, and he attached that proposal to  
his affidavit as Exhibit A. He noted that Canada and Alberta responded to this proposal through  
their negotiators, Sean Kennedy and James Prentice, and those responses are attached to his  
affidavit as Exhibits B and C.  
[56] Mr. Moses’ affidavit then quotes from the appended documents and draws conclusions  
and inferences from the documents, suggesting that these letters “set the parameters for which  
SLCN entered into negotiations” and asserting that the present Chief and Council believes that  
the Release in the TLE does not limit SLCN from claiming additional land pursuant to Treaty.  
Mr. Moses also asserts, based on legal advice, that Treaty No. 8 gives the SLCN claim to land  
based on CPP, relying on the Report of Commissioners for Treaty No. 8, (attached to his  
affidavit at Exhibit E). The affidavit goes on to quote the Report of Commissioners as follows:  
It would have been impossible to have made a treaty if we had not  
assured them that there was no intention of confining them to  
reserves. We had to very clearly explain to them that the provision  
for reserves and allotments of land were made for their protection,  
and to secure to them in perpetuity a fair portion of the land ceded,  
in the event of settlement advancing.  
[57] Mr. Moses’ affidavit then goes on to refer to Crown documents produced in the lawsuit in  
which Canada provided land to other First Nations on the basis of CP. These were attached to his  
affidavit as exhibits as follows:  
Exhibit F: Discussion Paper Treaty Land Entitlement, dated April 20, 1988, which  
identified the history underlying treaty land entitlement negotiations in the Prairie  
provinces, noting that at least eight TLE settlements were approved by Canada  
based on contemporary populations, that Canada supported the agreement  
between Saskatchewan and the Indians (the Saskatchewan Formula –  
contemporary population capped as of December 31, 1976), and that since 1976 at  
least six ad hoc settlements were reached based on contemporary population  
figures;  
Exhibit G: Ministerial Briefing, dated August 29, 1988, that identified the various  
bases used to settle TLE’s, including DOFS, the Saskatchewan Formula, and  
contemporary base settlements. The Briefing noted:  
While the shortfall at DOFS has always been the firm basis of the  
TLE claim, the amount of land and cash provided to settle a TLE  
claim has depended upon the resources available to the  
government of the day. When the TLE question is squarely  
addressed in court, the court is likely to conclude that DOFS  
shortfall is the minimum owed to any band, and that more may be  
owed depending upon the history and circumstances of any  
particular case.  
 
Page: 21  
[58] The Briefing also noted that Indian bands who were owed land over a long period of time  
are asserting claims for loss of use, and that the current federal position is that “loss of use claims  
will only be considered, on their merits, after a settlement of the land itself has been achieved.”  
Mr. Moses deposes that the SLCN Chief and Council are not aware of any compensation  
provided in the TLE to SLCN for loss of use of the lands.  
[59] He also deposes that the Briefing says that “Bands who opt for DOFS approach will not  
be asked for a release by Canada with respect to future land claims under treaty.”  
[60] Mr. Moses then attaches to his affidavit as Exhibit H a copy of a Band Council  
Resolution (BCR) setting the terms of the Referendum (also at Ex. SSS of Sopiwynk affidavit).  
Mr. Moses quotes only clause 3 of the BCR in the body of the affidavit. Clause 2 is also relevant  
and the two clauses read:  
2.(1) When the Band is to be asked to approve the Settlement Agreement, the  
Band Council shall determine the dates and locations of the vote, and the  
appropriate period of notice for the referendum...  
3.  
The procedure for voting, subsequent referendums and appeals except as  
otherwise stated herein, shall be pursuant to the procedures set out in the Indian  
Referendum Regulations enacted pursuant to the Indian Act...  
[61] Mr. Moses then deposes that “from the records” it appears that the Referendum did not  
follow the Referendum Regulations, but he does not specify which records he consulted. He  
notes that the Notice of the Referendum was dated June 12, 1988, ten days before the vote and  
attaches the Notice as Exhibit I. He also deposes that SLCN has no information as to whether a  
voters’ list or list of electors was created or posted. He attaches as Exhibit J a copy of the  
Referendum Regulation that states that Notice of a referendum must be posted 30 days before a  
vote, and that a list of electors must be prepared and posted 15 days before the vote.  
[62] Attached as Exhibit K to Mr. Moses’ Affidavit, is a BCR, dated May 25, 1989, asking the  
Minister [DIAND] to hold the Referendum. He further deposes that he was advised by his  
counsel that the Minister appointed an officer of DIAND as Electoral Officer and attaches as  
Exhibit L, a copy of the affidavit sworn by the Electoral Officer, setting out the results of the  
referendum  
# of electors eligible to vote  
# of electors who voted  
305  
233  
214  
17  
# of electors voting in favour  
# of electors voting against  
[63] This document is also appears in various iterations in Ex ZZZ, AAAA, BBBB1-BBBB-8.  
of Sopiwynk’s Affidavit.  
[64] Mr. Moses attaches a list of SLCN members as of December 31, 1986, a list produced by  
Alberta in this action. He deposes that he is informed by counsel that there were 550 SLCN  
members who were 18 years or older on June 23, 1989. Further, he is advised by counsel that a  
majority of electors is required to pass a Referendum. Section 3 of the Regulation reads:  
3(1) The Minister may, at the request of the council of a band, or whenever he  
considers it advisable, order a referendum be held to determine if  
Page: 22  
(a)  
the majority of the electors of a band are in favour of a  
surrender, or  
(b)  
the majority of the electors who vote thereat are in favour  
of the issuance of a proclamation.  
[65] Mr. Moses deposed that SLCN has no record of members living off reserve being given  
notice of the Referendum or otherwise being allowed to vote.  
[66] Mr. Moses then discusses the effect of Bill C-31 and Canada’s information related to the  
increase in SLCN population as a result of the changes under the Bill. Attached as Ex. N to his  
affidavit is a Communique, stamped received by SLCN on June 13, 1989, indicating that the  
research in 1988 revealed that C-31 amendments would result in a much greater demand for  
federal services than originally estimated. Mr. Moses deposes that, according to their records,  
SLCN was not informed of this research before receiving the communique.  
[67] Mr. Moses then refers to a Report to Parliament, Implementation of the 1985 Changes to  
the Indian Act, dated June 1987, and attached to his affidavit as Exhibit O. This document stated  
that as of May 31, 1987, SLCN had 447 new applicants through Bill C-31, and only 26 had been  
entered on the Band list. He says that this information was discussed at a Chief and Council  
meeting on July 29, 2014, and none of the Council or Chief were aware of it. Further, he  
deposes that SLCN has no record of this information being provided to it by Canada, and they  
believe that Canada did not disclose this information during negotiations.  
[68] Mr. Moses attached as Exhibit P, the C-31, Fifth Report of the Standing Committee on  
Aboriginal Affairs and Northern Development on Consideration of the Implementation of the Act  
to amend the Indian Act as passed by the House of Commons. The report says that DIAND  
underestimated the response to reinstatement and that it now expects 118,000 applicants to seek  
reinstatement. Mr. Moses deposed that Chief and Council said they were unaware of this  
information. Finally, he attached as Exhibit Q, Impacts of the 1985 Amendment to the Indian Act.  
Moses #3  
[69] Mr. Moses’ third affidavit provides “will say” statements to confirm his evidence in  
Moses #1 that the SLCN had no record of off-Reserve members being given notice of the  
Referendum vote on the 1990 TLE Agreement. Mr. Moses says that he asked SLCN staff to  
canvas members who were living off the reserve on the date of the referendum, and who were  
otherwise eligible to vote, whether they received notice of the Referendum. He deposes “All  
members that were asked, either did not receive notice of the Referendum, or could not say one  
way or the other.”  
[70] The seven will-say statements, attached to this affidavit as Exhibit A are pre-printed  
forms in which the signatory entered their name and address. The form has four bullet points: “I  
was a member of the Sturgeon Lake Cree Nation (SLCN) on June 23, 1989”; “I was 18 years old  
or older on June 23, 1989”; “In June 1989, I was living in [space to fill in where they were  
living]”; and “I did not receive notice of the Referendum vote for the SLCN Treaty Land  
Entitlement Agreement held June 23 and 24, 1989, and did not vote.” The will-say statement  
then contains a line for a signature and for a witness’s signature. Each space has been signed.  
[71] Mr. Moses also attached, as Exhibit B, a copy of an Expert Opinion by Professor Noel  
Lyon that deals with whether there is an ongoing right under Treaty 8 to call on Canada to  
negotiate for further reserve lands and whether Treaty 8 First Nations should receive land based  
 
Page: 23  
on CPP. Exhibit B also included copies of the Treaty 8 documents upon which Professor Lyon  
based his opinion and his curriculum vitae.  
Reid #1  
[72] Mr. Reid is an associate lawyer with Rath & Company, SLCN’s lawyers. In Reid #1, Mr.  
Reid attaches two maps (Exhibits A and B) to his affidavit, that he swears he requisitioned and  
personally spoke to the company that printed the maps, who advised that the data on the maps  
were taken from the sources identified on the maps: Exhibit A was compiled from the Rural  
Cadastral Digital Base September 21, 2014, 1:20,000 and the land ownership information was  
compiled from municipal tax date, March 3, 2014; and Exhibit B was compiled from the Rural  
Cadastral Digital Base March 4, 2014, 1:20,000 and the land ownership information was  
compiled from municipal tax date, March 3, 2014. He further indicates that the Plaintiffs’  
reserves are marked on these maps.  
[73] Mr. Reid deposes that the maps show extensive amounts of land owned by the Crown in  
right of Alberta in and around the Plaintiffs’ Reserves, and that it is his information and belief  
that these lands are part of the lands transferred under the NRTA, 1930.  
[74] Mr. Reid attached as Exhibit C a map entitled, Indian Treaties 1850-1912. He deposes  
that, based on his review, the lands in Exhibits A and B fall within the borders of the lands ceded  
to Canada in Treaty 8.  
[75] Exhibit D of Mr. Reid’s affidavit is a report by Treaty Land Entitlement researcher,  
Theresa A. Ferguson. Professor Ferguson’s report, according to Mr. Reid, identifies six persons  
who were members of SLCN in 1986 and are descendants of members who were not counted on  
the date of first survey. He deposes that under Treaty 8, their ancestors were entitled to choose  
160 acres of land each. Of those six, Mr. Reid says three were listed on the voters’ list for the  
Referendum.  
[76] Mr. Reid then deposes that Professor Ferguson identifies 24 additional individuals who  
were members of the SLCN in 1986 and who are descended from new adherents to the Treaty  
and therefore not counted on DOFS. Mr. Reid deposes that ten of those were listed on the voters  
list for the Referendum on the TLE.  
[77] Mr. Reid concludes by stating that Rath & Company was advised by SLCN that they  
asked Canada for the 1899-1909 and 1859-2014 SLCN pay lists in September 2014 by BCR. The  
SLCN advises that they have not received these lists.1  
[78] Mr. Reid does not identify which application the affidavit is sworn in support of.  
Evidence of Mr. Sunshine  
[79] After the initial briefs were filed and oral argument commenced, Mr. Sunshine, who was  
the Chief of the SLCN at the time of the 1990 TLE Agreement, swore an affidavit, filed on  
February 13, 2015. His evidence, along with Mr. Kennedy’s, is the only direct evidence of the  
negotiations. Because his affidavit evidence is so brief, I will also review his evidence when  
questioned on his affidavit. The affidavit itself is quite short, appended no exhibits, and was very  
limited in its discussion of the issues. As the only SLCN witness who participated in the  
1
This paragraph in the affidavit appears to relate to a dispute between counsel for SLCN and  
counsel for Canada regarding disclosure issues and is not directly relevant to these applications.  
   
Page: 24  
negotiations, he was also extensively questioned on his affidavit. The following is a summary of  
that evidence.  
[80] Mr. Sunshine swears that he was Chief of SLCN at the time the 1990 TLE Agreement  
was negotiated. He notes that he is not a current member of Chief and Council and is not  
speaking as a representative of SLCN. He had not reviewed any of the 35,478 documents  
produced in this action.  
[81] Mr. Sunshine swears that there were many things discussed in the negotiations and not all  
of the things discussed formed part of the Agreement. He noted as an example that “our  
ancestors had been promised Sturgeon Lake formed part of SLCN Reserved that was first  
surveyed. This promise was discussed during negotiations for the Agreement. However, LCN  
did not receive the Lake as part of the Agreement.”  
[82] Further, Mr. Sunshine says that the Agreement did not include land or compensation for  
people wanting to join SLCN through Bill C-31. He says that he remembers this because Chief  
and Council were undecided whether C-31 people would be admitted as members of SLCN.  
[83] Mr. Sunshine then asserts that he does not believe that the Agreement was intended to  
prevent SLCN from getting more land from Canada in the future as its population increased. He  
deposed, as well, that he was aware that Treaty 8 promised land in severalty, but that he does not  
recall land in severalty being negotiated or included in the Agreement.  
[84] In the course of questioning on his affidavit, counsel for Canada placed numerous  
documents before Mr. Sunshine and endeavored to place his affidavit evidence in the context of  
this litigation. He indicated that he understood this litigation to be about getting additional land  
to assist with the increased population arising from Bill C-31 (13/25-26). He indicated that he did  
not review any of the documents produced in this litigation before swearing the affidavit and that  
the affidavit was sworn based on his memories of over 25 years ago (37/11-13; 50/8-9). He did  
review some of the documents in this litigation before questioning (52-53). He indicated that he  
was first contacted about giving evidence in February 2015.  
[85] Throughout questioning, Mr. Sunshine referenced some clear memories (117/24; 118/1;  
211/2-7; 162/1-16; 85/20-23; 93/24-26), but when shown documents, including documents  
addressed to him or signed by him, that were inconsistent with his understanding of the events in  
1987-1990, he had no or little memory of them (for example 76/16-26; 77/1-4; 70/16-17; 110/23-  
26; 101/1-5; 140/25; 175/3-7; 182/1-14; 187/4-23; 188/24-26;; 195/17-25; 197/1-7; 213/5-11;  
214/10-24; 215/6-16; 216/1-3; 218/8-12; 220-221; 227/3-29). He indicated that sometimes he  
signed documents, written by SLCN lawyers or Band administration, that were provided to him  
for his signature (215/20-21; 217/6-16; 189/2-3; 190/ 16-21; 216/5; 220/2-8).  
[86] Mr. Sunshine said that he attended all the negotiation meetings (69/10) and had some  
memory of many of the issues, but that there were too many to remember them all (61/16-20;  
64/19-26, 65/1-5).  
[87] Among the specific issues counsel for Canada raised with him were: the basis of the land  
entitlement claim, the claim for Sturgeon Lake and the lakebed, land in severalty, the Releases,  
and the Referendum.  
[88] In regards to Sturgeon Lake and its lakebed, Mr. Sunshine’s affidavit merely states that  
although the lake claim was raised, the SLCN did not receive the lake or lakebed in the  
Agreement. This statement, by itself, means nothing more than the simple fact that neither lake  
Page: 25  
or lakebed were given. In questioning, Mr. Sunshine further insisted that while the lake and  
lakebed issues were raised, the claim to it was merely “taken off the table” (93/24-26; 98/8-11),  
not negotiated away. He asserted that SLCN always “believed” that the Lake was part of the  
reserve (74/15-18) and that they would never have released the claim. Then he was shown a  
number of documents dealing with the lake and lakebed claim, including:  
Exhibit D from Mr. Moses Affidavit Minutes of April 21, 1988 meeting in which  
Mr. Potts, lawyer for SLCN, indicates that waterbed rights are a negotiable item;  
Exhibits MM and NN from Ms. Sopiwynk’s affidavit –September 23, 1988 Letter  
from Chief Sunshine enclosing a settlement proposal that included:  
The Band would provide full and complete releases to Canada  
and Alberta of their respective obligations with respect to the  
Land Entitlement Claims and with respect to any claims  
regarding Sturgeon Lake.  
1. Exhibit OO from Ms. Sopiwynk’s affidavit Agreement in Principle that included:  
Full and complete Releases as between Canada, Alberta, and  
the Band... including...all claims relating to land entitlement  
whether treaty, aboriginal rights, or otherwise in relation to the  
bed and shore of Sturgeon Lake and the use thereof.  
2. Exhibit YYY from Ms. Sopiwynk’s affidavit – Summary of Agreements between  
Alberta and Canada and the Band and Canada, on Sturgeon Lake Band  
Administration letterhead, which provided:  
Because of the settlement, Canada is required to obtain a release  
from the Band. By this release, the Band will agree that its claims  
for the land entitlement, both treaty and otherwise, and to the  
lakebed of Sturgeon Lake, have been satisfied and discharged.  
[89] Mr. Sunshine then conceded that SLCN gave up all claims to the lakebed, but, he  
insisted, not to a portion of the lake itself (105/ 6-10; 107/21-26). He agreed that Alberta refused  
to give ownership of any body of water (108/7-10).  
[90] Mr. Sunshine insisted throughout questioning that the basis of negotiations was to  
address the shortfall from the DOFS. That is, he asserted that the SLCN was only trying to get  
the land that it should have received in 1908 if all the members had been counted (130/22-24;  
138/8-10; 142/ 2-4, 23-26; 143/1-6; 205-206; 212/1-7). When counsel for Canada then referred  
him to the Minutes of the April 22, 1988 meeting (Exhibit D of Mr. Moses’ affidavit), he  
conceded that current population was discussed (175/14-16). When pushed further on the issue,  
he said he could not remember what happened (176/3-4).  
[91] Counsel for Canada returned to the question of whether the SLCN’s negotiating position  
was that it was seeking land based on current population, and put before Mr. Sunshine Exhibit  
CC from Ms. Sopiwynk’s affidavit – a letter from DIAND Minister, Bill McKnight, offering the  
Band the opportunity to select land based on DOFS population figures and Exhibit EE from Ms.  
Sopiwynk’s affidavit – Mr. Sunshine’s response, as Chief, declining the offer and insisting that  
land entitlement must be calculated on a more contemporary population than DOFS. Mr.  
Sunshine said he had no recollection of that document (214/10-24). He was then shown Exhibits  
Page: 26  
FF and GG a letter from him as Chief, enclosing a Settlement Proposal and the Proposal. A  
portion of the proposal reads: “Land entitlement should always be based on contemporary  
population figures”. Again he did not remember the document and said that “lawyers do all this  
stuff” and “Yeah, it was probably put together. I couldn’t even write this stuff” (215/20-21, 25-  
26). In the end, he concluded that he did not remember on what basis the SLCN wanted the land  
entitlement calculated (220/2-12).  
[92] As to his memory of whether land in severalty was discussed or negotiated, counsel for  
Canada pointed out to Mr. Sunshine that the first page of the 1990 TLE Agreement quotes the  
Treaty 8 provision dealing with land and land in severalty. She then sought to refresh his  
memory by pointing out documents with his signature or addressed to him that mention land in  
severalty. He then agreed that land in severalty was discussed and he remembers those  
discussions (163/19-26 164/1-6). Mr. Sunshine then stated that SLCN did not give up on  
pursuing land in severalty (165/11-12), but it “became a non-issue because we weren’t going  
anywhere with it” (165/1-3). Counsel for Canada then asked him to consider the Memorandum  
of Intent (MOI) (Exhibit CCC of Ms. Sopiwynk’s affidavit) which reads, in part:  
Canada shall obtain a full and final release from the band under the terms of  
Treaty 8 from all clauses related to the provision of reserve land and land in  
severalty.  
[93] Mr. Sunshine insisted that this clause merely made land in severalty a “non-issue”  
(183/19) and that the Band would never give up land in severalty (184/4). Mr. Sunshine refused  
to acknowledge that there was a contradiction between his evidence and the documents (185/6-  
20).  
[94] At some points in questioning, Mr. Sunshine suggested that the SLCN had given up a lot  
(203/3-4), but returned to insisting that matters were never released, just taken off the negotiating  
table (203/16). He tried to draw a distinction between how lawyers and the parties defined a  
release (203/19-25). When the Release is read to him, his evidence is that the release only  
referred to the people who were not counted in 1908, and was only in relation to the specific  
claim (205/20-26; 209/13-16). He asserted that SLCN would not release future claims (206/7-9).  
[95] Mr. Sunshine had limited memory of the Referendum, but he did remember that copies of  
the 1990 TLE Agreements were stacked in the Band office for members to pick up.  
D.  
Admissibility and weight of the affidavits.  
[96] SLCN applied to strike the affidavits relied on by the Defendants in support of their  
summary dismissal/strike applications, arguing that they do not comply with the personal  
knowledge requirement of r 13.18(3). Specifically, the SLCN argues that some or all of the  
affidavits are based on the affiant’s interpretation of documents, and not their personal  
knowledge.  
1.  
Law  
i.  
Rules of Court  
[97] The relevant Rules of Court provide:  
3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the  
Court may order one or more of the following:  
     
Page: 27  
(a) that all or any part of a claim or defence be struck out;  
The conditions for the order are one or more of the following:  
(2)  
...  
(b) a commencement document or pleading discloses no  
reasonable claim or defence to a claim;  
(c) a commencement document or pleading is frivolous,  
irrelevant or improper;  
(d) a commencement document or pleading constitutes an abuse  
of process;  
...  
(3) No evidence may be submitted on an application made on the basis of the  
condition set out in subrule (2)(b).  
6.11(1)When making a decision about an application the Court may consider only  
the following evidence:  
(a) affidavit evidence, including an affidavit by an expert;  
(b) a transcript of questioning under this Part;  
(c) the written or oral answers, or both, to questions under Part 5  
that may be used under rule 5.31;  
(d) an admissible record disclosed in an affidavit of records  
under rule 5.6;  
(e) anything permitted by any other rule or by an enactment;  
(f) evidence taken in any other action, but only if the party  
proposing to submit the evidence gives every other party written  
notice of that party’s intention 5 days or more before the  
application is scheduled to be heard or considered and obtains the  
Court’s permission to submit the evidence;  
(g) with the Court’s permission, oral evidence, which, if  
permitted, must be given in the same manner as at trial.  
7.3(1) A party may apply to the Court for summary judgment in respect of all or  
part of a claim on one or more of the following grounds:  
...  
(b) there is no merit to a claim or part of it;  
(2)  
The application must be supported by an affidavit swearing positively that  
one or more of the grounds described in subrule (1) have been met or by other  
evidence to the effect that the grounds have been met.  
13.18 (3) If an affidavit is used in support of an application that may dispose of all  
or part of a claim, the affidavit must be sworn on the basis of the personal  
knowledge of the person swearing the affidavit.  
Page: 28  
[98] Thus an application to strike or a summary judgment application, which is intended to  
dispose of all or part of an action, falls within r 13.18(3). However, it is important to note that a  
summary judgment application must be supported by an affidavit or other evidence (or both)  
that there is no merit to a claim: Terrigno v Kretschmer, 2012 ABQB 750 (at para 18);  
Environmental Metal Works Ltd v Murray, Faber & Associates Inc, 2013 ABQB 479 (at para  
76 ,78, and 81). Here, in addition to affidavit evidence, the parties filed transcripts of  
questioning, records disclosed in an affidavit of records (which may be relied on as long as they  
are otherwise admissible. See Mikisew Cree First Nation v Canada at paras 20-24), and  
evidence in another action.  
ii.  
Purpose of r 13.18(3)  
[99] In Papaschase Indian Band No 136 v Canada (Attorney General), 2004 ABQB 655,  
365 AR 1, (rev’d: 2006 ABCA 392 [Papaschase CA]; restored 2008 SCC 14 [Lameman SCC])  
Canada applied for summary judgment dismissing a claim on behalf of the descendants of the  
Papaschase Indian Band. In that decision, Slatter J (as he then was) identified the purpose of the  
previous version of this Rule, at para 72:  
The purpose of Rule 305 is obvious. Since the summary judgment rules are a  
shortcut to judgment, the rule is designed to force the applicant to bring the "best  
evidence" to the Court: J.H. Ashdown Hardware Co. v. Singer, supra, at pg. 149.  
[100] According to Slatter J, applicants should rely on their best evidence when attempting to  
obtain summary judgment. The affiants with the best evidence are those who have the most  
direct knowledge of the situation.  
[101] Veit J also commented on the purpose of this Rule, referring to the current version, in  
Murphy v Cahill, 2012 ABQB 793 at para 25:  
This is, of course, a sensible rule: litigants should not be vulnerable to having  
their rights finally determined by evidence that would not be admissible at trial.  
Relying on inadmissible evidence is having no evidence at all; a litigant's rights  
cannot be finally determined without evidence.  
[102] Veit J’s description of the purpose of the Rule differs somewhat from that of Slatter J.  
Her emphasis is on the general admissibility of the evidence, and not who is the ‘best’ individual  
to provide this evidence.  
iii.  
Affidavits relied on by Organizations  
[103] SLCN relied on Edmonton (City) v Riemer ((1979), 10 Alta LR (2d) 92 (AB Dist Ct) for  
the simple proposition that r 13.18(3) requires an applicant to rely on affidavits based on  
personal knowledge. However, that case did not involve the evidence of an organization.  
[104] Slatter J, in Papaschase, explained how Courts must view this Rule in relation to an  
organization’s evidence (at paras 60-61):  
Rule 305, if read literally, could prevent an application for summary judgment in  
some types of case. For example, in large organizations there is often no one  
person who has sufficient knowledge of all of the facts to swear an affidavit in  
support of summary judgment based on personal knowledge. In some cases a  
multitude of affidavits from different representatives of the organization would be  
required. In other cases even this would not suffice, because it is necessary to  
   
Page: 29  
extract the required information from the business records of the organization.  
Read literally, Rule 305 would prevent the use for summary judgment of  
information contained in records kept in the ordinary course of business, but such  
evidence is allowed on summary judgment applications: J.H. Ashdown  
Hardware Co. v. Singer (1951), 3 W.W.R. (N.S.) 145 (Alta. C.A.), at pp. 148-9,  
affirmed on other grounds [1953] 1 S.C.R. 252 (S.C.C.); Bank of Montreal v.  
Beacon Industrial Development Corp. (1986), 70 A.R. 218 (Alta. Q.B.) (M.) at  
para 18; Pathe Freres Cinema, Ltd. v. United Electric Theatres, Ltd., [1914] 3  
K.B. 1253 (Eng. C.A.).  
The rules have been interpreted to avoid unnecessarily restricting the evidence  
that can be used on applications for summary judgment.  
[105] It is clear applicants may rely on the affidavit of an individual who has reviewed  
documents or records held by the organization and provides evidence on that basis: Alberta  
(Treasury Branches) v Leahy, 1999 ABQB 185 at paras 50-52. In Leahy, Mason J explained, at  
para 56:  
To the extent that activities of a corporation are recorded in reliable documents,  
an authorized person may obtain the requisite personal knowledge by  
reviewing these and then speak to those activities, subject to compliance with  
the other rules of evidence.  
(Emphasis added)  
[106] In their brief, SLCN referred to ATA v Alberta (Information & Privacy Commissioner),  
2011 ABQB 19, at para 45, where Graesser J noted the change in wording between the old Rule  
and r 13.18(3), and indicated that it appeared “the requirement of personal knowledge under the  
new rules may be more stringent than before.”  
[107] Rule 305, which preceded the current version of the Rule, provided:  
305 (1) Affidavits shall be confined to the statement of facts within the  
knowledge of the deponent.  
(2)  
In an action or proceeding to which a corporation is a party any affidavit  
required by these Rules to be made by a party may be made by an officer, servant  
or agent of the corporation having knowledge of the facts required to be deposed  
to, who shall state therein that he has that knowledge.  
(3)  
On interlocutory motions affidavits containing statements as to the belief  
of the deponent with the source and grounds thereof may be admitted.  
[108] SLCN argued that, given the change in wording and Graesser J’s comments, older case  
law was no longer reliable in interpreting r 13.18(3). However, the case law has been clear for  
some time that corporate representatives may gain personal knowledge for the purpose of r  
13.18(3) by relying on their review of business records held by the organization. In Attila Dogan  
Construction and Installation Co v AMEC Americas Ltd, 2015 ABQB 120, Wittmann CJ  
considered what records affiants could review, other than business records.  
[109] Wittmann CJ held that a court may only finally dispose of a claim based on evidence that  
would be admissible at trial. He noted the settled law allowing corporate representatives to rely  
on business records paralleled the business records exception to the hearsay rule (at para 73). He  
Page: 30  
extended that reasoning, and held affiants should be able to gain personal knowledge on behalf  
of corporations by referring to other records and documents so long as these are admissible  
evidence. He wrote, at para 88:  
Where the corporate representative lacks personal knowledge, he or she may rely  
on direct evidence exhibited to the affidavit or otherwise before the Court. Such  
direct evidence must be admissible in accordance with the common law rules of  
evidence, and thus hearsay must either fall under a common law or principled  
exception, or must be relied on for non-hearsay purposes.  
(Emphasis added)  
[110] As well, Wittman CJ held that the inverse is true: affiants giving evidence for  
organizations may not base their personal knowledge on inadmissible evidence (at para 75).  
[111] In Attila, Wittman CJ specifically referred to Graesser J’s comment, and noted that  
Courts must keep this higher standard of personal knowledge in mind when relying on older  
authorities (at para 65). However, he then went on to find that representatives of organizations  
could rely on direct evidence exhibited to the affidavit or otherwise before the Court, so long as  
this evidence is admissible in accordance with the common law rules of evidence (at para 88).  
According to Attila, the new Rules have not ousted an applicant’s ability to rely on the affidavit  
of a representative providing evidence on behalf of an organization by way of their review of  
documents.  
iv.  
An ‘authorized person’  
[112] In Leahy, Mason J held that a person with “the requisite position and authority” could  
swear an affidavit based on their review of records: at para 58. However, in my view, the  
purpose for this rule articulated by Slatter J in Papaschase demands something more than access  
to records (at para 72):  
Hearsay evidence is to be avoided, and the applicant is required to bring forward  
the affiant with the most direct knowledge of the situation. The purpose of the  
rule must be kept in mind in deciding what evidence can be admitted.  
[113] SLCN referred to Michel First Nation v Canada (Minister of Indian Affairs &  
Northern Development), 2007 ABCA 59, and argued that Michel is more analogous to this  
matter than Papaschase or Leahy.  
[114] Michel suggests there is an onus on the Defendant to demonstrate why the party  
swearing the affidavit on behalf of the organization is in the best position to give that evidence.  
In that case, Canada relied on an affidavit sworn by a “Project Manager for the Litigation  
Management and Resolution Branch of the Department of Indian Affairs and Northern  
Development.” Costigan JA, delivering an oral decision for the Court of Appeal, held that this  
affidavit did not satisfy the requirement that he have ‘personal knowledge’ for the purpose of the  
former Rule. In particular, Canada had not explained why this affiant was in the best position to  
give this evidence (at para 10). The affiant swore he gained his knowledge by reviewing  
documents. It is noteworthy that he had not himself conducted research activities, and relied on  
information about those activities conveyed to him by other employees and contractors (at para  
3).  
[115] However, the timing of the Michel decisions suggests that it is not a reliable authority.  
 
Page: 31  
[116] The Court of Appeal overturned part of Slatter J’s decision in Papaschase CA in 2006. It  
then decided Michel in 2007. In fact, Costigan JA specifically refers to the Papaschase CA  
decision in Michel. One year after Michel was decided, the Supreme Court, in Lameman SCC,  
overruled the Court of Appeal’s decision. A higher court has therefore overruled the authority  
Costigan JA specifically referred to in Michel, and it is arguable that this Court should not  
follow the reasoning in Michel.  
[117] In particular, the Court of Appeal in Michel seems to place the onus on the Defendants  
seeking summary judgment to demonstrate positively that the individual swearing an affidavit on  
behalf of the organization is in the best position to provide that evidence. In that case, the  
Plaintiff suggested it was possible some other individual could be in a better position to swear  
the affidavit and this was sufficient to deny the Defendants the ability to rely on that affidavit.  
This was so even though the Plaintiffs had not even cross-examined the affiant to test their  
knowledge (at para 53). Similarly, in Papaschase CA, the Court of Appeal held that the  
possibility the Plaintiffs might provide evidence at trial to support their claim was sufficient to  
deny summary judgment.  
[118] The Supreme Court of Canada in Papaschase SCC specifically found that the Plaintiffs  
had an obligation to bring evidence to support their claims at the time of the Defendants’  
summary judgment application. A mere possibility that there may be more or better evidence at  
trial was not sufficient (at para 19). The same logic applies here, and the mere possibility that  
another affiant could be in a better position to provide evidence should not be sufficient to defeat  
an application for summary judgment.  
[119] Therefore, the affiant should have some connection to the evidence they give, and should  
be the individual in an appropriate position to give that evidence. There may be, however, more  
than one person able to give such evidence, as is the case here. In any event, the authority in  
Michel suggesting that there is duty on a party to demonstrate that this is the person best situated  
to provide this evidence, in the absence of any contrary evidence by the opposing side, has been  
overruled.  
2.  
Analysis  
[120] In this case, the Defendants applied to strike or summarily dismiss the Plaintiffsclaim. If  
the Court grants this application, this will finally dispose of the Plaintiffsclaim. Therefore, r  
13.18(3) is engaged.  
[121] Canada and Alberta are both organizations. In order for highly relevant evidence held by  
these organizations to come before the Court, representatives must swear affidavits on these  
organizations’ behalf.  
[122] The thrust of SLCN’s argument is that the affidavits Canada and Alberta rely on are  
sworn by individuals who have reviewed documents and drawn conclusions from, or interpreted,  
those documents. It argues that these affiants therefore are not providing evidence based on their  
personal knowledge.  
[123] The argument that representatives of organizations cannot provide evidence based on  
their review of documents for the purpose of r 13.18(3) must be rejected. As stated by Slatter J in  
Papaschase at para 60, if this were true, summary judgment procedures would not be available  
to organizations. There is a clear line of case law establishing that this line of reasoning is false.  
 
Page: 32  
[124] This does not mean, however, that the Defendants can ignore the requirement that the  
affidavits they rely on must be based on the personal knowledge of the affiants. Representatives  
have personal knowledge if: (i) the documents they rely on are admissible evidence, (ii) they are  
in an appropriate position to put that evidence before the Court.  
[125] In its brief filed January 15, 2015, dealing with Alberta’s affidavits, SLCN states that it  
“does not contest the admissibility or authenticity of the documents attached to the impugned  
affidavits”. SLCN’s complaint, at least as it relates to Alberta’s affidavits, is not based on  
whether the documents constitute admissible or reliable evidence, but rather that the affiants  
based some or all of their affidavit evidence on a review of these documents. (I note that this  
position is not entirely consistent with the position it took in its December 16, 2014 Brief which  
primarily focussed on the absence of personal knowledge.)  
[126] SLCN acknowledges that corporate representatives are entitled to refer to business  
records, but they insist the documents these affiants rely on are not business records, arguing that  
business records are only “books of account” as described in the s. 35 of the Alberta Evidence  
Act , RSA 2000, c A-15. However, the business records exception is not as narrow as SLCN  
argues, and in any event, s. 35 of the Alberta legislation references “books of account” of “any  
department, commission, board, or other branch of the Government of Canada or of Alberta”,  
and does not deal with other business records. Section 30 of the Canada Evidence Act. RSC 1985  
is much broader, authorizing the admission of business records where:  
...oral evidence in respect of a matter would be admissible in a legal proceeding, a  
record made in the usual and ordinary course of business that contains  
information in respect of that matter is admissible in evidence under this section  
... on the production of the record.  
[127] Further, the common law business record exception is also broader than accounting  
records. In R v Monkhouse, 1987 ABCA 227, citing Ares v. Venner, (1970) 14 DLR (3d) 4, the  
Alberta Court of Appeal adopted the following statement of the rule by Mr. J.D. Ewart in  
Documentarv Evidence in Canada (Carswell Co., 1984):  
... the modern rule can be said to make admissible a record containing (i) an  
original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v)  
by a recorder with personal knowledge of the thing recorded as a result of having  
done or observed or formulated it (vi) who had a duty to make the record and (vii)  
who had no motive to misrepresent.  
[128] The Court, however, rejected (v), adding:  
The "original entry" need not have been made personally by a recorder with  
knowledge of the thing recorded. On the authority of Omand, Ashdown, and  
Moxley, it is sufficient it (sic) the recorder is functioning in the usual and ordinary  
course of a system in effect for the preparation of business records... Modern  
business records are customarily a compilation of original documents such as  
sales slips or other memoranda and rarely would that compilation be made by the  
person who prepared the original document. Yet those records are accepted as  
valid daily by all those affected by them.  
Page: 33  
[129] Monkhouse continues to be relied upon by Alberta courts. See for example: R v  
Saddleback, 2013 ABCA 66 at para 6; R v O'Neil, 2012 ABCA 162 at para 44; R v Crate, 2012  
ABCA 144.  
[130] In my view, the process to follow in determining whether these records are admissible is  
to first determine what use is to be made of them. If they are submitted for the truth of the  
contents, they are hearsay and must come within an exception to the hearsay rule, either statutory  
or common law. The Canada Evidence Act applies here by virtue of s. 2: “This Part applies to all  
civil proceedings and other matters whatever respecting which Parliament has jurisdiction”.  
Parliament has jurisdiction over “Indians and Lands reserved for Indians” under s. 91(24) of the  
Constitution Act, 1867.  
[131] SLCN has not particularized which documents it alleges are not business records; to the  
extent it becomes necessary, I will apply the exception to specific records as I review them.  
[132] According to Attila, the fact that these documents are not business records is not  
determinative. The representatives of organizations may base their knowledge on a review of any  
type of admissible evidence.  
i.  
SLCN applications  
a. Mr. Kennedy’s affidavit and his identification of exhibits in Ms.  
Sopiwynk’s affidavit  
[133] SLCN argues that Mr. Kennedy’s affidavit contains statements and refers to documents  
that are not within his personal knowledge. In particular, SLCN argues that because there are a  
number of Exhibits in Ms. Sopiwynk’s affidavit that Mr. Kennedy did not identify as being sent  
by him, received by him, or copied to him, the portions of the affidavit and those documents  
should be struck.  
[134] In addition, SLCN complains that Mr. Kennedy’s affidavit contains statements of  
opinion, interpretation, and conclusions drawn from documents, relying on Central Trust Co v  
Milchem (1986), 72 AR 321 (QB) and Imperial Oil Limited v Whissell Enterprises Ltd (1985),  
62 AR 321(QB) (at para 16) (both per Master Funduk) to argue that the affidavit should be  
struck. Despite SLCN’s assertion that “affidavits that contain the interpretation of documents are  
...inadmissible”, in neither of these decisions by Master Funduk were the affidavits, or portions  
of the affidavit, struck. Master Funduk’s comments was that a “witness’s views on what a  
document means is irrelevant and inadmissible.” (Whissell at para 16, emphasis added).  
[135] SLCN further argues that where Mr. Kennedy lacks personal knowledge of the listed  
documents, he is seeking to interpret those documents, and those portions should also be struck.  
[136] There are only a few instances in which the documents in Ms. Sopiwynk’s affidavit have  
not come to Mr. Kennedy’s attention (see the chart after para 38).The SLCN Brief argues that  
Exhibits B,C,D, W, QQ, NNN, OOO, AAAA, LLLL, PPPP, RRRR, SSSS, TTTT, UUUU,  
YYYY, AAAAA, BBBBB, FFFFF, IIIII, KKKKK, MMMMM, NNNNN, OOOOO, QQQQQ,  
RRRRR, SSSSS, TTTTT, UUUUU, VVVVV, WWWWW, XXXXX, YYYYY and ZZZZZ  
should be struck.  
[137] Some of these documents are attached to Ms. Sopiwynk’s affidavit to place before the  
Court all the relevant documents that provide a clear narrative framework of the entire  
relationship between the parties; they are generally not relied for the truth of the contents. As  
   
Page: 34  
Slatter J noted in Papaschase (QB), in large organizations no one person has all the knowledge  
of all the facts and even if there were multiple affidavits, this would not be enough because  
someone would still need to extract the information from business records (para 60). He further  
noted (at para 61) that affidavits that merely attach and place relevant documents on the court  
record are admissible, even if “the deponent did not create the particular documents, and can  
sometimes offer little more information than the place in which the document was found”, citing  
Kin Franchising Ltd v Donco Ltd (1993), 7 Alta. L.R. (3d) 313 (C.A.), at para 6; Alberta  
Treasury Branches v Leahy (1999), 234 A.R. 201 at paras 51-66; Re Indian Residential  
Schools (2002), 9 Alta. L.R. (4th) 84 at para 36. He goes on to note (at para 61):  
The court can determine the inherent reliability of the documents from the way  
they were made and kept. The court is then left to draw its own inferences from  
the contents of the documents.  
[138] Exhibits B, C, and D were in the Crown’s production and date from 1980, before Mr.  
Kennedy began to work for Canada. They are of minimal relevance except to show the  
correspondence between Canada and SLCN related to the shortfall claim as the parties began to  
explore the nature of the claim. They are not admitted for the truth of the contents, and are  
therefore not hearsay. Further, they appear in Ms. Sopiwynk’s affidavit as part of the Crown’s  
production; she was responsible for that production. I conclude that she has established  
sufficient connection to these documents that there is no reason to strike them from her affidavit.  
[139] Exhibit W is a procedure card from the Court of Queen’s Bench for the 1987 Action. It is  
a business record of the Court, and while nothing turns on it, I see no basis to exclude it.  
[140] Exhibit QQ is a November 1988 letter from Mr. Prentice, counsel for Alberta, to Blaney  
McMurtry (SLCN’s lawyers) dealing with the language of the draft Memorandum of Intent; it  
comes from the Plaintiff’s production. It is of minimal relevance except to demonstrate that the  
parties discussed and revised the terms of the Memorandum upon which the 1990 TLE  
Agreement was eventually based. It is not lead as evidence for the truth of the contents, but  
merely as evidence that the parties discussed and negotiated the terms of the 1990 TLE  
Agreement. I see no basis for excluding it as it came within Ms. Sopiwynk’s purview as she  
reviewed the production of all the parties, and it is not relied on for the truth of the contents.  
[141] Exhibits NNN and OOO are documents identified by Mr. Kennedy in para 14 in his  
affidavit and discussed in questioning on his affidavit at 42/16-23. These are minutes of two  
meetings prepared by Mr. Kennedy’s colleague, Mr. Dawson. In the affidavit, Mr. Kennedy  
identified the notes, having recognized the handwriting of Mr. Dawson, and he confirmed that  
the notes accurately reflected what occurred at those meetings.  
[142] At no point in the questioning on his affidavit was Mr. Kennedy asked about this aspect  
of his affidavit. He was only asked whether he would have seen these notes at the time they  
were prepared. He did not remember whether he had. He indicated that he remembered Exhibit  
OOO from reviewing the files for this litigation. I conclude that the Exhibits were identified by  
Mr. Kennedy and the fact that he does not remember seeing them at the time they were made  
does not render them inadmissible. He swore that he recognized Mr. Dawson’s handwriting, that  
he attended the meeting so recorded, and that the notes were accurate. The documents are  
relevant and admissible.  
Page: 35  
[143] Exhibit AAAA is an affidavit by David Kappo swearing to the results of the Referendum  
held by the SLCN on June 23 and 24, 1989 to permit the SLCN members to vote on whether to  
accept the 1990 TLE Agreement (the Referendum). It is of limited relevance, other than as  
evidence that Mr. Kappo, a councillor for the SLCN, swore that the Referendum results were  
accurate and that an interpreter interpreted the language of the Agreement for the voters. Nothing  
turns on it and so it is of little weight. The parties have agreed that the Referendum results, as  
recorded, are accurately reflected in the affidavit. It is also evidence that SLCN accepted the  
Referendum results at the time.  
[144] Exhibit LLLL is a copy of a certified copy of the executed 1990 TLE Agreement. There  
are multiple copies of the Agreement in the materials, and no one has suggested that the  
Agreement is somehow inauthentic or was never executed. It was within the documents reviewed  
by Sopiwynk in this file. Exhibit PPPP, a letter from Mr. Potts to the Acting/Regional Director  
General of Indian and Inuit Affairs, is of limited relevance, except that SLCN lawyers indicate  
that the settlement of the Sturgeon Lake land entitlement claim was a “valuable and positive  
experience”. Exhibits RRRR, SSSS, TTTT, and UUUU are newspaper reports about the  
Agreement; they are of limited relevance and entitled to virtually no weight.  
[145] Exhibits YYYY, AAAAA, BBBBB are from Alberta’s production and deal with a cash  
payable under the 1990 TLE Agreement by transfer to SLCN. Again these are of limited  
relevance because no one has argued that the cash component of the settlement remains unpaid. I  
will not strike them. Though they are of limited weight, they do provide narrative completeness  
to the events. Similarly, Exhibit FFFFF, an Alberta Order in Council transferring title of certain  
lands to Canada, and Exhibits IIIII and KKKKK, correspondence regarding the transfer, provide  
documentary confirmation of the narrative of the Agreement.  
[146] Exhibits MMMMM, NNNNN, OOOOO, QQQQQ, RRRRR, SSSSS, TTTTT, UUUUU,  
VVVVV, WWWWW, XXXXX, YYYYY and ZZZZZ are correspondence that deals with  
finalizing the process, including surveys, additional adjustment lands where the surveys showed  
there was a shortage, and preparation of a Reference Plan. These are of limited relevance and  
again simply reflect narrative of the entire process.  
[147] Further, Mr. Kennedy established that he has “more direct knowledge [of this file] than  
anyone else who works for Canada” (Kennedy affidavit at 3, para 8. He was employed with the  
Department of Indian Affairs and Northern Development (DIAND) during the period of time  
when the agreement in question was negotiated and signed. He identifies himself as someone  
who has worked extensively on this file. It is clear that Mr. Kennedy does have a specific and  
direct connection to this matter. His affidavit includes many references to his personal attendance  
at events and personal involvement with negotiations and the settlement.  
[148] To that extent he expresses opinion about what he observed and concluded, these  
observations are admissible. The Court is capable of distinguishing between opinions and legal  
argument and conclusions. Mr. Kennedy does, at a few sections of his affidavit, appear to  
provide his opinion or argue a position rather than simply describe events. For example, at 15,  
para 72:  
Canada did not consider that persons eligible for band membership under Bill C-  
31 were entitled to additional reserve land. Properly understood, the circumstance  
that some people may have left treaty (and a band) after the original survey of  
their reserve, and then descendants of some of those people been brought into  
Page: 36  
treaty (and a band) by way of an amendment to the Indian Act, had no effect on a  
band’s treaty land entitlement. Any suggestion that Bill C-31 people should be  
able to claim reserve land at or after 1985 is flawed conceptually and would result  
in “double-counting” for the purposes of treaty land entitlement.  
[149] Mr. Kennedy’s opinion of whether an interpretation of Bill C-31 is conceptually flawed is  
not evidence. However, most of Mr. Kennedy’s evidence properly describes what he observed  
and experienced. To the extent that Mr. Kennedy inappropriately engages in argument as  
opposed to giving evidence, the Court will give those portions of the affidavit little, if any  
weight.  
b. Mr. Andres’ Affidavit  
[150] SLCN argues that Mr. Andres’s affidavit is similarly inadmissible, not because the  
documents attached to the affidavits are inadmissible or not authentic, but because Mr. Andres  
states conclusions of fact and law and sets out opinions and conclusions drawn from the  
documents.  
[151] I cannot agree. Mr. Andres’s affidavit consists of five paragraphs attaching three  
exhibits. In para 2, he says he believes that the SLCN “entered into a settlement of their claim to  
further treaty land entitlement” and attaches the 1990 TLE Agreement, entitled “The Sturgeon  
Lake Indian Band Treaty Land Entitlement Settlement Agreement”. Based on the title of the  
document, there is nothing untoward in his statement. To the extent, that it may be interpreted as  
reaching a conclusion of law, this Court is well aware that such a determination belongs to it, and  
is quite capable of taking Mr. Andre’s statement for the appropriate purpose. There is no basis  
for striking this paragraph.  
[152] Paragraph 3 says that Chief and Councillors executed a release of the Band’s entitlement  
claim as against Alberta and attached a copy of the executed Release as an exhibit. The  
document is entitled “Release”; it states, in part, that:  
...the Band and any of its members past, present, or future, including any  
successors or permitted assigns of the Band and any heirs, successors or permitted  
assigns (hereinafter referred to as the “releasers”) do hereby remise, release,  
waive and forever discharge Alberta, her employees, servants, agents, officers,  
officials and successors (hereinafter referred to as the “releases”) from all manner  
of suits and actions, causes of action, claims, demands, damages, costs, expenses  
and liability relating to land, whether known or unknown, which the releasers had,  
now have, or can, shall or may hereafter have against the releases ..  
[153] It is true that the legal effect of this Release is for the Court to determine, but in my view  
there is nothing inappropriate in Mr. Andres’ statement.  
[154] Paragraph 4 states that ACJ Miller signed a Consent Order approving the SLCN  
settlement of the 1987 action, and attached to his Affidavit, Mr. Andres includes the transcript of  
the hearing in which the Consent Order was granted. This is a statement of fact, and there is no  
basis to strike the paragraph.  
c. Ms. Sturney’s and Ms. Sopiwynk’s affidavits  
[155] SLCN objects to Ms. Sturney’s and Ms. Sopiwynk’s affidavits on the basis that neither  
affidavit contains statements and records within the affiants’ personal knowledge. In particular,  
   
Page: 37  
neither was directly involved in the negotiations or discussions of the 1990 TLE Agreement and  
neither had personal knowledge of the documents exhibited in their affidavit. The SLCN cites  
the Alberta Court of Appeal in Alexander v HMS Financial Inc, 2010 ABCA 121 at paras 7-9,  
suggesting that the Court held that “the portions of an affidavit that contained firsthand  
knowledge were admissible, while the portions containing factual argument should be ignored.”  
[156] SLCN also argues that the Defendants cannot rely on the business records exception to  
the hearsay rule, again suggesting that the exception only applies to accounting records, citing  
Stevenson & Côté in Alberta Civil Procedure Handbook, 2013-14 (Edmonton: Juriliber, 2013-  
14) at pp 7-13. Further, they point to s. 35 of the Alberta Evidence Act, RSA 2000, c-A15, which  
refers to “an entry in any book of account”. As noted above, the business records exception in  
the Canada Evidence Act is not that narrow.  
[157] In her affidavit, Ms. Sopiwynk states she is employed as a paralegal for the Department  
of Justice and she has been assigned to work on this action since September 2004. Ms. Sopiwynk  
specifically lists her duties in relation to this file, which include managing Canada’s producible  
document collection in relation to this file, and reviewing that collection as well as other related  
records.  
[158] Ms. Sopiwynk’s intimate knowledge of the information contained in the documents she  
appended to her affidavit is apparent from the contents of her affidavit. Further, the tone of Ms.  
Sopiwynk’s affidavit clearly indicates she has remained focused on summarizing the information  
in those documents. SLCN’s allegation that this affidavit constitutes ‘opinion evidence’ or  
interpretation of evidence is unfounded.  
[159] Ms. Sturney identifies herself as a project manager and team lead for the Litigation  
Management and Resolution Branch of DIAND. She swears that her knowledge is based on her  
review of the documents and her knowledge of the litigation generally.  
[160] Ms. Sturney’s affidavit, however, is structured like argument, rather than evidence. She  
frequently begins sections of her affidavit by stating a conclusion, then refers to the contents of  
the documents she has reviewed to support that conclusion. She also refers extensively to  
documents appended to Ms. Sopiwynk’s affidavit. It is unclear to what extent Ms. Sturney has  
been personally involved in researching these matters.  
[161] To the extent that Ms. Sturney’s affidavit states legal argument, I will ignore those  
statements as they are inappropriate in an affidavit. On the other hand, the purpose of Ms.  
Sturney’s affidavit is to state that she believes there is no merit to the claim, and as such the  
affidavit does properly set out the basis for that belief. It is a question of weight.  
ii.  
Canada’s applications  
[162] Canada has also challenged the admissibility and weight of the Moses’ Affidavits filed by  
SLCN, and argued that the SLCN evidence is not sufficient to meet the Defendants’ strong case.  
[163] In its Reply Brief, filed December 23, 2014, Canada complained that SLCN had not  
proffered any evidence from any of the chiefs and councillors throughout the 1980’s, or from  
their negotiator, Mr. Potts. Nor had it presented any evidence from the thirteen people who  
signed the 1990 TLE Agreement or from anyone who participated in the negotiations.  
Presumably in response, on February 13, 2015, SLCN filed an affidavit of Mr. Sunshine, who  
served as the Chief during the late 1980’s. Mr. Sunshine was questioned extensively on his  
affidavit. As well, on February 20, 2015, SLCN filed the affidavits of Arlene Sunshine, Ron  
 
Page: 38  
Soto, Lawrence Soto, and Margaret Kappo, eligible voters in the 1989 Referendum. I note that  
these affidavits were filed long after the deadline set in case management for filing.  
[164] There were other late filed affidavits; several were sworn by Rath & Company lawyers  
and legal assistants. These, for the most part, deal with combative correspondence between  
counsel for Canada and SLCN. Canada has not applied to strike these other affidavits, but argues  
that the weight and reliability of these affidavits must be assessed within the context for which  
they were filed. At this point, I note that it is difficult to determine that context for some of the  
affidavits, as many of the affiants did not swear to the purpose of the affidavit. Further, in  
questioning of many of the affiants, counsel for SLCN insisted that the affidavits were intended  
to be relied on “for all outstanding applications” and refused to state the particular purpose of the  
affidavits (for example: Transcript of Cross-examination of Kimberly Elizabeth Dean, 8/11-12;  
Transcript of Cross-examination of Paul Reid, 5/2-8).  
a. Moses #1  
[165] Canada argues that paragraphs 9-16 of Moses #1 affidavit should be struck because they  
deal with TLEs of other First Nations dated after the 1990 TLE Agreement. Canada argues that  
these documents are irrelevant and were not produced in the action. This issue was previously  
argued in the context of discoveries. At that point in time, I held that SLCN’s questions  
respecting negotiations and conduct of TLE agreements be limited to similar agreements before  
or immediately after the 1990 TLE Agreement (2005 ABQB 479). I ordered:  
11. a. That the Respondent Federal Crown is not required to answer any  
questions, save and except:  
i.  
Questions respecting negotiations and conduct related to  
Treaty Land Entitlement Agreements dated between January 1,  
1980 and December 31, 1990;  
ii.  
Questions respecting Treaty Land Entitlement Agreements  
entered into between the Federal Crown and Bands whose reserves  
are located within the Territory of Treaty No. 8, and  
iii.  
Questions respecting Treaty Land Entitlement Agreements  
that represent a claim for shortfall in Treaty Land Entitlement  
(Emphasis added)  
[166] SLCN argues that the Order only limited the timeframe for questions about negotiations  
and conduct, but not in relation to TLE’s actually entered into by Canada and other First Nations.  
I conclude it is not necessary to strike these portions of the affidavit; I will assess each document  
by its relevance and reliability to determine the weight I will give it  
[167] On the other hand, some of the “sources” of information regarding the TLE Agreements  
with other First Nations are highly suspect. Paragraph 9 refers, not to a particular agreement, but  
to a third party’s record that sets out the alleged terms of the agreement. This document (Exhibit  
6: entitled: Site C Clean Energy Project” and indicated that it was prepared for BC Hydro  
Power and Authority by Fasken Martineau) is attached without any sworn statement as to its  
provenance. Mr. Moses purports to rely on it for the truth of its contents the amount of land  
and cash compensation and the population of the first nation. This is pure hearsay and of no  
weight.  
 
Page: 39  
[168] Exhibits 7, 8, 10, 12, 13 are also third party records. Some appear to be internet  
documents. None have their source sworn to, and they are relied on for the truth of their contents  
the population of the First Nation at issue, and the amount of land and cash compensation  
under the agreements. I give these no weight.  
[169] As well, paragraph 11 refers to the TLE between Canada and McLeod Lake Indian Band.  
That Agreement is attached as Exhibit 8. It is not a shortfall agreement, but an adhesion to  
Treaty 8. As such, it has limited relevance.  
b. Moses #2  
[170] Canada argued that Moses #2 should be disregarded and given no weight, noting that the  
affidavit presents legal argument as fact, unreliable and unnecessary hearsay, and irrelevant  
evidence. Canada also complains that the attached documents are presented out of context, are  
misleading, and wrong.  
[171] In particular, Canada says that paragraphs 3-7 and paragraph 16 quote only selected  
documents and then Mr. Moses makes a legal argument in paragraph 8 to the effect that the  
Chief and Council believe these documents have a particular legal effect.  
[172] I note that Mr. Moses suggests that the December 18, 1987 proposal by SLCN began the  
negotiating process leading to the 1990 TLE Agreement (Exhibit A to Mr. Moses Affidavit;  
Exhibits FF and GG to Ms. Sopiwynk’s affidavit). However, this document is actually one of a  
series of proposals dating from 1980 to resolve treaty land entitlement, (Exhibits A, G, N, Q of  
Ms. Sopiwynk’s affidavit). There was also a SLCN proposal after December 1987. (September  
1988 at Exhibit NN of Ms. Sopiwynk’s affidavit and para 62 and Exhibit M of Mr. Kennedy’s  
affidavit). Suggesting that this one document is the initial opening of negotiations is an artificial  
distinction. Mr. Moses’ statement in paragraph 8 is not evidence, but an assertion of legal  
argument.  
[173] Mr. Moses then refers to the April 1988 responses to the December 1987 Proposal by  
Canada and Alberta (Exhibits B and C of Moses #2, Exhibits II and JJ of Ms. Sopiwynk’s  
affidavit). However, between the date of the December 1987 Proposal and the April 1988  
responses from Mr. Kennedy and Mr. Prentice, there were a number of contacts between the  
parties: a phone call with SLCN lawyers in January 1988 (see Mr. Kennedy affidavit at para 49  
and Exhibits I and J) and a letter from DIAND Minister offering an interim agreement of land  
based on DOFS, without requiring a release (Exhibit H of Ms. Sopiwynk’s affidavit). As well,  
there were responses to the other proposals that must be considered in interpreting the 1990 TLE  
Agreement.  
[174] Mr. Mosesargued in his affidavit that the April 1988 response from Mr. Kennedy “set  
the parameters for which SLCN entered into negotiations”, quoting in particular the following  
paragraph:  
Settlement of your band’s claim within the scope of existing policies and  
authorities would be without prejudice to any additional land or benefits that  
might be possible as result of the Government’s review of the issues ... 1)  
...Canada will not require a sign off from the Sturgeon Lake Band saying its  
entitlement claim has been satisfied.  
 
Page: 40  
[175] Mr. Moses concluded that SLCN Chief and Council believe that the 1990 TLE is subject  
to this “commitment by Canada” and that the Release does not limit the SLCN from claiming  
additional lands under the Treaty.  
[176] Simply put, this is a conclusion of law that is not appropriate in an affidavit. This court  
will determine the legal effect of the Release on the basis of all the evidence.  
[177] Canada also points to paragraph 9, which asserts that, based upon counsel’s advice, the  
SLCN claim to CPP is not speculative and is based upon the language of the Report of  
Commissioners for Treaty No.8. I agree that such a statement is a conclusion of law or, at the  
very least, legal argument, and is not appropriate in an affidavit. I give it no weight.  
[178] Mr. Moses relies on several Crown documents to suggest that Canada’s policy has been  
to provide lands to First Nations on the basis of current population. In my view, the documents  
attached to Mr. Moses’ affidavit (Exhibit F – “Discussion Paper Treaty Land Entitlement” and  
Exhibit G “Ministerial Briefing) do not necessarily lead to Mr. Moses’ conclusion. Further,  
determining what Canada’s policy was at the time of the 1990 TLE Agreement requires more  
than selective reading of some documents. Given the nature of the documents (a ministerial  
briefing and a discussion paper), these documents are of limited weight and Mr. Moses’  
purported interpretation of the documents is subject to my analysis of these and any other  
relevant documents before me.  
[179] At paragraph 15, Mr. Moses stated that SLCN Chief and Council are unaware of  
receiving any compensation for loss of use of DOFS shortfall lands. This statement is of limited  
relevance; the state of the present Chief and Council’s knowledge as to what occurred in the  
negotiations of the 1990 TLE Agreement is entitled to little weight.  
[180] Paragraphs 17-26 of Mr. Moses’ affidavit deal with the Referendum, suggesting that,  
“from the records” (without specifying which records) the Referendum did not follow the  
Referendum Regulation under the Indian Act. He deposes that the Notice was not posted before  
June 12, 1988; that the SLCN has no information whether a voters’ list or list of electors was  
created or posted; that SLCN has no record that any members living off reserve were given  
notice of the Referendum. This evidence goes to the SLCN argument that the Referendum was  
conducted improperly. This Court can assess the relevance and reliability of the evidence. To  
the extent that the affidavit relies on the advice of counsel as to the law, this is akin to legal  
argument and is inappropriate in an affidavit.  
[181] Paragraphs 27-32 of Mr. Moses’ affidavit attached selected documents dealing with Bill  
C-31. He refers to a June 13, 1989 Communique, Plaintiff document 548 attached to his affidavit  
as Exhibit N, and states that the Communique refers to 1988 research that the C-31 amendments  
would result in much greater demand for federal services than originally estimated. Mr. Moses  
deposes that “according to our records” SLCN was not informed about this research and “we  
have no records of receiving details of any such Research ever.” Yet Canada points to numerous  
records in the Plaintiff’s production that refute this.  
[182] For example, Mr. Moses attached to his affidavit, Exhibit O, Report to Parliament,  
Implementation of the 1985 Changes to the Indian Act. He states that this report indicated that  
SLCN had 447 new applicants through Bill C-31 and only 26 were entered on the Band list. He  
swears that Chief and Council were not aware of this information, and that SLCN has no record  
of Canada providing this information to SLCN. Yet, the same report was included in the  
Page: 41  
Plaintiffs production (Plaintiff’s document 541) and was stamped received by SLCN on July 7,  
1987.  
[183] None of this supports striking the affidavit, but does cast doubt on the reliability of Mr.  
Moses’ statements “based on the records”.  
[184] I will not strike the affidavit, but will consider the relevance, weight and reliability of the  
evidence contained in the affidavit as I address the issues the affidavit is intended to deal with.  
c. Moses #3  
[185] Moses #3 contains the “will say” statements of individuals about where they lived and the  
notice, if any, they received of the Referendum. I give this portion of the affidavit no weight.  
These “will say” statements have no evidentiary value. A will-say statement is not evidence, but  
is given to provide to the other party with the substance of the evidence that will be given in  
order to avoid surprise: Bortnikov v Rakitova, 2015 ONSC 550 (at para 44). In criminal matters,  
will-say statements may be provided as part of the Crown’s disclosure: R v Sadler, 2006 BCCA  
314 (at para 5). The persons supplying the “will say” statement are not sworn and cannot be  
questioned on their statements. In a summary judgment application, the respondent is required to  
put its “best foot” forward and present evidence, not speculation or proposed evidence: Pyrrha  
Design Inc v Plum and Posey Inc, 2016 ABCA 12 at para 14; Poliquin v. Devon Canada Corp,  
2009 ABCA 216 at para 70; Lameman (SCC) at para 19.  
[186] Similarly, the “expert report” of Professor Lyon is hearsay. The letter does not conform  
to the Rules of Court for an expert report. Because the report is attached to Mr. Moses’ affidavit,  
Professor Lyon has not sworn the evidence and cannot be questioned on it. At best, it is evidence  
of what evidence Professor Lyon might give. I give it no weight.  
d. Moses #4  
[187] Mr. Moses fourth affidavit is entitled “Discoverability”. It was filed December 19, 2014,  
after Canada filed its written submissions. Canada raised concerns about the weight and  
admissibility of this affidavit in oral argument. In this affidavit, Mr. Moses deposes the grounds  
for SLCN’s argument that it only discovered its causes of action sometime after the 1990 TLE  
Agreement was executed. In particular, it cites the following:  
1. The SLCN only learned that Canada withheld information about the potential  
numbers of Bill C-31 members when it began to prepare for this summary judgment  
application;  
2. The SLCN only learned that Canada misrepresented its policy towards land  
entitlement claims when it reviewed documents produced by Canada in this litigation  
(Exhibits F and G in Moses #2);  
3. The SLCN only became aware that no voters’ list was prepared or posted for the  
Referendum when it reviewed production and questioned Mr. Kennedy on his  
affidavit;  
4. Similarly, it was not until questioning of Mr. Kennedy and review of the records, that  
SLCN became aware that SLCN members did not have an opportunity to understand  
the TLE before the vote and that only 10 days’ notice of the Referendum was  
provided;  
[188] I will consider the weight and admissibility of the evidence in this affidavit when  
addressing the issue of the appropriate limitation periods.  
   
Page: 42  
e. Reid #1  
[189] Canada objected to Mr. Reid’s affidavit, arguing it should be disregarded and assigned no  
weight. It says that maps attached to the affidavit are irrelevant because the SLCN has sued on  
lack of informed consent.  
[190] Further, Canada objects to the expert report of Professor Ferguson as hearsay and merely  
a preliminary survey of some information. The evidence is not relevant to any of the issues. I  
will give no weight to the hearsay evidence of Professor Ferguson. The maps and information  
related to the maps are of little relevance and weight.  
E.  
Conclusion on striking affidavits  
[191] SLCN’s argument that Canada and Alberta’s affidavits must be struck merely because  
they rely on the interpretation of documents must fail. The case law is clear that representatives  
who swear affidavits on behalf of organizations may rely on their review of documents to gain  
personal knowledge for the purpose of R 13.18(3).  
[192] Similarly, I will not strike any of Mr. Moses’ affidavits, but will consider the reliability of  
the evidence they contain within the context of all the other evidence. As the Court of Appeal  
noted in CLM v DGW, 2004 ABCA 112 at para 11:  
The court deciding the substantive issue will have an opportunity to consider that  
evidence in its proper context and determine whether there is any proper  
foundation on which to exclude it. Rulings on the admissibility of affidavit  
evidence are best left to the judge ruling on the substantive motion for two  
reasons. First, that judge is best positioned to know all the facts, balance the  
competing arguments and rule appropriately.  
(Emphasis added)  
V.  
Facts  
[193] The following section provides a timeline of the process leading to the 1990 TLE  
Agreement and references the evidence that supports these facts.  
[194] Late 19th and Early 20th Century Canada entered into Treaty 8 in 1899; SLCN  
adhered to the Treaty in 1900, and in 1908 Canada created a reserve for SLCN, based on a  
population survey that all parties knew was not complete because some Band members were  
away, hunting and so on. There was no perceived rush to ascertain the correct numbers because  
there was much land and little settlement at the time.  
[195] 1930 The NRTA-was entered into and the Constitution Act, 1930 enacted. Under these  
agreements Canada transferred Crown land and mines and minerals to Alberta subject to existing  
trusts and agreements.  
[196] 1970-80 As population and development increased, bands approached Canada about  
finalizing their land claims under Treaty, to ensure that the lands under Treaty 8 were provided;  
[197] September 1980 SLCN submits its First Proposal to settle its treaty land claims, and  
asserts (at p 8 (Exhibit A of Ms. Sopiwynk’s affidavit)) that it should be entitled to land under  
the Treaty 8 formula (128 acres per person) using CP figures, as had already occurred in  
     
Page: 43  
Saskatchewan.2 The proposal asserted that this would take into account the Band’s increased  
need for land and would compensate for loss of use of the land over time.  
[198] June 1984 SLCN submits its Second proposal (Ex G of Sopiwynk Affidavit) which  
states in part:  
A final settlement based on this principle should be calculated to include not only  
the population of all families currently registered with the band, but also those  
eligible to be registered but not in fact registered;  
[199] June 28, 1985 Bill C-31, An Act to Amend the Indian Act was passed;  
[200] September 1985 DIAND Minister David Crombie advises SLCN Chief Edward  
Goodswimmer that their claim was accepted for negotiations (Ex L of Sopiwynk Affidavit). His  
letter noted:  
In the event that a final settlement is reached, your Band must ensure the claim  
cannot be reopened by executing a formal release in favour of Canada.  
[201] December 1986 SLCN submits its Third Proposal, signed by Chief Edward  
Goodswimmer and six named councillors, seeking treaty land entitlement for the population of  
the Band at a cut-off date of December 31, 1976 [Saskatchewan Formula] (Ex N of Sopiwynk  
Affidavit);  
[202] March 1987 SLCN’s lawyer, Bill McMurtry, of Blaney McMurtry, provided a Fourth  
Proposal to Canada (Ex Q of Sopiwynk Affidavit). That proposal states:  
it is the position of the Sturgeon Lake Indian Band that the official figures of  
the present be used as the base formula for determining entitlement. This  
population figure would also take in the new members who have been, or will be  
added to the Band list pursuant to the 1985 Indian Act amendments [C-31]...  
We are negotiating on the basis of 128 acres (640/5) person residing on reserves  
and 160 acres per person who live separately on the basis of 1987 population  
figures. [land in severalty]  
[203] The Fourth Proposal went on to state that the SLCN took the position that the oral  
promises in the Commissioner’s Report form part of Treaty 8, and that the Report:  
...lays out the procedure for land entitlement. The procedure appears to recognize  
that land would be set aside on a gradual basis with no date of a cut-off of  
population figures considered as the present day figures would be used when the  
land entitlement is being fulfilled [CPP].  
[204] May 28, 1987 Canada responded to the Fourth Proposal (Ex R of Sopiwynk Affidavit;  
Exhibit A of Moses #4), writing that:  
1. Canada’s position is that Canada’s outstanding legal obligation for treaty land  
entitlement is the shortfall calculated on the basis of the Band’s population as of the  
date of first survey [DOFS], not the current population [CP]. The only situation where  
contemporary band population may be used is where the province in question is  
2
I note that the so-called Saskatchewan Formula capped the population as of December 31,  
1976.  
Page: 44  
prepared to settle on that basis. Alberta’s position has been that its lawful obligation  
was limited to the population at the time of treaty signing [DOTS].  
2. Canada asserted that the land in severalty provision of Treaty 8 was “a one-time only  
right which is exercised when land is first selected and surveyed for the band.”  
3. Other issues, like new members coming in through Bill C-31, damages for loss of  
use, and self-government are not addressed in the specific claim process.  
[205] June 15, 1987 SLCN commenced the 1987 Action, seeking declarations that the SLCN  
had outstanding land entitlements under Treaty 8, that Alberta is impressed with a trust or  
fiduciary duty to manage traditional Band lands to preserve Band treaty rights, and that their  
reserves included Surgeon Lake and its lake bed, and further seeking injunctions against Alberta  
enjoining it from selling natural gas and petroleum leases within the Band’s traditional lands (Ex  
Y of Sopiwynk Affidavit). Also filed on June 15, 1987 was Chief Francis Goodswimmer’s  
affidavit which attached the second, third and fourth land claim proposals as exhibits (Ex AA of  
Sopiwynk Affidavit).  
[206]