Goodswimmer v Canada | Jul 8, 2016

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.

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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

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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

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 11–25)

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

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

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

TTTTT

UUUUU

VVVVV

WWWWW none

XXXXX

YYYYY

ZZZZZ

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:

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(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 Plaintiffs’ claim. If

the Court grants this application, this will finally dispose of the Plaintiffs’ claim. 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. Moses’ argued 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 19^thand Early 20^thCentury – 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.²The 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] June 22, 1987 – Alberta and SLCN agree to adjourn the injunction application in the

1987 Action and Alberta agreed to temporarily stop offering resource leases and licenses in

SLCN’s traditional lands and begin negotiations;

[207] June 29, 1987 – Delia Opekokew, of Blaney McMurtry, wrote Alberta on behalf of

SLCN to set out the issues to be addressed in negotiations (Exhibit T of Ms. Sopiwynk’s

affidavit). Robert Potts, also of Blaney McMurtry, wrote Canada on June 30, 1987 to report on

the litigation with Alberta (Exhibit S of Ms. Sopiwynk’s affidavit).

[208] October 27, 1987 – Canada’s DIAND Minister, Bill McKnight, wrote the new SLCN

Chief, Chief Sunshine, and offered the Band the opportunity to select land based on DOFS

population figures, without prejudice to future negotiations (Ex CC of Sopiwynk Affidavit), and

copied Mr. Potts and Mr. McMurtry (Ex DD of Sopiwynk Affidavit).

[209] November 15, 1987 – On behalf of the SLCN, Chief Sunshine responded to Minister

McKnight and declined to take any land on an interim basis, insisting that land entitlement must

be calculated on a more contemporary population than DOFS (Ex EE of Sopiwynk Affidavit).

[210] December 18, 1987 – SLCN presented its Fifth Proposal (Exhibit FF and GG of

Sopiwynk affidavit; Exhibit A of Moses #2) setting out its assertion that Canada must use

contemporary population figures to settle treaty land entitlement, referred to examples of other

settlements that used contemporary population and it claimed Sturgeon Lake and its lakebed

separate and apart from its land entitlement claim.

[211] January 1988 – Mr. Potts and Ms. Opekokew spoke to Mr. Kennedy following up on the

Fifth Proposal. Mr. Kennedy’s notes from those calls indicate that he reminded Ms. Opekokew

that the Minister took the position that the calculation of entitlement was to be based on DOFS

and she responded that “things were negotiable” (Kennedy Affidavit at para 49 and EX. I and J).

[212] February 1988 – Minister McKnight again offered the SLCN the option of making

interim land selections based on population as of the DOFS, without prejudice and without

requiring a release (Ex HH of Sopiwynk Affidavit).

[213] April 18, 1988 – Mr. Kennedy provided a response to the Band’s Fifth Proposal,

indicating that under current policies and authorities Canada could confer reserve status on land

transferred based on DOFS, but that the Minister would be seeking advice from Cabinet on

Page: 45

negotiating land entitlement over what Canada considered to be its lawful obligation (DOFS).

He again offered to settle the land entitlement claim up to the DOFS amount, without prejudice

to continuing negotiations and without requiring a release (Ex II of Sopiwynk Affidavit; and

Kennedy Affidavit at para 53).

[214] April 18, 1988 – James Prentice of McLeod Lyle Smith McManus responded to the Fifth

Proposal on behalf of Alberta and indicated a willingness by Alberta to move from DOTS to

DOFS for the purposes of calculating land entitlement on a without prejudice basis (Ex JJ of

Sopiwynk Affidavit). At the same time, Alberta provided an expert report that the Sturgeon Lake

lakebed had never formed a part of the Sturgeon Lake Indian Reserve No. 154 (Ex KK of

Sopiwynk Affidavit).

[215] April 21, 1988 – A settlement meeting was held at the Sturgeon Lake Band Office,

attended by Band Representatives, including Chief Sunshine, Mr. Potts and Ms. Opekokew,

Canada’s representatives, including Mr. Kennedy, and Alberta representatives, including Mr.

Prentice (Exhibit D of Moses #2). At page 3 of the minutes from the meeting³, Chief Sunshine is

reported to have said that land was most important because the Band was being squeezed by

development and the need for future generations. He noted that the population had doubled since

Bill C-31. At page 5 of the minutes, Mr. Potts is reported as saying that while the Band took the

position that it was entitled to over 100,000 additional acres, it would be willing to accept 30,000

acres with a supplementary cash settlement. If that occurred the Band would be willing to give

releases.

[216] September 22 and 23, 1988 – Additional settlement meetings among Canada,

represented by Mr. Kennedy, Alberta, represented by Mr. Prentice, and the SLCN, represented

by Mr. Potts, took place at the Band office boardroom. Mr. Kennedy’s evidence was that the

Chief, councillors and other members of the Band “could and did directly observe and participate

in the negotiation sessions” (Kennedy Affidavit at para 59). These meetings led to the SLCN’s

Sixth Proposal (Ex NN of Sopiwynk Affidavit; Kennedy Affidavit at para 62 and Ex M.) which

included the following:

1. A formal offer to provide a complete and full release to Canada and Alberta, referring

to land entitlement claims and claims to Sturgeon Lake;

2. The abandonment of the 1987 Action and the injunction application.

[217] November 2, 1988 – The parties arrived at an Agreement in Principle (AIP) which they

agreed to submit to their principals for consideration. The AIP included “Full and complete

releases” (Ex OO of Sopiwynk Affidavit). Mr. Kennedy in his affidavit (paras 65-68) noted that

releases were “fundamental to reaching an agreement on this land claim”, as both Canada and

Alberta would not have entered into settlement of the whole claim without the releases, and that

SLCN understood that settling their whole claim would require a final release. Although Canada

had, on several occasions, suggested interim settlement without releases for land entitlement up

to the DOFS entitlement, SLCN rejected temporary solutions and wanted to resolve the entire

claim.

3

The minutes were produced by SLCN in response to Undertaking #17, and was subsequently

marked as a full exhibit in the Cross Examination on Affidavit of Sean Kennedy. These minutes

were also attached as Ex. D of Moses #2 Affidavit.

Page: 46

[218] November to December 1988 – Various iterations of a MOI were drafted and there were

continuing refinements of the language (Ex QQ, PP, TT, VV, ZZ, AAA of Sopiwynk Affidavit).

On December 16, 1988, SLCN Chief and Council agreed to the MOI outlining the settlement and

recommended it to their membership by Band Council Resolution (BCR) (Ex BBB of Sopiwynk

Affidavit and Kennedy Affidavit at paras 82 and 84). The MOI was executed by all three

parties: Mr. Kennedy for Canada, Mr. Prentice for Alberta, and Mr. Potts for SLCN (Ex CCC of

Sopiwynk Affidavit). Based on his attendance and discussion at meetings with Chief Sunshine

and SLCN councillors, Mr. Kennedy deposed that the Chief and councillors all understood and

approved of the agreement and understood what the release meant.

[219] The terms of the MOI included:

1. Alberta was to transfer lands to Canada, including mines and minerals, and Canada

was to establish these lands as reserves for SLCN. The Agreement provided for

1207 acres contiguous to IR #154A and 15,000 acres contiguous to IR 154;

2. Alberta and SLCN were to transfer certain mines and minerals to Canada and Canada

was to establish these mines and minerals as reserves for the benefit of SLCN;

3. Canada was to pay SLCN $4.15 million and Alberta to pay SLCN $1.425 million for

a total of $5.575 million;

4. Canada would reimburse SLCN for all reasonable costs and expenses incurred by

SLCN for negotiations, proceedings, and documentation of the settlement;

5. The final agreements would include full and complete releases between Canada,

Alberta and SLCN. The Release provision read:

Canada shall obtain a full and final Release from the Band under

the terms of Treaty No. 8, from all clauses relating to the provision

of reserve land and land in severalty.

6. The SLCN membership would ratify the Agreement by Referendum

(Ex CCC of Sopiwynk Affidavit).

[220] February 6, 1989 – Mr. Kennedy, in a letter to Chief Sunshine, set out some of the

necessary steps for entering into a final agreement, including holding a Band referendum. He

noted that while the Referendum was initially planned to be held in March 1989, the series of

agreements were in the process of being revised and the finalized versions of the agreement

needed to be available when notice of the Referendum was given, leading to delay. He

suggested that preliminary information be distributed to Band members in the meantime (Ex

EEE of Sopiwynk Affidavit).

[221] February 13, 1989 – Mr. Kennedy’s evidence is that many SLCN members had specific

information about the land claim and were involved in the preparatory work. He further deposed

that Mr. Potts prepared, and Chief Sunshine distributed, an information circular to the Band

members about the AIP and provided a copy of the MOI (Ex KKK of Sopiwynk Affidavit;

Kennedy Affidavit at para 92).

[222] March 21, 1989 – The SLCN held at least one information meeting for its members (Ex

TTT of Sopiwynk Affidavit⁴) on March 21, 1989, attended by Mr. Kennedy. Mr. Kennedy

⁴In Exhibit TTT, Mr. Kennedy writes the Deputy Minister informing him that there were three

information meetings and an additional one scheduled. However, there is no confirmatory

Page: 47

deposed that the notes in Ex OOO of the Sopiwynk Affidavit are an accurate recitation of the

meeting, prepared by his colleague Derek Dawson (Kennedy Affidavit at para 14 and 94-95; at

cross-examination on his affidavit, Mr. Kennedy indicated that he did not recall seeing these

notes at the time they were made, but that they had been brought to his attention). Those notes

record, and Mr. Kennedy confirms that, Mr. Potts told the meeting about the results of

negotiations, noting the land, mines and minerals, and cash components of the AIP, as well as the

following:

In Return

Release feds, from all land entitlement under Treaty 8. [Emphasis

in original]

Mr. Kennedy is recorded as stating:

3200 acres of entitlement land plus 13,000 acres of incentive land.

Release is full and final under Treaty 8 land entitlement.

We have to release the province and we can’t do so unless the band

releases Canada.

[223] The 1990 TLE Agreements went through several drafts, and drew directly from the

MOI. There were a number of inter-related agreements:

1. Agreement between SLCN and Canada;

2. Agreement between Alberta and Canada, which formed Schedule A in the SLCN-

Canada Agreement;

3. Trust Agreement between SLCN and Canada, which formed Schedule C in the

SLCN-Canada Agreement;

4. Trust Agreement (Lands) between SLCN and Canada, which formed Schedule D in

the SLCN-Canada Agreement.

[224] May 25, 1989 – By BCR the Chief and Council directed that the Referendum on the

1990 TLE Agreement be held on June 23 and 24, 1989 at the Sturgeon Lake main reserve and

required that notice of the Referendum be posted on June 12, 1989 (Ex SSS of Sopiwynk

Affidavit; Kennedy Affidavit at para 99; Ex H of Moses #1 Affidavit). The BCR reads, in part,:

Whereas, the Chief and Council of the Sturgeon Lake Band #455, have requested

that the Minister order a referendum for the purpose of determining if the majority

of the electors are in favor of the proposed Sturgeon Lake Indian Band Treaty

Land Entitlement Agreement; and

Whereas, the Sturgeon Lake Band Council shall determine the appropriate period

of notice for the referendum;

Therefore, be it resolved that a duly convened Band Council meeting, held on

May 25, 1989, the Chief and Council of the Sturgeon Lake Band #455, do hereby

request that the Notice be posted on June 12, 1989 for the referendum to be held

on June 23 and 24, 1989.

evidence of any information meetings other than the March 21, 1989 meeting, so I will limit my

finding to the single meeting.

Page: 48

[225] June 9, 1989 – The Deputy Minister of Indian Affairs and Northern Development

ordered that a referendum be held on June 23 and 24, 1989 following the procedures in the May

25, 1989 BCR. The Order designated Bohdan M Charchun as the officer of the Department in

whose presence the referendum be conducted and as the electoral officer under the directions of

the Minister for the referendum (Ex UUU of Sopiwynk Affidavit).

[226] June 12, 1989 – A detailed referendum notice was prepared to be posted at the Sturgeon

Lake Band office, attaching a copy of the ballot question for the referendum (Ex VVV of

Sopiwynk Affidavit). As well, the Chief and Council set the voters’ list by BCR (Ex WWW of

Sopiwynk Affidavit). The BCR specified that eligibility to vote was set as those persons

ordinarily resident on the Reserve using the criteria for defining residency for Band election

purposes. The BCR also provided for declarations of eligibility if the list mistakenly omitted

someone.

[227] June 24, 1989 – The SLCN membership voted to ratify the 1990 TLE Agreement as set

out in para 23 of Moses #1 and Exhibits ZZZ, AAAA, BBBB1-BBBB-8 of Sopiwynk Affidavit.

[228] December 21, 1989 –January 11, 1990 – The various agreements were executed; in

particular the SLCN – Canada agreement was executed by SLCN Chief and Council in

Edmonton Alberta, and the SLCN-Canada agreement was executed by Canada in Ottawa (Ex

LLLL, MMMM, NNNN, and OOOO of Sopiwynk Affidavit). Following execution, Canada and

Alberta provided the cash component to the SLCN’s bank.

[229] January 25, 1989 – The 1987 Action was resolved by Consent Order of Miller ACJ in

Edmonton Alberta. The 1990 TLE Agreement was appended as Exhibit 1 to the Consent Order.

[230] Spring 1991 – The 1990 TLE Agreement provided that the additional land be confirmed

by survey; the survey revealed a shortfall which was corrected and SLCN received 91.4

additional acres to that set out in the Agreement.

VI.

Canada’s Applications

[231] On October 4, 2012, Canada brought an application to strike the action under r 3.68 or

alternatively for summary judgment under r 7.3.

A.

Application to strike

[232] Canada argues that the parts of this action claiming land should be struck because such

claims:

1. Are an abuse of process because it raises the same issues resolve by the Court of

Queen’s Bench Consent Order of ACJ Miller in the 1987 Action;

2. Disclose no reasonable cause of action under r 3.68(2)(b) and are frivolous, irrelevant

and improper under r 3.68(2)(c) because

a. The SLCN fully and finally released Canada for any liability for treaty land

under Treaty No. 8; and

b. The action was brought out of time and is barred by the limitations statute.

[233] Canada says that the Court should apply the modern approach to resolving litigation set

out by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7. Karakatsanis J noted

that simplifying pre-trial procedures and moving the emphasis away from conventional trial

procedures to procedures more tailored to the needs of each case is part of a cultural shift that

Page: 49

better reflects modern reality (at para 2). This is consistent with r 1.2 of the Rules of Court,

which provides:

1.2(1) The purpose of these rules is to provide a means by which claims can be

fairly and justly resolved in or by a court process in a timely and cost‑effective

way.

[234] While Hyrniak was a summary judgment application, the Supreme Court has applied this

kind of analysis to other procedures: Association des parents de l'école Rose-des-vents v. British

Columbia (Education), 2015 SCC 21 at paras 78-80 (striking pleadings in phased litigation), as

has our Court of Appeal: Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12 at para 11

(summary dismissal granted despite no formal application for summary dismissal); 2016 ABCA

76; Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101 at para 79-80

(oppression and restructuring of a society); and Canadian Natural Resources Ltd v ShawCor

Ltd, 2014 ABCA 289 at para 5 (application for further and better affidavit of records), where the

Court stated:

This shift entails simplifying pre-trial procedures...Accordingly, this shift should

inform not merely this Court's interpretation of the specific rules under

consideration but the overall approach to civil justice issues before the courts.

[235] In O'Connor Associates Environmental Inc v MEC OP LLC, 2014 ABCA 140 the

Court of Appeal held at para 14, that striking pleadings that have no reasonable prospect of

success falls within the new culture described in Hryniak. In Ernst v. Alberta (Energy

Resources Conservation Board), 2014 ABCA 285, the Court of Appeal stated that “The test is

therefore whether there is any reasonable prospect that the claim will succeed, erring on the side

of generosity in permitting novel claims to proceed.” (at 14).

[236] I conclude that this modern approach applies to Canada’s application to strike the

pleadings. In other words, I must decide:

 whether there is any reasonable prospect that the claim will succeed, erring on the

side of generosity in permitting novel claims to proceed; and

 whether that issue can fairly be decided on the record before the court.

1.

Abuse of Process: r 3.68(2)(d)

[237] Canada describes abuse of process as a flexible doctrine that is inherent in the Court’s

power to control its own processes. The Supreme Court of Canada in Behn v Moulton

Contracting Ltd, 2013 SCC 26 noted that abuse of process is unencumbered by the more specific

requirements in res judicata and issue estoppel. The doctrine is aimed at preventing manifest

unfairness caused by misuse of the Court’s procedures that would bring the administration of

justice into disrepute. An example of such abuse is when an action amounts to an attempt to re-

litigate an already determined claim (para 40).

[238] In Moulton Contracting, some First Nations members attacked forestry authorizations as

a defence to the trespassing tort claim against them for blocking a company’s access to its

logging site. The Court held that raising a breach of the duty to consult and of treaty rights to

attack the forestry authorizations was an abuse of process. The licenses were not challenged

when the Crown granted them, and therefore the defence was not available in the later tort

action.

Page: 50

[239] In Reese v Edmonton, 2011 ABCA 238 (at para 16), Slatter JA held that abuses of

process can arise in many different contexts, and in MK Engineering Inc v Plecash, 2014

ABQB 483 (at para 81) Manderscheid J held that abuse of process may be triggered where

litigation would violate such principles as “judicial economy, consistency, finality and the

integrity of the administration of justice.”

[240] Canada argues that the Consent Order in the 1987 Action conclusively resolved all issues

with respect to Treaty 8 land entitlement of the SLCN. While conceding that the 1987 action

was aimed at obtaining an injunction, Canada argues all the same issues raised here were the

subject matter of the 1987 Action. While Canada was not named in the style of cause, it is a

party to the 1990 TLE Agreement attached to the Consent Order.

[241] Some of the same evidence was led in both actions. For example, Chief Goodswimmer’s

affidavit in the 1987 Action included the 1984 Second Proposal to Canada to settle the TLE

claim as Exhibit I. That same document is Exhibit G in Ms. Sopiwynk’s affidavit.

[242] Further, Canada argues, it has done everything it agreed to do in the 1990 TLE

Agreement, including obtaining the land chosen by the SLCN from Alberta and designating it as

reserve, providing additional mine and minerals titles and providing funds to buy additional land,

and designating those as reserves. It provided millions of dollars to SLCN, including funds to

cover the negotiation and legal costs. Further, SLCN has benefitted from the Agreement

incorporated into the Order.

[243] Abuse of process does not require the old action to be identical to the present

proceedings. Abuse of process is raised here because this action directly attacked the resolution

of the old action. Canada argues that it would undermine the administration of justice to allow

parties to disregard court orders to which they have agreed.

[244] SLCN responds that the test for striking pleadings is stringent, citing the Supreme Court

of Canada in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 which cautioned that courts

should be careful in considering alleged defects in pleadings. As to abuse of process, SLCN

cites FastTrack Technologies Inc v 104 Street Law Office Management Ltd, 2012 ABQB 639

(at paras 30-32) to the effect that there is no definitive test for abuse of process. It argues that if

Canada cannot succeed on summary judgment, it cannot succeed in a striking application, and

relies on its arguments in the summary judgment application.

[245] In my view, this mistakenly places the summary judgment application before the

application to strike, but Canada only seeks summary judgment as an alternative to the striking

motion. I will consider SLCN’s argument regarding summary judgment, where applicable to the

abuse of process argument, but there is very little of that argument that addresses the re-litigation

question.

[246] As well, SLCN filed a separate brief in response to Alberta’s application to strike and in

it, SLCN merely states:

Insofar as the present claim does not seek to relitigate claims that were

determined and settled by the 1990 TLE and by the Consent Order in the 1997

Alberta Action, for all the reasons stated throughout this brief and the December

16, 2014 Brief, the present action is not an abuse of process. Insofar as there is

disagreement as to the nature and scope of the 1990 TLE and the Consent Order,

these issues cannot be determined summarily and are issues for trial.

Page: 51

i.

Is this action abusive for raising the same issues as the 1987

Action?

[247] In the Fourth Amended Statement of Claim, SLCN asserts the following in relation to

land (bracketed numbers are references to the paragraph in the Fourth Amended Statement of

Claim):

1. Treaty 8 consists of written and oral promises (para 13). Canada knew of the vast and

valuable mineral deposits in the Treaty 8 lands and planned to divest the Treaty 8

First Nations of their title to the lands before the First Nations learned of the lands’

value (paras 14-15). Canada, through the Treaty Commissioners, undertook to

determine who was entitled to land (para 17);

2. The First Nations relied on oral promises because they could not read the Treaty

documents and they did not know they were ceding vast tracts of valuable land (para

20, 33). The Oral promises included promises to set aside land in common of 128

acres per person or lands in severalty of 160 acres per person, as needed, and

promises that the First Nations could select the land where they chose as long as it

had not already been taken up for other purposes (para 22 (d) and (e))

3. Canada breached its fiduciary duty by failing to disclose the value of the lands at

issue leading up to the entering of Treaty 8, including the value of the minerals (para

26-29, 31, 33, 43, 45) and by acquiring the lands for less than its actual value (para

34);

4. Canada and Alberta failed to account for profits earned from ceded lands (para 31).

Under s. 2 of the NRTA Alberta assumed all of Canada’s duties and obligations to

account for profits (para 32);

5. The Treaty Commissioners, on behalf of Canada, represented to the Plaintiffs that

land entitlement under Treaty 8 was an ongoing obligation and fulfillment of land

entitlement would be done in the future as required based on CP or CPP (paras 35-

36); Canada breached its obligations under Treaty 8 by refusing to recognize the

Plaintiffs’ increased entitlement based on CPP (paras 37-39);

6. Canada breached its fiduciary obligations because it failed to tell the Plaintiffs they

must belong to a Band to be entitled to Treaty land (para 40) and were not told that

they would be subject to Federal legislation (para 41). Canada controlled the

Plaintiffs’ membership under the Indian Act in order to reduce its obligations under

Treaty 8, breaching its fiduciary obligations (para 42);

7. Representatives of Canada induced the Plaintiffs to enter into Treaty 8 by

representing that Sturgeon Lake formed part of the reserves, including its renewable

and non-renewable resources and the waterbed; alternatively, the surveyor included

Sturgeon Lake in the reserve sketch (para 44);

8. Much of the land allocated to the Plaintiffs under Treaty 8 consisted of muskeg, in

breach of Canada’s fiduciary, contractual and equitable obligations and the Plaintiffs

are entitled to compensation for passing off unusable swamp and muskeg (paras 46-

47);

9. Canada transferred Crown lands to Alberta under the NRTA, subject to any trusts or

agreements with third parties, and subject to the obligation to set aside provincial

lands to fulfill land entitlement provisions under Treaty 8. Canada and Alberta have

breached fiduciary obligations by refusing to abide by the terms of the Treaty (paras

48-54); and

Page: 52

10. Bill C-31 created new adherents to Treaty 8, but did not compensate them or the

SLCN or provide lands for those additional people (paras 58-59).

11. Canada and Alberta failed to protect SLCN rights to maintain their mode of life, and

the Plaintiffs seek compensation for the destruction of wildlife and burial sites and the

destruction and conversion of natural resources (paras 83-86).

[248] This action also makes a number of claims (paras 60-76) in regard to the 1990 TLE

Agreements, including:

1. the 1990 TLE Agreement did not provide for SLCN’s actual entitlement under Treaty

8 and, in supporting the 1990 TLE Agreement, Canada breached its fiduciary duty

and defrauded the SLCN of what was owed to it;

2. Canada failed to disclose material facts in the negotiations leading to the 1990 TLE

Agreement, including the fact that the Plaintiffs were entitled to land based on CPP,

were entitled to the mineral rights of whatever land they selected, and were entitled to

select lands containing existing mineral leases and they were entitled to revenue from

those leases. Canada also failed to disclose that the lands surrendered contained vast

amounts of mineral wealth.

3. Canada did not ensure SLCN gave informed consent regarding extinguishment of

land and mines and mineral rights, and obtained SLCN’s consent through breach of

trust, breach of fiduciary duty, equitable fraud, deceit, or negligent misrepresentation;

4. The Releases in the 1990 TLE Agreements were given without informed consent;

[249] The Statement of Claim in the 1987 Action (Exhibit Y of Ms. Sopiwynk’s affidavit) set

out the following:

1. 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;

2. 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;

3. 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 as required;

4. 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 within the reserves the water between the

headlands;

5. 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 interest;

6. Canada has acknowledged that additional treaty land entitlement is owed to the Band,

and Canada, Alberta and the Band need to enter into negotiations;

7. Notwithstanding these pending negotiations, Alberta has unilaterally purported to

offer petroleum and natural gas leases and licenses throughout the Band’s traditional

lands;

Page: 53

8. This purported offer for sale is ultra vires the Province and impinges upon the

Band’s unfulfilled treaty rights under Treaty 8;

9. Alberta was impressed with the same trust and fiduciary duties impressed upon

Canada by Treaty 8 and they both have a duty to protect the Band’s reserves and any

disposition of its traditional lands are subject to consultation and concurrence of the

Band; and

10. 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.

[250] Thus it is clear that although Canada was not a named party in the 1987 action, its

involvement was central to the 1987 Statement of Claim. Further, the Statement of Claim itself

incorporated the negotiations as an essential element of its cause of action against Alberta at para

21: “Notwithstanding these pending negotiations towards the settlement of the Band’s unfulfilled

Treaty rights”.

[251] The negotiations leading to the settlement of the 1987 Action are also relevant because

they formed the basis of the Consent Order and the 1990 TLE Agreement was incorporated into

that Order. The SLCN’s Fourth Proposal, a letter to Canada from Mr. McMurtry (Exhibit Q of

Ms. Sopiwynk’s affidavit), set out the following issues for negotiation:

1. Land entitlement should be calculated on the current population, including the effect

of Bill C-31;

2. The acreage already granted is also subject to negotiation because erosion caused by

dams has led to losses of surveyed land;

3. When calculating the outstanding land entitlement, the SLCN wanted to incorporate

the full terms of Treaty No. 8;

4. SLCN is negotiating on the basis of “128 acres (640/5) per person residing on

reserves and 160 acres for those persons who live separately on the basis of 1987

population figures.”

5. Oral promises made by the Commissioners and recorded in the Commissioners’

Report;

6. Treaty 8 clauses dealing with economic development must be interpreted according to

present day economic needs, requiring appropriate programs and services. A land

claim settlement must incorporate self-government in the operation of those services

and programs.

[252] After the 1987 Statement of Claim and injunction application were filed, the parties

agreed to broaden the negotiations. SLCN agreed to adjourn its injunction application and

Alberta agreed to not offer any leases or licenses in SLCN’s traditional lands and to enter into

negotiations. On June 29, 1987, SLCN’s lawyers (Exhibit T of Ms. Sopiwynk’s affidavit) wrote

Alberta setting out the issues to be addressed in negotiations, including:

1. Outstanding land entitlement;

2. Alternatives to land entitlement, including revenue sharing in resource development;

3. Burial sites;

4. Entitlement to Sturgeon Lake and its lakebed, on the basis of oral promises made at

the time of the Treaty;

5. Wildlife harvesting rights;

Page: 54

6. The implications of Bill C-31 and the present day population figures;

7. Erosion to the reserve caused by dams; and

8. Costs of the negotiations.

[253] SLCN was offered on at least three occasions (Exhibits CC, HH, and II of Ms.

Sopiwynk’s affidavit) the opportunity to choose land based on the population at DOFS, on an

interim without prejudice basis and without requiring a release, but SLCN refused (Exhibit EE-II

of Ms. Sopiwynk’s affidavit), preferring to pursue all the issues and offering to provide a release

(Exhibit NN II of Ms. Sopiwynk’s affidavit).

[254] In preparation for these negotiations, Ms. Opekokew, SLCN’s counsel, told Mr. Kennedy

that all issues were negotiable, in reference to his assertion that Canada’s land entitlement policy

was limited to DOFS.

[255] In December 1987, SLCN presented its Fifth Proposal that included the following:

1. Land entitlement must be based on contemporary 1987 population as this has been

Canada’s historical practice when resolving land entitlement claims;

2. Canada has stated in other land entitlement claims that loss of use for significant

periods of time justifies using current population figures, as Bands that had received

their full entitlement had been able to build up substantial trust funds;

3. SLCN is entitled to the Sturgeon Lake and lakebed and a share of the revenue from

the lake based on oral promises made at the time of the treaty.

[256] Initial negotiations took place in the Sturgeon Lake Band office and minutes from the

meeting set out the parties’ positions (Exhibit D of Moses #2). Mr. Potts for SLCN indicated

that:

1. SLCN was anxious to settle its claim, but wanted to protect future generations;

2. Cash incentive might be possible, but SLCN’s long term interest was in satisfying its

land needs using the contemporary population formula;

3. Treaty 8 recognized the need for economic growth and appropriate land is essential;

4. Waterbed rights are crucial, but if Alberta is willing to move on its position, then

those rights are negotiable;

5. The SLCN is open to being flexible on quantum of land if there is movement in other

areas. While the SLCN had originally sought over 100,000 acres based on population,

it was now asking for 30,000 acres and cash compensation;

6. If a suitable resolution is not found, resort to the Supreme Court of Canada remained

an option;

7. There may be additional people who were not given a land base at the date of first

survey and additional research may be required.

8. Chief Ron Sunshine commented that land was needed for future generations, stressing

the doubling of band population as a result of Bill C-31.

[257] Negotiations eventually led to a Sixth proposal (Exhibit NN of Ms. Sopiwynk’s affidavit)

which included:

1. Burial sites;

2. Resolution of the claim for Sturgeon Lake and the lakebed be resolved by the

payment of cash;

Page: 55

3. The transfer of certain mineral titles from Alberta to Canada, to be designated by

Canada as part of the SLCN reserves;

4. The acquisition of certain lands for cash, and Alberta to transfer to SLCN the mineral

title to those lands, and the lands themselves to be designated as reserves;

5. Designation of band owned lands as part of the Reserves and Alberta to transfer the

mineral title to those lands to Canada, also to be designated as reserves;

6. Further surface and sub-surface lands to be transferred by Alberta to Canada and then

designated as reserves;

7. Canada to reimburse SLCN for all costs related to the land claim settlement, subject

to indemnification by the Band;

8. “The Band would provide full and complete releases to Canada and Alberta of their

respective obligation with respect to the Land Entitlement Claims and with respect to

any claims regarding Sturgeon Lake”; and

9. SLCN would abandon the 1987 Action and the injunction application.

[258] The parties arrived at the MOI (Exhibit CCC of Ms. Sopiwynk’s affidavit), which was

executed by all three parties. The MOI formed the basis of the 1990 TLE Agreement eventually

executed by all three parties.

[259] The 1987 Action was resolved by ACJ Miller’s Consent Order (Exhibit X of Ms.

Sopiwynk’s affidavit), and it incorporated the 1990 TLE Agreement.

[260] I conclude that many of the claims in the Fourth Amended Statement of Claim, were

raised in the 1987 Action and in the negotiations to address the SLCN’s treaty land entitlement

and settle the 1987 Action. I conclude it would be an abuse of process to permit these claims to

continue. Canada’s application was to strike allegations respecting land. Thus, I strike the

following paragraphs:

1. 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;

2. Paras 35-39, 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.

3. Paragraph 43 is struck to the extent it includes paras 14-17, 20-22 and 35-39;

4. Paragraph 44 is struck. It is virtually identical to para 12 in the 1987 Action;

5. Paras 47 is struck as it relates to Sturgeon Lake;

6. Paragraphs 58 and 75 seeks land and compensation for new members as a result of

Bill C-31, which was raised as part of the negotiations leading to the 1990 TLE

Agreement;

7. 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.

[261] Paragraphs 83-86 make claims about failure to protect SLCN rights to maintain their

mode of life, for the destruction of wildlife and burial sites and the destruction and conversion of

natural resources. The 1987 Statement of Claim made the same allegations regarding mode of

life and natural resources. The issue of burial sites was frequently raised in negotiations (see

Page: 56

Exhibits T, N, OO, TT and CCC of Ms. Sopiwynk’s Affidavit). While I conclude that these

claims repeat the claims of the 1987 Action, and would thus be an abuse of process, Canada and

Alberta sought only to strike allegations in regards to land. I leave these paragraphs intact at this

time.

[262] The following paragraphs do not duplicate the 1987 Action, and will be dealt with in the

summary dismissal application:

1. Paras 26-34, 40-42, 45. These paragraphs assert that Canada breached fiduciary

obligations in negotiating Treaty 8 or when selecting lands, by concealing the value

of the lands or how Band membership and population would be determined. The 1987

Action raised breach of fiduciary and trust obligations, but not in connection with the

negotiation of Treaty 8 or the selection of lands;

2. Paras 60-76: These paragraphs assert that the 1990 TLE Agreement was inadequate,

that Canada breached its fiduciary duty to the SLCN by supporting the land

entitlement in the 1990 TLE Agreement, that Canada knew the SLCN were defrauded

by the 1990 TLE Agreement, that Canada failed to disclose material facts to the

SLCN in negotiating the 1990 TLE Agreement, the SLCN did not have informed

consent when it entered into the 1990 TLE Agreement, including the releases.

2.

No reasonable cause of action: r 3.68(2)(b)

[263] Under r 3.68(2)(b) the Court may strike a claim if the pleadings disclose no reasonable

cause of action.

[264] In R v Imperial Tobacco Canada Ltd, 2011 SCC 42, the Supreme Court of Canada stated

that a motion to strike for failure to disclose a reasonable cause of action must proceed on the

basis that the facts pleaded are true. No evidence is admissible on such a motion. A claimant

may not rely on the possibility that new facts may turn up; it must plead the facts on which it

relies (at para 22).

[265] The test for striking is that stated by the Supreme Court in Imperial Tobacco (at para 17):

A claim will only be struck if it is plain and obvious, assuming the facts pleaded

to be true, that the pleading discloses no reasonable cause of action

[266] The Alberta Court of Appeal restated the test in Ernst v EnCana Corp, 2014 ABCA 285

at para 14 as:

The test is therefore whether there is any reasonable prospect that the claim will

succeed, erring on the side of generosity in permitting novel claims to proceed.

[267] Canada argues that the on the face of the pleadings it is clear there is no reasonable

prospect of success because the claims are barred by the release in the 1990 TLE Agreement, and

because the claims are brought out of time. It notes that the original Statement of Claim, filed on

April 2, 1997, made no mention of the amount of land set aside in Treaty 8 or in respect of the

1990 TLE Agreement. The claims regarding Treaty 8 dealt with roadways, a dam, and a claim to

the Sturgeon Lake lakebed. It was not until the first amendment to the Statement of Claim, filed

on July 25, 2000 that the issues of Treaty 8 land entitlement and the 1990 TLE Agreement were

raised.

Page: 57

[268] Canada’s Statement of Defence relied on a general denial, the expiry of limitation periods

and the release and indemnity provisions of the 1990 TLE Agreement.

i.

Do the release and indemnity provisions establish that there is

no reasonable cause of action?

[269] Canada asks that the Court review the pleadings, including the Statement of Defence and

the terms of the 1990 TLE Agreement, arguing that there is no air of reality to the claim in light

of the clear terms of the Release in the 1990 TLE Agreement.

[270] I cannot accept this argument. In order to consider the terms of the 1990 TLE Agreement,

Canada asks me to examine the Agreement. It is not a pleading; it is evidence, and therefore the

analysis of the Agreement falls outside of r 3.68(2)(b).

[271] Arguably, I might be able to consider the Agreement within the terms of the Consent

Order, but it is doubtful that documents in another action can be considered.

[272] In any event, under r 3.68(2)(b), I am to assume that the facts pleaded are true. Many of

the facts pleaded assert that SLCN entered into the 1990 TLE Agreement as a result of fraud,

misrepresentation, breach of fiduciary duty, material non-disclosure, and lack of informed

consent. In the face of the pleaded facts, I cannot conclude that the releases in the 1990 TLE

Agreement bind SLCN for the purposes of striking their claims as not reasonable.

ii.

Do limitations bar this action?

[273] A limitations argument is subject to discoverability, and SLCN has filed evidence in

regards to when it discovered the claims arose.

[274] I cannot, on the face of the pleadings, determine whether the claim is filed out of time

under the Limitation of Actions Act, RSA 1980, c L-15.

3.

Frivolous, irrelevant and improper pleadings: r 3.68(2)(c)

[275] Canada relies on the release and limitations argument in the application to strike and the

submissions for summary judgment to establish that the claim is “indicative of bad faith or is

hopeless factually... Put differently, a frivolous plea is one so palpably bad that the Court needs

no real argument to be convinced of that fact” McMeekin v Alberta (AG) 2012 ABQB 144 (at

para 29).

[276] In my view, in light of the limitations of a strike application, it is better to consider the

questions of the limitation periods and the release and indemnity within the context of the

summary judgment application.

[277] While I have struck significant portions of the claim under r 3.68, I will analyze the

summary dismissal application for those paragraphs, as an alternative, as well as for those

portions of the claim dealing with land that have not been struck.

B.

Application for summary dismissal

1. What is the test for summary judgment?

[278] Under r 7.3 a party may apply to dismiss all or part of a claim if there is no merit to the

claim. Canada applied to summarily dismiss all parts of this action related to land on that

grounds that:

Page: 58

1. Canada has fully, fairly and finally fulfilled all its Treaty obligations to the SLCN by

providing land and other good and valuable consideration in 1908 and after 1990;

2. The SLCN fully and finally released Canada from any liability for treaty land under

Treaty 8 in the 1990 TLE Agreement;

3. The action is brought out of time.

[279] The test for summary judgment and summary dismissal has evolved on the basis of the

Supreme Court of Canada decision in Hryniak and the Alberta Court of Appeal in Windsor v

Canadian Pacific Railway, 2014 ABCA 108. In Windsor, the Court of Appeal said (at paras 13-

14):

The modern test for summary judgment is therefore to examine the record to see

if a disposition that is fair and just to both parties can be made on the existing

record...

... New R. 7.3 calls for a more holistic analysis of whether the claim has "merit",

and is not confined to the test of "a genuine issue for trial" found in the previous

rules.

[280] SLCN, in its reply submissions, submitted that the law related to the test for summary

judgment is unsettled, citing a number of cases that pre-dated Windsor:

Orr v Fort McKay First Nation, 2014 ABQB 111. In that decision Brown J (as

he then was) held that the Hryniak approach applied to summary trials under r

7.5, but not applications under r 7.3. He found, at para 30, that the test was

whether the likelihood of success of the claim is very high, relying on the decision

of Wakeling J in Beier v. Proper Cat Construction, 2013 ABQB 351;

Nipshank v Trimble, 2014 ABQB 120. Brown J again held that the test is whether

“the evidence renders a claim or defence so compelling that the likelihood it will

succeed is very high.”

Whitecourt Power Limited Partnership v Interpro Technical Services Ltd, 2014

ABQB 135. Master Mason stated the test as (at para 30): “One expression of the

test is that it must be plain and obvious or beyond doubt that the claim cannot

succeed”.

[281] SLCN then raises the decision of the Alberta Court of Appeal in Can v Calgary Police

Service, 2014 ABCA 322, decided after Windsor. The Court suggested (at para 10) that the new

rule in the amendments to the Alberta Rules of Court had not substantively changed the test for

summary judgment from there being “no genuine issue for trial”. However, Wakeling JA, in

separate and concurring reasons, stated that the test was, as he himself set out, in Beier v. Proper

Cat Construction, 2013 ABQB 351 that “A party's position is unassailable if it is so compelling

that the likelihood of success is very high". Relying heavily on Wakeling JA’s discussion in

Can, the SLCN argues that the test is not clear.

[282] However, in my view, nothing in the Can decision renders the law on summary judgment

uncertain. The Alberta Court of Appeal has continued to apply the principles in Hryniak and

Windsor. There are 16 Alberta Court of Appeal decisions citing Can, however, 14 of those 16

decisions are citations by Wakeling JA, either writing alone (in leave to appeal applications or

bail applications) or in separate concurring or dissenting reasons, citing his own concurring

reasons. Only five of those 16 decisions deal with summary judgment or applications to strike:

Page: 59

Warman v Law Society of Alberta, 2015 ABCA 368; HOOPP Realty Inc v Guarantee Co of

North America, 2015 ABCA 336; Abbey Lane Homes, a division of B&R Development Corp v

Cheema, 2015 ABCA 173; Amack v Wishewan; Amack v AW Holdings Corp, 2015 ABCA 14;

and Stout v Track, 2015 ABCA 10. In Warman, HOOPP Realty Inc, and Stout v Track,

reference to Can was by Wakeling JA writing alone in separate concurring reasons or in dissent.

[283] However, in Stout v Track, the majority expressly disagreed with Wakeling JA’s

statement of the test, saying (at para 2 and 3):

Our colleague points out that the chambers judge applied the old test for summary

judgment, which asked whether there was a genuine issue for trial, whereas Rule

7.3 permits summary judgment where there is "no merit to the claim." Whether

reviewed under the former test or the newer test, the appellant has not

demonstrated any palpable and overriding error in the chambers judge's

conclusion. Indeed, it should follow that if there was no genuine issue for trial,

there would be no merit to the claim.

[284] In Abbey Lane Homes, a unanimous Court held that the test set out in Lameman(SCC),

and refined in Hryniak, was clear (at para 20):

In an application for summary dismissal the applicant has the "evidentiary burden

of showing that there is 'no genuine issue of material fact requiring trial'": Canada

(Attorney General) v Lameman, 2008 SCC 14, [2008] 1 SCR 372 at para 11. In

Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, the Supreme Court stated, at

paragraph 49:

There will be no genuine issue requiring a trial when the judge is

able to reach a fair and just determination on the merits on a

motion for summary judgment. This will be the case when the

process (1) allows the judge to make the necessary findings of fact,

(2) allows the judge to apply the law to the facts, and (3) is a

proportionate, more expeditious and less expensive means to

achieve a just result.

[285] The Court of Appeal, at para 21, further noted that the law remained the same despite the

change in the rule requiring an applicant to demonstrate that there is no merit to a claim or

defence, citing the majority in Can at para 10:

While current Rule 7.3 (1)(b) is framed in terms of a claim being "without merit",

such a finding flows when a claimant has not established any genuine issue for

trial. In other words, the new Rule has not substantively changed the test for

summary judgment from that under former Rule 159 (3) which spoke in terms of

"no genuine issue for trial".

[286] In Amack v Wishewan, another unanimous decision of the Court of Appeal, the Court

reiterated that:

... summary judgment can be granted if a disposition that is fair and just to both

parties can be made on the existing record: Windsor v Canadian Pacific Railway

Ltd., 2014 ABCA 108 at para 13, 572 AR 317 [Windsor]; Maxwell v Wal-Mart,

Page: 60

2014 ABCA 383 at para 12. This does not, however, detract from the requirement

that there be "no genuine issue for trial": Hryniak, supra at para 34; Windsor,

supra at para 13; 776826 Alberta Ltd. v Ostrowercha, 2015 ABCA 49 at para 11

[Ostrowercha]; Can v Calgary (Police Service), 2014 ABCA 322 at para 10, 315

CCC (3d) 337. Rather, the two concepts are themselves linked...

[287] In Ostrowercha, a unanimous decision, the Court of Appeal (at paras 9-13) noted the

following:

1. Summary judgment can be given if a fair and just disposition can be made on the

existing record;

2. In light of what is fair and just, summary judgment can be granted if there is no merit

to the claim;

3. No “merit” means that even if one assumed the accuracy of the non-moving party’s

position, that position has no merit in law or in fact;

4. There must be a genuine issue of a potentially decisive material fact that cannot be

resolved in the “fair and just process”;

5. Citing WP v Alberta, 2014 ABCA 404 at para 26: summary judgment will not be

denied solely because there is a triable issue; the question is whether there is any

issue that genuinely requires trial.

[288] I conclude that the test for summary judgment is sufficiently clear in Alberta and requires

me to determine the following:

1. Is the existing record sufficient to permit me to reach a fair and just disposition?

2. Is there any merit to the SLCN’s claim or, phrased alternatively, is there a genuine

issue for trial?

[289] In my view, the approach is to consider all of the evidence, the law, and the pleadings in

order to answer both questions holistically. It may be that some issues can be fairly and justly

disposed of on the record, but that others will not.

2.

Is the record sufficient to permit me to reach a fair and just

disposition?

[290] The record before me is extensive, consisting of the agreements in issue (Treaty 8 and the

1990 TLE Agreement), extensive affidavit evidence and cross-examination on those affidavits,

and expert reports.

[291] However, SLCN argues that a trial is necessary to deal with what it alleges to be

contradictions in the evidence. Not all contradictory evidence necessarily leads to the

requirement of a trial. The Alberta Court of Appeal in Sandhu (at paras 79 and 81) noted that

conflict on certain points in the parties’ affidavits will not by itself lead to the need for oral

evidence or full trial. For example, if the conflicts do not arise on essential facts, or where one

party relies on several affidavits that are themselves contradictory, or where an affidavit contains

some evidence which agrees with or supports the evidence of the opposite party, the Court may

be able to resolve the conflicts based on the evidence before it.

[292] The following are examples where SLCN argues that there are significant contradictions

in the evidence.

Page: 61

i. Canada said Bill C-31 members do not fall within the treaty land

entitlement process

[293] First, the SLCN points to the interpretation of the 1990 TLE Agreement, and in

particular, the Releases in the Agreement. Exhibit N of the Goodswimmer Affidavit filed in the

1987 Action (also Ex R of Sopiwynk Affidavit; Exhibit A of Moses #4) is a letter from DIAND

(dated May 28, 1987), responding to the SLCN’s Fourth Proposal. DIAND responds that a

number of issues raised in the proposal do not fall within the treaty land entitlement claim

process, including the inclusion of Bill C-31 members. SLCN asserts that if this was the case,

how could such claims have been included in the release.

[294] The short answer is that the topics for negotiation developed and expanded over time, and

as Canada argues, one cannot reasonably look at a single letter in a lengthy series of proposals

and counter proposals leading to face to face negotiations. Over the course of the negotiations, it

is clear that the issue of Bill C-31 members was a driving force and a very important factor in the

discussions. SLCN proposals from as early as 1984 (Exhibit G of Sopiwynk Affidavit) asserted a

right to land for persons eligible to be members, but not yet members (pre-dating Bill C-31, but

anticipating it); as did the Fourth Proposal (Exhibit Q of Sopiwynk’s affidavit) which expressly

contemplated Bill C-31, and a letter setting out the issues for negotiation from Ms. Opekokew

(Exhibit T of Ms. Sopiwynk’s affidavit). In person meetings also raised the issue: See for

example the April 21, 1988 meeting (Exhibit D of Moses #2).

[295] Mr. Sunshine’s evidence in questioning on his affidavit was that despite his stated

concerns about population increases as a result of Bill C-31, Bill C-31 was not important for the

SLCN because the Chief and Council did not want to admit these members. I place little weight

on this evidence, given the documentary evidence to the contrary.

[296] Moreover, Bill C-31 itself does not give rise to a claim for additional land. Any

entitlement to land arises by virtue of Treaty 8. Canada’s position was that entitlement under

Treaty 8 was limited to population as of DOFS, a total of about 3000 acres. Mr. Potts, on behalf

of SLCN had argued that its position was based on CP and that on that basis it was entitled to

over 100,000 acres, but would be willing to accept 30,000 acres and provide a release. The 1990

TLE Agreement provided for land up to the DOFS population (3200 acres), and then additional

land (13,000 acres) and money to purchase additional land, characterized by Canada as

“incentive” land. It is reasonable to infer that the additional land was a compromise between the

parties to address increased population over time, including Bill C-31 members.

[297] There is no need for a trial to address whether Bill C-31 members were considered in the

Agreement.

ii.

Mr. Kennedy said Canada would not require a release

[298] Secondly, SLCN points to the April 18, 1988 letter from Mr. Kennedy to then Chief

Sunshine (Exhibit B of Moses #2; Exhibit II of Sopiwynk affidavit, and para 53 of Mr.

Kennedy’s affidavit). SLCN argues that in this letter Mr. Kennedy stated that Canada would only

negotiate on the basis of shortfall as of the DOFS and as such would not require a release.

[299] This is a simplistic interpretation of this letter. Again the letter forms part of the

negotiation. It sets out what Mr. Kennedy expressly calls:

...the initial federal position with regard to the proposal, without prejudice to the

development of a negotiating mandate as a result of upcoming discussions.

Page: 62

(Emphasis added).

[300] As to the assertion that Canada would not require a release, this position was based on the

repeated offers that the SLCN could accept the quantum of land Canada accepted as its legal

obligation to provide (that is the shortfall based on the DOFS population) without prejudice to

the Band’s right to negotiate for more land. Any decision for more land than the DOFS would be

subject to Ministerial discretion and a cabinet decision.

[301] There is nothing in this letter that is inconsistent with requiring a release when the SLCN

received more land than required by the population calculated as at DOFS.

[302] Notably, I note that in questioning on his affidavit, Mr. Kennedy was never asked about

assertions in his affidavit that the 1990 TLE Agreement was full, fair and final and that the

release was in settlement of the entire land claim. The SLCN takes the position that Mr.

Kennedy’s letter set limits on the issues of what was negotiated and on the extent of the releases,

but never put that position to him in cross-examination. Further, SLCN disingenuously argued

that Mr. Kennedy agreed that Canada promised to not require a release. On review of the

questioning on his affidavit, all he agreed was that Canada’s position at the time was that it

would not require a release for land calculated on DOFS population.

iii.

Loss of Use Damages not mentioned in Release

[303] Next, SLCN asserts that the 1990 TLE Agreement, and in particular the Release, does not

refer to damages, and since it has claimed $10 billion damages for loss of use, it queries whether

Canada takes the position that the Release extinguishes any claim for damages. It further points

to the May 28, 1987 letter from Canada that damages for loss of use would not be part of the

specific claim process.

[304] Canada notes that on June 29 1987, Ms. Opekokew wrote Alberta to set out issues for

negotiations (Exhibit T of Ms. Sopiwynk’s affidavit), saying:

The subjects that were raised [at “initial discussions to establish the negotiating

process on the outstanding land entitlement of the Sturgeon Lake Indian Band”]

as outstanding issues that must be dealt with within the process are the following:

...

5.

...compensation for the loss of use of land which remains unfulfilled.

These issues to a certain extent could be accommodated, if present day

population figures are used as the formula for determining entitlement for the

Band less the lands already set aside as reserves.

(Emphasis added)

[305] Further, the April 21, 1988 meeting minutes (Exhibit D of Moses #2) quote SLCN

negotiator, Mr. Potts stating that “Any settlement should offer compensation for the denial of the

full land base over an eighty year period.”

[306] The evidence before me demonstrates that the negotiation process moved from a

“specific claim” process, as set out in the May 28, 1987 letter, to a more general negotiation to

deal with the issues raised in the 1987 Action. The parties met to discuss and decide upon the

issues to be addressed. I conclude that loss of use was part of the negotiations and therefore

contemplated in the Release. This is not a conflict requiring trial.

Page: 63

iv.

Bill C-3

[307] SLCN then suggests that because Bill C-3 had not yet come into existence when the 1990

TLE Agreement was executed, the TLE Release could not have contemplated it and therefore a

trial is required. There is nothing in this argument that requires a trial. Interpreting the release

and whether future legislative changes were contemplated by the Release do not require viva

voce evidence. The Release, in part, reads:

The Band does hereby release and forever discharge Her Majesty... from all

obligations imposed on, and promises and undertakings by, her Majesty ... and

hereby waives [any] rights or causes of action, claims or demands of whatsoever

nature or kind which it ever had, now has, or may hereafter have against Her

Majesty.

(Emphasis added)

v.

Mr. Metcs’ expert evidence

[308] SLCN also argues that the expert evidence of Mr. Metcs requires trial. His evidence is

that land entitlement is an ongoing obligation, and SLCN argues that this corroborates its

argument that the 1990 TLE Agreement was only intended to resolve the shortfall. Whether

Treaty 8 required a perpetual entitlement to additional land as population increased is a question

of interpreting Treaty 8. Mr. Metcs’ evidence is that, in his opinion this was the intent of Treaty

8. But that is only evidence of his opinion. Interpreting whether CPP was a term of Treaty 8 is a

question the Court would have answered had the 1987 Action continued to trial.

[309] That does not mean that this Court requires a trial to answer that question now. If I

determine that the Release should be interpreted as including a release of all land claims under

Treaty 8, it is immaterial whether Treaty 8 contemplated CPP, as the SLCN released Canada

from any further obligations under the Treaty. If I interpret the Release as excluding claims for

additional land, then the question of what Treaty 8 meant can be answered based on the record

before me, for example the Treaty itself, Mr. Metcs’ evidence, and the Treaty Commissioner’s

Report. The SLCN has not indicated why the record is insufficient and requires a trial.

vi.

SLCN doesn’t think ongoing obligations are included in the

Release

[310] Next, SLCN asserts its understanding of the Release was that these ongoing obligations

were not intended to be released. Its evidence in support is paragraph 8 of Moses #2 affidavit.

That paragraph reads:

SLCN Chief and Council are of the view that the TLE is subject to the above

commitment by Canada⁵, and as such the Release in the TLE does not limit SLCN

from claiming additional land pursuant to Treaty.

[311] This evidence is irrelevant. First, the opinion of the present Chief and Council as to the

effectiveness of the Release has no weight. It is not evidence, merely opinion, stated without any

basis for that opinion. Similarly, Mr. Sunshine’s evidence in his affidavit that he did not believe

⁵This is in reference to the April 18, 1988 letter from Mr. Kennedy discussed above. See Exhibit

B of Moses #2; Exhibit II of Sopiwynk affidavit, and para 53 of Mr. Kennedy’s affidavit.

Page: 64

that the Agreement was intended to “prevent SLCN from getting more land from Canada in the

future for future generations as its population increased” can be given no weight.

[312] It is trite law that the parol evidence rule precludes evidence of the subjective intentions

of the parties: Eli Lilly & Co v Novopharm Ltd, [1998] 2 S.C.R. 129, at paras 54-59; Sattva

Capital Corp v Creston Moly Corp, 2014 SCC 53 at para 59. The Supreme Court of Canada in

Sattva noted that the purpose of the parol evidence rule was to achieve finality and certainty in

contractual obligations and to prevent a party from using fabricated or unreliable evidence to

attack a written contract.

[313] What is admissible is evidence of the surrounding circumstances, but that evidence has a

limited purpose: “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 at para 57).

Interpretation of the contract, however, must be grounded in the text of the agreement, and

“should consist only of objective evidence of the background facts at the time of the execution of

the contract”. Thus, the negotiation process and the objective evidence of what was proposed,

discussed, and bargained form part of the surrounding circumstances, which the Court can rely

on to understand “how the language of the document would have been understood by a

reasonable man” (Sattva at para 58).

[314] What the parties thought the agreement meant is not admissible. It is not necessary to

have a trial to address the SLCN’s evidence of subjective intent.

[315] Nor does Mr. Sunshine’s affidavit evidence or answers in questioning on affidavit make

the case for a trial. In his affidavit, Mr. Sunshine expressed his opinion that the SLCN had not

given up any right to pursue additional land:

Also, I don’t believe the Agreement intended to prevent SLCN from getting more

land from Canada in the future for future generations as its population increased.

[316] As, with Mr. Moses’ opinion, this is merely an opinion on subjective intent.

[317] In questioning, Mr. Sunshine had trouble remembering documents and events from 25

years ago. Moreover, while his evidence was inconsistent and, at times, disingenuous, the facts

that conflict are not primary facts. The Court of Appeal has cautioned against determining a

matter based on conflicting affidavits, but the conflict must be on primary facts: Charles v

Young (at para 4); Montgomery v Riviere, [1989] AJ No 958 (CA) (para 2).

[318] Mr. Sunshine’s evidence in his affidavit established little. He knew many issues were

discussed, but could not remember them all. He did not review any of the documents produced in

the litigation in making the affidavit. As to specific issues, he stated that historically Sturgeon

Lake was promised to SLCN, but it did not receive the Lake in the 1990 TLE Agreement. It may

be that this careful phrasing was intended to permit an inference that the lake and lakebed were

not part of the negotiations and therefore not subject to the Release. Similarly, Mr. Sunshine was

aware that Treaty 8 promised land in severalty, but he did not remember land in severalty being

negotiated or included in the Agreement. Not remembering whether it was discussed has little

import, particularly in light of his later questioning on his affidavit. He did clearly remember,

however, that the Agreement did not include land or compensation for people who were to join

SLCN through Bill C-31. He remembered this because the Chief and Council at the time did not

want to admit C-31 people as members. This is a non-sequitur; since willingness to admit the C-

31 membership was not a matter of choice.

Page: 65

[319] As previously noted, in questioning, Mr. Sunshine was unable to remember documents he

signed or were addressed to him: (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). Sometimes he signed documents prepared by others and

so had little memory of them. (215/20-21; 217/6-16; 189/2-3; 190/ 16-21; 216/5; 220/2-8).

[320] In questioning, Mr. Sunshine eventually conceded that the SLCN had given up its claim

to Sturgeon Lake lakebed (105/ 6-10; 107/21-26) and that Alberta refused to give ownership of

any body of water (108/7-10). He further conceded and that he could not remember on what

population basis the parties negotiated for the additional land (176/3-4), casting doubt on his

assertion that the Agreement did not include Bill C-31 members.

[321] Mr. Sunshine also conceded that land in severalty was discussed and he now remembered

those discussions (163/19-26 – 164/1-6), but he insisted that SLCN did not give up pursuing land

in severalty (165/11-12), saying 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 MOI (Exhibit CCC of Ms.

Sopiwynk’s affidavit) which read, 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.

[322] Chief. 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).

[323] Mr. Sunshine’s evidence can be summarized as:

 his and the SLCN’s subjective intentions in regards to the release;

 his memory, which he concedes is uncertain, of what was at issue in the

negotiations; and

 his opinion of the legal effect of the various documents.

[324] None of these are primary facts. The primary facts are the terms of the 1990 LTE

Agreement, which must be interpreted by this Court. His evidence provides some context, within

the meaning of Sattva, but his evidence is not determinative and is subject to my determination

of the weight to give his testimony. The Court cannot consider evidence outside the words of the

written contract that would add to, subtract from, vary, or contradict a contract that has been

wholly reduced to writing (Sattva at para 59), and therefore Mr. Sunshine’s evidence as to the

facts that he remembers are not in conflict, only his interpretation of what the agreement means

[325] Even if there is some primary facts in conflict arising from Mr. Sunshine’s evidence, a

trial would not resolve it. In Nieuwesteeg v Barron, 2009 ABCA 235 at paras 9-10, the Court of

Appeal held that the proper approach was to resolve the conflicting evidence with viva voce

evidence. However, here viva voce evidence could not produce any better evidence, as the

frailties of his evidence would likely be the same at trial. He had problems remembering events

and was not able to refresh his memory by reviewing documents, including documents he signed.

[326] This is not the case of conflicting evidence by two different witnesses. The conflict arises

from Mr. Sunshine’s impaired ability to remember events from 25 years ago and the

Page: 66

documentary evidence from that time. Those conflicts can be resolved without trial. As a result,

I give little weight to Mr. Sunshine’s evidence, particularly where it is inconsistent with the

documentary evidence and where it would add to, subtract from, vary, or contradict the express

terms of the Agreement.

[327] The text of the Agreement expressly includes all land under Treaty 8. This includes land

in severalty. It expressly releases future claims, and so includes Bill C-31 and C-3 members who

had not yet become members. Mr. Sunshine conceded that he could not remember on what basis

land entitlement was calculated, and therefore I reject his earlier assertion that the negotiations

were only intended to deal with the shortfall. He conceded that they gave up the claim to

Sturgeon Lake lakebed and that Alberta would not move on ownership of the lake or even a

portion of the lake.

vii.

Canada concealed its research on the effect of Bill C-31

[328] Finally SLCN contends that a trial is necessary to determine whether Canada concealed

that SLCN’s membership was going to increase by 50% because of Bill C-31, whether this

concealment was fraudulent, and whether it is a breach of trust or fiduciary duty.

[329] No trial of this issue is necessary. The evidence before me makes it clear that SLCN

knew membership would increase because of Bill C-31. First, the Fourth Amended Statement of

Claim (at para 75) makes the following admission:

Despite the fact that the Plaintiffs’ representatives impressed

upon Canada and Alberta during the negotiations for the 1990

Agreement that the Sturgeon Lake Cree Nation’s membership

had doubled in size since the passing of Bill C-31, this fact was

not taken into account in the amount of land provided to the

Plaintiffs under the Agreement.

(Emphasis added)

[330] The purported evidence of concealment in Moses #2, Exhibit N, was a document that

actually was within the Plaintiff’s production. In cross-examination on his affidavit, counsel for

Canada showed Mr. Moses a document from the Plaintiffs’ production, Document 541, stamped

received by Sturgeon Lake Band July 7, 1987. This document was a copy of the same document

Mr. Moses had sworn SLCN had never received. Canada’s counsel also showed Mr. Moses over

a dozen documents from the Plaintiffs’ production received by SLCN from Canada that dealt

with Bill C-31. Mr. Moses conceded that the Band received these documents (60/11-26 – 68/1-

17). For the purposes of swearing the affidavit, he said he relied on documents and information

given to him by counsel (68/18-26; 69/1-12), not personal review of the Affidavit of Records or

the SLCN’s record production.

[331] Exhibit D of Mr. Moses’ #2 affidavit are the minutes of a settlement meeting held April

21, 1988. Mr. Sunshine, then Chief Sunshine, expressly noted that the Band population had

increased by 50% because of Bill C-31. When questioned on his affidavit on this issue, Mr.

Sunshine insisted that the increase in population was not a big issue for the Band because it did

not want to deal with Bill C-31 (125/24-26 –126/18). He suggested that because the Band had a

history of protests (127/9-11), the leadership took the position to not accept Bill C-31 (126/22-

23). When asked whether he was familiar with the documents sent by Canada to the Band

Page: 67

dealing with Bill C-31, he indicated that “They’d all have been in file 13” (128/10), meaning the

garbage (128/11-13).

[332] However, the expected increase in population was a recurring theme in the negotiations,

commented on by Ms. Opekokew and Mr. Potts in discussions and mentioned in many of the

settlement proposals prepared by SLCN. The objective evidence is clear that the SLCN were

never mislead or deceived about the population increase; it was one of the reasons they were

pressing so hard for a full comprehensive settlement, rather than the interim selection of land.

Despite Mr. Sunshine’s comments to the contrary, the documentary evidence demonstrates that

the SLCN was aware of the effect of Bill C-31 and there was nothing concealed.

[333] There are other examples where SLCN argues that trial is necessary. I will address these

as I analyze each argument, but to this point, I conclude that the evidence before me will permit

me to make a fair and just determination of the issues. SLCN has not identified any issues that

require a trial.

3.

The Release

i. Interpretive approach

[334] The Release in the Agreement between Canada and SLCN reads:

5(1) In consideration of this Agreement, and in particular the covenants

contained herein, the Band does hereby release and forever discharge Her

Majesty, Her Servants, agents and successors from all obligations imposed on,

and promises and undertakings by, Her Majesty under the following part of

Treaty No. 8 and hereby waives and [sic – any] rights or causes of action, claims

or demands of whatsoever nature or kind which it ever had, now has, or may

hereafter have against Her Majesty, Her servants or agents and successors by

reason of or in any way arising out of the following part of: Treaty No. 8:

And Her Majesty the Queen hereby agrees and undertakes to lay

aside reserves for such bands as desire reserves, the same not to

exceed in all one square mile for each family of five for such

number of families as may elect to reside on reserves, or in that

proportion for larger of [sic – or] smaller families; and for such

families or individual Indians as may prefer to live apart from band

reserves, Her Majesty undertakes to provide land in severalty to

the extent of 160 acres to each Indian, the land to be conveyed with

a proviso as to non-alienation without the consent of the Governor

General in Council of Canada, the selection of such reserves, and

land in severalty, to be made in the manner following, namely the

Superintendent General of Indian Affairs shall depute and send a

suitable person to determine and set apart such reserves and lands,

after consulting with the Indians concerned as to the locality which

may be found suitable and open for selection.

It is understood by the Parties that this Agreement and in particular

the covenants contained herein are in total satisfaction of all

obligations of Her Majesty relating to land contained in the

aforementioned part of the said Treaty and of all manner of costs,

Page: 68

legal fees, travel and expenses expended by the said Band and its

representatives for the purpose of the settlement of the Band’s

claims against Her Majesty herein,

[335] Clause 11 of the Agreement provided:

11. The Band acknowledges it has had independent legal advice on all aspects

of this Settlement Agreement.

[336] Clause 13 provided:

13. The Agreement shall upon execution, replace and supersede the

Memorandum of Intent of December 19, 1988, together with all other Agreements

between the parties, whether oral or in writing relating to the subject [sic] mater

of this Agreement.

[337] Canada asserts that this Release is sufficient to ground its application to dismiss the

SLCN’s claims to land under Treaty 8. It is regular upon its face, was fully executed by the

parties, and intended to be relied upon.

[338] SLCN asserts that it is a well-established interpretive principle that “treaties and statutes

relating to Indians should be liberally construed and doubtful expressions resolved in favour of

the Indians”, referencing R v Nowegijick, [1983] 1 SCR 29 at para 25; Simon v The Queen,

[1985] 2 SCR 387 at para 24 [actually see para 27] and R v Sioui, [1990] 1SCR 1025 at para 17.

As Canada notes, however, these authorities are dated and do not deal with the more recently

developed approach to interpreting modern agreements and treaties.

[339] In R v Marshall, [1999] 3 SCR 456 at 511-513, McLachlin J (as she then was) said (para

78):

This Court has set out the principles governing treaty interpretation on many

occasions. They include the following.

1. Aboriginal treaties constitute a unique type of agreement and attract special

principles of interpretation

2. Treaties should be liberally construed and ambiguities or doubtful expressions

should be resolved in favour of the aboriginal signatories...

3. The goal of treaty interpretation is to choose from among the various possible

interpretations of common intention the one which best reconciles the interests of

both parties at the time the treaty was signed….

4. In searching for the common intention of the parties, the integrity and

honour of the Crown is presumed...

5. In determining the signatories' respective understanding and intentions, the

court must be sensitive to the unique cultural and linguistic differences between

the parties...

6. The words of the treaty must be given the sense which they would

naturally have held for the parties at the time...

7. A technical or contractual interpretation of treaty wording should be avoided…

Page: 69

8. While construing the language generously, courts cannot alter the terms of

the treaty by exceeding what "is possible on the language" or realistic…

9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid

way. They are not frozen at the date of signature. The interpreting court must

update treaty rights to provide for their modern exercise. This involves

determining what modern practices are reasonably incidental to the core treaty

right in its modern context...

[Emphasis added, citations omitted].

[340] Even as early as 1993 the Courts were conscious of the difference between historical

treaties and more modern documents. In Eastmain Band v Canada (Federal Administrator),

[1993] 1 FC 501 (Fed CA), Décary JA discussed the difference between historical treaties and

modern agreements, noting that the principle that ambiguities should be interpreted in favour of

the aboriginal rested on the unique vulnerability of aboriginal parties when entering into historic

treaties. He noted:

In this case, there was simply no such vulnerability. The Agreement is the product

of a long and difficult process of negotiation. The benefits received and

concessions made by the Aboriginal parties were received and given freely, after

serious thought, in a situation which was, to use their counsel's expression, one of

"give and take." All of the details were explored by qualified legal counsel in a

document which is, in English, 450 pages long.

[341] As to statutory interpretation, Décary JA noted that that LaForest J in Mitchell v Peguis

Indian Band, [1990] 2 SCR 85, indicated that while historical treaties should be liberally

construed, different considerations apply to interpreting statutes relating to Indians, since the

purpose of statutory interpretation is to understand Parliament’s intention.⁶La Forest J indicated

(at p 143):

At the same time, I do not accept that this salutary rule that statutory ambiguities

must be resolved in favour of the Indians implies automatic acceptance of a given

construction simply because it may be expected that the Indians would favour it

over any competing interpretation. It is also necessary to reconcile any given

interpretation with the policies the Act seeks to promote.

[342] In Quebec (Attorney General) v Moses, 2010 SCC 17, both the majority and the dissent

discussed the differences when interpreting historical and contemporary treaties. Binnie J for the

majority emphasized that modern treaties must be approached based on what the parties actually

negotiated as set out in the text of their agreement (para 6) and that close attention should be

given to the terms of such agreements because of their complexity and importance (para 7). The

dissenting reasons also addressed the approach to be taken when interpreting modern documents,

principles that the majority did not dispute.

[343] LeBel and Deschamps JJ, for the dissent, noted that the factors underlying the generous

and flexible interpretive approach of historical treaties were unequal bargaining skills and

aboriginal vulnerability. These factors are, they held, less likely to exist in the context of a

modern agreement (para 115). Further, the honour of the Crown requires the Crown to reconcile

⁶On this issue, the majority of the Supreme Court agreed with LaForest J.

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Aboriginal interests with public interest and therefore modern agreements “reflect a mixture of

rights, obligations, payments and concessions that have already been carefully balanced” (para

116). It is important that there be good faith exercised by all parties, and an approach that

automatically resolved ambiguities in favour of the Aboriginal parties would undermine this goal

because it might encourage parties to use vague language hoping that later litigation could obtain

more favourable results than negotiation (para 117). They noted (at para 118):

When interpreting a modern treaty, a court should strive for an interpretation that

is reasonable, yet consistent with the parties' intentions and the overall context,

including the legal context, of the negotiations. Any interpretation should presume

good faith on the part of all parties and be consistent with the honour of the

Crown. Any ambiguity that arises should be resolved with these factors in mind.

In the specific case of the Agreement, we have the benefit of a legislative

preamble which clearly states its purpose and effect. And as Décary J.A. noted in

Eastmain Band, all parties to the Agreement were represented by counsel, and

the result of the negotiations was set out in detail in a 450-page legal document.

The negotiations were part of a policy initiative whose objective was to settle land

claims through negotiation rather than litigation. There was plenty of "give and

take".

[344] The Supreme Court of Canada in Beckman v Little Salmon/Carmacks First Nation,

2010 SCC 53 compared modern treaties to historical treaties like Treaty 8, noting (para 54):

The difference between the LSCFN Treaty and Treaty No. 8 is not simply that the

former is a "modern comprehensive treaty" and the latter is more than a century

old. Today's modern treaty will become tomorrow's historic treaty. The

distinction lies in the relative precision and sophistication of the modern

document. Where adequately resourced and professionally represented

parties have sought to order their own affairs, and have given shape to the duty to

consult by incorporating consultation procedures into a treaty, their efforts should

be encouraged and, subject to such constitutional limitations as the honour of the

Crown, the Court should strive to respect their handiwork.

(Emphasis added)

ii.

What claims were released?

[345] SLCN argues that the Release only relates to the specific claim for the shortfall

population as of the DOFS. It argues that the Release does not include the claims for:

a. CPP

[346] The SLCN argues that current population in perpetuity claim arises from the

Commissioner’s Report of the oral promises made to the Band. The relevant paragraph of the

Commissioner’s Report reads:

Indeed, the Indians were generally averse to being placed on reserves. It would

have been impossible to have made a treaty if we had not assured 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.

Page: 71

(Report of Commissioners for Treaty No. 8, September 22, 1899. Exhibit E of

Robert Metcs’ Affidavit)

[347] The essence of the SLCN argument on CPP is that as its population grows, it has a

continuing entitlement to additional land based on the Treaty 8 formula. It argues that the oral

promise does not fall within the Release because it is not within the portion of Treaty 8 quoted in

the Release.

[348] I conclude that the land entitlement, even if modified by the Commissioner’s oral

promise, remains an entitlement to land under Treaty 8. Further, the Release expressly applies to

future claims – “the Band does hereby release and forever discharge … and hereby waives [any]

rights or causes of action, claims or demands of whatsoever nature or kind which it ever had,

now has, or may hereafter have...”

b. Bill C-31 members/Bill C-3 members:

[349] The SLCN argues that neither Treaty 8 or the 1990 TLE Agreement expressly mention

new members admitted as a result of these legislative changes, therefore, they argue the Release

does not apply to these claims.

[350] Any claim to land arising from new members must derive from the per person entitlement

in Treaty 8. Neither Bill C-31 nor Bill C-3 provide for a right to land and indeed s. 9 of Bill C-3

and s. 21 of Bill C-31 bar claims for compensation for failure to provide status. The Release

expressly states that the Band waives any rights or causes of action arising out of the land

provisions of Treaty 8. Moreover, it is clear that the parties addressed the need for land because

of Bill C-31, and it is reasonable to infer from these surrounding circumstances that the parties

intended the settlement to include those persons. Finally, as with the CPP theory, the Release

expressly waives future claims.

c. Damages for loss of use:

[351] The SLCN argues that loss of use damages are not expressly mentioned in the Release,

and therefore the Band can still maintain a claim for the 80 year period of the shortfall.

[352] These damages arose from the failure to provide the full land entitlement. The Release

expressly waives right, or cause of action, claims or demands “of whatsoever nature or kind…by

reason of or in any way arising out of…” the land entitlement provisions of Treaty 8. Further, it

is clear that the question of damages for loss of use was a topic for negotiation. I conclude that

the Release applied to damages for loss of use.

d. Sturgeon Lake and lakebed:

[353] While not expressly raised in this portion of the Plaintiffs’ argument, the Lake and

lakebed are claimed in the Statement of Claim. I struck that portion of the claim because it was

virtually identical to the claim in the 1987 Action. I would also summarily dismiss the claim on

the basis that the Release included a release of any claim to the lake. The origin of the Band’s

claim to the lake is that it was either promised to them orally by the Commissioners negotiating

Treaty 8 or was included when the surveyor included it within the Reserve. Thus, it is a right or

cause of action, claim or demand arising out of Treaty No. 8.

[354] Further, Sturgeon Lake and lakebed were expressly included in the Release between

Alberta and SLCN (see Mr. Andres’ Affidavit, Exhibit B; Ms. Lander’s affidavit, Exhibit C).

Alberta, not Canada, has title to Sturgeon Lake and its lakebed, and Canada has no obligation to

Page: 72

require Alberta to convey particular lands: Lac La Ronge Indian Band v Canada, 2001 SKCA

109 (at paras 194-195), leave to appeal ref’d [2001] SCCA No 647.

e. Land in severalty:

[355] The SLCN relies on Professor Fergusson’s evidence to identify person who are

descendants of persons who were entitled to, but were not offered, land in severalty. The SLCN

argues that the Release cannot be binding on these individuals because they did not participate in

the negotiations or vote in the Referendum.

[356] The land in severalty claims were expressly released by the Chief and Council on behalf

of the SLCN. As noted above, the Release states:

...the Band does hereby release and forever discharge Her Majesty ...from all

obligations imposed on, and promises and undertakings by, Her Majesty under the

following part of Treaty No. 8... arising out of the following part of Treaty No. 8:

... Her Majesty undertakes to provide land in severalty to the

extent of 160 acres to each Indian, the land to be conveyed with a

proviso as to non-alienation without the consent of the Governor

General in Council of Canada...

(Emphasis added)

[357] The essence of the SLCN argument is that the right to land in severalty is individual and

the Chief and Council could not release those rights, or, alternatively that individuals could

continue to assert those rights, notwithstanding the release.

[358] I do not accept this argument. The rights to land under Treaty 8 are collective, even when

granted as land in severalty. A similar argument was raised in Waquan v Canada (Attorney

General), 2016 ABQB 191, a decision by Wittmann CJ, decided earlier this year, after argument

by the parties in this action.

[359] In Waquan, Canada applied to strike the action brought by Archie Waquan, as an

individual plaintiff, and on behalf of the Mikisew Cree First Nation (MCFN), in relation to

negotiations and breaches of Treaty 8. Canada argued that this action essentially made the same

allegations as a 1996 action that was settled following a referendum. The Plaintiffs claimed that

land in severalty is an individual right, not collective, and that therefore the settlement and

Release did not apply to the individual members.

[360] Wittmann CJ considered the comments of Slatter J in Papaschase that while, in general,

claims made by Indian bands are collective, “if the right in question is not a Band right at all, but

rather a right of an individual member of the Band, then the individual member could sue

alone…”(Papaschase at para 37). He also considered the Supreme Court of Canada’s discussion

that there may be treaty rights that have an individual aspect to them in Behn v Moulton

Contracting Ltd, 2013 SCC 26 at para 33. He then went on to consider Grant v Canada

(Attorney General) (2006), 77 OR (3d) 481 (SCJ); Picard v Quebec (Attorney General), 2007

QCCS 2122 (SC), and Soldier v Canada, 2009 MBCA 12, decisions that discussed whether class

actions could be brought by individuals for claims by Indians. He concluded (at para 43) that the

right to land in severalty was inextricably connected to the promise of reserve lands, was directly

linked to the numbers of members electing to live on reserves, and the lands were subject to

restraint on alienation and was therefore a collective right.

Page: 73

[361] Further, there are strong policy reasons against permitting individual members to open up

settlements entered into through consent judgments between governments and First Nations.

Wittmann CJ summarized these concerns (at para 45):

It is fundamental to the resolution of disputes between the Crown and Aboriginal

People that the Crown is able to rely on the authority of the Bands with whom it

deals. Federal and Provincial governments, other Aboriginal governments, the

members of the First Nation, and third parties should be able to rely on the First

Nation's elected leadership to speak on behalf of the membership. If these

individual Plaintiffs have standing to set aside the Consent Judgment, there is no

reason that other members of MCFN might not also advance in the courts another

contrary view of the nature of Treaty 8 rights and the issues that the Crown and

MCFN resolved through litigation and long, complex negotiations. There would

be no certainty for Canada and Alberta, nor for MCFN and its individual

members.

[362] I asked the parties for further written submissions dealing with Waquan.

[363] SLCN argued seven general propositions arising from Waquan:

 The Waquan decision is limited to r 3.68 considerations (application to strike) but

does not apply to the summary dismissal applications;

 Wittmann CJ says only that Chief and Council can represent band members in

litigation, but does not provide any authority for the proposition that Chief and

Council can release Treaty rights;

 Wittmann CJ says that the Waquan action could proceed if the Band was bringing

the Action, and not individual members;

 The Waquan decision is contrary to the decisions in Behn, Soldier v Canada, and

Horse Lake First Nation v Canada, 2015 FC 1149;

 The question of whether treaty right to land in severalty is an individual or collective

right is complex and can turn on the facts of each case;

 The evidence is contradictory on whether the Release was intended to include land in

severalty;

 The Waquan decision does not apply to claims for damages for loss of use, for future

band members, and future legislation arising from Daniels v. Canada (Indian Affairs

and Northern Development), 2016 SCC 12.

[364] I will deal with each of these arguments in turn. I note here that the Plaintiffs’ argument

appears to confuse principles of stare decisis, how to distinguish cases, and how principles in

one case may be analogous to the case at bar.

[365] Chief Justice Wittmann was dealing with whether the individuals in Waquan had

standing to bring the action, and he noted that the test was the same as the test in r 3.68.

However, the applicability of his analysis is not limited only to cases dealing with standing or

applications to strike. The relevant analysis is his discussion of whether land in severalty rights

under Treaty 8 were collective or individual rights. He concluded that the land entitlement rights

under Treaty 8, both reserve lands and land in severalty, were so interconnected, you could not

separate out severalty rights as an individual right. That principle is directly applicable to

SLCN’s argument that land in severalty could not be the subject of the Release because the rights

Page: 74

are individual and therefore Chief and Council could not release them. This analysis is relevant

to this action, even if the ultimate issue before me is not a question of standing.

[366] This point leads directly to #2 in SLCN’s arguments. SLCN argues that Waquan stands

for the proposition that Chief and Council can represent Band members in litigation, but they

have no authority to release treaty rights. However, this position is contradictory. If Chief and

Council can represent Band members in litigation, they must have authority to resolve the

litigation. As Wittmann CJ notes, at para 45, parties, including Federal and Provincial

governments, other Aboriginal governments, the members of the First Nation, and third parties,

must be able to rely on the on the First Nation's elected leadership to speak on behalf of the

membership, or there would be no certainty or finality.

[367] SLCN further argues that the decision in Waquan supports dismissing Canada’s

application to strike since, unlike Waquan, the SLCN brought this action. This is the converse of

SLCN’s argument that Wittmann CJ’s decision is inapplicable because this case is not about

standing; here SLCN conflates all applications to strike, no matter the grounds for striking. In

Waquan, the application to strike was based on the Plaintiffs’ lack of standing, while here the

application to strike was based on abuse of process. The cases are distinguishable on that basis.

[368] The SLCN suggests that Chief Justice Wittmann effectively ignored the “clear guidance

of appellate level authority and therefore the Waquan decision is contrary to the prevailing

jurisprudence. It argues that Waquan “went against” the findings in Behn, citing paras 34 and

35 in Behn, paragraphs expressly cited and relied on at para 42 by Wittmann CJ. The SLCN

brief then says:

Despite these comments, the Waquan decision summarily struck the action on the

basis that it was “plain and obvious” that they lacked standing. This also ignored

Chief Justice Wittmann’s own correct finding that

... it becomes clear that the answer to whether this is a matter of

collective rights to be litigated by way of a representative action or

a matter of common rights to be litigated by way of class

proceedings is not so clear a matter of law that it can be said that it

is plain and obvious that the plaintiffs have no standing and

therefore no cause of action.

(Soldier v Canada (Attorney

General), 2009 MBCA 12)

[369] Wittmann CJ (at para 41) quoted the above paragraph (at para 59) from Soldier, and

presumably SLCN is suggesting that having done so, it was wrong for the Court to then strike the

action. However, the decision in Waquan is more nuanced than that.

[370] First of all, the Supreme Court of Canada in Behn did not take a definitive stand on

collective versus individual rights, except to say that some rights “may sometimes be assigned to

or exercised by individual members” (at para 35). Further, Wittmann CJ carefully distinguished

the decision in Soldier, where the issue was whether individuals could pursue an action for

annuity payments. The Court of Appeal there held that the law was not sufficiently clear on

whether annuity payments were individual or collective right, and therefore one could not

conclude that it was beyond doubt that the action could not succeed at trial. Wittmann CJ went

on (at para 43):

Page: 75

Nevertheless, in the present case I am not satisfied that the right in issue, which is

the right to land in severalty under Treaty No.8, is one that lends itself to an

individual claim. The promise of land in severalty to those members of Treaty

No. 8 Bands is inextricably connected to the promise of reserve lands. The

reserve land entitlement is calculated with regard to the number of members of

the Band electing to live on the reserve and therefore necessarily with regard to

the number of members of the Band who have elected to take lands in severalty.

Like reserve lands, lands taken in severalty are subject to the restraint on

alienation without the consent of the Governor General of Canada. These lands,

like reserve lands, are set aside for the protection of the members of MCFN

as a whole. It is difficult to conceive how the MCFN could negotiate its land

claims with Canada without the entitlement to land in severalty forming part

of that negotiation.

(Emphasis added)

[371] SLCN further argued that Wittmann CJ should have found that the matter was not “plain

and obvious” since in Horseman, Zinn J held that it was not plain and obvious that the plaintiffs

have no standing. I note that Horseman was another application dealing with annuities, not land

in severalty. Even if these decisions were not distinguishable, neither the Manitoba Court of

Appeal or the Federal Court Trial Division are binding authority on Alberta courts.

[372] Finally, SLCN argues that the issue of whether the right to land in severalty is collective

or individual is complex and will turn on the facts of each case. It further argues that the

evidence here is contradictory.

[373] In earlier discussion, I discussed the distinction between parol evidence and evidence of

surrounding circumstances. The evidence the SLCN relies on – Mr. Sunshine’s opinion that land

in severalty was not included in the 1990 TLE Agreement and Mr. Kennedy’s evidence from

questioning on whether land in severalty was discussed with individual members – is parol

evidence, inadmissible unless the contract is ambiguous: Gainers Inc v Pocklington Financial

Corporation, 2000 ABCA 151 (at para 15); The Court cannot receive direct evidence of intent

(para 20) or allow evidence that contradicts the express terms of the contract (para 15). See also

Innovative Insurance Corp v EPA Ultimate Concepts Inc, 2007 ABCA 358 at para 5.

[374] This evidence does not go to whether the right to land in severalty is collective or

individual. SLCN does not point to any facts that might be relevant to determining whether the

right is collective or not, nor does it point to any authority that the question is one that turns on

the particular facts of each case.

[375] In my view, land in severalty under Treaty 8 is, as Chief Justice Wittmann held, a

collective right, clearly linked to the Band’s collective right to land in a reserve. I conclude that

the Release expressly includes land in severalty and that individuals, whether or not they

participated in the negotiations or voted in the Referendum, are bound by the decision of the

Chief and Council to release all claims to land in severalty. I will deal with the arguments about

the Referendum in a later section of these reasons.

iii.

Is the Release enforceable

[376] SLCN argues that a general release releases only the matters that the parties contemplated

when they gave the release, citing Fred D. Cass, The Law of Releases in Canada (Aurora:

Page: 76

Canada Law Book, 2006) at 53. In Martin v Schneider (1984), 6 CCLI 93 (BCSC) a Final

Release that did not expressly state the nature of the claims released was held to be limited to

what the plaintiff/releasor understood he was releasing – wage and clothing loss from a fire, but

not his physical injuries. He was told to sign the release and have it witnessed by a lawyer, but

not told to seek legal advice. He did not receive legal advice, but merely had a lawyer witness

his signature on the release.

[377] Clearly, this case is distinguishable. The Release in question here is not a general release

but is very specific. It states that it is a release “from all obligations imposed on, and promises

and undertakings by, Her Majesty under the following part of Treaty No. 8” and further states

“that this Agreement and in particular the covenants contained herein are in total satisfaction of

all obligations of Her Majesty relating to land contained in the aforementioned part of the said

Treaty and of all manner of costs, legal fees, travel and expenses”. Finally, all promises, written

and oral, are superseded by the Agreement, thus incorporating any oral promises into the

Release.

[378] Further, the SLCN was represented by lawyers throughout.

[379] SLCN further argues that there was “no meeting of the minds” as to the scope of the

release: British Columbia Electric Railway Co v Turner (1914), 49 SCR 470 (at para 64); Smith

v McIntosh, [1906] 13 OLR 118 (Div Ct); Stevens v Howiit (1969), ; 4 DLR (3d) 50 (Ont HCJ).

These decisions are, obviously very dated, and are of limited applicability to the facts here. BC

Electric Railway dealt with survival of a cause of action after the death of a victim. In Smith, the

Plaintiff signed a release, but was illiterate and did not understand that he was signing a release

for all injuries. In Stevens, also a question of survival of actions of deceased victims, the Court

found that the release was unenforceable because it was signed by “persons who are

inexperienced and ignorant”. This mandated that the insurance adjuster explain the nature and

contents of the document (para 6).

[380] SLCN has presented no evidence that the Chief and Council who executed the

Agreement and the release were not informed about the nature and contents of the document.

They were advised by lawyers in many meetings, in addition to the negotiation meetings. Mr.

Sunshine’s evidence demonstrates that his memory of the events is limited, and while he asserts

that claims like land in severalty were not released, his evidence is of little weight given his

memory issues, the fact that he eventually conceded SLCN released some claims, and the clear

and express language of the release itself.

[381] SLCN further argues that the members of the SLCN did not have the benefit of legal

advice. I note, however, the Chief and Council were empowered to negotiate and execute the

agreement on behalf of the Band, therefore the advice given to the individual members is

irrelevant. In any event, at least one information meeting was held for members and the release

was explained to those members who attended. There were two documents provided for SLCN

members – the Information Circular and the Summary of the Agreements and both specified that

the Agreement required the Band to release Canada from its obligations under Treaty 8. The

Notice of the Referendum included the text of the Ballot which asked whether the elector

assented to “the Release of Her Majesty from any further obligation with respect to land

provisions of Treaty 8.”

[382] The terms of the Release are entirely unlike the broad general provisions of the releases

in the decisions relied on by the SLCN. Further, unlike the plaintiffs in those cases, information

Page: 77

was provided to the Chief and Council and to the SLCN members. Canada ensured (and paid for)

SLCN legal representation and advice and helped to provide information to SLCN members at

large.

[383] SLCN argues that the Release is not enforceable on the basis of unilateral mistake,

relying on the letters that the settlement would be “without prejudice to future claims” (for

example Exhibit B of Moses #2; Exhibit II of Sopiwynk affidavit, and para 53 of Mr. Kennedy’s

affidavit; Ex CC of Sopiwynk affidavit; Ex HH of Sopiwynk affidavit). As noted previously,

those letters were part of a series of negotiating positions, and were limited to a settlement based

on DOFS. SLCN also points to the May 28, 1987 letter from DIAND that stated that concerns

around Bill C-31 should be addressed after an agreement. Again this was an initial bargaining

position, and over time, new members as a result of Bill C-31 were addressed.

[384] SLCN cites The Law of Releases in Canada (at p 200-201) for the formulation of the test

for unilateral mistake:

1. The party pleading a unilateral mistake must prove that a common mistake occurred;

and

2. There was fraud or the equivalent of fraud on the part of the opposite party, which

can be established by

3. Proving that the non-mistaken party knew or must be taken to have known that the

other party misunderstood the agreement and did nothing to correct the mistake.

[385] SLCN argues that it will seek rectification of the Agreement on the basis of unilateral

mistake⁷, citing Performance Industries Ltd v Sylvan Lake Golf & Tennis Club Ltd, 2002 SCC

19 at para 31:

Rectification is an equitable remedy whose purpose is to prevent a written

document from being used as an engine of fraud or misconduct "equivalent to

fraud". The traditional rule was to permit rectification only for mutual mistake,

but rectification is now available for unilateral mistake (as here), provided certain

demanding preconditions are met.

[386] Those preconditions can be summarized as follows:

1. the existence of a prior oral contract whose terms are definite and ascertainable;

2. the oral terms were not written down properly;

3. the error may be fraudulent or innocent;

4. at the time of execution of the written document, the defendant knew or ought to have

known of the error and the plaintiff did not;.

5. the defendant’s attempt to rely on the erroneous written document must amount to

"fraud or the equivalent of fraud".

[387] The Court continued, saying:

The court's task in a rectification case is corrective, not speculative. It is to restore

the parties to their original bargain, not to rectify a belatedly recognized error of

judgment by one party or the other ...In Hart, supra, at p. 630, Duff J. (as he then

was) stressed that "[t]he power of rectification must be used with great caution".

⁷SLCN did not seek rectification in the Fourth Amended Statement of Claim, although the

proposed Fifth Amended Statement of Claim pleads mistake (para 69.1.)

Page: 78

Apart from everything else, a relaxed approach to rectification as a substitute for

due diligence at the time a document is signed would undermine the confidence of

the commercial world in written contracts.

(Emphasis added, citations omitted)

[388] The SLCN has not proved any of the requirements to establish either unilateral mistake or

the basis for rectification. There is no evidence of a prior oral agreement and no evidence that

the prior oral agreement was not written down properly. The 1990 TLE Agreement (and the

preceding MOI) went through multiple drafts, reviewed by all the lawyers. Again there is no

evidence that Canada knew or ought to have known that the release was drafted in error, and

much evidence to the contrary. SLCN’s Sixth proposal set out a formal offer to provide a

complete and full release to Canada and Alberta referring expressly to land entitlement claims

and claims to Sturgeon Lake. The executed MOI provided: “Canada shall obtain a full and final

Release from the Band under the terms of Treaty No. 8, from all clauses relating to the provision

of reserve land and land in severalty.” These were consistent with the terms of the Release in the

1990 TLE Agreement.

[389] There is no evidence that there was a misunderstanding and much evidence that the

parties understood the terms of the release because it was explained to them. There is no

evidence that Canada knew there was a misunderstanding, and much evidence that Canada knew

that the SLCN received legal advice about the release and that the band members were informed

about the release in the information meeting, information circular, the Notice of the Referendum

and the Ballot for the Referendum. There is no evidence that Canada did nothing to correct any

mistaken understanding and much evidence that it expended effort to ensure that the correct

information was provided by Mr. Kennedy’s attendance at the information meeting, by paying

for SLCN’s legal representation and negotiation costs, and by implementing the Referendum.

[390] I find there was no mistake and that rather the SLCN is attempting to “rectify a belatedly

recognized error of judgment”...or, at best, a failure of “due diligence at the time a document

[was] signed.

[391] SLCN also pleads non est factum, which is basically a recasting of its argument that there

was “no meeting of the minds”. SLCN cites : Saunders v East Anglia Building Society, [1971]

AC 1004 (HL) for the following three elements supporting a claim of non est factum:

1. The party seeking to disown its signature has a heavy onus;

2. The releasor must prove that the document is fundamentally or radically different

from what the releasor believed it to be;

3. The releasor must not have been careless by failing to take reasonable measures to

become informed about the contents and effect of the document.

[392] SLCN has not met this heavy onus. There is no evidence contemporaneous with the

execution of the Agreement that SLCN believed that the Release was something fundamentally

or radically different. The contemporaneous evidence demonstrated that the parties clearly

understood that a release would be required for any agreement that resulted in more land than

that calculated based on DOFS. This was understood by both sides, as demonstrated by Chief

Sunshine’s refusal to accept DOFS lands offered without a release (Ex EE of Ms. Sopiwynk

Affidavit) and his letter enclosing the Sixth Proposal offering a full release of all land entitlement

claims and claims to Sturgeon Lake (Exhibits MM and NN of Ms. Sopiwynk Affidavit).

Page: 79

[393] Further. given some of Mr. Sunshine’s comments in questioning on his affidavit about his

approach to understanding what he was signing or agreeing to or what he did with information

received from Canada (215/20-21, 25-26; 217/6-16; 189/2-3; 190/ 16-21; 216/5; 220/2-8;

128,/11-13), I would be unable to conclude that he was not careless.

[394] SLCN asserts that Canada failed to disclose material information about the number of

applications for membership under Bill C-31, and relies on Moses #2. I addressed this issue

earlier in regards to the application to strike, and concluded there was no basis for the allegation.

Mr. Moses attached to his affidavit, Exhibit O, Report to Parliament, Implementation of the 1985

Changes to the Indian Act, stating that this report indicated that SLCN had 447 new applicants

through Bill C-31 and only 26 were entered on the Band list. He swore 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 Plaintiffs production (Plaintiff’s

document 541) and was stamped received by SLCN on July 7, 1987.

[395] I have concluded there is no basis to this allegation. In particular, Canada has shown that

the document SLCN insisted was unknown to it, was actually within its own production and

received from Canada long before the Agreement was executed. Further, it is clear from the

documents that the SLCN knew its population was increasing greatly as a result of Bill C-31.

[396] SLCN also alleges fraud and misrepresentation on the basis of the same allegation, that

the numbers of Bill C-31 members were not disclosed, constituting equitable fraud within the

meaning of Guerin v R, [1984] 2 SCR 335. For the same reasons, I dismiss this argument.

iv.

Was there fraud or misrepresentation? Was there informed

consent?

[397] Paragraphs 64-67 plead that Canada breached its fiduciary duty by supporting the land

entitlement in the 1990 TLE Agreement, knowing that “the Plaintiffs were being defrauded of

the land owed to them”, by failing to disclose to the Plaintiffs that they were entitled to select

land based on CPP, that they were entitled to mineral rights in whatever land they selected, that

they were entitled to select lands containing existing mineral leases and that revenue from such

leases would be payable to them, and that Canada knew of the lands’ mineral wealth before

negotiating Treaty 8. Paragraph 68 pleads that the SLCN did not provide informed consent and

Canada obtained SLCN’s consent through “breach of trust, fiduciary duty, equitable fraud, deceit

or negligent misrepresentation, and without fully informing the Plaintiffs of the impact of the

1990 Agreement on their rights.”

[398] There is no evidence of fraud.

[399] There is no evidence of misrepresentation.

[400] There is no evidence of a failure to disclose material information.

[401] SLCN was represented by knowledgeable legal counsel, whose job it was to advise the

Band as to its entitlement and to assist it in negotiating a settlement of its claim. During

negotiations, the SLCN asserted an entitlement to treaty land based on CPP, but chose to settle

the claim, rather than pursue it to trial. If there was a right to select land including mineral rights

or to select lands containing mineral leases, it was the obligation of the SLCN lawyers to so

advise and negotiate on that basis.

Page: 80

[402] Further, no fiduciary obligation arises when the parties are negotiating. Neither Canada

nor Alberta were exercising unilateral discretion over a cognizable aboriginal interest when

entering into the Agreement; SLCN had the ability and right to sign or not sign the 1990 TLE

Agreement. As noted in Weywaykum at para 83, not all obligations in a fiduciary relationship are

themselves fiduciary in nature. A negotiation, by its very nature, cannot give rise to a fiduciary

obligation as each party is acting in its interests. Canada must adhere to principles of the honour

of the Crown, but there was no evidence that it did not act honourably.

[403] There is no evidence that the 1990 TLE Agreement and the Releases contained in the

Agreement were obtained by fraud, misrepresentation or a failure to disclose material

information. I conclude that there was informed consent.

v.

Was the Referendum flawed?

[404] The SLCN argues that the June 1989 Referendum in which the members voted to

approve the settlement agreement was flawed and that the results are therefore not binding. It

relies, in part, on the Indian Act Regulations, CRC, c 957. Those regulations apply to a

referendum for surrender or a proclamation, and the evidence before the Court is that the Chief

and Council chose to use the regulations as a guideline. However, SLCN argues that another

Referendum should be held to correct the flaws.

[405] The terms of the Referendum were set by several BCR. The SLCN refer to the BCR

attached as Exhibit H to Moses #2. The written argument quotes the following from that BCR:

3.

The procedures 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, RSC 1985, c I-5 as

amended from time to time.

(Emphasis added)

[406] Canada correctly notes that the phrase “except as otherwise stated herein” modifies the

entire sentence. The full text of the BCR reads:

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.

(2)

Where the Council of the Band determines that the vote is to be held at

more than one location, the voting may take place on the same date at more than

one location only if each Eligible Voter is prohibited from voting at more than

one location by the provision of mutually exclusive voters’ lists for each location.

(3) Voting shall be by secret ballot.

(Emphasis added)

[407] The SLCN complains that the Indian Referendum Regulations were breached because:

 The Notice of the Referendum was provided only 10 days before the Vote, while

s. 4(1) of the Regulations prescribe 30 days’ notice;

 There is no information as to whether a list of electors was created contrary to s.

5(1) of the Regulations, which requires that a list be prepared and posted at least

15 days before the date for voting.

Page: 81

[408] Exhibit SSS of Ms. Sopiwynk’s affidavit contains a further BCR in which the Band

resolved:

Whereas the Chief and Council of the Sturgeon Lake Band #455 have requested

that the Minister order a referendum for the purpose of determining if the majority

of the electors are in favor of the proposed Sturgeon Lake Indian Band Treaty

Land Entitlement Agreement; and

Whereas, the Sturgeon Lake Band Council shall determine the appropriate

period of notice for the Referendum;

Therefore, be it resolved that at a duly convened Band Council meeting held on

May 25, 1989, the Chief and Council of the Sturgeon Lake Band #455, do hereby

request that the notice be posted on June 12, 1989 for the Referendum to be

held on June 23 and June 24, 1989.

(Emphasis added)

[409] A further BCR, dated June 12, 1989, attached as Exhibit WWW of Ms. Sopiwynk’s

affidavit, provided:

That, at a duly convened Band Council Meeting held on June 12, 1989, the Chief

and Council of the Sturgeon Lake Band #455, passed a motion for the purpose of

establishing an eligible Voter’s List. The eligibility of Voters was determined as

being ordinarily resident on the Reserve using the criteria in the guidelines

for defining residency for the purposes of Band elections.

Whereas this list will be utilized in reference to the Referendum Vote for Land

Claim Settlement Agreement, as posted June 12, 1989.

And whereas, this list also includes persons who will turn 18 years of age on or

before June 23 or 24, 1989, and who are ordinarily resident on the Reserve.;

And whereas this list may also be subject to possible omissions,

Therefore, declarations can be taken and signed on the days of Vote.

(Emphasis added)

[410] Exhibit BBBB-8 of Ms. Sopiwynk’s affidavit is a certified list of electors, entitled

“Complete List of Voters, Band: Sturgeon Lake”. The form has a date line entitled “Surrender”

which has been crossed out and “referendum” typed over, with the dates June 23 and 24, 1989.

The list consists of 9 pages with alphabetical listing of names and an accompanying column in

which some names have been checked off as present. Some of the names have additional

comments: Assisted by interpreter” and “Disabled, vote taken at his residence”. This document

is signed on each page as “certified correct” by what appears to be the signature of B. Charchun.

Bohdan M. Charchun was appointed by the Minister as the electoral officer for the Referendum

(Exhibit UUU of Ms. Sopiwynk’s affidavit).

[411] I conclude that there is no merit to the complaint that the Notice was only posted for 10

days and not 30 days. The BCR clearly stated that the Regulation was to apply “except as

otherwise stated herein”. The BCR otherwise stated that the Band and Council were to

determine the dates for Notice and for the Vote. They did so.

Page: 82

[412] The evidence is unclear as to when and where a Voter’s List was posted, but the June 12

BCR speaks to a list having been prepared, and that it was posted on June 12. Further the BCR

considers the possibility of omissions and authorizes declarations. Exhibit BBBB-7 of Ms.

Sopiwynk’s affidavit contains several such declarations and the Voters’ List (Exhibit BBBB-8)

adds a hand-printed list of those persons on a separate page. I conclude that there was a Voters

List prepared before the Vote, likely before June 12. The BCR refers to it being posted, and I

conclude that it is a reasonable inference that this was done.

[413] In Brass v Key Band First Nation, 2007 FC 581 Phelan J held that the test in determining

whether to set aside an election or referendum is “whether the irregularities are sufficient to raise

a reasonable concern that the voting results do not reflect the will of the voters.” (at para 32).

Under s. 5(2), an elector may ask to have the voters’ list revised if the name of an elector is

omitted, if the name of an elector is set out incorrectly or if the name of a person not qualified to

vote is included on the list. No one has raised any concerns or evidence that unqualified persons

were listed, and the only concern about missing names raised by the SLCN is the question of

whether non-resident members should have been permitted to vote. Even if that had been

brought to the electoral officer’s attention, he would not have changed the list because both the

Indian Act and the BCR limited voting rights to electors ordinarily resident on the reserve.

[414] I conclude that even if there was any irregularity in regards to the creation and posting of

the Voters’ List, it is not sufficient to raise a reasonable concern that the will of the voters was

not reflected in the results.

[415] Further, as noted by Canada there was no requirement that the Band follow the Indian Act

regulations because this was neither a surrender or the issuance of a proclamation. As Mr.

Kennedy noted in his letter to the Minister (Exhibit TTT of Ms. Sopiwynk’s affidavit) and in

questioning on his affidavit (127/7-13, 128/9-18), the Band chose to use the Regulation merely

as a guideline.

[416] Finally, the BCR specifically stated that the procedure in the Indian Referendum

Regulations were to be used for appeals. Section 22(1) of the Regulations provides that an

elector may ask the Minister to review a referendum if there was a contravention of the

Regulations or there was a corrupt practice. The request for a review must be mailed within

seven days of the Referendum. No appeal was taken within seven days (or at all).

[417] In Brass, the Key Band First Nation sought judicial review of a referendum, alleging that

the referendum was conducted so improperly that it was not in accord with the law as to

elections and referenda under the Federal Court Rules of Court. Judicial review must be brought

within 30 days. Although there may be some discretion to expand the time limit, it highly

unlikely that a Federal Court would do so more than 20 years after the vote. No one brought such

an application.

[418] In the face of these other, more appropriate, avenues to challenge the validity of the

referendum, I conclude that this is the wrong forum and is well out of time.

[419] The SLCN also objected to the limitation found in s. 77(1) of the Indian Act that electors

be ordinarily resident on the Reserve on the basis of the Supreme Court of Canada decision in

Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 that held that

restricting voter eligibility to band members ordinarily resident on the reserve infringed s. 15 of

the Charter.

Page: 83

[420] The SLCN argues that the Court’s decision applies retroactively and that therefore s.

77(1) was unconstitutional and of no force and effect, citing no authority for this conclusion. It

submits the Referendum results should be set aside because non-resident members were not

allowed to vote. It further filed a Notice of Constitutional Question, dated October 17, 2014

alleging that s 77 is unconstitutional.

[421] In Canada (Attorney General) v Hislop, 2007 SCC 10, the Supreme Court of Canada

indicated (at para 93) that it may be appropriate to limit the retroactive effect of a Court’s

judgment when it is developing new law within the broad confines of the Constitution. The court

noted that there must be a change in the law amounting to “a clear break from the past” before

purely prospective remedies would be justified. Example of sufficient change included when the

Court overrules or repudiates a prior decision, where it gives content to previously undefined

rights, or where it recognizes that a situation is now covered by a constitutional guarantee. This

clear change is a necessary, but not sufficient, ground (para 99).

[422] The Court then set out a list of factors to be considered when deciding whether a

substantial change in the law justifies purely prospective remedies (at paras 100-101, 103):

...reasonable or in good faith reliance by governments (Miron, at para 173;

Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002

SCC 13, at para 78), or the fairness of the limitation of the retroactivity of the

remedy to the litigants. Courts ought also consider whether a retroactive remedy

would unduly interfere with the constitutional role of legislatures and democratic

governments in the allocation of public resources (Benner, at para 103;

Schachter, at p. 710)

... Fully retroactive remedies might prove highly disruptive in respect of

government action, which, on the basis of settled or broadly held views of the law

as it stood, framed budgets or attempted to design social programs. Persons and

public authorities could then become liable under a new legal norm. Neither

governments nor citizens could be reasonably assured of the legal consequences

of their actions at the time they are taken...

People generally conduct their affairs based on their understanding of what

the law requires. Governments in this country are no different. Every law they

pass or administrative action they take must be performed with an eye to what the

Constitution requires... An approach to constitutional interpretation that makes it

possible to identify, in appropriate cases, a point in time when the law changed,

makes it easier to ensure that persons and legislatures who relied on the former

legal rule while it prevailed will be protected. In this way, a balance is struck

between the legitimate reliance interests of actors who make decisions based

on a reasonable assessment of the state of the law at the relevant time on one

hand and the need to allow constitutional jurisprudence to evolve over time on the

other.

(Emphasis added)

[423] I conclude that it would be highly disruptive and unfair to impose a constitutional

requirement to include non-resident members as electors in the Referendum, held 10 years before

the Supreme Court of Canada released its decision in Corbierre. Canada, Alberta, and the SLCN

Page: 84

Chief and Council reasonably relied on s. 77(1) of the Indian Act to determine who would be

permitted to vote in the Referendum. Applying Corbierre retroactively would create great

uncertainty as to the reliability of all referenda conducted before 1999.

[424] Further, strong policy reasons mitigate against retroactively applying such decisions to

non-parties in other actions. In Hislop, the issue was whether the plaintiffs themselves were

entitled to retroactive benefits. Applying a remedy to entirely different parties in an entirely

different action in regards to actions that took place years before is a step too far, and would

create great uncertainty. How much reliance could anyone place on actions that might, someday,

in the future, be found to be unconstitutional in an entirely different set of facts and proceedings?

[425] Finally, the Supreme Court of Canada in Corbiere suspended the implementation of the

declaration of invalidity for 18 months and spoke prospectively about the possibility of

legislative inaction saying (at para 23): “We have not overlooked the possibility that legislative

inaction may create new problems. Such claims will fall to be dealt with on their merits should

they arise.” Both suggest that the Supreme Court did not intend the invalidity to apply

retroactively to other decided elections and referenda.

[426] As to the constitutionality of s.77; it has already been decided by the Supreme Court of

Canada. I need not decide it again.

vi.

Conclusion on the Release

[427] I conclude that Canada has proven that there is no merit to the SLCN’s claims to land

entitlement arising from Treaty 8, because SLCN released Canada from those obligations in the

1990 TLE Agreement. This includes claims to lands in severalty, claims to Sturgeon Lake and

lakebed, claims to additional land based on increased population arising from Bill C-31 and Bill

C-3, claims to damages for loss of use, and claims for additional land because of persons not

counted in the first survey. I also conclude that the Release included any future claims and that

therefore Mr. Metcs’ evidence in regards to CPP is irrelevant. I also find that there is no evidence

of fraud, misrepresentation, failure to disclose relevant information or breach of fiduciary duty

leading to the Releases and the Agreement. Finally, the Referendum was not flawed, but even if

it was, this is not the venue for challenging it. A challenge to a vote must be made under the

terms of the Regulation, and this Court has no jurisdiction to do so.

4.

Limitation period

[428] I address the submissions that the claims relating to lands be dismissed as out of time as

an alternative to dismissal on the basis of the Release in the event that I am incorrect in regards

to the Release.

[429] The current Alberta limitations legislation, Limitations Act, RSA 2000, c. L-12, applies to

actions commenced on or after March 1, 1999. Canada argues that since the original statement

of claim in this action was filed in 1997, the Limitation of Actions Act, RSA 1980, c L-15 (LAA)

applies. Section 2 of that Act provides:

The provisions of this Act apply to all causes of action whenever arising.

[430] On its face, this provision would suggest that the LAA applies to this claim.

[431] Canada asserts that the causes of action sound in breach of fiduciary duty, for which the

applicable limitation period under the LAA is six years from the date the cause of action arose or

was discovered (s. 4(1)(e) or (g)). As noted previously “a cause of action arises for purposes of a

Page: 85

limitation period when the material facts on which it is based have been discovered or ought to

have been discovered by the plaintiff by the exercise of reasonable diligence”: Central Trust Co

(at para 77) and Lameman (SCC) at para 16.

[432] Canada argues that since Canada executed the 1990 TLE Agreement on or about January

11, 1990, the breaches must have occurred before that date, and Canada should have been free

from risk of suit six years later, January 10, 1996. This Action was not started until April 1997

and the amendments challenging the 1990 TLE Agreement were not filed until July 2000.

[433] The SLCN argues that its claims are not caught by the limitations legislation, arguing the

following:

 The Ontario limitation legislation applies;

 Treaty 8 is an express trust and limitation defences do not apply;

 Allegations of fraud defeat the limitation defence;

 The discovery of the causes of action occurred within the limitation period;

 Declaratory relief is not subject to limitation periods;

 Limitation legislation is contrary to the Constitution.

i.

What limitation legislation applies?

[434] The SLCN argues that the Ontario Limitations Act, 1990, RSO, c L-15 should govern this

claim. It argues that limitation law is substantive, rather than procedural, and therefore should be

governed by the proper law of the action rather than the law of the forum (Alberta): Tolofson v

Jensen, [1994] 3 SCR 1022 at paras 77 and 78.

[435] The SLCN characterizes the action as one for breach of trust. It further submits that the

proper law of the trust is Ontario, as that is the jurisdiction with which the action has the most

substantial connection. Specifically, at the time Treaty No 8 was concluded, the trustees (the

Government of Canada) were located in Ottawa, the Treaty was administered from Ottawa and

the administration was most significantly related to Ottawa. Further, because Alberta did not

exist when the Treaty was entered into, it cannot be argued that the parties intended Alberta law

to apply⁸.

[436] Under the Ontario Limitations Act, 1990, there is no limitation period for claims for

breach of fiduciary duty, and thus the Band submits that this claim is not limitation barred.

[437] The Band apparently characterizes the entire action as one for breach of trust or fiduciary

duty. I note, however, the Fourth Amended Statement of Claim alleges a number of facts which

could support several other causes of action. The SLCN focuses its limitation arguments only on

the proper law for breach of trust.

[438] In general, the proper law for administration of trusts is what the settlor intended, and if

no evidence of intention exists, “the courts should apply the internal law of the place to which

the administration of the trust is most significantly related or to which it is most closely

connected”: Webster-Tweel v Royal Trust Corp of Canada, 2010 ABQB 139 (at para 75,

emphasis in original; emphasis added).

⁸I note that while Alberta did not exist at the time, the area in question fell within the North-

West Territories, Alberta’s predecessor, and the parties could have intended North-West

Territories’ legislation to apply.

Page: 86

[439] This principle was applied in the context of the sui generis fiduciary trust-like position of

the Crown in relation to Aboriginal peoples in Samson Indian Nation and Band v Canada,

2015 FC 836 (Samson). In that case, Canada sought summary judgment of the Plaintiff’s

claims, in part, because the claim was limitation barred. Samson initiated its claim in 1989,

alleging that Canada breached its trust, fiduciary, treaty and other obligations in failing to give

full and proper effect to the band’s constitutionally-protected royalty interests in the oil and gas

produced on Reserve lands set aside for them in Treaty 6.

[440] Samson argued that the law of Ontario should apply to their action. It submitted that its

action was with respect to the Crown’s breaches of its sui generis trust or trust-like fiduciary

obligations respecting the management of monies, which took place in Ottawa. It further argued

that the proper law for actions regarding administration of trusts is the law of the residence of the

trustees. As the trustee was the Crown, and the legal residence of the Crown was in Ottawa, the

law of Ontario was the proper law of that action.

[441] Russell J disagreed with these arguments and held that Alberta law was the proper law of

the action. In doing so, he recognized that certain legislative and administrative elements of the

case were connected to Ottawa. However, the plaintiffs claim in that case was about “royalties

that they say they should have been credited with for oil and gas production on their Reserve

lands in Alberta” (at para 149). Because the subject lands were located in Alberta, Russell J

therefore held that Alberta clearly had “the most substantial connection” to the breaches of

fiduciary and trust-like duties that were the subject of the action (at para 152).

[442] Russell referred to the earlier Federal Court of Appeal decision in the same matter

dealing with a different phase of the action: Ermineskin Indian Band and Nations v Canada;

Samson Indian Nation and Band v. Canada, 2006 FCA 415 (Ermineskin, FCA); (upheld

Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 (Ermineskin, SCC).

[443] The majority in Ermineskin FCA upheld the lower court decision, but without addressing

the question of the limitation period⁹. Sexton JA, in dissent on the ultimate issue, but not in

regards to the limitations issue, concluded that the Alberta LAA applied, saying (at paras 325-26):

Therefore, it is their submission that Ontario limitations legislation should apply.

In my view, Samson's contentions do not accurately depict the applicable law.

While the residence or place of business of the trustee can be a significant factor

when determining where the cause of action arose, it is not determinative (Waters

at 1392). Alberta clearly has the most substantial connection to the breach of trust

as all of the key elements of the cause of action can be found there. Specifically,

the beneficiaries of the trust, the trust corpus, and the trustees with the power of

administration all reside in Alberta. Though the technical situs of the Crown is in

Ottawa, this is not enough to establish that the cause of action arose in Ontario

[444] This action was commenced in Alberta in the Alberta Court of Queen’s Bench by an

Alberta First Nation about claims to land in Alberta in regards to a Treaty which the First Nation

adhered to in Alberta and a modern TLE agreement, negotiated and, for the most part,¹⁰executed

in Alberta. I conclude that Alberta law applies.

⁹The Supreme Court of Canada also did not address the limitations argument raised in Samson.

10

Canada executed the Agreement in Ottawa.

Page: 87

ii.

Is there an express trust and do s. 14 of the Judicature Act

and ss. 40 and 41 of the LAA apply?

[445] The SLCN argues that Treaty 8 is an express trust and as such, by virtue of s. 14 of the

Judicature Act, RSA 1980 c J-1 and s 41 of the LAA, limitations do not apply. The effect of these

provisions has been described as:

... section 14 of the Judicature Act and paragraph 41(2)(b) of the Limitation of

Actions Act carve out exceptions to the general applicability of limitations

legislation to trustees. Specifically, ... section 14 of the Judicature Act, when

interpreted properly, prevents limitations legislation from applying to trustees

who still have the trust property in their possession, whether they obtained it as a

result of an express trust or as a result of a breach of trust. Similarly ... section 41

of the Limitation of Actions Act carves out further exceptions -- namely it prevents

limitation periods from applying to claims based on fraudulent behaviour or to

property recovery where the proceeds are still retained by the trustee or were

previously received by the trustee and converted to their use. (Ermineskin at para

329)

[446] Before looking at the legislative provisions, it is necessary to look at whether Treaty 8

created a trust. The Supreme Court of Canada in R v Guerin, [1984] 2 SCR 335 (at para 106)

held that a surrender under Treaty does not create an express trust because the treaty involves the

unconditional surrender of the lands, and therefore the Indians’ right in the land “disappears”.

This formulation was relied on by Slatter J in Papaschase (at para 117).

[447] The SLCN relies on the language of Treaty 8 to say that the Crown intended to create a

trust:

...the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD

UP to the Government of the Dominion of Canada, Her Majesty the Queen and

her successors for ever, all their rights, titles and privileges whatsoever ...

And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves...

...

Her Majesty reserves the right to deal with any settlers within the bounds of any

lands reserved for any band as She may see fit; and also that the aforesaid

reserves of land, or any interest therein may be sold or otherwise disposed of by

Her Majesty’s Government for the use and benefit of the said Indians entitled

thereto, with their consent first obtained.

(Emphasis added)

[448] Virtually identical language from Treaty 6 was quoted by the Supreme Court in

Ermineskin:

For example, the treaty states that the Plain and Wood Cree Tribes of Indians

relinquished "all their rights, titles and privileges whatsoever, to the lands

[within the specified territory]". The Treaty further states that reserves would be

set aside and that the Crown would be entitled to sell or dispose of the reserve

lands "for the use and benefit of the said Indians entitled thereto, with their

consent". However, the Crown also retained the right to appropriate reserve land

Page: 88

for any public purpose with payment of due compensation. (Ermineskin at para

49; emphasis added).

[449] The Supreme Court concluded (at para 50):

This language does not support an intention to impose on the Crown the duties of

a common law trustee. All rights were relinquished to the Crown, and the Crown

then agreed to set aside certain lands for use by the Indian signatories. The

language and circumstances point to a conditional transfer of the land, rather than

the establishment of a common law trust.

[450] Nor does the 1990 TLE Agreement create an express trust.

[451] In any event, courts have held that s 14 of the Judicature Act and ss 40 and 41 of the LAA

do not bar limitations defences when the action is not for the recovery of property from the

trustee: Ermineskin (per Sexton JA at para 332; Nilsson Livestock Ltd v Donald A MacDonald

(1993), 11 Alta L.R. (3d) 155 (QB). See also Papaschase at paras 116-128.

[452] I conclude that Treaty 8 does not create an express trust and therefore the six year

limitation period in the LAA applies, and s 14 of the Judicature Act and ss 40 and 41 of the LAA

do not assist the Plaintiffs.

iii.

Allegations of fraud

[453] The SLCN assert that Canada and Alberta are party or privy to a fraud or a fraudulent

breach of trust, and cite the definition of “equitable fraud” in Guerin (at para 115) , citing

Kitchen v Royal Air Force Association et al, [1958] 1 WLR 563:

Conduct which, having regard to some special relationship between the two

parties concerned is an unconscionable thing for the one to do towards the other.

[454] In Guerin, the Indian Affairs Branch leased surrendered land for less favourable terms

than those approved by the Band at the surrender meeting. The Court held that Crown had

committed equitable fraud when it concealed the terms of a lease from the Band, even though its

actions did not amount to deceit or common law fraud. As a result the limitation period was

suspended until the date the Band received a copy of the lease and learned of the lease terms.

[455] In its written argument dealing with the limitations issue, the SLCN does not specify the

exact nature of the fraud alleged. Throughout its submissions, there are repeated allegations that

the Crown concealed the research of how many additional members the Band would acquire by

virtue of Bill C-31. I have already concluded that there is no basis for this allegation.

[456] The Fourth Amended Statement of Claim alleges that Canada concealed the value of the

lands ceded, including the mineral value when entering into Treaty 8. However, it is clear that

the SLCN was well aware of the value of the lands and minerals at least by 1987 when it

commenced the 1987 Action on the basis that the leases and licenses in their traditional lands

were valuable. Further, the SLCN lead no evidence of this concealment.

[457] The Fourth Amended Statement of Claim further alleges concealment of material facts

leading to the 1990 TLE Agreement, including that Canada failed to disclose that the Plaintiffs

were entitled to select lands containing existing mineral leases. But the SLCN lead no evidence

of that alleged concealment. The Statement of Claim also alleges that Canada concealed “vast

Page: 89

amounts of mineral wealth in the land surrendered under Treaty 8”, and again the SLCN clearly

had that knowledge at the latest by 1987.

[458] I conclude that the SLCN has not established that the Defendants fraudulently concealed

anything that would stop the running of the limitation period.

iv.

Discovery of the causes of action

[459] The SLCN assert that if the Court finds that the six year limitation period applies, then

the causes of action arose or were discovered within the applicable limitation period. In

particular, it argues that the referendum procedures were unconstitutional and that this was not

discoverable until the decision in Corbiere in which the Supreme Court of Canada held that the

exclusion of off-reserve members of an Indian Band was unconstitutional. The cause of action,

therefore, did not arise until 1999 (the date of the decision).

[460] This argument is untenable. As noted by the Supreme Court of Canada in Lameman

(SCC) at para 16, a cause of action arises for the purposes of limitation periods when “the

material facts on which it is based have been discovered or ought to have been discovered”. The

Alberta Court of Appeal has repeatedly stated that discoverability relates to facts not law: Luscar

Ltd v Pembina Resources Ltd, 1994 ABCA 356 (at para 127); Royal Canadian Legion

Norwood (Alberta) Branch 178 v The City of Edmonton (1994), 149 A.R. 25 (CA) (at para 30);

Hill v South Alberta Land Registration District 1993 ABCA 75 (at p 385). Further, error,

ignorance of the law or uncertainty of the law does not postpone limitation periods (Luscar at

para 127). This was recently confirmed in Templanza v Wolfman, 2016 ABCA 1 at para 19:

Ignorance or mistake of law does not postpone a limitation period: Boyd v Cook,

2013 ABCA 27 at para 17, 542 AR 160; Laasch v Turenne, 2012 ABCA 32 at

para 24, 522 AR 168 [Laasch]; Salna v Awad, 2011 ABCA 20 at para 28, 499

AR 264 [Salna]. The concept of discoverability in the Limitations Act generally

relates to facts rather than law: Stobbe v Paramount Investments Inc, 2013

ABCA 384 at para 15, 566 AR 155; Laasch, supra para 24; Salna, supra at para

28. And since trials are for determining facts, [w]hen the resolution of the dispute

turns primarily on issues of law, summary judgment is often appropriate: Windsor

v Canadian Pacific Railway Ltd, 2014 ABCA 108 at para 16, 371 DLR (4th)

339.

[461] Further, the SLCN suggests that since Treaty 8 rights are held collectively (which is

inconsistent with its position in regard to the right to land in severalty) and are attributable to all

members, both born and unborn, the limitation period does not apply to members born less than

six years before the action was commenced. They cite no authority for this surprising position.

[462] The underlying rationale of limitation periods is three-fold: certainty, evidentiary and

diligence. The first is that “potential defendant should be secure in his reasonable expectation

that he will not be held to account for ancient obligations”. The second concern is to avoid the

problems with stale evidence so that “the potential defendant should no longer be concerned

about the preservation of evidence relevant to the claim”. The third is that “plaintiffs are

expected to act diligently and not "sleep on their rights"; statutes of limitation are an incentive

for plaintiffs to bring suit in a timely fashion”. (M(K) v M(H) [KM v HM], [1992] 3 SCR 6 at

paras 22-24).

Page: 90

[463] What the Plaintiffs propose would undermine the entire rationale and there would be no

effective limitation period while new members of the SLCN continue to be born. I do not accept

this argument.

[464] Mr. Moses in Moses #4 asserted a number of questionable “discoveries”. I have already

dismissed the assertion that the SLCN did not discover the numbers of new members expected to

join as a result of Bill C-31. He also asserted in his affidavit (Moses #4) that SLCN had no

information about Canada’s policy in regards to land entitlement, citing Exhibits F and G, a

“Discussion Paper” and a “Ministerial Briefing” respectively and Exhibit B of his affidavit, the

April 18, 1988 letter from Mr. Kennedy, which is also Ex II of Sopiwynk Affidavit. That is not a

fair assessment of the evidence.

[465] Mr. Kennedy wrote the SLCN and explained Canada’s current LTE policies, noting that

“additional land or benefits might be possible as a result of the Government’s review of the

issues”. He noted that the Minister “will be seeking advice from his Cabinet colleagues with

respect to federal participation in TLE settlement over and above what Canada considers to be its

lawful obligation.” He suggests that it may be possible to negotiate with Alberta to acquire more

land than prescribed by the DOFS formula “once the federal Minister has consulted his

colleagues on TLE policies.” He further mentions the possibility of cash incentives and revenue

sharing.

[466] There is nothing in the Discussion Paper or the Ministerial Briefing that is inconsistent

with what Mr. Kennedy wrote. The Discussion Paper, dated April 20, 1988, set out the issue it

was addressing as: “how the federal government should proceed to fulfill outstanding treaty land

entitlement (TLE) to Indian bands in the prairie provinces.” The paper sets out the major

underlying considerations, including the Indian expectation that a contemporary population

formula be used and the fact that the prairie provinces have significantly different policy

positions. It sets out the history of TLE issues and the creation of the Saskatchewan formula (I

note that the SLCN was well aware of the Saskatchewan formula and used it in some TLE

settlements, as set out in their proposals, see for example it First Proposal in September 1980 and

its Third Proposal in December 1986), and the 1988 positions of the prairie provinces. The paper

notes that very few bands have achieved settlement under the current population formula, and

that “most Indian leaders realize that the full-fledged Saskatchewan formula is probably

unachievable.” The paper also notes that there is authority to make financial contributions

instead of land to achieve settlement, and acknowledges that each situation is unique and

varyingly complex. The paper sets out options for consideration, including DOFS formula, twice

the DOFS formula, the Saskatchewan formula (already rejected by Alberta), and a proportion of

contemporary population based on the extent of the original shortfall.

[467] The Ministerial Briefing sets out DIAND’s current position:

Officials were authorized by Minister, in October 1987, to formally proceed with

TLE settlements ... to the extent of entitlement based upon band populations when

reserves were first surveyed... without prejudice to a band’s position that more

land may be more owed under treaty.

[468] The Briefing noted that the draft Memorandum to Cabinet proposed DOFS with a

recommendation to permit recourse to incentive funds where required in any particular case.

The Briefing then set out the four options from the Paper and noted that the DOFS approach

would require cooperation with the provinces, which may not be forthcoming, and that additional

Page: 91

funds might be provided on a case-by-case basis, subject to Cabinet and Treasury Board

approval. It also made a long term recommendation of DOFS x 2 in land and/or cash.

[469] Mr. Kennedy’s letter indicated Canada’s current position:

 that the issue is under review by the Government,

 that DOFS land selection would be without prejudice to seeking additional land,

 that the Minister requires Cabinet consultation to go above the current policy,

 that Alberta cooperation is necessary, and

 that cash might be made available as an incentive to settlement.

[470] These are all confirmed in the Discussion Paper and the Briefing Note.

[471] In any event, the weight to be attributed to the Discussion Paper and the Briefing Note is

limited. The makers of the documents are unknown and therefore the contents are hearsay. The

documents are not statements of Government policy and only make recommendations. There is

no evidence that the recommendations were actually made to government or that any of the

recommendations were acted on. At best, the documents offer some confirmatory basis that Mr.

Kennedy was acting within the acknowledged policies of Canada at the time.

[472] Mr. Moses’ #4 affidavit suggests that the Plaintiffs did not become aware that the Voters’

List for the referendum was not posted until the questioning of Mr. Kennedy on his affidavit. He

states:

I am advised by counsel and do believe that, during the questioning of Sean

Kennedy, Canada’s representative during negotiation of the TLE, who was

personally involved during the time of the Referendum, it became apparent to

SLCN for the first time that a voter’s list was not posted.

(Emphasis added)

[473] Similarly, it was not until questioning of Mr. Kennedy and review of the records, that the

SLCN became aware only 10 days’ notice of the Referendum was provided.

[474] The lawyers may only have become aware of these facts at that time, but “a cause of

action arises for purposes of a limitation period when the material facts on which it is based

have been discovered or ought to have been discovered by the plaintiff by the exercise of

reasonable diligence” ...Central Trust Co v Rafuse, [1986] 2 SCR 147 (at para 77); Lameman

(SCC) at para 16) (emphasis added). The SLCN knew at the time of the Referendum that the

Notice was posted 10 days before the Vote; the Chief and Council ordered that timing. The

information as to the Voters’ List was also known to the Band at the time. This complaint was

not “discovered” in time.

vi.

Declaratory relief is not subject to limitation periods

[475] The SLCN argues that declaratory relief is not subject to limitation of actions statutes,

relying on Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14. In my

view, the narrow exception in Manitoba Metis does not assist the SLCN.

[476] In Manitoba Metis, McLachlin CJ and Karakatsanis J, for the majority, held that where

the relief sought was damages for breach of fiduciary duty, the limitation period applicable to

equitable grounds for relief applied. However, a declaration that the Crown did not act

honourably was a “fundamental constitutional matter”. At issue was a century and a half old

Page: 92

constitutional grievance, and at its heart was the “ongoing rift in the national fabric” and the

“unfinished business of reconciliation.” (at paras 139-140). Further, the Court noted that the

claim was not stale, was based on contemporaneous documentary evidence, and no third party

legal interests were at stake (at para 142). The Court granted a declaration that “...the federal

Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in

accordance with the honour of the Crown.”

[477] Importantly, the Court expressly noted (at para 143):

Furthermore, the remedy available under this analysis is of a limited nature. A

declaration is a narrow remedy. It is available without a cause of action, and

courts make declarations whether or not any consequential relief is available. As

argued by the intervener Assembly of First Nations, it is not awarded against the

defendant in the same sense as coercive relief... In some cases, declaratory relief

may be the only way to give effect to the honour of the Crown... Were the Métis

in this action seeking personal remedies, the reasoning set out here would not be

available. However, as acknowledged by Canada, the remedy sought here is

clearly not a personal one... The principle of reconciliation demands that such

declarations not be barred.

(Emphasis added)

[478] The declarations sought by the SLCN are not limited; they are coercive. The Alberta

Court of Appeal in Joarcam, LLC v Plains Midstream Canada ULC, 2013 ABCA 118 (at para

5) and Yellowbird v. Samson Cree Nation No 444, 2008 ABCA 270 (at paras 45-46) held that

the appropriate test to determine whether a remedy is truly declaratory or actually remedial is

whether the plaintiff could "leave the court in peace" and enjoy the declarations’ benefits if the

defendant resisted the declaration’s implementation without further judicial process. The Court

also accepted that if the relief is executory or coercive, it is not declaratory. In Joarcam the

plaintiffs sought declarations that it was entitled to immediate possession of certain assets. This

was equivalent to an order requiring coercive action.

[479] Similarly, the Plaintiffs here seek declarations that the terms of Treaty 8 have not been

fulfilled, that they are entitled to lands under Treaty 8 in perpetuity, including lands in severalty

and lands for members who acquired status under Bill C-31. They also seek declarations that

they are entitled to choose oil and gas producing lands to fulfill their TLE entitlement and to the

mineral rights and revenue from any leases on these lands. Further, they seek a declaration that

cash compensation in lieu of land should be calculated on the mineral value of royalty revenues

received for hydrocarbon production on lands selected by the Plaintiffs. None of these

declarations are truly declaratory. They are all coercive and executory. If the Defendants resisted

the declarations, further court action would be required to implement the “declarations”.

[480] The first declaration sought is one declaring that the Defendants breached trust, fiduciary,

treaty, constitutional, statutory, common law, contractual, equitable or other obligations and

duties to the Plaintiff. Read together with the other relief sought: an accounting for profits taken

from claimed lands, compensation for loss of treaty rights and inadequate annuity payments, and

notably damages for breaches of “trust, fiduciary, treaty, constitutional, statutory, common law,

contractual, equitable or other obligations” makes it clear that this relief is not purely declaratory.

Page: 93

[481] The declarations sought regarding the assertion that the Firearms Act, SC 1995, c 39

violates Treaty 8 and the Indian Act breaches the Charter are not at issue in this application, as

Canada has only sought summary judgment on the claims related to land, and I will say nothing

more about those declarations.

vii.

Limitations legislation are unconstitutional

[482] The SLCN filed a Notice of Constitutional Question on December 16, 2014 challenging s

32 of the Crown Liability and Proceedings Act and parts of the LAA. Canada argues that this is

merely an inappropriate attempt to bolster SLCN’s attempts to thwart the summary judgment

application. It notes that the Fourth Amended Statement of Claim has not pleaded such a

challenge and therefore it is not properly before the Court. I disagree. The question of limitations

only arises when Canada and Alberta raised the limitation as a defence; it was not necessary that

it be pleaded in the Statement of Claim.

[483] The SLCN argues that the limitation period under the LAA is unconstitutional, because it

operates to extinguish their aboriginal rights and title arising from Treaty 8, rights that are

constitutionally protected under s. 35 of the Constitution Act, 1982. It further argues that to the

extent that the Crown Liability and Proceedings Act incorporates the LAA, it is also

unconstitutional. Finally, it argues that the limitations provisions infringe s.15 of the Charter

because different provinces have different limitation provisions and therefore aboriginal peoples

in different provinces have different abilities to initiate legal proceedings. Aboriginal peoples are

a disadvantaged group and are therefore in need of special protection, as demonstrated by ss. 35

and 52 of the Constitution Act, 1982.

[484] In my opinion, no further constitutional argument is needed on this question. I have

addressed the limitation question as an alternative to my findings that the claims are an abuse of

process and that the Releases are enforceable as a defence to the claims. The question of whether

the LAA (or presumably the Limitations Act) and the Crown Liability and Proceedings Act is,

therefore, not of immediate relevance. Constitutional determinations should be addressed when

there is a live constitutional question, not as obiter.

[485] In any event, and without addressing the validity of the SLCN’s constitutional argument,

I note that while the Supreme Court of Canada in Manitoba Metis spoke of exercising caution

when enforcing limitation periods in aboriginal cases, it did so within the context of

reconciliation and justification where the remedy sought was limited and narrow and where there

was no need for a cause of action. The comments regarding limitation periods in Manitoba Metis

must be read within the context of the narrow relief requested there. That is not the case here.

[486] The Supreme Court of Canada has applied limitation periods to aboriginal claims in

Lameman at para 12-13, and Wewaykum Indian Band v Canada, [2002] 4 SCR 245, 2002 SCC

79 at para 121, for sound policy reasons: “to strike a balance between protecting the defendant's

entitlement, after a time, to organize his affairs without fearing a suit, and treating the plaintiff

fairly with regard to his circumstances.” (at para 13). In Wewaykum, the Court noted (at para

121):

Witnesses are no longer available, historical documents are lost and difficult to

contextualize, and expectations of fair practices change. Evolving standards of

conduct and new standards of liability eventually make it unfair to judge actions

of the past by the standards of today.

Page: 94

[487] Mr. Moses and Mr. Sunshine’s evidence reinforces these concerns. Mr. Moses, the SLCN

representative, cannot speak from his own knowledge as he was a child at the time of the 1990

TLE Agreement. Mr. Sunshine’s evidence is equally troubling because he concedes there is

much he does not remember.

viii.

Conclusion

[488] Subject to the question of whether the LAA is unconstitutional, I would have summarily

dismissed the SLCN claims dealing with land as having been filed out of time. The causes of

action would have arisen, at the latest, sometime before the 1990 TLE Agreement was executed

in January 1990, and this action was not brought until 1997, more than six years after. Moreover,

the amendments claiming additional Treaty lands under Treaty 8 and the allegations about the

negotiations surrounding the 1990 TLE Agreement were not made until 2000. Nor do I accept

any of the SLCN evidence on the discoverability of the claims.

C.

Conclusion

[489] I therefore grant Canada’s application to strike paragraphs paras 14-17, 20-21, 22(d) and

(e), 35-39, 52-54, 43 to the extent it includes paras 14-17, 20-22 and 35-39; 44, 47 is struck as it

relates to Sturgeon Lake; and 58 and 75, to the extent they seek land for new members as a result

of Bill C-31, 71-76, Alternatively, I would also summarily dismiss these same paragraphs on the

basis of the terms of the release or because they were filed outside of the limitation period.

[490] I further conclude, based on the terms of the Release and, alternatively, 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.

VII. Alberta’s application

[491] Alberta also applied to strike the SLCN claims, asserting that the claims are time barred,

are an improper collateral attack on the Consent Order, which incorporated the 1990 TLE

Agreement, and that the SLCN should be estopped from pursuing the same issues and causes of

action which have already been finally determined among the parties. Alberta was seeking to

strike paragraphs 6-8, 48-54, 58-63, and 69-76.

A.

The Claims against Alberta

[492] The Fourth Amended Statement of Claim makes the following allegations in relation to

land against Alberta (the reference numbers are to the paragraphs in the Statement of Claim):

6 and 7.

Alberta is the Plaintiffs’ fiduciary, and had power, discretion,

authority and control over the Plaintiffs, and the Plaintiffs, as beneficiaries, were

particularly vulnerable to Alberta.

8.

Alberta is a necessary party to the action because of its obligations

under s. 2 of the NRTA.

48-52.

Under the NRTA Alberta agreed to honour any trusts or agreements

that third parties made with Canada in regards to Crown lands, and as such

Alberta was required to set aside provincial Crown land to fulfill the terms of

Treaty 8.

Page: 95

53-54, 58, 60-63

Alberta shares Canada’s responsibility and liability for

failure to provide lands to fulfill Treaty 8 and Alberta has profited from breaches

of its fiduciary duties to the Plaintiffs. Alberta “has been reluctant to abide by the

terms of Treaty No. 8 and to provide additional lands based on increased

populations.”

69-74.

The Releases given by the Plaintiffs to Alberta in the 1990 TLE

Agreement were given without informed consent and are not binding on the

Plaintiffs. The Plaintiffs were never fully informed of the impact of the 1990 TLE

Agreement on their Treaty rights to land on the basis of CPP, and Alberta wilfully

and intentionally did not disclose or discuss with the Plaintiffs these, breaching its

fiduciary duties to the Plaintiffs. Alberta did not provide sufficient lands as

required under Treaty 8.

75.

Alberta is obligated to provide land to accommodate the Plaintiff’s

growth in population as a result of Bill C-31. “Despite the fact that the Plaintiffs’

representatives impressed upon Canada and Alberta during the negotiations for

the 1990 Agreement that the Sturgeon Lake Creen Nation’s membership had

doubled in size since the passing of Bill C-31, this fact was not taken into account

in the amount of land provided to the Plaintiffs under the Agreement”.’

76.

Alberta is obligated to provide lands in severalty to such members

of SLCN who desire them.

[493] In Canada’s application I struck or summarily dismissed the claims listed above. Most of

the claims against Alberta are tied to the claims against Canada, based on the Plaintiffs’ theory

that Alberta was liable for all of Canada’s wrongs based on the indivisibility of the Crown and

on Alberta’s assumption of Canada’s obligations under the NRTA. It is at least arguable, that

having struck or dismissed these claims as against Canada, there are no further claims regarding

land remaining against Alberta.

[494] In fact, SLCN considered this possibility in its Reply Brief to Alberta’s application,

noting (at para 104):

Alberta’s Application to Strike is unnecessary because if Canada succeeds in its

application for Summary Dismissal of the Plaintiffs’ claim respecting lands there

will be no pleadings to strike.

[495] I am concerned, however, that if I were to leave open the question of whether the claims

against Alberta should be struck, SLCN might, perhaps reasonably, later take the position that

only the claims against Canada were struck or dismissed. While many of the claims against

Alberta arise from the allegation that it shares Canada’s fiduciary obligations, there are claims in

regards to lands in the Fourth Amended Statement of Claim that are specific to Alberta:

 Paras 49-53, 71-76: failure to provide sufficient lands to meet the terms of Treaty

8 and therefore Alberta breached fiduciary duties, and failure to inform SLCN

that they had land entitlement based on CPP;

 Para 62 and 64: Alberta agreed to provide Treaty lands in the 1990 TLE

Agreement and insufficient lands were set aside;

 Para 69: The SLCN Release of Alberta in the 1990 TLE Agreement was given

without informed consent;

Page: 96

 Para 74: Alberta has not allocated or set aside sufficient lands to satisfy the

Plaintiffs’ entitlement under Treaty 8.

[496] Thus, the claims against Alberta can be summarized as:

 Breach of fiduciary duty in failing to transfer to Canada sufficient lands to meet

the requirements under Treaty 8; and

 The Release of Alberta by SLCN in the 1990 TLE Agreement was obtained

without informed consent.

[497] I note that the 1990 TLE Agreement between Alberta and Canada included Schedule G –

a Release of Alberta by SLCN in relation to land entitlements under Treaty 8, land entitlement

under the NRTA, and claims from the 1987 Action. This schedule, along with all other portions

of the 1990 TLE Agreement, was incorporated into the Consent Order settling the 1987 Action.

The Release reads as follows:

... [D]o hereby remise, release, waive and forever discharge Alberta, her

employees, servants, agents, officers, officials, and successors ... 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 [SLCN] had,

now have, or can, shall or may hereafter have against [Alberta] arising out of

relating to:

(a) the reserve clause of Treaty No. 8 which reads as

follows...[quoted elsewhere in these Reasons];

(b) any and all obligations of [Alberta], whether past, present or

future, relating to land entitlement as provided in paragraph 10 of

the Alberta Schedule to the Constitution Act, S.C. 1930, c 26 and

the Schedule to the Alberta Natural Resources Act, S.A. 1930, C.

21 [quote from s. 10 omitted] ...with regard to [SLCN] and

including any present or future claims based on membership in the

Band of present or past members of the Band or their decendants;

(c) any and all claims, whether known or unknown, including

those claims made and deliberations sought within Alberta Court

of Queen’s Bench Action No. 8703-14909, and any claim for loss,

devaluation, expense, loss of use or revenue, or deprivation, past,

present or future, relating to land and mines and minerals, the

ownership of the beds and shores of Surgeon Lake, and all causes

of action or demands arising from such claims, of any kind or

nature whatsoever.

[498] Moreover, Alberta took a slightly different approach than Canada to its application to

strike and the SLCN written argument also changed its approach in defending against the Alberta

application from the one it presented in response to Canada’s applications. Further, SLCN

attempted to modify its approach even more in oral argument. I will consider these arguments,

in order to fully address the issues, and to ensure that any claim that might be unique to Alberta

is dealt with.

Page: 97

No reasonable claim: r 3.68(2)(b)

B.

[499] I dismissed Canada’s application to strike under this rule, because its application relied

on the evidence in the Release, even though no evidence is admissible under this sub-rule.

Further, under this rule, the Court is to assume the facts pleaded to be true. SLCN pleaded fraud

and misrepresentation against Canada. However, Alberta’s application differs in a number of

respects. First, the Statement of Claim does not allege that Alberta was involved in the

misrepresentation and fraud alleged against Canada. Further, unlike Canada’s argument which

relied on the Release, Alberta argues that the pleadings against it allege Alberta breached its

fiduciary obligations to provide sufficient Treaty lands to SLCN, but that nothing in the

pleadings can give rise to such a cause of action.

[500] Acknowledging that no evidence can be lead in an application to strike under r

3.68(2)(b), Alberta argues the SLCN’s allegations are based on a claim that Alberta has a

fiduciary duty to provide lands, but has pleaded no material facts giving rise to such a fiduciary

duty, and therefore there is no reasonable prospect that its claims can succeed.

[501] Alberta notes that the Supreme Court of Canada has indicated that in the aboriginal

context, fiduciary duties arise in two ways:

 When the Crown assumes discretionary control over specific aboriginal interests;

or

 As the result of an undertaking, if:

a.

The alleged fiduciary undertakes to act in the best interests of the alleged

beneficiaries;

b.

There is a defined class of persons vulnerable to the fiduciary’s control;

and

c.

The alleged fiduciary’s exercise of discretion or control can adversely

affect the beneficiaries’ legal or substantial practical interest.

Manitoba Metis Federation Inc v Canada (Attorney General),

2013 SCC 14, at paras 49-50;

Haida Nation v British Columbia (Minister of Forests), 2004

SCC 73, [2004] 3 SCR 511, at para 18;

Alberta v Elder Advocates of Alberta Society, 2011 SCC 24,

[2011] 2 SCR 261, at para 36.

[502] Alberta further argues, based on the authority of Manitoba Metis (at para 58) and

Nunavut Tunngavik Inc v Canada (Attorney General), 2014 NUCA 2, that treaties, agreements,

and legislation cannot give rise to fiduciary duties, because those duties are defined by the treaty,

agreement or legislation, and not the cognizable aboriginal interest. Thus, Alberta argues the

SLCN has not met the first criterion of a recognizable aboriginal interest..

[503] Further, Alberta argues that SLCN has not pleaded sufficient facts to establish that

Alberta undertook discretionary control, noting that the SLCN claims that Alberta failed to

provide sufficient land under Treaty 8, but the Supreme Court of Canada in Grassy Narrows

First Nation v. Ontario (Natural Resources), 2014 SCC 48 held that the level of government

liable for fulfilling the rights or obligations under a treaty is determined by the Constitutional

division of powers (at para 30). Section 91(24) of the Constitution Act, 1867 provides that

Page: 98

Canada has exclusive authority over “Indians and Lands reserved for the Indians”, and therefore

Canada controls the provision of reserve treaty lands, not Alberta.

[504] Under the NRTA, Alberta argues, it is obliged to provide provincial Crown lands to

Canada to enable Canada to fulfill its reserve land obligations. Its obligations are, therefore, to

Canada¹¹, not to the SLCN.

[505] In response, the SLCN argues that Alberta quoted Manitoba Metis out of context and that

the case holds that the existence of a fiduciary relationship depends upon the specific facts of the

case. It further argues that the existence of a fiduciary relationship can only be established at trial

“after looking at the particular facts and the totality of the evidence... including the oral promises

made by the Commissioners to the ancestors and of the members of the Plaintiff First Nation.”

[506] SLCN further argues that the promises in the Treaty Commissioners’ Report and the text

of Treaty 8 satisfy the criteria by establishing that Canada undertook to act in the best interests of

the SLCN and that obligation was transferred to Alberta by the NRTA transfer of lands subject to

any existing trusts and “any interest other than that of the Crown”.

[507] Slatter JA in Nunavut Tunngavik, commenting on the nature of the fiduciary relationship

between the Crown and aboriginal peoples, noted that while the relationship is fiduciary in

nature, with some unique features (para 31), not all aspects of the relationship will be governed

by fiduciary obligations, and summarized the principles set out by the Supreme Court of

Canada’s summary in Metis Manitoba (at para 32):

1.While overall the relationship between the Crown and aboriginal peoples can be

described as fiduciary in nature, not all aspects of that relationship are governed

by fiduciary obligations (at para 48). As stated in Wewaykum Indian Band v.

Canada, 2002 SCC 79 at para 81, [2002] 4 SCR 245, the fiduciary duty "does not

exist at large, but in relation to specific Indian interests".

2. There are two ways that a fiduciary duty can arise in the aboriginal context:

(a)Where the Crown administers lands or property in which

Aboriginal peoples have an interest, such a duty may arise if there

is

(i) a specific or cognizable Aboriginal interest, and

(ii) a Crown undertaking of discretionary control over that interest

(at para 51).

The interest must be a communal Aboriginal interest in land that is integral to the

nature of the community and their relationship to the land (at para 53). It must be

predicated on historic use and occupation, and cannot be established by treaty

or by legislation (at para 58).

(b) A more general fiduciary duty may arise (at para 60), if there

is:

(i) an undertaking by the alleged fiduciary to act in

the best interests of the alleged beneficiary, coupled

¹¹Canada has third partied Alberta and Alberta third partied Canada.

Page: 99

with a duty of loyalty that would involve

subordinating the interests of all others in favour of

the beneficiary (at para 61),

(ii) a defined person or class of persons vulnerable

to a fiduciary's control; and

(iii) a legal or substantial practical interest of the

beneficiary that stands to be adversely affected by

the alleged fiduciary's exercise of discretion or

control.

3. Where a fiduciary duty exists, the scope and content of that duty will vary

depending on the circumstances (at para 49).

(Emphasis added)

[508] SLCN argues that, under the first branch, it plead sufficient material facts supporting its

claim that Alberta has fiduciary duty, as follows:

 A specific Aboriginal interest in Treaty 8 lands, recognized by Canada;

 The NRTA gave Alberta discretionary control over Treaty 8 lands, obligating

Alberta to provide land in accordance with Treaty 8;

[509] Thus, both SLCN’s pleadings and argument assert that the Alberta’s fiduciary obligations

arise from Treaty 8 and the NRTA, but the Supreme Court has clearly stated that a fiduciary

obligation cannot be established by treaty or legislation; where there is a treaty or legislation,

their terms govern the relationship. I conclude that nothing in Treaty 8, the NRTA, or the 1990

TLE Agreement give rise to a fiduciary obligation owed by Alberta to SLCN to provide land for

reserves.

[510] SLCN argues that, when transferring lands to meet Treaty 8 entitlement, Alberta is

exercising discretion under s. 10 of the NRTA, but as argued by Alberta, that discretion is a

public law duty owed to Canada, not a private law duty, as discussed in Wewaykum Indian

Band v. Canada, 2002 SCC 79 at para 74 and 85. The Supreme Court in Wewaykum

commented that there are limits to the Crown’s fiduciary duties, noting that it “overshoots the

mark” to “invoke the "fiduciary duty" as a source of plenary Crown liability covering all aspects

of the Crown-Indian band relationship”(at par 81).

[511] Nor, on the second branch, can it be said that Alberta undertook to act in the best interests

of the SLCN in regards to land entitlement. SLCN, distinguishing Alberta’s reliance on paras 42-

45 in Elder Advocates, suggests that the undertaking requirement set out in Elder Advocates is

not applicable to Aboriginal peoples, quoting paras 37-41 from Elder Advocates. It argues that

paras 37-41 set out a distinction for Aboriginal peoples from the subsequent general principles.

[512] A short answer to this is that the Supreme Court, in Manitoba Metis, at para 61,

expressly included the Elder Advocates analysis, and in particular the requirement that the

alleged fiduciary undertook to act in the best interests of a beneficiary. Moreover, paras 27-54 in

Elder Advocates do not establish different fiduciary principles for Aboriginal/government

relationships and other groups/government relationships, but point out that, in general, the nature

of government responsibilities and functions means that governments will owe fiduciary

responsibilities only in very limited circumstances (at para 37):

Page: 100

The general principles discussed above apply not only to relationships between

private actors, but also to cases where it is alleged that the government owes a

fiduciary duty to an individual or class of individuals. However, the special

characteristics of governmental responsibilities and functions mean that

governments will owe fiduciary duties only in limited and special circumstances.

[513] It is clear that Alberta has fiduciary obligations towards Aboriginal peoples and the

SLCN, but those obligations arise from its assumption of obligations in regards to administering

ceded Treaty 8 lands, not from the obligation to transfer lands for reserves, which obligation

arises from Treaty 8 and the NRTA.

[514] I conclude that the claims against Alberta for breach of fiduciary duty for failing to

provide sufficient lands to meet the SLCN entitlement under Treaty 8 must be struck because

SLCN has pleaded no material facts giving rise to such a fiduciary duty, and therefore there is no

reasonable prospect that its claims can succeed. The relevant paragraphs to be struck are: para

48-54, 58, 60-63 and 69-76.

C.

Frivolous, irrelevant, improper, and abuse of process: r 3.68(c) and (d)

1. Claims against Alberta are statute barred

[515] In Canada’s application, it made the same arguments on limitation periods in both the

striking application and the summary dismissal application. I chose to consider its arguments on

an alternative basis within the summary judgment portion of the application, and I held that the

claims were all discoverable at the latest when the 1990 TLE Agreement was executed.

[516] I reiterate my earlier findings. The LAA applies, there is no express trust, there is no

evidence of fraud, either equitable or otherwise, and the relief sought is not true declaratory

relief. In my view, this is sufficient to deal with the claims against Alberta; they are all out of

time. Because this is an alternative basis for striking the claims, it is not necessary or cost and

time effective to address whether the LAA is unconstitutional.

[517] Alberta made additional submissions on whether this action was an abuse of process,

relying on the more technical doctrines of collateral attack, res judicata, issue estoppel, and

cause of action estoppel. While not necessary to the decision, I will consider those arguments, in

the alternative.

2.

Collateral attack

[518] Alberta argues that this action is a collateral attack on the Consent Order by Miller ACJ

in 1990. That Order confirmed the terms of the 1990 TLE Agreement that settled the 1987

Action.

[519] In response, SLCN argues that Treaty 8 has not yet been judicially interpreted to

determine what was meant by the commitment to provide land in perpetuity. It adds that the

1990 TLE Agreement only provided land based on the 1990 population, and if its interpretation

of Treaty 8 is accepted and it proves its population has increased, it would be entitled to

additional lands. Therefore this action cannot be a collateral attack because the Order only

related to entitlement to land as of 1990. It argues that it is not making the same claim as the

1987 action in a different way, but a claim to enforce an ongoing duty to provide lands.

[520] Further, SLCN argues it is seeking lands for claims not settled or dealt with in the 1990

TLE Agreement and the 1987 Action: Bill C-31 members, Bill C-3 members, land in severalty

Page: 101

claims, and the claims of members who were living off reserve and were not included in the

1990 TLE negotiations.

[521] In Canada’s application I held that that most of the claims in the Fourth Amended

Statement of Claim were raised in the 1987 Action and in the negotiations to address the SLCN’s

treaty land entitlement and settle the 1987 Action and that, therefore, those claims were an abuse

of process. The same analysis applies to whether this is a collateral attack.

[522] Collateral attack was described by the Supreme Court of Canada in R v Wilson, [1983] 2

SCR 594 as “an attack made in proceedings other than those whose specific object is the

reversal, variation, or nullification of the order or judgment” (at para 8). In Garland v

Consumers' Gas Co. 2004 SCC 25 the Court noted that the “prevents a party from undermining

previous orders issued by a court or administrative tribunal” (at para 8). The Court went on to

note that the doctrine is invoked where the party challenging a decision has done so in the wrong

forum. In other words rather than seeking the appropriate appeal or judicial review, it has opted

to try to reverse the order or decision indirectly.

[523] A situation similar to the facts here occurred in Ernst &Young Inc v Central Guaranty

Trust Co, 2006 ABCA 337 (a receivership proceeding). In Ernst and Young, an appeal was

launched of the case management justice’s order approving an agreement and settlement among

the parties recognizing a trust and directing payment of the trust funds. The appeal was then

abandoned as part of a further settlement. Later, the Receiver sued one of the parties to the

settlement alleging breach of trust, and the Defendant defended on the basis that that the trusts

were invalid. The Court of Appeal held that the defence was a collateral attack on the earlier case

management justice’s Order, since the Defendant had not pursued the appeal of the Order.

[524] Similarly here, the parties entered into a settlement of all the issues in the 1987 Action

and that settlement agreement, the 1990 TLE Agreement, addressed numerous further related

issues beyond those expressly pleaded in the 1987 claim. That Agreement was incorporated in

ACJ Miller’s Order. That Order was never appealed and the SLCN’s claims here are a collateral

attack on the substance of that Order:



This action alleges that SLCN is entitled to additional land under Treaty 8. The

1987 Action concerned the Treaty 8 negotiations and addressed land entitlement

shortfall;



This action alleges that Treaty 8 provided for continuing provision of land as

population increased, and that was the SLCN’s position in negotiations, leading to

the 1990 TLE Agreement;



Both the 1987 Action and this Action sought the transfer of Sturgeon Lake and

lakebed, using virtually identical language;

This action alleges that Alberta was obliged to provide lands based on current

population; this was at issue in the 1987 Action and in the settlement;

This action seeks land and compensation for new members as a result of Bill C-

31; this was raised as part of the negotiations leading to the 1990 TLE Agreement;

This action alleged that SLCN members were entitled to choose land in severalty;

these issues were raised and settled in the negotiations leading to the 1990 TLE

Agreement;

Page: 102



This Action alleges that the Release of Alberta is unenforceable because of lack

of informed consent, irregularities in the Referendum, and misrepresentations by

Canada. The evidence does not support any of these assertions.

[525] I conclude that SLCN’s claims related to land are a collateral attack on the Consent Order

in the 1987 Action.

3.

Relitigating decided issues

i. Issue estoppel

[526] Alberta also argues that the claims should be struck on the basis of res judicata. Res

judicata has two branches: issue estoppel and cause of action estoppel: Ernst & Young, at para

29:

Issue estoppel precludes the litigation of an issue previously

decided in another court proceeding, and cause of action estoppel

precludes the litigation of a cause of action which was adjudged in

a previous court proceeding.

[527] The Alberta Court of Appeal in Builders Energy Services Ltd v Paddock, 2009 ABCA

153 held that a consent judgment can only be challenged by an appeal of the judgment (para 9).

That case concerned whether the appellant could be held in contempt for breach of a consent

order, but the general principle still holds. A consent judgment “is a judgment of the court”. The

Saskatchewan Court of Appeal in Bank of Montreal v Ostapowich (Trustee of), (1996), 137

D.L.R. (4th) 441 (Sask. C.A.) held (at para 11):

A judgment is a final determination by the Court of the rights and

obligations of the parties. A consent judgment, even if it is in the

terms consented to by the parties, is not a decision of the parties

but is a decision of the Court.

[528] In Alberta (Administrator, Motor Vehicle Accident Claims Act) v Riendeau, 2012

ABQB 434 Thomas J held that res judicata applied to a matter that was settled and the subject

of a consent order (at para 21), citing Escobar v Yacey, 1998 ABQB 599; (See also Hardy

Lumber Co v Pickerel River Improvement Co, (1898), 29 SCR 211 (para 4); Drummond Estate

(Re), [1932] SCR 73 (at para 5); Rick v Brandsema, 2007 BCCA 217(at para 86), rev’d on other

grounds 2009 SCC 10). Further, Gill J in Lofthaug v Canadian Immigration Specialists Ltd,

2011 ABQB 609 noted (at para 36 and 46):

A consent judgment has the same force and effect of a judgment rendered after

trial... I conclude that a consent judgment, having the same force and effect as a

judgment after trial, can only be set aside in exceptional circumstances, including

fraud, deceit and mutual mistake.

[529] Gill J (at para 37) further relied on Ostapowich for the principle that a consent judgment

can only be attacked by an application to the Court to vary its judgment, by appeal or by separate

action to set aside the judgment on the basis it was obtained by fraud.

[530] Issue estoppel criteria, set out by the Supreme Court of Canada in Angle v Canada

(Minister of National Revenue - MNR), [1975] 2 SCR 248 (at para 4), are:

 Whether the same question has been decided;

Page: 103

 Whether the judicial decision said to create the estoppel is final;

 Whether the parties to the decision or their privies were the same in both proceedings;

and

 Even if all the criteria are met, the Court still has discretion to not apply issue

estoppel if it would be unfair and unjust in the circumstances: Sihota v Edmonton

(City), 2013 ABCA 43 (at para 8).

[531] Issue estoppel applies to all issues necessarily determined in the earlier adjudication:

Ernst & Young at para 31:

Issue estoppel only "extends to the material facts and the conclusions of law or of

mixed fact and law ... that were necessarily (even if not explicitly) determined in

the earlier proceedings": Danyluk v. Ainsworth Technologies Inc., [2001] 2

S.C.R. 460, 2001 SCC 44 at para 24 [Danyluk]. Put another way, the first

precondition for issue estoppel is only met when "[t]he question out of which the

estoppel is said to arise [was] 'fundamental to the decision arrived at' in the earlier

proceedings": Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at

255, citing Lord Shaw in Hoystead v. Federal Commissioner of Taxation, [1926]

A.C. 155.

a. Same issues

[532] Alberta argues that the decided questions under the Consent Order include those directly

raised by the 1987 Statement of Claim and the 1990 TLE Agreement: the claim for additional

land based on outstanding treaty entitlement and the claim to the Sturgeon Lake; the issues

fundamental to the Consent Order and which were necessarily determined by the consent order:

 the authority of the SLCN representatives to enter into the settlement,

 the validity of the approval of the settlement by the SLCN,

 the validity of the Referendum, and

 the authority of the SLCN representatives to provide the release.

[533] The Consent Order reads:

1. The terms and provisions of the Canada-Alberta Agreement, a copy of which

is attached hereto as Exhibit 1, and the terms and provisions of the Canada-

Sturgeon Lake Band Agreement, a copy of which is attached hereto as Exhibit 2,

are hereby confirmed as a settlement conclusively resolving all of the issues set

out within the provisions of the said Agreements and the Schedules annexed

thereto. 2. The within action is otherwise and hereby conclusively dismissed

without costs.

(Emphasis added)

[534] SLCN argues that the 1987 action did not claim land and did not seek damages, seeking

only injunctive relief to prevent Alberta from proceeding with the sale of leases and licenses.

Further, SLCN argues that to the extent that the parties disagree as to what issues were raised in

the 1990 TLE Agreement, there remains ambiguity that could only be resolved by trial.

[535] I agree with Alberta that the issues raised in the 1987 Action included the issue of land

entitlement, even if the Prayer for Relief did not seek the additional lands. The Claim expressly

pleaded that the SLCN had not received its full entitlement to lands for reserves and Canada had

Page: 104

acknowledged that not enough reserve land had been set aside. The Claim then states that

Alberta is required to set aside sufficient lands to enable Canada to fulfill its Treaty 8

obligations.

[536] Further, I do not accept, as already noted in Canada’s application, that a trial is necessary

to determine what issues were addressed in the 1990 TLE Agreement; those issues included the

Bill C-31 members, damages for loss of use, and future claims (ie Bill C-3 members).

[537] I also accept that the consent judgment necessarily determined the authority of the SLCN

representatives to enter into the settlement, the validity of the approval of the settlement by the

SLCN, the validity of the Referendum, and the authority of the SLCN representatives to provide

the release. The only way that these conclusions could be challenged would be, as set out in

Ostapowich, through an application to the Court to vary its judgment, by appeal, or by separate

action to set aside the judgment on the basis it was obtained by fraud.

[538] The Fourth Amended Statement of Claim alleged fraud and misrepresentation inducing

the SLCN to enter into the 1990 TLE Agreement. In Canada’s application to dismiss the claims,

I concluded that there was no evidence supporting those allegations. That is equally true here.

Further the allegations of fraud were directed at Canada, not Alberta.

[539] I conclude that these issues were necessarily determined by the Consent Order as against

Alberta; the SLCN has not sought to vary or appeal that Order, and the allegations of fraud are

not directed against Alberta.

b. Consent Order is a final decision

[540] This criteria is clearly met. The Consent Order was not appealed, and the Court did not

retain any jurisdiction to rehear, vary or rescind the decision. I reject SLCN’s assertion that the

Consent Order is distinct from the factual basis and relief sought here; the issues arise from the

same factual matrix.

c. Same parties

[541] The plaintiffs in both actions were the same. The 1987 Action was brought on behalf of

the Sturgeon Lake Band of Indians, and was settled by Chief and Council on behalf of the Band.

This action was brought on behalf of the Sturgeon Lake Indian Band, commenced by the Chief

and Council.

[542] SLCN, in its response, does not expressly dispute that the same parties were in both

actions.

[543] I note here that Canada was not a named Plaintiff in the 1987 Action, but the Statement

of Claim clearly names Canada as a party to Treaty 8, owing certain obligations, and had the

matter proceeded further rather than being settled, Canada would inevitably been added as a

necessary party.

[544] SLCN asserts that it has produced evidence that the individual SLCN members did not

have a proper opportunity to understand the 1990 TLE Agreement and that there were

irregularities in the Referendum. I gather from this argument, that there is some suggestion that

the lack of informed consent somehow offsets the issue.

[545] I have already rejected the argument that the Referendum was flawed. Further,

throughout these arguments and submissions, SLCN has insisted that the individual members did

Page: 105

not have informed consent. In that regard, I note that Canada paid for legal representation and

research for these negotiations, conducted its negotiations in the Band office on the Reserve so

that members could (and did) attend, provided written information about the Agreement and

copies of the Agreement, and took part in an information meeting for the members. The Chief

and Council had access to legal advice, paid for by Canada, and there is no basis for the

allegation that there was not informed consent.

[546] I will address in more detail these concerns when dealing with SLCN’s assertion that

there was a duty to consult.

d. Discretion of the Court

[547] The Alberta Court of Appeal in Calgary (City) v Alberta (Human Rights and

Citizenship Commission), 2011 ABCA 65 (at para 30) noted that where the prior decision is a

decision of a court, not an administrative tribunal, the discretion to not apply the doctrine is

narrow. The Supreme Court of Canada in Penner v Niagara (Regional Police Services Board),

2013 SCC 19, citing Danyluk v Ainsworth Technologies, 2001 SCC 44, set out a number of

factors that may be relevant to whether it is fair to apply issue estoppel, including factors

relevant when the previous decision is from an administrative tribunal, such as the language of

the enabling statute, the purpose of the legislation, the availability of an appeal, and expertise of

the decision maker. Clearly, these are not as relevant when the prior decision at issue is the

decision of a court.

[548] In Penner (at para 39), the Court drew from these factors the general principle that

unfairness may arise in two, potentially overlapping ways:

First, the unfairness of applying issue estoppel may arise from the unfairness of

the prior proceedings. Second, even where the prior proceedings were conducted

fairly and properly having regard to their purposes, it may nonetheless be unfair to

use the results of that process to preclude the subsequent claim.

[549] SLCN argues that there are no grounds for issue estoppel, and therefore nothing upon

which to exercise discretion. It does not address the question of fairness in the prior proceedings.

[550] I agree with Alberta that there was no unfairness in the prior proceedings. The SLCN

lawyers participated in the hearing before ACJ Miller; they were actively involved in the

negotiation and drafting of the 1990 TLE Agreement, and SLCN members participated in the

settlement activity.

[551] The question of whether it would be fair to use the results of the prior process is a “more

nuanced inquiry” (Penner, at para 42). Ensuring finality and expecting parties to raise all

appropriate issues in the same proceeding, without permitting “a second kick at the cat” are

values underlying the doctrine. However, where there are “significant difference between the

purposes, processes or stakes involved in the two proceedings” (para 42), it may be unfair to use

the results. The Court indicated that the discretion should not be routinely exercised, saying (at

42):

We recognize that there will always be differences in purpose, process and stakes

between administrative and court proceedings. In order to establish unfairness in

the second sense we have described, such differences must be significant and

assessed in light of this Court's recognition that finality is an objective that is also

important in the administrative law context.

Page: 106

[552] The Alberta Court of Appeal in Ernst & Young (at para 44), dealing with applying issue

estoppel to a prior court decision, referred to special circumstances that could bar the application

of issue estoppel: when the first decision was obtained by fraud, new evidence is discovered that

could not reasonably have been discovered before the first decision, public policy considerations,

and the denial of fundamental justice. None of these exist here.

[553] I conclude that issue estoppel applies to the claims against Alberta, as involving the same

parties, a final decision, and the same issues. I also conclude that it would not be unfair to apply

the doctrine here.

ii.

Cause of action estoppel

[554] Cause of action estoppel “precludes a person from bringing an action against another

when that same cause of action has been determined in earlier proceedings by a court of

competent jurisdiction” (Angle at para 4). Parties are expected to exercise due diligence and

bring forward matters that should properly have been brought in the proceeding. (Alberta

(Treasury Branches) v Opsteen, 2012 ABCA 153 (at para 17), citing 420093 BC Ltd v Bank of

Montreal, 1995 ABCA 328:

This branch of estoppel by res judicata applies not only to subsequent claims or

defences based on matters specifically decided in the prior action but also to every

claim or defence which could properly have been raised in those proceedings. In

Henderson v. Henderson (1843), 3 Hare 100, [1843-60] All E.R. Rep. 378,

Wigram V.C. said at pp. (All E.R.) 381-82:

The plea of res judicata applies, except in special case, not only to

points upon which the court was actually required by the parties to

form an opinion and pronounce a judgment, but to every point

which properly belonged to the subject of litigation and which

the parties, exercising reasonable diligence, might have

brought forward at the time.

(Emphasis in original)

[555] Cause of action estoppel applies here to the claims for additional reserve lands. The

claims that SLCN allege are different than those in the 1987 Action include the additional land

entitlement arising from the increased numbers of members from Bill C-31. However, SLCN

was aware of the additional numbers at the time of the Agreement; it was part of their concern in

advancing their claim. Even if I was to accept that the additional Bill C-31 members were not

taken into account in entering into the settlement, (and I do not), the claim should have been

made in the 1987 Action, since they knew about the claim. See their admission at para 75 of the

Fourth Amended Statement of Claim.

[556] The same is true of the claims for land in severalty and damages for loss of use. Lands in

severalty claims arise from the same facts and allegations that the SLCN land entitlement under

Treaty 8 had not been met. Land in severalty was raised in para 10 of the 1987 Statement of

Claim, and was the subject of negotiations leading to settlement. Further, the question of loss of

use for the time between adhesion to Treaty 8 and receipt of reserve land was a point that

properly belonged to the subject of the litigation.

Page: 107

Abuse of process

iii.

[557] It is unnecessary to deal with this issue here, as I have already concluded that this action

was an abuse of process. My analysis in Canada’s application is equally applicable to the

Alberta application.

D.

Duty to consult

[558] In its January 15, 2015 submissions, in response to Alberta’s submissions on its

Application to strike, SLCN asserted a breach of the duty to consult with respect to the

negotiations and execution of the 1990 TLE Agreement. This alleged breach is not pleaded

anywhere – neither the Fourth Amended Statement of Claim nor the proposed Fifth Amended

Statement of Claim. As such, this argument is dismissed.

[559] However, I will briefly address it, since the submissions on the point were over four

pages long and there was considerable oral argument on the point. The duty to consult arises in

specific circumstances, first set out in Haida Nation v British Columbia (Minister of Forests),

2004 SCC 73 and reiterated in Rio Tinto Alcan Inc v. Carrier Sekani Tribal Council, 2010 SCC

43 at para 31:

... the duty to consult arises "when the Crown has knowledge, real or constructive,

of the potential existence of the Aboriginal right or title and contemplates conduct

that might adversely affect it" (para 35). This test can be broken down into three

elements: (1) the Crown's knowledge, actual or constructive, of a potential

Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential

that the contemplated conduct may adversely affect an Aboriginal claim or right.

[560] Further, the Supreme Court noted (Rio Tinto at para 36):

... the required consultation increases with the strength of the prima facie

Aboriginal claim and the seriousness of the impact on the underlying Aboriginal

or treaty right.

[561] The duty to consult arises from “the need to preserve Aboriginal rights and claims

pending resolution. It confines the duty to consult to adverse impacts flowing from the specific

Crown proposal at issue”. Further, “[t]he duty does not require that an agreement be reached,

nor does it give Aboriginal peoples a veto: Taku River Tlingit First Nation v. British Columbia

(Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at paras 2 and 22; Haida

Nation, at para 48, Behn at para 29.

[562] In my view, it highly unlikely that an additional duty to consult arises when negotiating

an agreement between the government and a First Nation. It is not the type of situation in which

the Crown is aware of an aboriginal interest that might be adversely affected by its decisions, for

example a decision to issue a license or lease in treaty lands. This was an Agreement negotiated

with the First Nation themselves and therefore the concept that there is some added consultation

required with individual members of the Band does not fit easily within the duty to consult

framework. Further, the Supreme Court of Canada in Behn expressly rejected the claim that the

duty to consult was owed to individuals, holding that the duty exists to protect collective rights

of the First Nation and is owed to the collective (para 30).

Page: 108

[563] The duty to consult is grounded in the honour of the Crown. That same honour of the

Crown is required in any negotiations with Aboriginal people, and it effectively duplicates the

same principles to assert a duty to consult.

[564] In any event, even if there were a duty to consult regarding the 1990 TLE Agreement, I

reject SLCN’s assertion that neither Alberta nor Canada met this requirement. SLCN complains

that off-reserve members and persons who later became members under Bill C-31 or Bill C-3 did

not receive the information circular or a copy of the final Agreement. Further, SLCN says there

was low attendance at the one information meeting, the Referendum was flawed, and the

individual members were unable to obtain independent legal advice. As well, it argues there was

insufficient evidence of the numbers of new members that would come in under Bill C-31.

[565] Canada and Alberta representatives met with the SLCN representatives at the Band office

to negotiate the Agreement, and Band members were permitted to, and indeed did, attend and

participate. Canada paid for research and legal representation for the Band, and representatives

for Canada and Alberta attended the information meeting. I have already dismissed the

complaints about the Referendum. The duty to consult does not extend to ensuring that every

individual member is consulted. In my opinion, if there was a duty to consult, it was met.

VIII. SLCN’s application to amend the Statement of Claim

[566] The Plaintiffs applied to amend the Fourth Amended Statement of Claim, filing two

applications, the first, on May 17, 2012 and a further application to amend on September 5,

2014. The parties’ submission, and my Reasons, address the latter application and proposed

amendments.

A.

Proposed Amendments

[567] The proposed amendments seek to do the following:

 Paragraphs 59.1-59.6: Add new allegations regarding newly included SLCN

members under Bill C-3 and Bill C-31 amendments to the Indian Act, seeking

damages, compensation and declarations for those individuals and additional treaty

land and other compensation for the First Nation;

 Paragraphs 64-66: Add Alberta to the existing paragraphs alleging breach of

fiduciary duty and fraud in supporting the 1990 TLE Agreement and failure to

disclose material facts before entering into the 1990 TLE Agreement;

 Paragraphs 68.1-68.21: Add new allegations regarding the Referendum;

 Paragraph 69: Add a new allegation that the members of the SLCN did not receive

independent, or any legal, advice;

 Paragraph 69.1: Add a claim that there was a mistake or misunderstanding between

the parties in relation to the Releases;

 Paragraph 70: Add the allegation that there was “no meeting of the minds” in

regards to the 1990 TLE Agreement;

 Paragraph 70.1 and 70.2: Add allegations that s. 77(1) of the Indian Act was

unconstitutional and therefore the Referendum was unconstitutional;

 Paragraph 72.1: Add an allegation that the Plaintiffs did not have informed consent

because they were not advised of their right to land in severalty;

Page: 109

 Paragraph 75.1-75.11: Add claims that Canada acted unilaterally by passing the Bill

C-3 and Bill C-31 amendments to the Indian Act and thereby increased membership

in the SLCN, an increase in membership that the SLCN did not anticipate. Further the

increase in membership was not contemplated by the 1990 TLE Agreement and the

increase in numbers renders the Agreement void. Alternatively, the Release in the

1990 TLE Agreement was unconscionable because of an inequality of bargaining

power and the Release is unfair. Further and in the alternative, the 1990 TLE

Agreement purports to extinguish treaty rights and this is unconstitutional;

 Paragraphs 76.1-76.7: Add new allegations respecting land in severalty;

 Paragraphs 80.1-80.2: Add new allegations regarding annuity payments;

 Paragraphs 81.1-81.2: Ad new allegations regarding the entitlement of new

members under Bill C- 31 and Bill C-3 to annuity payments ;

 Extensive additions to the relief requested.

[568] Canada submits that the paragraphs dealing with annuities at paragraphs 80.1, 80.2, 81.1

and 81.2 do not deal with lands and are therefore not properly before the Court at this time. I

agree. The entire focus of the evidence and the multiple applications was about the claims related

to land. I therefore adjourn the application on these paragraphs to a future application.

[569] Similarly amendments adding paragraphs 59.1-59.4 deal with Bill C-3 and C-31

individuals seeking compensation and damages for lost economic benefits and annuity payments.

These are not claims in relation to land, and I adjourn the application to make these amendments

in a future application.

[570] Canada summarized the four main areas of proposed amendments as follows:



Amendments respecting the 1990 TLE Agreement;

Amendments respecting Bill C-31 and Bill C-3;

Amendments addressing the Band Referendum; and

Amendments respecting land in severalty.

[571] SLCN did not file or rely on any evidence in its application to amend. The Application

read:

Grounds for making this application:

...

8.

The matters sought to be added to the Statement of Claim have been

discovered on and have been within the contemplation of the Parties.

Material or evidence to be relied on:

9.

Amended Statement of Claim, attached, which was circulated to counsel

on April 11, 2012, with no objection, and subsequent changes circulated with the

service of this Amended Application.

(Emphasis in original)

[572] However, in its submissions on amending, counsel relied on the evidence led in the

striking and summary judgment applications. I will, therefore, apply that evidence, as and if

appropriate, in analyzing whether to allow the amendments.

Page: 110

The law on applications to amend

B.

[573] SLCN sets out the test for amending pleadings from Attila Dogan Construction and

Installation Co. Inc. v. AMEC Americas Ltd, 2014 ABCA 74, at para 25:

The parties agree that the case management judge correctly set out

the test for amending pleadings. Assuming some modest amount of

evidence is provided in support, any pleading may be amended, no

matter how careless or late the party seeking the amendment,

subject to four major exceptions:

(a) The amendment would cause serious prejudice to the opposing

party, not compensable in costs;

(b) The amendment requested is hopeless;

(c) Unless permitted by statute, the amendment seeks to add a new

party or new cause of action after the expiry of a limitation period;

or

(d) There is an element of bad faith associated with the failure to

plead the amendment in the first instance.

[574] SLCN further argues, relying on Atilla (at para 26) that the amount of evidence required

is low, that the amending party need not show that the amended pleading can be proven at trial,

nor “that it meets the test for summary judgment”. Citing Balm (at para 43) , it notes that the

classic rule is that “an amendment should be allowed, no matter how careless or late, unless there

is prejudice to the other side, and even that is no obstacle if it is repaired”.

[575] SLCN asserts that most of the proposed amendments are further particulars of already

pleaded causes of action, and so none of the exceptions in Attila apply: the Defendants will not

suffer serious prejudice and any prejudice can be compensated by costs; the amendments are not

hopeless as “sufficient evidence has been led; the amendments are not barred by any limitations,

and the delay in pleading was not in bad faith.

[576] The only new causes of action, SLCN submits, is in respect of new members under Bill

C-3, which have been brought within the limitation period.

[577] It is clear that proposed amendments require some evidence after pleadings close:

Mikisew Cree First Nation v Canada, 2002 ABCA 110 (Waquan) (at para 23). The Court

discussed the rationale of this principle (at para 23):

The scheme of the Rules therefore recognizes the importance of "closing

pleadings", as defined in R. 3.67. At some point the pleadings must be finalized

so as to define the issues in the litigation, and to provide fixed parameters within

which record production, questioning, settlement discussions, and the trial can

occur.

[578] The Court of Appeal further noted (at para 26):

Some amendments to pleadings are trivial, or merely clarify wording or correct

details. They probably do not require any evidence. But to amend a pleading to

Page: 111

allege new facts of substance requires some evidence, even if there is no question

of limitation periods.

[579] There is an evidentiary onus if the amendments add a new cause of action after expiry of

the limitation period (Waquan at para 82-83). Further, as Canada argues, the presumption that

the pleadings are true, applicable in the application to strike under r 3.68(2)(b), does not apply to

an application to amend.

[580] In my view, the case law cited by SLCN must be viewed within the lens of this particular

series of applications and case management of this file generally. The Court of Appeal in Attila

indicated that the discretionary decisions of case management justices, as this is, are entitled to

deference and will not be overruled unless there is an error in principle or the decision is

unreasonable. In keeping with the change in culture to simplify pre-trial procedures (Hryniak)

and r 1.2 of the Alberta Rules of Court emphasizing fairness, justice, timeliness and cost-

effectiveness, I conclude that it would not be appropriate to allow amendments to the Statement

of Claim that could be summarily dismissed on application. While the Court of Appeal in Attila

and Balm expressly said that test does not require the Applicant to meet the test for summary

judgment, in this case the summary judgment application has already been heard and decided. In

Balm, the Court of Appeal noted that requiring a stiffer test “would produce a motion for

summary judgment in favour of the defendant, without requiring that the defendant swear to

anything.” (at para 29). But here, the proposed amendments were considered within the summary

judgment application because SLCN’s submissions included them within their argument.

Further, the parties have sworn multiple affidavits and there is a strong evidentiary base for the

analysis.

C.

Analysis

[581] To the extent that these amendments fall within the already pleaded causes of action,

those causes of action have been either struck or dismissed. Where I struck and/or dismissed the

following claims, I refuse to allow the proposed amendments:

[582] Claims for additional reserve lands: Paragraphs 59.5-59.6 seek additional reserve lands

for to take into account the new members under Bills C-31 and C-3. I struck these claims on the

basis that the 1987 Action, the negotiations leading to the 1990 TLE Agreement, and the Consent

Order implementing the 1990 TLE Agreement dealt fully with the issue of land entitlement

under Treaty 8, and therefore the claims were an abuse of process and a collateral attack on the

Consent Order. In the alternative, I further summarily dismissed the claims for additional reserve

lands based on CPP and claims for additional land based on increased membership under Bill C-

31 and Bill C-3 on the grounds that the Releases included both claims based on population

increase and future claims. Alternatively, I would have dismissed the claims as out of time under

the LAA. While Bill C-3 claims are not out of time, I would still strike them as an abuse of

process since the Releases, incorporated into the Consent Order, included a release of future

claims. Leave to make these amendments is refused.

[583] Claims related to misrepresentation, fraud, and failure to disclose material facts

(adding Alberta): I dismissed the claims against Canada in paragraphs 64-66; there is no basis

for a similar claim against Alberta. Leave to make these amendments is refused.

[584] The Referendum: Paragraphs 68.1-68.21 are stated to be the particulars of the allegation

in paragraph 68. These particulars were argued in SLCN’s submissions in the striking and

Page: 112

summary dismissal applications. I dismissed the claim in paragraph 68¹²on the basis that there

was no evidence there was fraud, misrepresentation, deceit or lack of informed consent and

therefore the Releases were binding. I have some doubt that paragraphs 68.1-68.21 are actually

particulars of paragraph 68, as some of them appear to be new claims. In any event, I will take

SLCN at its word that these are the particulars of the allegations and deal with them as such

[585] Paragraphs 68.2-68.9 relate to irregularities in the running of the Referendum. I

addressed these concerns and dismissed the claim that the Regulations were breached,

concluding that the Regulations did not require 30 days’ notice for the Referendum since the

Regulations were relied on only as a guideline and the BCR specifically provided for 10 days’

notice. Further, I found that, based on the evidence, it was reasonable to infer that the Voters’

List was prepared and posted, and even if there was any irregularity, it was not sufficient to raise

a reasonable concern that the voters’ will was not reflected in the results. Moreover, I found that

this was the wrong forum to bring a complaint about the Referendum since the BCR expressly

provided that appeals were to be brought under the Regulations (within seven days) or it could

perhaps have been sought by judicial review.

[586] Paragraph 68.7 asserts that s. 39(1) of the Indian Act provides that no Treaty Land

Entitlement agreement is enforceable or binding unless it is approved by a Referendum. That is

not what s. 39(1) says. It says an absolute surrender is void unless it is assented to by a

majority of the electors of the band. Treaty Land Entitlement agreements, or at least this one, are

not an “absolute surrender of land”. Section 38 provides that a band may surrender to Her

Majesty all of the rights of the band and its members in all or part of a reserve. The 1990 TLE

Agreement did not surrender reserves.

[587] Paragraphs 68.10-68.12 assert that a majority of the SLCN membership did not vote in

favour of the 1990 TLE Agreement, suggesting that the Regulations require a majority of all

members, not just a majority of those who voted. There is no support in the Regulations for this

position as the Regulation only requires a majority of the membership when voting on surrender.

I also dismissed the claim that the members who were living off the Reserve had a constitutional

right to vote in the Referendum.

[588] Leave to make these amendments is refused.

[589] C-31 claims/Bill C-3 claims: Paragraphs 68.12-68.21 allege that Canada failed to

disclose the increased population the SLCN would be facing as a result of Bill C-31. The SLCN

submissions in the strike/dismissal applications addressed these claims. I found there was no

evidence that Canada failed to disclose such information and evidence that it shared the research

it had. Further, there was evidence that the SLCN was aware and concerned about the increase in

population, and in fact, paragraph 75 of the Fourth and Fifth Amended Statement of Claim both

make the following admission:

12

Paragraph 68 reads:

In accepting the 1990 Agreement by referendum, the Plaintiff did not provide informed consent

regarding extinguishment of land entitlement and their rights to the mines and minerals of vast

areas of land. Canada obtained the consent of the Plaintiffs through breach of trust, fiduciary

duty, equitable fraud, deceit or negligent misrepresentation, and without fully informing the

Plaintiffs of the impact of the 1990 Agreement on their rights.

Page: 113

Despite the fact that the Plaintiffs’ representatives impressed upon Canada and

Alberta during the negotiations for the 1990 Agreement that the Sturgeon Lake

Cree Nation’s membership had doubled in size since the passing of Bill C-31...

[590] Paragraphs 75.1—75.11 allege that the new SLCN members added as a result of Bills C-

31 and C-3 were not taken into account when the 1990 TLE Agreement was negotiated, and that

since Treaty 8 land entitlement is based on the number of members, the Agreement cannot be

enforced or interpreted. As noted in relation to paragraphs 59.5-59.6, I struck claims seeking

additional reserve lands under Treaty 8 as an abuse of process (at para 75.4). I also dismissed

those claims on the basis of the Release. I held there was no evidence that Canada withheld

information from SLCN as to the increase in membership (at para 75.2). I found that the

evidence supported the conclusion that the 1990 TLE Agreement contemplated the additional

members under Bill C-31, but was based on compromise of the claims, not on a specific formula

(at para 75.3). Further, the Releases applied to future claims and therefore claims arising from

Bill C-3 are also dismissed.

[591] Paragraph 75.6 and 75.7 allege that the 1990 TLE Agreement was negotiated based on an

understanding of how many members the SLCN had, and asserts that, in the absence of a

formula in the Agreement, the Agreement cannot be enforced or properly interpreted. In its

original submissions, SLCN argued that the absence of a formula meant that the Agreement was

only intended to address the shortfall as of the DOFS, so this is essentially a new version of the

claim.

[592] It is true that the increased population was of concern, but that does not render the

Agreement unenforceable, nor can the change in membership “fundamentally change the basis

for the 1990 Agreement”. Changes in circumstances after contracts are executed happen

frequently, but that does not change the enforceability of such a contract, unless the contract

expressly provides for such changes. There would be no certainty if subsequent changes in

circumstances could defeat the express terms of an agreement. I will not allow these amendments

as they are “hopeless”.

[593] Paragraph 75.8 asserts that the 1990 TLE Agreement was negotiated “on an

understanding of the population base of the Plaintiff First Nation”, and alleges that there was a

mistake of law or misunderstanding. This is also a new version of this claim. SLCN’s original

submissions argued unilateral mistake in relation to the Releases, still asserted more generally in

paragraphs 69.1 and 70.

[594] Evidence of the surrounding circumstances demonstrated that SLCN was concerned

about the population increase, but the Agreement itself does not reference or include a

population formula. In fact, the evidence was that the Agreement provided less land than there

would have been under a CP formula and more land than under DOFS. Nor do changes in the

law amount to mistake of law. Even if they did “... generally speaking mistake of law cannot be

relied on to rescind a contract” although equity may grant relief in the right circumstances

(Lassen v Calgary (City) (1985), 38 Alta LR (2d) 201 (CA) at para 11). I will not allow these

amendments.

[595] Paragraphs 75.10-75.11 are not properly pleadings, but essentially legal argument. I have

already rejected the assertion that the 1990 TLE Agreement extinguished treaty rights, and held

that the Agreement was, instead, an Agreement fulfilling the treaty rights. Indeed paragraph 61

Page: 114

states: “This Agreement was intended to resolve the outstanding issues as originally agreed to by

Treaty 8”; paragraph 62 -63 says:

... Canada ... agreed to provide lands to the Plaintiffs as specified by the terms of

Treaty 8. Alberta expressly or implicitly agreed to provide treaty lands to the

Plaintiffs. The 1990 Agreement was then entered into between Canada and the

Plaintiffs and between Canada and Alberta.

[596] The pleadings admit that the Agreement was to provide lands as specified in Treaty 8 and

that the parties entered into the Agreement. Its assertions that the Agreement did not go far

enough is simply an attempt to re-litigate a settled action.

[597] Leave to make these amendments is refused.

[598] Legal advice: The assertion at the end of paragraph 69 that the members of the SLCN

did not receive independent legal advice is wholly unsupported by any evidence, and there is

much evidence that the SLCN were represented by lawyers throughout the process. If the

allegation is that the individual members did not have access to legal advice, I conclude there is

no such requirement. Further, the 1990 TLE Agreement expressly provided:

11.

The Band acknowledges it has had independent legal advice on all aspects

of this Settlement Agreement.

[599] Leave to make these amendments is refused.

[600] Mistake: New paragraph 69.1 and amendments to paragraph 70 assert that there was no

meeting of the minds and there was mistake or misunderstanding when the Releases were

executed. I dismissed these claims because there was no evidence to support this assertion, and

much evidence that there was no mistake or misunderstanding.

[601] Leave to make these amendments is refused.

[602] Section 77.1 of the Indian Act: Paragraphs 70.1 and 70.2 allege that s. 77 of the Indian

Act was unconstitutional and therefore the Referendum was unconstitutional and invalid. I

dismissed this claim in relation to the enforceability of the Releases and the validity of the

Referendum, finding that Canada and the Chief and Council reasonably relied on the provisions

of the Indian Act to determine eligibility of voters in the Referendum, held 10 years before the

Supreme Court of Canada’s decision in Corbiere.

[603] Leave to make these amendments is refused.

[604] Land in severalty: Paragraph 72.1 alleges that the Plaintiffs did not have informed

consent because the nature of land in severalty was not explained to them. By this, I assume that

the SLCN is alleging that had the SLCN been advised as to what its counsel now alleges is the

law in relation to land in severalty, the result of the Referendum would have been different. But

SLCN claimed land in severalty in the negotiations for the 1990 TLE Agreement, and Canada

asserted that there was no further right to land in severalty after the date of first survey (I note

that Reserve No. 154A was selected in severalty at first survey – see the para 15 of the Statement

of Claim in the 1987 Action). SLCN did not pursue the issue to trial, but settled instead, and land

in severalty was expressly released in the Releases. The claim was struck as an abuse of process

and a collateral attack and summarily dismissed on the basis of the Release and alternatively, the

expiry of the limitation period.

Page: 115

[605] Paragraphs 76.1-76.7 make further allegations in relation to land in severalty. These

paragraphs provide further particulars as to how and why land in severalty was provided in

Treaty 8. These allegations are irrelevant, as these claims were struck as an abuse of process and

collateral attack because land in severalty claims were expressly released in the 1990 TLE

Agreement. The claims were also dismissed on the basis of the Release and, alternatively, as out

of time based on the LAA.

[606] Leave to make these amendments is refused.

D.

Conclusion

[607] I therefore dismiss the application to amend the Statement of Claim (except for the

amendments that do not deal with land). Most of the amendments were addressed within the

striking and dismissal applications, and were struck on the basis of abuse of process and

collateral attack, and alternatively summarily dismissed based on the Releases, and alternatively,

on the basis that they were out of time under the LAA.

[608] The claims related to Bill C-3 are arguably within time, but they too cannot proceed

because the Releases expressly included all future claims:

[The SLCN] ... hereby waives and [sic – any] rights or causes of action, claims or

demands of whatsoever nature or kind which it ... may hereafter have against

Her Majesty, Her servants or agents and successors by reason of or in any way

arising out of [the land entitlement provisions of] Treaty No. 8...

(Emphasis added)

IX.

Constitutional Notices

[609] As well as the Notice of Constitutional Question dealing with the LAA, SLCN filed a

Notice of Constitutional Question on October 17, 2014 challenging s. 77 of the Indian Act. It is

unnecessary to deal with this question, as it has already been answered by the Supreme Court of

Canada in 1999 in Corbiere. It is, as Canada notes, meaningless to challenge a provision that has

already been read out of the legislation. I have held that it would not be appropriate to apply the

decision in Corbiere to retroactively set aside the Referendum.

[610] The Notice of Constitutional Question also challenged the constitutional validity of s. 9

of Bill C-3, and s. 21 of Bill C-31. Unlike the constitutional challenge to the LAA which arose

from the Defendants’ defence to the claims, the challenges to the Indian Act amendments do not

arise from any of the pleadings. Neither the Fourth nor the Fifth Amended Statement of Claim

plead the constitutionality of these sections, except to the extent that the Prayer for Relief

paragraph (q.8) seeks declarations that the “no damages” clauses in Bill C-31 and Bill C-3

breach s. 7 of the Charter of Rights and Freedoms. In the absence of any pleading to support this

Prayer for Relief, the constitutional question need not be answered here.

X.

Conclusion

[611] I dismissed both Canada’s and SLCN’s applications to strike affidavits, but instead chose

to consider them, subject to weight and admissibility concerns related to the exhibits. I granted

Canada’s application to strike some paragraphs in the Fourth Amended Statement of Claim

related to land and, in the alternative, further granted summary dismissal of those paragraphs and

Page: 116

of additional paragraphs, again dealing with land. I granted Alberta’s application to strike most

of the paragraphs they challenged, in particular paragraphs 48-52, 53-54, 58, 60-63 and 69-74. I

refused SLCN’s application to amend the Fourth Amended Statement of Claim. Overall, Canada

and Alberta were mostly successful and would be entitled to costs. However the question of costs

raises some further issues.

XI.

Indemnity and Costs

[612] Canada’s application sought, at paragraphs 18 and 19, summary judgment for all legal

fees and expenses in defending all allegations respecting Treaty land, and asserted that SLCN

had no defence to the claim. In its November 7, 2014 submissions, rather than seeking summary

judgment, Canada sought a declaration that it could rely on the indemnity provisions in the 1990

TLE Agreement and in that case, Canada sought leave to return to the Court for advice and

direction respecting further and other remedies respecting the indemnity. SLCN argued that

Canada must commence an action to obtain this relief.

[613] Alberta seeks solicitor client costs.

[614] I give the parties leave to make written submissions on costs, to be filed by August 30,

2016.

Heard on the 19, 20, 21, 22, 23 of January; 6, 23, 24, 25, 26 of February; 2, 3, 4 of March; and

15, 16 of April, 2015.

Dated at the City of Edmonton, Alberta this 8^thday of July, 2016.

D.A. Sulyma

J.C.Q.B.A.

Page: 117

Appearances:

Jeffrey Rath and Mark Freeman

of Rath & Company

for the Plaintiffs

Sheila M. Read

of Department of Justice

for the Defendant, The Attorney General of Canada

Doug Titosky and Krista Epton

of Alberta Justice, Aboriginal Law

for the Defendant, Her Majesty the Queen in Right of Alberta

Page: 118

_______________________________________________________

Corrigendum of the Reasons for Judgment

of

The Honourable Madam Justice D.A. Sulyma

_______________________________________________________

We have changed the judgment by adding:

Para 13: added "58-63";

Para 14: added “paragraphs 58, 60-63 and"

Para 15: added "not"

Para 18: reversed Plaintiffs and Defendant;

Para 491: added "58-63"

Para 492: added "58, 60-63" (to fourth bullet);

Para 514: added "58, 60-63"

Para 556: change 1989 to 1987

Para 611: added “, in particular paragraphs 48-52, 53-54, 58, 60-63 and 69-74"

_______________________________________________________

Corrigendum of the Reasons for Judgment

of

The Honourable Madam Justice D.A. Sulyma

_______________________________________________________

Corrigendum issued on 11 January 2017, the judgment has been changed as set out below:

Correct the first Corrigendum to reflect Madam Justice D.A. Sulyma

Para 260(3): change “35-42” to “35-39”.

Para 489: change “35-42” to “35-39” in both places.

Page: 119

Appendix 1

Statement of Claim analysis

Paragraph

Defendant

Claim

Deals with land?

1-5

Non-contentious

facts-

6-7

8

Canada / Alberta

Bald assertion of

fiduciary relationship the later fiduciary

between plaintiff and claims

No, but is the basis of

defendants

Alberta seeks to strike

Alberta

Alberta is a necessary Alberta seeks to strike

party

9-13

Canada

Historical facts

Facts

14-17

Treaty 8 negotiations; Lands

Canada knew of

mineral wealth and

planned to deprive

First Nations of their

lands

18-19

20-21

Canada

Treaty 8 negotiations Way of life

Treaty 8 negotiations: Lands

Canada concealed

land value; oral

promises part of

Treaty 8

22

Canada

Treaty 8

interpretation

(a)-(c): way of life

(d)-(e): lands

23-25

26-31

Canada

Treaty 8 negotiations Way of life

Treaty 8 negotiations/ Lands and Account for

/breach of Treaty 8

and fiduciary

profits from minerals

obligations/ account

for profits

Page: 120

Claim

Paragraph

Defendant

Deals with Land?

32

Alberta

NRTA obligations –

Alberta has not

Account for profits

from minerals

accounted for profits

33

Canada

Treaty 8 negotiations- Lands/ Account for

no compensation for

conveying mineral

title in Treaty 8 areas

profits

34

Canada and Alberta

Canada

Treaty 8 negotiations Account for profits

and breach of

fiduciary duties

35-39

Treaty 8

Lands

interpretation and

breach – CPP or CP

40-43

44

Canada

Treaty 8 negotiations/ Lands

Canada and Alberta

Treaty 8

Lands

interpretation –

Sturgeon Lake and

lakebed

45

Canada

Treaty 8 negotiations Lands

breach of fiduciary

duties/ failure to

disclose information

46-47

48-51

Canada

Treaty 8 breach and

breach of fiduciary

duty re: muskeg

Lands

Canada and Alberta

NRTA provisions

Facts leading to the

claims in 52-54

Alberta seeks to strike

Lands

52-54

Alberta/ Canada

NRTA and breach of

Treaty 8 and fiduciary

obligations/ CPP

claims

Alberta seeks to strike

Page: 121

Claim

Treaty 8 breach

Paragraph

55-57

58

Defendant

Deals with Land?

Canada / Alberta

Way of life

Treaty 8 breach: C-31 Lands

Alberta seeks to strike

59

Canada

C-31 – seeks

compensation for

discrimination

Constitutional

Alberta seeks to strike

60-63

64

Canada

Survey missed

members/ TLE to

address shortfall

Lands

Alberta seeks to strike

Canada / Alberta

TLE negotiations;

breach of Treaty 8

and fiduciary breach

Lands

65

TLE negotiations;

Lands

Treaty 8 and fiduciary

breach by failure to

disclose; CPP claim

66

67

Canada

TLE negotiations;

fiduciary breach by

failure to disclose re:

mineral leases

Lands

TLE negotiations;

Treaty 8 and fiduciary

breach by failure to

disclose Canada

knew of lands value

68

Canada

TLE negotiations/

informed consent re:

Agreement’ breach of

trust, fiduciary duty,

equitable fraud,

deceit,

Lands

misrepresentation

Page: 122

Claim

Paragraph

Defendant

Deals with Land?

Lands

69

Canada / Alberta

TLE negotiations/

informed consent re

Release

Alberta seeks to strike

70-71

Canada / Alberta

TLE negotiations/

informed consent re

CPP

Lands

Alberta seeks to strike

72-74

75

Canada / Alberta

Treaty 8 breach

Lands

Alberta seeks to strike

Treaty 8 breach: C-31 Lands

Alberta seeks to strike

76

Treaty 8 breach: lands Lands

in severalty

Alberta seeks to strike

77-82

83

Canada

Alberta

Treaty 8 breach

Economic rights

Constitutional

Treaty 8 breach/

constitutional breach

84-86

Canada / Alberta

Treaty 8 breaches by

interference in way of

life

Way of life

Page: 123

Appendix 2

Affidavit of Sarah Lander

[615] Sarah Lander, a legal assistant with the Aboriginal Law Section of Alberta Justice and

Solicitor General, deposed that she was responsible for the administration of the Alberta Justice’s

file in this matter. Her affidavit attaches a number of exhibits in support of the application to

strike portions of the Fourth Amended Statement of Claim. These are:

 Exhibit A: A letter from the Plaintiffs’ lawyer enclosing the Reply to Request for

Information pursuant to s. 20 of the Proceedings Against the Crown Ac and

Demand for Particular, filed in this action;

 Exhibit B: Procedure Card from the Court of Queen’s Bench for Action No. 8703

14909 (the 1987 Action);

 Exhibit C: A copy of the Consent Order in the 1987 Action, produced by the

Plaintiffs in their Production;

 Exhibit D: A partial copy of Chief F.V. Goodswimmer affidavit filed in the 1987

Action, which was part of the Plaintiff’s production;

 Exhibit E: A copy of Chief F.V. Goodswimmer affidavit filed in the 1987 Action,

which was Exhibit AA of Ms. Sopiwynk’s Affidavit.

SLCN Affidavits

Moses #4

[616] Mr. Moses’ fourth affidavit deals with discoverability of the plaintiffs’ cause of action.

He deposes that Canada did not advise SLCN of applications for status and membership, but

only sent SLCN notices of new members after the member had joined. Canada represented that it

would provide funding to help First Nations deal with the financial pressures created by Bill C-

31.

[617] Mr. Moses further deposes that Chief Kappo advised him that he remembers a Canada

official telling him that Bill C-31 “would have minimal impact on SLCN membership numbers”

at about the time of the TLE negotiations, but not in relation to those negotiations. SLCN has no

record of who made this statement.

[618] Mr. Moses attached to his Affidavit as Exhibit A, an exhibit from Chief Goodswimmer’s

Affidavit in the 1987 Action: a letter from DIAND, dated May 28, 1987, to Mr. McMurtry,

SLCN’s counsel (this letter also appears as Exhibit R of Sopiwynk affidavit). This letter was in

response to SLCN’s fourth proposal (Ex Q of Sopiwynk Affidavit). Mr. Moses particularly

notes that compensation for land for Bill C-31 members was not part of the TLE process and

negotiations, and that the SLCN relied on that advice and “As a result, SLCN was not concerned

with the C-31 members, in so far as the TLE negotiations were concerned.”. The letter itself

states:

[619] The specific claims policy which applies to treaty land entitlement claims is not designed

to deal, [sic] with Self-Government, Bill C-31, the Treaty 8 renovation process and the other

programs and services you mention. Each of these must be dealt with as separate matters under

their own policy structures.

Page: 124

[620] Mr. Moses swears that SLCN believes that government funding will not keep pace with

population; they have waiting lists for housing and in his personal experience a large portion f

the increased population is attributable to Bill C-31. Further, there are no paved roads to the

Band Office, the hockey arena is not complete because of funding needs, and the reserve is

lacking many of the conveniences and necessities that non-reserve communities of similar size

have.

[621] According to Mr. Moses, SLCN only discovered that Canada withheld information about

Bill C-31 members during preparation for this Summary Judgment application. He asserts that

the documents produced in Moses #2 and the cross-examination of Mr. Kennedy show that

Canada withheld this information, and that based on his counsel’s advice, he believes that

Canada withheld this information because it initially believed, like the SLCN, that the 1990 TLE

agreement did not settle SLCN’s claim for land for future members.

[622] Mr. Moses further asserts that based on the information in Moses #1 and #2, Canada

withheld information that the Band population was going to increase significantly. He believes

that since the TLE negotiations were based on population, the SLCN negotiating position would

have been different if it had known there would be significant changes in population.

[623] Mr. Moses also alleges in this affidavit that Canada misrepresented its policy towards

land entitlement claims. Relying on Exhibits F and G in Moses #2 (Discussion paper and

Ministerial Briefing that were part of Canada’s production), Mr. Moses argues that Canada did

not have a firm policy on quantum of land, but Mr. Kennedy, on behalf of Canada, writes SLCN

saying that Canada has a policy limiting TLE to DOFS (referring to Exhibit B in Moses #1; also

Ex II of Sopiwynk Affidavit). He deposes that SLCN had no information that Canada had

withheld its actual policy position until it received the documents produced in this litigation.

[624] Mr. Moses swears that he believes, based on his review of the records, that a voters’ list

was not posted before the Referendum. He asserts that Canada was responsible for running the

Referendum, but SLCN only became aware of this from the records produced and questioning of

Mr. Kennedy. He further argues that SLCN members did not have a proper opportunity to

understand the TLE or to vote on the TLE, or to give informed consent because the voter’s list

was not posted and there was only 10 days’ notice provided.

[625] Mr. Moses then goes on to argue that the releases in the 1990 TLE Agreement are

difficult to find in the Agreements and difficult to understand. Members of the SLCN did not

receive legal advice about the meaning of the TLE. In his opinion, and the opinion of the SLCN,

the Notice of the Referendum and the TLE Agreement did not give sufficient information about

the TLE Release to enable band members to make an informed decision.

[626] Mr. Moses then asserts that Canada had not fulfilled its obligations under the 1990 TLE

Agreement because it had not reverted certain lands purchased with funds from the Agreement

into Reserves, leaving the lands subject to property taxes.

[627] Mr. Moses says, based on advice from counsel, that Canada has refused two admissions,

leading to additional expenses and delay. These admissions are:

[628] The law of limitations in Ontario as to breaches of fiduciary duty;

[629] Admissions of the documents in the Metcs’ Affidavit, which are historical records within

Canada’s possession or form part of Canada’s national archives.

Page: 125

[630] Mr. Moses says, based on advice from counsel, that the Defendants have delayed the

action causing SLCN additional costs, including:

 Alberta brought its application two months before Canada’s Summary Judgment

application was to be heard;

 Alberta filed two affidavits two months before the hearing, and those affidavits

purport to interpret documents;

 Alberta filed a Notice to Admit Facts on the eve of the Hearing;

 Both Defendants brought applications to strike pleadings in a related action

causing the Court and the parties to expend two days of hearings;

 Canada delayed in filing its affidavits. Its application was filed in October 2012,

the first affidavit was filed July 10, 2013, the second filed March 17, 2014, third

filed October 15, 2014;

 Canada refused to allow SLCN to cross-examine Mr. Kennedy on his March 2014

affidavit, necessitating SLCN bringing an application to compel.

Affidavits of Paul Emerson Reid

[631] Paul Emerson Reid 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.

Reid #2

[632] Mr. Reid attaches a series of correspondence as Exhibits A, B, and C, between Rath &

Company and the Defendants. In Exhibit A, Rath & Company offers Robert Metcs for

questioning on his affidavit. In Exhibit B, Rath & Company offers Lawrence Courtoreille and

Archie Waquan for questioning on their affidavits. Exhibit C consists of a response to a letter

from counsel for Canada, the letter from counsel for Canada, and a letter from counsel for

Alberta. Mr. Reid deposes, based on advice of counsel, that the Defendants were told in court of

an available date to question Mr. Sunshine on his affidavit, and that Ms. Kappo, Mr. Lawrence

Soto, Mr. Ron Sotto, ad Ms. Sunshine would be available to be questioned on their affidavit.

Affidavit of Robert Metcs, Alex Van Kralingen, and Tara Smock

[633] These affidavits purport to be expert evidence.

[634] Robert Metcs filed an Affidavit consisting of two volumes on December 17, 2014. Alex

Van Kralingen, an Ontario lawyer, swore an affidavit, filed on January 8, 2015, in regards to

Ontario limitation periods. Tara Smock swore an affidavit to which is attached a report entitled

“Treaty Eight Summary of Documents” dealing with historical documents, filed on January 12,

2015.

Affidavit of Lawrence Courtoreille

[635] Lawrence Courtoreille swore an affidavit, filed on January 16, 2015. Mr. Courtoreille

was Chief of Mikisew Cree First Nation (MCFN) during negotiation with Canada and Alberta

which resulted in the conclusion of MCFN’s first Treaty Land Entitlement Settlement in 1986

(the 1986 TLE). He swears that the 1986 TLE was based on MCFN’s 1982 population and was

intended to specifically exclude future Bill C-31 members.

Page: 126

[636] Mr. Courtoreille says that he was the Chief Executive Officer for MCFN before the 10^th

anniversary of the 1986 TLE and he instructed MCFN’s lawyers to bring an action against

Canada for its failure to provide compensation or land to Bill C-31 members. Thirteen years of

litigation resulted in a Settlement Agreement and Release which provided an extra $30 million in

compensation and a promise that MCFN could request additional lands for conversion into

Reserves in settlement of outstanding claims. This settlement went to a vote of the MCFN

membership.

[637] Mr. Courtoreille asserts that the Settlement Agreement specifically included a release of

all provisions of the Statements of Claim and all amendments. The MCFN membership voted on

the settlement deal in a referendum, but according to Mr. Courtoreille, they did so without

receiving a complete copy of the Release. It was incomplete, he says, because it did not have

copies of the Statements of Claim attached, and neither Canada nor Alberta provided these to the

MCFN before the referendum. Further, neither Canada nor Alberta provided every voting

member who might be entitled to land in severalty with copies of the complete Release.

[638] Mr. Courtoreille deposes that as a former Vice President of the Indian Association of

Alberta as well as former Vice Chief of the Assembly of First Nations, he has worked with

claims and Treaty 8 First Nations much of his life. He swears that he is friends with members of

the SLCN, including Elder Dan McLean, and he says that as a result, he has a good

understanding of what SLCN members could have or would have understood from the Alberta

and Canada release documents. He swears that he does not believe that, if members of the

SLCN had been provided with copies of the Release at issue here, they would have understood

they were agreeing to extinguish all rights and claims on behalf of all Bill C-31 or Bill C-3

SLCN members.

[639] Mr. Courtoreille also attaches as Exhibit C true copies of the 2006 TLE Agreement

between Peguis First Nation and Canada and Manitoba, and he argues that:

As the Release in this Treaty Entitlement Agreement shows, it is

normal practice for Canada to exclude current population claims

from TLE settlements. It is also clear that when Canada wishes to

be specific regarding the terms of release, it is capable of doing

so.”

Affidavits of Carlene Scott

Scott #1

[640] Carlene Scott, a legal assistant employed by Rath & Company, filed three affidavits as

follows:

4. Carlene Scott Affidavit (Scott #1), filed January 28, 2015;

5. Carlene Scott Affidavit (Scott #2), filed February 5, 2015;

6. Carlene Scott Affidavit (Scott #3), filed March 5, 2015.

[641] Scott #1 attaches Exhibits A, B and C to the affidavit. Exhibit A is a letter from Susan

Weston, Manager Indian Moneys, Estates and Treaty Annuities, DIAND addressed to Chief and

Council of SLCN. The letter appears to be a response to SLCN’s request via BCR for annuity

paylists from 1899 to present. Exhibit B s a letter sent by Rath & Company lawyer, Mark C.

Freeman, to Counsel for Canada complaining that Canada has not obtained the paylist records in

a timely fashion. Exhibit C is counsel for Canada’s response that the request is unreasonable,

Page: 127

that SLCN’s discovery was completed, and that Canada has produced many paylists. She

suggests that those documents be reviewed to determine if there are any deficiencies. She also

notes Canada’s objection to SLCN’s Supplemental Affidavit of Records.

Scott #2

[642] Scott #2 attaches the following exhibits:

1. Exhibit A: My Reasons for Judgment, 2005 ABQB 479;

2. Exhibit B: My order entered February 14, 2006;

3. Exhibit C: An Application by SLCN fled March 17, 2014 seeking an Order

directing Canada to answer certain interrogatories;

4. Exhibit D: Transcript of the Hearing before me on May 29, 2014 directing Canada

to answer which First Nations have entered into shortfall Treaty land agreements

with Canada since 1980 and to provide copies;

5. Exhibit E: Letter from Canada attaching three TLE Agreements with Black Lake,

Fond du Lac and Whitefish Lake;

6. Exhibit F: letter from Rath & Company arguing that Canada’s response was

insufficient;

7. Exhibit G: letter from Canada asserting that its response complied with my Order;

8. Exhibit H: Is a letter from JFK Law Corporation, counsel for Mikisew Cree First

Nation to Rath & Company and to Shaun Mellen of Justice Canada in regards to

Miskisew’s TLE Agreement;

9. Exhibits I and J: letters from Rath & Company to JFK Law Corporation and

Justice Canada seeking the materials referenced in Exhibit H;

10. Exhibits K and L: email correspondence from JFK Law Corporation to Justice

Canada and to Rath & Company, suggesting that it is not prepared to provide the

requested materials and, as a non-party, is not going to get involved in the dispute;

11. Exhibit M: A letter from Rath & Company setting out the basis for why it seeks

the materials from JFK Law Corporation.

Scott #3

[643] Ms. Scott’s third affidavit contained no exhibits, but referenced her review of Canada’s

Affidavit of Records (Schedule A of which consisted of five binders), looking for references to

documents that identify Sturgeon Lake future members.

Affidavits of Arlene Sunshine, Ron Soto, Lawrence Soto, and Margaret

Kappo

[644] Each of these persons swore an affidavit and all four were filed on February 20, 2015.

The affidavits are virtually identical, differing only as to the affiant and the jurat. The deponents

swear the following:

1. He or she is a member of the SLCN;

2. He or she is not speaking as a representative of SLCN and they do not believe

their answers to be binding on SLCN;

3. Each attended a meeting with a SLCN lawyer, during which they discussed the

June 1989 Referendum vote;

4. Each was a member of SLCN in June 1989 and lived on the SLCN reserve;

Page: 128

5. Each person had “their own memory of things”, but there were some memories in

common’

6. At the time of the vote, there was very little information available about the

Agreement. Each said they learned about the Agreement by word of mouth and

none of them recalled any documents explaining the Agreement being delivered

to them or their home;

7. Each believed that new members who wanted to join SLCN through Bill C-31

were not part of the Agreement and land was not provided to SLCN for these new

members;

8. No one advised any of them that they could take their own land or that SLCN

would receive no further land after the Agreement.

Affidavit of Kimberly E. Dean

[645] Kimberly E. Dean swore an affidavit, filed on March 4, 2015. Ms. Dean is a legal

assistant employed by Rath & Company. In her affidavit, she deposes that she reviewed

Schedule A of Canada’s Affidavit of Records looking for paylists. Schedule A listed paylists

from 1900-1955 and 1965. She was unable to locate paylists for 1966-2004. Further, she was

unable to verify the Schedule A paylists because the production numbers in Schedule A do not

match the document numbers on the electronic production. She then lists those 22 documents

that she was unable to verify.

Affidavit of David Khan

[646] David Khan swore an affidavit in support of an Application to Amend Statement of

Claim, filed April 16, 2015.

Affidavit of Archie Waquan

[647] Mr. Waquan, a member of the Mikisew Cree First Nation (MCFN) swore an affidavit

stating that he was the named plaintiff in Court of Queen’s Bench Action # 9601 18174, MCFN

v Canada, and that he was Chief at the time the action was commenced. He attaches to his

affidavit a copy of the Lawrence Courtoreille Affidavit. He also purports to give his consent to

the disclosure of a purported settlement agreement in that action. He further swears that he was

never consulted or consented to the dismissal of that action.