Goodswimmer v Canada (Attorney General), 2016 ABQB 384

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. Table of Contents I. Introduction . 6 II. Executive

summary . 6 III. SLCN’s Application to Amend . 9 IV. Materials Filed . 10 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 #1 23 Evidence of Mr. Sunshine . 23 D. Admissibility and weight of the affidavits. 26 1. Law .. 26 i. Rules of Court 26 ii. Purpose of r 13.18(3) 28 iii. Affidavits relied on by Organizations . 28 iv.

An ‘authorized person’ 30 2. Analysis . 31 i. SLCN applications . 33 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

ii. Canada’s applications . 37 a. Moses #1 . 38 b. Moses #2 . 39 c. Moses #3 . 41 d. Moses #4 . 41 e. Reid #1 . 42 E. Conclusion on striking affidavits . 42 V. Facts . 42 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 ii. Mr. Kennedy said Canada would not require a release . 61 iii. Loss of Use Damages not mentioned in Release . 62 iv. Bill C-3 . 63 v. Mr. Metcs’ expert evidence . 63 vi. SLCN doesn’t think ongoing obligations are included in the Release . 63 vii. Canada concealed its research on the effect of Bill C-31 . 66 3. The Release . 67 i. Interpretive approach . 67 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 iii. Is the Release enforceable . 75 iv. Was there fraud or misrepresentation? Was there informed consent? . 79 v. Was the Referendum flawed? . 80 vi. Conclusion on the Release . 84

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 iv. Discovery of the causes of action . 89 vi. Declaratory relief is not subject to limitation periods . 91 vii. Limitations legislation are unconstitutional 93 viii. Conclusion . 94 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 ii. Cause of action estoppel 106 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. Constitutional Notices . 115 X. Conclusion . 115 XI.

Indemnity and Costs . 116 Appendix 1 . 119 Appendix 2 . 123 Affidavit of Sarah Lander 123 SLCN Affidavits . 123 Moses #4 . 123 Affidavits of Paul Emerson Reid . 125

Reid #2 125 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 I. Introduction [ 1 ] The Sturgeon Lake Indian Band, otherwise known as the Sturgeon Lake Cree Nation (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 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 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 48-51plead the facts that SLCN claims support the allegations in paragraphs 52-54. I order all these paragraphs struck because legislation andtreaties cannot give rise to fiduciary obligations. Further, these paragraphs constitute a collateral attack on the Consent Order of MillerACJ and also run afoul of the res judicata doctrine.

I also strike paragraphs 58, 60-63 and paragraphs 69-76, as they too constitute acollateral 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 theapplication 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

summarydismissal 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 argumentsupon 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 becausethe evidence for all applications will essentially be the same and because the tests are similar, although not identical. In an application tostrike the test includes whether the claim is an abuse of process (see for example: Behn, or there is no reasonable cause of action see forexample: R v Imperial Tobacco Canada Ltd, 2011 SCC 42). In a

summary dismissal, the Defendant have an evidentiary burden toprove 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 meritto 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 ofaction or if the amendment would be vexatious, embarrassing or an abuse of process (both akin to an application to strike).

Further, theapplication 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. Inother 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 CoInc v AMEC Americas Ltd, 2014 ABCA 74 (at para 26) discussed further in these Reasons at para 573; see also Mikisew Cree FirstNation v Canada, 2000 ABQB 899 (at para 7); Rago Millwork & Supplies Co Ltd v D Woodhouse Construction Ltd (1981), (AB KB), 28 AR 499 (QB) (para 16); WR v Alberta (Attorney General, 2004 ABQB 979 (at para 10); Balm v 3512061Canada 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 muchthe same reasons. [21] I will, however, also expressly deal with the application to Amend the Statement of Claim to ensure that all the argumentsraised by the parties are addressed. 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 ofthree 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: 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; • 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 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 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. Exhibit Sean Kennedy's Cross-examination on Affidavit Level of recollection A saw it B none C none D none E did not see it at the time, but saw it later W none X I recall versions of this; I would have seen it at the time

Y T his 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; h e 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) QQ none NNN likely saw them, but does not remember (pp 42, ll 7-15) OOO 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 not involved in drafting, but aware of various versions at the time ZZZ I recall the content; I may have seen a version that was not signed AAAA none LLLL no recollection seeing the document as a whole; maybe parts of it MMMM saw it NNNN saw it OOOO saw it PPPP none QQQQ (not mentioned, would be page 46 or 47) RRRR I don't know, though I recall seeing several newspaper articles SSSS none TTTT none UUUU none XXXX vague YYYY none ZZZZ saw it AAAAA none BBBBB none FFFFF none IIIII no recollection, though I recall the context of it JJJJJ I recall the Order in Council, but not the covering letter KKKKK none LLLLL not sure, thought I recall the subject matter MMMMM none NNNNN none OOOOO none QQQQQ none RRRRR none SSSSS none TTTTT none UUUUU none VVVVV none WWWWW none XXXXX none YYYYY none ZZZZZ none Exhibit Sean Kennedy's Cross-examination on Affidavit Level of recollection 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 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; 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. 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. [ 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 305 # of electors who voted 233 # of electors voting in favour 214 # of electors voting against 17 [ 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 (

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 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 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 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 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: (

a) that all or any part of a claim or defence be struck out;

(2) The conditions for the order are one or more of the following: ... (

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. [ 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 thedescendants of the Papaschase Indian Band. In that decision, Slatter J (as he then was) identified the purpose of the previous version ofthis 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 theapplicant 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 affiantswith 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 atpara 25: This is, of course, a sensible rule: litigants should not be vulnerable to having their rights finally determined by evidence that would notbe admissible at trial.

Relying on inadmissible evidence is having no evidence at all; a litigant's rights cannot be finally determinedwithout evidence. [102] Veit J’s description of the purpose of the Rule differs somewhat from that of Slatter J. Her emphasis is on the generaladmissibility 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), (AB KB), 10 Alta LR (2d) 92 (AB Dist Ct) for thesimple proposition that r 13.18(3) requires an applicant to rely on affidavits based on personal knowledge.

However, that case did notinvolve 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 organizationsthere is often no one person who has sufficient knowledge of all of the facts to swear an affidavit in support of

summary judgment basedon personal knowledge. In some cases a multitude of affidavits from different representatives of the organization would be required. Inother cases even this would not suffice, because it is necessary to extract the required information from the business records of theorganization. Read literally, Rule 305 would prevent the use for

summary judgment of information contained in records kept in theordinary course of business, but such evidence is allowed on

summary judgment applications: J.H. Ashdown Hardware Co. v. Singer(1951), (AB CA), 3 W.W.R. (N.S.) 145 (Alta. C.A.), at pp. 148-9, affirmed on other grounds (SCC),[1953] 1 S.C.R. 252 (S.C.C.); Bank of Montreal v. Beacon Industrial Development Corp. (1986), (AB KB), 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 organizationand provides evidence on that basis: Alberta (Treasury Branches) v Leahy, 1999 ABQB 185 at paras 50-52.

In Leahy, Mason Jexplained, at para 56: To the extent that activities of a corporation are recorded in reliable documents, an authorized person may obtain the requisitepersonal 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, whereGraesser J noted the change in wording between the old Rule and r 13.18(3), and indicated that it appeared “the requirement of personalknowledge 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 bemade by an officer, servant or agent of the corporation having knowledge of the facts required to be deposed to, who shall state thereinthat he has that knowledge.

(3) On interlocutory motions affidavits containing statements as to the belief of the deponent with the source and grounds thereofmay be admitted. [108] SLCN argued that, given the change in wording and Graesser J’s comments, older case law was no longer reliable ininterpreting r 13.18(3). However, the case law has been clear for some time that corporate representatives may gain personal knowledgefor the purpose of r 13.18(3) by relying on their review of business records held by the organization.

In Attila Dogan Construction andInstallation Co v AMEC Americas Ltd, 2015 ABQB 120, Wittmann CJ considered what records affiants could review, other thanbusiness 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 notedthe settled law allowing corporate representatives to rely on business records paralleled the business records exception to the hearsay rule(at para 73). He 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. [ 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 arg

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