ROSS RIVER DENA COUNCIL Plaintiff AND: THE ATTORNEY GENERAL OF CANADA Defendant AND: BETWEEN: ROSS RIVER DENA COUNCIL Plaintiff AND: THE ATTORNEY GENERAL OF CANADA on behalf of v. as the representative for, 2011 YKSC 86

SUPREME COURT OF YUKON Citation: Ross River Dena Council v. Attorney General of Canada, 2011 YKSC 86 Date: 20111114 Docket S.C. No.: 05-A0043 06-A0092 Registry: Whitehorse BETWEEN: ROSS RIVER DENA COUNCIL Plaintiff AND: THE ATTORNEY GENERAL OF CANADA Defendant AND: BETWEEN: ROSS RIVER DENA COUNCIL Plaintiff AND: THE ATTORNEY GENERAL OF CANADA on behalf of and as the representative for Her Majesty the Queen in right of Canada Defendant Before: Mr. Justice L.F.

Gower Appearances: Stephen Walsh Suzanne Duncan Counsel for the Plaintiff Counsel for the Defendant REASONS FOR JUDGMENT DELIVERED FROM THE BENCH (Ruling on amendment to Statement of Defence) [ 1 ] GOWER J. (Oral): This is an application by the Attorney General of Canada to

amend its statement of defence in the 2006 action, specifically at para. 22. The amendments are set out in detail at para. 6 of Canada’soutline on this application and I do not think there is any need to read them into the record. There is, however, one change to theamendment in para. 22(

b) of the proposed amended fresh amended statement of defence, and that is that it will now read: “he admits that the provisions of the Rupert’s Land and North-Western Territory Order, including the terms and conditions referred toby the plaintiffs, are part of the Constitution of Canada, and, as such, their constitutional effect, if any, is subject to being interpreted andapplied by this Court;” [2] One of the leading cases on the principles to be considered in such an amendment is Langret Investments S.A. v. McDonnell, (BC CA), [1996] B.C.J. No. 550, a decision of the British Columbia Court of Appeal.

At para. 34 of that decision,Rowles J.A., speaking for the Court, said: “Rule 24(1) of the Rules of Court in British Columbia allows a party to amend an originating process or pleading. Amendments areallowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless. The rationale for allowingamendments is to enable the real issues to be determined. The practice followed in civil matters when amendments are sought fulfils thefundamental objective of the civil rules which is to ensure the just, speedy and inexpensive determination of every proceeding on themerits.” [3] Mr.

Walsh has made it clear in his submissions that he is not asserting any prejudice from the proposed amendment, but wishedto put his remarks on the record because, in his view, the Crown has resiled from a previous position in a case management conference. [4] However, another British Columbia Court of Appeal decision McNaughton v. Baker, (BC CA), [1988]B.C.J. No. 515, was summarized in the British Columbia Supreme Court Rules Annotated 2008, by A.P. Seckel, Q.C. & J.C. MacInnis(Thomas Carswell: 2007), as saying that evidence should not be considered on an application to amend a pleading.

I take that as adirection to essentially ignore what has been put before the Court in terms of what did or did not take place at a previous casemanagement conference. [5] It seems to me that the amendment sought does help to define the real issue between the parties. It is not a useless amendment.It does not prejudice the Plaintiff, and therefore it should be allowed and I so rule. ________________________________ GOWER J.