Meehan Factum - Lameman

File No. 31871
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)
BETWEEN:
ATTORNEY GENERAL OF CANADA
APPELLANT
(Respondent)
- and ROSE LAMEMAN, FRANCIS SAULTEAUX, NORA ALOOK,
SAMUEL WASKEWITCH, and ELSIE GLADUE on their own behalf
and on behalf of all descendants of the
PAPASCHASE INDIAN BAND NO. 136
RESPONDENTS
(Appellants)
- and HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA
RESPONDENT
(Respondent/Third Party)
- and FEDERATION OF SASKATCHEWAN INDIAN NATIONS
ASSEMBLY OF FIRST NATIONS
INTERVENERS
FACTUM OF THE RESPONDENTS
(Rose Lameman, et al., Respondents)
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
LANG MICHENER LLP
Barristers and Solicitors
300 – 50 O’Connor Street
Ottawa, ON K1P 6L2
LANG MICHENER LLP
Barristers and Solicitors
300 – 50 O’Connor Street
Ottawa, ON K1P 6L2
Eugene Meehan, Q.C.
Marie-France Major
613 232-7171 – Tel.
613 231-3191 – Fax
[email protected]
613 232-7171 – Tel.
613 231-3191 – Fax
[email protected]
MAURICE LAW
Barristers & Solicitors
35 Wolf Drive
Redwood Meadows, AB T3Z 1A3
Agent for the Respondents
Rose Lameman, Francis Saulteaux,
Nora Alook, Samuel Waskewitch, and
Elsie Gladue on their own behalf and
on behalf of all descendants of the
Papaschase Indian Band No. 136
Ron S. Maurice
403 266-1202 – Tel
403 266-2701 – Fax
[email protected]
Counsel for the Respondents
Rose Lameman, Francis Saulteaux,
Nora Alook, Samuel Waskewitch, and
Elsie Gladue on their own behalf and
on behalf of all descendants of the
Papaschase Indian Band No. 136
DEPUTY ATTORNEY GENERAL OF
CANADA
Department of Justice Canada
Prairie Regional Office
123 – 2nd Avenue South, 10th Floor
Saskatoon, SK S7K 7E6
DEPUTY ATTORNEY GENERAL OF
CANADA
Department of Justice Canada
East Tower, Room 1212
234 Wellington Street
Ottawa, Ontario K1A 0H8
Mark Kindrachuk, Q.C.
Michele E. Annich
Christopher Rupar
306 975-4765 / 780 495-6457 – Tel.
306 975-5013 / 780 495-2854 – Fax
[email protected]
[email protected]
613 941-2351 – Tel.
613 954-1920 – Fax
[email protected]
Agent for the Appellant the Attorney
General of Canada
Counsel for the Appellant the Attorney
General of Canada
ALBERTA JUSTICE
Bowker Building
4th Floor, 9833 - 109 Street
Edmonton, AB T5K 2E8
GOWLING LAFLEUR HENDERSON LLP
Suite 2600, 160 Elgin Street
Ottawa, ON K1P 1C3
Henry S. Brown, Q.C.
Donald N. Kruk
Angela Edgington
780 422-4850 – Tel.
780 425-0307 – Fax
[email protected]
[email protected]
Counsel for the Respondent
Her Majesty The Queen in right of Alberta
613 233-1781 – Tel.
613 563-9869 – Fax
[email protected]
Agent for the Respondent
Her Majesty the Queen in right of Alberta
MCKERCHER MCKERCHER &
WHITMORE LLP
374 - 3rd Avenue South
Saskatoon, Saskatchewan S7K 1M5
LANG MICHENER LLP
Barristers and Solicitors
300 – 50 O’Connor Street
Ottawa, ON K1P 6L2
Michelle J. Ouellette
Marie-France Major
306 653-2000 – Tel.
306 653-2669 – Fax
[email protected]
613 232-7171 – Tel.
613 231-3191 – Fax
[email protected]
Counsel for the Intervener Federation of
Saskatchewan Indian Nations
Agent for the Intervener Federation of
Saskatchewan Indian Nations
PITBLADO
2500 - 360 Main Street
Winnipeg, Manitoba R3C 4H6
LANG MICHENER LLP
Barristers and Solicitors
300 – 50 O’Connor Street
Ottawa, ON K1P 6L2
Jack R. London, Q.C.
Bryan P. Schwartz
204 956-0560 – Tel.
204 957-0227 – Fax
[email protected]
[email protected]
Counsel for the Intervener Assembly of
First Nations
Marie-France Major
613 232-7171 – Tel.
613 231-3191 – Fax
[email protected]
Agent for the Intervener Assembly of First
Nations
TABLE OF CONTENTS
PAGE
PART I – STATEMENT OF FACTS ..........................................................................................1
A. Overview: Not One Single Aboriginal Voice Has Yet Been Heard ...............................1
B. The Papaschase Story: A Bona Fide Treaty Indian Band was “Wiped Out”..................2
•
Chief Papaschase enters into Treaty 6 with Her Majesty the Queen:
Legal Recognition of Papaschase Indian Band No. 136 ............................2
•
•
1880: “Divide and Conquer” Tactics – Band loses 84 members,
8 square miles of reserve land because of Chief Papaschase’s
efforts to obtain rations for his members.....................................................3
•
1879-1885: Edmonton Bands Face Starvation and Famine........................5
•
1885-1886: A Perfect Storm – Government Induces Destitute Indians
to Accept Halfbreed Scrip and Reduce Papaschase Band
by 114 members to only 82 “Remnants” .....................................................6
•
1886-1888: Removal of the “Papaschase Remnants”
and Surrender of IR 136 by only 3 Papaschase Band Members .................8
•
“Post script”: 1894 Amalgamation Agreement and Breach of Trust
respecting mismanagement of monies from sale of IR 136 lands ...............9
C. The Claim: Papaschase Descendants Council Seeks To Right The Wrong..................10
D. Motions Court: The Crown Seeks Summary Dismissal of Plaintiffs' Claims Based on
Standing and Limitations Arguments ............................................................................11
E. Decision of Alberta Court of Appeal: Trial Is Required ...............................................12
(1) Consent to Surrender is a Triable Issue...........................................................12
(2) Standing to Sue is a Triable Issue ....................................................................13
(3) Whether Action is Barred by Limitation Periods is a Triable Issue ................14
(4) Allegations of Malice, Fraud and Bad Faith are Triable Issues .....................15
PART II – STATEMENT OF ISSUES ......................................................................................15
PART III – STATEMENT OF ARGUMENT...........................................................................16
Real Issue: Should the Papaschase Indian Band be entitled to it’s
day in Court so as to ensure a just determination of it’s rights...............16
A. Right to a Trial is on Trial.............................................................................................16
B. Undeniable Complexity of Case and Improper Inferences ...........................................16
C. Government Misleading Assertions ..............................................................................18
Issue One: Respondents do have standing to bring the actions .........................................20
ii
A. Crown Position – It’s a Band Thing..............................................................................20
B. Specific Nature of Claim...............................................................................................21
C. Implications of Crown Position – More Triable Issues.................................................22
D. The Grant of Halfbreed Scrip and Unlawful Discharge of Treaty Indians...................23
E. Where is the Honour of the Crown?..............................................................................24
Issue Two: Claims are not statute-barred...........................................................................25
A. Overview: Reconciliation and Honour of Crown Defeated with Technical Defences .25
B. There is a Genuine Issue Relating to Discoverability ...................................................27
Consent to Surrender? ...........................................................................................27
Crown Failed to Discharge Onus; Claims Were Not
Discoverable Decades Ago ....................................................................................28
Discoverability Rule is Engaged............................................................................29
C. There is a Genuine Issue Relating to Defences of Laches and Acquiescence ..............31
D. Relevant Arguments Not Addressed by Court of Appeal :Provincial Limitations
Statutes Not Constitutionally Applicable to Treaty Claims...........................................32
Issue Three: Crown Not Immune from Fraud Claims ......................................................35
Conclusion .........................................................................................................................36
PART IV – SUBMISSIONS ON COSTS...................................................................................37
PART V – ORDER SOUGHT ....................................................................................................37
PART VI – TABLE OF AUTHORITIES..................................................................................38
PART VII – STATUTORY PROVISIONS...............................................................................40
Part I – Statement of Facts
A.
Overview: Not One Single Witness or Aboriginal Voice Has Yet Been Heard
1.
This is a unique case about righting a wrong and giving back to the Papaschase Indian
Band No. 136 that which was improperly taken away – its land, its history, its sense of
belonging, and its very recognition and existence as a First Nation. The Papaschase Indian Band
No. 136 was a recognized Band under Treaty 6 and the Indian Act – with treaty rights, a reserve,
members listed on Indian Affairs treaty pay lists, and a communal Cree identity. The
Respondents maintain that the Papaschase Band was deliberately broken up and dissolved and
their valuable reserve sold to settlers as a result of the Crown’s own wrongdoing and a series of
improper acts and omissions by her officials beginning with:
•
the failure to provide land, agricultural support, and relief during times of starvation
and “pestilence” as promised under Treaty 6;
•
a unilateral decision to transfer 84 members to an “Edmonton Stragglers” list and
reduce the size of the Papaschase Band’s reserve from 48 to 40 square miles in 1880:
the Band was entitled to 48 square miles of reserve land –this number was drastically
reduced to 39.9 square miles and then astonishingly wiped out to 0 square miles of
entitlement, all within a matter of days and with little or no notice to the Papaschase
members.
•
a substantial reduction of the Papaschase Band membership by offering “halfbreed”
scrip to destitute and starving Indians as an inducement to withdraw from treaty;
•
the “removal” of the “Remnants” of the Band to the Enoch Reserve;
•
taking a surrender of almost 40 square miles of valuable reserve land on a maximum
of 4 days notice from only 3 members without the consent of a majority of the Band;
•
entering into an amalgamation of the Papaschase Band with Enoch Band with the
consent of only 2 members of the band;
•
and breaching the express terms of the surrender agreement and assignment of trust
monies from the sale of the Reserve land to the Enoch band without the express
consent of the beneficiaries or other lawful means.
Ref: Amended Statement of Claim, Appellant’s Record (“A.R.”) at pp. 174-188
2.
This case is also important because the very right of the Papaschase Band to a fair trial is
on trial. If this complex case is appropriate for summary judgment, it’s difficult to imagine any
case that would require a full trial. Instead of simply determining if there existed sufficient
evidence to demonstrate a genuine issue for trial, the Motion Judge weighed conflicting
evidence, drew numerous inferences from documents, and relied on opinion evidence to draw
2
further inferences. In short, he held a one person trial on the constitutionally protected treaty
rights of the Papaschase Band without a single witness being heard and without a single
aboriginal voice being heard.
3.
The bottom line is that Chief Papaschase’s great great granddaughter, Rose Lameman, is
still here. So are the direct descendants. Through everything, they have stuck together as a
community with a shared sense of grievance. They are still here and seek justice in our courts.
4.
Rather than giving the Respondents their day in court and an opportunity to present all of
their evidence and arguments before an impartial trial judge, the Motion Judge dispensed with
the procedural protections inherent in the trial process and concluded that the loss of the
Papaschase Band’s status as a “band” under Treaty 6 and the Indian Act, the loss of Indian and
band status of several hundred descendants, and the loss of 39.9 square miles of reserve set apart
under Treaty 6 did not warrant a trial. In so doing, the Motion Judge deprived the Plaintiffs of the
opportunity to fully present their case, put himself in the role of a trial judge but without holding
a trial, and made findings on novel, complex, and disputed questions of fact and unsettled law in
a two day motion without the benefit of hearing all of the evidence.
5.
The Alberta Court of Appeal confirmed that the Respondents were entitled to their day in
Court because there were a number of triable issues to be decided before a trial judge on a full
evidentiary record. Despite the findings of the Court of Appeal, the Government appealed.
B.
The Papaschase Story: How A Bona Fide Treaty Indian Band was “Wiped Out”
1877: Chief Papaschase enters into Treaty 6 with Her Majesty the Queen – Legal Recognition
of Papaschase Indian Band No. 136
6.
On August 21, 1877, Chief Papaschase and Tahkoots, a Headman, placed their marks on an
adhesion to Treaty 6 on behalf of the Papaschase Indian Band. By entering into Treaty 6 with Chief
Papaschase, the Crown recognized the Papaschase Band as a group of aboriginal peoples capable of
entering into treaty relations and thereafter recognized and treated Chief Papaschase and his followers
as a “band”. According to the written terms of Treaty 6 and the oral representations of the Treaty
Commissioners, the Crown made a number of key promises to Indian bands, including, inter alia:
•
Reserve lands in the amount of one square mile per family of five or in that
proportion for larger or smaller families (i.e. 128 acres per person);
3
•
A promise that reserve lands could only be disposed of by the Crown for the benefit
of the Indian Band and “with their consent first having been obtained”;
•
A treaty annuity of $5 to each Indian annually in perpetuity;
•
Agricultural tools and assistance to help the Indians become self-sufficient in their
changing social and economic environment; and
•
A “crisis clause” promising the Indians assistance during times of starvation or
pestilence to relieve them from the “calamity that shall have befallen them”.
Ref.: Transcript of Cross-Examination of Clint Evans, A.R. at pp. 196
Affidavit of Camie Augustus, February 20, 2004, Exhibit “21”, Treaty 6, A.R., at
pp. 1106-1116
1880: “Divide and Conquer” Tactics – Band loses 84 members, 8 square miles of reserve land
because of Chief Papaschase’s efforts to obtain rations for his members
7.
Over three years passed before the Crown sent George Simpson, Dominion Land
Surveyor, to survey the boundaries of Passpasschase Indian Reserve No. 136 on August 2, 1880.
Simpson promised Chief Papaschase 48 square miles of land as a reserve because annuities were
paid to 241 members of the Papaschase Band in 1879. In fact, 249 members received annuities in
1879 entitling the Band to at least 49.8 square miles of reserve land.
Ref.: Affidavit of S. Kohan, Feb. 3, 2004, Exhibit “B”, Evans Report, A.R., at p. 433
8.
Chief Papaschase selected an area approximately four miles south of the North
Saskatchewan River and Simpson began to survey a reserve of 48 square miles at Two Hills,
located within the present boundaries of the City of Edmonton. On the same day as the reserve
was to be surveyed, a dispute arose over the provision of food rations to starving members of the
Band. Inspector T.P. Wadsworth arrived to pay treaty annuities to the Edmonton area Indian
Bands on August 2, 1880. Concerned for his hungry people, Chief Papaschase refused to accept
treaty annuity money unless and until the Band was provided with food rations.
9.
Although Chief Papaschase capitulated when Inspector Wadsworth refused to provide
any relief and left without paying annuities to the Papaschase Band, the following day
Wadsworth created a new band known as the “Edmonton Stragglers” (which later became the
Enoch Band under the leadership of Tommy La Potac and Mahminatow) and maliciously paid 84
members of the Papaschase Band under the newly created treaty annuity paylist for the
“Edmonton Stragglers”. The following day, on August 4, 1880, Inspector Wadsworth returned to
4
Two Hills and paid annuities to only 188 members of the Papaschase Band. As a direct result,
the population of the Papaschase Band was unilaterally and arbitrarily decreased by 84 members
and Inspector Wadsworth instructed Simpson to survey only 40 square miles rather than 48
square miles for the Papaschase Band.
Ref.: Affidavit of C. Augustus, Exhibit “6”, Letter dated August 30, 1883 from R.
Sinclair, Acting Deputy Superintendant General, Indian Affairs, Respondents’
Record (“R.R.”), at pp. 36-38 [Tab 5D]
Affidavit of C. Augustus , Exhibit “3”, Excerpt from the Saskatchewan Herald
[with transcription], R.R. at pp. 29-31 [Tab 5B]
Affidavit of S. Kohan, February 3, 2004, Exhibit “X”, A.R., at pp. 582-584
Also see letter dated August 30, 1883 from Acting Deputy Superintendent General
of Indian Affairs to Prime Minister John A. McDonald requesting permission to set
apart a reserve for what later became Enoch Band based on an agreement in 1880
between Indian Commissioner Edgar Dewdney and Tommy La Potac that “should
he collect a number of Indian stragglers at that time living about Edmonton, he
would recommend that a Reserve be given them and that Tommy la Potac should
become Chief.” Affidavit of C. Augustus, Exhibit “6”,R.R., at pp. 36-37 [Tab 5D]
10.
On September 13, 1880, Chief Papaschase stopped the survey of IR 136 when he realized
the area did not amount to 48 square miles as promised by the Crown. In the absence of any
authority to do so, Inspector Wadsworth suspended Papaschase as Chief. Although Indian
Commissioner Edgar Dewdney reinstated Chief Papaschase, he would not support the
Papaschase Band’s claim to 8 additional square miles and he informed Chief Papaschase that the
survey of IR 136 would not be completed in 1880, if ever.
Ref.: Affidavit of C. Augustus, Exhibit “5”, Letter dated December 1, 1880 from
G.A. Simpson (Reserves Survey) to Superintendent-General of Indian Affairs, R.R.
at pp. 32-35 [Tab 5C]
11.
Dewdney’s decision to postpone the survey of IR 136 was supported by the residents of
Edmonton and Frank Oliver, the owner of the Edmonton Bulletin who would later go on to
become the Superintendent General of Indian Affairs and advocate for numerous reserve land
surrenders in western Canada. The Edmonton Bulletin suggested the Papaschase Band “might
even be sent to the country they originally came from.” Even before the survey of IR 136 was
completed in 1884, local settlers, politicians, and the Edmonton Bulletin mounted a concerted
campaign and sought to pressure the Crown to move the Papaschase Band to a more distant
5
location so that IR 136 could be thrown open for settlement. Following a “mass meeting” of
Edmonton area settlers, politicians, and land speculators on January 13, 1881, a petition was
forwarded to Prime Minister Sir John A. Macdonald (also the Minister of Interior and
Superintendent General of Indian Affairs) requesting the Crown move the Papaschase Band and
IR 136 twenty miles further south.
Ref: Affidavit of J. Neeves, February 3, 2004, Exhinit “B Tab 38”, R.R, at pp. 138-140
[Tab 6A]
Also see account of campaign by Edmonton residents to remove the Papaschase
Band from the area in Master's thesis of Kenneth James Tyler in 1979 entitled “A
Tax Eating Proposition: The History of the Papaschase Indian Reserve”, Affidavit of
S. Kohan, February 3, 2004, Exhibit “X”, A.R. at pp. 585-593
12.
In September 1884, John C. Nelson, the chief surveyor for the Department of Indian
Affairs, completed the survey of IR 136 setting apart a total of 39.9 square miles of reserve land
for the exclusive use and benefit of the Papaschase Band. IR 136 contained some of the best land
in the district and was well supplied with timber and hay. IR 136 was traversed by the Calgary
and Hay Lake trails and any proposed construction of a railway from Calgary to Edmonton
would necessarily be constructed through IR 136.
Ref.: Affidavit of S. Kohan, February 3, 2004, Exhibit “X”, A.R. at p.593
1879-1885: Edmonton Bands Face Starvation and Famine
13.
By 1879, the buffalo had become virtually extinct on the Canadian prairies. Bands of
Cree and Assiniboine people descended on Edmonton for relief and assistance but they soon
depleted the local game and were left in a starving condition. Although a general famine had
descended upon the Indians of the North-West Territories, the Crown did not provide sufficient
relief or rations to the Papaschase Band and other bands as promised under Treaty 6.
Ref.: Affidavit of C. Augustus, R.R. , paras. 5-8, at p. 24 [Tab 5A]
Also, see account of issues respecting the issuance of halfbreed scrip to treaty
Indians in Edmonton agency in Tyler Thesis, Affidavit of S. Kohan, February 3,
2004, Exhibit “X”, A.R. at pp. 585-593
14.
Tensions among the Indians that the Crown was not fulfilling its promises under Treaty 6
reached crisis proportions in 1883. In January, 1883, midway through another difficult winter, a
letter was forwarded by Father Scollen to Sir John A. MacDonald on behalf of Chiefs
6
Papaschase, Bobtail, Samson, Ermineskin, and other Indian leaders accusing the Crown of
breaching its treaty promises in order to exterminate the Indians slowly by starvation. The Chiefs
warned the authorities that “If we must die by violence let us do it quickly.”
Ref.: Affidavit of S. Kohan, February 3, 2004, Exhibit “X”, A.R., at pp. 597-598
Affidavit of C. Augustus, Exhibit “8”, Excerpt from Report dated December 19,
2001 by Dr. Carl Beal, Expert Witness in Montana Band v. HMTQ., R.R. [Tab 5E]
1885-1886: A Perfect Storm – Government Induces Destitute Indians to Accept Halfbreed
Scrip and Reduce Papaschase Band by 114 members to only 82 “Remnants”
15.
In the midst of a general famine and in the days following the Northwest Rebellion, a
Half-Breed Scrip Commission was dispatched to Edmonton on June 3, 1885 to offer scrip to
halfbreeds as well as treaty Indians. Scrip certificates for land or money were used to induce
“halfbreeds” who were Treaty Indians to surrender treaty rights. Scrip speculators encouraged
Treaty Indians to apply for scrip. In a community in poverty; in a community with virtually no
power to obtain the rations they needed; in a community unfamiliar with the cash economy – it is
not surprising that the majority of the Band accepted scrip (12 in 1885 and 102 in 1886). As the
Crown foresaw, the money disappeared quickly and these people were left destitute. Despite
evidence that all members of the Papaschase Band who were granted scrip and discharged from
Treaty were illiterate and required scrip applications to be translated to them in Cree and that
Chief Papaschase did not understand the legal implications of what they were signing, a majority
of the band was “discharged” from treaty and as members of the Papaschase Band.
Ref.: Affidavit of C. Augustus, R.R., paras. 9-11, at p. 25, [Tab 5A]
Affidavit of S. Kohan, February 3, 2004, Exhibit “X”, A.R., pp. 572-574
Affidavit of C. Augustus, Exhibit “8”, Excerpt from Report dated December 19,
2001 by Dr. Carl Beal, R.R. , at pp. 40-11, 40-18 to 40-22
Transcript of Cross-Examination of Clint Evans, filed April 16, 2004, AR. at pp.
272-273.
See also letter dated August 18, 1887 from Hayter Reed to the Indian Commissioner,
which states that Chief Papaschase was reluctant to leave the Papaschase Reserve as
they “flatly denied having signed paper agreeing to abandon all claims to any
property on the Reserve, at the time of receiving their discharges, on being
confronted by the Interpreter and Clerk, they had to admit sig[ning] the paper, but
that they did not [?] that it should convey the mean[?] language implied.”. Affidavit
of C. Augustus, Exhibit “33”, R.R., at pp. 89-92 [Tab 5P]
7
16.
Prior to the granting of halfbreed scrip and the discharge from treaty of 102 members of
the Papaschase Band in July 1886, the Deputy Superintendent General of Indian Affairs
Lawrence Vankoughnet reported to Prime Minister John A. Macdonald on April 3, 1886 that:
… inducements are being held out to Half-breeds connected with Indian Treaties to
leave the same and accept Half-breed scrip by interested parties who represent to
them that their acceptance of such scrip will not deprive them of their right to share
in the lands on the reserve claimed by the Band to which they formerly belonged.
These influences are brought to bear upon the most dissolute and improvident Halfbreeds connected with the Treaties and they have been, it is stated, successful in
causing many such to leave the Treaty and accept of scrip [sic], which they no
sooner obtain than they dispose of for a trifle to the interested parties aforesaid and
spend the proceeds in dissipation.
The undersigned considers it important to bring this matter under the special
attention of the Minister, no doubtless [sic] unless some measures are adopted to
prevent these loose characters from accepting scrip and improvidently disposing of
the same, they and their families will eventually be thrown as a burden again upon
the Government, as they are represented to be quite incapable of supporting
themselves. [Emphasis added]
To prevent such abuses, Vankoughnet recommended scrip be granted only to individuals the
Indian Agent could certify were capable of supporting themselves and the legislation be
amended to prohibit the purchase of scrip from a halfbreed leaving treaty for a term of 5 years.
Vankoughnet’s recommendations to prevent the exploitation of Indians were rejected.
Ref.: Affidavit of C. Augustus, Exhibit “31”, Memorandum dated April 3, 1886 from L.
Vankoughnet to Rt. Hon. Sir John A Macdonald, R.R. at pp. 84-88 [Tab 5O].
17.
On July 7, 1886, Commissioner Dewdney reported to the Superintendent General of
Indian Affairs that practically every treaty Indian in the Saskatchewan valley qualified for scrip
and that a large number of Treaty Indians were induced by their immediate needs and the
misrepresentations of speculators into forfeiting their Treaty rights. Indian Affairs officials
eventually granted discharges to Chief Papaschase and a majority of the band. Reverend Father
Lizee, who operated the school on the Papaschase reserve, wrote in his journal: “Poor savages!
How they are to be pitied! The money which they now receive will be squandered as quickly as
it is received.”
Ref.: Affidavit of S. Kohan, February 3, 2004, Exhibit “X”, AR, at pp. 628, 638
8
1886-1888: Removal of the “Papaschase Remnants” and Surrender of IR 136 by only 3
Papaschase Band Members
18.
Reduced to 82 members – mainly Elders, children and widows – the Band was no match
for the machinations of Crown officials like Inspector Wadsworth, Hayter Reed, and Indian
Agent William de Balinhard who quickly set out to remove the balance of the Papaschase Band
from their reserve so it could be thrown open for settlement. Just a month after the discharge of
Chief Papaschase from treaty, Department of Interior officials noted that IR 136 contained “some
of the best lands in the neighbourhood of Edmonton” and recommended the remaining members
be attached to some other reserve to “break up the reserve in toto!” In response to a similar
recommendation from Hayter Reed to Sir John A. Macdonald in January 1887 to amalgamate the
Papaschase “remnant” with Enoch’s Reserve, Reed was instructed that “Passpasschase’s Band
should not be removed from their Reserve, except with their consent, and until they have agreed
to make a surrender of the same to be sold for their benefit, which consent and agreement should
be reported to the Department before any further steps are taken.” Further, Reed was instructed
to inform the Papaschase remnant that “whatever may be realized from the sale of the whole of
the Reserve, if surrendered, will be applied to the benefit of them and their heirs exclusively…”
Ref.: Affidavit of J. Neeves , Exhibit “B Tab 250”, Letter dated August 26, 1886 from
Supt. William Pearce to H.H. Smith, Commissioner of Dominion Lands, Winnipeg,
A.R., at pp. 1067-1076.
Affidavit of C. Augustus, “Exhibit 57”, Letter dated January 15, 1887 from Hayter
Reed, Assistant Indian Commissioner to Rt. Hon. Sir John A. Macdonald, R.R. at
pp. 116-119 [Tab 5X]
Affidavit of C. Augustus, “Exhibit 55”, Letter dated April 9, 1887 from Indian
Commissioner Dewdney to Rt. Hon. Sir John A. Macdonald, R.R., at p. 108-111
[Tab 5V]
19.
Contrary to these instructions, Hayter Reed did not call a meeting in accordance with the
Indian Act to obtain the consent of a majority of the eligible voters of the remaining Papaschase
Band members to the proposed surrender while they were still on IR 136. Instead, Reed
persuaded the remainder of the Papaschase Band to move to the Enoch Reserve at Stony Plain,
located a few kilometers west of IR 136. Inspector Wadworth reported on September 7, 1887
that the Papaschase Band “has been wiped out by removing the few remaining members to the
reserve of Enoch’s Band at Stony Plain...”
Ref.: Transcript of Cross-Examination of Clint Evans, A.R., at pp. 257-258.
9
Affidavit of C. Augustus, Exhibit “33”, Letter dated August 18, 1887 from Hayter
Reed to the Indian Commissioner, R.R., at 89-92 [Tab 5P]
Affidavit of J. Neeves, Exhibit “B Tab 150”, Letter dated September 7, 1887 from
Inspector Wadsworth to Indian Commissioner Dewdney, A.R. at pp. 899-904
20.
On November 19, 1888, Indian Agent William de Balinhard and Inspector Wadsworth
purported to obtain a surrender of 39.9 square miles of land within IR 136 from only 3 adult
male members of the Papaschase Band living on the Enoch Reserve after providing a maximum
of only 4 days notice of the surrender vote. Indian Agent de Balinhard misrepresented that it was
impossible to arrange a proper meeting of the voting members of the Papaschase Band since
Nepasis, James Stoney and Antoine were the “only men of the Band now remaining and located
on Enoch’s Reserve.” However, there is evidence that de Balinhard paid treaty annuities to 10
male members of the Papaschase Band aged 21 years of age or older at the Enoch Reserve just
six weeks prior to the surrender. There is no evidence that de Balinhard gave notice to other
members of the Papaschase Band living on other nearby reserves such as Alexander (40 km),
Ermineskin (65 km), and Samson (80 km).
Ref.: Affidavit of C. Augustus, Exhibit “44”, Letter dated March 30, 1888 from
Indian Agent, Edmonton to Indian Commissioner, Regina, R.R. at pp. 99-100 [Tab
5S]
Affidavit of G. Harris sworn February 20, 2004/filed February 23, 2004, A.R., at pp.
1090-1093
Affidavit of G. Harris, Exhibit “G”, “List of Papaschase Members who collected
Annuity with Enoch, Samson, Alexander and Ermineskine Bands after 1886”, A.R.
at pp. 1095- 1099
“Post script”: 1894 Amalgamation Agreement
mismanagement of monies from sale of IR 136 lands
21.
and
Breach
of
Trust
respecting
Department records suggest that the Crown mismanaged both the sale of the lands of the
former Papaschase Reserve and failed to diligently ensure that the defaulting purchasers of
various lots paid on time and in full. Further, the terms of the surrender instrument expressly
stated that only the interest accruing from the investment of monies from the sale of IR 136 lands
were to be paid annually or semi-annually to the Papaschase Band and “our descendants
forever.” Contrary to the terms of the trust created by the surrender instrument, the Crown failed
to hold the principal amount of capital collected from the sale of IR 136 lands in trust for the
exclusive benefit of the Papaschase Band and their descendants forever.
10
Ref.: Affidavit of C. Augustus, A.R. at p. 1103, at paras, 14-15
Affidavit of S. Kohan, February 3, 2004, Exhibit “F”, Report of the Committee of
the Privy Council regarding surrender of IR 136 dated October 12, 1889, A.R. at pp.
482-488
22.
To add insult to injury, the Crown purported to amalgamate the remaining members of
the Papaschase Band with the Enoch Band in 1894 with the consent of only 2 male members of
the Papaschase Band and breached the terms of the trust created by the surrender (even if it was
valid, which is in dispute) by allowing proceeds from sale of the reserve lands to be distributed to
the Enoch Band, while many of the Papaschase Band members literally never saw a penny.
Ref.:
23.
Affidavit of J. Neeves, Exhibit “B Tab 247”, Agreement dated January 24, 1894
between the owners of the Pass-pass-chase Reserve and the owners of the Enoch
Reserve, A.R., at pp. 1063-1065
Perhaps the most egregious result of the Crown’s misconduct is this – the members of the
original Band, and their descendants, lost their Treaty right to Band status. They have been
removed from their rightful place in Canadian society: denied their position as a signatory to
Treaty 6; denied their identity.
C.
The Claim: Papaschase Descendants Council Seeks To Right The Wrong
24.
The Respondents are a group of descendants of the original Papaschase Indian Band who
were left without any elected leaders until the members regrouped and elected Chief Rose
Lameman – the great great granddaughter of Chief Papaschase – and a Council under their own
Custom Election Code in August 1999. The Papaschase descendants authorized Chief and
Council to retain and instruct legal counsel and to take all necessary legal steps to assert a claim
for the loss of their treaty rights to land and their very identity as a band under Treaty 6. These
descendants filed an action just over one year later, in February 2001, alleging an outstanding
entitlement to land under Treaty 6; the loss of treaty and Indian status by offering halfbreed scrip
to starving Indians and allowing them to withdraw from treaty; the 1888 surrender of IR 136 and
the 1894 amalgamation with the Enoch Band were both illegal because they were not consented
to by a majority of the eligible voters; and a breach of the trust created by the terms of the
surrender instrument.
Ref.: Affidavit of Rose Lameman, at paras, 14-15, A.R. at p. 1103
11
D.
Motions Court: The Crown Seeks Summary Dismissal of Plaintiffs' Claims Based
on Standing and Limitations Arguments
25.
Canada brought three motions: (1) to strike pleadings as disclosing no cause of action
under Rule 129(1)(a); (2) to strike pleadings as frivolous/vexatious under Rule 129(1)(b); and
(3) for summary judgment dismissing the Plaintiffs' claims under Rule 159 based on three
grounds (i) that the "Papaschase Band does not exist and there is no modern collective
recognized in law with standing to bring the Claim"; (ii) that the non-existence of the Papaschase
Band was conclusively determined when the Plaintiffs and the Papaschase descendants failed to
file a protest under section 9 of the Indian Act, 1951; and (iii) that the Plaintiffs' claims were
barred by the Limitations of Actions Act, 1980, the Limitations Act, 2000 and the Crown Liability
and Proceedings Act or by the equitable doctrines of laches, acquiescence, delay and waiver.
Ref.: Alberta Rules of Court, Alta. Reg. 390/68, as am., ss. 129, 159;
Limitation of Actions Act, R.S.A., 1980, c. L-15;
Limitations Act, R.S.A. 2000, c. L.-12;
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50;
26.
The evidence and arguments submitted by Canada was directed to these issues - indeed,
even where the Crown argued "no cause of action", it did so on the basis of lack of standing and
limitations, and not on the merits of the causes of action alleged by the Plaintiffs.
Understandably, the Plaintiffs' evidence and arguments addressed Canada's three grounds for the
motion. The Plaintiffs did not adduce evidence on the merits of every cause of action alleged in
the Statement of Claim because the Crown did not raise those issues in their motion. This was a
summary judgment motion after all, not a full trial.
27.
The fourth motion before the Motion Judge was the Plaintiffs' motion requesting that two
of the Plaintiffs be certified as representative plaintiffs.
28.
Despite acknowledging that the test for summary dismissal is "strict" and that it "is not
appropriate to attempt to resolve conflicting allegations in the affidavits unless it is clear that the
claim is truly hopeless", the Motion Judge nonetheless determined that there was no need for this
case to proceed to trial. In the result, he granted summary judgment to Canada dismissing the
Plaintiffs' claims, determining that: (1) the Plaintiffs lacked standing to bring the claim; (2)
almost all the claims were statute-barred, as the claims were discoverable immediately or within
years after they occurred or at least by the 1970’s (despite the legal, political, social and
12
economic barriers that have historically prevented Indians and bands from bringing legal claims
against the Crown); and (3) the plaintiffs had not adduced sufficient evidence to establish an
arguable case on the merits of their claims (despite the fact that argument was restricted to issues
of standing and limitations and the Plaintiffs therefore did not file the thousands of documents
that could have been filed on the merits of each of their claims). The Plaintiffs' motion was also
dismissed on the basis of standing.
Ref.: Judgment of Motions Judge Below, A.R. at pp. 3-87
E.
Decision of Alberta Court of Appeal: Trial Is Required
29.
The Court of Appeal confirmed that the Papaschase Band was entitled to its day in Court.
In setting aside the decision of the Motions Judge to summarily dismiss the claims of the
Respondents, the Court of Appeal concluded that:
(1)
Consent to surrender is a triable issue;
(2)
Standing to sue is a triable issue;
(3)
Whether the action is barred by limitation periods is a triable issue; and
(4)
Allegations of malice, fraud and bad faith are triable issues.
(1)
Consent to Surrender is a Triable Issue
30.
After confirming that the heart of the lawsuit involved whether the reserve in this case
had been improperly “cancelled” – the Indian Act required a “majority of a majority” of the adult
male members of the Indian band resident “on or near” the reserve for a surrender to be valid –
the Court of Appeal explained that it was arguable, on the evidence, that the reserve had been
improperly surrendered. As explained by the Court:
[108] . . .it seems to be clear that a number of former residents of the reserve being
cancelled had moved to live with the Enoch Band on the Enoch reserve. Indeed, the
two bands later joined, and the sale proceeds of the former reserve went to that
Enoch Band. Oral argument in the Court of Appeal mentioned numbers like 7 or 9
or 10 former male residents who moved to Enoch. As only three former residents
signed the surrender, those are significant numbers. So the three signing might not
be a majority of a majority. Three is only a majority of five, not of any larger
number. And how those “voting” were selected or notified could be relevant. It
becomes more complex still, because some of the three who did consent were living
on the Enoch reserve. So precise counting is important.
13
[109] Therefore, it appears that on this record, an argument can be made that enough
former members lived near the reserve to be cancelled, that the three consents were
not enough, and that more consents, or a different procedure, were needed.
[111] Given the degree of proof needed for summary dismissal (see Part D),
nearness on Enoch is a triable genuine issue as to liability. (I doubt that counsel have
had a chance to consider whether defects in the surrender could also affect
quantum.) [Emphasis added]
Ref.: Judgment of Court of Appeal below, at paras. 108-109, A.R. at pp. 125
(2)
31.
Standing to Sue is a Triable Issue
After noting that the amended statement of claim and all the arguments of the Appellants
were on behalf of the descendants of the former band which once had the reserve in question
and, after recognizing the circularity of the Crown’s reasoning –the very abolition of the reserve
created the alleged holes in standing –the Court confirmed that this was “not an ordinary suit by
five named plaintiffs. It is expressed to be by them “on their own behalf and on behalf of all
descendants of the band” who once lived on the reserve in question.
Ref.: Judgment of Court of Appeal below, at para. 122, A.R. at p. 127
32.
In reviewing the evidence, the Court of Appeal explained that a number of questions
remained unanswered –in other words, the Crown failed to meet its burden of proof for summary
dismissal:
[126] But it is the respondent Crown which raises lack of standing, and moves to
dismiss the suit summarily and completely. It has the onus of proof.
[127] This is not a proceeding to set a time limit for claimants to come forward and
prove their ancestry; it is a motion to dismiss the entire suit in respect of all
members of the “class” (more accurately, the numerous R. 42 group of plaintiffs).
. . .
[132] Were it the case that no living individual satisfied the criteria as refined,
restated and adopted by the chambers judge, it is correct that the very abolition of
the reserve created the hole in standing. Such a conclusion would preclude an
eventual adjudication of the merits of the claims I have otherwise found triable, and
be a bar to the appellants. That could raise a further issue. Would it be just on the
facts here to deny the appellants a forum in which they can claim the rights that this
Court has found triable? Then on the unique facts here, notably that the reserve was
abolished, should the criteria for standing be as defined by the chambers judge?
Should the plaintiffs in that event be considered to have standing on the basis of
being a descendant of an original band member? If this were not the case, would
14
there be circularity in the Crown’s position and no litigant to assert the claim of
improper cancellation of the reserve?
[133] That also is arguable and so a triable issue. [Emphasis added]
Ref.: Judgment of Court of Appeal below, at paras. 126-127, 132-133, A.R. at pp. 127128
(3)
Whether Action is Barred by Limitation Periods is a Triable Issue
33.
Having recognized the existence of a “possible flaw in the surrender process which tied
in with whether living on the Enoch reserve was “near” the cancelled reserve”, the Court then
went on to explain how that flaw rendered limitation arguments a live issue:
[139] If some male member of the old band temporarily absent had then been
elsewhere and not at Enoch, then he might well not know the facts to found the
“near” argument. Even the local government officials might not have known those
facts or grasped their importance.
[140] Furthermore, since the Act contemplated calling a meeting, getting a quorum,
holding a vote, and getting a majority, the postulated absentee might well not learn
enough details even on his return. “They asked people to consent to surrender the
old reserve, and got some consents from some of the band members, cancelled the
reserve, and sold the land”, might be about all that his inquiries of local residents
would yield.
[141] Therefore, discoverability is a live issue.
[144] It is true that the onus may well lie on the appellant plaintiffs to prove nondiscoverability. But on a defendant’s motion for summary judgment, they need only
show (or find in the Crown’s evidence) enough to raise a big enough doubt. The
“nearness” of, and residence on, the Enoch reserve were found late, and require
collating a number of records. Therefore, I have some doubt whether they were
discoverable. (The Queen’s Bench Reasons of course did not discuss that precise
question.) That is a triable issue.
[145] That renders it unnecessary to discuss other limitations issues such as the
argument against the competence of provincial legislation to trench upon aboriginal
or treaty rights, or the rebuttal that that provincial legislation is federal legislation by
incorporation. [Emphasis added]
Ref.: Judgment of Court of Appeal below, at paras. 139-145, A.R. at pp. 129-130
15
(4)
34.
Allegations of Malice, Fraud and Bad Faith are Triable Issues
After setting out the appellants’ argument to the effect that the federal government,
through its own wrongful acts and omissions, caused the break-up of the Papaschase Indian Band
(the members of the Papaschase band did not voluntarily surrender the reserve land but did so
only as a result of the government’s coercive measures), the Court of Appeal rejected the
previous conclusion of the Motions Judge as regards the allegations of malice, fraud and bad
faith, on the following basis:
[169] The chambers judge concluded at para. 54 of the reasons for judgment that
there was no evidence adduced to support these allegations. However, later in his
reasons, he reviewed the evidence which the appellants put forward to support these
claims.
. . .
[171]In stating that there was no evidence to support the allegations, inferentially, I
understand the chamber’s judge to have concluded that the evidence available was
insufficient to support the conclusion urged. To reach this conclusion, however, he
was required to weigh and assess the evidence, after careful scrutiny, and to make
and to choose among a host of possible inferences to be drawn from it. In my view,
this is a function properly left to a trial judge. Moreover, these claims are
inextricably linked to the balance of the litigation and should not be prematurely
dismissed without consideration of the broader factual context in which they are
alleged to have occurred.
[172] The appellants’ evidence is sufficient to rebut summary judgment and leave
the issues related to malice, fraud and bad faith to be tried. [Emphasis added]
Ref.: Judgment of Court of Appeal below, at paras. 169, 171-172, A.R. at p.13
Part II – Statement of Issues
35.
The Papaschase Indian Band submits that the real issue in this case is as follows:
Should the Papaschase Indian Band be entitled to its day in Court so as
to ensure a just determination of its treaty rights?
36.
The Government has also raised the following issues:
Issue One: Do the Respondents have standing to bring the actions?
Issue Two: Are the claims statute-barred?
Issue Three: Is the Crown liable for claims founded on intentional torts that arose
before 1953?
16
Part III – Statement of Argument
Real Issue:
A.
Should the Papaschase Indian Band be entitled to it’s day in Court so as
to ensure a just determination of its treaty rights?
Right to a Trial is on Trial
37.
This case is about the right to a trial. If this case is appropriate for summary judgment, it
is difficult to imagine any case that would warrant a trial in Canada. It must be remembered that
the Motions Judge in this case:
B.
38.
•
listened to no expert or lay witnesses on the oral history of the Papaschase Band; and
•
disposed of a complex claim involving the rights of the Papaschase Band covering more
than 50 years in a 2 day hearing.
Undeniable Complexity of Case and Improper Inferences
The lengthy reasons of the Motions Judge demonstrate, as was recognized by the Court
of Appeal, that this case raises a number of complex and unsettled points of law and that the
parties have radically different views on the facts and interpretation of historical documents
covering a period of more than 50 years. Not only did the Motion Judge decide a number of
unsettled and important points of law – such as whether offering halfbreed scrip to Indians to
withdraw from treaty is a breach of the Crown’s fiduciary duty on the facts of this case, whether
members residing “on or near” the reserve are eligible to vote on a surrender and whether
provincial limitations statutes are ultra vires to the extent that they purport to extinguish treaty
rights – but he made numerous inappropriate findings in the face of conflicting evidence which
the Court of Appeal held is a function properly left to the trial judge:
•
Total Number of Times Motions Judge makes “inferences” directly or
indirectly (and uses that word) from the facts: 21
•
Total Number of Times the words “infer”, “infers”, “inference” or
“inferences” appear in the judgment: 44
Ref.: Judgment of Motions Judge below, at paras. 6, 7, 13, 18, 21, 25, 26, 27, 28, 29, 30,
31, 35, 39, 40, 41, 57, 58, 59, 62, and 80, A.R. at pp. 7-34
39.
Summary judgment is an exception to the general rule that a Plaintiff is entitled to a trial.
Stripped down to its basic elements, a Court must be satisfied beyond a reasonable doubt that no
17
genuine issue or point of law exists in order to grant judgment. Summary judgment is not
appropriate and should not be granted:
•
in novel cases involving arguable, difficult or important points of law: as here;
•
in cases involving unresolved complicated questions of fact and law: as here;
•
where it is necessary to assess and weigh evidence and draw factual inferences: as here;
and
•
in cases involving resolution of complex aboriginal and treaty rights: as here.
Ref: Cathcart v. Sun Life of Canada, 2002 ABQB 827 (Q.B.), at paras. 20-21, Book of
Authorities [Tab 3]
Swiderski v. Meer, 2004 ABQB 30 (Q.B.), at para. 10, Book of Authorities, [Tab 20]
Keewatin v. Ontario (Minister of Natural Resources), 2003, 174 O.A.C. 332 (S.C.D.C.)
at paras. 44-48, Book of Authorities [Tab 8]
Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans), 2001 F.C.T.
181 (T.D.) at para. 5, Book of Authorities [Tab 17]
40.
The procedural protections offered by a trial should not be underestimated. At the time
that the summary judgment motion was heard:
(i)
Documentary production had not been completed – Canada stated it would be filing a
second Affidavit of Records; Alberta had not yet produced a single Affidavit of Records.
Production is important in this case in order to determine whether any of the surrendered
lands transferred to the administration and control of Alberta are impressed with a trust in
favour of the Papaschase Band or whether Alberta is entitled to rely on equitable
defences available to “good faith purchasers for value.” In addition, if lands or monies are
still held by Canada for the benefit of the Papaschase Band, they would meet the statutory
definition of a “band” in the Indian Act.
Ref: Transcript of Cross-Examination of Stephen Kohan, filed April 16, 2004, A.R. at pp.
309-327.
Indian Act, R.S.C. 1985, c. I-5, s. 2
(ii)
Discoveries had not even begun – none of the parties had been examined for discovery.
This pre-trial procedure is crucial in this case because many of the records relevant to the
Plaintiffs’ allegations are in Canada’s control – such as the breach of trust regarding the
sale of the Papaschase Reserve and disposition of proceeds.
18
(iii)
Canada had not provided an accounting or any disclosure of trust accounts and
financial records: Canada had (and still has) control of financial records relating to
Papaschase Trust Accounts. These records have not been produced and are not available;
full disclosure of the records is necessary to determine whether Canada discharged its
obligations as trustee respecting the collection of money from the sale of IR 136 and to
whom such monies were paid.
41.
This case about access to justice. Granting summary judgment is the legal equivalent of a
hockey referee deciding which team should win the Stanley Cup, before even a single player has
laced up their skates – except that in the aboriginal cultural context the refusal to even hear the
case, the “Go Away” sign over the courthouse door when people have turned to the “white man’s
court” as their last resort to resolve a grievance over the loss of their treaty rights – and knowing
they’ll have to except the result even if they don’t like it – is deeply troubling. This isn’t about
being shut out of a hockey game, this is about being shut out of a fair shake to vindicate both
themselves and their forefathers. A fair shake is all these people ask.
C.
42.
Misleading Government Assertions
Contrary to the assertions of the Government, this case needs to proceed to trial in order
to properly determine the treaty and constitutional rights of the Papaschase Indian Band. Trial is
all the more required in light of the following:
WITNESSES NOW READY FOR TRIAL
Realities of Case: what about viva voce
evidence?
Government says: no need for trial because
no living witnesses.
•
Ref: Appellant’s Factum, at para. 3.
This case is about treaty rights and issues
of improper surrender and amalgamation
over 110 years. Papaschase descendants at
trial will provide viva voce evidence of the
oral history and tradition of the events in
question.
Ref: Delgamuukw v. British Columbia, [1997]
3 S.C.R. 1010, para 87, Book of
Authorities, [Tab 5]
19
ISSUES OF CREDIBILITY
Actual Evidence: credibility is a live issue.
•
•
Government says: no need for trial because
no issues of credibility.
The Motions judge relied heavily on the
Evans Report, yet the academic Ref: Appellant’s Factum, at para. 3.
qualifications of Dr. Evans are as an expert
in the history of weeds, not aboriginal
history.
Although Dr. Evans was an employee of
the University of British Columbia, he was
working in house at the Department of
Justice Canada, Aboriginal Law Group
(Vancouver Office) on an academic
interchange at the time he drafted his
Report.
Ref: Transcript of Cross-Examination of Clint
Evans , A.R., at p 191.
PLENTY OF EVIDENCE
Record before SCC: Over 1000 pages of Government says: No evidence.
evidence before the SCC without yet a trial.
Ref: A.R.
R.R.
Ref: Appellant’s Factum, at para. 3
DISPUTED EVIDENCE
Disputed Evidential Issues: A trial is required
in this case in order to properly assess the
evidence:
Government says: No dispute regarding
evidence.
•
was the transfer of 84 members of the Ref: Appellant’s Factum, at para. 3
Papaschase Band to the Stragglers’ List
“voluntary” or was there malicious intent
on the part of the Crown in order to
undermine Chief Papaschase and reduce
size of reserve land?
•
were the discharges voluntarily or
prompted by economic duress and dire
straits caused by the Crown’s failure to
fulfill treaty obligations re: relief and
assistance?
20
•
did the Papaschase Remnants voluntarily
transfer to Enoch or were they “removed”
and “wiped out” by the machinations of the
Crown who was interested in securing their
lands for settlement?
•
did the surrender and amalgamation
agreement represent the “autonomous”
decisions of the band or were they
orchestrated by the Crown?
Issue One:
Respondents do have standing to bring the actions
A.
Crown Position – It’s a Band Thing
43.
The Government asserts that the Respondents lack the requisite standing to sue it for
breaches of its obligations because such claims, if any, belong to the Papaschase Band. As
formulated by the Government at paragraph 33 of it’s Factum:
Collective band rights such as the ones involved here are not owned by individuals.
They are collectively owned by the community as a whole as it exists from time to
time. Collective band rights belong to the current members of the band, not to
descendants or heirs or previous band members. Standing to bring a claim to enforce
collective rights vests in the band itself, and can only be asserted by the members of
the collective entity.
44.
In other words:
•
even though the claim was brought on behalf of all descendants of the Papachase Indian
Band No. 136; and
•
even though the claims seek to right a Government wrong - the improper wiping out of
the Band
only the Band, and not their descendants, can seek justice from the Government. The Appellant’s
argument is founded on circular reasoning which attempts to predetermine the outcome of the
case on its merits. The question of whether the Papaschase descendants are entitled to the relief
they seek can only be determined after a trial on the merits into whether the Band was
improperly dissolved and its reserve land was unlawfully surrendered and sold.
21
B.
45.
Specific Nature of Claim
In assessing the Crown argument, it is crucial to remember that in this case, the claim was
brought on behalf of five individuals and on behalf of all descendants of the band. As stated by
the Court of Appeal:
[114] The amended statement of claim and all the arguments of the appellants, are
on behalf of the descendants of the former band which once had the reserve in
question. Therefore, standing is an important issue in this suit, not a technicality. . .
[115] In view of the conclusion which I reach ultimately, the trial judge will have
to decide these issues. But I cannot explain whether there is a genuine issue for trial
here, unless I make some tentative comments. My discussion here is not intended to
settle any law of standing for anyone in this suit or any other; it is only to see if there
is a triable issue here. [Emphasis added]
Ref.: Judgment of Court of Appeal below, at paras. 114-115, A.R. at p. 126
46.
The authorities relied on by the Appellant do not support the proposition that standing
should be dealt with as a preliminary matter prior to trial. In fact, most of these cases were
decided after a trial on a full evidentiary record and argument. Further, there are fundamental
differences between the cases relied upon by the Appellant and the present case.
47.
The Blueberry River decision involved a claim by individuals who were not members of
the band in issue but sought relief qua individuals, in an action involving collective rights and
property. The Respondents in this case, however, are not seeking individual relief. They are
seeking to have their rights to communal property vindicated and seeking recognition or
reinstatement as a band, in order to share, in common, their rights with respect to an outstanding
treaty land entitlement, restitution for the unlawful surrender and sale of their reserve, and
membership in the Papaschase Band. The present case is also different in that the Respondents
allege the Crown “wiped out” the Papaschase Band “by removing the few remaining members to
the reserve of Enoch’s Band at Stony Plain...” In doing so, the Crown arguably breached its
fiduciary duty to the Papaschase Band by failing to “protect and preserve the Bands’ interests
from invasion or destruction.”
Ref.: Blueberry River Indian Band v. Canada (Department of Indian Affairs and
Northern Development (1999) 171 F.T.R. 91 (T.D.) aff’d [2001] 4 F.C. 451
(F.C.A.), Book of Authorities of the Appellant [Tabs 18-20]
22
Affidavit of J. Neeves, Exhibit “B Tab 150”, Letter dated September 7, 1887 from
Inspector Wadsworth to Indian Commissioner Dewdney, A.R. at pp. 899-904
Roberts v R., [2002] 4 S.C.R. 245, at paras. 98-100, Book of Authorities [Tab 15]
48.
Although the Kingfisher and Montana cases raise similar factual issues, both are
distinguishable because the courts held that any transfers of individual Indians which ultimately
led to the dissolution of the bands in question were voluntary. The evidence in this case is
different and invites a different inference. These cases are not dispositive.
Ref: Kingfisher v. Canada, (2001) 209 F.T.R. 211, aff’d (2002), 291 N.R. 314
(F.C.A.)Book of Authorities of the Appellant [Tab 35]
Montana Band v. Canada, (2006) 287 F.T.R. 159 (T.D.) aff’d [2007] F.C.J. No. 824
Book of Authorities of the Appellant [Tab 44]
See also Delgamuukw v. British Columbia, supra, at paras. 1102-1103, Book of
Authorities [Tab 5], for the proposition that impossible burdens of proof should not
be placed on aboriginal claimants as this undermines the purpose of s. 35 (1).
C.
49.
Implications of Crown Position – More Triable Issues
After concluding that the Government had failed to meet its burden of proof, the Court of
Appeal examined what would happen if the Crown argument to the effect that no living
individual satisfied the criteria for standing in this case, were accepted. In such a case, the Court
concluded, then the triable issue of the improper abolition of the reserve could not proceed. In
other words, the improper surrender of the reserve could be used by the Government to deny to
the Papaschase Band a remedy for past wrongs, despite the fact that it was the Government that
engaged in the wrongful action.
Ref.: Judgment of Court of Appeal below, at para. 132, A.R. at p. 138
50.
The circularity of the Government’s argument on standing – only a Band can sue for past
wrongs and there is no Band to sue in this case – was recognized by the Court of Appeal below:
[117] The appellants argue that some of the Crown’s reasoning is circular, or
bootstrapping. The very abolition of the reserve created the alleged holds in
standing, the appellants contend. It seems to me quite arguable that not all of the
Crown’s standing arguments can be construed that way. . .
[118] But I do agree that for certain parts of the Crown’s standing arguments, the
appellants’ circularity rebuttal is an arguable legal position. [Emphasis added]
Ref.: Judgment of Court of Appeal below, at paras. 117-118, A. R. at p. 126
23
51.
Should the Government’s argument on standing be accepted, this would raise a whole
new set of triable issues that would also need to be addressed. As set out by the Court of Appeal:
[132] Were it the case that no living individual satisfied the criteria as refined,
restated and adopted by the chambers judge, it is correct that the very abolition of
the reserve created the hole in standing. Such a conclusion would preclude an
eventual adjudication of the merits of the claims I have otherwise found triable, and
be a bar to the appellants. That could raise a further issue. Would it be just on the
facts here to deny the appellants a forum in which they can claim the rights that this
Court has found triable? Then on the unique facts here, notably that the reserve was
abolished, should the criteria for standing be as defined by the chambers judge?
Should the plaintiffs in that event be considered to have standing on the basis of
being a descendant of an original band member? If this were not the case, would
there be circularity in the Crown’s position and no litigant to assert the claim of
improper cancellation of the reserve?
[133] That also is arguable and so a triable issue [Emphasis added]
Ref.: Judgment of Court below, at paras. 132-133, A.R. at p. 128
D.
52.
The Grant of Halfbreed Scrip and Unlawful Discharge of Treaty Indians
Two additional points which bear on the merits of this case and the standing of the
Papaschase descendants relates to whether members of the Papaschase Band were discharged
contrary to the Indian Act or the fiduciary duties of the Crown. The Motion Judge below relied
on this provision of the Indian Act as authority for the proposition that the statute gave Chief
Papaschase and other members of the band an unconditional right to withdraw from Treaty:
No half-breed in Manitoba who has shared in the distribution of half-breed lands
shall be accounted an Indian; and no half-breed head of a family, except the widow
of an Indian, or a half-breed who has already been admitted into a treaty, shall,
unless under very special circumstances, which shall be determined by the
Superintendent General or his agent, be accounted an Indian, or entitled to be
admitted into any Indian treaty, and any half-breed who has been admitted into
treaty shall be allowed to withdraw therefrom on signifying in writing his desire so
to do, – which signification in writing shall be signed by him in the presence of two
witnesses, who shall certify the same on oath before some person authorized by law
to administer the same.
Ref.: Judgment of Motions Judge Below, at paras. 23-24, A.R. at pp. 10-11
53.
The preamble to this section suggests that only half-breeds in Manitoba were permitted to
withdraw from treaty. In 1886, the Indian Act did not expressly authorize the withdrawal of halfbreeds in the North-West Territories to withdraw from treaty. It is arguable, therefore, that the
24
discharges were void as contrary to the Indian Act or, alternatively, offering half-breed scrip to
starving Indians as an inducement to withdraw from treaty (which benefitted the Crown by
reducing its obligations and allowed for IR 136 to be opened up for settlement) could constitute
tainted conduct by Crown officials and a breach of fiduciary duty by permitting discharges on
terms considered foolish, improvident or exploitative even by the standards of the late 1800s.
Ref.: Blueberry River Indian Band v. Canada [Apsassin], at paras. 14 and 35, Book of
Authorities of the Appellant [Tab 18]
E.
54.
Where is the Honour of the Crown?
This is a case where a distinct First Nation was wiped out due to Canada’s wrongful act –
the surrender of the reserve failed to meet the mandatory requirements of the Indian Act. The
Government with its standing argument is seeking to hide behind its own wrongdoing – the
argument of the Respondents throughout has been that the very reason why the Papaschase Band
is no longer recognized as an existing band is because of the Government’s own actions and
omissions. The practical effect of accepting the Government argument would be to allow it to
insulate itself from liability for its own wrongful actions and, in the process, ensure that the
Papaschase members have no remedy for the wrongs that were committed against the
Papaschase Band.
55.
Canada’s legal argument is the equivalent of a tortfeasor driver who kills someone in a
hit and run, then says, “No compensation, they don’t exist anymore.” Our law does not permit
that. It doesn’t matter that the tortfeasor driver meant to run the person down. The person’s estate
can still maintain an action. Does the ‘honour of the Crown’ bring one at least to the level of a hit
and run driver? If they cannot walk away, why should the Crown?
56.
As this Honourable Court affirmed in Haida Nation v. British Columbia, the honour of
the Crown demands that “[i]n all its dealings with Aboriginal peoples” including “the resolution
of claims and the implementation of treaties, the Crown must act honourably”. In reviewing the
arguments of the Appellant, there is very little discussion of the honour of the Crown. This is not
surprising, however, when one considers that what the Government is asking is that this
Honourable Court sanction Government misconduct – allowing the Government to benefit from
it’s own wrongful actions without a fair trial into whether the Crown obtained a valid surrender
of the Papaschase Indian Reserve and dissolved the Papaschase Band contrary to the Indian Act
25
and the fiduciary obligations of the Crown. It is disingenuous for the Government to rely on its
own alleged misconduct in order to prevent a consideration of the Respondents’ claims on their
merits and to insulate itself from any potential liability and obligation to reinstate the Papaschase
band. Such an approach is not only manifestly unjust, it is also directly contrary to the honour of
the Crown.
Ref.: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at
paras. 16-17, Book of Authorities [Tab 7]
Issue Two: Claims are not statute-barred
A.
Overview: Reconciliation and Honour of Crown Defeated with Technical Defences
57.
At the heart of Crown-aboriginal relations and s. 35 of the Constitution Act, 1982 is the
goal of reconciliation and the honour of the Crown. This Honourable Court has repeated on
numerous occasions that the honour of the Crown is always at stake in its dealings with
Aboriginal peoples. This principle extends from the assertion of sovereignty to the resolution of
claims and the implementation of treaties – in all these circumstances, the Crown must act
honourably.
Ref.: Haida Nation v. British Columbia (Minister of Forests), supra, at para. 16-17, Book
of Authorities [Tab 7]
R. v. Badger, [1996] 1 S.C.R. 771, at para. 41, Book of Authorities [Tab 13]
Marshall v. Canada, [1999] 3 S.C.R. 456, at paras. 43-44, Book of Authorities
[Tab 10]
58.
Dismissing aboriginal and treaty rights claims based on technical arguments at the
summary judgment stage, rather than on the merits of the case with a full evidentiary record,
including viva voce evidence, undermines the very purpose of s. 35(1) of the Constitution Act,
1982 and its underlying goal of reconciliation, which is contrary to the honour of the Crown.
59.
Section 35(1) of the Constitution Act, 1982 states that “the existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. The enactment
of s. 35(1) has the effect of elevating and according constitutional status to aboriginal and treaty
rights that were in existence on April 17, 1982, when the new Constitution came into effect. It
surely cannot be the case that aboriginal and treaty rights are constitutionally recognized and
affirmed on the one hand but can be so readily dismissed at the summary judgment stage on the
other. Acceptance of the Crown’s argument respecting the application of provincial limitations
26
would render section 35(1) of the Constitution Act, 1982 practically meaningless as it would bar
First Nations from turning to the civil courts to advance claims based on aboriginal and treaty
rights. Section 35(1) demands a broad and liberal interpretation.
60.
Aboriginal and treaty rights which are “recognized and affirmed” under our Constitution
deserve to be considered on the merits of the case and based on a full evidentiary record that
takes into account the oral history and traditions of the aboriginal group advancing the claim.
Proper consideration of aboriginal and treaty rights necessitates a full trial. Granting summary
judgment would effectively bar the presentation of evidence based on oral history and tradition
and would unfairly prejudice the ability of aboriginal Plaintiffs to prove their case. In
Delgamuukw v. British Columbia, Chief Justice Lamer stated that:
87 Notwithstanding the challenges created by the use of oral histories as proof of
historical facts, the laws of evidence must be adapted in order that this type of
evidence can be accommodated and placed on an equal footing with the types of
historical evidence that courts are familiar with, which largely consists of historical
documents. This is a long-standing practice in the interpretation of treaties between
the Crown and aboriginal peoples: Sioui, supra, at p. 1068; R. v. Taylor (1981), 62
C.C.C. (2d) 227 (Ont. C.A.), at p. 232. To quote Dickson C.J., given that most
aboriginal societies “did not keep written records”, the failure to do so would
“impose an impossible burden of proof” on aboriginal peoples, and “render
nugatory” any rights that they have (Simon v. The Queen, [1985] 2 S.C.R. 387, at p.
408). This process must be undertaken on a case-by-case basis. I will take this
approach in my analysis of the trial judge's findings of fact.
Ref: Delgamuukw v. British Columbia, supra, at para. 87, Book of Authorities [Tab 5]
61.
The Respondents’ claims in this case were denied such due consideration – the chambers
judge granted summary judgment to the Crown, finding that almost all the claims were statutebarred since the claims were discoverable immediately, within years after they occurred or at
least by the 1970s. This approach was particularly inappropriate in light of the fact that:
62.
•
complex constitutional questions concerning treaty and aboriginal rights were at issue,
including whether the strict test for extinguishment of the treaty rights of the Papaschase
Band was met in this case and whether provincial limitations statutes are ultra vires
insofar as they purport to extinguish aboriginal or treaty rights; and
•
even if limitations statutes apply (which is denied), fact-driven questions relating to
discoverability arose, of which vital facts were missing from the record because the
parties have not yet completed document production or commenced discoveries.
As was recognized in Western Industrial Contractors Ltd. v. Sarcee Developers Ltd.,:
27
limitation defences must be specifically pleaded and proven on a review of the full
record. This should be the case particularly where “there are triable issues of fact
and law to be resolved before it can be determined whether a defence under the
[Limitations of Actions] Act exists or not”.
Ref.: Western Industrial Contractors Ltd. v. Sarcee Developers Ltd., 73 A.R. 290
(Q.B.) at para. 19 (Q.B.), Book of Authorities [Tab 22]
B.
There Is a Genuine Issue Relating to Discoverability
Consent to Surrender?
63.
The Respondents in their statement of claim affirmed that their reserve was improperly
cancelled because the Government failed to comply with the surrender requirements of s. 39 of
the Indian Act 1886, which required that a surrender be approved by a majority of the males
members of the Band over the age of 21 who habitually resided on or near the reserve:
39. No release or surrender of a reserve, or portion of a reserve, held for the use of
the Indians of any band, or of any individual Indian, shall be valid or binding, except
on the following conditions:–
(a.) The release or surrender shall be assented to by a majority of the male members
of the band, of the full age of twenty-one years, at a meeting or council thereof
summoned for that purpose, according to the rules of the band, and held in the
presence of the Superintendent General, or of an officer duly authorized to attend
such council, by the Governor in Council or by the Superintendent General; but no
Indian shall be entitled to vote or be present at such council unless he habitually
resides on or near and is interested in the reserve in question;”
Ref.: Indian Act, R.S.C. 1886, s. 39
64.
In this case, the Government obtained the consent to surrender of three members.
However, as found by the Court of Appeal, “it appears that on this record, an argument can be
made that enough former members lived near the reserve to be cancelled, that the three consents
were not enough, and that more consents, or a different procedure, were needed”.
Ref.: Judgment of Court of Appeal below, at para. 109, A.R. at pp. 125
65.
The conclusion of the Court of Appeal that an argument could be made that obtaining
only three consents was insufficient to meet the requirements of the Indian Act, rested on the
following evidence:
[99] . .. The band and reserve called in this suit “Enoch”, were not very far away. . .
28
[101] . . . there is evidence in the Harris affidavit that the former reserve in question
in this suit was about 20km from that Enoch (Stoney Plain) reserve . . . I have seen
no evidence of a longer distance, and the Crown referred us to none . . . The Tyler
thesis gives an even shorter distance. .
[108] And it seems to be clear that a number of former residents of the reserve being
cancelled had moved to live with the Enoch Band on the Enoch Reserve . . . So the
three signing might not be a majority of a majority. . . And how those “voting” were
selected or notified could be relevant . It becomes more complex still, because some
of the three who did consent were living on the Enoch reserve. So precise counting
is important.
Ref.: Judgment of Court of Appeal below, at paras. 99, 101, 108, Appeal Record [Tab]
Crown Failed to Discharge Onus; Claims Were Not Discoverable Decades Ago
66.
The Crown argues that the Plaintiffs have not established the necessary factual and
evidentiary basis to demonstrate lack of discovery of the claims or the actions taken to attempt to
“discover” the claim. However, the matter at hand is a motion for summary judgment and not a
trial. At the summary judgment stage, the Crown, as the moving party, bears the onus of proving
“beyond a reasonable doubt” that it is “plain and obvious” that the action cannot succeed or that
there is “no genuine issue for trial”. The Plaintiffs, as the responding party, need only raise
sufficient doubt in the Crown’s evidence. The Plaintiffs discharged its onus by raising doubt on
the issue relating to the surrender process and the distance of the Enoch reserve to the cancelled
reserve.
Ref: Boudreault v. Barrett et al. (1998), 219 A.R. 67 (C.A.), at para. 9, Book of
Authorities [Tab 1]
Re Residential Indian Schools, 2002 ABQB 667 (Q.B.), at para. 44, Book of
Authorities [Tab 14]
Murphy Oil Co. v. Predator Corp. , [2006] A.B.C.A. 69 (C.A.), at para. 24-27, Book
of Authorities [Tab 11]
67.
The Plaintiffs’ claims were not discoverable decades ago.
There are outstanding
questions on the issue of discoverability. As the Court of Appeal correctly found, there is a
possible flaw in the surrender process relating to whether living on the Enoch reserve was “near”
the cancelled reserve. There is also the issue of the ease in which a layperson could locate the
Tyler thesis and whether band members who were absent from the meeting to vote on the
surrender issue could have learned all the material facts underlying the cause of action. As
29
Justice Côté noted: “Discoverability in the 20th Century is thus unclear on this record.” These
are important facts that need to be established at trial before any findings on the date of
discovery can be made.
Ref.: Judgment of Court of Appeal below, at paras. 135-145, Appeal Record [Tab]
68.
The Crown further submits that the decision of the Court of Appeal required the Attorney
General to prove that every unnamed and unknown member of the proposed class of descendants
had discovered the claim. The Court of Appeal’s decision does not impose this requirement for
providing discoverability.
Discoverability Rule is Engaged
69.
There are sound policy reasons underlying the discoverability principle. The policy
rationales of certainty, evidentiary and diligence must be balanced with the need to treat
plaintiffs fairly and with regard to their specific circumstances.
70.
In M.(K.) v. M.(H.),the Supreme Court of Canada held that fairness should be the central
consideration in applying the discoverability principle for determining limitation periods. Justice
LaForest noted that the interests of potential defendants must be balanced with those of the
plaintiffs and the public, particularly when the social context in which the claim arose
contributed to the Plaintiffs’ failure to commence proceedings in a timely manner.
Ref.: M.(K.) v. M.(H.), [1992] 3 S.C.R. 3, Book of Authorities [Tab 9]
71.
Fairness concerns mandate that the legal, political, social and economic barriers that have
historically prevented aboriginal groups from bringing legal claims against the Crown are taken
into account when determining discoverability.
As the Federal Court of Appeal noted in
Semiahmoo Indian Band v. Canada:
In coming to the conclusion that the 6-year limitation period in subsection 3(4)
should not begin to run until on or about 23 May 1989, I find it important to bear in
mind that it is only in the last approximately fifteen years that Indian bands have
been able to exercise the same degree of diligence with respect to their legal rights
as might be expected of an ordinary member of society. To be more specific, it was
not until the Supreme Court’s 1984 decision in Guerin that courts clearly began to
recognize a cause of action against the Crown for breach of fiduciary duty in land
surrenders. [Emphasis added]
Ref.: Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3 (F.C.A.), at para. 84, Book of
Authorities [Tab 16],
30
72.
The disposition of the Canadian Dominion regarding Indians is well established. As noted in
the Report of the Royal Commission on Aboriginal Peoples, Indians were seen as wards of the State.
With that classification came specific duties:
In the midst of the treaty-making process going on in western Canada, the first
Indian Act as such was passed in 1876 as a consolidation of previous Indian
legislation. Indian policy was now firmly fixed on a national foundation based
unashamedly on the notion that Indian cultures and societies were clearly inferior to
settler society. The annual report of the department of the interior for the year 1876
expressed the prevailing philosophy that Indians were children of the state:
Our Indian legislation generally rests on the principle, that the aborigines are
to be kept in a condition of tutelage and treated as wards or children of the
State. ...the true interests of the aborigines and of the State alike require that
every effort should be made to aid the Red man in lifting himself out of his
condition of tutelage and dependence, and that is clearly our wisdom and our
duty, through education and every other means, to prepare him for a higher
civilization by encouraging him to assume the privileges and responsibilities
of full citizenship. [Emphasis added]
Ref: Report of the Royal Commission on Aboriginal Peoples, Government of Canada,
1996, at Chapter 9, Book of Authorities [Tab 23]
73.
The Report goes on to state:
The Indian Act of 1876 created an Indian legislative framework that has endured to
the present day in essentially the terms in which it was originally drafted. Control
over Indian political structures, land holding patterns, and resource and economic
development gave Parliament everything it appeared to need to complete the
unfinished policies inherited from its colonial predecessors. Indian policy was now
clear and was expressed in the alternative by the minister of the interior, David
Laird, when the draft act was introduced in Parliament: "[t]he Indians must either be
treated as minors or as white men."(53) There was to be no middle road. [Emphasi
added]
Ref: Report of the Royal Commission on Aboriginal Peoples, supra, Book of Authorities
[Tab 23]
74.
In St. Ann's Island Shooting and Fishing Club Ltd. v. R, in discussing the Indian Act, the
expression "political trust" was referred to regarding the relationship between the Government of
Canada and Indians. As confirmed by this Court, Indians are considered wards of the state,
subject to a political trust with the Government of Canada:
But I agree that s. 51 requires a direction by the Governor in Council to a valid lease
of Indian lands. The language of the statute embodies the accepted view that these
aborigenes are, in effect, wards of the State, whose care and welfare are a political
31
trust of the highest obligation or that reason, every such dealing with their privileges
must bear the imprint of governmental approval, and it would be beyond the power
of the Governor in Council to transfer that responsibility to the Superintendent
General. [Emphasis added]
Ref: St. Ann’s Island Shooting and Fishing Club Ltd. v. R., [1950] S.C.R. 211, at para.
29, Book of Authorities [Tab 18]
75.
Commenting on the St. Ann’s decision, Brian Slattery wrote: “Wards are people--often
minors--who have been placed under the care of a guardian on the grounds that they are
incapable of handling their own affairs. The implication is that Indians are unable to manage
their own affairs, which the state consequently manages on their behalf.” In fact Indian claims
were not seen as having any legal status as late as the 1960s.
Ref: Slattery, B. “Some Thoughts on Aboriginal Title” (1999) 48 U.N.B. L.J. 19, para.
20, Book of Authorities [Tab 24]
C.
There is a Genuine Issue Relating to Defences of Laches and Acquiescence
76.
The Crown submits that “equitable defences were also squarely in issue on the summary
dismissal application,” yet the Court of Appeal makes no mention of these defences.
77.
The question of whether claims are affected by the defences of laches and acquiescence is
not an issue that should be decided summarily for the same reasons why limitations periods
should not be determined at summary judgment stage. As Justice Smith noted in Canada
(Attorney General) v. Anishnabe of Wauzhushk Onigum Band, the application of the defence
may impact on the treaty rights and should not be resolved in a summary fashion given the
protection of s. 35 of the Constitution Act, 1982.
Ref.: Canada (Attorney General) v. Anishnabe of Wauzhushk Onigum Band,[2003] 1
C.N.L.R. 6 (Ont. S.C.J.), at paras. 85-86, Book of Authorities [Tab 2]
78.
The Court of Appeal also found that there was a triable issue relating to discoverability,
thereby finding it unnecessary to consider other limitation issues. The issue of discoverability is
significant in answering the question of whether the Plaintiffs’ claims are barred by the defence
of laches and acquiescence.
32
79.
Two branches are important in making out the defence: (1) the length of the delay and (2)
the nature of the acts done during the interval, which might affect either party and cause a
balance of justice or injustice allowing or disallowing the defence.
Ref.: Wewaykum Indian Band v. Canada,[2002] 4 S.C.R. 245, at para. 109, Appellant’s
Book of Authorities [Tab 56 ]
80.
Mere passage of time is not sufficient to establish the defence. The court must consider
whether the delay of the claimant “constitutes acquiescence or results in circumstances that make
the prosecution of the action unreasonable.”
Ref.: Wewaykum Indian Band v. Canada,[2002] 4 S.C.R. 245, at para. 109, Appellant’s
Book of Authorities [Tab 56 ]
81.
The first branch of the test, the length of the delay, requires a determination of the time of
discovery, which would thereby trigger the commencement of the delay period. Similarly, the
conduct of the Papaschase members during the delay period is relevant to establishing the second
part of the defence. Without the necessary factual foundation on the issue of discovery, the
applicability of the defences of laches and acquiescence to the Plaintiffs’ claims cannot be
determined. This is a genuine issue for trial.
D.
Relevant Arguments Not Addressed by Court of Appeal: Provincial Limitations
Statutes Not Constitutionally Applicable to Treaty Claims
82.
The Plaintiffs’ treaty claims are not statute barred by virtue of the Alberta Limitations
Act, S.A. 1996, c. L-15.1. Provincial limitations statutes do not have the authority to extinguish
aboriginal rights either under the Constitution Act, 1867 or as a provincial law of general
application through s. 88 of the Indian Act.
Ref.: Indian Act, R.S.C., 1985, c. I-5, s. 88
83.
In Chippewas of Sarnia v. Canada, which relied on Delgamuukw in support of the
conclusion that two pre-confederation limitations statutes did not evidence a “clear and plain”
intention to extinguish the Chippewas’ treaty right to reserve land that was unlawfully
surrendered and sold to third parties, the Court set out:
[238] It is common ground that, prior to 1982, Parliament could unilaterally
extinguish aboriginal title by statute. It is also agreed that Parliament could only do
so, however, by the use of clear and plain language. While it would appear from
recent decisions of the Supreme Court of Canada that, contrary to the motions
judge's finding, Parliament's power in this regard extended to the extinguishment of
treaty rights as well (see R. v. Marshall, [1999] 3 S.C.R. 456 at p. 496, 178 N.S.R.
(2d) 201), it is not necessary to decide the matter because there is no dispute that, if
33
Parliament had the power to unilaterally extinguish treaty rights, the legislation
would also have to meet the "clear and plain" language test. In our view, it does not.
[239] The jurisprudence has evolved considerably in recent years in the direction of
narrowing the concept of extinguishment of aboriginal rights. In Delgamuukw,
supra, Lamer C.J.C., in considering whether provincial laws of general application
could extinguish aboriginal rights, referred to the "clear and plain" test in these
words (at p. 1120 S.C.R.):
. . . a law of general application cannot, by definition, meet the standard which
has been set by this Court for the extinguishment of aboriginal rights without
being ultra vires the province. That standard was laid down in Sparrow
[[1990] 1 S.C.R. 1075] at p. 1099, as one of "clear and plain" intent. In that
decision, the Court drew a distinction between laws which extinguished
aboriginal rights, and those which merely regulated them. Although the latter
types of laws may have been "necessarily inconsistent" with the continued
exercise of aboriginal rights, they could not extinguish those rights. While the
requirement of clear and plain intent does not, perhaps, require that the Crown
"use language which refers expressly to its extinguishment of aboriginal
rights" (Gladstone, [[1996] 2 S.C.R. 723] at para. 34), the standard is still
quite high. My concern is that the only laws with the sufficiently clear and
plain intention to extinguish aboriginal rights would be laws in relation to
Indians and Indian lands. As a result, a provincial law could never, proprio
vigore, extinguish aboriginal rights, because the intention to do so would take
the law outside provincial jurisdiction.
[240] If the pre-Confederation statutes are considered to be continued as if they were
laws of Parliament, of course no issue arises as to the constitutional division of
powers. Nonetheless, these comments suggest that a mere inconsistency between a
statute and an aboriginal right will not suffice to evidence a clear and plain intention
to extinguish the right. McLachlin J.'s comments in R. v. Van der Peet, [1996] 2
S.C.R. 507 at p. 652, 23 B.C.L.R. (3d) 1 (dissenting, but not on this point) are also
helpful to understand what is required to meet the "clear and plain" test:
For legislation or regulation to extinguish an aboriginal right, the intention to
extinguish must be "clear and plain": Sparrow, supra, at p. 1099. The
Canadian test for extinguishment of aboriginal rights borrows from the
American test, enunciated in United States v. Dion, 476 U.S. 734 (1986), at
pp. 739-40: "[w]hat is essential [to satisfy the "clear and plain" test] is clear
evidence that [the government] actually considered the conflict between its
intended action on the one hand and Indian treaty rights on the other, and
chose to resolve that conflict by abrogating the treaty" or right.
[241] While in an appropriate case a general limitations statute can bar a claim for
damages arising from the loss of aboriginal or treaty rights (see e.g., Blueberry River
Indian Band v. Canada…, different considerations apply where it is contended that
the statute itself extinguished the aboriginal or treaty right. In this case, we agree
34
with the motions judge’s conclusion (at paras. 595-96) that the 1834 and 1859 preConfederation limitations statutes did not evidence any intent to affect or to
extinguish the aboriginal title or treaty rights of the Chippewas in the disputed land.
Consequently, we would not interfere with the motions judges’ conclusions.
[Emphasis added]
Ref: Chippewas of Sarnia Band v. Canada (Attorney General),2000, 51 O.R. (3d) 641
(C.A.), at paras. 238-241 Book of Authorities [Tab 4]
84.
As Justice Vickers explained in the recent decision of Tsilhqot’in Nation v. British
Columbia:
To conclude that the Limitation Act applies to such a claim would mean that with the
passage of time and the application of the provisions of the Act, the Province could
effectively extinguish Aboriginal title. Granting the Province the ability to
extinguish Aboriginal title is contrary to law. Provincial laws that affect Aboriginal
title lands go to the core of Indianness and do not apply to those lands. This is true
even though the law purports to be of general application. [Emphasis added]
Ref.: Tsilhqot’in Nation v. British Columbia 2007 BCSC 1700 (B.C.S.C.), at para. 1314,
Book of Authorities [Tab 21]
Stoney Creek Indian Band v. British Columbia, [1999] 1 C.N.L.R. 192 (B.C.S.C.),at
para. 28, reversed on other grounds, 1999 BVVA 527, Book of Authorities [Tab 19]
85.
The Alberta Limitations Act is not invigorated by s. 88 of the Indian Act or the Crown
Liability and Proceedings Act (CLPA). Nor does it meet the test for extinguishment prior to
1982. Provincial statutes of limitation, where they extinguish claims dealing with “Lands
Reserved for the Indians”, are not saved by s. 88 of the Indian Act. Section 88 referentially
incorporates provincial laws of general application that apply to “Indians” but does not extend to
incorporate provincial laws that affect s. 91(24) lands.
Ref: Indian Act, R.S.C., 1985, c. I-5 at s. 88
Derrickson v. Derrickson (1984), 51 B.C.L.R. 42 (B.C.C.A.), Book of Authorities
[Tab 6]
Stoney Creek Indian Band v. British Columbia, supra, Book of Authorities [Tab 19]
86.
The chambers judge erred in failing to engage in an analysis of the constitutional
applicability of the Alberta Limitations Act to the Plaintiffs’ claims. Instead, the chambers judge
applied provincial limitation statutes to extinguish the Plaintiffs alleged treaty rights without
considering whether the referential incorporation of provincial limitation statutes into the CLPA
met the test required for “clear and plain” intention to extinguish aboriginal and treaty rights.
35
87.
In this case, the Motion Judge erred in finding that this Court’s decision in Wewaykum
Indian Band v. Canada is determinative and overrules Chippewas of Sarnia. The facts in
Wewaykum are distinguishable because, as Justice Binnie stated at para. 3, “there is no assertion
of any entitlement in these lands under s. 35(1) of the Constitution Act, 1982 (“existing
aboriginal and treaty rights”).” It was not necessary, therefore, for this Court to consider whether
the limitations statutes evidenced a clear and plain intention to extinguish the Plaintiff’s
entitlement to reserve land or restitution in lieu of possession.
Ref: Wewaykum Indian Band v. Canada, supra, at para. 3, Appellant’s Book of
Authorities [Tab 56]
Issue Three: Crown Not Immune from Fraud Claims
88.
The Crown submits that it cannot be liable for intentional torts alleged to have occurred
prior to May 14, 1953, when the Crown Liability Act came into force.
Ref: Crown Liability Act, S.C. 1952-53, c. 30
89.
The Crown Liability Act cannot apply to the Plaintiffs’ action in this case since the Act’s
application would have the effect of extinguishing the Plaintiffs’ alleged treaty rights. By
preventing the Plaintiffs from pursuing an action against the Crown for intentional tort for claims
related to the Plaintiffs’ treaty rights, the Crown Liability Act would, in effect, be extinguishing
the Plaintiffs’ treaty right.
90.
Prior to 1982, treaty rights could be unilaterally extinguished by “clear and plain”
intention of the Federal Parliament. After 1982, it is arguable whether any level of government
can unilaterally extinguish treaty rights. The Crown failed to produce any evidence that s. 3(1)
of the Crown Liability Act evinced “clear and plain” intention to extinguish treaty rights.
91.
Further, even if the Crown Liability Act applies and the Crown is immune from liability
for the intentional tort claims alleged by the Plaintiffs, the facts relating to malice, fraud and bad
faith are, nevertheless, relevant to the standing issue. The Crown submits that the Plaintiffs lack
standing to bring the action against the Crown. The Plaintiffs’ response is this argument is that if
the Plaintiffs lack standing, it is as a result of the Crown’s wrongful actions and omissions.
Therefore, the facts surrounding whether the Crown’s actions amounted to malice, bad faith and
36
willful misconduct are relevant not only for establishing liability for intentional tort, but also
with respect to the issue of standing. These facts need to be determined at trial.
Ref: See also Norberg v. Wynrib, [1992] 2 S.C.R. 226 at para. 31 citing with approval
Lord Denning in Lloyds Bank Ltd. v. Bundy, [1975] Q.B. 326 at 339, Book of
Authorities [Tab 12]
Conclusion
92.
The Motions Judge in this case rushed to judgment – he knocked this case out in only two
days. This summary judgment reads like a trial judgment except that the Motion Judge heard no
evidence, listened to no witnesses , evaluated no expert report, considered the credibility of not a
single person, and dealt with a half century of evidence literally overnight.
93.
Are Canadians entitled to their day in court? A two day summary motion for a factually
complex and legally challenging piece of litigation which involves constitutional aboriginal and
treaty rights just doesn’t cut it from a fairness point of view. Doesn’t cut it from a jurisprudential
point of view either.
94.
The key claims involve an outstanding entitlement to land under Treaty 6; the loss of
treaty and Indian status by many members as a result of offering scrip to treaty Indians who were
destitute and starving; the invalidity of the 1888 surrender of IR 136; the invalidity of the 1894
amalgamation with the Enoch Band; and the breach of the trust created by the terms of the
surrender instrument. These people’s:
•
land
•
rights
•
identity
have all been affected without a single aboriginal person being heard. Nobody has heard a single
word from them. Nobody has listened to them. It has been the reverse in fact: they have listened
to the motions court judge below. He talked, they listened. They ask this Honourable Court for
an opportunity to talk, for an opportunity for someone to listen, to them. And after that, fair and
square, after a fair fight, make a decision after hearing the evidence, not before hearing the
evidence, nor as here, without hearing any evidence at all.
37
95.
If Canada is going to take from these people
•
their land
•
their rights
•
their identity
then should they not be given as a minimum the decency of a trial?
96.
Even a trial at which they may lose, but at least a trial.
Part IV- Submissions on Costs
97.
The Papaschase Indian Band, because of the Government’s actions, has yet to have it’s
day in Court. The Respondents request costs throughout.
Part V – Order Sought
98.
The Respondents request that the appeal be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Ottawa, Ontario, this 22 day of January, 2008.
_________________________
______________________
Eugene Meehan, Q.C.
Counsel for the Respondents
Ron S. Maurice
Counsel for the Respondents
38
Part VI – Table of Authorities
CASES
PARA
Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern
Development (1999) 171 F.T.R. 91 (T.D.) aff’d [2001] 4 F.C. 451 (F.C.A.)...............................53
Boudreault v. Barrett et al. (1998), 219 A.R. 67 (C.A.)................................................................66
Canada (Attorney General) v. Anishnabe of Wauzhushk
Onigum Band,[2003] 1 C.N.L.R. 6 (Ont. S.C.J.)...........................................................................77
Cathcart v. Sun Life of Canada, 2002 ABQB 827 (Q.B.) .............................................................39
Chippewas of Sarnia Band v. Canada (Attorney General)
2000, 51 O.R. (3d) 641 (C.A.) .......................................................................................................83
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010........................................................42, 60
Derrickson v. Derrickson (1984), 51 B.C.L.R. 42 (B.C.C.A.) ......................................................85
Haida Nation v. British Columbia (Minister of Forests),
[2004] 3 S.C.R. 511 .................................................................................................................56, 57
Keewatin v. Ontario (Minister of Natural Resources),
2003, 174 O.A.C. 332 (S.C.D.C.) .................................................................................................39
Kingfisher v. Canada (2001) 209 F.T.R. 211, aff’d (2002), 291 N.R. 314 (F.C.A.)....................48
M.(K.) v. M.(H.), [1992] 3 S.C.R. 3 ...............................................................................................70
Marshall v. Canada, [1999] 3 S.C.R. 456 .....................................................................................57
Montana Band v. Canada (2006 287 F.T.R. 159 (T.D.) aff’d [2007] F.C.J. No. 824...................48
Murphy Oil Co. v. Predator Corp. , [2006] ABCA. 69 (C.A.)......................................................66
Norberg v. Wynrib, [1992] 2 S.C.R. 226 .......................................................................................91
R. v. Badger, [1996] 1 S.C.R. 771 .................................................................................................57
Re Residential Indian Schools, 2002 ABQB 667 (Q.B) ................................................................66
Roberts v R., [2002] 4 S.C.R. 245..................................................................................................47
Semiahmoo Indian Band v. Canada, [1998] 1 F.C. 3 (F.C.A.)......................................................71
Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans),
2001 F.C.T. 181 (T.D.) ..................................................................................................................39
St. Ann’s Island Shooting and Fishing Club Ltd. v. R., [1950] S.C.R. 211 ...................................74
Stoney Creek Indian Band v. British Columbia,
[1999] 1 C.N.L.R. 192 (B.C.S.C.) ...........................................................................................84, 85
Swiderski v. Meer, 2004 ABQB 30 (Q.B.) ....................................................................................39
Tsilhqot’in Nation v. British Columbia 2007 BCSC 1700 (B.C.S.C.) ..........................................84
39
Western Industrial Contractors Ltd. v. Sarcee Developers Ltd.,
73 A.R. 290 (Q.B.) ........................................................................................................................62
Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245.................................................79, 80, 87
REPORT
Report of the Royal Commission on Aboriginal Peoples, Government of Canada, 1996 .......72, 73
ARTICLE
Slattery, B. “Some Thoughts on Aboriginal Title” (1999) 48 U.N.B. L.J. 19...............................75
40
Part VII – Statutory Provisions
Alberta Rules of Court, Alta. Reg. 390/68, as. am., ss. 129, 159
Limitations Act, R.S.A. 2000, c. L.-12;
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50;
Indian Act, R.S.C. 1985, c. I-5, s. 2
Crown Liability Act, S.C. 1952-53, c. 30
Limitation of Actions Act, R.S.A., 1980, c. L-15;
Indian Act, R.S.C. 1886, s.39
Alberta Rules of Court, Alta. Reg. 390/68, as. am., ss. 129, 159
Striking Out Pleadings
Striking out or amending
129(1) The court may at any stage of the proceedings order to be struck out or amended any
pleading in the action, on the ground that
(a)
it discloses no cause of action or defence, as the case may be, or
(b)
it is scandalous, frivolous or vexatious, or
(c)
it may prejudice, embarrass or delay the fair trial of the action, or
(d)
it is otherwise an abuse of the process of the court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly.
(2) No evidence shall be admissible on an application under clause (a) of subrule (1).
(3) This Rule, so far as applicable, applies to an originating notice and a petition.
AR 390/68 s129
Summary Judgment
When available
159(1) In any action in which a defence has been filed, the plaintiff may, on the ground that
there is no defence to a claim or part of a claim or that the only genuine issue is as to amount,
41
apply to the court for judgment on an affidavit made by him or some other person who can swear
positively to the facts, verifying the claim or part of the claim and stating that in the deponent’s
belief there is no genuine issue to be tried or that the only genuine issue is as to amount.
(2) A defendant may, after delivering a statement of defence, on the ground that there is no merit
to a claim or part of a claim or that the only genuine issue is as to amount, apply to the court for a
judgment on an affidavit sworn by him or some other person who can swear positively to the
facts, stating that there is no merit to the whole or part of the claim or that the only genuine issue
is as to amount and that the deponent knows of no facts that would substantiate the claim or any
part of it.
(3) On hearing the motion, if the court is satisfied that there is no genuine issue for trial with
respect to any claim, the court may give summary judgment against the plaintiff or a defendant.
(4) The court may order that an action proceed or not proceed on terms binding one or more
parties as to the following:
(a)
the giving of security;
(b)
time;
(c)
the staying of proceedings pending the determination of a counterclaim;
(d)
the mode of trial or other method respecting the determination of the matter.
(5) Where the court is satisfied that the only genuine issue is as to amount, it may direct that the
action proceed only to assess the amount or may direct a reference or accounting.
(6) Where the court is satisfied that the only genuine issue is a question of law, it may direct the
determination of that issue and that judgment be given in accordance with that determination.
(6.1) The Court may give summary judgment for or in respect of a part of a claim or a lesser
amount and send the rest of the claim to trial or assessment, whether or not the claim is for a
single and undivided debt or other cause of action.
(7) This Rule does not apply to the following:
(a)
any divorce proceeding as defined in Rule 561.1(b);
(b)
any combined action consisting of a divorce proceeding as defined in Rule
561.1(b) and the division of matrimonial property pursuant to a matrimonial property proceeding
as defined in Rule 561.1(c.1).
AR 390/68 s159;216/86;318/86;160/93;277/95;243/96;101/99
42
Limitations Act, R.S.A. 2000, c. L-12, s. 2
Application
2(1) This Act applies where a claimant seeks a remedial order in a proceeding commenced on or
after March 1, 1999, whether the claim arises before, on or after March 1, 1999.
(2) Subject to sections 11 and 13, if, before March 1, 1999, the claimant knew, or in the
circumstances ought to have known, of a claim and the claimant has not sought a remedial order
before the earlier of
(a)
the time provided by the Limitation of Actions Act, RSA 1980 cL-15, that would
have been applicable but for this Act, or
(b)
two years after the Limitations Act, SA 1996 cL-15.1, came into force,
the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect
of the claim.
(2.1) With respect to a claim for the recovery of possession of land as defined in the Limitation
of Actions Act, RSA 1980 cL-15, subsection (2) shall be read without reference to clause (b) of
that subsection.
(3) Except as provided in subsection (4), this Act is applicable to any claim, including a claim to
which this Act can apply arising under any law that is subject to the legislative jurisdiction of the
Parliament of Canada, if
(a)
Province, or
the remedial order is sought in a proceeding before a court created by the
(b)
the claim arose within the Province and the remedial order is sought in a
proceeding before a court created by the Parliament of Canada.
(4) This Act does not apply where a claimant seeks
(a)
Crown, or
a remedial order based on adverse possession of real property owned by the
(b)
a remedial order the granting of which is subject to a limitation provision in any
other enactment of the Province.
(5) The Crown is bound by this Act.
RSA 2000 cL-12 s2;2007 c22 s1
43
Indian Act, R.S.C. 1985, c. I-5, ss. 2-88
INTERPRETATION
Definitions
2. (1) In this Act, "band"
«bande »
"band" means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her
Majesty, have been set apart before, on or after September 4, 1951,
(b) for whose use and benefit in common, moneys are held by Her Majesty, or
(c) declared by the Governor in Council to be a band for the purposes of this Act;
Definition of "band"
(2) The expression "band" , with reference to a reserve or surrendered lands, means the band for
whose use and benefit the reserve or the surrendered lands were set apart.
Exercise of powers conferred on band or council
(3) Unless the context otherwise requires or this Act otherwise provides,
(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised
pursuant to the consent of a majority of the electors of the band; and
(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is
exercised pursuant to the consent of a majority of the councillors of the band present at a
meeting of the council duly convened.
R.S., 1985, c. I-5, s. 2; R.S., 1985, c. 32 (1st Supp.), s. 1, c. 17 (4th Supp.), s. 1; 2000, c. 12, s.
148.
Legal Rights
General provincial laws applicable to Indians
88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general
application from time to time in force in any province are applicable to and in respect of Indians
in the province, except to the extent that those laws are inconsistent with this Act or the First
Nations Fiscal and Statistical Management Act, or with any order, rule, regulation or law of a
band made under those Acts, and except to the extent that those provincial laws make provision
for any matter for which provision is made by or under those Acts.
44
R.S., 1985, c. I-5, s. 88; 2005, c. 9, s. 151
Loi sur les Indiens, 1985, S.R., ch. I-6, art. 1, ss. 2, 88
INTERPRETATION
Definitions
2. (1) Les définitions qui suivent s’appliquent à la présente loi.
«bande» Groupe d’Indiens, selon le cas :
a) à l’usage et au profit communs desquels des terres appartenant à Sa Majesté ont été mises
de côté avant ou après le 4 septembre 1951;
b) à l’usage et au profit communs desquels, Sa Majesté détient des sommes d’argent;
c) que le gouverneur en conseil a déclaré être une bande pour l’application de la présente loi.
Droits Légaux
Lois provinciales d’ordre général applicables aux Indiens
88. Sous réserve des dispositions de quelque traité et de quelque autre loi fédérale, toutes les
lois d’application générale et en vigueur dans une province sont applicables aux Indiens qui s’y
trouvent et à leur égard, sauf dans la mesure où ces lois sont incompatibles avec la présente loi
ou la Loi sur la gestion financière et statistique des premières nations ou quelque arrêté,
ordonnance, règle, règlement ou texte législatif d’une bande pris sous leur régime, et sauf dans la
mesure où ces lois provinciales contiennent des dispositions sur toute question prévue par la
présente loi ou la Loi sur la gestion financière et statistique des premières nations ou sous leur
régime.
L.R. (1985), ch. I-5, art. 88; 2005, ch. 9, art. 151.
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50,s. 32
PRESCRIPTION AND LIMITATION
Provincial laws applicable
32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws
relating to prescription and the limitation of actions in force in a province between subject and
subject apply to any proceedings by or against the Crown in respect of any cause of action
arising in that province, and proceedings by or against the Crown in respect of a cause of action
arising otherwise than in a province shall be taken within six years after the cause of action
arose.
R.S., 1985, c. C-50, s. 32; 1990, c. 8, s. 31.
45
Responsabilité civile de l’État et le contentieux administratif, Loi sur la C-50, s. 32
Responsabilité civile de l’État et le contentieux administratif, Loi sur la
PARTIE II : CONTENTIEUX ADMINISTRATIF
Prescription
32. Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, les règles de
droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers
s’appliquent lors des poursuites auxquelles l’État est partie pour tout fait générateur survenu dans
la province. Lorsque ce dernier survient ailleurs que dans une province, la procédure se prescrit
par six ans.
L.R. (1985), ch. C-50, art. 32; 1990, ch. 8, art. 31.