Court of Queen=s Bench of Alberta

Transcription

1 Court of Queen=s Bench of Alberta Citation: Goodswimmer v Canada (Attorney General), 2016 ABQB 384 Between: Date: Docket: Registry: Edmonton Chief Melvin Goodswimmer and Jerry Goodswimmer, Walter Goodswimmer, Francis Goodswimmer, Pierre Chowace, Mildred Chowace and Donald Badger, Councillors of the Sturgeon Lake Indian Band and on Behalf of the Sturgeon Lake Indian Band and the Sturgeon Lake Indian Band Plaintiffs - and - The Attorney General of Canada and Her Majesty the Queen in Right of Alberta Defendants - and The Attorney General of Canada and Her Majesty the Queen in Right of Alberta Third Party Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma

2 Page: 2 Table of Contents I. Introduction... 6 II. Executive summary... 6 III. SLCN s Application to Amend... 9 IV. Materials Filed A. Briefs and additional materials B. The Pleadings C. The Evidence Canada s evidence Affidavit of Tatjana Sopiwynk Affidavit of Sean Kennedy Affidavit of Linda Sturney Alberta s evidence Affidavit of Steven Andres SLCN Moses #1 Re TLE s Moses # Moses # Reid #1 23 Evidence of Mr. Sunshine D. Admissibility and weight of the affidavits Law i. Rules of Court ii. Purpose of r 13.18(3) iii. Affidavits relied on by Organizations iv. An authorized person Analysis i. SLCN applications a. Mr. Kennedy s affidavit and his identification of exhibits in Ms. Sopiwynk s affidavit b. Mr. Andres Affidavit c. Ms. Sturney s and Ms. Sopiwynk s affidavits... 36

3 Page: 3 ii. Canada s applications a. Moses # b. Moses # c. Moses # d. Moses # e. Reid # E. Conclusion on striking affidavits V. Facts VI. Canada s Applications A. Application to strike Abuse of Process: r 3.68(2)(d) i. Is this action abusive for raising the same issues as the 1987 Action? No reasonable cause of action: r 3.68(2)(b) i. Do the release and indemnity provisions establish that there is no reasonable cause of action? ii. Do limitations bar this action? Frivolous, irrelevant and improper pleadings: r 3.68(2)(c) B. Application for summary dismissal What is the test for summary judgment? Is the record sufficient to permit me to reach a fair and just disposition? i. Canada said Bill C-31 members do not fall within the treaty land entitlement process ii. Mr. Kennedy said Canada would not require a release iii. Loss of Use Damages not mentioned in Release iv. Bill C v. Mr. Metcs expert evidence vi. SLCN doesn t think ongoing obligations are included in the Release vii. Canada concealed its research on the effect of Bill C The Release i. Interpretive approach ii. What claims were released? a. CPP b. Bill C-31 members/bill C-3 members: c. Damages for loss of use:... 71

4 Page: 4 d. Sturgeon Lake and lakebed: e. Land in severalty: iii. Is the Release enforceable iv. Was there fraud or misrepresentation? Was there informed consent? v. Was the Referendum flawed? vi. Conclusion on the Release Limitation period i. What limitation legislation applies? ii. Is there an express trust and do s. 14 of the Judicature Act and ss. 40 and 41 of the LAA apply? iii. Allegations of fraud iv. Discovery of the causes of action vi. Declaratory relief is not subject to limitation periods vii. Limitations legislation are unconstitutional viii. Conclusion C. Conclusion VII. Alberta s application A. The Claims against Alberta B. No reasonable claim: r 3.68(2)(b) C. Frivolous, irrelevant, improper, and abuse of process: r 3.68(c) and (d) Claims against Alberta are statute barred Collateral attack Relitigating decided issues i. Issue estoppel a. Same issues b. Consent Order is a final decision c. Same parties d. Discretion of the Court ii. Cause of action estoppel iii. Abuse of process D. Duty to consult VIII. SLCN s application to amend the Statement of Claim

5 Page: 5 A. Proposed Amendments B. The law on applications to amend C. Analysis D. Conclusion IX. Constitutional Notices X. Conclusion XI. Indemnity and Costs Appendix Appendix Affidavit of Sarah Lander SLCN Affidavits Moses # Affidavits of Paul Emerson Reid Reid #2123 Affidavit of Robert Metcs, Alex Van Kralingen, and Tara Smock Affidavit of Lawrence Courtoreille Affidavits of Carlene Scott Scott # Scott # Scott # Affidavits of Arlene Sunshine, Ron Soto, Lawrence Soto, and Margaret Kappo Affidavit of Kimberly E. Dean Affidavit of David Khan

6 Page: 6 I. Introduction [1] The Sturgeon Lake Indian Band, otherwise known as the Sturgeon Lake Cree Nation (SLCN) sued Canada and Alberta for breaches arising from Treaty 8 and a 1990 Treaty Land Entitlement Agreement (the 1990 TLE Agreement). This Agreement was entered into as a settlement of an action by SLCN in 1987 (the 1987 Action), following a Band Referendum (the Referendum) approving the settlement and was then incorporated into the Consent Order of Miller ACJ resolving the 1987 Action. Canada now applies to either strike or summarily dismiss the action because under the 1990 TLE Agreement, the SLCN completely released Canada and Alberta from all claims arising under Treaty 8. Canada also asserts that the claims are brought outside the limitation period. Alberta agrees with Canada, and has brought its own application to strike the claims against it. II. Executive summary [2] The SLCN pleaded, asserted, and argued a wide variety of things, using language developed over thirty years of jurisprudence dealing with aboriginal law and the relationship of Canada with its First Nations, including the important goals of reconciling the interests of aboriginal societies with the broader political community, fulfilling treaty rights, negotiating land claims in good faith, the nature of aboriginal title and the duty to consult when developing resources on land claimed by Aboriginal peoples, and the suis generis nature of rights and obligations arising from the Crown s relationship with Aboriginal peoples. [3] But SLCN has relied on these concepts without attention to the context in which they arise. It is not enough to assert, for example, a free standing fiduciary duty and a breach of that duty without considering whether the dealings in question give rise to fiduciary obligations (Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14, at paras 49-50). Similarly, it alleges breach of the duty to consult without considering the context under which the duty to consult arises -- when Crown action might adversely affect aboriginal interests; the content of that duty -- which varies with the context; and to whom that duty is owed -- the aboriginal group holding the s. 35 rights, not the individual (Behn v Moulton Contracting Ltd, 2013 SCC 26 at paras 27-30). [4] Counsel for SLCN spent much time, particularly in oral argument, suggesting that Canada and Alberta breached the duty to consult because individual members of the Band did not have legal advice, because Band members who did not live on the reserve did not vote in the Referendum, because new members under the amendments to the Indian Act did not have a voice in the negotiations or Referendum, and because the Referendum was flawed. I doubt that the duty to consult can arise in a negotiation in which all parties participate, but even if there is such a duty, Canada fulfilled it. The SLCN was represented by experienced lawyers, paid for by Canada; the Band expressly acknowledged it received independent legal advice in the 1990 TLE Agreement; the individual members could and did attend the negotiation meetings; Canada and Alberta participated in an information meeting about the settlement; and there were additional materials describing the settlement were provided to members. [5] SLCN also argued that this Court must determine whether the compensation provided in the 1990 TLE Agreement satisfied Canada s obligations under Treaty 8. I conclude that this is an untenable argument and demonstrates the underlying problems of both this action and the SLCN s response to Canada and Alberta s applications. Going into negotiations for the 1990

7 Page: 7 TLE Agreement, all parties agreed that the terms of Treaty 8 had not yet been fulfilled. SLCN sued over that entitlement (the 1987 Action) and, rather than pursue its claims in the courts, it entered into three way negotiations with Canada and Alberta to resolve the claims. The parties reached an agreement to resolve the action. These negotiated terms were more than Canada and Alberta asserted were required under Treaty 8 and less than what SLCN argued was its entitlement. In other words, the 1990 TLE Agreement represented a compromise of the parties positions. If SLCN believed that the settlement was insufficient, it could have refused to execute the Agreement and continued its action in the courts, and the court would then have resolved what the SLCN was entitled to under Treaty 8. [6] What SLCN cannot now do is bring another action covering all the same claims and issues raised in the earlier settled action and argue that the 1990 TLE Agreement did not meet the terms of Treaty 8. That is the point of including a release in a negotiated settlement Releasors agree that the terms of a settlement agreement satisfies their claims and they therefore release the defendants from any further claims for the same cause of action. [7] The SLCN further argues that the Release, at least as interpreted by Canada and Alberta, extinguished its treaty and constitutional rights in a manner that breached fiduciary and trust obligations. Again this demonstrates a fundamental misunderstanding of the nature of modern treaty land entitlement agreements (TLEs), releases, and fiduciary and trust obligations. When entering into modern TLEs and treaties, the honour of the Crown requires Canada to reconcile aboriginal and public interests: Quebec (Attorney General) v Moses, 2010 SCC 17 (at para 116). In that decision, LeBel and Deschamps JJ noted that modern agreements reflect a mixture of rights, obligations, payments and concessions that have already been carefully balanced (para 116). Properly understood within the context of the surrounding circumstances, the Release does not extinguish Treaty rights; it represents the SLCN s agreement that its rights related to land under Treaty 8 have been fulfilled. [8] The SLCN s assertion that contracts with First Nations are not bound by the strict principles of contract law misstates current law both aboriginal and contract. Contract law requires courts to interpret agreements according to the text of the document, as elucidated by surrounding circumstances. Surrounding circumstances must never be allowed to overwhelm the words of that agreement The goal of examining such evidence is to deepen a decision-maker's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. (Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 at para 57). [9] Similar principles apply to the interpretation of modern aboriginal agreements. Binnie J in Moses (at para 6) stated: it is necessary to approach this case on the basis of the terms the parties actually negotiated and agreed to as set out in the text of their agreement rather than on general observations and ideas which, in my respectful view, are unsupported by the text. [10] In this case, the evidence established that the parties fairly and fully negotiated the SLCN s claims under Treaty 8, including shortfall land claims, additional land claims, land in severalty claims, damages for loss of use, and claims to Sturgeon Lake and its lakebed. The parties disagreed on whether Treaty 8 promised land based on the SLCN population on the date

8 Page: 8 the Treaty was signed ( date of Treaty signing or DOTS), on the date of the first survey (DOFS), on the current population (CP), or based on the theory of current population in perpetuity (CPP). They reached an agreement on an amount of land and cash that was more than that at DOFS, but less than CP or CPP. The parties were aware that the SLCN population was rapidly increasing by virtue of An Act to Amend the Indian Act, (also known as Bill C-31). I infer from the surrounding circumstances that the Release in the 1990 TLE Agreement released Canada and Alberta from all claims dealing with land arising from Treaty 8, including all those claims related to Bill C-31, CP, CPP, Sturgeon Lake, and loss of use damages. In releasing all future claims related to Treaty 8 land entitlement, the SLCN also released any potential claim arising from Bill C-3. [11] Specifically, in relation to Canada s applications, I conclude that the paragraphs of the Statement of Claim dealing with the same issues that were raised in the 1987 Action and resolved by Consent Order incorporating the 1990 TLE Agreement must be struck as an abuse of process. The struck claims are: Paras 14-17, 20-21, 22(d) and (e). These paragraphs make allegations surrounding the Treaty 8 negotiations. The 1987 Action concerned the Treaty 8 negotiations and addressed land entitlement shortfall; Paras 35-42, 52-54: These paragraphs allege that Treaty 8 provided for continuing provision of land as population increased and that Canada has failed to provide additional lands based on population increases; that was the SLCN s position in negotiations, leading to the 1990 TLE Agreement. Paragraph 43 is struck to the extent it includes paras 14-17, and 35-42; Paragraph 44 is struck. It is virtually identical to para 12 in the 1987 Action; Paras 47 is struck as it relates to Sturgeon Lake; Paragraphs 58 and 75, to the extent they seek land for new members as a result of Bill C-31, which was raised as part of the negotiations leading to the 1990 TLE Agreement; Paras 71-76: These paragraphs allege that SLCN is entitled under Treaty 8 to lands based on their current population and that the SLCN are entitled to lands in severalty. Each of these assertions were raised and resolved in the 1987 Action [12] Alternatively, I would also summarily dismiss these same paragraphs on the basis of the terms of the release or again alternatively because they were filed outside of the limitation period. I further conclude, based on the terms of the Release and the limitation period, that paragraphs and are summarily dismissed. As well, the claims in paragraphs related to the 1990 TLE Agreement are summarily dismissed. [13] While I struck or dismissed claims in Canada s application, I also addressed Alberta s application to strike, even though many of the same claims were involved. In response to my request, Alberta confirmed its oral submissions that it was seeking to strike paragraphs 6-8, and Paragraphs 6-7 are bare assertions of a fiduciary relationship between SLCN and Alberta and SLCN and Canada. There are fiduciary aspects to these relationships, but not all obligations in the relationship are fiduciary. I will not strike these paragraphs, but note that without more, they do not establish any basis for the alleged breaches later in the claim. [14] Paragraph 8 is a statement that Alberta is a necessary party to this action. I will not strike this paragraph. Paragraphs plead the facts that SLCN claims support the allegations in

9 Page: 9 paragraphs I order all these paragraphs struck because legislation and treaties cannot give rise to fiduciary obligations. Further, these paragraphs constitute a collateral attack on the Consent Order of Miller ACJ and also run afoul of the res judicata doctrine. I also strike paragraphs 69-76, as they too constitute a collateral attack on the Consent Order of Miller ACJ. [15] I will allow the proposed amendments to the Fourth Amended Statement of Claim that deal with land, and I adjourn the application to amend the claims dealing with annuity payments and economic benefits. III. SLCN s Application to Amend [16] SLCN also brought an application to amend the Fourth Amended Statement of Claim. I decided that the stay and summary dismissal application would proceed first, and I would then deal with the amendment application. [17] Canada argues that the SLCN, anticipating that its amendment application would proceed first, based some of its arguments upon the assumption that the amendments would be granted. Thus, SLCN s written arguments raise claims that have not been pleaded; these arguments are often enmeshed in arguments dealing with pleaded claims. [18] I have chosen to address the SLCN s arguments about unpleaded claims within the strike and dismissal applications because the evidence for all applications will essentially be the same and because the tests are similar, although not identical. In an application to strike the test includes whether the claim is an abuse of process (see for example: Behn, or there is no reasonable cause of action see for example: R v Imperial Tobacco Canada Ltd, 2011 SCC 42). In a summary dismissal, the Plaintiffs have an evidentiary burden to prove there is no issue for trial and there is then a shift to the Defendant to put its best forward with evidence to establish there is merit to its claims that can only be resolved at trial (see for example: Windsor v Canadian Pacific Railway, 2014 ABCA 108). [19] An application to amend a statement of claim can be refused if, among others, the amendments do not disclose a cause of action or if the amendment would be vexatious, embarrassing or an abuse of process (both akin to an application to strike). Further, the application should be dismissed if it is clear that the amendment is bound to fail on the merits and there is no genuine issue for trial. In other words, the amended claim would not survive a summary judgment application. : CHS v Alberta (Director of Child Welfare), 2006 ABQB 528 (at para 11) (per Slatter J as he then was), aff d 2006 ABCA 355; cf: Attila Dogan Construciton and Installation Co Inc v AMEC Americas Ltd, 2014 ABCA 74 (at para 26) discussed further in these Reasons at para 573; see also Mikisew Cree First Nation v Canada, 2000 ABQB 899 (at para 7); Rago Millwork & Supplies Co Ltd v D Woodhouse Construction Ltd (1981), 28 AR 499 (QB) (para 16); WR v Alberta (Attorney General, 2004 ABQB 979 (at para 10); Balm v Canada Ltd, 2003 ABCA 98 (at para 25; cf at para 29); Brar v. Roy, 2005 ABCA 269 (at paras 17-18). [20] If the strike application or dismissal applications are successful, the amendment application would be unsuccessful for much the same reasons. [21] I will, however, also expressly deal with the application to Amend the Statement of Claim to ensure that all the arguments raised by the parties are addressed.

10 Page: 10 IV. Materials Filed A. Briefs and additional materials [22] The parties filed numerous briefs and materials, as follows: Canada Brief and materials filed November 7, 2014, consisting of three volumes: Volume 1: Written Submissions Volume 2: Additional Evidence Volume 3: Authorities Written Reply Brief filed December 23, 2014, consisting of three volumes: Volume 1: Written submissions Volume 2: Additional Evidence Volume 3: Authorities Reply Brief, filed January 15, 2015, to Plaintiff s Application to further amend their fourth Amended Statement of Claim, consisting of three volumes: Alberta Volume 1: Written submissions Volume 2: Additional Materials Volume 3: Authorities Brief and Materials, filed December 22, 2014, consisting of four volumes: Volume 1: Written submissions Volume 2: Additional Documents Volume 3: Authorities Volume 4: Authorities Brief and Materials filed January 15, 2015, in response to the Plaintiffs Application to Amend Statement of Claim, consisting of two volumes: SLCN Volume 1: Written submissions Volume 2: Authorities Brief and Materials filed December 16, 2014, consisting of three volumes: Volume 1: Written submissions Volume 2: Authorities (filed December 17, 2014); Volume 3: Authorities (filed December 17, 2014) Brief and materials filed January 15, 2015, consisting of two volumes:

11 Page: 11 Volume 1: Written submissions Volume 2: Authorities Brief filed April 13, 2015 re: De facto Doctrine. B. The Pleadings [23] In the current pleadings, the Fourth Amended Statement of Claim, the Plaintiffs state that they bring this action on their own behalf, on behalf of the Sturgeon Lake Cree Nation and on behalf of all members of the Sturgeon Lake Cree Nation, all of whom have the same interests in these proceedings. The claim pleads the following: Alberta is a necessary party to this action because of its obligations under the National Resources Transfer Agreement, Schedule II of Constitution Act, 1930, George V, c. 26 (U.K.) (NRTA); The oral promises made by the Treaty Commissioners form part of Treaty 8 or a collateral agreement of the Treaty; The rights under Treaty 8 include promises not to interfere with hunting, trapping, and fishing; promises to set aside lands of 128 acres per person for lands in common and 160 acres person for lands in severalty; promises that the First Nations would select their land where they chose as long as they were not already taken up for settlement; Canada breached a duty to SLCN to disclose the full value of the lands and their mines and minerals before they were ceded. As a result Canada acquired the lands for less than its actual value; Treaty Commissioners orally promised that land would be provided in the future based upon current population value CP or CPP but, in breach of these promises, Canada s policy is to provide land calculated based on the population as of the date of first survey (DOFS); SLCN seeks a right to land based on CPP that includes SLCN members that acquired their Indian status under Bill C-31; Bill C-31 discriminates among the classes of descendants of Indians in terms of who is entitled to pass on Indian status ; Canada induced the Band to accept reserves upon the express representation that Sturgeon Lake and its renewable and non-renewable resources, including the waterbed, formed part of the reserves. Alternatively, during the survey of the reserves, the surveyor included the lake within the reserves; The NRTA imposed the same trust, fiduciary and treaty obligations on Alberta as imposed on Canada by Treaty 8; The 1990 TLE Agreement was far short of what SLCN was entitled to under Treaty 8 and Canada breached its fiduciary duty to the SLCN by supporting the 1990 TLE Agreement; While negotiating the 1990 TLE Agreement, Canada and Alberta failed to disclose material facts including that the SLCN were entitled to select land based on CPP and were entitled to mineral rights in whatever land they selected, and were entitled to select lands with existing mineral leases, and that there were vast amounts of mineral wealth in the surrendered lands;

12 Page: 12 Despite the fact that the SLCN s representatives impressed upon Canada and Alberta during negotiations for the 1990 TLE Agreement that its membership had doubled as a result of Bill C-31, this fact was not taken into account in the amount of land provided to SLCN; The Release given by the SLCN in the 1990 TLE Agreement was given without informed consent. [24] Appendix 1 of these Reasons consists of a table summarizing the claims in the Fourth Amended Statement of claim, identifying which Defendant or Defendants are the subject of the claim, what cause of action the claim relates to, and whether the claim is in relation to land. [25] Canada filed its Statement of Defence, consisting of a general denial, the expiry of limitation periods, and the release and indemnity provisions of the 1990 TLE Agreement. [26] The 1990 TLE Agreement arose as a negotiated settlement to an earlier action brought by SLCN against Alberta in Action # (the 1987 Action). Several pleadings from the 1987 Action file have been attached as exhibits to several affidavits filed in this action, including the Statement of Claim, the Affidavit of then Chief Goodswimmer, and the Consent Judgment signed by Miller ACJ. The 1987 Statement of Claim pleaded the following: The Band entered into Treaty 8 under the assurance that the treaty would not lead to any interference with their mode of life, and guaranteed them the right to pursue their usual vocations throughout their traditional lands; Treaty 8 promised that the Band would be provided with the means to gradually modify their way of life with the promise to set aside reserves and provide agricultural implements and livestock for their use; Treaty 8 provided for 128 acres per person living on reserves and 160 acres per person of land in severalty for Indians who wished to live separate and apart from Band reserves; these lands were to be set aside over a period of time or in gradual stages; Crown representatives induced the Band to accept reserves upon the express representation that Sturgeon Lake and its renewable and non-renewable resources, including the waterbed, formed part of the reserves. Alternatively, during the survey of the reserves, the surveyor included Sturgeon Lake within the reserves; Under the Constitution Act 1930 (NRTA), Canada transferred its interests in all Crown lands, mines, minerals and royalties derived therefrom within Alberta to Alberta, subject to any trusts and to any third party interests; The Band has not received its full entitlement to land, and Canada has acknowledged that not enough reserve land was set aside and additional treaty land entitlement is owed to the Band. The next step, according to Canada is for Canada, Alberta and the Band to enter into negotiations; Notwithstanding these pending negotiations, Alberta has unilaterally purported to offer petroleum and natural gas leases and licenses throughout the Band s traditional lands; This purported offer for sale of licenses and leases is ultra vires the Province and impinges upon the Band s unfulfilled treaty rights under Treaty 8; Treaty 8 impressed upon Canada an express or constructive trust or fiduciary duty to protect that Band s reserves and the disposition of its traditional lands; further

13 Page: 13 Alberta was impressed with the same trust and cannot dispose of its interests in these lands without consultation and concurrence from the Band; and The Band retained the right to have the non-renewable resources within its traditional lands exploited in a manner consistent with the Band s evolving economic needs and with maintaining its traditional way of life. C. The Evidence 1. Canada s evidence [27] Canada filed the following Affidavit evidence: The Affidavits of Tatjana Sopiwynk, filed January 14, 2005 (dealing with early procedural history) and July 10, 2013, consisting of three volumes with exhibits numbered from A ZZZZZ; The Affidavit of Sean Kennedy, filed March 17, 2014, with exhibits A-M; The Affidavit of Linda Sturney, filed October 15, 2014 with exhibits A-H. [28] It also filed two volumes of additional evidence: Volume 2 Additional Evidence filed November 7, 2014 consisting of 5 documents, tabbed 1-5; and Volume 2 Additional Evidence, filed December 23, 2014, consisting of five documents, tabbed 1-5. [29] SLCN filed the transcripts of cross-examination on these affidavits: Mr. Kennedy, Ms. Sopiwynk, and Linda Sturney. [30] The SLCN has applied to strike these affidavits. Brief summaries of the affidavits follow. Affidavit of Tatjana Sopiwynk [31] Ms. Sopiwynk deposed that she worked on this action as a paralegal since September 2004, and that her duties included managing Canada s producible document collection, reviewing some of SLCN s and Alberta s producible documents, and requesting and reviewing records from the Court of Queen s Bench of Alberta in Action No (the 1987 Action), and in particular the Consent Order in that Action. The affidavit consists primarily of a recitation of many of Canada s producible documents placed within the historical context of the SLCN s claims, dating from [32] Ms. Sopiwynk s affidavit includes three appendices. Appendix 1 contains a chart crossreferencing the documents in Canada s producible documents with those in Alberta and SLCN s producible collection, thus illustrating where the parties had the same documents. Appendix 2 sets out defined terms and Appendix 3 sets out an alphabetical list of people named in the exhibits. Affidavit of Sean Kennedy [33] Mr. Kennedy deposes that he is employed by Aboriginal Affairs and Northern Development Canada (DIAND) as a Litigation Information Analyst. He indicates that he has

14 Page: 14 worked for DIAND since May 1979, first as a researcher for the Office of Native Claims (ONC). From February 1981 he served progressively as a claims analyst (February 1981 July 1986), as an acting senior claims analyst, an assistant negotiator, and a negotiator for the Specific Claims Branch (July 1986 April 1, 1991); and as a policy analyst on secondment from the Specific Claims Branch (April August 1991). From September 1991 to October 2011, he was a self-employed consultant, hired by Canada as a lead negotiator in various claims. Since October 2011, he has been employed as a litigation information analyst. [34] Mr. Kennedy indicates that while employed at DIAND, beginning in 1984, he worked extensively on the Sturgeon Lake land entitlement claim and negotiations, and served as Canada s negotiator leading to the eventual agreement among Canada, Alberta, and SLCN. He continued work on the file after the agreement was reached, including working on documenting the settlement agreement and on the approval of the agreement by SLCN by referendum. He deposes that he met with, corresponded with, and spoke, to many SLCN members in regards to this file, including the SLCN Chief, councillors, members, employees, and elders. [35] Mr. Kennedy further deposes that he believes he has more direct knowledge of the SLCN file than anyone else who worked for Canada. [36] Mr. Kennedy then goes on to say he has reviewed Ms. Sopiwynk s affidavit and the documents attached as exhibits. He says that he can identify many of the documents and records from DIAND s files, that he was familiar with the records at or about the time they were prepared, and swears that they were made in the usual and ordinary course of carrying out the work of the Specific Claims Branch. He further swears that most of the records in Ms. Sopiwynk s affidavit were prepared by him, sent by him, copied to him or reviewed by him on or close to the dates that appear on the records. He also swears that the documents are accurate and reflect the parties positions at the time they were prepared. [37] Attached as Appendix 1 to Mr. Kennedy s affidavit is a Table that sets out some of the records in Ms. Sopiwynk s Affidavit that were prepared by him, or sent by him, copied to him or reviewed by him, but he says that his knowledge of the records is not limited to those set out in the Table. The Affidavit goes on to expressly deal with some of the documents, including the Minutes of two March 21, 1989 meetings, prepared by his colleague Derek Dawson. He swears that he attended the meeting described in the notes and that the document is accurate and reflects the meeting discussions (para 14 and Ex NNN and OOO of Sopiwynk Affidavit). [38] Mr. Kennedy s affidavit then sets out his experiences in dealing with this file, his recollections of meetings, his dealings with the representatives of Alberta and SLCN, his discussions and memories of other SLCN band members, and his work on the file. [39] The following chart sets out the documents in the Sopiwynk Affidavit that were not expressly mentioned in Mr. Kennedy s affidavit as having been reviewed by, sent by, or sent to, him (Appendix 1 of Kennedy Affidavit). These documents were raised during crossexamination on his affidavit, and the following chart summarizes his responses to questioning as to whether he recalled the documents.

15 Page: 15 Sean Kennedy's Cross-examination on Affidavit Exhibit A B C D E W X Y Level of recollection saw it none none none did not see it at the time, but saw it later none I recall versions of this; I would have seen it at the time This was a document in the 1987 Action. Kennedy did not have first hand knowledge of these documents but they had been brought to his attention : see p 40, ll 22 page 41, ll 5) Z (asked and then abandoned: see page 41, lines 11 25) AA This was a document in the 1987 Action. Kennedy did not have first hand knowledge of these documents; he does not remember seeing the Goodswimmer affidavit in 1989 or referring to it in negotiations: see p 40, ll 22 page 41, ll 5, and p 41, ll11-25) BB (skipped: see page 41, line 26 page 42, line 1) QQ none NNN likely saw them, but does not remember (pp 42, ll 7-15) OOO QQQ ZZZ AAAA LLLL does not recall seeing them at the time of they were made (1989), but does remember them today from reviewing files for this litigation; (p. 42, ll16-23) not involved in drafting, but aware of various versions at the time I recall the content; I may have seen a version that was not signed none no recollection seeing the document as a whole; maybe parts of it

16 Page: 16 Sean Kennedy's Cross-examination on Affidavit Exhibit MMMM Level of recollection saw it NNNN saw it OOOO saw it PPPP none QQQQ (not mentioned, would be page 46 or 47) RRRR I don't know, though I recall seeing several newspaper articles SSSS TTTT UUUU XXXX YYYY ZZZZ AAAAA BBBBB FFFFF IIIII JJJJJ KKKKK LLLLL MMMMM NNNNN none none none vague none saw it none none none no recollection, though I recall the context of it I recall the Order in Council, but not the covering letter none not sure, thought I recall the subject matter none none

17 Page: 17 Sean Kennedy's Cross-examination on Affidavit Exhibit OOOOO QQQQQ RRRRR SSSSS TTTTT UUUUU VVVVV WWWWW XXXXX YYYYY ZZZZZ Level of recollection none none none none none none none none none none none Affidavit of Linda Sturney [40] Lynda Sturney deposes that she is employed as a project manager and team leader for the Litigation Management and Resolution Branch of DIAND, assigned as litigation project manager for this action. Her evidence is that she has reviewed the Sopiwynk and Kennedy Affidavits and, on the basis of her review of these affidavits and her knowledge of the proceedings generally, she believes there is no merit to the action. Her reasons for this belief include: Her review of the status of the document production and questioning in this action; There is no merit to the SLCN s claim based on CP or CPP, noting that Canada s position has been that entitlement should be based on the population at the date of first survey (DOFS). In any event SLCN abandoned that position in negotiations in their Sixth Proposal. Further, the 1990 TLE Agreement was intended to settle any claims based on land under Treaty 8, including any claims to land based on CP or CPP, and the Agreement included a full and final release of any such claims. Further, the SLCN was out of time in bringing its claim. For the same reasons, there is no viable claim based on mines and minerals title; There is no merit to a claim based upon the quality of the land, as the initial survey granted additional land to account for some muskeg within the reserve. As

18 Page: 18 well, the 1990 TLE Agreement settled and released all land claims arising from Treaty 8 and the claim is brought out of time. There is no merit to the claim to the Sturgeon Lake lakebed as the evidence establishes that the lakebed never formed part of the reserve, and in any event the 1990 TLE Agreement settled and released all land claims arising from Treaty 8 and the claim is brought out of time. There is no merit to the claim based upon land in severalty because Canada s position is that the land in severalty was an option only available at the time of an original land survey of a reserve, and in any event the 1990 TLE Agreement settled and released all land claims arising from Treaty 8 and the claim is brought out of time. There was land and money provided to SLCN in consideration for the 1990 TLE Agreement. The 1990 TLE Agreement was approved by the SLCN members by referendum, conducted by the SLCN Chief and Council. The Action was filed on April 2, 1997 and the original version of the claim does not refer to the 1990 TLE Agreement. The first pleading was therefore filed almost one hundred years after the original land survey for the SLCN. The Amended Statement of Claim was filed on or about July 25, 2000, and it refers extensively to the 1990 TLE Agreement. The last execution of the Agreement was no later than January 11, 1990, therefore the claim is out of time. 2. Alberta s evidence [41] Alberta filed affidavits by Sarah Lander and Steven Andres. Mr. Andres was crossexamined on his Affidavit and SLCN filed the transcript. [42] The SLCN applied to strike Mr. Andres Affidavit. A Brief summary of his affidavit follows. A summary of Ms. Lander s affidavit is in Appendix 1. Affidavit of Steven Andres [43] Steven Andres, employed by Alberta Aboriginal Relations as the Director of Land Claims, deposed that, based on his review of the documents attached to his affidavit the SLCN entered into a settlement of their claim, the SLCN release Alberta from claims to land entitlement, and ACJ Miller signed a Consent Order approving the settlement of SLCN s claim.. Those documents include: 1. Exhibit A: A copy of the 1990 TLE Agreement, as produced in the Plaintiff s production in this action; 2. Exhibit B: A copy of the executed release, from Alberta s document production; 3. Exhibit C: A certified true and faithful transcript of the proceedings before ACJ Miller, as produced in the Plaintiff s production in this action. 3. SLCN [44] Karl Moses swore four affidavits, as representative of the SLCN Chief and Council, as follows: 1. Karl Moses Affidavit re TLEs (Moses #1), filed August 29, 2014; 2. Karl Moses Affidavit (Moses #2), filed August 29, 2014;

19 Page: Karl Moses Affidavit re: Will Say statements (Moses #3), filed October 31, 2014; 4. Karl Moses Affidavit re: Discoverability (Moses #4) filed December 19, A summary of this affidavit can be found in Appendix 2. [45] Paul Emerson Reid, a lawyer with Rath & Company, filed two affidavits as follows: 1. Paul Emerson Reid Affidavit (Reid #1) filed November 20, 2014; 2. Paul Emerson Reid Affidavit (Reid #2) filed March 2, A summary of this affidavit can be found in Appendix 2. [46] Carlene Scott, a legal assistant employed by Rath & Company, filed three affidavits as follows: 1. Carlene Scott Affidavit (Scott #1), filed January 28, 2015; 2. Carlene Scott Affidavit (Scott #2), filed February 5, 2015; 3. Carlene Scott Affidavit (Scott #3), filed March 5, Summaries of these affidavits can be found in Appendix 2. [47] Kimberley Dean and David Khan, both employees with Rath & Company filed affidavits, filed March 4, 2015 and April 16, 2015 respectively. Summaries of these affidavits can be found in Appendix 2. [48] As well SLCN filed affidavits by Robert Metcs, Alex Van Kralingen, and Tara Smock as expert evidence. Lawrence Courtoreille, a former Chief of Mikisew Cree First Nation (MCFN), swore an affidavit in support of SLCN. Summaries of these affidavits can be found in Appendix 2. [49] SLCN also filed affidavits, on February 20, 2015, by Arlene Sunshine, Ron Soto, Lawrence Soto, and Margaret Kapo, members of SLCN who were residents on the SLCN Reserve at the time of the Referendum vote to approve the 1990 TLE Agreement. Summaries of these affidavits can be found in Appendix 2. [50] Ron Sunshine, the SLCN Chief at the time of the 1990 TLE Agreement swore an affidavit on February 13, [51] Canada filed the transcripts of cross-examination on affidavits of Mr. Moses, Ms. Smock, Mr. Sunshine, Ms. Scott, Mr. Reid, and Ms. Dean. [52] Canada applied to strike Moses #1 and to give limited or no weight to Moses #2 and #3 and to Mr. Reid s November 20, 2014 Affidavit. A brief summary of those four affidavits follow. Moses #1 Re TLE s [53] In Moses #1, Mr. Moses deposed that under the 1990 TLE Agreement, SLCN received $6,148,835 in cash and 16,207 acres of land and at the time the SLCN population was 932. [54] Mr. Moses then appends to his affidavit evidence related to 13 TLE Agreements from other Bands. In some cases, he provides the actual agreements, and in others, he appends third party records, without attribution of where the records originated. Based on these records, he sets out the terms of these TLE Agreements: the amount of land provided, cash provided, if any, and whether there was a release clause, if known. Mr. Moses also deposes to the population of some of the bands at the time of the agreement, or the population used as the basis for establishing entitlement.

20 Page: 20 Moses #2 [55] Mr. Moses, in Moses #2, deposed that he was a duly elected member of Chief and Council for SLCN, and that he was selected by Chief and Council to act as its representative in this lawsuit. He deposed that the Proposal, dated December 18, 1987, by Chief Ronald Sunshine prompted the negotiations leading to the 1990 TLE Agreement, and he attached that proposal to his affidavit as Exhibit A. He noted that Canada and Alberta responded to this proposal through their negotiators, Sean Kennedy and James Prentice, and those responses are attached to his affidavit as Exhibits B and C. [56] Mr. Moses affidavit then quotes from the appended documents and draws conclusions and inferences from the documents, suggesting that these letters set the parameters for which SLCN entered into negotiations and asserting that the present Chief and Council believes that the Release in the TLE does not limit SLCN from claiming additional land pursuant to Treaty. Mr. Moses also asserts, based on legal advice, that Treaty No. 8 gives the SLCN claim to land based on CPP, relying on the Report of Commissioners for Treaty No. 8, (attached to his affidavit at Exhibit E). The affidavit goes on to quote the Report of Commissioners as follows: It would have been impossible to have made a treaty if we had not assured them that there was no intention of confining them to reserves. We had to very clearly explain to them that the provision for reserves and allotments of land were made for their protection, and to secure to them in perpetuity a fair portion of the land ceded, in the event of settlement advancing. [57] Mr. Moses affidavit then goes on to refer to Crown documents produced in the lawsuit in which Canada provided land to other First Nations on the basis of CP. These were attached to his affidavit as exhibits as follows: Exhibit F: Discussion Paper Treaty Land Entitlement, dated April 20, 1988, which identified the history underlying treaty land entitlement negotiations in the Prairie provinces, noting that at least eight TLE settlements were approved by Canada based on contemporary populations, that Canada supported the agreement between Saskatchewan and the Indians (the Saskatchewan Formula contemporary population capped as of December 31, 1976), and that since 1976 at least six ad hoc settlements were reached based on contemporary population figures; Exhibit G: Ministerial Briefing, dated August 29, 1988, that identified the various bases used to settle TLE s, including DOFS, the Saskatchewan Formula, and contemporary base settlements. The Briefing noted: While the shortfall at DOFS has always been the firm basis of the TLE claim, the amount of land and cash provided to settle a TLE claim has depended upon the resources available to the government of the day. When the TLE question is squarely addressed in court, the court is likely to conclude that DOFS shortfall is the minimum owed to any band, and that more may be owed depending upon the history and circumstances of any particular case.

21 Page: 21 [58] The Briefing also noted that Indian bands who were owed land over a long period of time are asserting claims for loss of use, and that the current federal position is that loss of use claims will only be considered, on their merits, after a settlement of the land itself has been achieved. Mr. Moses deposes that the SLCN Chief and Council are not aware of any compensation provided in the TLE to SLCN for loss of use of the lands. [59] He also deposes that the Briefing says that Bands who opt for DOFS approach will not be asked for a release by Canada with respect to future land claims under treaty. [60] Mr. Moses then attaches to his affidavit as Exhibit H a copy of a Band Council Resolution (BCR) setting the terms of the Referendum (also at Ex. SSS of Sopiwynk affidavit). Mr. Moses quotes only clause 3 of the BCR in the body of the affidavit. Clause 2 is also relevant and the two clauses read: 2.(1) When the Band is to be asked to approve the Settlement Agreement, the Band Council shall determine the dates and locations of the vote, and the appropriate period of notice for the referendum The procedure for voting, subsequent referendums and appeals except as otherwise stated herein, shall be pursuant to the procedures set out in the Indian Referendum Regulations enacted pursuant to the Indian Act... [61] Mr. Moses then deposes that from the records it appears that the Referendum did not follow the Referendum Regulations, but he does not specify which records he consulted. He notes that the Notice of the Referendum was dated June 12, 1988, ten days before the vote and attaches the Notice as Exhibit I. He also deposes that SLCN has no information as to whether a voters list or list of electors was created or posted. He attaches as Exhibit J a copy of the Referendum Regulation that states that Notice of a referendum must be posted 30 days before a vote, and that a list of electors must be prepared and posted 15 days before the vote. [62] Attached as Exhibit K to Mr. Moses Affidavit, is a BCR, dated May 25, 1989, asking the Minister [DIAND] to hold the Referendum. He further deposes that he was advised by his counsel that the Minister appointed an officer of DIAND as Electoral Officer and attaches as Exhibit L, a copy of the affidavit sworn by the Electoral Officer, setting out the results of the referendum # of electors eligible to vote 305 # of electors who voted 233 # of electors voting in favour 214 # of electors voting against 17 [63] This document is also appears in various iterations in Ex ZZZ, AAAA, BBBB1-BBBB-8. of Sopiwynk s Affidavit. [64] Mr. Moses attaches a list of SLCN members as of December 31, 1986, a list produced by Alberta in this action. He deposes that he is informed by counsel that there were 550 SLCN members who were 18 years or older on June 23, Further, he is advised by counsel that a majority of electors is required to pass a Referendum. Section 3 of the Regulation reads: 3(1) The Minister may, at the request of the council of a band, or whenever he considers it advisable, order a referendum be held to determine if

22 Page: 22 (a) the majority of the electors of a band are in favour of a surrender, or (b) the majority of the electors who vote thereat are in favour of the issuance of a proclamation. [65] Mr. Moses deposed that SLCN has no record of members living off reserve being given notice of the Referendum or otherwise being allowed to vote. [66] Mr. Moses then discusses the effect of Bill C-31 and Canada s information related to the increase in SLCN population as a result of the changes under the Bill. Attached as Ex. N to his affidavit is a Communique, stamped received by SLCN on June 13, 1989, indicating that the research in 1988 revealed that C-31 amendments would result in a much greater demand for federal services than originally estimated. Mr. Moses deposes that, according to their records, SLCN was not informed of this research before receiving the communique. [67] Mr. Moses then refers to a Report to Parliament, Implementation of the 1985 Changes to the Indian Act, dated June 1987, and attached to his affidavit as Exhibit O. This document stated that as of May 31, 1987, SLCN had 447 new applicants through Bill C-31, and only 26 had been entered on the Band list. He says that this information was discussed at a Chief and Council meeting on July 29, 2014, and none of the Council or Chief were aware of it. Further, he deposes that SLCN has no record of this information being provided to it by Canada, and they believe that Canada did not disclose this information during negotiations. [68] Mr. Moses attached as Exhibit P, the C-31, Fifth Report of the Standing Committee on Aboriginal Affairs and Northern Development on Consideration of the Implementation of the Act to amend the Indian Act as passed by the House of Commons. The report says that DIAND underestimated the response to reinstatement and that it now expects 118,000 applicants to seek reinstatement. Mr. Moses deposed that Chief and Council said they were unaware of this information. Finally, he attached as Exhibit Q, Impacts of the 1985 Amendment to the Indian Act. Moses #3 [69] Mr. Moses third affidavit provides will say statements to confirm his evidence in Moses #1 that the SLCN had no record of off-reserve members being given notice of the Referendum vote on the 1990 TLE Agreement. Mr. Moses says that he asked SLCN staff to canvas members who were living off the reserve on the date of the referendum, and who were otherwise eligible to vote, whether they received notice of the Referendum. He deposes All members that were asked, either did not receive notice of the Referendum, or could not say one way or the other. [70] The seven will-say statements, attached to this affidavit as Exhibit A are pre-printed forms in which the signatory entered their name and address. The form has four bullet points: I was a member of the Sturgeon Lake Cree Nation (SLCN) on June 23, 1989 ; I was 18 years old or older on June 23, 1989 ; In June 1989, I was living in [space to fill in where they were living] ; and I did not receive notice of the Referendum vote for the SLCN Treaty Land Entitlement Agreement held June 23 and 24, 1989, and did not vote. The will-say statement then contains a line for a signature and for a witness s signature. Each space has been signed. [71] Mr. Moses also attached, as Exhibit B, a copy of an Expert Opinion by Professor Noel Lyon that deals with whether there is an ongoing right under Treaty 8 to call on Canada to negotiate for further reserve lands and whether Treaty 8 First Nations should receive land based