IN THE FEDERAL COURT OF CANADA TRIAL DIVISION

IN THE FEDERAL COURT OF CANADA TRIAL DIVISION Action No. T-1685-96 BETWEEN: CLIFF CALLIOU acting on his own behalf and on behalf of all other members of the KELLY LAKE CREE NATION who are of the Beaver, Cree and Iroquois peoples, - and - KELLY LAKE CREE NATION Plaintiffs AND: HER MAJESTY THE QUEEN IN RIGHT OF CANADA, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE HONOURABLE RON IRWIN, MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Parliament Buildings, Ottawa, Ontario Defendants WRITTEN ARGUMENT OF THE PLAINTIFFS Priscilla Kennedy PARLEE McLAWS Barristers and Solicitors 1500 10180-101 Street Edmonton, Alberta T5J 4K1 Tel: (403) 423-8593 Fax: (403) 423-2870 Solicitor for the Plaintiffs Patrick Hodgkinson JUSTICE CANADA Edmonton Regional Office 211 10199-101 Street Edmonton, Alberta T5J 3Y4 Tel: (403) 495-2983 Fax: (403) 495-3202 Solicitors for the Defendants

2. TABLE OF CONTENTS FACTS... Z' APPLICATION TO STRIKE OUT: RULE 419(1)... 23. NO REASONABLE CAUSE OF ACTION... 9. IMMATERIAL OR IRRELEVANT... 13. PREJUDICE, EMBARRASS OR DELAY... 14. / ABUSE OF PROCESS... 14. ' 2 ORDER REQUESTED... k5. / k

FACTS 1. The Applicant, the Attorney General of Canada seeks to strike out paragraphs 4, 5, 9 (except for the fact that the Plaintiffs have never adhered to Treaty No. 81, and 10 to 22 inclusive of the Plaintiffs' Statement of Claim. 2. The Plaintiffs filed a Statement of Claim July 15,1996 and Amended this Statement of Claim on February 6 and 19th, 1997. On October 25, 1996 a Response to Demand for Particulars was filed. Amended Amended Statement of Claim. [Tab 11 The paragraphs of the Statement of Claim which are at issue are: 4. Pursuant to the Royal Proclamation, 1763, it was provided that all Indian lands were to be reserved and protected from, inter ah, settlement without having been ceded or purchased by the Crown. 5. On June 23, 1870, The Rupert's Land and North-Western Territory Order-in-Council was issued and pursuant to that Order-in- Council, the Governors and Company of Adventurers of England trading into Hudson's Bay ("Hudson Bay Company") ceded to Her Majesty the Queen all of or any of their "lands, territories, rights, privileges, liberties, franchises, powers, and authorities whatsoever granted, or purported to be granted by certain Letters Patent in 1670.

9. Although there have been numerous adhesions to Treaty No. 8, the Kelly Lake Cree Nation and the Plaintiffs generally being in an area remote to those at issue, have never signed such an adhesion to Treaty No. 8, or become a party thereto, and no action of the Plaintiffs or deed of the Plaintiffs subsequent to that date, including the receipt of any benefits, could have had the effect of extinguishing or otherwise affecting the aboriginal rights, Indian title, and personal and usufructuary rights of the Plaintiffs. 10. The said Treaty No. 8 purported to effect the surrender and cession by the bands and Indians who were party thereto to the Government of the Dominion of Canada of all rights, titles, privileges whatsoever to the lands described in the said Treaty as well as to all other lands in the Dominion of Canada. 11. Under the said Treaty No. 8, Her Majesty the Queen agreed and undertook to lay aside reserves for such bands as desire same on the basis of one square mile for each family of five (5) and to provide land in severalty to the extent of one hundred and sixty acres to each Indian for such families or individual Indians as may prefer to live apart from band reserves, subject to certain conditions respecting the selection of lands, the surrender of lands and the appropriation of lands. 12. Treaty No. 8 did not and could not extinguish the Indian title and aboriginal rights, and personal and usufructuary rights of the Plaintiffs and their ancestors, and is without effect upon such title and rights in the absence of an adhesion to the Treaty by the Plaintiff Kelly Lake Cree Nation and the other individual Plaintiffs or their duly authorized representatives. 13. All of the aboriginal rights, Indian title and personal and usufructuary rights of the Plaintiffs have never been extinguished and are subsisting accordingly, the Constitution Act, 1982 applies. 14. The Plaintiffs retained their aboriginal rights to the lands and the natural resources associated therewith, as well as retaining their rights to self-determination, which rights are constitutionally protected by section 35 of the Constitution Act, 1982. 15. Alternatively, if Treaty No. 8 had the effect of extinguishing said title and rights of the Plaintiffs, or otherwise affecting them, which is denied, then the Plaintiffs are, at a minimum, entitled to

the rights and benefits specified in Treaty No. 8, and more particularly the Plaintiffs are entitled to the setting aside of a reserve of land pursuant to the said Treaty No. 8, the Constitution Act, 1930, and the Indian Act, R.S.C. 1985, c. 1-5 within their traditional lands. 16. In the further alternative, the Plaintiffs are entitled to have the said Treaty No. 8 declared to be null and void and of no force and effect as a result of the non-fulfilment by the Defendant, Her Majesty the Queen in Right of Canada of her obligations thereunder. 17. As well Her Majesty the Queen in Right of Canada without colour of right, entered into the Constitution Act, 1930 contrary to the aboriginal rights, Indian title, and/or personal and usufructuary rights of the Plaintiffs, and as a result, the Plaintiffs have and continued to suffer damages. 18. Further, the aboriginal rights, Indian title, and/or personal and usufructuary rights of the Plaintiffs are a trust and an interest other than that of the Crown in Crown lands in British Columbia and in Alberta within the meaning of the Natural Resources Transfer Agreement being the Constitution Act, 1930, consequently, these lands, natural resources, mines, and minerals are and continue to be subject to the trust and interest of the Plaintiffs. 19. The Plaintiffs are therefore entitled to the exclusive use and occupation of the areas described above and to the natural resources thereof, and to a Declaration of these rights. 20. The Defendants, Her Majesty the Queen in Right of Canada and the Minister of Indian Affairs and Northern Development, contrary to their obligation to protect the Plaintiffs, to ensure their welfare, well-being and comfort and to advance their development and to enhance their status, have breached their fiduciary, trust, constitutional, statutory, common law, and equitable obligations owed to the Plaintiffs, have failed to act exclusively for the benefit of the Plaintiffs and in their best interests and have failed to protect and preserve the rights, interests and property of the Plaintiffs. 21. The Plaintiffs are also entitled to a Declaration that they may execute an adhesion to Treaty No. 8 and to receive a reserve as provided for in that Treaty, as well as the exclusive use and benefit of all the natural resources in, upon or under the said reserve.

22. Further, the Plaintiffs are also entitled to compensation for damages to their lands, inter alia, for destruction of wildlife upon which the Plaintiffs rely, for destruction of other natural resources, and for the conversion of mines and minerals and other natural resources, for interference with the aboriginal use of the land including traditional activities, trap-lines, traps and trapping equipment, fishing and hunting, and for interference with religious and burial sites and with cultural, traditional and spiritual values. 4. On October 2, 1996, the Applicant, by letter, made a Request for Particulars. October 2, 1996 Letter. [Tab 21 A Response to Demand for Particulars was filed on October 25,1996. Response to Demand for Particulars. [Tab 31 6. The Response provides the date of incorporation of the Kelly Lake Cree Nation Society pursuant to the laws of British Columbia as well as the names, dates of birth, names of parents and dates of birth of parents of the Plaintiffs. It also provides further facts with respect to paragraphs 5, 9, 10, 13, and 14 to 22.

7. With respect to paragraph 5, it states that reliance is placed on the Rupert's Land and Northwestern Territory Order in addition to relying on the Royal Proclamation, 1763 in paragraph 4 of the Statement of Claim. Rupert's Land and Northwestern Territory Order. [Tab 41 Royal Proclamation, 1763. [Tab 51 8. As well, until approximately 1876, the area described in paragraph 2 of the Amended Amended Statement of Claim was completely within the North Western Territory. Subsequent to approximately 1876, a portion of this area became part of the Province of British Columbia. Changing Political Boundaries. Atlas of Alberta. [Tab 61 9. This area was not subject, prior to approximately 1876, to the British Columbia Terms of Union, 1871 nor to the Act to provide for Government of British Columbia (1858) 21 & 22 Vict., c. 99 or to the British Columbia Act, (1866) 29 & 30 Vict., c. 67. British Columbia T ms of Union, 1871. [Tab 71

8. 10. The area covered by the Amended Amended Statement of Claim was never part of the area of land subject to the Royal Charter granted to the Governor and Company of Adventurers of England Trading into Hudson's Bay (hereinafter referred to as the "Hudson's Bay Company") and accordingly was never part of Rupert's Land. Changing Political Boundaries, supra. Map 2. [Tab 61 Charter of the Hudson's Bay Company, 1670. [Tab 81 11. This area was part of the area referred to by the Parliament of the Province of Canada in a Select Committee Report in 1858, as "Indian Territory". Indian Territory was an area for which the Hudson's Bay Company was granted a license to trade on May 30,1838. The Hudson's Bay Company did not have any other rights, beyond the right to trade, in Indian Territory. Specifically, the Hudson's Bay Company did not possess any rights of governance in Indian Territory nor did the Hudson's Bay Company assert any form of dominion over Indian Territory. Province of Canada. Parliament. Appendix "C" lndian Population to Report of the Select committee appointed to receive and collect evidence and information as to the rights of the Hudson's Bay Company under their Charter, the renmal of the licence..., 1857. [Tab 91 Royal License dated May 30, 1838. [Tab 101

9. APPLICATION TO STRIKE OUT: RULE 419(1) Rule 419(1) provides: 419. (1) The court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that (a) (b) (c) (d) (e) it discloses no reasonable cause of action or defence, as the case may be, it is immaterial or redundant, it is scandalous, frivolous or vexatious, it may prejudice, embarrass or delay the fair trial of the action, it may constitute a departure from previous pleading, or (0 it is otherwise an abuse of the process of the court, and may order the action be stayed or dismissed or judgment be entered accordingly. 13. The Applicant, The Attorney General of Canada relies upon Rule 417(1) (a), (b), (c), (d), and (f) in his Notice of Motion. 14. The Alberta Rules of Court, contain the same provision as do most rules of court across Canada. Rule 129 provides that pleadings may be struck out in limited circumstances:

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 process of the court, NO REASONABLE CAUSE OF ACTION 15. Rule 419(1) of the Federal Court Rules and Rule 129(2) of the Alberta Rules specifically provide that no evidence is admissible on an application to strike where the ground argued by the applicant is that it is plain and obvious that there is no reasonable cause of action. The allegations contained in the Statement of Claim must be assumed by the Court to be provable by the Plaintiff and for the purpose of the application, to be true. Canada (A.G.) v. Inuit Tapirisat of Canada, [I9801 2 S.C.R. 735, 740. [Tab 111 16. The circumstances in which a statement of claim may be struck out, were considered by Madam Justice Wilson in Hunt v. Carey Canada Inc.. She

concluded that the rule was derived from the court's inherent power to ensure that they remained a forum for genuine legal issues. Hunt v. Carey Canada Inc., [I9901 2 S.C.R. 959, 970. [Tab 121 Madam Justice Wilson stated at page 980 of Hunt: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. 0. 18, r. 19; assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(2) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a). The question therefore to which we must now turn in this appeal is whether it is "plain and obvious" that the plaintiff's claims in the tort of conspiracy disclose no reasonable cause of action or whether the plaintiff has presented a case that is "fit to be tried" even although it may call for a complex or novel application of the tort of conspiracy. 18. The test stated in Hunt is, it is respectfully submitted, the same test that has been applied by Alberta courts for over twenty years. The Alberta Court of Appeal has stated that a claim should only be struck when a court is satisfied beyond a reasonable doubt that there is no cause of action. Only when it is plain

and obvious that no reasonable cause of action exists should a court apply this Rule and strike the claim. Cerny v. Canadian industries Limited et al., [I9721 6 W.W.R. 88 (Aka. C.A.). [Tab 131 19. Mr. Justice Cairns stated at page 95 of Cerny that the question must be beyond doubt. It is clear from these decisions that a court should not strike out a pleading or part thereof as disclosing no cause of action or as being frivolous or vexatious or as being an abuse of the process of the court, which in most cases would have the effect of dismissing an action or denying a party a right to defend, unless the question is beyond doubt and there is no reasonable cause of action; or a question is raised fit to be tried by a judge or jury, or merely because it is demurrable; or where the matter complained of is only part of the action set up, or where by going to trial the facts could be elicited which would have some effect on the case or where justice and reason dictate that it should go to trial; or where a pleading is not clearly vexatious or frivolous but which would, if it were allowed to stand, be an abuse of the process of the court; or where questions of general importance are raised or serious questions of law are in issue, unless the matter is entirely clear. 20. The fact that an action may be novel or raise a novel legal proposition, is not a ground to strike out the claim. Hunt, supra. [Tab 121

Gilbert Surgical Supply Co. v. F.W. Horner Ltd., [I9601 O.W.N. 289 (C.A.). [Tab 141 21. Only in the dearest possible cases should the discretionary power to strike out a pleading be exercised. Cerny v. Canadian Industries Limited et a/., supra. [Tab 131 22. Pleadings which generally plead facts to disclose a cause of action are sufficient. The legal arguments or "elements" of a particular cause of action need not be specifically stated. Bank of N.S. v. Dunphy Leasing Enterprises (1987), 77 A.R. 181 (C.A.). [Tab 151 23. Issues as to the proper interpretation of Constitutional acts, such as the Royal Proclamation, 1763, Constitution Act, 1867, Rupert's Land and North- Western Territory Order-in-Council, Constitution Act, 1930, and the Constitution Act, 1982, are issues better left to be determined at trial. Dumont v. Canada (A.G.), I19901 1 S.C.R. 279. [Tab 161

14. 24. Further, it is respectfully submitted that analogous rights were declared and remedies granted in Mabo and Others v. State of Queensland as are claimed in this Statement of Claim. Mabo and Others v. State of Queensland (1992), 107 A.L.R. 1 (H.C.). [Tab 171 25. It is respectfully submitted that it is not plain and obvious that there is no reasonable cause of action with respect to the allegations contained in the Statement of Claim. B. IMMATERIAL OR IRRELEVANT 26. It is respectfully submitted that mere surplus statements should not be struck from a Statement of Claim unless actual prejudice is established. Pater International Automotive Franchising Incorporated v. Mister Mechanic Inc. and Rene LeTendre, [I9901 1 F.C. 237 (T.D.). [Tab 181 27. Further, it is necessary to prove that the pleading is obviously "forlorn and futile" before it should be struck for being immaterial or irrelevant. Burnaby Equipment Ltd. v. Berglund Supply Co. Ltd. (1982), 64 C.P.R. (2d) 206 (Fed. Ct. T.D.). [Tab 191

15. Blackfoot Indians v. Canada et a/. (1986), 7 F.T.R. 133 (T.D.). [Tab 201 28. It is respectfully submitted that these paragraphs in the Statement of Claim are not futile or immaterial. C. PREJUDICE, EMBARRASS OR DELAY 29. It is respectfully submitted that there is nothing in the paragraphs of the Statement of Claim that are at issue, which is prejudicial, embarrassing or vexatious. Murray v. Public Service Commission et al. (1978), 21 N.R. 230 (Fed. C.A.). [Tab 211 D. ABUSE OF PROCESS 30. A pleading will be struck out on the ground of an abuse of process where the claim is res judicata or issue estoppel applies, or the court lacks jurisdiction. Musqueam Indian Band v. Canada (sub. nom. Grant et al. v. Canada et a/. (1990), 31 F.T.R. 31 (T.D.). [Tab 221 Erasmus et a/. v. Minister of National Revenue (1992), 145 N.R. 321 (Fed. C.A.). [Tab 231

31. It is respectfully submitted that none of these grounds apply to this Statement of Claim. 111. ORDER REQUESTED 32. It is respectfully submitted that no portion of the Statement of Claim should be struck. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 5th day of March, 1997. Estimated time for argument: 3.5 hours PARLEE McLAWS Per: Priscilla Kennedy

TABLE OF AUTHORITIES Amended Amended Statement of Claim. October 2, 1996 Letter. Response to Demand for Particulars. Rupert's Land and Northwestern Territory Order. Royal Proclamation, 1763. Changing Political Boundaries. Atlas of Alberta. British Columbia Terms of Union, 1871. Charter of the Hudson's Bay Company, 1670. Province of Canada. Parliament. Appendix "C" Indian Population to Report of the Select committee appointed to receive and collect evidence and information as to the rights of the Hudson's Bay Company under their Charter, the renewal of the licence..., 1857. Royal License dated May 30, 1838. Canada (A.G.) v. Inuit Tapirisat of Canada, [I9801 2 S.C.R. 735. Hunt v. Carey Canada Inc., [I9901 2 S.C.R. 959, 970. Cerny v. Canadian Industries Limited et al., [I9721 6 W.W.R. 88 (Alta. C.A.). Gilbert Surgical Supply Co. v. F.W. Horner Ltd., [I9601 O.W.N. 289 (C.A.). Bank of N.S. v. Dunphy Leasing Enterprises (1987), 77 A.R. 181 (C.A.). Dumont v. Canada (A.G.), [I9901 1 S.C.R. 279. Mabo and Others v. State of Queensland (1992), 107 A.L.R. 1 (H.C.). Pater International Automotive Franchising Incorporated v. Mister Mechanic Inc. and Rene LeTendre, [I9901 1 F.C. 237 (T.D.). Burnaby Equipment Ltd. v. Berglund Supply Co. Ltd. (1982), 64 C.P.R. (2d) 206 (Fed. Ct. T.D.).

18. 20. Blackfoot Indians v. Canada et al. (19861, 7 F.T.R. 133 (T.D.). 21. Murray v. Public Service Commission et al. (19781, 21 N.R. 230 (Fed. C.A.). 22. Musqueam Indian Band v. Canada (sub. nom. Grant et al. v. Canada et al. (1990), 31 F.T.R. 31 (T.D.). 23. Erasmus et al. v. Minister of National Revenue (19921,145 N.R. 321 (Fed. C.A.).