The Stoney Nakoda Nations (“SNN”) have commenced an action in the Alberta Court of Queen’s Bench seeking a declaration of unextinguished Aboriginal title, Aboriginal rights and Treaty rights with respect to portions of southern Alberta. Such an action necessarily engages Treaty No. 7 and the history and relationship of aboriginal peoples with Europeans and the Crowns of Britain, Canada and Alberta.
In the course of questioning of Canada’s representative under Part 5 of the Rules of Court, legal counsel for Canada objected to the majority of the questions asked and to undertakings taken under advisement (over 100 objections over the course of five days of questioning). One of the grounds for the objections was that matters outside the living memory of the representative are matters that are the exclusive province of expert historians.
SNN brought an application to compel answers to questions and undertakings. By agreement of the parties, the Case Management Judge, Madame Justice Martin, considered 18 sample questions and concluded that Canada’s representative was to respond to 16 of the 18 questions (Wesley First Nation v. Alberta, 2013 ABQB 344).
Both Canada and Alberta appealed the Case Manager’s decision. The main issue before the Alberta Court of Appeal was whether questions in relation to historical facts beyond living memory are the unique province of historical experts.
Since the Alberta Courts had not yet directly addressed this issue, both Madame Justice Martin and Court of Appeal considered two conflicting lines of authorities with respect to questioning on historical matters. The British Columbia courts, on which Canada and Alberta relied, have held that only experts could respond to questions outside the representatives living memory. On the other hand, the Federal Court authorities on which SNN relied, have held that enduring institutions and entities, such as the Crown, have their own memories and that such an institutional memory cannot be artificially limited to that of the Crown’s chosen representative.
As did Madame Justice Martin, the Court of Appeal unreservedly endorsed the Federal Court’s approach to this issue, dismissed the appeals of Canada and Alberta and affirmed Madame Justice Martin’s directions to the parties (Wesley First Nation v. Alberta, 2015 ABCA 76).
The Alberta Court of Appeal acknowledged the importance and necessity of parties to aboriginal claims being entitled to effectively discover historical facts prior to trial and endorsed SNN’s submission that “since most aboriginal law cases present broad historical aspects, to adopt Appellants’ position would effectively render oral discoveries useless in cases dealing with aboriginal rights and treaty rights.” (At paragraph 12 of the Memorandum of Judgment).
If you have any questions with respect to this decision or SNN’s claim with respect to Aboriginal title, Aboriginal rights and Treaty rights, please feel free to contact our legal team at Rae and Company.