The Alberta Court of Appeal affirmed a lower court order in regards to the scope of questioning (examinations for discovery) in a large Aboriginal rights and title case. The case management judge held that the representative of Canada was required to answer questions regarding historical facts, even if they relate to matters beyond the memory of any living person. The Court of Appeal upheld this order, and endorsed a line of authority from the Federal Court on the scope of questioning on historical facts.

In the underlying action, the plaintiffs seek a declaration of unextinguished Aboriginal title, Aboriginal rights, and treaty rights to much of the southern half of Alberta covered by Treaty 7. During the examinations for discovery (questioning), Canada objected to many questions on various grounds including that they required the witness to provide an opinion or asked for conclusions of law. A central dispute concerned the plaintiffs’ questions relating to matters beyond the memory of any living person. The case management judge followed authorities from the Federal Court – namely Wewayakum Indian Band v. Canada (1991), 42 FTR 40 (F.C.T.D.) and Montana Indian Band v. Canada (2000), 172 FTR 46 (F.C.T.D.) – to find that questioning is not bounded by restrictions on “living memory”.  The Crown has an institutional memory, and the deponent is a representative of the Crown. In this regard, the case management judge declined to follow authorities from British Columbia which stood for the proposition that only an expert historian could answer questions related to historical facts beyond the memory of living persons.

The decision of Madam Justice Martin in Wesley First Nation (Stoney Nakoda First Nation) v. Alberta, 2013 ABQB 344 was summarized in our 4 February 2014 e-Newsletter. Canada and Alberta appealed the decision.

The Court of Appeal noted that the main issue on appeal is “whether historical facts are the unique province of historical experts”. The Court reviewed the Alberta court rules on questioning, as well as some overarching principles in Aboriginal litigation. The Supreme Court of Canada in Mitchell (2001) held that courts should approach the rules of evidence with a consciousness of the special nature of Aboriginal claims.

The Court of Appeal referred to the differing lines of authority from British Columbia and the Federal Court regarding the issue of historical facts, and “unreservedly endorse[d]” the latter approach. In particular, the Court of Appeal held that the decision of Justice Hugessen in the Montana Indian Band case “carries the day”.

The Court of Appeal also agreed with the respondent Bands that adopting the position of the Crown would “effectively render oral discoveries useless” in Aboriginal rights and treaty rights cases.

The Court of Appeal noted the deference that must be given to a case management judge, and held that the approach of Madam Justice Martin in this case was “careful and thoughtful”. The appeal was dismissed.


Scott Kerwin


Aboriginal Law