Aubrey Charette

The moving party brought a motion for leave to appeal the decision of the lower court judge.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

This is a costs endorsement following a successful appeal by the Attorney General of Canada and several First Nations against the Estate of William Albin Herold.

The Court of Appeal had previously allowed the appeals and set aside the lower court orders.

In this endorsement, the court fixed the costs of the proceedings below at $154,530.76, awarded to the appellant First Nations, as the Attorney General of Canada did not seek costs below.

The court also varied its previous appeal costs award, granting the full $43,000 (inclusive of disbursements and taxes) to the appellant First Nations, with no costs awarded to the Attorney General of Canada on appeal, in accordance with a prior agreement between the parties.

The Estate of William Albin Herold claimed ownership of three islands in Lake Katchewanooka, arguing they were conveyed as part of Lot 35 by Letters Patent in 1868, despite having separated from the mainland due to rising water levels.

The application judge found in favour of the Estate, applying a "Flooding Principle" to fix the boundary and concluding that treaties with First Nations did not affect the Crown's right to sell.

The Court of Appeal allowed the appeals by the First Nations and the Attorney General of Canada, finding that the application judge made extricable errors of law by failing to objectively ascertain the parties' intentions in the Letters Patent, misapplying the Flooding Principle, and not properly considering the Crown's treaty obligations.

The appellate court concluded that the Letters Patent did not convey the islands, as they were physically separate, separately identified, and subject to specific Crown obligations under Treaty 78.