Date: 20210401
Docket: T-238-80
Citation: 2021 FC 281
Ottawa, Ontario, April 1, 2021
PRESENT: The Honorable Mr. Justice Zinn
BETWEEN:
JIM SHOT BOTH SIDES AND ROY FOX,
CHARLES FOX, STEVEN FOX,
THERESA FOX, LESTER TAILFEATHERS,
GILBERT EAGLE BEAR,
PHILLIP MISTAKEN CHIEF,
PETE STANDING ALONE,
ROSE YELLOW FEET,
RUFUS GOODSTRIKER, AND
LESLIE HEALY,
COUNCILLORS OF THE BLOOD BAND,
FOR THEMSELVES AND ON BEHALF OF
THE INDIANS OF BLOOD BAND RESERVE
NUMBER 148; AND THE BLOOD RESERVE
NUMBER 148
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
ORDER AND REASONS
[1] Phase III of this action is scheduled to commence on May 3, 2021, for a period of up to 40 days. Canada has filed a motion to adjourn that trial date together with this motion seeking an Order to compel answers to the questions it asked. Given the nature of these two matters before the Court, and the looming trial date, only brief reasons will be provided for the decision on the motion to compel. I assure the parties that I have read all of the voluminous materials each provided in support of its position.
[2] The Defendant [Canada] moves pursuant to Rules 95, 97(b), 99, 222, 223, 226, 240, 359, and 369 of the Federal Courts Rules, SOR/98-106 for an Order compelling the Plaintiffs [the Blood Tribe] to answer questions 8, 9, 14-18, 21-23, and 28-29 of Canada’s Written Examination Questions dated October 30, 2020. These were among those objected to by the Blood Tribe.
[3] The Court in a Judgment dated June 12, 2019, held that Canada breached the treaty land entitlement of the Blood Tribe set out in Treaty 7 and it was entitled to a reserve 162.5 square miles larger than that provided. Phase III of the trial is to address the remedy for that breach.
[4] As ordered, on April 30, 2020, the Blood Tribe served a Statement of Particulars for Phase III outlining its claim against Canada. The material portion of that Statement of Particulars for the purposes of this motion is the following:
- The breach treaty resulted in the Blood Tribe suffering the following losses and deprivation:
I) loss of the present value of the Land Deficiency;
II) loss of economic benefit of the agricultural production from the Land Deficiency during the period from July 1, 1883 to the present;
III) loss of the economic benefit of the mines and minerals production, and particularly oil and gas, from the Land Deficiency during the period from July 1, 1883 to the present; and
IV) loss of the present value of the economic benefit of the mines and minerals, and particularly oil and gas, from the Land Deficiency.
[5] The questions at issue relate generally to the financial history, agricultural development, leasing history, and natural resource development history and dealings of the Blood Tribe from 1882 to the present. These questions are the following:
- Provide all relevant facts and documentation on all farming operations on the Blood Reserve from 1882 to the present, including but not limited to:
a. Blood Band’s financial books and documents for its farming operations;
b. Agricultural leases that the Blood Band entered into with non-reserve entities.
- Provide all Band Council minutes that discuss agricultural development on the Blood Reserve from 1882 to the present.
- Advise as to what percentage of the Blood Reserve is leased to non Blood Tribe entities at the present time.
- Provide all relevant facts and documentation for the alleged loss of agricultural benefits since 1882 to the present.
- Has any oil attributable to the Blood Reserve been produced and/or developed since 1882?
a. If so, during what years?
- Has any gas attributable to the Blood Reserve been produced and/or developed since 1882?
a. If so, during what years?
- Have any gas products attributable to the Blood Reserve been produced and/or developed since 1882?
a. If so, during what years?
For the purposes of questions 21 – 29 the term “natural resources” includes oil, gas, gas products, coal, and other natural resources.
- Provide copies of all Band Council minutes, since 1882, where the issue of natural resource development on the Blood Reserve has been discussed.
- Are you aware of Indian Oil and Gas Canada (IOGC) entering into any licence, permits or leases with third parties, on behalf of the Blood Tribe with respect to the production/development of oil, natural gas and gas products attributable to the Blood reserve (oil and gas agreements)?
- If so, has the Blood Tribe received copies of any oil and gas agreements that IOGC entered into with third parties, on behalf of the Blood Tribe, related to the production of oil, natural gas and gas products on the Blood Reserve?
a. If so, in any years, did those agreements provide for a royalty rate that was less than the rate stipulated by the Indian Oil and Gas Regulations?
i. If so, for what years did the oil and gas agreements provide for a royalty rate that was less than the rate stipulated by the Indian Oil and Gas Regulations? b. If so, please provide copies of any oil and gas agreements that the Blood Tribe has in its possession, for the production and/or development of oil, natural gas, and gas products attributable to the Blood reserve. c. Are you aware of IOGC entering into any unitization agreements for the production and/or development of natural gas, oil and gas products attributable to the Blood reserve? i. If so, please provide copies of any unitization agreements that the Blood Tribe has in its possession.
- At any time, has the Blood Tribe had a Band-owned company that operates in relation to natural resource production attributable to the reserve (Blood Tribe Band owned company)?
a. If so, during which years was the Blood Tribe Band-owned company operating? b. If so, did the Blood Tribe Band owned company enter into any agreements with third parties for production and/or development of any natural resources on the reserve?
i. If so, which natural resources were the agreements related to? ii. If so, please produce copies of the agreements that the Blood Tribe Band owned company entered into with third parties for production and/or development of any Natural Resources on the reserve.
- Provide a list of third parties that have been granted a licence to explore for any natural resources on the Blood Reserve since 1882.
[6] The Blood Tribe gave a lengthy and detailed description of its objection to these questions. I would summarize them as the following:
The question is irrelevant to any issue arising in Phase III of the trial;
Answering the question would be unreasonable, unnecessary, and unduly onerous;
The probative value of the answer to the question is minimal compared to the time, expense and effort required to respond; and
The question is an abuse of the discovery process because Canada already possesses the information sought.
[7] The Blood Tribe relies on the six guidelines to compelling answers in discovery found in Reading & Bates Construction Co v Baker Energy Resources Co, (1988) 25 FTR 226 (TD). They may be summarized as the following:
Relevance is a question of law, and not a matter of discretion, and documents are relevant if they contain information that may advance a party’s case or damage that of his adversary;
Questions that are too broad or call for an opinion need not be answered;
Discovery is confined to questions that may prove or disprove an unadmitted fact;
The Court should not compel questions to be answered even if relevant, if they are unlikely to advance the party’s legal position;
In deciding whether to compel an answer, the Court should weigh the usefulness of the answer with the inconvenience and expense in obtaining it; and
Vague, far-reaching, and irrelevant lines of questioning are impermissible.
[8] Canada grouped the objections into two groups at paragraphs 17 and 31 of its memorandum:
- Canada’s Written Questions for Examination, questions 8, 9, 14 and 15 seek information and documents on how agriculture resources on the Blood Reserve were developed and administered from 1880 to the present. The questions asked for facts and documents related to historical land uses (such as farming operations) on the Blood Reserve, agricultural leases and rentals, and agricultural development generally.
- Questions 16 – 18, 21 – 23, and 28 – 29 seek information and documents on how petroleum and natural gas resources were developed and administered on the Blood Reserve from 1882 to present. In broad categories the information Canada seeks relates to:
a) Whether oil or gas was produced on the Blood Reserve.
b) Whether the Blood Tribe is aware of IOGC entering into licenses, permits or leases with third parties with respect to production/development of oil and natural gas, and gas products on the Blood Reserve.
c) Whether the Blood Tribe is in possession of any agreements that provides for royalty rate lower than the regulation royalty rate or any unitization agreements.
[9] As Canada notes, the experts retained by the Blood Tribe “used information on how agriculture, and petroleum and natural gas were developed and administered on the Blood Reserve to assess the loss of use on the additional Reserve lands.”
[10] Specifically, Mr. Lore in his report says that he had access to some 150 documents from the Blood Tribe Land Management Department. While Canada has had access to those he relies on, the Blood Tribe is objecting to produce the others. If the Blood Tribe’s expert found these documents relevant then the documents requested in Questions 8, 9, 14, and 15 are also relevant.
[11] Canada asserts that Mr. Braaten in his report on the development of petroleum and natural gas rights in the additional Reserve lands “assumes that the same oil and gas regime that applies on the current Reserve would have applied to the additional Reserve lands.”
Royalty rates and leasing agreements referenced in Questions 16 – 18, 21 – 23, and 28 – 29 are therefore relevant in Phase III.
[12] The Blood Tribe submits that even if relevant, the search for these documents is onerous and unreasonable. The Court appreciates that the scope of production may be complex and lengthy, however, the Blood Tribe cannot limit its production only to those that support its experts’ opinions and shield other documents which may not, from Canada.
[13] Chief Justice Crampton’s “Notice to the Parties and the Profession Case Management: Increased Proportionality in Complex Litigation before the Federal Court” dated June 24, 2015, provides that “parties must ensure that the steps taken in proceedings are proportionate, in terms of the costs and time required, to the nature and complexity of the dispute.” I agree with Canada that the information it is requesting in the objected questions is proportional to the magnitude of the claim of the Blood Tribe, which is substantial. The experts retained by the Blood Tribe value the agricultural and oil and gas losses from the additional Reserve land “at somewhere between $1.2 billion and $3.7 billion.”
[14] Lastly, I agree with Canada that it is the obligation of the Blood Tribe to produce information even if Canada may already have it: see Fiddler Enterprises Ltd v Allied Shipbuilders Ltd, 2002 FCT 44 at paragraph 15.
[15] It is understood that the Blood Tribe may not have records going back to 1882. It is under no obligation to produce records it does not have. However, it cannot shirk its responsibility to search for relevant records in its possession. Canada in its Reply states that the Blood Tribe’s affiant, Annabel Crop Eared Wolf, admitted that the Blood Tribe has documents relating to the two general areas mentioned going back at least to the 1970s. She also testified that she had not done any search of those document depositories for the purposes of this litigation nor was she able to provide any assurance that all relevant documents had been produced.
[16] For the reasons given, I am satisfied that the questions objected to by the Blood Tribe are directed to gathering relevant information that may advance Canada’s case or damage that of the Blood Tribe. I am also satisfied that they are directed to unadmitted allegations of fact, are likely to advance Canada’s legal position, and while challenging in terms of time and expense, are proportional to the size of the claim in Phase III.
[17] Canada sought costs and having been successful is entitled to its costs, which I shall fix.
ORDER IN T-238-80
THIS COURT ORDERS that:
The Plaintiffs shall answer questions 8, 9, 14-18, 21-23, and 28-29 of Canada’s Written Examination Questions dated October 30, 2020;
The Plaintiffs shall provide written answers to those questions no later than April 30, 2021, or such later date as the parties may agree to or the Court order; and
Canada is entitled to its costs of this motion, which are hereby fixed at $4,500.00.
"Russel W. Zinn"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-238-80
STYLE OF CAUSE:
JIM SHOT BOTH SIDES ET AL v HER MAJESTY THE QUEEN
MOTION DEALT WITH IN WRITING AT OTTAWA, ONTARIO, WITHOUT APPEARANCE OF THE PARTIES
order and REASONS:
ZINN J.
DATED:
APRIL 1, 2021
WRITTEN REPRESETATIONS BY:
Gary A. Befus / Paul Reid
Brendan Miller
For The PlaintiffS
Paul Shenher
Wayne M. Schafer, Q.C.
For The Defendant
SOLICITORS OF RECORD:
Walsh LLP
Calgary, Alberta
Foster LLP
Calgary, Alberta
For The PlaintiffS
Attorney General of Canada
Department of Justice Canada
Prairie Region
Edmonton, Alberta
For The Defendant