Date: 20240104

Docket: T-2439-97

Citation: 2024 FC 14

Ottawa, Ontario, January 4, 2024

PRESENT: The Honourable Mr. Justice Gleeson

BETWEEN:

LOUIS BULL BAND, CHIEF SIMON THREEFINGERS, JONATHAN BULL, JOSEPH DESCHAMPS, CLYDE ROASTING, RUSSELL THREEFINGERS, HARVEY ROASTING, ELAINE ROASTING, TELLY RAINE AND IRVIN BULL, THE CHIEF AND COUNCILLORS OF THE LOUIS BULL BAND SUING IN THEIR REPRESETANTIVE CAPACITY ON BEHALF OF ALL THE MEMBERS OF THE LOUIS BULL BAND

Plaintiffs

and

HIS MAJESTY THE KING IN RIGHT OF CANADA

Defendant

ORDER AND REASONS

[1] Following the discovery of the Defendant’s representative, the Plaintiffs bring this Motion, filed December 1, 2023, alleging the Defendant has improperly maintained refusals and failed to produce relevant documents. The Plaintiffs allege that, without the information sought, their claim will be prejudiced. They seek an Order:

1. Compelling the Defendant’s representative, Mr. Richard Simison, to provide the answers refused during his examination for discovery within thirty (30) days of the hearing of this Motion, or such further and other time as the court may allow;

2. Requiring the Defendant to deliver a further and better Affidavit of Documents within thirty (30) days, pursuant to Rule 223;

3. The costs of this Motion; and

4. Such further and other relief as counsel may advise and this Honorable Court may permit.

[2] The Court has reviewed and considered the Parties’ written submissions, the affidavit evidence the Parties rely upon, and the oral submissions advanced by counsel in the course of a hearing conducted by Zoom videoconference on Thursday, December 28, 2023.

[3] Schedule “A” to the Plaintiffs’ Motion [Undertakings Table] identifies 32 requests for information made in the course of examination for discovery of the Defendant’s representative [Objections]. The Plaintiff argues that the Defendant has failed to either fully respond to the undertakings given or that the Defendant’s objections or refusals are improper. The parties have updated the Undertakings Table. The final update, dated December 28, 2023, was provided by the Defendant after the Motion was heard.

[4] Schedule “A” to this to this Order and Reasons [Schedule “A”] has been generated from the content of the Undertakings Table. Schedule “A” has re-ordered the columns and omits columns setting out the Plaintiffs’ position and the Defendant’s initial and updated responses. A column entitled “Disposition by the Court” has been added to reflect my conclusions with respect to each of the 32 Objections.

[5] The Plaintiffs have grouped the Objections into the following five broad categories:

1. Refusal to produce relevant documents and provide a better affidavit of documents (Objections Nos. 1, 2, 10, 11, 12, 19, 20, 22, 24, 25, 30, 31, and 32) [Production of Documents];

2. Refusal to answer relevant questions concerning the claim that Canada failed to protect and preserve the Plaintiffs’ reserve lands (Objections Nos. 3, 4, 5, 26, and 27) [Protect and Preserve Questions];

3. Refusal to answer questions concerning sub-surface rights that require the Crown to make enquiries of other Crown departments, which it has not done (Objections Nos. 9, 15, 16, 17, and 18) [Sub-Surface Rights Questions];

4. Refusal to provide additional documents since the claim was amended to add a claim regarding the Division of IR No. 138 (Objections Nos. 23 and 28) [Amended Claim]; and

5. Questions not properly responded to or that remain outstanding (Objections Nos. 6, 7, 8, 13, 14, 21, and 29) [Outstanding Questions].

[6] Following further answers [Further Answers] having been provided by the Defendant after the filing of this Motion, the Plaintiffs are satisfied with the answers provided to Objections 6, 7, 13, 20 and 32. In addition, but subject to considering further material to be provided by the Defendant’s researcher, the Plaintiffs are also satisfied with the answers provided to Objections 21, 29, 30 and 31. These Objections have not been considered.

[7] The Parties had previously agreed to further examination of the Defendant’s representative; however, the number of days of further discovery is in dispute. This matter is addressed later in these reasons, but I note that the Defendant’s representative becomes unavailable to the Parties after January 31, 2024.

[8] In the course of oral submissions, it became clear that in some instances, the Parties did not necessarily share a common understanding of what the Plaintiffs were seeking and in others; the Defendant’s position was not fully appreciated. The issues raised on this Motion could have and should have been narrowed in advance of the Motion being brought. In the course of the oral hearing, the Plaintiffs clarified the scope of some of the outstanding Objections and the Defendant agreed to undertake further steps in respect of certain Objections (12, 16, 19, 23, 26 and 27). At the Court’s request, the Plaintiffs have since provided a draft order that sets out the specific Objections for which relief is sought (Objections 1, 2, 3, 4, 5, 9, 15, 16, 17, 18, 19 and 27).

[9] In the analysis that follows, I have not addressed the Objections individually. I have considered the Objections by grouping, as identified by the Plaintiffs, and while I have considered and reached a determination on each of the remaining Objections, the reasons that follow focus on those Objections that the parties, and in particular the Plaintiffs, have identified as being of greatest significance. My conclusions are reflected in the Order that follows and also set out in the “Disposition by the Court” column of Schedule “A”.

I. Analysis

A. General

[10] The scope of examination for discovery is set out in Rule 240 of the Federal Courts Rules, SOR/98-106 [Rules] – all questions relevant to any allegation of fact pled shall be answered. Rule 242 identifies permitted objections on discovery which include objections on the following grounds: (1) privilege; (2) relevancy to the alleged facts pled, (3) unreasonable or unnecessary question; or (4) requiring further inquiries would be unduly onerous. Rule 244 provides that an examined party may be required to become better informed and submit to a continuation of the oral examination.

[11] The Plaintiffs argue that it is not in the interest of either fairness or justice for the Defendant to maintain the Objections, as the information sought may assist the Plaintiffs in knowing the case that must be met and are within the broad purposes of discovery. Specifically, the Plaintiffs submit “some of the [Objections] may help to narrow the legal issues in advance of trial [...].”

[12] The Defendant submits that Canada has produced over 4500 documents since the filing of the Statement of Claim in 1997. A series of Amended and Supplementary Affidavits of Documents demonstrate diligent efforts having been made to search for and produce documents that are relevant to the facts pled following the Defendant’s partially successful motion for summary judgment where a number of claims were struck as abandoned or out of time (Louis Bull First Nation v Canada, 2015 FC 1066 aff’d in part2015 FCA 197). The Defendant submits it has either answered the questions underpinning the Objections or advanced permissible and applicable objections as permitted under Rule 242 of the Rules. It submits it has also provided the Further Answers to all 32 Objections subsequent to the filing of the Plaintiffs’ Motion despite its position that some of the Plaintiffs’ requests for information are beyond the scope of permitted discovery.

B. Category A - Production of Documents (Objections Nos. 1, 2, 10, 11, 12, 19, 20, 22, 24, 25, 30, 31, and 32)

(1) Objections Nos. 1, 2 and 19

[13] Objections 1 and 2 (Requests 004 and 006) relate to the form of the Affidavits of Documents that the Defendant has produced. The Plaintiffs seek a list of documents that will allow them to identify documents that were either filed or bundled together in source files and that discloses the order in which the documents were filed within common bundles or source files. The Plaintiffs submit that understanding the context relating to how documents were grouped and filed, including the identification of source documents and their attachments (what the Plaintiffs refer to as the “Parent/Child” relationship), provides context that may be relevant in interpreting and understanding the documents produced. In a draft Order following oral submissions, the Plaintiff has clarified that it specifically seeks information that “[identifies] the bundles of materials produced in the order in which they were found […]” and that identifies “documents that were attached together”, if any.

[14] The Defendant argues that, within the context of this historical claim where production has been ongoing since 1986, the Defendant has satisfied the undertaking. It has produced a 238-page spreadsheet that it has updated in response to this Motion (Exhibit “A” to the Affidavit of Cheryl Lee [Spreadsheet]).

[15] Having reviewed the undertakings provided and the updated Spreadsheet, I am of the opinion that the Defendant has satisfied the undertakings at Objections 1 and 2. The Spreadsheet identifies documents by production number, document type, title, and where known, document source. The Spreadsheet also discloses Parent/Child relationships as identified by the Defendant’s researcher. I understand, based on the oral submissions of counsel for the Defendant, that the Spreadsheet can be manipulated to group documents coming from a common source, thereby allowing the Plaintiffs to understand what documents were grouped. This may not allow specific document ordering to be determined but I note neither undertaking 1or 2 address this question.

[16] With respect to Objection 19, the Plaintiffs seek a further and better Affidavit of Documents that lists specific claims files where submissions have been exchanged between the Crown and the Plaintiffs and that identifies any privileged documents. The Defendant has objected to the request on grounds of relevance, overbreadth and the principle of proportionality.

[17] The Plaintiffs’ request is consistent with the requirement under the Rules that documents over which privilege is claimed are to be identified individually or by bundle in a party’s Affidavit of Document (Rules 223(2)(a)(ii), 223(2)(b) and 223(4)). In the course of oral submissions, the Defendant agreed, and the Court will Order, that the Defendant review the specific claims’ documents collection and provide a supplementary or updated Affidavit of Documents that is compliant with Rule 223.

(2) Objections Nos. 10, 11 and 12

[18] Objections 10, 11 and 12 involve undertakings to seek out documentation. The Defendant reports on efforts made to locate documents relevant to the three undertakings. In oral submissions, counsel for the Defendant reiterated the Defendant understands its obligation to identify and produce relevant documents. Counsel for the Defendant noted that the Plaintiffs have not provided any basis upon which to conclude the Defendant’s reporting is to be doubted with regard to the Defendant’s efforts to locate documents responsive to the undertaking or its assessment of the relevance of documents or files that have been identified. The Defendants have satisfied Objections 10, 11 and 12.

(3) Objections Nos. 22, 24 and 25

[19] Objections 22, 24 and 25 involve requests for further record searches and relate to the Plaintiffs’ request that the Defendant determine whether further files exist, and if so, to produce those files.

[20] The Defendant objects to the Plaintiffs’ request at Objection 22 but has nonetheless responded. The Defendant’s objection to the Plaintiffs’ request is maintained. Similarly, I am satisfied that the Defendant’s answer to Objection 25 is responsive to and satisfies the Plaintiffs’ request.

[21] With respect to Objection 24, and after hearing oral submissions, it is not clear whether the Defendant’s file review over the relevant period included Ermineskin Band files. To the extent it did not, the Plaintiffs’ request is proper and the Defendant shall review these files and produce any documents relevant to the request.

C. Category B - Protect and Preserve Questions (Objections Nos. 3, 4, 5, 26, and 27)

[22] The Plaintiffs’ questions within this category seek information relating to the availability and/or use of funds by the Crown to fence reserve lands during the relevant periods. The Plaintiffs submit this information is of direct relevance to the Plaintiffs’ allegation that the Crown breached its fiduciary obligations toward the Plaintiffs by seeking the surrender of reserve lands on the basis that funds received from the surrender would allow the Plaintiffs to fence remaining reserve lands to preserve and protect those lands.

[23] The Defendant submits the undertaking at Objection 3 has been satisfied, objects to the requests at Objections 4 and 5 (requests that the Defendant advise as to whether the Defendant had paid for fencing for other reserve bands) and has agreed to conduct further research in response to the undertakings at Objections 26 and 27.

[24] I am satisfied that information relating to the question of whether the Crown had paid for fencing to protect reserve lands in other circumstances is of relevance to the Plaintiffs’ claim. The Defendant’s document production also indicates the Defendant did hold funds in “several types of accounts including a Land Management Account and general accounts from which expenditures on reserves might be drawn” (Plaintiffs’ Reply submissions at para 27).

[25] The requests at Objections 3, 4 and 5 are overly broad; however, the Defendant’s response to date has also been unduly narrow. The Plaintiffs have agreed to limit the request at Objections 3 to 5 to the period between 1880 and 1936. The Defendant has agreed to research whether any policy governed the Defendant’s exercise of discretion to expend Land Management Funds to pay for matters such as reserve land fencing in response to Objection 27. The Defendant has further agreed to determine whether trust account records exist for the Pigeon Lake IR shared by Louis Bull with three other First Nations and to provide the Plaintiffs with a means of accessing any such records (Defendant’s December 28, 2023 further response to Objection 26). Trust account records shall cover the 1900 to 1911 period, the period for which the Defendant has already provided certain trust account records.

D. Category C - Sub-Surface Rights Questions (Objections Nos. 9, 15, 16, 17, and 18)

[26] The Plaintiffs argue that the requests for information relating to sub-surface and mineral rights are relevant to the allegation that the surrender is void ab initio and to the claim for damages on the basis that the Defendant wrongfully took the sub-surface rights. The Plaintiffs submit the Defendant has failed to make inquiries with the Departments within the Federal Crown that would have received applications and issue permits for resource development.

[27] The Defendant objects to the requests at Objections 9 and 15-18 on the grounds of relevance, overbreadth and proportionality in light of Canada’s concession that mineral rights were wrongly included in the surrender. I disagree with the Defendant. Despite the Crown’s concession that mineral rights were wrongly included in the surrender, information relating to what, if any, applications to explore or exploit sub–surface resources, during the periods both prior and subsequent to the surrender, remain relevant to the Plaintiffs’ claim that the surrender was void ab initio and the damages claim.

[28] With respect to the requests at Objections 9 and 18 (applications for and granting of mining permits, and coal seams development), the Defendant submits the requests have been answered. The Plaintiffs submit the answers provided are incomplete – the Defendant has failed to make inquiries with the federal Departments that would have received applications to exploit sub-surface resources or expressions of interest to do so. The Plaintiffs rely on regulations governing coal deposits at the relevant time (Plaintiffs’ Memorandum of Fact and Law at para 91) to submit such records would be maintained by the Minister of the Interior.

[29] The Defendant argues any documentation relating to resource exploitation would be contained in the reserve file because band approval of the surrender of any mineral rights would have been required. However, the surrender of mineral rights does not capture instances involving expressions of interest in those rights or applications to exploit resources where an application did not proceed further.

[30] Further to Objections 9 and 18, the Defendant shall be required to either (1) confirm the records of the federal Departments that were responsible for receiving or processing applications for the exploitation of coal on the reserve lands prior to surrender, to include the Minister of the Interior, have been reviewed; or (2) to undertake that review.

[31] The request at Objection 15 relates to payments at the time surrendered lands were auctioned. The request at Objection 15 has been answered.

[32] Objections 16 and 17 relate to requests for information relating to bonus payments, revenue and royalties relating to sub-surface resources, including coalbed methane in the surrendered lands. These requests are largely responded to in the March 16, 2010 Affidavit of Mr. Bob Cunes, an employee of Indian Oil and Gas Canada, a special operating agency within what was then the Department of Indian Affairs Canada.

[33] Further to Objections 16 and 17, the Defendant has also agreed to review oil and gas regulations that were in place regarding bonus payments from 1909 to 1920 and provide any available information regarding what, if any, bonus payments were made in relation to the non-lake surrendered lands. The Defendant shall also confirm that the Cunes Affidavit otherwise reflects all amounts paid to the Crown and transferred to the Plaintiffs’ trust account(s) for licenses, permits, leases, tenures, or any other grants, bonus payments, annual rents or royalties arising from oil and gas resources on surrendered but unsold lands.

E. Category D - Amended Claim (Objections Nos. 23, and 28)

[34] Objections 23 and 28 relate to scrip lists and numbers of band families at the time of surrender.

[35] With respect to Objection 23, the Defendant has agreed to provide the Plaintiffs with details on how to access the publicly available scrip records via Library and Archives Canada.

[36] The requests at Objections 23 and 28 have otherwise been satisfied.

F. Category E - Outstanding Questions (Objections Nos. 6, 7, 8, 13, 14, 21, and 29)

[37] With the exception of Objections 8 and 14, the Objections in this category have been resolved between the parties.

[38] The Defendant objects to Objection 8 on the basis that the information sought is available to the Plaintiffs, and objects to Objection 14 on grounds of relevance, overbreadth and proportionality. The Defendant has nonetheless summarized the information responding to the requests in its updated responses dated December 14, 2023. The requests have been satisfied, and on this basis, the Defendant’s objections are maintained.

II. Additional Discovery

[39] The Plaintiffs rely on the prior agreement of the Parties in seeking an additional five (5) days to discover the Defendant’s representative. The Defendant does not dispute that an agreement for further discovery had been reached but argues that, in light of the extensive period for discovery already afforded (May 16, 2022 - May 20, 2022; May 30, 2022 - June 3, 2022; and December 12, 2022 - December 16, 2022), the issues raised, and the Court’s Case and Trial Management Guidelines for Complex Proceedings [Guidelines], further discovery be limited to not more than one or two days.

[40] I am mindful of the Guidelines and recognize that the time provided to the Plaintiffs for discovery has been generous when assessed against the Guidelines. However, the issues raised are complex and document production in response to requests for information has been ongoing and continues. In these circumstances, placing particular weight on the prior agreement of the Parties, I reluctantly depart from the Guidelines and will grant leave for a further five (5) days of discovery to be completed not later than January 31, 2024 in accordance with the prior agreement of the parties.

III. Costs

[41] The Plaintiffs seek costs on the Motion to be paid forthwith, arguing the Defendant has unreasonably maintained its objections thereby requiring the Plaintiffs to have brought this Motion to compel answers.

[42] In light of the mixed success of the Parties, I am not convinced an award of costs is warranted.

ORDER IN T-2439-97

1. The Motion is granted in part.
2. The Defendant shall (see Schedule “A”):
3. In response to Objections 3,4, and 5, and to the extent not previously made available, provide to or advise the Plaintiffs:
4. In response to Objections 9 and 18, confirm the records of the Departments that were responsible for receiving or processing applications for the exploitation of coal on the reserve lands prior to the surrender, to include the Minister of the Interior, have been reviewed, and if not, to undertake that review;
5. In response to Objections 16 and 17:
6. In response to Objection 19, review the specific claims’ documents collection and deliver a supplementary or updated Affidavit of Documents in accordance with Rule 223;
7. In response to Objection 23,provide the Plaintiffs with details on how to access the publicly available scrip records online via Library and Archives Canada;
8. In response to Objection 24,to the extent the Ermineskin Band files relating to the relevant period have not been reviewed in the production of the reserve files for the Louis Bull Band, review those files and produce any documents relevant to the Plaintiffs’ request;
9. In response to Objection 26, look at whether trust fund account records exist for the Pigeon Lake IR shared by Louis Bull with three other First Nations and, if so, provide details on how or where they can be found; and
10. In response to Objection 27, research and advise the Plaintiffs whether, during the period between 1880 and 1936, any policy authorized or otherwise governed the exercise of discretion in expending Land Management Funds (or other funds) by the responsible federal Department for purposes such as the fencing of reserve lands.
11. The Defendant shall makes its representative available for not more than five (5) days of further discovery to be completed not later than January 31, 2024 as previously agreed to by the Parties.
12. The Defendant shall endeavor to provide information in accordance with paragraph 2 of this Order, prior to the further discovery of the Defendant’s representative and, to the extent that cannot be accomplished deliver to the Plaintiffs a written status update prior to the further discovery.
13. No award as to costs.

i. Louis Bull’s capital or trust account balances during the period between 1900 and 1911;

ii. Whether, during the period between 1880 and 1936, funds were available from other Crown accounts, including, but not limited to, Land Management Accounts or general accounts from which expenditures on reserves might be drawn; and

iii. Whether, during the period between 1880 and 1936, the Crown paid for fencing of any reserve lands to protect those lands (or caused the work to be performed at the cost of the Band) either out of the Band’s annual allowances or otherwise from the Crown accounts, including, but not limited to, the Land Management Account and general accounts from which expenditures on reserves might be drawn;

i. Review the oil and gas regulations that were in place regarding bonus payments from 1909 to 1920 and provide any available information regarding what, if any, bonus payments were made in relation to the non-lake surrendered lands; and

ii. Confirm that the Cunes Affidavit reflects all amounts paid to the Crown and transferred to the Plaintiffs’ trust account(s) for licenses, permits, leases, tenures, or any other grants, bonus payments, annual rents or royalties arising from oil and gas resources on surrendered but unsold lands;

“Patrick Gleeson”

Judge

SCHEDULE “A”

Court’s Disposition

Undertakings, Advisements and Refusals in issue

Examination for Discovery of Richard (Rick) Simison (May 16-20 & May 30-June 3, 2022 and December 12-16, 2022)

TAB/

OBJECTION

Request No./

Question No.

Page

No.

Specific Undertaking

Disposition by the Court

Request: 004 Question: 121

Day 1 Pg. 56

To identify the files the Crown got its production documents from, identify where they were found, advise if there were any names associated with the files and provide those names, and provide particulars of what documents related to what files.

The Defendant has satisfied the undertaking.

Request: 006 Question: 121

Day 1 Pg. 61

Provide a spreadsheet with production numbers, the location of where each document was retrieved from, the names of the files, and particulars of what inquiries were made and to whom.

The Defendant has satisfied the undertaking.

Request: 043 Question: 1276

Day 4 Pg. 465

Advise as to whether or not there were funds available to fence the whole of the Louis Bull IR138B pre-surrender of the Louis Bull IR138B.

Undertaking satisfied in part.

The Defendant shall provide the following, to the extent not previously made available:

1. Louis Bull’s capital or trust account balances during the period between 1900 and 1911;

2. Whether, during the period between 1880 and 1936, funds were available from other Crown accounts, including, but not limited to Land Management Accounts or general accounts from which expenditures on reserves might be drawn; and

3. Whether, during the period between 1880 and 1936, the Crown paid for fencing of any reserve lands to protect those lands (or caused the work to be performed at the cost of the Band) either out of the Band’s annual allowances or otherwise from the Crown accounts, including, but not limited to, the Land Management Account and general accounts from which expenditures on reserves might be drawn.

Request: 044 Question: 1276

Day 4 Pg. 465

U/T: Advise as to whether or not in fact the Defendant had paid for fencing other reserves for other bands to protect their reserve interests (subsequently objected to).

***OBJECTION***

Undertaking satisfied in part.

The Defendant shall provide the following, to the extent not previously made available:

1. Louis Bull’s capital or trust account balances during the period between 1900 and 1911;

2. Whether, during the period between 1880 and 1936, funds were available from other Crown accounts, including, but not limited to, Land Management Accounts or general accounts from which expenditures on reserves might be drawn; and

3. Whether, during the period between 1880 and 1936, the Crown paid for fencing of any reserve lands to protect those lands (or caused the work to be performed at the cost of the Band) either out of the Band’s annual allowances or otherwise from the Crown accounts, including, but not limited to, the Land Management Account and general accounts from which expenditures on reserves might be drawn.

Request: 044A Question: 1276

Day 4 Pg. 469

U/T: Advise as to whether or not in fact the Defendant had paid for fencing other reserves for other bands to protect their reserve interests.

***OBJECTION***

Objection maintained in part.

The Defendant shall provide the following, to the extent not previously made available:

1. Louis Bull’s capital or trust account balances during the period between 1900 and 1911;

2. Whether, during the period between 1880 and 1936, funds were available from other Crown accounts, including, but not limited to, Land Management Accounts or general accounts from which expenditures on reserves might be drawn; and

3. Whether, during the period between 1880 and 1936, the Crown paid for fencing of any reserve lands to protect those lands (or caused the work to be performed at the cost of the Band) either out of the Band’s annual allowances or otherwise from the Crown accounts, including, but not limited to, the Land Management Account and general accounts from which expenditures on reserves might be drawn.

Request: 050 Question: 1477

Day 4 Pg. 542

U/T: Advise as to whether there was any plan or survey formed by Canada or its agents in the area of the north end of Pigeon Lake from 1885 to 1909, and provide copies of same.

The Parties take the position, and I agree, that the Defendant has satisfied the undertaking.

Request: 051 Question: 1554

Day 4 Pg. 572

Advise what the Crown's information is about who John Lee was employed by, what languages he spoke, what his credentials were, and what experience he had in interpreting.

The Parties take the position, and I agree, that the Defendant has satisfied the undertaking.

Request: 073 Question: 2466

Day 7 Pg. 897

U/T: Advise what monies were received by the Louis Bull Indian band on account of the surrendered lands that were sold, on what dates, and the amount received up until all the lands were sold.

***OBJECTION***

The Defendant’s objection is maintained.

Request: 077 Question: 2495

Day 7 Pg. 910

U/T: Advise how many applications the Crown had received for minerals on the Indian Reserve 138 and how many mining permits had been granted prior to June 1909.

***TAKEN UNDER ADVISEMENT***

Objection denied.

The Defendant shall confirm the records of the Departments that were responsible for receiving or processing applications for the exploitation of coal on the reserve lands prior to the surrender, to include the Minister of the Interior, have been reviewed, and if not, to undertake that review.

Request: 80 Question: 2666

Day 8 Pg. 970

U/T: Provide a copy of the voters list referenced by Mr. Simison at footnote 77 of the Gainer report.

The Defendant has satisfied the undertaking.

Request: 083 Question: 2729

Day 8 Pg. 997

U/T: To determine and advise as to whether or not the Crown has any information that it also surveyed all or part of the Crown reserve road prior to the April 17th, 1909, surrender.

The Defendant has satisfied the undertaking.

Request: 085 Question: 2765

Day 8 Pg. 1009

U/T: Produce files 564689 and 23112-5 as referenced on Exhibit 6.

The Defendant has satisfied the undertaking.

Request: 089 Question: 2890

Day 8 Pg. 1055

U/T: Produce documents and records of meetings that might have occurred or advice that might have been given or disclosure that might have been given during the period of time of 1907 up until the surrender of August 17th, 1909.

***OBJECTION***

The Parties take the position, and I agree, that the Defendant has satisfied the undertaking.

Request: 106

Question: 3526

Day 10

Pg. 1289

U/T: Advise what the Crown says were the lands that were held by HBC which it said could not be sold at the time of the surrender agreement and what the specific acreage was.

***TAKEN UNDER

ADVISEMENT***

The Defendant’s objection is maintained.

Request: 118 Question: 3700

Day 10 Pg. 1363

U/T: Advise of the amounts that were paid to the Crown at the auction where the mineral tenures were acquired by the companies, as discussed.

***TAKEN UNDER

ADVISEMENT***

The Defendant has satisfied the undertaking.

Request: 119 Question: 3700

Day 10 Pg. 1366

U/T: Provide the amount of the bonus payments in the whole of the surrendered lands that were paid.

***TAKEN UNDER

ADVISEMENT***

In satisfaction of the request, the Defendant shall do the following:

1. Review the oil and gas regulations that were in place regarding bonus payments from 1909 to 1920 and provide any available information regarding what, if any, bonus payments were made in relation to the non-lake surrendered lands; and

2. Confirm that the Cunes Affidavit reflects all amounts paid to the Crown and transferred to the Plaintiffs’ trust account(s) for licenses, permits, leases, tenures, or any other grants, bonus payments, annual rents or royalties arising from oil and gas resources on surrendered but unsold lands.

Request: 120 Question: 3700

Day 10 Pg. 1367

U/T: Advise of any revenue or, again, auctions, bonus payments, any royalties paid in relation to coalbed methane in the surrendered lands.

***TAKEN UNDER

ADVISEMENT***

In satisfaction of the request:

The Defendant shall confirm that the Cunes Affidavit reflects all amounts paid to the Crown and transferred to the Plaintiffs’ trust account(s) for licenses, permits, leases, tenures, or any other grants, bonus payments, annual rents or royalties arising from oil and gas resources on surrendered but unsold lands.

Request: 121 Question: 3700

Day 10 Pg. 1373

U/T: Provide the Crown's information with regard to there being no coal seams that were developed on the IR138.

***TAKEN UNDER

ADVISEMENT***

Objection denied.

The Defendant shall confirm the records of the Departments that were responsible for receiving or processing applications for the exploitation of coal on the reserve lands prior to surrender, to include the Minister of the Interior, have been reviewed, and if not, to undertake that review.

Request: 123 Question: 3727

Day 11 Pg. 1390- 1391

U/T: Produce and list any claims file where submissions are exchanged between the Crown and Louis Bull and identify privileged documents as such in the list of documents.

***OBJECTION***

Objection denied.

The Defendant shall review the specific claims’ documents collection and deliver a supplementary or updated Affidavit of Documents in accordance with Rule 223.

Request: 125 Question: 3729

Day 11 Pg. 1397

U/T: Produce the original hard copies that were with the Claims and Historical Research Centre Louis Bull miscellaneous folders.

***TAKEN UNDER

ADVISEMENT***

The Parties take the position, and I agree, that the Defendant has satisfied the undertaking.

Request: 129 Question: N/A

Day 11 Pg. 1419

For those documents where the source is noted as unknown [in Undertaking 4 - document source.xlsx] that Canada will Provide the source if it is able to prior to the trial of these proceedings.

The Parties take the position, and I agree, that, subject to the Defendant’s researcher’s ongoing work being completed, the Defendant has satisfied the undertaking.

Request: 131 Question: 3747

Day 11 Pg. 1424

U/T: Determine whether or not there are other volumes related to file E5673-06651 and produce any that exist.

***OBJECTION***

The Defendant’s objection is maintained.

Request: 148 Question: 4386

Day 12 Pg. 1642

U/T: Produce records of Ermineskin band members taking scrip prior to 1909.

***OBJECTION***

The Defendant shall provide the Plaintiffs with details on how to access the publicly available scrip records online via Library and Archives Canada.

Request: 151 Question: 4428

Day 12 Pg. 1656

U/T: Provide all information about the Department of Indian

Affairs having a differing opinion on the assessment of Louis Bull lands by J.K. McLean.

***TAKEN UNDER

ADVISEMENT***

Undertaking satisfied in part.

The Defendant shall, to the extent Ermineskin Band files relating to the relevant period have not been reviewed in the production of the reserve files for the Louis Bull Band, review those files and produce any documents relevant to the Plaintiffs’ request.

Request: 155 Question: 5042

Day 13 Pg. 1847

U/T: Provide the file number within the Department of Indian Affairs records showing where the letters were moved.

The Defendant has satisfied the undertaking.

Request: 157 Question: 5128

Day 13 Pg. 1875

U/T: Advise about the balance of the Louis Bull accounts prior to the surrender, if there were funds available in the land management fund, and whether there was a policy on how the land management funds could be spent.

***TAKEN UNDER

ADVISEMENT***

Undertaking satisfied in part.

The Defendant shall look at whether trust fund account records exist for the Pigeon Lake IR shared by Louis Bull with three other First Nations and, if so, provide details on how or where they can be found.

Request: 158 Question: 5130

Day 13 Pg. 1878

U/T: Advise about the balance of the Louis Bull accounts prior to the surrender, how the Department of Indian Affairs exercised its discretion on whether to pay for things like fencing, and whether there was a policy on how the Department of Indian Affairs could spend the Land Management Funds.

***TAKEN UNDER

ADVISEMENT***

Undertaking satisfied in part.

The Defendant shall research and advise the Plaintiffs whether, during the period between 1880 and 1936, any policy authorized or otherwise governed the exercise of discretion in expending Land Management Funds (or other funds) by the responsible federal Department for purposes such as the fencing of reserve lands.

Request: 163 Question: 5434

Day 14 Pg. 1979

U/T: Advise as to the number of Louis Bull band families living on

Indian Reserve 138B.

***TAKEN UNDER

ADVISEMENT***

The Defendant’s objection is maintained.

Request: 167 Question: 5786

Day 15 Pg. 2113

U/T: Produce the agreement with respect to the sale of the HBC lands from the Hudson’s Bay Company to Canada.

***OBJECTION***

The Parties take the position, and I agree, that, subject to the Defendant’s researcher’s ongoing work being completed, the Defendant has satisfied the undertaking.

Request: 170 Question: 5813

Day 16 Pg. 2129

U/T: Advise where the revenue from leasing the unsold surrendered lands is or why the unsold surrendered lands were not leased.

The Parties take the position, and I agree, that, subject to the Defendant’s researcher’s ongoing work being completed, the Defendant has satisfied the undertaking.

Request: 171 Question: 5815

Day 15 Pg. 2134

U/T: Advise what amount was paid on account of leases of the

surrendered lands prior to the lands being sold.

***TAKEN UNDER

ADVISEMENT***

The Parties take the position, and I agree, that, subject to the Defendant’s researcher’s ongoing work being completed, the Defendant has satisfied the undertaking.

Request: 172

Question: 5816

Day 15

Pg. 2135

U/T: Determine if E.E. Sparks would have leased the surrendered lands for any period of time.

***TAKEN UNDER

ADVISEMENT***

The Parties take the position, and I agree, that the Defendant has satisfied the undertaking.

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

T-2439-97

STYLE OF CAUSE:

LOUIS BULL BAND, CHIEF SIMON THREEFINGERS, JONATHAN BULL, JOSEPH DESCHAMPS, CLYDE ROASTING, RUSSELL THREEFINGERS, HARVEY ROASTING, ELAINE ROASTING, TELLY RAINE AND IRVIN BULL, THE CHIEF AND COUNCILLORS OF THE LOUIS BULL BAND SUING IN THEIR REPRESETANTIVE CAPACITY ON BEHALF OF ALL THE MEMBERS OF THE LOUIS BULL BAND v HIS MAJESTY THE KING IN RIGHT OF CANADA

PLACE OF HEARING:

HELD BY VIDEOCONFERENCE

DATE OF HEARING:

December 28, 2023

ORDER AND REASONS:

GLEESON J.

DATED:

January 4, 2024

APPEARANCES:

Sarah Hansen

Christie McLeod

For The Plaintiffs

Erin M. Tully

Alex E. Hughes

Lynn Marchildon

For The Defendant

SOLICITORS OF RECORD:

Miller Thomson LLP

Lawyers

Vancouver, British Columbia

For The Plaintiffs

Attorney General of Canada

Vancouver, British Columbia

For The Defendant