Gary N. Penner

The plaintiffs, members of the Grassy Narrows First Nation, brought an action alleging that Ontario's issuance of a forestry licence in the Keewatin portion of Treaty 3 lands violated their treaty harvesting rights.

The trial judge found that Ontario could not take up lands in the Keewatin territory without Canada's approval.

The Court of Appeal allowed the appeal, holding that upon the transfer of beneficial ownership of the Keewatin lands to Ontario in 1912 pursuant to s. 109 of the Constitution Act, 1867, Ontario acquired the right to take up lands under the treaty without federal approval.

The Court found that the trial judge erred in interpreting the treaty as requiring a two-step authorization process and in finding that s. 91(24) gave Canada a continuing supervisory role over provincial land use.

The appellant, the Attorney General of Canada, appealed an order requiring it to respond to interrogatories and provide particulars of its legal position in a complex action brought by the respondent band.

The Divisional Court dismissed the appeal, holding that the Rules of Civil Procedure permit a party to be examined on its legal position to focus the issues and prevent surprise at trial.

The court found that the word 'matter' in the rules governing discovery is broad enough to include a party's position on a legal issue.

In a complex Indigenous land claim involving multiple summary judgment motions and overlapping appeals, the moving party sought to quash an appeal by one Crown respondent and a cross-appeal by another.

The court held that, because the motions below were heard together on a single record and the issues were interrelated, the provincial Crown had standing to appeal despite not bringing its own motion below.

The court also held that the federal Crown had standing to cross-appeal and that any complaint that it was advancing a new argument went to the merits, not to the validity of the cross-appeal.

Both motions to quash were dismissed with costs.