Michael E. Burke

The moving party sought leave to appeal an order granting advance costs to plaintiffs in treaty land entitlement litigation involving the size of a reserve under Treaty 9.

The motion judge had found the plaintiffs met the Supreme Court of Canada test for advance costs and ordered the costs initially shared between the federal and provincial defendants, subject to later adjustment.

The court held there was no reason to doubt the correctness of the motion judge’s application of the three‑part test for advance costs or her discretionary decision to award them.

The allocation of costs between the governmental defendants was reasonable at this preliminary stage.

Leave to appeal was denied because the issues were fact‑driven and did not raise matters of public importance or legal development.

Following a prior decision in favour of the plaintiffs on a motion, the court addressed the quantum of costs payable.

The plaintiffs sought approximately $174,000 in costs on a partial indemnity basis, while the federal defendant argued that $75,000 was reasonable.

The court considered the substantial evidentiary record, the importance of the motion, and the extensive preparation required to establish a meritorious claim related to Indigenous rights litigation.

Balancing these factors, the court fixed costs at $125,000 inclusive of disbursements and taxes.

The costs award remained subject to possible re‑adjustment between the governmental defendants at trial.

The families of two deceased First Nations persons and the Nishnawbe Aski Nation sought to challenge the representativeness of the jury rolls for two coroners' inquests, arguing that First Nations persons living on reserves were systematically excluded.

The presiding coroners refused to issue summonses to the director of court operations to inquire into the jury roll preparation.

The Court of Appeal held that coroners have jurisdiction by necessary implication to inquire into the representativeness of a jury roll and to remedy an unrepresentative list.

The Court found sufficient evidence to warrant the summonses, allowed the appeals, and ordered a new inquest into one of the deaths.

The Aboriginal appellants were convicted of night hunting and discharging a firearm on a road after shooting at a moose decoy from a gravel logging road.

They appealed, arguing they were exercising their hunting rights under Treaty No. 9.

The Court of Appeal dismissed the appeal, finding that the road was a 'right of way for public vehicular traffic' and constituted land 'taken up' for forestry and public use, making it visibly incompatible with hunting.

Therefore, the treaty right did not protect their actions on that specific road.

The Attorney General of Canada sought leave to appeal an interlocutory order that dismissed its motion to strike portions of the plaintiffs' Statement of Claim regarding post-confederation annuity payments under a rectified treaty.

The motion judge had refused to strike the pleadings, reasoning that complex constitutional cases involving treaty interpretation should not be decided at the pleadings stage without a complete factual record.

The court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's decision to allow the action to proceed to trial.