SPECIFIC CLAIMS TRIBUNAL

B E T W E E N:

BIRCH NARROWS FIRST NATION

Claimant

and

BUFFALO RIVER DENE NATION

Claimant

v.

HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Minister of Indian Affairs and Northern Development

Respondent

and

ENGLISH RIVER FIRST NATION

Intervenor

NOTICE OF APPLICATION BY CANOE LAKE CREE FIRST NATION

FOR INTERVENOR STATUS

Pursuant to Section 25 of the Specific Claims Tribunal Act and Rules 34, 45

and 46 of the Specific Claims Tribunal Rules of Practice and Procedure

This Notice of Application is filed under the provisions of the Specific Claims Tribunal Act and

the Specific Claims Tribunal Rules of Practice and Procedure.

DATED May 9, 2019

_________________________

(Registry Officer)

SCT File No.: SCT - 5001 - 17

1

TO:

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

As represented by Jenilee Guebert and Scott T. Bell

Department of Justice

Prairie Region (Saskatoon)

Solicitors for the Respondent

123 2nd Avenue South, 10th Floor

Saskatoon SK S7K 7E6

Phone: (306) 975-6741 and (306) 975-6844

Fax: (306) 975-5013

AND TO:

BIRCH NARROWS FIRST NATION AND BUFFALO RIVER DENE NATION

As represented by Neil Reddekopp and Eric Pentland

Ackroyd LLP

Solicitors for the Claimants

1500 First Edmonton Place

10665 Jasper Avenue NW

Edmonton AB T5J 3S9

Phone: (780) 412-2700 and (780) 412-2721

Fax: (780) 423-8946

Email: nreddekopp@ackroydlaw.com

epentland@ackroydlaw.com

AND TO:

ENGLISH RIVER FIRST NATION

As represented by Neil Reddekopp and Eric Pentland

Ackroyd LLP

Solicitors for the Intervenor

1500 First Edmonton Place

10665 Jasper Avenue NW

Edmonton AB T5J 3S9

Phone: (780) 412-2700 and (780) 412-2721

Fax: (780) 423-8946

Email: nreddekopp@ackroydlaw.com

epentland@ackroydlaw.com

SCT File No.: SCT - 5001 - 17

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I. THE APPLICANT

1. The Applicant, Canoe Lake Cree First Nation (“Canoe Lake”), confirms that it is a First

Nation within the meaning of s. 2(a) of the Specific Claims Tribunal Act (the “Act”) by

virtue of being a “band” within the meaning of the Indian Act, R.S.C. 1985, c. 1-5, as

amended.

2. Canoe Lake is in receipt of a Notice from the Specific Claims Tribunal (the “Tribunal”)

issued pursuant to s. 22 of the Act, dated April 17, 2019, and makes the within application

pursuant to s. 25 of the Act.

3. In making this application, Canoe Lake also relies on Rules 2, 30, 34, 37, and 45 of the

Specific Claims Tribunal Rules of Practice and Procedure, SOR/2011-119.

II. RELIEF SOUGHT

4. Canoe Lake seeks an Order granting Canoe Lake status as an intervenor in proceeding SCT

5001-17.

III. GROUNDS FOR THE APPLICATION

5. The Claimant, Birch Narrows First Nation (“Birch Narrows”), filed its Declaration of

Claim on or around December 4, 2017. The Declaration of Claim was amended November

26, 2018 to add Buffalo River Dene Nation (“Buffalo River”) as a second Claimant in

accordance with the October 26, 2018 Order of the Honourable William Grist (the

“Amended Declaration of Claim”).

6. The Amended Declaration of Claim asserts that Her Majesty the Queen in right of Canada

(the “Crown”) breached its obligations under Treaty 10 to provide agricultural and

economic benefits to the Claimants (the “Birch Narrows Claim”).

7. In the Crown’s Response dated February 1, 2018, amended on December 14, 2018 in

response to the Amended Declaration of Claim (the “Crown’s Amended Response”), the

Crown seeks to have the Birch Narrows Claim dismissed in its entirety. Specifically, the

Crown takes the view that it has “wide discretion” over whether it must fulfil, and if so,

the manner and extent to which it fulfils its obligations under Treaty 10 to provide

agricultural and economic assistance to the signatory Bands. The Crown’s Amended

Response further advances the position that the Crown has fulfilled its obligations vis-à-

vis the agricultural and economic benefits clause in a manner consistent with the terms of

Treaty 10 and the honour of the Crown.1

8. The Claimants submit that the Crown’s obligation to provide agricultural and economic

assistance under Treaty 10 is not a matter of Crown discretion and that there is an objective

element in determining when the obligation arises and how it is fulfilled.2

9. Canoe Lake is also a signatory of Treaty 10. On October 16, 2008, Canoe Lake filed a

1 Amended Response at paras 26-29.

2 Amended Declaration of Claim at para 33.

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claim under Canada’s Specific Claims Policy asserting a breach of the Crown’s lawful

obligations on substantially the same grounds as asserted by Birch Narrows and Buffalo

River in their Declaration of Claim (the “Canoe Lake Claim”).

10. On or around September 23, 2011, the Crown informed Canoe Lake in writing of the

Minister’s decision not to negotiate any part of its specific claim.

11. Both the Birch Narrows Claim and the Canoe Lake Claim raise unique issues of treaty

interpretation. In particular, both claims turn largely on the proper interpretation of the

agricultural and economic benefits clause of Treaty 10 (the “Agricultural and Economic

Benefits Clause”), which reads as follows:

Further His Majesty agrees to furnish such assistance as may be found necessary or

advisable to aid and assist the Indians in agriculture or stock-raising or other work

and to make such a distribution of twine and ammunition to them annually as is

usually made to Indians similarly situated.

12. Canoe Lake’s interests will be directly affected by the Tribunal’s interpretation of the

Agricultural and Economic Benefits Clause in the Birch Narrows Claim. Canoe Lake’s

interest in the Birch Narrows Claim is effectively the same as that of English River First

Nation, which was granted intervenor status in the Tribunal’s Reasons issued on October

26, 2018.

13. Further, Canoe Lake offers a useful perspective that will assist the Tribunal in resolving

the issues in the Birch Narrows Claim. Canoe Lake submits that treaties must be interpreted

in accordance with the common intention of the parties at the time the Treaty was signed.

Thus, its understanding of the meaning of the parties’ obligations under Treaty 10, which,

as a signatory to Treaty 10, Canoe Lake is well placed to articulate, is essential to a fulsome

exercise of treaty interpretation. Canoe Lake also submits that treaty interpretation exercise

is informed by the Crown’s fiduciary relationship with Indigenous peoples, a position that

which has not been raised in either the Amended Declaration of Claim or the Amended

Response.

14. Finally, Canoe Lake will not unduly delay or prejudice the instant proceedings. It will make

principled submissions pertinent to treaty interpretation, and will not expand the scope of

the proceeding nor raise repetitive arguments.

15. In deciding whether to grant this application, s. 25(2) of the Act directs the Tribunal to

consider all relevant factors, including the effect on the cost and length of the hearing.

Canoe Lake’s status as a Treaty 10 signatory with a substantially similar claim and its

ability to assist the Tribunal on the question of treaty interpretation are relevant factors.

Any effect on the cost and length of the hearing is minimal.

IV. CONSENTS

16. Canoe Lake has been advised that the Claimants support Canoe Lake’s application for

intervenor status.

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17. Canoe Lake has been further advised that counsel to the Respondent presently has no

instruction with respect to its position on Canoe Lake’s application for intervenor status.

V. PROPOSED MANNER OF PARTICIPATION

18. Canoe Lake proposes to participate in this Claim on the same terms as intervenor English

River First Nation, namely by:

a. Filing a written memorandum of law of less than 20 pages in length;

b. Making oral submissions lasting less than 30 minutes; and

c. Making submissions solely on the matter of treaty interpretation and without

duplicating the submissions of the parties or intervenor.

19. Canoe Lake will not add to the evidentiary record, will not present, examine or cross-

examine witnesses, will not bring interlocutory applications nor applications for judicial

review, and will not seek costs against the parties in this proceeding.

20. Canoe Lake notes that this proceeding was bifurcated by an Order dated July 12, 2018, and

reserves the right to submit a new application for intervenor status in the compensation

stage of this proceeding.

VI. INTENTION TO SUPPORT

21. Canoe Lake intends to support the position taken by the Claimants.

VII. LANGUAGE TO BE USED

22. Canoe Lake intends to use only the English language. No translation will be necessary.

VIII. COSTS

23. Canoe Lake asks that its application be granted without costs to any party.

Respectfully submitted this 9th day of May, 2019, in the city of Calgary in the province of Alberta.

MAURICE LAW

______________________________

Steven W. Carey

Counsel for the Claimant Maurice Law Barristers & Solicitors

300, 602–12th Ave SW

Calgary, Alberta T2R 1J3

Phone: (403) 266-1201 | Fax: (403) 266-2701

Email: scarey@mauricelaw.com