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Action No.

: 8201-03713
E-File No.: CVQ17OMINAYAKB
Appeal No.: ____________________

IN THE COURT OF QUEENS BENCH OF ALBERTA


JUDICIAL CENTRE OF CALGARY

BETWEEN:

CHIEF BERNARD OMINAYAK, Chief of the


Lubicon Lake Band and the Lubicon Lake Cree Nation,
of Little Buffalo Lake, Alberta, BILLY JOE LABOUCAN,
former band councillor of the Lubicon Lake Band
and member of the Lubicon Lake Cree Nation,
of Little Buffalo Lake, Alberta, LARRY OMINAYAK,
band councillor of the Lubicon Lake Band and
member of the Lubicon Lake Cree Nation
of Little Buffalo Lake, Alberta, EDWARD LABOUCAN,
trapper, member of the Lublicon Lake Band
and the Lubicon Lake Cree Nation,
of Little Buffalo Lake, Alberta,
MICHAEL (FLEURY MICHEL) LABOUCAN,
band councillor of the Lubicon Lake Ban
and member of the Lubicon Lake Cree Nation,
of Little Buffalo Lake, Alberta,
THE OTHER 131 HEADS OF FAMILY UNITS OF THE
LUBICON LAKE BAND LISTED ON ANNEX "A" HEREOF,
and CHIEF BERNARD OMINAYAK, suing on behalf of
and for the benefit of the Lubicon Lake Band,
the Lubicon Lake Cree Nation and all of their members,
and THE LUBICON LAKE BAND, a body of Indians
recognized under the Indian Act,
of Little Buffalo Lake, Alberta and comprising
the 458 Cree Indians listed as members on Annex
"A" hereof

Plaintiffs

and

NORCEN ENERGY RESOURCES LIMITED, a corporation duly


incorporated, having its head office
in Toronto and an office and place
of business at Norcen Tower, 715
5th Ave S.W, Calgary, Alberta, DOME
PETROLEUM LIMITED, a corporation duly
incorporated having its head office at
333 7th Avenue S.W., Calgary, Alberta
CHIEFTAN DEVELOPMENT CO. LTD., a corporation
duly incorporated, having its head
office at 1201 Toronto Dominion Tower,
Edmonton Centre, Edmonton, Alberta,
SHELL CANADA LIMITED, a corporation duly
incorporated, having a place of business at
400 4th Avenue S.W., Calgary, Alberta, UNOCAL
CANADA LIMITED, a corportation duly incorporated,
having its head office at 335 8th Avenue S.W.,
Calgary, Alberta, NUMAC OIL & GAS LTD.,
a corporation duly incorporated, having its
head office at 9915 108th Street, Edmonton,
Alberta, PETRO-CANADA INC, a corporation duly
incorporated having its head office at
407 2nd Street S.W., Calgary, Alberta
CHEVRON CANADA RESOURCES LIMITED,
a corporation duly incorporated, having its
head office at 400 5th Avenue S.W., Calgary, Alberta,
PETRO-CANADA ENTERPRISES INC., a corporation duly
incorporated having its head office in
Montreal, Quebec and a place of business at
736 8th Avenue S.W., Calgary, Alberta,
AMOCO CANADA PETROLEUM COMPANY LTD., a corporation
duly
incorporated having its head office at
444 7th Avenue S.W., Calgary, Alberta,
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF
ALBERTA, Legislature Building, Edmonton, Alberta,
CHESTER L. LHIRONDELLE and PETER SAWAN

Defendants
PROCEEDINGS

Calgary, Alberta
March 3, 2017

Transcript Management Services, Calgary


Suite 1901-N, 601-5th Street SW
Calgary, Alberta T2P 5P7
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i

TABLE OF CONTENTS

Description Page

March 3, 2017 Morning Session 1


Submissions by Mr. Yesdresyski 3
Submissions by Ms. Ladovrechis 23
Decision 48
Certificate of Record 54
Certificate of Transcript 55
1

1 Proceedings taken in the Court of Queens Bench of Alberta, Calgary Courts Centre, Calgary,
2 Alberta
3
4 March 3, 2017 Morning Session
5
6 The Honourable Mr. Justice Wilson Court of Queens Bench of Alberta
7
8 R. F. Roddick, Q.C. For the Plaintiffs
9 D. B. Yesdresyski For the Plaintiffs
10 S. Ladovrechis For the Defendants
11 D. L. Sharko For Her Majesty the Queen in Right of Alberta
12 and the Attorney General for Alberta
13 S. Iyar Court Clerk
14
15
16 THE COURT CLERK: Order in court, all rise.
17
18 THE COURT: Good morning. Thank you. Please be seated.
19 Sorry. Sorry, I normally say immediately be seated, I didnt, I just realized, my God,
20 everyones still standing. Sorry, folks. All righty.
21
22 Application, then, to remove certain plaintiffs and substitute. All right.
23
24 MR. YESDRESYSKI: That is correct, My Lord.
25
26 THE COURT: Thats Mr. Yesdresyski for the applicants?
27
28 MR. YESDRESYSKI: Yesdresyski. Yes, My Lord.
29
30 THE COURT: Sorry, Im -- Ill probably butcher the
31 pronunciation and I apologize at the get go.
32
33 MR. YESDRESYSKI: Oh, it was very good, actually.
34
35 THE COURT: Oh, okay.
36
37 MR. YESDRESYSKI: Yes.
38
39 THE COURT: No. Youre not handing me more stuff, are
40 you?
41
2

1 MR. YESDRESYSKI: Sorry?


2
3 THE COURT: Youre not handing me more stuff?
4
5 MR. YESDRESYSKI: No. I wont hand you any more stuff this
6 morning.
7
8 THE COURT: Good man. All righty. I can tell both sides
9 here that Ive had the opportunity to review your materials. Thank you very much for
10 that.
11
12 And for the respondents, its Ms. Ladovrechis?
13
14 MS. LADOVRECHIS: Yes, Your Honour.
15
16 THE COURT: What happened to just Smith and Jones? Ive
17 got Wilson. And, again, youll also have my apologies at the get go here.
18
19 MS. LADOVRECHIS: No. No problem.
20
21 THE COURT: So youre on for the respondents here?
22
23 MS. LADOVRECHIS: Yes. And Id like to just point out to --
24
25 THE COURT: Sure.
26
27 MS. LADOVRECHIS: -- that I am a member of the Quebec bar.
28
29 THE COURT: Oh, yeah.
30
31 MS. LADOVRECHIS: I am visiting under the provisions of the rules
32 of the Law Society of Alberta --
33
34 THE COURT: Right. Yeah.
35
36 MS. LADOVRECHIS: -- the inter-jurisdictional practice, temporary
37 practice --
38
39 THE COURT: Yeah. Yeah.
40
41 MS. LADOVRECHIS: -- so just wanted to let you know.
3

1
2 THE COURT: Yeah. So, great. Well, welcome to Alberta.
3
4 MS. LADOVRECHIS: Thank you.
5
6 THE COURT: Bienvenu.
7
8 MS. LADOVRECHIS: Merci.
9
10 THE COURT: And thats probably the last bit of French youll
11 ever get out of me too, you know, outside of je me souviens.
12
13 MS. LADOVRECHIS: But I was planning on pleading in French, so.
14
15 THE COURT: Oh, is that right?
16
17 MR. YESDRESYSKI: Please dont.
18
19 THE COURT: Okay. So, as I said, since Ive -- I can tell you
20 Ive read the materials. If that assists you in terms of focussing the argument in the
21 manner in which you wish to, great, and, if not, fire away.
22
23 MR. YESDRESYSKI: Okay. Thank you, My Lord.
24
25 THE COURT: Yeah.
26
27 Submissions by Mr. Yesdresyski
28
29 MR. YESDRESYSKI: So, as you pointed out, this is an application of
30 an order substituting some of the plaintiffs.
31
32 THE COURT: Yeah.
33
34 MR. YESDRESYSKI: The applicants position is the substitution of
35 the plaintiffs that are suing in the representative capacity in the -- in the action is -- is
36 required to reflect the current governance of this Aboriginal group to allow -- and to allow
37 the further conduct of the action and -- and to deal with the action in -- in the general
38 sense.
39
40 THE COURT: So its a -- flows out of the fact of the election?
41
4

1 MR. YESDRESYSKI: Yeah. Yes. And I think it boils down to an


2 argument about who has the authority to speak for this group and, ultimately, its a
3 governance issue.
4
5 THE COURT: Okay. But it flows out of the fact of the
6 election. If we didnt have the election and your folks -- your clients didnt get elected,
7 you wouldnt be here, right?
8
9 MR. YESDRESYSKI: Thats correct. In the election --
10
11 THE COURT: Okay. So how many elections are there going
12 to be before this case gets settled, do you figure?
13
14 MR. YESDRESYSKI: Well, hopefully, not too many more. I mean,
15 every five years there will be one, hopefully, and then, hopefully, thats a smooth process.
16
17 THE COURT: Yeah. So if its not settled within the next five
18 years and the election was in 2013, so 2018, thats next year.
19
20 MR. YESDRESYSKI: Thats right.
21
22 THE COURT: And working on the assumption that this is
23 going to proceed at about the same glacial speed that has been demonstrated since 1982, I
24 gather, then, I can, if we have another election and different folks are elected, then I or
25 another one of my colleagues will undoubtedly be facing yet another application for
26 substitution to reflect the new regime. Would that be a reasonable expectation?
27
28 MR. YESDRESYSKI: I -- I think thats reasonable under certain
29 circumstances, My Lord. I think, ultimately, the reason the applicants are moving forward
30 at this time is -- is to clean all this stuff up and actually resolve it fully and -- and get rid
31 of the litigation. Thats -- thats the ultimate goal. So --
32
33 THE COURT: Well --
34
35 MR. YESDRESYSKI: -- but, yes, certainly, there are circumstances
36 where this may be in front of the Court again.
37
38 THE COURT: Okay.
39
40 MR. YESDRESYSKI: Now, I just will brush over some of the facts
41 which I would submit are unchallenged. The Lubicon Lake Cree people are a distinct
5

1 group of Cree people that are ancestrally tied to traditional lands in the Little Buffalo
2 area.
3
4 THE COURT: Right.
5
6 MR. YESDRESYSKI: The group, through its chief and council at the
7 time, commenced this particular action on behalf of the collective of 1982, the Lubicon
8 Lake Band. The action primarily deals with the collective rights of the Lubicon Lake
9 Cree, including Aboriginal title and treaty rights. The Lubicon Lake Cree people have
10 adopted a custom election code whereby elections are conducted for their chief and
11 council by custom and not by the default process set out in the Indian Act.
12
13 THE COURT: Your friend seems to take the position that a
14 band, as constituted under the Indian Act, doesnt have the necessary authority to be able
15 to be suing on behalf of, in this case, the Lubicon Lake Cree Nation, and the distinction
16 being that there may be people, one to several hundred, that may not be viewed as being
17 registered Indians, may not be viewed as being a member of a band, as that is recognized
18 by the Government of Canada. So its a separate group, as it were, but their position
19 seems to be that your folks, who are the leaders now after the election - I appreciate its
20 disputed but were going on the basis that its a valid election - dont have the status,
21 dont have the authority, to be able to speak on behalf of the Nation. What is your
22 position in regard to that? Do you agree with them or not?
23
24 MR. YESDRESYSKI: No. We do not agree with that. We dont --
25 we dont agree -- we agree that the authority comes from the -- the collective, the
26 membership itself, we totally agree with that.
27
28 THE COURT: Okay.
29
30 MR. YESDRESYSKI: We dont agree with this identification or label
31 that this is an Indian Act band council or -- or this sort of thing. This group --
32
33 THE COURT: But its got a limited authority, therefore.
34
35 MR. YESDRESYSKI: That -- that has a limited authority.
36
37 THE COURT: Yeah.
38
39 MR. YESDRESYSKI: This -- this group has its own custom election
40 code.
41
6

1 THE COURT: Yeah.


2
3 MR. YESDRESYSKI: It has its own -- it controls its own membership
4 code and it has its own internal governance procedures that it has adopted. Those are
5 adopted from the traditions. Those are adopted, as you know, My Lord, from -- and any
6 nation is allowed to -- to do that --
7
8 THE COURT: M-hm.
9
10 MR. YESDRESYSKI: -- and run their elections pursuant to their own
11 traditions.
12
13 THE COURT: Yeah.
14
15 MR. YESDRESYSKI: So our position is the election that occurred on
16 February 15th, 2013 occurred pursuant to the traditions. And our position further is that
17 there -- the internal governance documents that the -- that the nation relies on to deal
18 with the various things that the government has to deal with put the authority to deal with
19 the sort of things as this litigation, to deal with treaty and Aboriginal rights, in the hands
20 of the chief and council that are elected pursuant to the tradition.
21
22 We believe the evidence that came out in the affidavits and the questioning on affidavits
23 supports that there was an -- an election code. It was followed by both groups, both the
24 applicants and respondents, they both treated that as their election code. That was used to
25 conduct the election in February of 2013. There was no appeal, there was nothing done
26 about the results of that election, it was just left, and -- and the applicants proceeded to
27 begin consultation and negotiation with various parties, including federal and -- and
28 provincial government, on the basis that they had the authority.
29
30 THE COURT: Hm.
31
32 MR. YESDRESYSKI: And that occurred. And the -- so absolutely our
33 position is that the authority comes from the collective, but the authority has been
34 properly granted to the applicants.
35
36 THE COURT: What do you make of the fact that the other
37 side, Chief Ominayak and his supporters, in June of 2013, launched a lawsuit against the
38 Government of Canada and against the Government of Alberta, the content of which is
39 not particularly relevant to my question to you, but they filed a lawsuit and I didnt get
40 any notion that your clients made any court application to have that lawsuit dismissed as
41 being improperly founded that these people cant sue as a -- on behalf of a collective,
7

1 they dont have any status, is there some reason, if you take the position that you do, why
2 there wouldnt have been an application to have that struck to say, Whoa, whoa, may as
3 well have Wilson file a lawsuit? You know, its absolutely invalid. Can you help me
4 there?
5
6 MR. YESDRESYSKI: Yes, I can, My Lord. That point is good. That
7 really -- it boils down, we havent gotten to that one yet. There is several --
8
9 THE COURT: Wait a minute, you havent filed an application
10 since June of 2013.
11
12 MR. YESDRESYSKI: Yeah. Havent filed --
13
14 THE COURT: Well, its coming down to almost four years.
15 Youre telling me somebody hasnt filed an application to have it struck as being
16 improperly filed?
17
18 MR. YESDRESYSKI: Well, the decision was made to address --
19 theres several pieces of litigation similar on the basis of the Aboriginal and treaty rights
20 and the decision was made to take them one step at a time.
21
22 THE COURT: Okay. Well, I appreciate the ones that were
23 extant, but Im talking about the ones post election. So weve got this balkanization that
24 is occurring and I just find it passing strange that, put aside the -- the ongoing litigation,
25 the one, for instance, with Penn West that Justice Simpson had some comments on, Im
26 just dealing with one that comes out thereafter and thats why I was surprised, but now I
27 understand what the answer is and that were taking a measured approach to it and itll be
28 in line, but, okay.
29
30 MR. YESDRESYSKI: And, as its turned out, theyre very involved
31 applications and theres a couple of Federal Court --
32
33 THE COURT: Yeah.
34
35 MR. YESDRESYSKI: -- that also are -- were in the process of --
36
37 THE COURT: Oh, is that right?
38
39 MR. YESDRESYSKI: -- of dealing with those as well.
40
41 THE COURT: Okay.
8

1
2 MR. YESDRESYSKI: So that is the short answer, My Lord.
3
4 THE COURT: I get you. I thank you very much for that.
5
6 MR. YESDRESYSKI: Youre welcome.
7
8 THE COURT: Sorry for interrupting. Carry on.
9
10 MR. YESDRESYSKI: No. No problem. Now, this particular group
11 has always traditionally spoken through its elective chief and council as a matter of
12 custom and thats reflected in the fact that the way this action was started --
13
14 THE COURT: M-hm.
15
16 MR. YESDRESYSKI: -- and the way the other actions are started. So
17 that particular approach to these problems being advanced by the elective leaders, the
18 chief and council, is -- is clear in just whats occurred.
19
20 Now, Ill -- Ill deal -- Ill go through the argument just touching on some points here, the
21 first dealing with standing and authority. Now, the -- the Indian Act at section 2
22 specifically provides that a band acts through its council, so that -- that council can be
23 elected pursuant to the -- the default provisions in the Indian Act, but it also can be
24 elected pursuant to the traditional custom election code, of course.
25
26 THE COURT: M-hm.
27
28 MR. YESDRESYSKI: Now, the rights belong -- belonging to the
29 collective are exercised through the authorized representatives of the collective
30 membership of the band. Again, that is -- that is clearly set out in -- in the Act and I -- I
31 think at that -- I would point out that what were talking about right now is the right to
32 assert those rights and to -- to deal with things like litigation and consultation and
33 negotiation.
34
35 THE COURT: Hm.
36
37 MR. YESDRESYSKI: Ultimately, if there was a settlement of those
38 rights, that wouldnt be something that the -- the chief and council could just do through
39 -- you know, through a BCR or something like that, that would have to go back to the
40 membership, there would have to be a referendum, and they would have to authorize --
41
9

1 THE COURT: If there is some form of a settlement --


2
3 MR. YESDRESYSKI: Yeah.
4
5 THE COURT: -- the potential settlement has to go through the
6 referendum.
7
8 MR. YESDRESYSKI: Yeah. Yeah.
9
10 THE COURT: Okay.
11
12 MR. YESDRESYSKI: So it isnt like if this was resolved --
13
14 THE COURT: Yeah.
15
16 MR. YESDRESYSKI: -- or an agreement was reached that that means,
17 you know, that theyre -- theyre stuck with --
18
19 THE COURT: Got you.
20
21 MR. YESDRESYSKI: Yeah. Now, dealing with some recent
22 decisions, in the reasons of Chief Justice Wittmann in the decision thats included in the
23 brief --
24
25 THE COURT: Yeah.
26
27 MR. YESDRESYSKI: -- he cites the Supreme Court decision, Behn
28 v. Moulton Contracting, along with the British Columbia Supreme Court decisions Quinn
29 v. Bell Pole and Te Kiapilanoq v. British Columbia, all of which are attached and arise at
30 the conclusion that he sets out in paragraph 31, that the treaty rights are collective rights
31 and the standing to enforce those vests in the Indian Band.
32
33 THE COURT: But some of this lawsuit, though, is not related
34 to treaty rights --
35
36 MR. YESDRESYSKI: No.
37
38 THE COURT: -- its in relation to rights that preexist treaty.
39
40 MR. YESDRESYSKI: Thats correct. Aboriginal title.
41
10

1 THE COURT: So thats -- its a very interesting comment, but


2 it didnt seem to be, when I read the decision, had particular application to the nature of
3 this lawsuit. I went through it. I couldnt find much in the way of a claim of a violation
4 of the treaty right.
5
6 MR. YESDRESYSKI: Certainly. And those decisions are on -- on
7 treaty rights, generally speaking.
8
9 THE COURT: Yeah. Yeah.
10
11 MR. YESDRESYSKI: The -- the respondents have included various
12 decisions in their brief, and Ill get to that as well --
13
14 THE COURT: Yeah.
15
16 MR. YESDRESYSKI: -- but they -- that they also, we would submit,
17 arrive at the conclusion that the collective rights include Aboriginal rights, Aboriginal
18 title, and treaty rights --
19
20 THE COURT: Yeah.
21
22 MR. YESDRESYSKI: -- and theyre all different branches of rights,
23 but that those are all properly asserted by the representatives that are authorized by the
24 membership of the -- of the nation. And I think theyve -- frankly, I dont think the
25 respondents dispute that thats the case. I mean, the brief actually has several other cases
26 dealing with the other branches, the rights of Aboriginal title and Aboriginal rights.
27
28 THE COURT: Well, they do have one case from the BC Court
29 of Appeal. Paragraph 71 makes some comment that, apparently -- well, they jump, they
30 actually jump from where it may be a situation where a band may not be able to speak to
31 non-treaty rights and then the very next paragraph they seem to take that it may, that it
32 does in its will, its kind of -- becomes black and white, but Ill deal with your friend --
33
34 MR. YESDRESYSKI: Okay.
35
36 THE COURT: -- on their interpretation of that case --
37
38 MR. YESDRESYSKI: Okay. Thank you.
39
40 THE COURT: -- and its application if any to this case.
41
11

1 MR. YESDRESYSKI: Okay. Thank you, My Lord.


2
3 THE COURT: Sure.
4
5 MR. YESDRESYSKI: And, of course, when this claim was
6 commenced in 1982, the rights holder was this group of Cree people from this area and it
7 was pled on that basis and it was pled by the chief and council of the Lubicon Lake Band
8 at the time and -- and Chief Ominayak was the chief at that time --
9
10 THE COURT: M-hm.
11
12 MR. YESDRESYSKI: -- and had been elected, similarly to the
13 applicants, pursuant to the custom election code that the band uses -- or that the group
14 uses.
15
16 THE COURT: M-hm.
17
18 MR. YESDRESYSKI: The applicants and the respondents are -- are all
19 part of the same group of Cree people and I dont think theres any dispute about that --
20 well, there may be dispute about that, but theres really no evidence that -- theres no --
21 theres no support for the contention that theyre different in any real sense, and this is
22 confirmed in the testimony provided by the respondents in the affidavit filed and -- and
23 the questioning on her own -- on her affidavit. In her affidavit at paragraph 6, she
24 deposes that theres been a concordance between the Lubicon Lake Nation and the
25 Lubicon Lake Band for whom this action was commenced for the benefit of. And I
26 understood that when I read it in the affidavit and after reading her testimony after
27 questioning that she sees these two groups as comprised as the same membership.
28
29 Now, the group is identifiable. The -- the election code and the internal governance
30 documents provide a basis for being a member and theyre all largely tied to the ancestral
31 and historical ties that -- that those people would have to the traditional lands identified
32 by this First Nation. Thats the basis for becoming a member. And this action was
33 commenced and it still remains the case that it was the same group of people. Its -- its
34 grown by births and -- and also theres -- you know, theyve lost people as well, of
35 course, but the group itself is all tied to this particular area.
36
37 THE COURT: M-hm.
38
39 MR. YESDRESYSKI: Now, its that group thats the rights holder
40 and -- and we would submit that the evidence is that theres only one rights holder here.
41 So then the question is that who are the current authorized representatives, of course, for
12

1 the collective, that is the rights owner, the Lubicon Lake Cree people, Lubicon Lake
2 Band, Lubicon Lake Nation? The respondents in their brief have made a point, as -- as
3 we alluded -- or spoke to earlier, of continually referring to the applicants as an Indian
4 Act chief and council and we -- we obviously, and as I said earlier, have -- do not agree
5 with that and -- and find it misleading. They are recognized by the -- the minister as
6 being the -- the current elected chief and council and by the Government of Alberta.
7 Thats just one part of it. They are and were elected pursuant to their traditional election
8 code.
9
10 THE COURT: Right.
11
12 MR. YESDRESYSKI: Now, the -- during -- Ill just tie together the
13 facts because its -- or the -- the evidence a bit because it was -- some of it came in
14 through undertakings, it was at questionings, so the -- the applicant, Chief Laboucan, had
15 testified that the election that occurred in February -- on February 15th, 2013 occurred
16 pursuant to their custom election code. That was provided to the respondents through an
17 application an undertaking thats attached. Its in a different format that in the election
18 code that was attached to the affidavit of the respondents, but going through that, it -- we
19 would submit its substantially the same. It is the election code. It really is just a matter
20 of the one was made in a -- in a more presentable -- or the presentation was changed, the
21 substance is the same.
22
23 THE COURT: But youre not asking me to actually offer some
24 comment as to the validity of the election --
25
26 MR. YESDRESYSKI: No. Absolutely no.
27
28 THE COURT: -- because, as I understand, your position is this
29 is a -- were engaging here in a collateral attack by the respondents --
30
31 MR. YESDRESYSKI: Not asking you to do that.
32
33 THE COURT: -- challenging without doing a proper attack --
34
35 MR. YESDRESYSKI: Yeah. Yeah.
36
37 THE COURT: -- on the election if one wants to.
38
39 MR. YESDRESYSKI: And Im not -- yeah, Im not -- the reason I
40 think its important is that we -- we want to make it clear that it was the custom election
41 code, it wasnt the band -- or the Indian Act default regulations, it was the traditions and
13

1 customs that were used and, while they look a little bit different, theyre the same and
2 were not asking you to comment on the election.
3
4 THE COURT: But we do have a curious thing that, within
5 several months, we have two different elections and two different results.
6
7 MR. YESDRESYSKI: Yes, we do.
8
9 THE COURT: That seems to be the situation thats presented
10 to me.
11
12 MR. YESDRESYSKI: Yes, we do. And --
13
14 THE COURT: Which would tend to suggest the screamingly
15 self-evident, one of the two probably is wrong.
16
17 MR. YESDRESYSKI: Yeah.
18
19 THE COURT: You know, as an outsider, that -- and theres
20 been no action to either seek to invalidate one or the other.
21
22 MR. YESDRESYSKI: Thats correct.
23
24 THE COURT: Okay.
25
26 MR. YESDRESYSKI: But I think the -- the timing of it is important
27 there. I mean, the election -- the first election occurred first and --
28
29 THE COURT: Yeah.
30
31 MR. YESDRESYSKI: -- that I think is key to that but, yes, of course,
32 a second election did occur.
33
34 THE COURT: Yeah.
35
36 MR. YESDRESYSKI: Now, as you just spoke of, the -- the election,
37 of course, that occurred in -- on February 15th, 2013, those -- those results stand
38 uncontested other than --
39
40 THE COURT: But so did -- so did theirs.
41
14

1 MR. YESDRESYSKI: Yes. Yes, My Lord.


2
3 THE COURT: So, again, can we just go back? I mean, listen,
4 isnt the necessary backdrop to why were here, lets not kid ourselves, but I think both
5 sides recognize the application for -- before me does not in any way, shape, or form call
6 upon me to determine which of the two elections is valid, ergo, which of the two is
7 invalid. I cant make that determination. I -- I just got that reality, as I said, and
8 which -- and I think any informed observer would say, Well, you cant have two with
9 different results purporting to be the one. One of the two of them is invalid, arguably,
10 maybe both are invalid for all I know, I dont know, but Im not sitting here deciding
11 that. So I get it, I know weve got an election, I understand that various peoples and
12 various governments, federal and provincial, have recognized your clients as being the
13 proper representatives. I get all that.
14
15 MR. YESDRESYSKI: Ill leave that alone.
16
17 THE COURT: Okay.
18
19 MR. YESDRESYSKI: Now, the -- Im just moving through my
20 argument, if youd just give me a moment, Sir?
21
22 THE COURT: Sure. No problem.
23
24 MR. YESDRESYSKI: My Lord.
25
26 THE COURT: No problem.
27
28 MR. YESDRESYSKI: Just back to the authority, the jurisdiction --
29
30 THE COURT: Hm.
31
32 MR. YESDRESYSKI: -- deriving from the -- the Nations own
33 customs and traditions --
34
35 THE COURT: M-hm.
36
37 MR. YESDRESYSKI: -- attached to the respondents affidavit was a
38 document, its tab 8 in the -- in the applicants brief.
39
40 THE COURT: Is that the affidavit sworn January 13?
41
15

1 MR. YESDRESYSKI: Yes. That was the affidavit sworn January --


2
3 THE COURT: And you want me to look at tab A?
4
5 MR. YESDRESYSKI: Yeah. And its tab 8 of the brief, thats
6 probably the easiest way to find it. Its --
7
8 THE COURT: Tab A of the brief?
9
10 MR. YESDRESYSKI: Eight of the brief. If you have the affidavit, its
11 Exhibit C of the affidavit.
12
13 THE COURT: Okay. Ive got that too. Yeah.
14
15 MR. YESDRESYSKI: So this document, as is deposed in the -- in the
16 affidavit, is a law that the Lubicon Lake people passed dealing with specifically the
17 traditional lands --
18
19 THE COURT: M-hm.
20
21 MR. YESDRESYSKI: -- and traditional territory.
22
23 THE COURT: Yeah.
24
25 MR. YESDRESYSKI: And it sets out specifically at 1 that: (as read)
26
27 The jurisdiction, ownership, management, control, and
28 administration of the traditional lands of Lubicon Lake Nation are
29 hereby declared a vest in Lubicon Lake Indian Nation acting
30 through its council.
31
32 And then when you go to the final page of that, we see that councils defined as: (as read)
33
34 Governing body of the Lubicon Lake Nation consisting of chief
35 and councillors elected by the members of the Lubicon Lake
36 Nation.
37
38 So our -- our position -- and that document is -- is an internal governance document of --
39 of the Lubicon Lake people, that that document states that the authority to deal with the
40 things that are dealt with in this litigation derives through custom from that particular
41 document, that internal document, so the -- the chief and the council that were elected
16

1 pursuant to the custom have the authority to deal with that.


2
3 THE COURT: M-hm.
4
5 MR. YESDRESYSKI: Id like to now, Sir -- or, My Lord, move to
6 some of the argument put forth in -- in my friends brief and the respondents brief and
7 weve -- Ive gone over several times here this concept that the elected chief and council
8 that are the applicants are somehow different, theyre only an Indian Act chief and council
9 and that -- how we -- we disagree with that and it -- its not supported by the evidence --
10
11 THE COURT: Im sorry, you disagree with what?
12
13 MR. YESDRESYSKI: That theyre merely an Indian Act chief and
14 council and that somehow thats different and puts them at a lower level of authority with
15 respect to dealing with the collective rights of this group.
16
17 Now, the respondents also appear to take the position that the Lubicon Lake Band and the
18 Lubicon Lake Nation are distinct, theyre somehow different groups. Now, this is not --
19 this is also not borne out by the evidence and -- we would submit and is largely, we
20 would submit, advanced through bald assertions. Theres no -- theres nothing backing up
21 what -- some of the -- most of the things theyre saying on that particular point. Theres
22 no evidence such a group is derived or compiled a membership list, the -- or that the
23 membership list that they do have is different from the membership list that the -- the
24 applicants used to conduct the election.
25
26 During questioning on her affidavit, the respondents representative was asked to
27 undertake to provide the membership list and that was taken under advisement, it was
28 ultimately refused. So weve never received that membership list and there was no
29 explanation given for -- for not providing it. So that evidence is not before the Court, we
30 cant check it, the applicants cant look and see and -- and check if theres any overlap, if
31 theyre the same group, if there -- if theres any difference. And that would be the
32 evidence that you would expect to see if -- if you were going to advance this idea that
33 theres two separate groups with separate memberships, and our position is that they are
34 substantially the same group.
35
36 THE COURT: M-hm. That the band is within the Nation?
37
38 MR. YESDRESYSKI: Thats right.
39
40 THE COURT: Yeah. Thats what I had understood your
41 position to be.
17

1
2 MR. YESDRESYSKI: And, finally, I just want to comment on the --
3 the comment that was made about Justice Simpsons ruling and youve referred to the
4 decision --
5
6 THE COURT: M-hm.
7
8 MR. YESDRESYSKI: -- the Penn West decision earlier.
9
10 THE COURT: M-hm.
11
12 MR. YESDRESYSKI: Now, in that one, Justice Simpson was -- was
13 facing an application by the -- by Penn West --
14
15 THE COURT: Right.
16
17 MR. YESDRESYSKI: -- to -- to have it struck, I believe it was for
18 summary dismissal, but the -- the Court -- well, the respondents have pointed to that and
19 said, Well, Justice Simpson said that that group, the -- the plaintiffs claim for Aboriginal
20 rights for wrongdoing by Penn West could continue. Now, when -- we would submit that
21 when Justice Simpson said that, he was saying the collectives right to pursue those
22 Aboriginal rights and those rights belonging to the Aboriginal group can continue. He
23 wasnt saying that this particular group thats there now asserting those rights has forever
24 the right to continue to pursue those. That goes back to the argument that weve been
25 going over here that the authority derives from the -- the custom election code and the
26 internal governance that the -- the group has agreed on in terms of electing people to
27 pursue those rights. So Justice Simpson wasnt -- didnt have any of this before him,
28 none of this information. This had -- he was not ruling on whether --
29
30 THE COURT: He was only making -- with respect, I dont
31 think you need to waste much time, he could only, he could only, be speaking about his
32 feelings, his thoughts, his beliefs, his determinations, within the confines of that lawsuit.
33 He was not, nor could he be expected, to be making some sort of pronouncement on high
34 that, This will, by the way, ladies and gentlemen, affect every other piece of potential
35 litigation, real or nonexistent.
36
37 MR. YESDRESYSKI: Absolutely, My Lord.
38
39 THE COURT: By -- and so your friend can argue that until the
40 cows come home. Well leave it to her. You need not waste any of your time
41 compelling me to your position. I understand it.
18

1
2 MR. YESDRESYSKI: Okay. Thank you. Well, subject to any -- if
3 you have any more further questions, My Lord, those would be all my representations at
4 this time.
5
6 THE COURT: Ive got one.
7
8 MR. YESDRESYSKI: Sure.
9
10 THE COURT: Surprise. Im looking for something here,
11 affidavit, yeah. You made reference to Ms. Tomlinsons affidavit of January 13th --
12
13 MR. YESDRESYSKI: Yes.
14
15 THE COURT: -- and your position has been throughout here
16 that you folks are going to -- if I grant your application, youre -- youre going to be
17 moving in a substitution for the other side, for the present plaintiffs.
18
19 MR. YESDRESYSKI: The representative -- the ones that are
20 proceeding on a representative capacity. Yeah.
21
22 THE COURT: Yeah.
23
24 MR. YESDRESYSKI: Yes.
25
26 THE COURT: Yeah. Thats what Im talking --
27
28 MR. YESDRESYSKI: Yeah.
29
30 THE COURT: -- yeah, individually, but thats not the issue
31 here.
32
33 MR. YESDRESYSKI: Yeah.
34
35 THE COURT: Now, I go through the materials and I
36 understand the notion of the actual elective. Weve also, however, got much reference to
37 a hereditary chief and thats Chief Ominayak. Now, is the -- from your perspective, is
38 there a distinction between the two?
39
40 MR. YESDRESYSKI: Oh, absolutely not. Theres no evidence that --
41 that the group has adopted a hereditary chief as a collective. The election code makes no
19

1 mention of hereditary chief.


2
3 THE COURT: So he may be -- but do you understand that he
4 is referenced as being an entity called the hereditary chief?
5
6 MR. YESDRESYSKI: We -- we --
7
8 THE COURT: However one gets that, Im -- is not my
9 question, but do you understand that hes been referred to as that?
10
11 MR. YESDRESYSKI: We see that hes referred to as that --
12
13 THE COURT: Yeah.
14
15 MR. YESDRESYSKI: -- but, again, we see that as essentially a bald
16 assertion. Theres no basis for it or background to it theres --
17
18 THE COURT: That he would have some followers that would
19 follow him as opposed to followers following you, your -- your man, Mr. Laboucan?
20
21 MR. YESDRESYSKI: Yeah. Yes. And -- and in the context of this
22 group as the collectives, the Lubicon Lake Band as a collective, theres no -- theres no
23 basis for somebody to -- to declare that theyre a hereditary chief.
24
25 THE COURT: Okay.
26
27 MR. YESDRESYSKI: They have their custom election code, and
28 theyve produced the custom election code in their own affidavit --
29
30 THE COURT: M-hm. M-hm.
31
32 MR. YESDRESYSKI: -- it doesnt make any reference to that.
33
34 THE COURT: Yeah. But I just wanted then --
35
36 MR. YESDRESYSKI: Yes.
37
38 THE COURT: -- to get from you, then, that there may be
39 someone calling himself that and thats fine, but your position, your clients position, is
40 there are -- its not a bifurcation of chiefs and with perhaps a different following for
41 each. That is -- thats not your clients position?
20

1
2 MR. YESDRESYSKI: Not at all. No.
3
4 THE COURT: Then I would like you to take a look at
5 Ms. Tomlinsons affidavit of -- sworn January 13, 17, tab I, and its an email that
6 purports to be from Chief Billy Joe Laboucan to dear Chief Bernard Ominayak -- oh, and
7 its dated March 29 of 2013: (as read)
8
9 Although others may not, I do recognize you as a leader for your
10 followers and I respect that. I truly think that we need to provide
11 ourselves an opportunity to work together for a common goal for
12 the betterment of Lubicon people. For example, there is a need to
13 work together to resolve the land claim issue which impacts us all.
14 As part of the Lubicon people, were not represented by you and
15 your council through your own leadership selection process, you
16 continue to represent your followers as I will continue to represent
17 the people who have chosen to be under my leadership, but that
18 does not mean that we cannot collaborate for a greater cause. I
19 am ready and willing to meet either just you and me or with
20 others in a neutral place of our choice. I look forward to hearing
21 from you.
22
23 Was that an email sent by your client?
24
25 MR. YESDRESYSKI: He was not examined on that, but I have no
26 reason to say it wasnt and I believe -- I would -- I would --
27
28 THE COURT: Yeah.
29
30 MR. YESDRESYSKI: -- say that it was.
31
32 THE COURT: Yeah. And that -- that would, as I read it, and
33 Im looking at the timing. So this seems to me to clearly be something contrary to what
34 your position is to me. Theres a clear recognition we have got two chiefs, we have got
35 two groups following. Now, I could understand, therefore, that your client may ask you
36 to apply to join the plaintiffs, but not to substitute because what -- your client has said, I
37 want to work with you together, collaborate. So Im somewhat mystified with that
38 position so boldly and practically and simply expressed, but eloquently. Why am I having
39 an application for substitution? Can you help me?
40
41 MR. YESDRESYSKI: Well, yes, My Lord, I can.
21

1
2 THE COURT: Thank you.
3
4 MR. YESDRESYSKI: First of all, to speak about this email --
5
6 THE COURT: Yeah.
7
8 MR. YESDRESYSKI: -- this should be put into the context of a long
9 dispute over governance and leadership in -- in the Nation.
10
11 THE COURT: That seems to be reflective. Yeah.
12
13 MR. YESDRESYSKI: And its a -- its a relatively small group and
14 Chief Ominayak will always be a leader for Lubicon Lake Nation and I think when Chief
15 Laboucan uses those phrases and that -- that language in here, he is talking about dealing
16 with the -- the collective groups issues and the fact that Chief Ominayak will always be a
17 leader of these people. Hes not, I would suggest, saying that theres two distinct groups
18 and that they somehow are now separated. I -- I think this is a very brief email and its --
19 its diplomatic and its conciliatory, its after the election.
20
21 THE COURT: M-hm.
22
23 MR. YESDRESYSKI: Mr. Ominayak is aware of the election and the
24 results. The -- the other election happened later, but theres all -- in the community,
25 theres all this discussion about this and theres this -- theres this division. And what I
26 think Mr. Laboucan, or Chief Laboucan, is doing here is hes trying to be conciliatory to
27 Mr. Ominayak. If Mr. Ominayak would come together, as he suggests, and cooperate,
28 they could get these things resolved as a group and not have these divisions and
29 cleavages.
30
31 Now, on the -- the other side of it, if -- if this application was brought to join, it really
32 amounts to the same thing. Its just leaving things the way they are.
33
34 THE COURT: Im not too sure it would. You would have,
35 then, both sides running the plaintiffs case, so both of them then involved as opposed to
36 waiting on and then -- on the land claim settlement, then having to wait for the
37 referendum to finally determine whether or not its -- it passes by the necessary majority.
38 So I -- I would draw the distinction. I think it -- it might be very clumsy, it might be
39 very awkward, and Im not suggesting for a moment that you can somehow transform
40 your application today because your friend -- well, shed be taken completely by surprise,
41 for openers. But I was just trying to understand this. You see, I get to read the material
22

1 and the -- the very compelling arguments both sides present and I -- I look at this and I
2 say, gosh, you know, and this litigation has not exactly been proceeding with much
3 dispatch since 1988, about the time we had -- in fact, it was the time we had our
4 Olympics here. I just say that because Eddie the Eagle apparently is coming through
5 town again, so well all look forward to that.
6
7 But I just think, regardless of how its come to this state where there is disagreement
8 among various factions in the Lubicon, I just -- when I see something like this, I guess
9 I -- as an outsider, Im saying, well, holy cow, cant we be working together better? But
10 I understand, therefore, what your interpretation is of -- of this and I thank you very much
11 for it because, as I said, I was just somewhat mystified when I saw the application to
12 substitute. That seemed to be somewhat contrary to the very conciliatory email and lets
13 work together. You know, substitution, I get rid of you, Im going to stand in it, its not
14 exactly very conciliatory. But I thank you very much for -- for your assistance in that
15 regard.
16
17 MR. YESDRESYSKI: And I dont want to dwell on it too much --
18
19 THE COURT: Hm.
20
21 MR. YESDRESYSKI: -- but I just want to followup again that the
22 idea and the reason that I mention that this is to -- to assert those rights to consult and
23 negotiate --
24
25 THE COURT: Yeah.
26
27 MR. YESDRESYSKI: -- really, thats the control that would be
28 assumed here. The ultimate decision would have to be -- there be a referendum --
29
30 THE COURT: A referendum. Yeah.
31
32 MR. YESDRESYSKI: -- and there would be a political aspect to that.
33
34 THE COURT: Yeah.
35
36 MR. YESDRESYSKI: Of course there would.
37
38 THE COURT: Yeah.
39
40 MR. YESDRESYSKI: So that protection is there.
41
23

1 THE COURT: Yeah.


2
3 MR. YESDRESYSKI: Thank you, My Lord.
4
5 THE COURT: Yeah. Thank you so very much.
6
7 MR. YESDRESYSKI: Thank you.
8
9 THE COURT: Counsel, what do you wish to say?
10
11 Submissions by Ms. Ladovrechis
12
13 MS. LADOVRECHIS: Your Honour, before we begin, Id like to bring
14 something to the attention of the Court regarding the affidavit of Cynthia Tomlinson
15 which was sworn and filed on January 18th. At pages 263 and 196 of the affidavit there
16 are letters which contain --
17
18 THE COURT: Is that within tab S?
19
20 MS. LADOVRECHIS: Yes. And --
21
22 THE COURT: Okay. And so you filed a supplementary
23 affidavit?
24
25 MS. LADOVRECHIS: Yes. Exactly.
26
27 THE COURT: Yeah. So Ive got that.
28
29 MS. LADOVRECHIS: But what I would request from the Court, if
30 possible, is that the letters that are contained at pages 196 and 263 --
31
32 THE COURT: Im sorry, from -- sorry, that -- your mic just
33 cut out here, I dont know why.
34
35 MS. LADOVRECHIS: Oh, sorry.
36
37 THE COURT: But, anyway -- its okay. So --
38
39 MS. LADOVRECHIS: So its the letters which are at pages 263 and
40 196.
41
24

1 THE COURT: Okay.


2
3 MS. LADOVRECHIS: We would ask that they be formally and
4 physically withdrawn and removed from the record and replaced with pages 19 and 86 of
5 the supplemental affidavit because it contains -- they contain paragraphs that we do not
6 want to form evidence. The statements that are made in these paragraphs are irrelevant
7 and inappropriate for the purposes of these proceedings.
8
9 THE COURT: Well, if theyre irrelevant, then we just
10 wouldnt get too torqued up about them, then, but to -- to add to something thats
11 irrelevant and now to actually physically be removed from the record is somewhat unusual
12 out here, but, you know, Im not saying its unprecedented.
13
14 What -- what position do you folks take on this?
15
16 MR. YESDRESYSKI: We -- Im aware that my friend was going to
17 make this application --
18
19 THE COURT: Yeah.
20
21 MR. YESDRESYSKI: -- and we advised her we would take no
22 position on it.
23
24 THE COURT: Okay.
25
26 MR. YESDRESYSKI: We know why, so --
27
28 THE COURT: Okay.
29
30 MR. YESDRESYSKI: Yeah. So --
31
32 THE COURT: Well, if you understand the background --
33
34 MR. YESDRESYSKI: Yes.
35
36 THE COURT: -- and you have no objection to the --
37
38 MR. YESDRESYSKI: We have no objection.
39
40 THE COURT: Okay.
41
25

1 MR. YESDRESYSKI: Thank you, My Lord.


2
3 THE COURT: Your application is granted.
4
5 MS. LADOVRECHIS: Thank you.
6
7 THE COURT: Okay.
8
9 MS. LADOVRECHIS: So moving on to the substantive, Your Honour,
10 you pointed this out at the outset, but this -- this proceeding has not been pursued since
11 1988 and, to give you a visual idea, the person whos speaking to you right now wasnt
12 even 2 years old when something happened last time and with --
13
14 THE COURT: Yeah. Listen, Im painfully aware how young
15 we all were back then, you know.
16
17 MS. LADOVRECHIS: Exactly.
18
19 THE COURT: Yeah.
20
21 MS. LADOVRECHIS: So I think my friend here has said that what
22 hes trying to do is have the plaintiffs substituted so they could clean up the within action
23 and perhaps have it dismissed, if thats what --
24
25 THE COURT: I kind of presume that they want to move on
26 the litigation some way, otherwise, I think they probably have better things to do then say,
27 I want to substitute. And whats your purpose? Nothing, really.
28
29 MS. LADOVRECHIS: Well, thats --
30
31 THE COURT: Im sure theyve got an intent to -- to move it
32 along.
33
34 MS. LADOVRECHIS: Yeah. Well, thats the thing, its that I think
35 the -- the applicants are alleging an abuse of process and we respectfully submit that what
36 were trying to do here is not to contest the election which took place on February 15,
37 2013. What --
38
39 THE COURT: It just happens to be that a number of your
40 passages happen to, in fact, dispute the election.
41
26

1 MS. LADOVRECHIS: Well --


2
3 THE COURT: So thats just --
4
5 MS. LADOVRECHIS: -- were doing it for the purposes of this
6 application, but were not asking the judge to pronounce itself on the validity of the
7 election.
8
9 THE COURT: Then why did you bother putting it all there?
10
11 MS. LADOVRECHIS: Well, what were trying to say --
12
13 THE COURT: Uh-huh.
14
15 MS. LADOVRECHIS: -- is that there were two elections involving --
16
17 THE COURT: Well, you could have said that in one
18 paragraph. But Ive got a long and -- I mean, I understand where your friends are coming
19 from because when lawyers tell me, Its not really the point, then I always wonder, then,
20 why burden me with having to read all of this? What was the conceivable purpose of
21 that?
22
23 MS. LADOVRECHIS: Well, honestly, were --
24
25 THE COURT: It must be to tell me, But weve got a nagging
26 concern here, judge --
27
28 MS. LADOVRECHIS: Well, were trying to --
29
30 THE COURT: -- and you better have a nagging concern, right?
31
32 MS. LADOVRECHIS: Well, we do have a nagging concern and its
33 the interest --
34
35 THE COURT: There you go. There you go. You see, you do.
36 I knew Id get you, I knew. Youd have to fess up. There you go.
37
38 MS. LADOVRECHIS: The -- the concern is that were trying to at
39 least protect the interests of our clients here within the context of these proceedings --
40
41 THE COURT: Right.
27

1
2 MS. LADOVRECHIS: -- because we received this application in July
3 2016 --
4
5 THE COURT: Right.
6
7 MS. LADOVRECHIS: -- and it was -- came as a bit of a surprise --
8
9 THE COURT: Yeah.
10
11 MS. LADOVRECHIS: -- because my boss, Mr. James OReilly, who
12 unfortunately cannot be here today, was very surprised because nothing has happened in
13 these proceedings since 1988.
14
15 THE COURT: That might have been why they brought it.
16
17 MS. LADOVRECHIS: Yes. We had to dig out boxes to see whats --
18 whats going on and why this is being brought to the attention of the Court.
19
20 THE COURT: Right.
21
22 MS. LADOVRECHIS: So all were saying here is that, yes, there were
23 two elections, one on February 15th, 2013, one on May 30th, 2013, involving two
24 groups. Now, Ill also admit, Your Honour, that there are members of the Lubicon Lake
25 Nation, which we represent, who are registered Indians under the Indian Act, and who
26 technically have status as Indians under the Indian Act, however, what were trying to say
27 here is that there are two separate groups represented by two separate leaders, and not
28 only that, they are asserting different rights.
29
30 THE COURT: But whats the difference?
31
32 MS. LADOVRECHIS: Well, Your Honour, I will point you --
33
34 THE COURT: Im going back to the 1982 lawsuit as amended
35 in 88.
36
37 MS. LADOVRECHIS: Yes.
38
39 THE COURT: I -- I didnt see anything in their proposed
40 amendments that would detract from what --
41
28

1 MS. LADOVRECHIS: Well, what Im --


2
3 THE COURT: -- I think is sought by you folks.
4
5 MS. LADOVRECHIS: -- trying to say, Your Honour, is that, if you
6 look at the first -- the representations of the applicants, theyre asserting that they have
7 treaty rights at paragraph 14. So they couldnt have --
8
9 THE COURT: Of their -- of their brief, youre telling me?
10
11 MS. LADOVRECHIS: Yes.
12
13 THE COURT: Well, yeah.
14
15 MS. LADOVRECHIS: So at paragraph 14 they say -- they put an
16 emphasis on treaty rights, which are collective rights and not individual rights. We dont
17 contest that its true treaty rights.
18
19 THE COURT: I just didnt know how relevant that is, since
20 this lawsuit doesnt seem to be very much about treaty rights, its what preexisted --
21
22 MS. LADOVRECHIS: Well, exactly.
23
24 THE COURT: -- the treaty.
25
26 MS. LADOVRECHIS: But --
27
28 THE COURT: But they know that, too.
29
30 MS. LADOVRECHIS: Yes, absolutely, but --
31
32 THE COURT: So, but again, it just was interesting to read, I
33 suppose, but I wasnt too sure how that was germane to the issue that I have to --
34
35 MS. LADOVRECHIS: Well --
36
37 THE COURT: -- consider in terms of the context of the
38 lawsuit, as to what was being sought. So theres nothing much -- but there was reference
39 to the treaties --
40
41 MS. LADOVRECHIS: M-hm.
29

1
2 THE COURT: -- and in terms of who was involved in that and
3 who were signatories and who were not, so its fair --
4
5 MS. LADOVRECHIS: Yes.
6
7 THE COURT: -- and I think its at least giving a historical
8 perspective.
9
10 MS. LADOVRECHIS: Yes.
11
12 THE COURT: Sure.
13
14 MS. LADOVRECHIS: Well, what Im trying to say is that, during his
15 cross-examination, Mr. Billy Joe Laboucan --
16
17 THE COURT: Yeah.
18
19 MS. LADOVRECHIS: -- and I will point you to tab 11, at page 23.
20
21 THE COURT: Okay. Tab 11 of what?
22
23 MS. LADOVRECHIS: Sorry, the --
24
25 THE COURT: Because Ive got his --
26
27 MS. LADOVRECHIS: -- written representations of the --
28
29 THE COURT: -- Ive got his questioning and -- sorry, what
30 are you --
31
32 MS. LADOVRECHIS: The written representations of the applicants.
33
34 THE COURT: So you want me to look at the written materials
35 here, okay. And which tab?
36
37 MS. LADOVRECHIS: Of the applicants.
38
39 THE COURT: The applicants brief, yeah.
40
41 MS. LADOVRECHIS: So at tab 11 --
30

1
2 THE COURT: Tab 11.
3
4 MS. LADOVRECHIS: -- at page 23, Mr. Billy Joe Laboucan says that
5 we are under Treaty 8, and we are trying to make Your Honour understand that our
6 clients, the Lubicon Lake Nation, represented by Chief Bernard Ominayak, do not assert
7 that they are under Treaty 8.
8
9 THE COURT: But the law that was passed in 1988 says that
10 the Nation speaks to the council.
11
12 MS. LADOVRECHIS: Yes.
13
14 THE COURT: Okay?
15
16 MS. LADOVRECHIS: Which is --
17
18 THE COURT: So theyre the --
19
20 MS. LADOVRECHIS: -- Chief Bernard Ominayak.
21
22 THE COURT: Well, hang on. So their position is that they
23 are that council.
24
25 MS. LADOVRECHIS: M-hm.
26
27 THE COURT: I recognize that you folks in the subsequent
28 election say, Were the council.
29
30 MS. LADOVRECHIS: Yes.
31
32 THE COURT: But were all agreed, whoever is the council,
33 thats who speaks on it.
34
35 MS. LADOVRECHIS: Yes.
36
37 THE COURT: So you cant fault them for saying, We are the
38 properly constituted council, thus, looking at our own law from 1988, we speak on behalf
39 of the Nation. Thats all theyre saying, in the same fashion that, if you were the proper
40 council, you would be speaking on behalf of the Nation, right?
41
31

1 MS. LADOVRECHIS: Yes. And what we saying is that Chief Bernard


2 Ominayak and the five councillors who were elected on May 30th, 2013 --
3
4 THE COURT: Right.
5
6 MS. LADOVRECHIS: -- properly represent those who participated in
7 that election.
8
9 THE COURT: Well, that doesnt tell me very much. It
10 doesnt mean its a valid election, for sure. Whoever participated in the election elected,
11 and what am I to do with that proposition? What does that -- how does that help me?
12
13 MS. LADOVRECHIS: Well, were talking about a group of people
14 who have authorized Chief Bernard Ominayak and the five councillors to act on their
15 behalf --
16
17 THE COURT: I agree.
18
19 MS. LADOVRECHIS: -- in the assertion of their Aboriginal rights.
20
21 THE COURT: I agree with you. As the other side says, in
22 February we had a group of people authorize us.
23
24 MS. LADOVRECHIS: Yes, but they are two different groups.
25
26 THE COURT: Indeed. And?
27
28 MS. LADOVRECHIS: What Im trying to say, Your Honour --
29
30 THE COURT: Yes.
31
32 MS. LADOVRECHIS: -- is that, like you said, or like you proposed, if
33 you are going to substitute the plaintiffs, we would at least want both groups to proceed
34 because shared effort --
35
36 THE COURT: Both groups proceed? What do you mean by
37 that?
38
39 MS. LADOVRECHIS: In the within action.
40
41 THE COURT: So, in other words, you would agree that they
32

1 could join in --
2
3 MS. LADOVRECHIS: Well, we dont necessarily --
4
5 THE COURT: -- if that had been the application?
6
7 MS. LADOVRECHIS: Yes. Well --
8
9 THE COURT: Do you agree with that proposition at all?
10
11 MS. LADOVRECHIS: I dont necessarily agree with it but I said --
12
13 THE COURT: You dont necessarily -- well, its either you
14 agree or you dont.
15
16 MS. LADOVRECHIS: Well, at a minimum, I think --
17
18 THE COURT: Do you agree or not?
19
20 MS. LADOVRECHIS: Well, because the jurisprudence says in
21 Delgamuukw, it is stated at paragraph 158 that it is possible to have shared title over
22 land. It is possible for two groups to advance claims --
23
24 THE COURT: Well, Im just trying to figure out here that we
25 havent got to that point of making a certain claim in the sense of were almost at the end
26 of a resolution here. Were still apparently in the infancy of discussions, at least as far as
27 I could determine.
28
29 MS. LADOVRECHIS: M-hm.
30
31 THE COURT: So the whole point is, who should all be as part
32 of the plaintiffs? So we could have -- if there happened to be, in the total, 1,000 people,
33 well, were not going to have them all here.
34
35 MS. LADOVRECHIS: M-hm.
36
37 THE COURT: We know that. So we have the concept of
38 representation, call it a class -- however you want to term it.
39
40 MS. LADOVRECHIS: Yes.
41
33

1 THE COURT: So were coming down to -- so again it just


2 boils down to those representatives.
3
4 MS. LADOVRECHIS: Yeah.
5
6 THE COURT: And part of your proposition had been a dispute
7 about the election and we both know I cant rule on that.
8
9 MS. LADOVRECHIS: M-hm.
10
11 THE COURT: I can, however, observe this screamingly
12 self-evident, which is the Government of Canada and the Government of Alberta, through
13 their elected representatives, appeared to recognize that group to your left, not your group.
14
15 MS. LADOVRECHIS: Absolutely. And were saying that recognition
16 by the Government of Canada and the Government of Alberta is irrelevant.
17
18 THE COURT: Well, how could it conceivably be irrelevant?
19 Youve got a lawsuit. And, if its irrelevant, then why would they deal with you? If the
20 Government of Alberta, who is the defendant in the lawsuit, says, Well, we dont take you
21 as being the representative, so as much as we would like to have a negotiation and put an
22 end to it, Im sorry, we dont accept that you represent the plaintiffs. How is the
23 Government of Alberta to proceed? Its very relevant, it seems to me, therefore. Do you
24 not agree?
25
26 MS. LADOVRECHIS: No, I dont. I dont agree.
27
28 THE COURT: Well, if I was the Government of Alberta, that
29 would be my first thing. Id say, Why would I waste my time negotiating with you? At
30 the very end of the day, Im not sure you are the proper representatives. I mean, you
31 might be well-meaning, dont misunderstand me, but Im not too sure thats -- that I can
32 negotiate with you. That would -- surely that would have to be Albertas position.
33
34 MS. LADOVRECHIS: Well, then, is that the purpose of this
35 application, is -- is it to obtain a sort of legal opinion from the court as to who the
36 Government of Alberta --
37
38 THE COURT: No, no, no.
39
40 MS. LADOVRECHIS: -- should negotiate with --
41
34

1 THE COURT: No, no, no. Please dont try to -- nice try but
2 very, very transparent. No, its just saying -- I was responding to your point in terms of
3 its a matter of some degree of indifference and I say its fundamental to the lawsuit. It
4 cant proceed if we dont have the proper plaintiff -- and I say it cant proceed, and Im
5 presumptuous here. Im presuming the Government of Alberta saying, Well take that
6 position (INDISCERNIBLE) Im sorry. I mean, if I walked in there and said, Well, Im
7 representing the people, well, thanks very much, judge, but were not so sure you are, so
8 were not about to negotiate with you. So thats where I see the concern here, so if you
9 have everybody together, then the government says, Well, we quite frankly couldnt care
10 less, we dont care whether one group is dominant over the other, it matters not to us, can
11 we negotiate, so lets proceed. So I think it becomes fairly important in that regard but
12 only, from my perspective at least, as to what I foresee might happen from the defendant.
13 Thats why its -- theres a certain reality about this, as you say, Well, we think we
14 should be there, but what about the defendant because theyre already on record as
15 recognizing this group here as the representatives. So, when I see that, it wasnt a major
16 leap in logic, it seemed to me, to suggest that this might be part of a problem that, you
17 know, the old notion be careful what you wish for.
18
19 MS. LADOVRECHIS: But, Your Honour, I think the problem with
20 relying on recognition from the governments of Canada and Alberta is that it gives the
21 governments of Canada and Alberta grandiose power --
22
23 THE COURT: Grandiose power? Hang on. Theyve been
24 sued.
25
26 MS. LADOVRECHIS: Yes.
27
28 THE COURT: So they responded to it.
29
30 MS. LADOVRECHIS: But its like were saying that these Aboriginal
31 groups that have not been recognized under the Indian Act or by the governments of
32 Canada and Alberta cant advance claims in Aboriginal rights and title, so youre leaving
33 out a huge number of people who can no longer assert Aboriginal rights and title. Why?
34 Because they have --
35
36 THE COURT: Why cant they, on behalf of the rest of the
37 Nation?
38
39 MS. LADOVRECHIS: Because they do not represent --
40
41 THE COURT: Says who?
35

1
2 MS. LADOVRECHIS: -- the respondents. The people who signed the
3 letters which are contained at Exhibit S, the people who signed petitions saying that Chief
4 Billy Joe Laboucan does not represent them, and that its Chief --
5
6 THE COURT: But thats the whole -- hang on. But then thats
7 a circular argument. Now youve gone back to wanting to controvert the election. Thats
8 what thats all about. Thats why I said, says who? It doesnt help me at this point
9 because both groups maintain they are the proper council.
10
11 MS. LADOVRECHIS: Yes.
12
13 THE COURT: Whoever is the proper council, they can speak
14 for the Nation.
15
16 MS. LADOVRECHIS: M-hm.
17
18 THE COURT: So thats really where this problem still comes
19 back to. Ive got a problem here in terms of the election. And I understand your
20 position. Theres been no challenge --
21
22 MS. LADOVRECHIS: M-hm.
23
24 THE COURT: -- from their position. There hasnt been any
25 challenge. And they havent challenged you. So Im sure people have logic as to why it
26 wasnt challenged. Its a matter of irrelevance to me, for my purposes on this application,
27 as to why people did or didnt do it. But it becomes fairly important, it seems to me,
28 then to make some sense of the lawsuit, right --
29
30 MS. LADOVRECHIS: M-hm.
31
32 THE COURT: -- to be able to move ahead, because if its
33 sitting since 1988, nothing is happening, and, I mean, part of your argument says this is
34 moot. Do I -- if I may just digress.
35
36 MS. LADOVRECHIS: Yes.
37
38 THE COURT: Does that mean nothing is going to happen on
39 this?
40
41 MS. LADOVRECHIS: I dont -- I dont think -- not on our part, thats
36

1 for sure.
2
3 THE COURT: Well, I mean -- well, when I say nothing is
4 going to happen, like no negotiations to try to resolve this lawsuit?
5
6 MS. LADOVRECHIS: No. In fact, a number of --
7
8 THE COURT: Okay.
9
10 MS. LADOVRECHIS: -- companies have already been discontinued as
11 defendants --
12
13 THE COURT: Yeah, Im putting aside the oil company. Im
14 talking about the government of Alberta.
15
16 MS. LADOVRECHIS: Well, no, not with regard to this proceeding,
17 absolutely not.
18
19 THE COURT: So let me get this straight. So youre resisting
20 them coming on to a lawsuit that, as far as you consider, is dead?
21
22 MS. LADOVRECHIS: Well, were resisting because we dont want it
23 to set a precedent because our friends have already indicated that they intend to do this
24 with the 2013 proceedings, and thats why I pointed out the distinction between the rights
25 which are asserted by the two groups --
26
27 THE COURT: Yeah.
28
29 MS. LADOVRECHIS: -- because if you have a chief who is saying
30 were under Treaty 8, hes somewhat saying that hes surrendered the rights that are
31 asserted in the 2013 proceedings against Penn West and against the government of Canada
32 and Alberta. So --
33
34 THE COURT: Carry on.
35
36 MS. LADOVRECHIS: So basically what Im saying, Your Honour, is
37 that, if you will substitute Chief Bernard Ominayak as chief of the Indian Act band, you
38 would at least ask, in order to set the right precedent before this court, that Chief Bernard
39 Ominayak remain as the chief of the Lubicon Lake Cree Nation, in order to represent his
40 followers and those who have chosen to elect him and to follow him.
41
37

1 THE COURT: So you are then offering, as a form of


2 resolution if I was otherwise planning to grant the application, to say, Listen, hold it, can
3 I urge upon you the better remedy would be Ill call it a halfway house of having your
4 client --
5
6 MS. LADOVRECHIS: Yes.
7
8 THE COURT: -- (INDISCERNIBLE) chief?
9
10 MS. LADOVRECHIS: And I would call it, as you called it, a halfway
11 house, as well.
12
13 THE COURT: Okay. May I just interject to ask your friends
14 what their feeling is about that?
15
16 MS. LADOVRECHIS: Yes.
17
18 THE COURT: May I?
19
20 MS. LADOVRECHIS: Yes.
21
22 THE COURT: Okay. What is your position?
23
24 MR. YESDRESYSKI: Our -- well, our position on that is that that
25 would be -- at best unwieldy and likely unworkable. I mean --
26
27 THE COURT: Well, unwieldy and unworkable? Lets keep in
28 mind now --
29
30 MR. YESDRESYSKI: Yes.
31
32 THE COURT: -- unwieldy? Which one do you deal with
33 first?
34
35 MR. YESDRESYSKI: Well, unworkable.
36
37 THE COURT: Okay.
38
39 MR. YESDRESYSKI: Well just stick with that --
40
41 THE COURT: And how would it be unworkable?
38

1
2 MR. YESDRESYSKI: Well, first of all, theres consultation and
3 negotiation has to go on. It has to be meaningful --
4
5 THE COURT: Negotiation with?
6
7 MR. YESDRESYSKI: With the governments --
8
9 THE COURT: Of Alberta?
10
11 MR. YESDRESYSKI: -- of Alberta and the government of Canada.
12
13 THE COURT: Well, thats -- Canada is not in this 82 lawsuit.
14
15 MR. YESDRESYSKI: Okay, but -- so well leave it at just Alberta.
16
17 THE COURT: Its only Alberta. Right.
18
19 MR. YESDRESYSKI: So how -- for -- if one group, so say the
20 applicants, are negotiating a resolution of the -- of the aspects in their end, and the other
21 group just says, Oh, were not going to agree to that, which is basically whats been going
22 on to that approach or whatever, then it just -- the respondents get what they want. They
23 basically can just not agree to get what they want. Theres no way for the finality to
24 come to it. And I --
25
26 THE COURT: Well, hang fire here. Youve already got
27 multiples of individuals as plaintiffs. Youve got people suing in their personal capacity
28 and youve got a representative, as well. So you -- already youre in that position where
29 any number of those plaintiffs may disagree with the other plaintiffs. So -- hang on.
30 Youve already got that as a situation that might happen, so its not like this is going to
31 be something surprising because anybody at any given time can say, Listen, I love you
32 like a brother but on this point here, my friend, I disagree with you.
33
34 MR. YESDRESYSKI: And I recognize -- and we recognize that --
35
36 THE COURT: Yeah.
37
38 MR. YESDRESYSKI: -- and were not purporting to have them
39 removed as plaintiffs at this point --
40
41 THE COURT: Yeah.
39

1
2 MR. YESDRESYSKI: -- but looking again down the road, those --
3 those claims being made by the individuals are likely not sustainable, and they arent
4 sustainable as where theyre asserting collective rights of law to the collective. And we
5 havent gotten into debt in the briefs about whether or not they can assert those rights but,
6 for the most part, the rights that are claimed in the statement of claim are not pursuable
7 by individuals. That is something that will have to be addressed, as well, to find a result.
8 I mean, that may be Alberta dealing with that or it may be the group that is serving the
9 rights --
10
11 THE COURT: They may not be able to pursue it but so far
12 they are pursuing it, so we will have to wait, if it goes to a court of law, for them to
13 decide, or to have a judge have to decide whether or not it can continue, and we would
14 have to take into account the 30-odd, almost 40 years that theyve been on as plaintiff --
15
16 MR. YESDRESYSKI: Yes.
17
18 THE COURT: -- discussions about prejudice, et cetera, et
19 cetera, but I guess Im harkening back to a realization of weve got, among these folks,
20 two different election results, and both sides apparently take the view that ours was the
21 legitimate election and theirs is the illegitimate election. I see even a conciliatory email
22 from one chief to another chief, saying, Can we not work together, and besides, now, the
23 applicants are saying, Okay, if were -- if we may -- are going to be unable here, we want
24 to have one major issue and that is can we not at least be allowed to stay on, to work
25 together. And, you know, in the context of a lawsuit that has been going since 88, and
26 do I presume if you folks get on they want to try to move the negotiations ahead?
27
28 MR. YESDRESYSKI: Thats correct, My Lord.
29
30 THE COURT: Okay. And is it your view that, when you saw
31 the 2013 lawsuit filed by the other side, you probably took the view this seems to be kind
32 of a repetition with different words of the 1982 lawsuit?
33
34 MR. YESDRESYSKI: Yes, My Lord.
35
36 THE COURT: Its funny, I had the same view. So then you
37 could say, Aha, something else is going on, so this one might be dying but now theyve
38 tried to do an end run on us here, so now weve countered back. And Im sure theres all
39 sorts of machinations going on here, so Im trying to think, okay, if weve got something
40 thats gone on this long and weve got people who have been fervently trying to get some
41 recognition of who they are, where they came from, from the government of Alberta and
40

1 from the 2013 lawsuit the government of Canada, isnt it about time we try to do
2 something to try to move this thing along? And Im wondering why we cant do that.
3 And I guess I harken back to that -- an email, and no disrespect intended but I see
4 something in there of some value. Now, could it -- could it be at loggerheads? Well,
5 sure. Thats what happens in lawsuits, you know, when a husband and wife sue because
6 of a motor vehicle. They sometimes get into disagreements about where we should go.
7 So we see that and they work it out. And I dont know whether we might have an
8 impasse at some time or not but Im -- Im prepared to accept that human ingenuity,
9 being what it is, along with great counsel that they would have access to, are going to be
10 able to broker an arrangement. So, okay, heres this. This is not the hill to die on over
11 here, folks. This is the major issue. Can we at least agree on that? Develop a common
12 strategy. Why? Because theres a common benefit were talking about here. And, as
13 much as everybody individual wants something, you say its for all of us. Its us, our
14 nation. Why dont we want to try to do what we can to work together? And thats -- so
15 your friend has kind of offered like an olive branch in that sense, and Im wondering if
16 you wouldnt want to pick it up.
17
18 MR. YESDRESYSKI: If we felt that there was a realistic chance that
19 it would result in a conciliatory resolution, we would -- we would --
20
21 THE COURT: How do you know until you try?
22
23 MR. YESDRESYSKI: Well, and, when I sat down after I --
24
25 THE COURT: Sure.
26
27 MR. YESDRESYSKI: -- had spoken there, my friend Mr. Roddick,
28 who is counsel for the applicants, he knows more about the background of that email, and
29 he passed me a note and it just puts it into context. The email was sent between the
30 elections, as youll recall --
31
32 THE COURT: Yes.
33
34 MR. YESDRESYSKI: -- and it was met with complete rebuff -- it was
35 completely rebuffed.
36
37 THE COURT: Well, yeah. I completely understand that.
38
39 MR. YESDRESYSKI: So Chief -- Mr. Ominayak refused to respond
40 and refused to even consider what he was proposing, thats lets work together. We were
41 elected, lets work together, we still see you --
41

1
2 THE COURT: Yeah.
3
4 MR. YESDRESYSKI: -- as the leader. They just went ahead and had
5 their own election. So --
6
7 THE COURT: Yeah, but heres the interesting thing. Thats
8 all accurate, that there was an honest attempt by Chief Laboucan to say, Look, lets come
9 together, and its rebuffed, but its not being rebuffed now. Shes offered this -- I called
10 it the halfway house. So, I mean, how do we just kind of step around and ignore her
11 (INDISCERNIBLE) why? How is this somehow benefiting the respective clients? Help
12 me, gentlemen, if you can. And Im not -- you know, its not Alice in Wonderland here
13 but can we not do something a little more proactive? I mean, I dont want to sound like
14 Im completely frustrated but we have seen whats happened across this country. And to
15 the degree that Ive got any influence, Id like to kind of push people together, if we can.
16 And that, by the way, is not just involving the groups on this -- the Lubicon. You know,
17 this involves ultimately down the road the governments, as well, so Im push -- Im not
18 just being selective here but I just dont have them in front of me as part of an issue or a
19 problem. Its about time, dont you figure? I guess from your perspective it would be
20 about time, too.
21
22 MR. YESDRESYSKI: Yes.
23
24 THE COURT: I just wonder why we maybe cant do that.
25
26 MR. YESDRESYSKI: And I --
27
28 THE COURT: Your friend -- listen, do you want to take a
29 break here? You fellows can have a chat rather than passing notes, so that you dont miss
30 anything here, but, guys, Id like to find out -- and maybe if youve got your clients, you
31 want to have a chat with them, that may be of some value, as well, I dont know, but Im
32 prepared to give you, what would you like, 15, 20 minutes?
33
34 MR. YESDRESYSKI: Yes, My Lord.
35
36 THE COURT: Im obliged. Ill come back, then, in about 20
37 minutes from now, if thats okay.
38
39 MR. YESDRESYSKI: Thank you, My Lord.
40
41 THE COURT: Im obliged. Thanks, folks.
42

1
2 THE COURT CLERK: Order in court.
3
4 (ADJOURNMENT)
5
6 THE COURT CLERK: Order in court.
7
8 THE COURT: Thanks very much. Please sit down. Did we
9 get anywhere at all or are we still at an impasse?
10
11 MR. YESDRESYSKI: Well, still at an impasse, My Lord.
12
13 THE COURT: Okay. Fair enough. Okay.
14
15 MR. YESDRESYSKI: If we could just make some further
16 representations?
17
18 THE COURT: Well, actually I --
19
20 MR. YESDRESYSKI: Okay. Actually --
21
22 THE COURT: -- think I cut off your friend here. I just
23 wanted to see --
24
25 MR. YESDRESYSKI: Yes.
26
27 THE COURT: -- whether we had it there but, if we have an
28 impasse, we have an impasse.
29
30 MR. YESDRESYSKI: Yes, My Lord. Thank you.
31
32 THE COURT: And what else would you like to say?
33
34 MS. LADOVRECHIS: Your Honour, before we begin Id like
35 Mr. Sharko to --
36
37 THE COURT: Im sorry?
38
39 MS. LADOVRECHIS: -- simply introduce himself. He asked me to
40 give him some time.
41
43

1 THE COURT: Sure.


2
3 MR. SHARKO: Yes, My Lord.
4
5 THE COURT: Hi, who are you?
6
7 MR. SHARKO: Hi. David Sharko.
8
9 THE COURT: Hi.
10
11 MR. SHARKO: Im here as legal counsel on behalf of the
12 government of Alberta.
13
14 THE COURT: Oh, are you?
15
16 MR. SHARKO: Yes. And so thats why I thought, given the
17 exchanges between the bench --
18
19 THE COURT: Yeah.
20
21 MR. SHARKO: -- and counsel for both parties --
22
23 THE COURT: Yeah.
24
25 MR. SHARKO: -- that I should just make it known that I am
26 here today with the instructions just simply to observe the proceedings. And so --
27
28 THE COURT: I thought you were going to tell me theres
29 some merit in your concerns, judge, about the defendants, who are we going to be
30 negotiating with.
31
32 MR. SHARKO: Yeah. Id like to --
33
34 THE COURT: You cant even say anything to that.
35
36 MR. SHARKO: I -- yeah, Im just here -- Im just here to
37 simply observe but I just -- I thought, again given the exchanges, that it was important
38 that I bring that to your attention, that I --
39
40 THE COURT: Notwithstanding that you cant answer my
41 question --
44

1
2 MR. SHARKO: Correct.
3
4 THE COURT: -- because youre only here to observe.
5
6 MR. SHARKO: Im only here to observe.
7
8 THE COURT: Thanks for all of your help.
9
10 MR. SHARKO: Youre welcome. Ill let counsel get back to
11 their --
12
13 THE COURT: Yeah.
14
15 MR. SHARKO: -- submissions. Thank you, My Lord.
16
17 THE COURT: Thank you so very much. Thank you, sir. So
18 is there anything else, then, that you would wish to say?
19
20 MS. LADOVRECHIS: Id just like to add, wrapping up our position --
21
22 THE COURT: Yeah.
23
24 MS. LADOVRECHIS: -- I think we have solidified our position that
25 we would like --
26
27 THE COURT: Yeah.
28
29 MS. LADOVRECHIS: -- both groups to proceed --
30
31 THE COURT: Yeah.
32
33 MS. LADOVRECHIS: -- in the interest of reconciliation between both
34 groups and the government of -- I know Canada isnt here but --
35
36 THE COURT: Well, and theyre not part of the lawsuit.
37
38 MS. LADOVRECHIS: Yeah, but the government of Alberta at least, I
39 think --
40
41 THE COURT: Theyre here in spirit, apparently.
45

1
2 MS. LADOVRECHIS: Yes, in spirit. We cant deny that, regardless
3 of -- were not asking the court to pronounce itself on the validity of the elections. All
4 were saying is that there are two groups, two different leaderships, and that both groups
5 may have similar interests and they need to be able to proceed together in this proceeding.
6 And so we would ask that Chief Bernard Ominayak representing the Lubicon Lake Nation
7 be allowed to proceed, as well as the Lubicon Lake Indian Act band represented by Billy
8 Joe Laboucan. And thats all Ill say.
9
10 THE COURT: Okay. Thanks very much. You neednt be
11 concerned about the joinder because, as I said, your application was important, you
12 wanted substitution, so I appreciate what your friend had to say. We took a break to see
13 whether or not that might be amenable to you folks and its not, theres an impasse, I get
14 that, so I dont think you need to talk any further --
15
16 MR. YESDRESYSKI: Right.
17
18 THE COURT: -- if you were planning on, on the issue of
19 joinder. Its properly not before me, and so, absent consent between the parties, I dont
20 think its proper for me to give such a ruling.
21
22 MR. YESDRESYSKI: Okay. And I wont -- I wont dwell on that.
23
24 THE COURT: Okay.
25
26 MR. YESDRESYSKI: I was going to make some further comments on
27 that --
28
29 THE COURT: Sure.
30
31 MR. YESDRESYSKI: -- but I wont. But I do want to just go back
32 to, because of some of the comments made by my friend, this idea of representation --
33
34 THE COURT: M-hm.
35
36 MR. YESDRESYSKI: -- and this issue of representation. There are a
37 number of ways that that arises in this First Nation group and one is through electing their
38 chief and council, but there is also, as weve talked about, when a -- if there was a final
39 resolution of -- of any of these Aboriginal title (INDISCERNIBLE) rights or ultimately
40 treaty rights, the group would have to come together and vote in an individual capacity --
41
46

1 THE COURT: Yeah. The referendum.


2
3 MR. YESDRESYSKI: Yeah, referendum.
4
5 THE COURT: Yeah. Right.
6
7 MR. YESDRESYSKI: So that -- if one side -- or one group felt that
8 their interests were not the same as the sitting elected chief and council, they could vote
9 accordingly, of course --
10
11 THE COURT: Yes.
12
13 MR. YESDRESYSKI: -- and that really -- the way -- the reason its
14 that way is because there has to be a way to end it, to resolve it. And if either party -- if,
15 in a situation like this, if somebody was given a veto, theyre taking away the rights of
16 the people that have actually participated in the process up to that point --
17
18 THE COURT: Yeah.
19
20 MR. YESDRESYSKI: -- and if its a referendum in that process. It
21 basically allows complete control of the situation to devolve to that party. And thats a
22 key underlying point here, of course, that this is a matter of governance, and a matter of
23 respecting the choice and the manner in which the group has arranged itself to deal with
24 these issues and to deal with governance, to elect their leaders, and to move forward.
25
26 THE COURT: Right.
27
28 MR. YESDRESYSKI: And any -- any situation that would result in
29 the party that has the authority through the election to do it, to be vetoed, is really
30 unworkable.
31
32 And then Ill just make -- and I dont want to hammer on it but the --
33
34 THE COURT: M-hm.
35
36 MR. YESDRESYSKI: -- the way to dispute or to appeal something
37 that -- an election is clearly judicial review or court proceedings, its not to have your
38 election. Theres nowhere in any of the governance code materials that have been
39 produced in the briefs that say that that suffices to have an appeal. So, once again, it
40 amounts to a veto. And I just wanted to make those points, and those are all my
41 representations, unless you have any more questions, My Lord.
47

1
2 THE COURT: No. No, I dont think I have except -- Im
3 sorry, I have one. Is it the intent, therefore, of your clients then to start moving on this
4 litigation?
5
6 MR. YESDRESYSKI: Oh, abso --
7
8 THE COURT: Is this the whole -- I mean, I assume that was it
9 but --
10
11 MR. YESDRESYSKI: Yeah.
12
13 THE COURT: -- I didnt get that confirmed.
14
15 MR. YESDRESYSKI: I can advise the Court, because theyre
16 recognized by the Government of Alberta and the Government of Canada, that theyve
17 gone a long way towards resolving the issues in this -- in this action but numerous other
18 issues and land claims, as well, so this is -- this is advanced -- that is advanced, then
19 almost -- well, its four years since the election, so a lot has happened in that time and
20 thats set out in the affidavit of Billy Joe Laboucan. So those things cannot be
21 finalized --
22
23 THE COURT: Yeah.
24
25 MR. YESDRESYSKI: -- with litigation like this hanging out there.
26 Thats why this has been made in -- in this litigation it was still there but theres other
27 litigation that will also have --
28
29 THE COURT: Yeah, like --
30
31 MR. YESDRESYSKI: -- to be dealt with.
32
33 THE COURT: -- the 2013 lawsuit --
34
35 MR. YESDRESYSKI: Yeah.
36
37 THE COURT: -- we were talking about.
38
39 MR. YESDRESYSKI: Those will also have to be dealt with. And it
40 may be a similar process, or maybe that will be negotiated, but it has to be dealt with.
41
48

1 THE COURT: And your point is that, if they truly had a


2 problem, they could have brought an application for judicial review?
3
4 MR. YESDRESYSKI: And it would have stopped everything.
5
6 THE COURT: And their position of course would be that, if
7 you think youre so well elected, why didnt you go to federal court and seek a
8 declaration to have the validity of that election confirmed?
9
10 MR. YESDRESYSKI: Then it becomes really circular and --
11
12 THE COURT: It does.
13
14 MR. YESDRESYSKI: -- and --
15
16 THE COURT: But at least we get a decision one way or
17 another, right?
18
19 MR. YESDRESYSKI: Yeah. And I appreciate that.
20
21 THE COURT: Yeah.
22
23 MR. YESDRESYSKI: Thank you, My Lord.
24
25 THE COURT: Thank you. Thank you very much. Any last
26 thoughts at all?
27
28 MS. LADOVRECHIS: No.
29
30 Decision
31
32 THE COURT: Im not going to reserve. Im going to be able
33 to give you my decision and Im going to give it to you right now. And Ive listened
34 with great interest to the submissions that have been made, and that coupled with the
35 written briefs, which I must pass on to both sides, I found them very interesting reading,
36 both sides compelling writing structure, I must say. Its always a pleasure to have good
37 counsel, and to both sides I want to express my deep appreciation.
38
39 The application for substitution is denied at this time. I say at this time advisedly. The
40 problem that is presented here, and which has been addressed by counsel both orally and
41 in writing, circulates around the issue of elections. It is obvious one of the two elections
49

1 must be invalid. The application before me would have the effect of having to decide that
2 matter because, if Mr. Laboucans election -- or his application was granted, then it could
3 only be on the basis that they do speak on behalf of the band, and I take it on behalf of
4 the Nation. I must say I do not make much of a distinction. I appreciate that theres a
5 band under the Indian Act but I think since the 80s in Canada there has been a reason
6 why we have seen any number of bands, confederacies in Canada, starting to self-identify
7 as nations. We all saw it. We saw the signs changing, and I think a lot of us were
8 scratching our heads, saying, Whats this all about? Well, if one thinks about the issues
9 that were confronting Aboriginals in Canada, as they still do to this day - and I foresee,
10 sadly, that it will continue on for some time - issues surrounding treaty rights, and also
11 those that preexisted any treaties, are matters of fundamental concern to Aboriginals in
12 this country. And it can be viewed that in the best possible way to put their best foot
13 forward dealing with either Canada or Alberta, since were in the province of Alberta, its
14 better to perhaps style it as Nation vis-a-vis a nation rather than a small collective maybe
15 called a band vis-a-vis a country of Canada, or the province of Alberta. So I can
16 understand all that background.
17
18 The importance here, therefore, is to talk about legitimacy when were having
19 representatives. Its easier for Canada or Alberta, because they would speak through our
20 elected representatives in the legislature or in parliament and various ministers, and then
21 they would have representatives, that is an easy one. It may not be, and in this case it is
22 not easy for the Lubicon. I dont know the background but clearly there is at least a
23 schism involving the followers of Chief Laboucan and the followers of Chief Ominayak.
24 And Im not suggesting for a moment one side is better than the other. Im not
25 suggesting for a moment that Ive got a sense that one is much larger in the body count as
26 opposed to the other. Not at all. But we have an issue here about an election.
27
28 Maybe folks would say, you know, who cares, call yourself what you want. It becomes a
29 matter of grave significance when it becomes a matter of litigation. As I say, if youve
30 got a lawsuit thats outstanding since 1982 involving the plaintiffs against the government
31 of Alberta, I ask the question, who does the government of Alberta comfortably negotiate
32 with if they dont know who are the plaintiffs, because the plaintiffs disagree as to who
33 should be the plaintiffs. It becomes very difficult, I think, for the government therefore to
34 be put in the position of saying, well, were going to pick one or another. Learned
35 counsel for Chief Ominayak points out, well, this gives an awful lot of power to the
36 government. Well, lets keep in mind they have been sued. They have to make certain
37 positions. And if they have, for whatever reason, recognized one group, it would be
38 understandable that they may carry on and say, Well, we will continue to recognize that
39 group. That would be a defensible position, I would think, from Alberta for the point. I
40 dont have to decide that but it just outlines some of the problems that might be
41 happening because Chief Ominayak and his followers say, Well, hold the phone here,
50

1 theyre only there because of a bad election.


2
3 So what have we got besides this lawsuit? Well, essentially, since 1988, nothing has
4 happened on it. Part of what Chief Ominayaks position is, at the end - its in the last
5 page - is this is all moot. The other side says its not moot, we want to move on it.
6 Nothing has happened since 88, and were about to move this thing ahead if we can.
7 That would be quite understandable. Ive got, however, a recognition, as well, June 2013,
8 Ive got another lawsuit filed by Chief Ominayak, again purporting to have all the
9 necessary authority, which would apparently, therefore, transcend that of Chief Laboucan
10 and what he understands is his councils authority, and now -- and thats a lawsuit against
11 Alberta and on -- and Canada. And I agree with counsel, my reading of that lawsuit
12 certainly seemed to have an awful lot that was tracking this 82 lawsuit, so Im not being
13 particularly Machiavellian but one might start to wonder, to say, Is this some form of an
14 end run on it? What was the purpose of this? Well, if we certainly expanded the
15 defendants that would be it, and, as I said, its not exactly word for word but the reality is
16 that lawsuit is also, now, going to have to be, I would think, in limbo until we can find
17 out who is going to be the proper plaintiff.
18
19 I understand from Chief Laboucans counsel that there are a number of lawsuits that are
20 out there, not just the June 2013, where theyre going to take a step by step approach to
21 assert certain rights and perhaps to suggest that certain lawsuits should be struck, et
22 cetera. Surprisingly, this is taking an awful long period of time but I dont know all the
23 background to it and why its taking that long time but at least they have a plan of their
24 own to move ahead. But this has that sort of an impact. We dont know what we dont
25 know. Now, on one hand I think Chief Laboucan is completely entitled to say, You
26 know, if you wanted to challenge us, then take a judicial review, but I think the shoe on
27 the other foot is this. Youre so confident in it, and you know theres a direct challenge,
28 and you know weve got some internecine warfare going on here. Then go to the federal
29 court and get a declaration that your election was valid.
30
31 Either side could have triggered something. Neither side did anything. So Im left in this
32 position that both sides apparently are quite content to let this situation of complete
33 confusion carry on. Where does this court get the necessary authority to be able to step
34 in and therefore make a decision which has the effect of declaring a certain election must
35 have been valid, to the detriment of the other election? I think, as night follows day, if I
36 granted the application, that would be exactly my finding. Or, if I denied it on the basis
37 that youre not proper representation, Id like the second election, again Im making that
38 decision because that would have to be the basis that I just cant step around it. I dont
39 accept the notion that Chief Laboucan, because hes the chief of a particular band,
40 somehow cannot speak on behalf of the Nation. That I thoroughly reject. I believe, by
41 looking at the law, 1988, if ever we needed some greater clarification, and I think youve
51

1 pointed it out to me, counsel, its there. Page 1, counsel speaks for the Nation, full stop.
2 So we just have to make sure we know which is the Nation.
3
4 So the case here actually, then, weve got a lot of other litigation out there and, folks,
5 with the greatest of respect, weve got to fish or cut bait. Weve got to make sure we
6 make -- we get a decision on this. That is not my function. As I understand, it would
7 have to be in the federal count, so youd be in the wrong court, and I cant make the
8 decision. I recognize, as well, that this lawsuit has been, from one perspective, its moot
9 because nothing has happened but the other side wants to do something and they want to
10 move on it, and, if I was going to have to make a call, that would be have been a very
11 strong factor because I believe that people have got the right to move their litigation
12 ahead if they are plaintiffs. So the reality, of course, is that on that original lawsuit your
13 client, Chief Laboucan, was then just as an individual, I think as a councillor, hes suing
14 in his own person. Nothing to have stopped him from moving this thing ahead. And if
15 we do the ousting in terms of the representation, Chief Ominayak still stays with this
16 litigation.
17
18 So in terms of how well these people are going to get along as plaintiffs, the reality,
19 folks, is that theyre going to have to be dealing with each other. And either side,
20 therefore -- so, if Chief Ominayak moves ahead and were going to negotiate, then Chief
21 Laboucan but in his personal capacity, because he was one of the plaintiffs, hes going to
22 have, I guess, whatever veto activity were talking about.
23
24 And I do recognize, at the end of the day, that whatever may happen in terms of
25 negotiation, whatever might be secured, still doesnt past muster, it has to go to a
26 referendum, and I understand there is that aspect but of course what were really talking
27 about is if we can move ahead on this lawsuit. I just think it lies somewhat ill in the
28 mouth of Chief Ominayak, if I may say, with the greatest of respect, that, if you dont do
29 anything on a lawsuit since 1988, you know maybe the question might be asked, does that
30 not display some level of indifference to this lawsuit, and then kind of raise questions of
31 why are you objecting to all of this? But thats not part of the lawsuit in front of me, and
32 I dont know all the background, but those are just some of the concerns and questions
33 that I have in my mind that remain unanswered, and again I just come down to this major
34 point, I have to have some clear indication as to which is the proper election and I dont.
35
36 This lawsuit cannot be utilized as the vehicle to make that resolution decision. So I must,
37 therefore, with the greatest of respect, decline the application. You are at liberty to renew
38 it once there is either a judicial review undertaken with the decision or a declaration
39 sought and obtained in the federal court. We have to have that, otherwise things seem to
40 be at a standstill. And I really regret -- I see a lot of people here behind counsel who had
41 undoubtedly wished, you know, could some judge make some decision at some time.
52

1 Doesnt this look like Im passing the buck? I would well understand if any of you had
2 that today. I see some nodding. Its always good to know your audience.
3
4 Let me make things clear to you as best as I can. I think by reputation Im not a judge to
5 shy away from making decisions, and, if its popular or unpopular, quite frankly I could
6 care less because my oath is to make decisions. That is what Im expected to do,
7 according to law and based on the evidence. The difficulty that Ive got here is that it
8 stems out of an election, and I dont know which election is valid. For all I know, neither
9 of them are valid, or maybe both are valid. I just dont understand how we can make that
10 assessment today because thats not part of my job. And I believe I have to have that.
11
12 If I had - and I can tell you this - if I had a confirmation that Chief Laboucan, and thats
13 a valid election, I would have precious little difficulty in allowing them to substitute, for
14 one simple reason. This lawsuit has been languishing and nothing has been happening.
15 And the party who is properly (INDISCERNIBLE) the plaintiff wants to move ahead.
16 Hallelujah. Thats what were here for. Were not here to do holding patterns. Nothing
17 happened since 1988. Now, if everybody agrees to do nothing, thats different. And
18 maybe that would be part of the conversation that we havent entered into yet. But thats
19 where I will be standing on. And on the other hand, though, if Chief Ominayak is the
20 proper election, I would deny the application.
21
22 So you can see thats how important it is to me to make that decision, because I do accept
23 that document from 1988 is the authoritative document for my purposes, and that is that
24 the council speaks for the Nation, and whether were talking about issues that involve
25 treaty rights or any sort of rights that preceded in time the execution of the treaty, I think
26 its a broader picture, and surely it must be because thats how I believe we have to
27 proceed on negotiations. We cant continue to have a Balkanization of these things, with
28 respect.
29
30 Those are all of my reasons that I am providing to you. Again, I will want to conclude
31 by telling you I very much regret that Im not able to make a decision, although I guess I
32 have, but I wish I could have decided it one way or the other today, but I couldnt
33 because of that fact. But thank you very much for the opportunity to have listened to
34 argument, and for the representative of Alberta thank you so much for all of your
35 assistance.
36
37 THE COURT CLERK: Order in court.
38
39 THE COURT: Thank you very much. Please go about your
40 business, folks.
41
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3 I, Sakura Iyar, certify that this recording is the record made of the evidence in the
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1 Certificate of Transcript
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3 I, Carla Novello, certify that
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5 (a) I transcribed the record, which was recorded by a sound-recording machine, to the
6 best of my skill and ability and the foregoing pages are a complete and accurate transcript
7 of the contents of the record, and
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9 (b) the Certificate of Record for these proceedings was included orally on the record
10 and is transcribed in the transcript.
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13 Digitally Certified: 2017-03-09 09:12:44
14 Carla Novello, Transcriber
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