White Bear First Nations et al. v. Saskatchewan (Minister of Environment) et al., (2009) 339 Sask.R. 127 (QB)

• Judge: Ball, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 29, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 339 Sask.R. 127 (QB);2009 SKQB 151

White Bear First Nations v. Sask. (2009), 339 Sask.R. 127 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. MY.005

In re the Matter of Judicial Review Pursuant to Part 52 of the Queen's Bench Rules to set aside the decision of the Ministry of Environment dated October 30, 2008

White Bear First Nations Chief and Council, on their own behalf and on behalf of all the members of the White Bear First Nations (applicant/motion-respondent) v. Minister of Environment on behalf of Her Majesty the Queen in Right of the Province of Saskatchewan (respondent/motion-applicant) and Harvest Operations Corp. (respondent/motion-respondent)

(2009 Q.B. No. 238; 2009 SKQB 151)

Indexed As: White Bear First Nations et al. v. Saskatchewan (Minister of Environment) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

April 29, 2009.

Summary:

The Minister of Environment (Sask.) issued two permits to Harvest Operations Corp. authorizing oil and gas exploration and development within the Moose Mountain Provincial Park. White Bear First Nations applied for judicial review, seeking orders quashing the permits and requiring the Minister to consult with and, if indicated, accommodate White Bear respecting the proposed development within the Park. White Bear filed a supporting affidavit. The Minister objected to substantial portions of that affidavit and applied to strike them out on the basis that they were irrelevant and/or inadmissible in the judicial review proceedings.

The Saskatchewan Court of Queen's Bench allowed the application in part. The court struck several paragraphs from the affidavit on the basis that they were clearly irrelevant or constituted inadmissible hearsay.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Evidence and proof - The Saskatchewan Court of Queen's Bench stated that "[a]n application for judicial review brought pursuant to Part 52 of the Queen's Bench Rules is not an interlocutory motion but an application for a final order ... Thus, Rule 319 confines the evidence contained in affidavits filed on applications for prerogative remedies under Part 52 of the Queen's Bench Rules to 'such facts as the witness is able of his own knowledge to prove'. There are two reasons why that should be so. First, although there are recognized exceptions to the rule, evidence of a hearsay nature is generally regarded as less reliable than direct 'best' evidence. Second, concern about the reliability of hearsay evidence becomes magnified when the party against whom it is adduced faces the prospect of a final order with no opportunity to cross-examine the affiant ... However, it would misconstrue the purpose and intent of Rule 319 to find that it prohibits all hearsay evidence from being adduced in affidavits on applications for judicial review including otherwise admissible evidence which satisfies established requirements of necessity and reliability. Excluding demonstrably trustworthy evidence from affidavits based on an archaic, overly rigid application of 'the rule against hearsay' would hinder the search for truth in many situations. In this case, it would operate to exclude virtually all properly grounded oral history evidence from the affidavit of Chief Standingready. In cases of this kind it would virtually eliminate the availability of prerogative remedies under Part 52 of the Rules for aboriginal claimants seeking to protect treaty rights." - See paragraphs 24 to 26.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Evidence and proof - The Minister of Environment (Sask.) issued two permits to Harvest Operations Corp. authorizing oil and gas exploration and development within the Moose Mountain Provincial Park - White Bear First Nations applied for judicial review, seeking orders quashing the permits and requiring the Minister to consult with and, if indicated, accommodate White Bear respecting the proposed development within the Park - White Bear filed a supporting affidavit by its Chief (Standingready) - The Minister applied to strike portions of the affidavit, arguing that they contained hearsay - The Saskatchewan Court of Queen's Bench stated that it was settled that oral history evidence could be adduced by qualified witnesses in cases concerning aboriginal Treaty rights - Oral history evidence should be given by the persons most qualified to give it - That is, by persons reliably able to prove customs, traditions and rights by means "of their own knowledge" - Standingready's qualifications to give oral history evidence, as set out in his affidavit, fell well short of satisfying the standards established by the judicial authorities - The court struck two paragraphs of the affidavit on the basis that they were inadmissible hearsay - They did not identify the source or any facts that could assist the court in assessing the credibility or reliability of the information and were clearly not the best evidence available - See paragraphs 27 to 35 and 37.

Practice - Topic 3643

Evidence - Affidavits - Sufficiency of - Statement of knowledge of relevant facts - [See first Indians, Inuit and Métis - Topic 6012 ].

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See both Indians, Inuit and Métis - Topic 6012 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - A party applied to strike several paragraphs of an affidavit filed in support of a judicial review application - The party argued that the affidavit contained evidence that was not relevant to the issue raised by the judicial review application and should be struck out or disregarded by the court - The party argued that all evidence was either relevant or not relevant and that irrelevant evidence was not admissible - The Saskatchewan Court of Queen's Bench stated that "[t]hat argument is attractive, but is of little practical assistance. First, it incorrectly assumes that all evidence can be neatly separated into 'relevant' and 'not relevant' categories, which is not the case. In the real evidentiary world, evidence may be potentially relevant to one issue but not to another, or it may be only circumstantially probative of disputed facts. In those situations evidence cannot simply be labelled 'relevant' or 'not relevant'. Second, evidence may be theoretically relevant but insufficiently probative of a material fact to be admissible. In other words, evidence can have degrees of relevance. In order to keep proceedings within manageable limits it must have a sufficient degree of probative value to be admitted." - See paragraph 20.

Cases Noticed:

Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2005), 269 F.T.R. 1; 2005 FC 1622, refd to. [para. 14].

Saskatchewan Federation of Labour et al. v. Saskatchewan (Attorney General) et al. (2009), 323 Sask.R. 115; 2009 SKQB 20, refd to. [para. 24].

Warne et al. v. Regina Exhibition Association Ltd. et al. (1996), 170 Sask.R. 3 (Q.B.), refd to. [para. 24].

Irving et al. v. Kelvington Super Swine Inc. et al. (1997), 163 Sask.R. 87; 165 W.A.C. 87 (C.A.), refd to. [para. 24].

Kennibar Resources Ltd. v. Saskatchewan (Minister of Energy and Mines) and Gulf Canada Resources Ltd. (1990), 88 Sask.R. 35 (Q.B.), refd to. [para. 24].

Newkirk v. International Harvester Co. of Canada and Acme Machine & Electric Co. (1965), 53 W.W.R.(N.S.) 368 (Sask. Q.B.), refd to. [para. 25].

Ochapowace First Nation et al. v. Canada (Attorney General) et al. (2007), 316 F.T.R. 19; 2007 FC 920, refd to. [para. 25].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 27].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 27].

William v. British Columbia et al., [2004] B.C.T.C. 148; [2004] 5 W.W.R. 320; 2004 BCSC 148, refd to. [para. 30].

Xeni Gwet'in First Nations v. British Columbia - see William v. British Columbia et al.

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 319 [para. 23].

Authors and Works Noticed:

Cross, Rupert, and Tapper, Colin, Evidence (8th Ed. 1995), p. 67 [para. 20].

Counsel:

Jeffrey M. Howe, for the White Bear First Nations Chief & Council;

P. Mitch McAdam, for the Minister of Environment;

Murray W. Douglas, for Harvest Operations Corp.;

Ian D. Wagner, Agent for Attorney General of Canada;

Thomas J. Waller, Q.C., for Carry The Kettle First Nation;

Brian A. Barrington-Foote, Q.C., for Sakimay First Nation and Ocean Man First Nation;

Mervin C. Phillips, for Ochapowace First Nation;

Stuart A. Busse, Q.C., for Pheasant Rump Nakota First Nation;

Jeffrey M. Howe, for Kahkewistahaw First Nation.

This application was heard by Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on April 29, 2009.