The Stoney Indian Band, made up of the Wesley, Bearspaw and Chiniki First Nations, brought an action seeking a declaration of unextinguished Aboriginal rights and title as well as Treaty rights under Treaty 7 with respect to certain lands in southern Alberta. During the litigation of this action the representative of the federal government, Jack Hughes, was examined. The federal government objected to certain questions posed to Hughes and entered a refusal to provide certain requested undertakings on the record. The federal government argued that the disputed questions and undertakings were inappropriate because they required an opinion, interpretation of a document, or speculation; or the question was legal in nature, overbroad, irrelevant or sought privileged information and communications.
The case management judge considered the competing arguments with respect to these questions and concluded that Hughes was obliged to answer 16 of 18 sample questions and undertakings she was presented with. She reasoned that for questioning on historical matters, a representative of the Crown must answer questions of historical fact whether or not they arise out of “living memory”; where answers are only marginally distinguishable as between fact and opinion, the questions should be answered so that the trial judge can deal with the evidence as necessary. The case management judge further held that Hughes was not required to interpret historical documents, but must respond with regards to documents with factual information. Among other things, she also ruled that questions could not be avoided on the basis that answering would be onerous, unless it could be shown that compliance would be disproportionate to the value of the answer.
The federal and provincial governments appealed from this decision and the main issue to be determined on appeal was whether questions of historical fact could only be answered by historical experts. The respondent First Nations argued that the federal government possessed documentation of its own past policies, practices and conduct that might have a bearing on the outcome of this litigation and that there was no need to defer to the opinions of historical experts with respect to facts that relate to past events or stem from institutional memory.
Court of Appeal’s decision
The Court of Appeal held that the question it needed to decide was whether the sample questions and undertakings could reasonably be expected to significantly help to elicit evidence or determine issues that were raised in the pleadings. While it acknowledged that there was a line of cases from British Columbia that precluded lay witnesses from being examined on historical facts, the Court of Appeal rejected this approach in favour of a more permissive line of cases from the Federal Courts. The Court of Appeal also endorsed the respondent First Nations’ submission that “since most aboriginal law cases present broad historical aspects to adopt the Appellants’ position would effectively render oral discoveries useless in cases dealing with aboriginal rights and treaty rights”.