The case involved a protracted legal dispute between the Beaver Lake Cree Nation (“BLCN”) and Alberta and Canada (the “Defendants”). The primary issues in this Decision concerned the scope of discovery rights and obligations related to oral histories and Treaty rights. The BLCN sought to limit the questioning of its members and representatives by the Defendants, while Alberta and Canada sought broader discovery rights.

Justice Jerke, who was also the Case Management Judge, made a number of important findings regarding the breadth of discovery when Aboriginal peoples and groups are involved in litigation.

The scope of record disclosure is set out in Rule 5.6(1) of the Rules. Parties must disclose, in their affidavit of records, all records that are both relevant and material to the issues in the action, and that are or have been under the party’s control.

Justice Jerke began by finding that oral histories are not producible for two reasons: (i) they are not “records;” and (ii) they are not under BLCN’s control. Regarding the former, oral histories do not meet the generally accepted interpretation of “records” under Rule 5.6(1). They exist only in human memory and, in this case, had not yet been reduced to a recorded form. Further, oral histories as they exist in the minds of BLCN’s members, are not in BLCN’s “control” as per Rule 5.6(1). As such, BLCN could not legally compel its members to share their oral histories to satisfy Alberta’s demands.

Even where records are producible under Rule 5.6(1), a party may be permitted to withhold the record by claiming privilege. Parties claiming privilege must still include a schedule of any privileged records, along with the grounds for the privilege claim: Rules 5.8(1), 5.8(4). Justice Jerke found that the records of oral histories which BLCN possessed were covered by litigation privilege. During the course of this litigation dating back to 2008, BLCN had collected numerous interviews from its members on a range of topics. Experts and legal counsel conducted these interviews, which were “for the purpose of informing expert reports,” and the lawyers’ interviews were conducted “for the purpose of identify[ing] potential witnesses for trial”. These interviews fell within the scope of litigation privilege, because they were prepared in direct contemplation of the present litigation.

Turning to the nature of BLCN “as a plaintiff” for the purposes of the Rules, Jerk J. found that the appropriate manner to characterize First Nations as parties in this context is to treat First Nations as functioning like a corporation, represented in discovery by a “corporate” representative to answer questions on the Nation’s behalf. Rule 1.7(2) sets out that, where the Rules do not specifically address the circumstances at bar, they may be applied by analogy. Currently, there are no rules particular to the context in which a First Nation is a party. As such, Justice Jerke found that he was entitled to analogize the most appropriate use of the Rules.

Notwithstanding the conclusion on whether BLCN was obligated to produce oral history by way of disclosure, in the interest of fairness and in alignment with the purpose of discovery and the Rules in general, Justice Jerke opined that the Defendants must be permitted at least some discovery of BLCN’s oral histories. That is, “Part 5 must be read in combination with [Rule] 1.2, which explains that the overarching purpose for the Rules in general is to ‘provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost‑effective way’”. However, elders and other knowledge keepers should not be analogized as “service providers” under Rule 5.18(1) -- i.e., as “persons providing services to corporation or partnership”. Rule 5.18 must be read restrictively in that regard. The Defendants did not satisfy the three requirements set out under Rule 5.18.

Rule 5.4 outlines the discovery process for corporations. Evidence given by a “corporate” representative, or in this case the BLCN representative, during the discovery stage is deemed to be evidence of “the corporation”, here BLCN. A corporate representative is required to inform themself of all relevant and material records and information prior to discovery: Rule 5.4(2). However, BLCN, as a “corporation”, was not entitled to the entire oral history as it exists organically amongst its members, nor did this obligation require BLCN’s representative to recreate oral evidence. Accordingly, as BLCN’s corporate representative only had the obligation to inform herself of BLCN’s knowledge of relevant and material information. This included both reviewing physical records in BLCN’s control and making inquiries of other employees or officers of BLCN (i.e., parties under BLCN’s control such as the Chief, councillors, and other employees).

Further, Justice Jerke noted that there are several statutory discretionary provisions that grant the courts broad authority to ensure the purpose of the Rules and of discovery are adhered to in a manner that fits the Aboriginal and Treaty law context on which the Rules are silent.

First, Rule 5.1(2) permits the Court to “give directions or make any order necessary to achieve the purpose of [Part 5]”. Similarly, Rule 5.3(1)(b) grants the Court discretion to “modify or waive any right or power under a [discovery-related rule] or make any order warranted in the circumstances if ... the expense, delay, danger or difficulty in complying with a rule would be grossly disproportionate to the likely benefit”. Rule 1.4 more broadly gives the Court authority to “make any order with respect to practice or procedure, or both” including giving consent, permission or approval for a party to take a certain action.

Second, case management judges, as Justice Jerke was in this Action, have even further discretion under Rule 4.14(1) of the Rules to “make an order to promote the fair and efficient resolution of the action by trial” and “make any procedural order that the judge considers necessary” in the circumstances.

Third, jurisprudence further supports a flexible use of procedural rules. For example, the Court of Appeal has specifically explained that the Rules are flexible: Piikani Nation v Kostic, 2018 ABCA 234.

Justice Jerke exercised his discretion under Rule 5.3(1)(b) to relax the discovery rules to avoid the danger of the Defendants not knowing the case they must meet. Here, he permits the Defendants to question four other specific individuals for discovery, in addition to BLCN’s corporate representative (the “Key Individuals”), noting, however, that any evidence provided by the Key Individuals was not the evidence of BLCN unless BLCN’s corporate representative adopted it, as per Rule 5.29.

Finally, Justice Jerke proposed the following process for determining when a member of a First Nation may be questioned for discovery:

where a party becomes aware that a member of the community has personal or oral history knowledge relevant and material to specific issues in the litigation, the Court may exercise its discretion to permit that individual to be questioned for discovery to offer their part of the oral tradition, the oral history, the way of life of folks enjoying the collective rights given by the Treaty, and how their personal enjoyment of those rights has been impacted.

In accordance with Rule 5.29, the above answers can not be read in as evidence of the First Nation unless its corporate representative adopted some or all the evidence.