Keewatin v. Minister of Natural Resources

Appendices 306issues will have to be examined in detail in order to decide issues relating to the justifiableinfringement of the applicants' treaty rights. Where there is an evidentiary dispute with respect tofacts that are material to the issues to be resolved and the inferences to be drawn from those facts, asummary application is not the appropriate vehicle for determining such issues: Energy Probe, supraat 470; City of Burlington, supra at 589; Seaway Trust, supra at 533; Moyle v. Palmerston PoliceServices Board reflex, (1995), 25 O.R. (3d) 127 at 131 (Div. Ct.); R. v. Jetco Manufacturing Ltd.reflex, (1987), 57 O.R. (2d) 776 at 781 (C.A.).[47] Much of the evidence necessary to address the issues raised by this application will be expertopinion evidence. This type of evidence requires particularly close judicial scrutiny, especially ifthere are conflicting expert opinions. The additional opportunity for assessing credibility afforded byviva voce evidence is particularly important in the Aboriginal and treaty rights context (Delgamuukwv. British Columbia 1993 CanLII 4516 (BC C.A.), (1993), 104 D.L.R. (4 th ) 470 at 560-561(B.C.C.A.).[59] A great deal of evidence, including expert evidence will be called by the parties on a number ofdisputed facts and issues, and it is inappropriate to deal with these disputes of material fact by way ofsummary application: Renegade, supra. Some of the disputed issues include: (a) the properinterpretation of the applicable provisions of Treaty 3; (b) inferences to be drawn from the applicablelegislative history; (c) the adverse effects, if any, of logging operations on wildlife resources; (d) thenature and extent of benefits generated by logging activities in the area in question for both thegeneral public and First Nations members; and (e) the nature and extent of consultations anddiscussions between the applicants, their First Nations community, and the respondents concerningthe conduct of the logging operations in question.[1654] In January of 2005, the three Applicants commenced this action as Plaintiffs. Prior to thefiling of Statements of Defence, they brought two motions before the Case Management Judge,Madam Justice Spies:[a] A motion for interim costs in any event of the cause; and2011 ONSC 4801 (CanLII)[b] A motion for a representation order, providing authorization for the plaintiffs tobring this action on behalf of all Grassy Narrows members, pursuant to Rule 12.08 ofthe Rules of Civil Procedure.[1655] On May 23, 2006, a Representation Order was made [on consent] following a GrassyNarrows Band Council resolution authorizing this action.[1656] After defining the two threshold issues now before me by Order dated June 28, 2006,Spies J. granted the Plaintiffs' motion for interim costs, ordering interim costs payable in advanceon a partial indemnity basis in any event of the cause for the purpose of determining thethreshold issues. She stayed the balance of the litigation pending the determination of thethreshold issues.[1657] The parties then delivered pleadings in respect of the threshold issues to be tried.[1658] After the Minister commenced third party proceedings against the Attorney-General ofCanada ("Canada"), Canada defended both the third party claim and the main action (that is, themain action in respect of the trial of the threshold issues.)