Papaschase lawyers argue for trial

"The right to a trial is on trial," lawyer Eugene Meehan told the three-judge panel in the Alberta Court of Appeal on Sept. 7. Meehan was arguing against a decision by Justice Frans F. Slatter to issue a summary judgment that the Papaschase claim for reinstatement as a band and for compensation for an improper surrender of land could not proceed to trial.

More than 100 potential members of a Papaschase class action lawsuit against the federal government filled the three rows of benches at the back of the courtroom while another 50 watched the proceedings on closed circuit television in another room.

At present, their hopes rest with the appellate court justices who have not yet handed down their decision about the band that once occupied an area in the southeast part of present-day Edmonton.
"It could be five minutes or five weeks," Chief Rose Lameman said as the day-long hearing wound down.

The Papaschase Cree community was disbanded by the federal government in 1888 and its lands were surrendered. Some of the proceeds of that surrender were deposited into the account of the Stoney Plain band, now called the Enoch Cree First Nation. Justice Slatter's decision did leave open the possibility that descendants of the Papaschase community, those whose ancestors did not accept Metis scrip or join another First Nation, could bring a future court action related to whether or not the proper compensation was received.

Meehan and Calgary lawyer Ron Maurice questioned the validity of Slatter issuing a summary judgment. They argued that only matters where there is no pressing question that needs to be determined by a trial can be the subject of a summary judgment.

Meehan said there are several questions where both sides need to be heard and considered by a court. He criticized Slatter for ruling on the facts of the case rather than ruling on the question of whether those facts should be considered at trial.

"The motions court judge here essentially held a trial," Meehan said. "This particular motions judge heard no one except two lawyers and it's our position that two lawyers does not a trial make."

Maurice said the expert who wrote the report Justice Slatter relied on to make his conclusions was "never qualified" as an expert.

Ron Maurice added that the case was about constitutional rights and treaty rights and that facts and legal arguments should be heard by a court.

"The most fundamental of treaty rights is recognition," he said.

But Michele Annich, senior counsel and team leader for Justice Canada's Aboriginal law service branch in Edmonton, argued that there were no eligible plaintiffs to bring the matter forward. She said all the members of the band at the time of surrender had either taken scrip, i.e. voluntarily given up Indian status and treaty rights, or had joined another band. That disqualified them and their descendants from bringing the motion.

"This band had basically dispersed. There may not even have been the need for a surrender," she told the panel.

The Crown also argued that statutes of limitations ended the Papaschase descendants' chance at getting their concerns in front of a judge.

"This is an old claim. It's too old to let it go ahead," she said.

At the end of the day, after some six hours of detailed legal arguments, Eugene Meehan took issue with the assertion that there were no Papaschase members to bring the question to court. He pointed to the still full galleries.

"No one is alive today with an interest in this matter?" he asked, rhetorically. "This courtroom is full-and downstairs. The great, great granddaughter of Chief Papaschase, Rose Lameman, is here and many others."