Papaschase people will get their day in court

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The Alberta Court of Appeal has overturned a lower court decision that would have stopped a land claim covering the southeast part of the city of Edmonton dead in its tracks.

Lawyers for the descendants of Chief Papaschase and others with ties to his community were in court on Sept. 7 looking for their day in court.

That's because lower court Justice Frans F. Slatter had issued a summary judgment on the facts of their case, essentially ruling their claim did not even merit a trial.

It turns out, now that the appellate court has handed down its ruling on Dec. 19, that Justice Slatter was wrong in making the summary judgment. Calgary lawyer Ron Maurice and his clients will get their day in court.

"We were successful on our appeal of the summary judgment decision," Maurice said. "As you know, the thrust of our argument was simply that this case raises complex issues of fact and law and constitutional questions that require a trial based on a full evidentiary record and the procedural protections inherent in the trial process. To the extent that there were material facts in dispute between the parties, we maintained that summary judgment is not an appropriate means of disposing of such matters."

All three judges agreed that the case should be given a full hearing at trial. But the matter of whether the Crown acted with malice, bad faith, fraud, coercion and duress divided the court.

Mr. Justice Jean Cote, wrote the decision. He concluded that there was no evidence of Crown misconduct. Both the other judges agreed with his findings that the matter should proceed to trial, but they disagreed about his findings that there was no evidence of misconduct.

Madame Justice Marina Paperny noted that evidence that the Crown agents of the day had taken advantage of the "dire consequences" of the people in the days after the buffalo had been hunted to near extinction had been introduced by the Papaschase lawyers and that it should be a matter to be considered at trial.

Madame Justice Doreen Sulyma also made a point of registering her disagreement with Cote on that matter.

The Papaschase reserve in what is now southeast Edmonton was disbanded by the Crown in 1888. The plaintiffs argued before Justice Slatter, and will now get an opportunity to argue at trial, that the band was improperly dispersed by federal officials, its land was improperly taken to be sold and the proceeds of the sale did not get to the owners of the land.

Maurice, a Cree man who practices law in Calgary, acknowledged that many of the procedural points he raised with the appellate court did not take root, but the court did agree with his main point - that a trial was needed to get a proper resolution of the case.

"This was really the crux of our argument ? that the plaintiffs are entitled to present their entire case at trial, including opinion evidence on the broader historical context, so that the key adjudicative facts can be weighed, assessed, and determined in their proper historical context," he said.

A trial date has not yet been set.