Case bogged down by funding request
Metis man in land claims case applies for millions of dollars of government money to fight trespassing charge
Daniel Campbell
Northern News Services
Published Friday, February 28, 2014
SOMBA K'E/YELLOWKNIFE
A land claims case that is as long as it is complicated has become bogged down as the Metis man fighting it has applied for government money to pay his legal fees.
Clem Paul, a former president of the North Slave Metis Alliance, has been fighting the government to keep his cabin - which he built without government permission at Prosperous Lake in 2003 - since 2005, when summons were issued against him for trespassing by the territorial government.
This week Paul's Calgary-based attorney Ken Staroszik went up against two government lawyers in NWT Supreme Court - one each from the territorial and federal government - to argue why his client should receive government funding to pay for his case.
Legal fees for the case are already in the millions of dollars, according to Staroszik.
But Andrew Fox, counsel for the federal government, argued funding is provided to lawsuit litigants "only in the rarest of cases," saying there is "a very high bar set" to get it.
Fox said those applying for funding must prove: 1) there is no other way for their case to come to court without it, 2) the case has merit and 3) the issues are of public importance and haven't been resolved before.
In Paul's case, Fox said none of the three criteria are met. He said the government doesn't have enough proof Paul has tried to get funding from other sources, such as the Treaty 11 Metis group he is representing.
When the case first came up, Paul identified himself as a member of the Mountain Island Metis. The membership or location of this group is unclear.
"The evidence is weak on whether this trial is of interest to anyone but Mr. Paul," Fox told the court on Wednesday.
In 2008, Paul filed a defence to the trespassing charge, along with a counter claim suggesting he was eligible for 128 acres of land as a beneficiary of Treaty 11 rights.
Fox said the case has become complicated since then.
"Much of the counter-claim is throwing everything in but the kitchen sink," he said.
The federal and territorial government argue Paul's Treaty 11 rights were extinguished when the Tlicho agreement was signed in 2003.
Staroszik says the onus is on the government to prove Paul no longer has treaty rights. He added treaty rights of the Slavey and Deh Cho could be affected by the government's stance as well.
The funding hearing ended on Wednesday after two and a half days of submissions by both parties. Justice Virginia Schuler reserved her decision, which she said she'll deliver by writing at a later date.
Staroszik said their next step is to make arguments against the government's position that Paul's Treaty 11 rights are extinguished.
He added he's unsure what will happen to the case if their application for funding is denied by the court.
History of Litigation
- April 5, 2003: Clem Paul begins building cabin at Prosperous Lake without permission
- Aug. 24, 2005: Paul accused of trespassing under Commissioner's Land Act by territorial government
- May 29, 2006: Summons issued against Paul under Mackenzie Valley Resource Management Act by the federal government
- Nov. 23, 2007: Federal and territorial governments join in action against Paul
- Aug. 13, 2008: Trespass action begun against Paul in court
- Sept. 12, 2008: Paul files defence and counter-claim to trespass charge
- March 2009: Federal and territorial governments file response to Paul's counter-claim
- Aug. 17, 2012: Paul applies for funding from the government for his court case
- Feb. 24, 2014: Funding hearing begins in Supreme Court in Yellowknife
Source: Ken Staroszik
