Expert Report from Negotiations made Public as an Exception to Settlement Privilege

November 30, 2021

Maurice Law has been successful in relation to a series of bifurcation motions brought by the Crown before the Specific Claims Tribunal.

Red Pheasant, represented by Steve Carey, Amy Barrington, and Susannah Walton of Maurice Law, brought an application to have an expert report by Thompson Agricultural Consulting Ltd. (the “Thompson Report”) admitted into evidence. The Thompson Report assessed the modern equivalent value of the agricultural benefits owed to Red Pheasant under Treaty 6 were they to be provided today. The Crown opposed this application, arguing that the Thompson Report was protected by settlement privilege, as it was prepared during negotiations for settlement of the agricultural benefits claim.

The Tribunal found that the Thompson Report is admissible under the public interest exception to settlement privilege.

A party claiming the public interest exception must show on a balance of probabilities that a competing public interest outweighs the public interest of encouraging settlements by upholding privilege. The Tribunal found that Red Pheasant established that the public interest of promoting reconciliation and First Nations’ self-sufficiency through the adjudication of specific claims required that there be an exception to settlement privilege in this case.

The Tribunal therefore found that the Thompson Report is admissible, emphasizing that it was difficult for the Tribunal to meet its goals of the just, timely, and cost-effective resolution of claims if Red Pheasant were required to incur additional delays and costs to produce a nearly identical report in the event the Thompson Report were to be deemed inadmissible.

This decision is significant as it goes to the core of the Tribunal’s administration of its mandate - that being to secure the just, timely, and cost-effective resolution of specific claims - and the overarching goal of reconciliation.

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