In Lameman v. Alberta, 2013 ABCA 148, the Alberta Court of Appeal
dismissed an appeal by the Crown in Right of Alberta
("Alberta") and the Attorney General of Canada
("Canada") from a decision of the Alberta Court of
Queen's Bench refusing to strike portions of the Statement of
Claim of the Beaver Lake Cree Nation ("BLCN"). By
affirming the lower court's decision, the Court of Appeal
allowed the BLCN's claim for damages for treaty infringement to
proceed. The basis for the BLCN's claim is that the cumulative
impacts of past Crown authorizations for resource development in
their traditional territory unjustifiably infringes their rights to
hunt, trap, and fish under Treaty 6.
BLCN is a signatory to Treaty 6. Under Treaty 6, the signatory
First Nations surrendered certain lands to the Crown in exchange
for reserve land and other benefits, including the right to hunt,
trap, and fish throughout the tracts surrendered. BLCN alleges that
the Treaty requires Alberta and Canada to manage BLCN's core
traditional lands to ensure that its members are able to exercise
their treaty rights.
In its claim, BLCN seeks damages from Alberta and Canada for
alleged breaches of their Treaty 6 obligations. By granting
approximately 19,000 individual authorizations for oil and gas,
forestry, mining, and other activities on BLCN's claimed
"core lands", BLCN argues that Alberta and Canada have
failed to discharge their responsibilities under the Treaty. BLCN
says the cumulative impact of these authorizations infringes their
treaty rights, as anticipated by Mikisew.
Queen's Bench Decision
Alberta and Canada applied to strike some or all of the
BLCN's Statement of Claim, taking issue with the fact that the
BLCN challenged every authorization issued with respect to lands
within or adjacent to the BLCN's core traditional territory.
These allegations implicated the decisions of dozens of Crown
bodies involving 300-some projects related to a range of
activities. Alberta and Canada argued that the scope of the
allegations was too broad and it was inappropriate to attack the
validity of Crown decisions in the context of a civil claim.
The case management judge partly agreed with Alberta and Canada
and struck the portions of the Statement of Claim that sought to
revoke some or all of the 19,000 individual authorizations.
However, the court rejected any further amendments to the
Alberta and Canada appealed, claiming, among other things, that
the BLCN's action was a collateral attack on authorizations
already granted and previously unchallenged. The Court of Appeal
rejected this argument, stating the public purposes of judicial
review are fundamentally different than a private claim for
damages, and noting that the lower court had already struck
BLCN's claim to have the authorizations revoked.
The Court observed (at para. 26):
As currently drafted, the action appears to focus largely on
whether, regardless of the extent of consultation with the
plaintiffs and the extent of accommodation of any interests of the
plaintiffs that may have occurred as a result of the statutory and
regulatory frameworks as existed at the relevant times, there was a
basis for liability of either Canada or Alberta for cumulative and
avoidable effects adverse to the plaintiffs.
Ultimately, the appeal was dismissed in its entirety, allowing
BLCN's action for damages and a permanent injunction against
the provincial and federal Crowns to proceed.
The Alberta Court of Appeal's decision to refuse to strike
BLCN's claim may result in the adjudication of one of the first
actions for damages for past infringements contemplated in Rio
Tinto. The decision is also noteworthy as the past
infringement at issue arises from the cumulative impacts of
development from numerous unrelated projects spanning multiple
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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