Canada: Alberta Court Grants Six-Month Injunction Against Lubicon Blockade

On December 16, 2013, the Alberta Court of Queen's Bench granted a six-month injunction in favour of Penn West Petroleum Ltd., authorizing the RCMP to remove a road blockade erected by individuals associated with Bernard Ominayak, the former Chief of the Lubicon Lake Nation.

Penn West holds valid well licences, mineral surface leases and a licence of occupation for an access road for oil development located on lands around the Sawn and Haig Lake areas of northern Alberta. The roadblock was erected on November 26, 2013, and blocked access to the drilling site.

Consultation and Blockade

Through most of Penn West's licensing and permitting process, Chief Ominayak was the acknowledged leader of the Lubicon Lake Nation. An election was held within the Lubicon Lake Nation, and a different governing group, called the "Lubicon Lake Band" (Lubicon Band), led by Chief Billy Joe Laboucan was elected. The Lubicon Band was formally recognized by both the provincial and federal governments in February 2013. The blockade was not supported by the Lubicon Band.

Chief Ominayak maintains that he continues to be Chief of the Lubicon Lake Nation (Lubicon Lake); however, this group has never been formally recognized by the provincial or federal governments.

Penn West engaged in discussions with Lubicon Lake until February 2013, when the Lubicon Band was formally recognized. Following the election of Chief Laboucan, Penn West sought and received the approval of the Lubicon Band for the work to be conducted. Penn West also engaged in discussions with Lubicon Lake members regarding its work plans over the course of the year until the blockade began.

On November 26, 2013, Chief Ominayak and Lubicon Lake members began blocking an access road to the drilling site owned by Penn West. Both the drilling site and access road are located on Crown land. In addition to the blockade, Lubicon Lake filed a separate lawsuit in Peace River against Penn West on December 2, 2013. The statement of claim alleges that because the Canadian government did not enter into a treaty with Lubicon Lake prior to developing oil and gas on traditional territory, the leases and licences that have been issued are null and void.

Public Lands Act Order

In response to the blockade, Penn West applied for an order under the Public Lands Act, authorizing the RCMP to remove the barricade. This Act prohibits anyone from preventing a disposition holder or commercial user from access to a road when there is a legal right to this access. An injunction contemplated under section 54.03 of the Act may prohibit any person from continuing a blockade and/or authorize a police officer to remove and seize any barrier, structure or vehicle obstructing access.

Two types of orders are available under section 54.03 the Public Lands Act:

  • a short-term order, which cannot exceed 7 days and may be made ex parte, without notice to the other party; or
  • a long-term order, which can be granted for up to one year, with notice of two days to the other party.

Penn West ultimately provided notice of two days to Lubicon Lake, making it possible to apply for a long-term order.

Court Order

In an oral decision, the Court concluded that Penn West had followed all of the necessary government regulations and requirements in obtaining approval for its well licences and access to obtain its surface lease. In taking those steps, regulatory bodies granted the approvals after being satisfied with the consultation that Penn West had undertaken. Furthermore, the Court noted that Lubicon Lake had not appealed or made any application for judicial review with respect to the licences and permits in question.

In addressing the issue of Lubicon leadership, the Court found that the licences and permits were obtained prior to recognition of the Lubicon Band and, as a result, Penn West engaged in consultation with Lubicon Lake. Following the federal recognition of the Lubicon Band, Penn West continued to involve Lubicon Lake in the consultation process. The Court held that because Penn West proceeded legally at every step of the process and neither Lubicon group had objected during the regulatory process, the blockade was not an appropriate or legal response by Lubicon Lake members.

The Court relied on the recent Supreme Court of Canada case of Behn v. Moulton Contracting Ltd. (Behn).1 In Behn the Supreme Court of Canada refused to recognize a road blockade as a means of raising a breach of the duty to consult. It held that allowing the barricade to exist as a means of defending a breach of the duty to consult constituted an abuse of process when a First Nation fails to challenge the approval in question through the appropriate legal means.

Relying on Behn, the Alberta Court found the Lubicon Lake blockade to be unlawful under section 54.03 of the Public Lands Act. The Court granted a six-month injunction in favour of Penn West.

On January 3, 2014, Lubicon Lake filed a notice of appeal with the Court of Appeal of Alberta to challenge the injunction order.

Significance for Resource Developers

The Behn and Lubicon Lake decisions demonstrate that blockades by members of First Nations are increasingly an impediment to resource development. Resource developers should follow these cases closely for guidance regarding consultation with Aboriginal groups that have split contested leadership as well as for the appropriate response to blockades. Courts expect First Nations to register objections within the established regulatory processes.


1 2013 SCC 26.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions