A challenge to the validity of oil and gas permits outside the
judicial review process is a collateral attack and will be struck,
the Alberta Court of Queen's Bench held recently in
Ominayak v Penn West Petroleum Ltd, 2015 ABQB
By way of background, Penn West Petroleum Ltd. obtained a number
of regulatory approvals between 2011 and 2013 to conduct oil and
gas operations near Haig Lake, Alberta on lands that the Lubicon
Lake Cree assert Aboriginal title and rights. Two groups claim to
represent the interests of the Lubicon Cree: the Lubicon Lake
Nation, led by former Chief Bernard Ominayak, and the Lubicon Lake
Band, led by Chief Billy Joe Laboucan elected on February 15, 2013.
Penn West consulted with the Lubicon Cree in obtaining the
approvals, including then Chief Bernard Ominayak. We previously
wrote about a long-term Order granted by the Alberta Court of
Queen's Bench under the Public Lands Act, RSA 2000, c
P-40 after several members of the Lubicon Cree who claimed to be
affiliated with Bernard Ominayak blockaded a permitted access road
impacting Penn West's operations.
In June 2013, Bernard Ominayak and several members of the
Lubicon Lake Nation commenced a lawsuit in Calgary against the
federal and provincial Crown claiming Aboriginal title and rights
on lands which include those within Penn West's operations. A
few months later in November 2013, the same plaintiffs filed a
separate lawsuit in Peace River against Penn West seeking, among
other things, a declaration that Penn West's approvals were
void and of no effect. Penn West brought an application to strike
the claim on the grounds that it was a collateral attack on Penn
West's approvals outside of the judicial review process and
that it was duplicative of the Crown action.
In a decision released on June 5, 2015, the Alberta Court of
Queen's Bench struck the portions of the claim that sought to
invalidate Penn West's approvals, finding that they were a
collateral attack. The Court held that the plaintiffs did not
follow the appropriate avenues of judicial review, and to allow the
claim would render the judicial review process
"irrelevant", as parties could ignore the judicial review
process or state no concern at the consultation stage and later
seek to render regulatory approvals invalid through an Aboriginal
The decision confirms that it is a collateral attack to
challenge the validity of regulatory approvals for oil and gas
operations outside of the judicial review process based on the
principle articulated by the Supreme Court of Canada in Behn v
Moulton Contracting Ltd, 2013 SCC 26 (a decision that we previously
here), and that such pleadings will be struck. The decision
also leaves the door open to private actions in tort against
companies operating in areas subject to asserted but unproven
Aboriginal title and rights claims, affirming Saik'uz First
Nation v Rio Tinto Alcan Inc, 2015 BCCA 154,
which is currently subject to an application for leave to appeal to
the Supreme Court of Canada.
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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.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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