Canada: Kainaiwa / Blood Tribe v. Alberta (Energy), 2017 Abqb 107, Alberta Court Of Queen's Bench (Jeffrey J.), 14 February 2017

The Alberta Court of Queen's Bench quashed, and sent back for reconsideration, a decision of the Alberta Minister of Energy to refuse to transfer or sell subsurface rights to the Blood Indian Band. The Court held that the Minister's discretionary decision was unreasonable due to the deficiency in the intelligibility and rationality of the decision and reasons, and was exacerbated by a failure to consider the opportunity to promote the process of reconciliation between the Crown and the Band. The Court also held in obiter that the honour of the Crown "prima facie" requires reasons by decision makers in certain circumstances. The Court, however, denied the Band's request for mandamus on the grounds that Treaty 7, the Natural Resource Transfer Agreement, and the honour of the Crown did not entitle the Band to subsurface rights on certain lands sought by the Band to be added to its reserve.

Under the terms of Treaty 7, the Band acquired rights in lands known as the Blackfoot Crossing Reserve. Between 1880 and 1881, the Band was dissatisfied with the Blackfoot Crossing Reserve and agreed to surrender its rights in exchange for a new reserve which it currently occupies (the "Reserve"). The federal Crown later discovered that several pieces of land within the Reserve had been inadvertently sold to a non-Indian man, David Akers, living at the eastern extremity of the Reserve. Mr. Akers refused to relocate and the federal Crown had to obtain surrender of an area of approximately 444 acres (the "Claim Land") from the Band without compensation (the "Surrender"). In 1970 the federal crown reacquired and reincorporated 219 acres of the Claim Lands into the Reserve. Approximately 225 acres of the Claimed Land remained outstanding from the original Agreement.

In 1995, the Band submitted a claim alleging that it did not receive compensation for the Surrender, and that the Surrender was invalid. Negotiations resulted in two settlement Agreements, the first in 1997 (the 1st Akers Settlement) and the second in 2003 and 2004 (the "2nd Akers Settlement"). Under the 1st Akers Settlement, the Band received $2,346,000 and the option of purchasing 444 acres to be added to its reserve land, provided that the Band consulted with the provincial government and the relevant interest holders and resolved any concerns that may arise. Under the 2nd Akers Settlement, in exchange for an absolute surrender of all of its interest in the Claim Land within the meaning of ss. 38 and 39 of the Indian Act, the Band received an additional $3,555,000 and the option of purchasing 225 acres of land adjacent to the Reserve, including the subsurface rights, on a willing buyer/seller basis to be added to the Reserve subject to meeting the concerns of the provincial government.

In 2009, the Band purchased surface rights to 664.8 acres (the "Purchased Lands"). The subsurface rights remained vested in the Alberta Crown, portions of which were subject to coal, ammonite, oil and gas leases. From October 2008 to January 2015, the Band sought a transfer or sale of the subsurface rights in the Purchased Lands from the Alberta Crown. Initially, the Band was advised that Alberta was not willing to transfer Crown mineral rights except where required by law. Over the next several years, the Band was advised that the subsurface rights would not be transferred until the natural gas well ceased production. Alberta wanted compensation for the sub-surface rights and lost royalties. The Band indicated that it would be willing to purchase the subsurface rights, as opposed to Alberta transferring the subsurface rights for free. Alberta's Minister of Aboriginal Relations advocated for the transfer of the subsurface rights to the Band while the Minister of Energy advocated against the transfer on the grounds that it would create a precedent for other First Nations purchasing land to seek similar concessions. In 2014, the Minister of Aboriginal Relations became the Minister of Energy. However, he changed his position and advised the Alberta Premier, who also served as the Minister of Aboriginal Relations, that Alberta would not be transferring the subsurface rights to the Band on the grounds that: (1) there were existing subsurface rights in the Purchased Lands that were presently being leased, (2) Alberta does not sell subsurface rights except in exceptional cases, (3) Alberta did not have a legal obligation to transfer the subsurface rights in this case and (4) selling subsurface rights where no legal obligation exists may lead other First Nations to purchase land and seek similar treatment. In January 2015, the Band received a letter from Alberta's Minister of Energy pursuant to the Mines and Minerals Act, R.S.A. 2000, c. M-17 communicating his decision refusing the transfer or sale of the subsurface rights. Reasons for the decision were not provided in the letter. The Band then commenced this application for mandamus and judicial review.

On the issue of whether mandamus lay against the Minister of Energy, the Court held that neither Treaty 7, the NRTA, nor the honour of the Crown entitled the Band to the subsurface rights underlying the Purchased Lands; therefore the Minister was not under any legal obligation, and could not be compelled by mandamus to transfer or sell the subsurface rights to the Band. The Court reasoned that while Treaty 7 is constitutionally protected by section 35 of the Constitution Act, 1982, and the NRTA transferred land from the federal Crown to Alberta subject to any existing trusts, the Purchased Lands was never part of reserve land subject to these protections. Alberta received those subsurface rights from the federal Crown unencumbered by any obligation to the Band. The Court confirmed that the honour of the Crown is not a cause of action in itself, but speaks to how obligations that attract it must be fulfilled. Therefore in the absence of a legal obligation, the honour of the Crown could not compel Alberta to transfer the subsurface rights to the Band. The Court also found that the Band's absolute surrender of all of its interest in the Claim Lands under the 2nd Akers Settlement fulfilled Canada's treaty obligations, extinguished the Band's claim, and completely bars mandamus.

In regards to the appropriate standard of review, the Court held that insofar as the Minister's decision entails extricable questions of constitutional interpretation, of an enactment (the NRTA) or an agreement (Treaty 7), or determining the scope of what is entailed by the honour of the Crown, the standard of review is correctness. However, the Minister's discretionary decision, pursuant to the Mines and Minerals Act , to transfer or sell the subsurface rights owned by the Alberta Crown is subject to review on a reasonableness standard.

The Court held that the Minister of Energy was correct that there was no legal obligation on Alberta, pursuant to Treaty 7, the NRTA or the honour of the Crown, to sell or transfer the subsurface rights to the Band. However, the Court held the Minister's refusal to transfer or sell was unreasonable due to the combination of (1) the diminished intelligibility and rationality of the decision and reasons and (2) his failure to consider how his decision might affect the process of reconciliation between the Crown and Aboriginal peoples.

Given the absence of reasons in the decision letter, which made the task of determining the justification and intelligibility of the decision more challenging, the Court assessed reasonableness of the Minister's decision from the record. The Court found the reasons in the 2014 advice to the Premier from the Department of Energy. The Court held that the deficiencies in those reasons materially undermined a finding of the requisite intelligibility of the decision and its reasons, and sufficient rational connection between the reasons given and the outcome. The Court also confirmed that consideration of opportunities by decision makers to advance and promote the process of reconciliation between Aboriginal peoples and the Crown is constitutionally mandated by section 35 of the Constitution Act, 1982. In this case, the Constitution required the Minister to consider whether, and if so how, his decision may advance or impair the ongoing process of reconciliation with the Band. The Court found that the Minister failed to undertake this mandatory consideration.

While the Court did not decide whether the honour of the Crown required reasons in this case, since it was not argued, the Court held in obiter that the honour of the Crown "prima facie" requires reasons in such circumstances where the Band perceived an injustice was done to them over a century ago, followed by its decades-long struggle for a remedy. Further, the fact that the Band's historic claim had some legitimacy given the magnitude of the federal Crown's payment in settlement, and the Minister's previous position in favour of the Band's request while he was the Minister of Aboriginal Relations "all militate strongly in favour of the honour of the Crown obliging the Minister himself to explain his one sentence denial to the Band".

The Court therefore quashed the Minister's decision and ordered that the Band's request be returned to the Minister for reconsideration.

https://www.canlii.org/en/ab/abqb/doc/2017/2017abqb107/2017abqb107.html

https://www.canlii.org/en/ab/abqb/doc/2017/2017abqb107/2017abqb107.pdf

About BLG

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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