Overview
In Mikisew Cree First Nation v. Alberta,1 [PDF] the Alberta Court of Appeal recently confirmed that a legal challenge to Alberta's regime for Crown-Indigenous consultation on oil sands and other development proposals may proceed. If ultimately successful on the merits, this legal challenge commenced by the Mikisew Cree First Nation (MCFN) and the Athabasca Chipewyan First Nation (ACFN) could result in significant changes to Alberta's Crown-Indigenous consultation process.
Background
MCFN and ACFN, both signatories to Treaty 8, commenced a statement of claim (the Action) and a judicial review (the Judicial Review) against the Alberta Crown with respect to alleged adverse impacts in their respective traditional territories due to oil sands development. Both the Action and Judicial Review challenge the Alberta Crown's generally applicable policies, guidelines and policies for Crown-Indigenous consultation on land and natural resource management decisions (the Consultation Regime) as constitutionally deficient.
The Alberta Crown applied to strike or stay the Action pursuant to rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 for failure to disclose a reasonable claim because, among other things, declaratory relief is not available. The Alberta Crown also filed an application to strike the Judicial Review on the same grounds as the Action — asserting the Judicial Review failed to disclose a reasonable claim — or to strike or stay the same because it constituted an abuse of process under rule 3.68.
The chambers judge denied the Alberta Crown's applications and all alternative relief. The Alberta Crown appealed, arguing that, among other things, it should not have to litigate the same factual and legal issues with the same parties twice, and the relief the First Nations sought represented a collateral attack on all prior regulatory approvals issued under the Consultation Regime.
The Court of Appeal decision
The Court of Appeal denied the appeal, permitting both the Action and the Judicial Review to proceed.
The Court of Appeal acknowledged recent Supreme Court of Canada (SCC) decisions, wherein the SCC explained that declaratory relief takes on a "unique tenor" in the context of litigation of Indigenous and treaty rights as a means of advancing reconciliation,2 and that courts should be cautioned against striking pleadings as an abuse of process in this context.3
The Court of Appeal acknowledged the Alberta Crown's legitimate concerns regarding a multiplicity of proceedings and the possibility for inconsistent findings or outcomes. However, the Court found that "concerns regarding the potential for different findings or outcomes between the Action and Judicial Review, as well as the efficient use of judicial resources, may be addressed through case management, if implemented at the Court of King's Bench."4
Further, the Court of Appeal noted that nothing in its decision speaks to the merits of the Action or the Judicial Review. Indeed, in arguing the merits, the Alberta Crown may advance the same or similar arguments, including the potential implications for existing regulatory authorizations.
Conclusion: procedural considerations in Indigenous claims
The Court of Appeal's decision echoes many of the same considerations the SCC identified in Métis Nation – Saskatchewan, a decision we reported on in a prior post entitled: Supreme Court clarifies abuse of process in Aboriginal claims.
Among other things, both the Court of Appeal in this decision and the SCC in Métis Nation – Saskatchewan emphasized that, while abuse of process is possible in proceedings involving Crown-Indigenous claims, the unique context of such litigation is a relevant factor in determining both whether an abuse of process exists and an appropriate order.
By way of example, both the Court of Appeal in this decision and the SCC in Métis Nation – Saskatchewan noted that the case management process may be used as a forum for addressing a multiplicity of related proceedings between the Crown and the same Indigenous communities on issues of related facts and law. Indeed, as the Court of Appeal noted, under rule 3.72 of the Alberta Rules of Court, the Court may order that proceedings be consolidated, tried at the same time, or that one action or claim be stayed pending the determination of another.
Importantly, neither the Action nor the Judicial Review appear to ask the Court to quash a particular Alberta Crown decision to approve an oil sands or resource project or deem consultation adequate in respect of same. MCFN and ACFN confirmed that any declaratory relief granted related to systemic practices, and engaged "forward-looking" remedies, such that the claims advanced, would not have the blunt impact of challenging past decisions. As such, and similar to statements made by the SCC, the claim for declaratory relief could be deemed to be for the purposes of reconciliation, which the SCC has said, in certain cases, is the only way to give effect to the honour of the Crown.5
In circumstances where such relief may seek to impact prior decisions, different considerations may arise, including the application of the legal doctrine of collateral attack in such circumstances, the statutory purposes and importance of timely decision-making, and certainty regarding a particular licence or other approval issued to a project proponent.
Footnotes
1 Mikisew Cree First Nation v Alberta, 2025 ABCA 304 [PDF] (Court of Appeal decision).
2 Shot Both Sides v Canada, 2024 SCC 12, paras 70-74.
3 Saskatchewan (Environment) v Métis Nation – Saskatchewan, 2025 SCC 4 (Métis Nation – Saskatchewan), para 62.
4 Court of Appeal Decision [PDF], para 24.
5 Manitoba Metis Federation Inc v, Canada, 2013 SCC 14, para 143, 147.
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