Athabasca Chipewyan First Nation v. Alberta (Minister of Energy) et al.,

• Judge: Bielby,Read,Ritter
• Neutral Citation: 2011 ABCA 29
• Subject Matter: ADMINISTRATIVE LAW,LIMITATION OF ACTIONS
• Citation: 2011 ABCA 29,(2011), 505 A.R. 72 (CA),505 AR 72,(2011), 505 AR 72 (CA),505 A.R. 72
• Date: 05 November 2010
• Court: Court of Appeal (Alberta)

Athabasca Chipewyan First Nation v. Alta.  (2011), 505 A.R. 72 (CA);

      522 W.A.C. 72

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. FE.024

Athabasca Chipewyan First Nation (appellant/applicant) v. Minister of Energy and Shell Canada Ltd. (respondents/respondents) and Canadian Coastal Resources Ltd. and Standard Land Company Inc. (not parties to the appeal/respondents)

(0903-0320-AC; 2011 ABCA 29)

Indexed As: Athabasca Chipewyan First Nation v. Alberta (Minister of Energy) et al.

Alberta Court of Appeal

Ritter and Bielby, JJ.A., and Read, J.(ad hoc)

January 28, 2011.

Summary:

The Minister of Energy granted certain oil sands leases in November 2006, January 2007 and March 2007 (the leases). In December 2008, the Athabasca Chipewyan First Nation (ACFN) applied for judicial review, seeking (a) a declaration that the Minister was under a duty to consult ACFN prior to granting the leases and had breached that duty, (b) a declaration that the Minister was under a continuing duty to consult the ACFN regarding the leases, and (c) orders including certiorari to quash the leases, a stay and prohibition. The Minister and Shell Canada Ltd. applied to have the application dismissed as having been brought outside of the six month limitation period set out in rule 753.11.

The Alberta Court of Queen's Bench, in a decision reported at (2009), 481 A.R. 270, allowed the application in part. ACFN's application for judicial review was struck except as to the request for a declaration that the Minister was under a continuing duty to consult the ACFN regarding the leases. ACFN appealed.

The Alberta Court of Appeal dismissed the appeal.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limitation period - The Minister of Energy granted certain oil sands leases in November 2006, January 2007 and March 2007 (the leases) - In December 2008, the Athabasca Chipewyan First Nation (ACFN) applied for judicial review, seeking (a) a declaration that the Minister was under a duty to consult ACFN prior to granting the leases and had breached that duty, (b) a declaration that the Minister was under a continuing duty to consult the ACFN regarding the leases, and (c) orders including certiorari to quash the leases, a stay and prohibition - The Minister and Shell Canada Ltd. applied to have the application dismissed as having been brought outside of the six month limitation period in rule 753.11 - The application judge allowed the application in part, striking all of ACFN's judicial review application except the request for a declaration that the Minister was under a continuing duty to consult - The Alberta Court of Appeal dismissed ACFN's appeal - The court rejected ACFN's assertion that the application judge had erred by treating the declaratory and other relief sought by ACFN as indistinguishable from quashing - The application judge held that the first two declarations sought (that the Minister was under a duty to consult regarding the leases and that the Minister had breached that duty) were tied to specific administrative decisions, i.e., the granting of the leases, and that granting the declarations sought would be an attack on the validity of the leases - The application judge applied the correct law - There was no error - See paragraphs 17 to 25.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limitation period - The Minister of Energy granted certain oil sands leases in November 2006, January 2007 and March 2007 (the leases) - In December 2008, the Athabasca Chipewyan First Nation (ACFN) applied for judicial review, seeking (a) a declaration that the Minister was under a duty to consult ACFN prior to granting the leases and had breached that duty, (b) a declaration that the Minister was under a continuing duty to consult the ACFN regarding the leases, and (c) orders including certiorari to quash the leases, a stay and prohibition - The Minister and Shell Canada Ltd. applied to have the application dismissed as having been brought outside of the six month limitation period in rule 753.11 - The application judge allowed the application in part, striking all of ACFN's judicial review application except the request for a declaration that the Minister was under a continuing duty to consult - The Alberta Court of Appeal dismissed ACFN's appeal - The court rejected ACFN's assertion that the application judge had erred by holding that constructive notice (given by electronic means on the day after the leases were granted) had triggered the limitations period - There was no need for the applications judge to consider constructive notice because notice was not required to trigger the limitations period - Rule 753.11 was strictly construed - Unless there was a clear and stated obligation to provide notice of a decision, the six month limitation ran from the decision's date - Limitations law applied to aboriginal constitutional claims in the same way that it applied to other claims - However, even assuming that notice was required to trigger the limitations period, the application judge had not erred in his analysis of constructive notice - The Minister's evidence regarding public notification of the leases placed a positive obligation on ACFN to show that it could not be expected to have known about the leases until sometime within six months of filing its originating notice and that, in fact, it had not known about the leases until then - The application judge had not erred in concluding that the notice provided was sufficient - See paragraphs 26 to 35.

Administrative Law - Topic 5261

Judicial review - Certiorari - Limitation period - General - [See first Administrative Law - Topic 3342 ].

Administrative Law - Topic 5408

Judicial review - Certiorari - Practice - Application - Time for - [See first Administrative Law - Topic 3342 ].

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - [See second Administrative Law - Topic 3342 ].

Limitation of Actions - Topic 1907

Actions - General - Declaratory relief - [See both Administrative Law - Topic 3342 ].

Limitation of Actions - Topic 7584

Actions against the Crown - Applicability of limitation period - Exercise of statutory or other public duty - [See both Administrative Law - Topic 3342 ].

Cases Noticed:

Alberta Union of Provincial Employees v. Alberta et al. (2001), 303 A.R. 1; 273 W.A.C. 1; 2001 ABCA 309, refd to. [para. 3].

Simlote v. Alberta, [1989] A.J. No. 818 (C.A.), refd to. [para. 3].

Lameman et al. v. Canada (Attorney General) et al. (2007), 404 A.R. 349; 394 W.A.C. 349; 66 Alta. L.R.(4th) 243; 2006 ABCA 392; 2007 ABCA 180, revd. [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 292 D.L.R.(4th) 49; 2008 SCC 14, refd to. [para. 3].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 7].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 7].

Babiuk v. Calgary (City) (1992), 133 A.R. 21 (Q.B.), refd to. [para. 20].

AltaLink Management Ltd. v. Edmonton (City) (2005), 381 A.R. 307; 2005 ABQB 333, dist. [para. 21].

Urban Development Institute v. Rockyview No. 44 (Municipal District) (2002), 321 A.R. 253; 8 Alta. L.R.(4th) 273; 2002 ABQB 651, dist. [para. 21].

Telus Communications Inc. et al. v. Opportunity No. 17 (Municipal District) (1998), 235 A.R. 258 (Q.B.), dist. [para. 21].

Dwyer v. College of Physicians and Surgeons (Alta.) (1989), 98 A.R. 81 (Q.B.), dist. [para. 21].

Gitxsan House Chiefs et al. v. British Columbia (Minister of Forests) et al., [2002] B.C.T.C. 1701; 10 B.C.L.R.(4th) 126; 2002 BCSC 1701, dist. [para. 22].

Wii'litswx v. British Columbia (Minister of Forests) et al., [2008] B.C.T.C. Uned. 759; 80 Admin. L.R.(4th) 217; 2008 BCSC 1139, dist. [para. 22].

Wii'litswx v. British Columbia (Minister of Forests) et al., [2008] B.C.T.C. Uned. E52; 88 Admin. L.R.(4th) 109; 2008 BCSC 1620, dist. [para. 22].

West Moberly First Nations v. British Columbia (Minister of Energy, Mines and Petroleum Resources) - see Willson et al. v. British Columbia et al.

Willson et al. v. British Columbia et al., [2010] B.C.T.C. Uned. 359; 6 B.C.L.R.(5th) 94; 2010 BCSC 359, dist. [para. 22].

Papaschase Indian Band No. 136 v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

Lameman et al. v. Canada (Attorney General) (2004), 365 A.R. 1; 2004 ABQB 655, revd. in part (2007), 404 A.R. 349; 394 W.A.C. 349 (C.A.), revd. [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 23].

Johannesson v. Workers' Compensation Board Appeals Commission (Alta.) (1995), 175 A.R. 34 (Q.B.), refd to. [para. 27].

Edmonton (City) v. Braul Gaffney et al. (1999), 313 A.R. 161; 4 M.P.L.R.(3d) 99 (Q.B.), refd to. [para. 27].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 27].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 280 D.L.R.(4th) 506; 2007 NSCA 39, leave to appeal denied (2007), 379 N.R. 393; 267 N.S.R.(2d) 400; 853 A.P.R. 400 (S.C.C.), refd to. [para. 28].

Trosin v. ScotiaMcLeod - see Trosin et al. v. Sikora et al.

Trosin et al. v. Sikora et al. (2005), 376 A.R. 173; 360 W.A.C. 173; 2005 ABCA 410, refd to. [para. 30].

Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649; 401 N.R. 341; 482 A.R. 1; 490 W.A.C. 1; 2010 SCC 19, refd to. [para. 33].

Gayton v. Lacasse (2010), 482 A.R. 179; 490 W.A.C. 179; 2010 ABCA 123, refd to. [para. 33].

Counsel:

R.J.M. Janes, K.M. Brooks, J.L. Biem and J.C. Nelson, for the appellant/applicant;

T.G. Rothwell and S.C. Latimer, for the respondent/respondent, Minister of Energy;

E.B. Mellett, for the respondent/respondent, Shell Canada Ltd.

This appeal was heard on November 5, 2010, by Ritter and Bielby, JJ.A., and Read, J.(ad hoc), of the Alberta Court of Appeal. On January 28, 2011, the court filed the following memorandum of judgment.