Athabasca Chipewyan First Nation v. Alberta (Minister of Energy) et al., (2009) 481 A.R. 270 (QB)

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 19, 2009
• Citations: (2009), 481 A.R. 270 (QB);2009 ABQB 576

Athabasca Chipewyan First Nation v. Alta. (2009), 481 A.R. 270 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. OC.129

Athabasca Chipewyan First Nation (applicant) v. Minister of Energy, Canadian Costal Resources Ltd., Standard Land Company Inc., and Shell Canada Ltd. (respondents)

(0803 17419; 2009 ABQB 576)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

October 19, 2009.

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 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.

Administrative Law - Topic 3342

Judicial review - 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 set out in rule 753.11 - At issue was whether rule 753.11 applied to the relief sought by ACFN - The Alberta Court of Queen's Bench, having acknowledged that some courts had held that rule 753.11 did not apply in some situations where a party sought a declaration or prohibition, stated that "one must look to the nature and substance of the relief requested, and not merely to whether the relief is framed in the form of a declaration ..." - The requests to quash the leases and for a stay and prohibition fell within rule 753.11 - Regarding the declaratory relief, the court noted that rule 753.11 referred to "an order to set aside a decision or act" - This indicated that the six month limitation period was intended to encompass a broader range of relief than a pure quashing application - To determine whether the relief requested was captured by rule 753.11, the court had to consider whether the relief sought, if granted, would have the effect of challenging the validity of an administrative decision or the authority under which the decision was made - A party could not avoid rule 753.11 by dressing up a request to have a decision or act set aside as a declaration that challenged the validity of an administrative decision - Here, the declarations sought were inextricably bound up with the request for certiorari - The request for declarations that the Minister was under a duty to consult and that the duty had been breached fell within rule 753.11 - The declaration regarding a continuing duty to consult did not fall within rule 753.11 because the declaration sought did not challenge the leases' validity - However, the court did question whether this request was justiciable - See paragraphs 15 to 46.

Administrative Law - Topic 3342

Judicial review - 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 set out in rule 753.11 - The Alberta Court of Queen's Bench allowed the application in part - Rule 753.11 applied to all of the relief sought except for the declaration regarding a continuing duty to consult - There was no explicit statutory duty imposed on the Minister to provide notice to ACFN of its decisions to grant the leases - If there was a common law duty to consult that required the Minister to provide notice to ACFN before the limitation period could begin to run, then the question became whether, on the facts, the notice requirement was met - However, it was unclear how such a duty, if it existed, translated into an obligation to provide ACFN with specific written notice - The Minister had three electronic mechanisms through which notice was provided to interested parties of public offerings and lease agreements - These provided constructive notice - The latest point in time that would trigger the limitation period was the date that notice of the granting of the leases was posted on the electronic Aboriginal Community Link, which was the day after the leases were granted - Therefore, if there was no duty to consult, the limitation period began to run on the day that the leases were granted - If there was a duty to consult, the limitation period began to run on the day after the leases were granted - Either way, the ACFN was out of time to bring most of its judicial review application - The application 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 - See paragraphs 47 to 75.

Administrative Law - Topic 5261

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

Administrative Law - Topic 5408

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

Limitation of Actions - Topic 1907

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

Cases Noticed:

Allied-Signal Inc. v. Dome Petroleum Ltd. et al. (1991), 122 A.R. 321; 81 Alta. L.R.(2d) 307 (Q.B.), revd. (1992), 131 A.R. 134; 25 W.A.C. 134; 3 Alta. L.R.(3d) 155 (C.A.), refd to. [para. 12].

Southland Transportation Ltd. et al. v. Calgary (City) (2008), 437 A.R. 295; 433 W.A.C. 295; 2008 ABCA 321, refd to. [para. 12].

Lameman et al. v. Canada (Attorney General) et al., [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, reving. (2006), 404 A.R. 349; 394 W.A.C. 349; 66 Alta. L.R.(4th) 243; 2006 ABCA 392; 2007 ABCA 180, reving. (2004), 365 A.R. 1; 2004 ABQB 655, refd to. [paras. 13, 23].

Becker v. Director of Employment Standards (Alta.) et al. (2000), 277 A.R. 131; 242 W.A.C. 131; 2000 ABCA 329, refd to. [para. 14].

Urban Development Institute v. Rockyview No. 44 (Municipal District) (2002), 321 A.R. 253; 2002 ABQB 651, refd to. [para. 18].

Babiuk v. Calgary (City) (1992), 133 A.R. 21 (Q.B.), refd to. [para. 19].

Johannesson v. Workers' Compensation Board Appeals Commission (Alta.) (1995), 175 A.R. 34; 32 Alta. L.R.(3d) 373 (Q.B.), refd to. [para. 19].

Dwyer v. College of Physicians and Surgeons (Alta.) (1989), 98 A.R. 81 (Q.B.), refd to. [para. 20].

Boyd et al. v. Alberta et al. (2000), 278 A.R. 341; 2000 ABQB 840, affd. (2002), 299 A.R. 198; 266 W.A.C. 198; 2002 ABCA 34, refd to. [para. 21].

Krawek v. Workers' Compensation Board (Alta.) (1998), 233 A.R. 110; 15 Admin. L.R.(3d) 98; 1998 ABQB 886, refd to. [para. 1].

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. 21].

Simlote v. Alberta (1989), 69 Alta. L.R.(2d) 401 (C.A.), leave to appeal refused [1989] S.C.C.A. No. 407, refd to. [para. 22].

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 42].

Brown v. Alberta - see Brown v. Canada (Attorney General) et al.

Brown v. Canada (Attorney General) et al. (1999), 244 A.R. 86; 209 W.A.C. 86; 1999 ABCA 256, refd to. [para. 42].

Heller v. Greater Vancouver (Regional District) (1992), 17 B.C.A.C. 1; 29 W.A.C. 1; 94 D.L.R.(4th) 718 (C.A.), leave to appeal refused [1993] 2 S.C.R. viii; 152 N.R. 239; 32 B.C.A.C. 79; 53 W.A.C. 79, refd to. [para. 43].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 44].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 44].

Edmonton (City) v. Braul Gaffney et al. (1999), 313 A.R. 161; 1999 ABQB 649, refd to. [para. 51].

Edmonton (City) v. L.A. Ventures Inc. - see Edmonton (City) v. Braul Gaffney et al.

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, leave to appeal refused (2007), 379 N.R. 393; 267 N.S.R.(2d) 400; 853 A.P.R. 400 (S.C.C.), refd to. [para. 54].

Newman v. Workplace Health Safety and Compensation Commission (Nfld. and Lab.) (2002), 208 Nfld. & P.E.I.R. 25; 624 A.P.R. 25; 2001 NFCA 67, refd to. [para. 55].

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. 66].

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. 68].

Statutes Noticed:

Rules of Court (Alta.), rule 753.11 [para. 15].

Authors and Works Noticed:

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (5th Ed. 2009), pp. 634, 638 [para. 29]; 643 [para. 30]; 755 [para. 32]; 756 [para. 33]; 757 [para. 34]; 759, 760 [para. 42].

Counsel:

Robert J.K. Janes, Karey Brooks and Jenny Biem (Janes, Freedman, Kyle Law Corporation), for the applicant/respondent, Athabasca Chipewyan First Nation;

Thomas G. Rothwell and Stephanie Latimer (Alberta Justice-Aboriginal Law), for the respondent/applicant, Minister of Energy;

Bruce E. Mellett (Bennett Jones LLP), for the respondent/applicant, Shell Canada.

This application was heard on September 1-3, 2009, by Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 19, 2009.