Lameman et al. v. Alberta et al., 2012 ABQB 195

• Judge: Browne, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Wednesday March 28, 2012
• Citations: 2012 ABQB 195;(2012), 537 A.R. 357 (QB)

Lameman v. Alta. (2012), 537 A.R. 357 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AP.019

Alphonse Lameman on His Own Behalf and on Behalf of All Other Beaver Lake Cree Nation Beneficiaries of Treaty No. 6, and Beaver Lake Cree Nation (respondents/plaintiffs) v. Her Majesty the Queen in Right of the Province of Alberta and the Attorney General of Canada (applicants/defendants)

(0803 06718; 2012 ABQB 195)

Indexed As: Lameman et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Browne, J.

March 28, 2012.

Summary:

The defendants brought applications to strike under rule 129 of the old Rules of Court. The plaintiffs sought an adjournment of the applications to strike, based on their impecuniosity.

The Alberta Court of Queen's Bench, in a decision reported at [2011] A.R. Uned. 79, granted the adjournment. The plaintiffs applied on behalf of certain lawyers from Tooks Chambers, UK ("Tooks barristers") for a right of audience to assist the plaintiffs. They claimed to be impecunious and unable to prosecute the case without substantial pro bono assistance, which the Tooks barristers had agreed to provide.

The Alberta Court of Queen's Bench, in a decision reported at 521 A.R. 99, dismissed the application. The defendants sought costs arising out of the adjournment of the applications to strike the plaintiffs' pleadings.

The Alberta Court of Queen's Bench, in a decision reported at 521 A.R. 112, awarded the defendants costs on an enhanced scale (Schedule C, Column III), plus all the disbursements the defendants had incurred in preparing and filing their briefs in anticipation of the applications to strike and for the adjournment application, payable immediately. The plaintiffs sought leave to appeal the costs order.

The Alberta Court of Queen's Bench, in a decision reported at 521 A.R. 121, dismissed the application.

The Alberta Court of Queen's Bench struck two paragraphs from the Further Amended Statement of Claim. The court held that the remaining paragraphs of the Statement of Claim would stand.

Indians, Inuit and Metis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The plaintiffs, members of the Beaver Lake Cree Nation Indian Band (BLCN), were beneficiaries of Treaty 6 Rights - Under Treaty 6, their ancestors ceded lands in what was now Alberta in exchange for reserves and other benefits including the right to hunt and fish throughout the tract surrendered - The plaintiffs sued Canada and Alberta (the defendants) - Their claim related to lands within Alberta (Core Traditional Territory) but beyond the BLCN Reserve area in which they had traditionally hunted, trapped and fished and continue to do so today - The plaintiffs claimed that the defendants had permitted oil and gas, forestry, mining and other activities within the Core Traditional Territory and those development activities had adversely impacted the exercise of BLCN's Treaty 6 Rights therein - The plaintiffs asserted that an obligation arose from Treaty 6 to manage the Cumulative Effects of developments - The plaintiffs alleged a systemic problem resulting from the Crown's overall failure to manage the "taking up" of lands in the Core Traditional Territory, including a systemic failure to consult and accommodate BLCN respecting issues arising from developments' Cumulative Effects on the exercise of the Treaty Rights - The plaintiffs alleged, inter alia, breach of their Treaty Rights, breach of the honour of the Crown, breach of a fiduciary duty in relation to the developments' Cumulative Effects, and that the Cumulative Effects had adversely affected, would adversely affect, or were likely to adversely affect wildlife and its habitat and access to lands, and consequently the plaintiffs' ability to meaningfully exercise their Treaty Rights - In addition to damages and/or equitable compensation, the plaintiffs claimed: (a) a declaration that they had a right under s. 35 of the Constitution Act, 1982, pursuant to the Treaty and the Natural Resources Transfer Act, to hunt, trap and fish certain wildlife species for subsistence, and for cultural, social and spiritual needs; (b) a declaration that the developments' Cumulative Effects unjustifiably infringed on the Treaty Rights; (b.1) a declaration that the defendants, or either of them, had a duty to consult with and, if indicated, accommodate Beaver Lake respecting the developments' Cumulative Effects on the Treaty Rights (Cumulative Effects Consultation), under the court's supervision; (b.2) a declaration that the defendants, or either of them, had a duty to address any or all of the following issues in a Cumulative Effects Consultation with Beaver Lake, with the goal of restoring and/or securing the meaningful exercise of the Treaty Rights in perpetuity: (i) the appropriate exercise of the management duties; (ii) the appropriate process for addressing the infringements; (iii) the appropriate way to address some or all of the failures listed at certain paragraphs of the Claim; (iv) revocation of authorizations for the developments or limitations and management of the effects of the developments, which unjustifiably infringed the Treaty Rights; (v) restoration of the Core Traditional Territory; (vi) appropriate funding for Beaver Lake to participate in Cumulative Effects Consultation and related processes; and (vii) any other issues identified by the court; (c) a declaration that the defendants, or either of them, had a duty to revoke the authorizations for, or to otherwise limit and manage the effects of, the developments which unjustifiably infringed the Treaty Rights; and (d) an interim, interlocutory and/or permanent injunction against the defendants, or either of them, restraining them from acting unconstitutionally respecting the developments, and/or restraining them from acting unconstitutionally by authorizing any further developments or activities in the Core Traditional Territory, until the defendants, or either of them, had completed the Cumulative Effects Consultation or a similar process - The defendants applied to strike some or all of the plaintiffs' Further Amended Statement of Claim arguing that the pleadings failed to disclose a cause of action against each of them and were frivolous, vexatious or an abuse of process - The Alberta Court of Queen's Bench struck only paragraphs b.2(iv) and (c) - Over 19,000 permits had been authorized - The court had no jurisdiction to reconsider the permits with a view to making a declaration that some of them should not have been authorized - The plaintiffs were out of time for any form of judicial review of specific listed authorizations - In any event, in terms of the action's focus, nothing would be gained by allowing the plaintiffs to pursue such a declaration - The court rejected Canada's argument that it was not a proper party - The claim raised issues with respect to Canada's well-established fiduciary duty with respect to the Treaty process - It was not plain and obvious at this point that the prayer for injunctive relief, or for declarations which might amount to claims for an injunctive type relief, against the Crown were doomed to fail.

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement of right - Requirement of consultation - [See Indians, Inuit and Metis - Topic 3].

Indians, Inuit and Métis - Topic 6015

Aboriginal rights - General - Claim for - [See Indians, Inuit and Métis - Topic 3].

Injunctions - Topic 789

Granting an injunction - Persons against whom an injunction will be granted - Crown - General - [See Indians, Inuit and Métis - Topic 3].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Indians, Inuit and Métis - Topic 3].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - [See Indians, Inuit and Métis - Topic 3].

Cases Noticed:

R. v. Lefthand - see R. v. Eagle Child; R. v. Lefthand.

R. v. Eagle Child; R. v. Lefthand, 2007 ABCA 206, leave to appeal refused (2008), 385 N.R. 392; 385 N.R. 393 (S.C.C.), refd to. [para. 16].

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. 21].

Smith et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., [2002] F.T.R. Uned. 716; 2002 FCT 1090, refd to. [para. 22].

Xeni Gwet'in First Nations v. British Columbia - see William v. British Columbia et al.

Nemaiah Valley Indian Band v. Riverside Forest Products Ltd. - see William v. British Columbia et al.

William v. British Columbia et al., [2002] B.C.T.C. 1199; [2002] 4 C.N.L.R. 356; [2002] 10 W.W.R. 486; 2002 BCSC 1199, refd to. [para. 22].

Keewatin et al. v. Ontario (Minister of Natural Resources) et al., [2011] O.T.C. Uned. 4801; 2011 ONSC 4801, refd to. [para. 35].

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. 35].

TeleZone Inc. v. Canada (Attorney General) (2010), 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 38].

McArthur v. Canada (Attorney General) (2010), 410 N.R. 55; 273 O.A.C. 55; 2010 SCC 63, refd to. [para. 38].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 41].

William et al. v. British Columbia et al., [2002] B.C.T.C. Uned. 745; 2002 BCSC 1904, refd to. [para. 41].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 43].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 43].

Ahousaht Indian Band et al. v. Canada (Attorney General) et al. (2011), 305 B.C.A.C. 191; 515 W.A.C. 191; 2011 BCCA 237, refd to. [para. 43].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 43].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 43].

Lord v. Canada (Attorney General), [2000] 3 C.N.L.R. 69 (Que. C.A.), refd to. [para. 43].

Chippewas of Sarnia Band v. Canada (Attorney General) et al. (2000), 139 O.A.C. 201; 51 O.R.(3d) 641 (C.A.), refd to. [para. 43].

Van Mulligen v. Saskatchewan Housing Corp., Saskatchewan, Devine and Hardy (1982), 23 Sask.R. 66 (Q.B.), refd to. [para. 44].

Snuneymuxw First Nation v. British Columbia et al., [2004] B.C.T.C. 205; 26 B.C.L.R.(4th) 360; 2004 BCSC 205, refd to. [para. 44].

Cerny v. Canadian Industries Ltd., [1972] 6 W.W.R. 88; 30 D.L.R.(3d) 462 (Alta. C.A.), refd to. [para. 48].

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 48].

Tsawout Indian Band v. Saanichton Marina Ltd. (1989), 57 D.L.R.(4th) 161 (B.C.C.A.), refd to. [para. 74].

Siska Indian Band v. British Columbia (Minister of Forests), [1998] B.C.T.C. Uned. 943; 62 B.C.L.R.(3d) 133 (S.C.), refd to. [para. 74].

Chamberlin v. British Columbia (Minister of Agriculture and Lands), [2010] B.C.T.C. Uned. 1699; 2010 BCSC 1699, refd to. [para. 78].

Saskatchewan First Nations and Indian Bands v Canada - see Bellegarde et al. v. Canada (Attorney General).

Bellegarde et al. v. Canada (Attorney General) (2002), 223 F.T.R. 64; 2002 FCT 1131, affd. (2004), 317 N.R. 67; 2004 FCA 34, refd to. [para. 78].

Tzeachten First Nation v Canada (Attorney General) - see Hall et al. v. Canada (Attorney General) et al.

Hall et al. v. Canada (Attorney General) et al. (2007), 237 B.C.A.C. 292; 392 W.A.C. 292; 281 D.L.R.(4th) 752; 2007 BCCA 133, refd to. [para. 78].

Authors and Works Noticed:

Hogg, Peter W., Liability of the Crown (2nd Ed. 1989), p. 26 [para. 43].

Hogg, Peter W., and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), § 2.4 [para. 76].

Counsel:

Jack Woodward and Pat Hutchings (Woodward & Company); David M. Rosenberg, Q.C. (Rosenberg & Rosenberg), for the plaintiffs;

Everett L. Bunnell, Q.C., and Aaron Stephenson (Norton Rose Canada LLP); Neil Dobson and Douglas Titosky (Alberta Justice), for the defendant, Her Majesty the Queen in Right of the Province of Alberta;

Kathleen Kohlman and Soniya Bhasin (Department of Justice Canada), for the defendant, Attorney General of Canada.

This application was heard on January 30 and 31 and February 1 and 2, 2012, by Browne, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on March 28, 2012.