Lameman et al. v. Alberta et al., 2013 ABCA 148

• Judge: Watson, Bielby and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 28, 2013
• Citations: 2013 ABCA 148;(2013), 553 A.R. 44

Lameman v. Alta. (2013), 553 A.R. 44; 583 W.A.C. 44 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.003

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 (appellant/defendant) and The Attorney General of Canada (not a party to the appeal/defendant)

(1203-0169-AC)

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 (respondent/defendant) and The Attorney General of Canada (appellant/defendant)

(1203-0170-AC; 2013 ABCA 148)

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

Alberta Court of Appeal

Watson, Bielby and Veldhuis, JJ.A.

April 30, 2013.

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 plaintiffs appealed the pro bono decision.

The Alberta Court of Appeal, in a decision reported at 522 A.R. 140; 544 W.A.C. 140, dismissed the appeal.

The Alberta Court of Queen's Bench, in a decision reported at 537 A.R. 357, struck two paragraphs from the Further Amended Statement of Claim. The court held that the remaining paragraphs of the Statement of Claim would stand. The defendants appealed.

The Alberta Court of Appeal dismissed the appeal.

Indians, Inuit and Métis - 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 - A case management judge 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 - The defendants appealed - The Alberta Court of Appeal dismissed the appeal.

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement of right - Requirement of consultation - [See Indians, Inuit and Métis - 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 37

Actions - Conduct of - General - Case management - 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 case management judge struck two paragraphs and held that the remaining paragraphs would stand - The defendants appealed - The Alberta Court of Appeal stated that "There is no dispute the case management judge applied the correct test as to whether there is a reasonable claim under Rule 3.68(2)(b). She variously referred to the test as being whether it is 'beyond doubt' or 'plain and obvious' that the claim will fail. ... Appellate review of a case management decision will vary depending on whether that decision discloses an error of law. Interpretation of a pleading is a question of law subject to correctness ... Similarly, whether a pleading discloses a cause of action is likewise a question of law reviewable for correctness ... Otherwise, a decision to strike a pleading is owed deference by this Court and will be reviewed for reasonableness ... The test for striking pleadings for being an abuse of process is likewise whether it is plain and obvious the action will fail ... However, reviewing a determination of abuse of process calls for deference and will not be overturned absent palpable and overriding error ... Procedural decisions made during the course of pretrial steps in litigation are likewise afforded deference on appeal ... Generally speaking, discretionary decisions of a chambers judge will be reviewed for reasonableness ... Deference is increased where the decision is made by a case management judge as part of a series of decisions in an ongoing matter ..." - See paragraphs 10 to 13.

Practice - Topic 37

Actions - Conduct of - General - Case management - 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 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 case management judge struck two paragraphs and held that the remaining paragraphs would stand - The defendants appealed - At issue, inter alia, was whether the case management judge should have ordered further particulars in relation to the implicated seven federal projects - The Alberta Court of Appeal rejected the submission - Canada had been advised that the Cold Lake Weapons Range was one of the seven federal projects challenged by the current Statement of Claim - However, it alleged insufficient particulars to adequately prepare to defend the claim in relation to the other six projects - Canada took this position notwithstanding that further particulars had been provided on four previous occasions and it had filed its Statement of Defence when ordered to do so - Canada sought to strike any reference in the claim to these other six projects - During oral argument, its counsel candidly admitted to advancing this application for strategic reasons - If successful, Canada would limit its exposure to only those actions taken in relation to the Cold Lake Weapons Range - Alternately, it sought yet further particulars as to the nature of the remaining six authorizations - The case management judge believed sufficient particulars had been obtained for this purpose for the purposes of filing a Statement of Defence - Case management decisions relating to ordering further particulars were accorded deference and would only be interfered with if unreasonable - Rather than seek particulars after particulars, any need for further information could be better addressed by using the case management process for the purpose for which it was designed - See paragraphs 27 to 33.

Practice - Topic 1922

Pleadings - Particulars - Object or purpose of particulars - For purposes of pleading - [See second Practice - Topic 37 ].

Practice - Topic 1935

Pleadings - Particulars - Bars to granting of order - Where particulars provided are adequate - [See second Practice - Topic 37 ].

Practice - Topic 2226

Pleadings - Striking out pleadings - Grounds - General - [See third Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Indians, Inuit and Métis - Topic 3 and first Practice - Topic 37 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - 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 alleged, inter alia, breach of their Treaty Rights, breach of the honour of the Crown and breach of fiduciary duty - 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 - A case management judge struck only two paragraphs, relating to permits, over 19,000 of which 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 defendants appealed, submitting, inter alia, that the case management judge erred in declining to strike the portions of the current Statement of Claim which made factual allegations relating to the granting of the 19,000 challenged authorizations - The Alberta Court of Appeal rejected the submission - Alberta had not identified which portions should be struck - It did not offer, as was typical, a draft amended version identifying, through highlighting or otherwise, the portions it found offensive on this point, possibly because the same factual allegations which underpinned these now defunct claims also underpinned the surviving ones - The court rejected Canada's submission that the current Statement of Claim, as worded, was a collateral attack on administrative decisions earlier made and from which no application for judicial review was taken and, accordingly, that the claim was frivolous, improper and otherwise an abuse of process - The court relied on TeleZone Inc. v. Canada (Attorney General) (2010 SCC) - The public purposes of judicial review were fundamentally different from those underlying private law claims, and so there was no practical benefit to a two-court procedure for a litigant seeking compensation rather than the reversal of a government decision - That was now the situation with this claim, given the portions struck by the case management judge - Whether a Minister acted under statutory authority so as to preclude compensation for consequent losses was a matter of defence rather than jurisdiction - Where a pleading alleged elements of a private cause of action, a provincial superior court should generally not decline jurisdiction to hear it - The court also rejected Canada's alternate argument that the portions relating to the authorizations should be struck because they rendered the action so large as to be unmanageable - The potential size of an evidentiary pool was an insufficient reason to defeat a cause of action - The plaintiffs were entitled to access to justice uncircumscribed by limits imposed by the scope of Canada's alleged misconduct - See paragraphs 19 to 26.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - 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 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 case management judge struck two paragraphs and held that the remaining paragraphs would stand - The defendants appealed - Alberta submitted, inter alia, that the case management judge erred in failing to strike the portion of the current Statement of Claim seeking a declaration that the defendants had a constitutional right under s 35 of the Constitution Act, 1982 to hunt, trap and fish for "cultural, social and spiritual needs", where the pleadings did not expressly refer to loss occasioned by personal use of fish and meat rather than its sale - It argued that the law did not recognize a treaty claim to harvest for commercial purposes, and pleadings should precisely delineate only legally permissible claims - The Alberta Court of Appeal rejected the submission - The Treaty, as modified by s. 12 of the Natural Resources Transfer Agreement, did not extend the commercial right to hunt, fish or trap to BLCN members - However, the current Statement of Claim did not expressly claim damages arising from infringement to any commercial activity - Alberta's argument was based on the fact that the claim did not expressly disclose this limit, or acknowledge the scope of a potential defence - However, there was no obligation on a plaintiff to acknowledge every possible defence or limitation on a claim in its pleadings - That was the task of the Statement of Defence - Pleadings had to disclose the facts upon which various claims were based but need not include a discourse on the law - This was an issue to be resolved at trial - See paragraphs 34 to 37.

Practice - Topic 2231

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

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See first Practice - Topic 37 and second Practice - Topic 2230 ].

Practice - Topic 2239.4

Pleadings - Striking out pleadings - Grounds - Abuse of process - Collateral attack on administrative decision - [See second Practice - Topic 2230 ].

Practice - Topic 2249

Pleadings - Striking out pleadings - Bars - Issues to be tried - [See third Practice - Topic 2230 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See first Practice - Topic 37 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See first Practice - Topic 37 ].

Cases Noticed:

Cerny v. Canadian Industries Ltd., [1972] 6 W.W.R. 88; 30 D.L.R.(3d) 462 (Alta. C.A.), refd to. [para. 10].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 10].

Horseman v. Horse Lake First Nation (2005), 361 A.R. 287; 339 W.A.C. 287; 2005 ABCA 15, refd to. [para. 10].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 10].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 10].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 10].

Dixon et al. v. Canada (Attorney General) et al., [2012] A.R. Uned. 547; 2012 ABCA 316, refd to. [para. 11].

Mitten v. College of Alberta Psychologists et al. (2010), 487 A.R. 198; 495 W.A.C. 198; 2010 ABCA 159, refd to. [para. 11].

Reece v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 2011 ABCA 238, refd to. [para. 11].

First Mortgage Alberta Fund (V) Inc. et al. v. Boychuk et al. (2002), 312 A.R. 1; 281 W.A.C. 1; 2002 ABCA 194, refd to. [para. 11].

Deloitte & Touche Inc. v. Boychuk - see First Mortgage Alberta Fund (V) Inc. et al.

Torrance v. Alberta. (2010), 477 A.R. 343; 483 W.A.C. 343; 2010 ABCA 88, refd to. [para. 11].

Enron Canada Corp. v. Husky Oil Operations Ltd. (2007), 401 A.R. 291; 391 W.A.C. 291; 2007 ABCA 27, refd to. [para. 12].

Beacon Hill Service (2000) Ltd. v. Esso Petroleum Canada et al. (2012), 536 A.R. 221; 559 W.A.C. 221; 2012 ABCA 269, refd to. [para. 13].

Decock et al. v. Alberta et al. (2000), 255 A.R. 234; 220 W.A.C. 234; 2000 ABCA 122, refd to. [para. 13].

Indian Residential Schools, Re (2001), 286 A.R. 307; 253 W.A.C. 307; 2001 ABCA 216, refd to. [para. 13].

Peterson et al. v. Highwood Distillers Ltd. et al., [2005] A.R. Uned. 295; 47 Alta. L.R.(4th) 225; 2005 ABCA 248, refd to. [para. 13].

Stoddard v. Montague et al. (2006), 412 A.R. 88; 404 W.A.C. 88; 2006 ABCA 109, refd to. [para. 13].

Hill v. Hill Family Trust et al., [2007] A.R. Uned. 355; 2007 ABCA 293, refd to. [para. 13].

Yellowstone Property Consultants Corp. v. Abusalim et al. (2008), 440 A.R. 182; 438 W.A.C. 182; 2008 ABCA 348, refd to. [para. 13].

Ford Credit Canada Ltd. v. Welcome Ford Sales Ltd. et al. (2011), 505 A.R. 146; 522 W.A.C. 146; 2011 ABCA 158, refd to. [para. 13].

Cow Harbour Construction Ltd. et al., Re (2010), 499 A.R. 198; 514 W.A.C. 198; 2010 ABCA 394, refd to. [para. 13].

De Lage Landen Financial Services Canada Inc. v. Royal Bank of Canada - see Cow Harbour Construction Ltd. et al., Re.

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].

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, appld. [para. 23].

Lay v. Lay et al. [2012] A.R. Uned. 534; 2012 ABCA 303, refd to. [para. 31].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 35].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 35].

R. v. Jacko (H.) et al. (2000), 261 A.R. 396; 225 W.A.C. 396; 2000 ABCA 178, refd to. [para. 35].

R. v. Lefthand (2007), 77 Alta. L.R.(4th) 203; 2007 ABCA 206, refd to. [para. 35].

Noonan v. Canadian General Insurance Co. (1986), 59 Nfld. & P.E.I.R. 81; 178 A.P.R. 81 (P.E.I. Gen. Div.), refd to. [para. 36].

Dugal et al. v. Manulife Financial Corp. et al., [2011] O.T.C. Uned. 1764; 2011 ONSC 1764, refd to. [para. 36].

Seascape 2000 Inc. v. Canada (Attorney General) (2009), 292 Nfld. & P.E.I.R. 85; 902 A.P.R. 85 (N.L.T.D.), refd to. [para. 36].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 37].

Lord v. Canada (Attorney General), [2000] 3 C.N.L.R. 69, refd to. [para. 40].

Bellegarde et al. v. Canada (Attorney General), [2003] 1 C.N.L.R. 320; 223 F.T.R. 64; 2002 FCT 1131, affd. (2004), 317 N.R. 67; 235 D.L.R.(4th) 763; 2004 FCA 34, refd to. [para. 40].

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. 40].

Douglas et al. v. Saskatchewan (Minister of Learning), [2006] 4 W.W.R. 193; 267 Sask.R. 78; 2005 SKQB 270, refd to. [para. 40].

Canada (Attorney General) v. Saskatchewan Water Corp. and Souris Basin Development Authority, [1993] 7 W.W.R. 1; 109 Sask.R. 264; 42 W.A.C. 264; 106 D.L.R.(4th) 250 (C.A.), refd to. [para. 40].

Saulteau First Nations et al. v. Canada (Attorney General) et al., [2007] B.C.T.C. Uned. 255; 2007 BCSC 492, refd to. [para. 40].

Chief Allan Apsassin v. Canada (Attorney General) - see Saulteau First Nations et al. v. Canada (Attorney General) et al.

Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al., [2005] B.C.T.C. 345; [2005] 2 C.N.L.R. 138; 2005 BCSC 345, refd to. [para. 40].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [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. 45].

Northwest Territories (Attorney General) et al. v. Fédération Franco-ténoise et al. (2008), 440 A.R. 56; 438 W.A.C. 56; 2008 NWTCA 6, leave to appeal refused (2009), 395 N.R. 398; 474 A.R. 405; 479 W.A.C. 405 (S.C.C.), refd to. [para. 46].

Commission Scolaire Francophone du Yukon No. 23 v. Yukon (Procureure générale), [2011] Yukon Cases Uned. 57; 2011 YKSC 57, refd to. [para. 46].

Sfetkopoulos et al. v. Canada (Attorney General) (2008), 323 F.T.R. 146; 2008 FC 33, affd. (2008), 382 N.R. 71; 2008 FCA 328, leave to appeal refused (2009), 396 N.R. 398; 474 A.R. 402; 479 W.A.C. 402 (S.C.C.), refd to. [para. 47].

Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al., [2005] B.C.T.C. 1712; 51 B.C.L.R.(4th) 133; 2005 BCSC 1712, refd to. [para. 47].

Hupacasath First Nation v. British Columbia (Minister of Forests) - see Ke-Kin-Is-Uqs et al. v. British Columbia (Minister of Forests) et al.

Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation et al., [2007] O.T.C. Uned. 813; 2007 CarswellOnt 2995, additional reasons [2007] O.T.C. Uned. 814 (Sup. Ct.), refd to. [para. 47].

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. 49].

Manitoba Métis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 50].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 51].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 51].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 56].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 57].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 57].

Statutes Noticed:

Alberta Rules of Court - see Rules of Court (Alta.).

Rules of Court (Alta.), rule 3.68(1)(a), rule 3.68(2)(a), rule 3.68(2)(b), rule 3.68(2)(c), rule 3.68(2)(d), rule 3.68(3) [para. 14].

Authors and Works Noticed:

Hogg, Peter W., Monahan, Patrick J., and Wright, Wade K., Liability of the Crown (4th Ed. 2011), p. 51 [para. 41].

Counsel:

D.M. Rosenberg, Q.C., for the respondent;

D.B. Titosky, for the appellant, Her Majesty the Queen in Right of Alberta;

K.A. Kohlman, for the appellant, The Attorney General of Canada.

These appeals were heard on March 28, 2013, by Watson, Bielby and Veldhuis, JJ.A., of the Alberta Court of Appeal. The court delivered the following memorandum of judgment, which was filed at Edmonton, Alberta, on April 30, 2013.