Chevron Canada Resources v. Canada (Executive Director of Indian Oil and Gas Canada), 2011 ABQB 497

Court of Queen ’ s Bench of Alberta Citation: Chevron Canada Resources v.

Canada (Executive Director of Indian Oil and Gas Canada), 2011 ABQB 497 Date: 20110805 Docket: 9701 07434 Registry: Calgary Between: Chevron Canada Resources, a Partnership of Chevron Canada Resources Limited, Chevron Development Company Limited, Cornwallis Arctic Oils Limited and Crest Exploration Limited Plaintiffs - and - Her Majesty the Queen in Right of Canada, represented by the Executive Director of Indian Oil and Gas Canada (formerly known as the Manager of Indian Minerals), the Ermineskin Indian Band, the Louis Bull Indian Band, the Montana Indian Band and the Samson Indian Band Defendants - and - Her Majesty the Queen in Right of Canada, the Ermineskin Indian Band, the Louis Bull Indian Band, the Montana Indian Band and the Samson Indian Band Third Parties AND BETWEEN: The Samson Indian Band Plaintiff by Counterclaim (Defendant)

- and - Chevron Canada Resources, a Partnership of Chevron Canada Resources Limited, Chevron Development Company Limited, Cornwallis Arctic Oils Limited and Crest Exploration Limited Defendants to Counterclaim (Plaintiffs) - and - Her Majesty the Queen in Right of Canada, represented by the Executive Director of Indian Oil and Gas Canada (formerly known as the Manager of Indian Minerals) (Defendant to Counterclaim) (Defendant) - and - Amoco Canada Petroleum Company, Amoco Canada Resources Ltd., Amoco Canada Resources Company, Amoco Production Company, Devon Energy Canada Corporation, Fletcher Challenge Energy Canada Inc., Her Majesty the Queen in Right of Canada represented by the Executive Director of Indian Oil and Gas Canada (formerly known as the Manager of Indian Minerals), High Plains Energy Inc., Imperial Oil Limited, Imperial Oil Resources a limited partnership, by its general partners Imperial Oil Resources Limited and Imperial Oil Resources Ventures Limited, Imperial Oil Resources Limited, Imperial Oil Resources Ventures Limited, Kerr-McGee Canada Ltd., Kerr-McGee Corporation, McColl-Frontenac Inc., Plainsman Exploration Ltd., Rigel Oil & Gas Ltd., Suncor Energy Inc., Total Petroleum (North America) Ltd. and Union Pacific Resources Inc.

Third Parties to Counterclaim AND BETWEEN: The Louis Bull Indian Band and the Montana Indian Band Plaintiffs by Counterclaim (Defendants) - and - Chevron Canada Resources, a Partnership of Chevron Canada Resources Limited, Chevron Development Company Limited, Cornwallis Arctic Oils Limited and Crest Exploration Limited Defendants to Counterclaim

(Plaintiffs) - and - Her Majesty the Queen in Right of Canada, represented by the Executive Director of Indian Oil and Gas Canada (formerly known as the Manager of Indian Minerals) (Defendant to Counterclaim) - and - Amoco Canada Petroleum Company, Amoco Canada Resources Ltd., Amoco Canada Resources Company, Amoco Production Company, Devon Energy Canada Corporation, Fletcher Challenge Energy Canada Inc., Her Majesty the Queen in Right of Canada represented by the Executive Director of Indian Oil and Gas Canada (formerly known as the Manager of Indian Minerals), High Plains Energy Inc., Imperial Oil Limited, Imperial Oil Resources a limited partnership, by its general partners Imperial Oil Resources Limited and Imperial Oil Resources Ventures Limited, Imperial Oil Resources Limited, Imperial Oil Resources Ventures Limited, Kerr-McGee Canada Ltd., Kerr-McGee Corporation, McColl-Frontenac Inc., Plainsman Exploration Ltd., Rigel Oil & Gas Ltd., Suncor Energy Inc., Total Petroleum (North America) Ltd. and Union Pacific Resources Inc.

Third Parties to Counterclaim AND BETWEEN: Her Majesty the Queen in Right of Canada, represented by the Executive Director of Indian Oil and Gas Canada (formerly known as the Manager of Indian Minerals) (Plaintiff by Counterclaim) (Defendant) - and - Chevron Canada Resources, a Partnership of Chevron Canada Resources Limited, Chevron Development Company Limited, Cornwallis Arctic Oils Limited and Crest Exploration Limited Defendants to Counterclaim (Plaintiffs) _______________________________________________________

Memorandum of Decision of the Honourable Madam Justice B.E. Romaine _______________________________________________________ Introduction [ 1 ] In earlier decisions, I stayed claims made by the Louis Bull, Montana and Samson Indian Bands against the Crown and certain portions of their claims against Chevron et al pending the outcome of a trial in the Federal Court of Canada (the “ Buffalo trial ” ), which involves, among other issues, the same lease of minerals as in this litigation.

Chevron et al propose to continue their main claim as Plaintiffs for overpayment of royalties, and the Bands apply for a stay of that claim. Louis Bull and Montana ask that such a stay remain in force until certain royalty underpayment issues are determined in the Buffalo trial. Samson asks that a stay remain in force until final judgment is rendered in the Buffalo trial, including the exhaustion of all avenues of appeal. Ermineskin applies for a stay equivalent to whatever stay is ordered for the other Bands.

The Crown takes no position other than to urge the Court to maintain the stays previously imposed on the Bands ’ counter-claims and defences. Facts [ 2 ] As set out in previous decisions, this litigation has a lengthy and complicated history. [ 3 ] Chevron Canada Resources and Her Majesty the Queen in Right of Canada are parties to an oil and gas lease. The other four parties involved are the Ermineskin Indian Band, the Louis Bull Indian Band, the Montana Indian Band, and the Samson Indian Band.

The lease and the governing legislation combine to required Chevron to pay royalties to the Crown for the Bands. [ 4 ] Chevron claims that it mistakenly made royalty overpayments and underpayments pursuant to the lease from April 1991 to October 1996. On May 23, 1997, Chevron filed a statement of claim for the “ Net Royalty Overpayment ” against the Crown and the Bands as co-defendants, claiming against them jointly and severally. Chevron alleges that the Net Royalty Overpayment was made to the Crown on behalf of the Bands. The main claim is based on unjust enrichment.

Alternatively, Chevron claims that Chevron and the Crown, on behalf of the Bands, were each mistaken in the implementation of the lease, with the direct result of the Net Royalty Overpayment. In the second alternative, Chevron pleads for relief under s.10 of the Judicature Act , R.S.A. 1980, c. J-1, stating it would be unjust and inequitable for the defendants to retain the funds. [ 5 ] The Bands filed Statements of Defence, and Samson, Louis Bull and Montana filed counter-claims and third party notices on the basis that the lease pursuant to which the royalty payments were made is invalid.

They therefore claim damages for trespass and unlawful removal of oil and gas, in addition to damages for breaches of fiduciary duty and trust and equitable obligations. The counter- claims exceed $150 million. Ermineskin filed no counter-claim or third party notice. [ 6 ] In 1989, Samson instituted proceedings against the Crown and certain federal Ministries in the Federal Court of Canada. In 1992, Ermineskin instituted similar proceedings. These two actions proceeded together from the mid-1990s, and are in the process of being tried together in phases in a trial that commenced on May 1, 2000.

This trial is referred to by all the parties as the “ Buffalo trial. ” Louis Bull and Montana have initiated similar proceedings in the Federal Court but these proceedings have sat dormant during the Buffalo trial. [ 7 ] On January 21, 2005, I stayed certain duplicative and contrary allegations against the Crown filed by the Samson, Louis Bull and Montana Bands in this Court pursuant to Rule 129(1) (

b) and (

d) of the Rules of Court pending a decision on these allegations in Federal Court, on the basis that it would be vexatious and an abuse of the Court ’ s process to allow them to continue ( “ Chevron #2 ” ). [1]

[8] On December 29, 2006, I stayed certain portions of the Band’s claims, characterized as the Lease Invalidity and RoyaltyUnderpayment Claims, as set out in the statements of defence, counter-claims and third party notices of Samson, Louis Bull and Montana (“Chevron #3”).[2] As a result, the main defences put forward by the Bands to Chevron’s overpayment claim that remain unstayed areestoppel and reliance. [9] On November 30, 2005, Teitelbaum, J. of the Federal Court issued reasons for judgment dismissing the actions by Ermineskin and Samson against the Crown in what is referred to as phase one and phase two of the Buffalo trial.[3] The decision in phase two, the “Money Management Phase” was appealed, first to the Federal Court of Appeal[4] and then to the Supreme Court of Canada.[5] The appeals were all dismissed.

Issues [10] In the appeal of Chevron #3 to the Alberta Court of Appeal, Samson argued that it would be “manifestly unjust” to allowChevron to proceed with its royalty overpayment claim while what it characterized as a set-off claim for royalty underpayments was stayed: in short, “that the appealed provisions preclude it from making full defence to Chevron’s claims”.[6] The Court of Appealcommented at para. 7 of its decision that “(i)t should be obvious that the lease invalidity and the royalty underpayment claims cannot bepermitted to go forward for adjudication both in the Court of Queen’s Bench and the Federal Court of Canada”.

The Court noted that thestay imposed in Chevron #3 did not preclude future case management directions that would prevent injustices. Thus comes theseapplications. [11] The Bands rely primarily on the argument that allowing the Chevron overpayment claim to proceed would be onerouslyprejudicial to them. They raise the following specific issues: 1. Samson submits that the stayed defences and counterclaims go to the root of, or are inextricably linked to, the proper and finalresolution of the allegations raised in this litigation.

This assumes that these stayed claims will remain available to Samson in thislitigation after the Buffalo trial. Thus, the issue is whether the Lease Invalidity Claims and the Royalty Underpayment Claims are stillavailable to the Bands in this litigation. 2. Samson submits that allowing Chevron to proceed while the stay remains in effect is akin to a

summary trial. 3. Samson submits that allowing Chevron to proceed while the stay remains in effect will fetter Samson’s right to full discoveries. 4. Samson submits that a stay of Chevron’s overpayment claim will not prejudice Chevron. 5. Louis Bull and Montana submit that it would be unjust and unfair to stay their set-off defence (arising from the stayed RoyaltyUnderpayment Claim) pending a decision in the Buffalo trial but allow Chevron to proceed with its overpayment claim. Analysis A. General Principles [12] Chevron has the right to proceed with its claim unless I am satisfied that it should be stayed pursuant to Rule 129(1)(

c) and(

d) as being prejudicial to the fair trial of the action or an abuse of the court’s process, or pursuant to the more general grounds of fairnessand prejudice alleged by the Bands. The Bands in seeking a stay must establish that the continuance of the Chevron claim would beunjust to them and that a stay would not cause an injustice to Chevron: Province of Alberta v. Alberta Union of Provincial Employees(1984), 1984 ABCA 130 , 53 A.R 277 (C.A.) at para. 13. The Bands bear the burden of proof.

B. Are the Lease Invalidity Claims and the Royalty Underpayment Claims still available as potential defences and counter-claim to the Bands? [ 13 ] The Bands submit that, without a stay, they would be deprived of certain defences that are “ inextricably linked ” to the Chevron claim. In particular, they submit that their inability to pursue the stayed Lease Invalidity Claims in defence of the Chevron claim is prejudicial and precludes a fair trial.

The first question to be determined, therefore, is whether these claims would still be available to the Bands in any event after the stay is lifted. [ 14 ] In Ermineskin Indian Band v. Canada , the appeal to the Supreme Court on phase two of the Buffalo trial, Rothstein, J. made the following comments and determinations relevant to this application:

a) The primary issue before the Court was whether the Crown was obligated as a fiduciary to invest royalties it was holding on behalf of the Bands. If not, the issue was whether the Crown nevertheless breached its fiduciary obligations in the way it calculated and paid interest on the royalties: para. 20

b) The Bands submitted before the Court that the fiduciary relationship between the Crown and the Bands arose out of Treaty No. 6, the Surrenders, the Indian Oil and Gas Act, R.S.C. 1985, c. I-7 , the common law and the Indian Act, R.S.C. 1985, c. I-5 : para. 45. The Bands thus submitted at the Supreme Court level by at least implication that the Treaty and the Surrender at issue in this litigation are valid.

c) The Court found that if Treaty No. 6 constituted the basis for the Crown ’ s fiduciary obligation to the Bands, it would not obligate the Crown to invest the royalties as submitted by the Band: para. 67.

d) The Crown ’ s fiduciary obligations to the Bands with respect to the granting of rights to others to exploit the mineral resources of the Bands (i.e. leases) and the way in which the royalties received under the leases were handled arise from the Surrenders: para. 70. Implicit in this is a finding that the Surrenders, including the Surrender at issue in this litigation, are valid.

e) The relationship between the Crown and the Bands arising from the Surrenders is ... a fiduciary relationship that is trust like in nature ... The Crown may only grant rights over minerals that are most conducive to the welfare of the bands, and will hold the proceeds of the granting of those rights on behalf of the bands. (para. 74)

f) Legislation may limit the discretion and actions of a fiduciary (para. 75), and in this case, it did. The Crown was not empowered by any relevant legislation to invest Indian moneys as suggested by the Bands, and in fact relevant legislation limits the Crown ’ s fiduciary duties to the Bands with respect to their royalties: paras. 79-123.

g) The Crown did not breach its fiduciary obligations in its adoption of methods of paying interest to the Bands from moneys received as royalties: para. 149.

h) The Crown was not unjustly enriched by making use of the Bands ’ royalties and paying the rate of interest that it did: para. 184. [ 15 ] The decision of the Supreme Court thus forecloses any further litigation on the issue of whether the Surrender is invalid, by reason of issue estoppel. [7] The decision, however, does not deal in a conclusive way with the issue of the validity of the lease.

The Lease Invalidity Claims stayed in Chevron #3 include allegations that there was non-compliance in the granting of the lease, renewals and continuances of the lease at various times between 1950 and 1986. [ 16 ] As I indicated at para. 22 of Chevron #3, the Teitelbaum decision (and subsequently the Federal Court of Appeal decision and the Supreme Court appeal) did not make specific findings with respect to the lease, as lease issues were to be dealt with in a later phase of the Buffalo trial. However, in large part, the evidence and argument that has been presented so far in the Buffalo trial on the

issue of leases, including the lease at issue here, has proceeded on the basis that the original leases were valid, although there are allegations that replacement leases and successor leases may not be valid because of the Crown ’ s lack of jurisdiction to issue them. However, in seeking to assert a breach of fiduciary duty by the Crown in the Buffalo trial, the Bands have by necessary implication affirmed the Crown ’ s leasing of oil and gas and other minerals to third party lessees.

It remains the case that Samson seeks to defend in the action before this Court on the basis that the lease is invalid either because the Surrender is invalid (which defence is now no longer available) or because it expired on its terms and was not renewed. [ 17 ] In Chevron #3, I considered whether the doctrine of election precluded the Bands from challenging the validity of both or either of the Surrender and the lease.

I found in that respect that the litigation before this Court is not a case of the Bands choosing alternative remedies, but of attempting to pursue inconsistent rights, thus giving rise to the doctrine of election.

I found that the Bands, having elected to treat the leases as valid for the purposes of seeking damages against the Crown in the Buffalo trial, cannot in this Court, having made an election to assert these in personam rights, purport to attack the lease and advance an in rem claim against the Crown and Chevron : para. 19 of Chevron #3. [ 18 ] As noted by Chevron , this reasoning finds ample support in Samson ’ s pleadings, which are rife with allegations that, pursuant to the Surrender, the Crown granted leases to various oil and gas companies, and in doing so, breached its fiduciary obligations in respect of the “ negotiation, establishment, imposition and prescription ” of the terms of the leases, particularly with respect to the royalty rate.

I commented in Chevron #3 that, while what will be found by the Federal Court in the Buffalo trial with respect to the validity of leases in general and this lease in particular is still speculative, given that the issue of the validity of the Surrender, the question of the validity of the lease, the validity of replacement successor leases and the Crown ’ s administration of Samson ’ s interest in oil and gas royalties collected under the lease are all so intertwined and complex, it would raise serious problems to stay issues relating to the Surrender by allow issues relating to the lease to continue.

I further noted that these issues are too closely linked to be easily separated, and the outcome on one of them could and may well have a significant effect on the others. These comments were made in response to the Samson argument that it would try to ensure a decision in the Buffalo trial that would not foreclose the issue of the validity of the Surrender.

It is clear that if such attempt was made, it failed. [ 19 ] An attempt to ensure a decision that would not foreclose the issue of the initial validity of the lease would also likely fail, given that such initial validity is a necessary part of the election to seek relief against the Crown for imprudent negotiation and mismanagement of the leases.

It also appears, given the amount claimed against the Crown for lease mismanagement in the Buffalo trial, that the claim assumes that the leases were continuously valid. [ 20 ] The Crown, while taking no position on the applications, nevertheless submits that the validity of leases is not an issue in the Buffalo trial, pointing to excerpts from the Samson ’ s Amended Statement of Claim that clearly imply that the issue is whether the Crown breached its obligations with respect to the management of the leases. [ 21 ] Chevron submits that the decision in the Buffalo trial will be entirely dispositive of the issue of the validity of the lease, one way or another.

It points out that the Bands cannot recover both from the Crown for mismanaging leases that had expired or were improperly renewed and from Chevron on the same basis. [ 22 ] Nevertheless, given the great complexity of the litigation both in the Buffalo trial and in this action, I cannot say with absolute certainty that a residual Lease Invalidity Claim, not barred by election, issue estoppel or the principle of double recovery, will not survive a decision in the Buffalo trial. [ 23 ] The stayed counter-claim of trespass arises as a consequence of the issue of the validity of the lease.

Thus, the same arguments with respect to election apply to this counter-claim. For the first time in this application, the Bands suggest that a trespass action may somehow lie arising from the difference in dates between the execution of the lease and its effective date. That argument would surely also have to be made in the Buffalo trial.

If the Crown is liable in personam for breaches of fiduciary duty with respect to the lease, including in this respect, the Bands cannot also claim in this action that Chevron, a third party who for value and without notice negotiated the lease, trespassed and is liable for damages. [ 24 ] The case for election is even more persuasive with respect to the Royalty Underpayment Claims. The Bands ’ claim against the Crown in the Buffalo action for compensation relates to mismanagement that allowed the leases to pay less than an appropriate amount in royalties.

If the Bands are successful under this heading in the Buffalo action, they cannot collect duplicative damages from Chevron. If they are not, it would have to be on the basis that the Crown did not allow Chevron to pay royalties on the basis of improper

royalty calculation formulae or through unfair pricing or improper deductions. The Buffalo trial will thus be completely dispositive ofthis duplicative issue. Res judicata will apply to the parties and their privies: Argentia Beach (Summer Village) v. Warshawski andConroy (1990), 1990 ABCA 100 , 105 A.R. 35 (C.A.). [25] However, the mere possibility of a residual Lease Invalidity Claim does not require the Chevron overpayment claim to becompletely stayed, given that Chevron has proposed an alternative that would satisfy all these concerns.

Chevron’s royalty overpaymentclaim can be allowed to proceed through discoveries, undertakings and document production to the point of entry for trial on the issuesthat have not been stayed, and any remaining concerns that have not been resolved by proceedings in the Buffalo trial can be revisitedprior to actual trial. C. Akin to a

Summary Trial [26] In this argument, Samson relies heavily on comments in my decision of June 21, 2001 which dismissed Chevron’s application to proceed by way of

summary trial solely against the Crown (“Chevron #1”).[8] Chevron does not now seek to proceedagainst a single defendant, as it did at that early stage of the litigation, and the applications before me now are distinguishable on thatbasis. Events have unfolded over the last ten years in the Buffalo trial that have clarified the nature and scope of that litigation and thatgave rise to issues of election, issue estoppel and duplicative claims. The argument that suggests that Chevron proceeding with its mainclaim is similar to a

summary trial again assumes that all of the stayed defences and counter-claims will continue to be available to theBands, even after the resolution of certain issues in the Buffalo trial, which will likely not be the case. [27] The pursuit of Chevron’s overpayment claim in the manner suggested is not akin to a

summary trial, particularly since theissue of prejudice will be re-considered prior to the actual trial, with updated information on the progress of the Buffalo trial. D. Right to Full Discovery [28] Samson’s right to discovery will depend upon whether any of the stayed counter-claims and defences will remain available toit after a decision on the leases is made in the Buffalo trial. As noted previously, some of those counter-claims and defences have alreadybeen foreclosed, and it is still speculative as to whether any will remain open to the Bands.

Given the proposed solution of proceedingonly to the point of readiness for trial, any prejudice to the Bands arising from their inability to pursue a residual issue can be alleviatedby allowing supplementary disclosure and discovery on such surviving issue prior to trial. E. No Prejudice to Chevron [29] Samson submits that, if the Court must balance the potential prejudice that would be suffered by the Bands and by Chevron,the balance of convenience is in favour of the Bands since Chevron should bear the burden of its own inadvertence in overpayingroyalties.

Samson also submits that, since Chevron took the initiative in applying for a stay, it should be bound by the consequence ofthat choice, being a stay of its overpayment claim. [30] A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the right to prosecute its action: Provinceof Alberta, supra, at para. 13. However, an examination of potential prejudice does not in any event tip the scales in favour of a stay ofChevron’s claim. [31] Chevron raises the glacial pace of the Buffalo trial by the litigants.

It notes that, despite the release of the Supreme Courtdecision in 2009 on the first two phases of the Buffalo trial, the parties are moving slowly, or not at all, in pursuing the next phase.Chevron submits that allowing this application to proceed on its overpayment claim will only encourage the Buffalo trial to moveforward. [32] Chevron also adduces evidence of prejudice, including the fact that several of the individuals involved in preparing royaltystatements or in discussing the alleged overpayment are no longer employed by Chevron, and that Chevron, if successful, will havesuffered significant opportunity costs.

While it is true that much of the damages calculation evidence necessary to establish Chevron’s

claim can be adduced through documentary evidence that is not dependent on witness memory, the defences relied upon by the Crown and the estoppel defence raised by the Bands require employee testimony. [ 33 ] I am satisfied that to grant the stay will prejudice Chevron in the prosecution of its action, and that the balance of such prejudice favours allowing Chevron to proceed at least to the point of readiness for trial. [ 34 ] Louis Bull and Montana suggest that, to alleviate prejudice to Chevron, I could fashion appropriate conditions to a stay that will ensure the timely prosecution of the Royalty Underpayment Claim in the Buffalo trial.

Specifically, they submit that the stay could be conditional, and that the parties could report to this Court every three months on the status of matters in the Buffalo trial. Apart from the jurisdictional issues raised by such suggestion, this would be a massively time-consuming exercise. This Court cannot take on what would be in effect the case management of the Buffalo trial. F.

Set-Off Claims [ 35 ] The Bands, specifically Louis Bull and Montana, submit that since that the Royalty Underpayment Claims deal with a period of time that overlaps part of Chevron ’ s overpayment claim, they will be prejudiced if a stay is not granted and they are faced with the prospect of making payment to Chevron for royalties that may have been underpaid to the Bands. [ 36 ] Chevron submits that, based on information provided by Samson in its Reply to Demand for Particulars, of the massive Royalty Underpayment Claim of $65.77 million, only roughly $47,000 or 0.07% of the claim relates to gas royalties during the period of Chevron ’ s overpayment claim (April 1991 to August 1996).

The Bands filed a more recent affidavit that suggests that there were other deductions improperly made that were not particularized by Samson in its Reply to Demand for Particulars. Those further possible deductions are not assigned a value, and thus there is no evidence that specifically counters Chevron ’ s estimate of over-lapping claims. [ 37 ] This possible over-lap, which from the best evidence appears to be minor, does not justify a stay of the overpayment claim, particularly given that the issue can be re-considered before actual trial.

At that point, it should be clearer from the progress in the Buffalo trial whether there is any realistic risk that proceeding in this Court on the Royalty Overpayment Claims will affect or interfere with the adjudication of the Royalty Underpayment Claims in the Buffalo trial. Conclusion [ 38 ] I dismiss the applications for a stay of Chevron ’ s claim put forward by the Bands.

These applications may be re-filed at the point in time that the parties are ready to enter this litigation for trial. [ 39 ] If the parties are unable to agree on costs, they may make written submissions to this Court within sixty days of the date of this decision. Dated at the City of Calgary, Alberta this 5 th day of August, 2011.

B.E. Romaine J.C.Q.B.A. Appearances: Mary E. Comeau/J. Raymond Chartier Macleod Dixon LLP for the Defendant Her Majesty the Queen in Right of Canada Barry R. Crump Burnet Duckworth & Palmer LLP for the Plaintiff Chevron Canada Resources Sheila M. Read/Sukhi Sidhu Department of Justice for Her Majesty the Queen in Right of Canada Richard D. Bell Blake Cassels & Graydon LLP for the Ermineskin Indian Band James A. Duke, Q.C./G. James Thorlakson Miller Thomson LLP for the Louis Bull and the Montana Indian Bands L. Douglas Rae/Tibor Osvath Rae and Company for the Samson Indian Band James K. McFadyen, Q.C.

Parlee McLaws LLP for the Samson Indian Band James A. O ’ Reilly O ’ Reilly & Associates for the Samson Indian Band

Gord Tarnowsky/Heather Treacy Fraser Milner Casgrain LLP for Imperial Oil Resources Ltd. and BP Canada Petroleum Company [1] 2005 CarswellAlta 455, 2005 ABQB 2, [2005] A.W.L.D. 2073, [2005] A.W.L.D. 2134, [2005] A.W.L.D. 2057, [2005]A.W.L.D. 2071, [2005] A.W.L.D. 2058, 40 Alta.L.R. (4th) 69, [2005] 9 W.W.R. 677, 378 A.R. 306 [2] 2006 CarswellAlta 1799, 2006 ABQB 945, [2007] A.W.L.D. 1669, 73 Alta.L.R. (4th) 293, [2007] 7 W.W.R. 703, 154 A.C.W.S.(3d) 858, appeal dismissed [3] 2005 FC 1622, 269 F.T.R. 1 and 2005 FC 1623, 269 F.T.R. 188 [4] 2006 FCA 415, [2007] 3 F.C.R. 245 [5] Ermineskin Indian Band and Nation v.

Canada, 2009 SCC 9 , [2009] I.S.C.R. 222, [2009] S.C.J. No. 9, 2009 SCC9 [6] 2009 CarswellAlta 674, 2009 ABCA 180, [2009] A.W.L.D. 2337, [2009] A.W.L.D. 2341, 6 Alta.L.R. (5th) 5, [2009] 7 W.W.R.631, 457 A.R. 132, 457 W.A.C. 132 at para. 3 [7] Para. 53-55 of Chevron #2, citing Danyluk v. Ainsworth Technologies Inc. (2001), 2001 SCC 44, 2001 CarswellOnt 2435. [8] Chevron Canada Resources v. Canada (Executive Director of Indian Oil & Gas), 2001 ABQB 544 , 295 A.R. 388 at paras.14 & 15.