Lameman v. Alberta, 2012 ABQB 195

Court of Queen ’ s Bench of Alberta Citation: Lameman v. Alberta, 2012 ABQB 195 Date: 20120328 Docket: 0803 06718 Registry: Edmonton Between: 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 - and - Her Majesty the Queen In Right of the Province of Alberta and the Attorney General of Canada Applicants/Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A.

Browne _______________________________________________________ Introduction [ 1 ] Canada and Alberta apply under Rule 129(1) (now Rule 3.68) to strike some or all of the Plaintiffs’ Further Amended Statement of Claim (filed on November 22, 2010) because the pleadings:

- fail to disclose a cause of action against each of them; and - are frivolous, vexatious or an abuse of process. [ 2 ] The original Statement of Claim was filed in this matter May 14, 2008. An Amended Statement of Claim was filed October 23, 2009. A Further Amended Statement of Claim was filed November 22, 2010. As of yet, the Defendants have not filed Statements of Defence. They are awaiting the outcome of this application. [ 3 ] The Applicants’ motions were filed in May and June of 2009. This is the fifth application that has been heard before the Court since the commencement of the litigation.

The Statement of Claim [ 4 ] The Plaintiffs, as members of the Beaver Lake Cree Nation Indian Band (BLCN), are beneficiaries of Treaty 6 Rights, their ancestors having adhered to Treaty 6 on or about September 9, 1876.

Under Treaty 6, the Plaintiffs’ ancestors ceded lands in what is now the Province of Alberta in exchange for reserves and other benefits including the right to hunt and fish throughout the tract surrendered, “saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes”. [ 5 ] The Plaintiffs rely on the oral terms of the Treaty, in particular the assurance that reserves would be set aside, that the old mode of living would be protected under the Treaty, that hunting, trapping and fishing activities would be protected under the Treaty, and that there would be no interference with their mode of living or daily life. [ 6 ] The Plaintiffs’ claim relates to lands within Alberta (Core Traditional Territory) but beyond the area of the BLCN Reserve in which they have traditionally hunted, trapped and fished and continue to do so today.

The Plaintiffs claim that Canada and Alberta have permitted various oil and gas, forestry, mining and other activities within the Core Traditional Territory and that those development activities have had an adverse impact on the exercise of BLCN’s Treaty 6 Rights within the Core Traditional Territory. [ 7 ] The Plaintiffs assert that an obligation arises from Treaty 6 to manage the Cumulative Effects of developments (Cumulative Effects).

More specifically, the Plaintiffs allege that their Treaty Rights include or impose an obligation on the Crown to discharge certain duties consistently with, and respectfully of, the Crown's promise that it would not interfere with or deprive BLCN of the meaningful exercise of those Rights in perpetuity, including managing wildlife populations, habitats and water resources to ensure the continuing meaningful exercise of the Rights (Management Duties).

Once it became reasonably evident that the Plaintiffs' meaningful exercise of their Treaty Rights had been or will be compromised, the Crown had a duty to avoid further compromising, and to take active steps to restore, the Plaintiffs' meaningful exercise of their Treaty Rights. [ 8 ] The Plaintiffs allege 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 with respect to issues arising from Cumulative Effects of developments on the exercise of the Treaty Rights. [ 9 ] The Plaintiffs allege breach of their Treaty Rights, breach of the honour of the Crown, breach of a fiduciary duty in relation to the Cumulative Effects of the developments, and that the Cumulative Effects of the developments have adversely affected, will adversely affect, or are likely to adversely affect wildlife and its habitat and access to lands, and consequently the ability of the Plaintiffs to meaningfully exercise their Treaty Rights. [ 10 ] The Plaintiffs allege that the Defendants failed to:

- fully inform themselves respecting the Treaty Rights and respecting the conditions necessary to sustain the meaningful exercise of the Treaty Rights in perpetuity and the Cumulative Effects of the developments on the Treaty Rights; - monitor the Cumulative Effects of the developments and to otherwise ensure they do not and will not interfere with the continuing meaningful exercise of the Treaty Rights; - establish and enforce maximum thresholds for impacts; - provide the Plaintiffs with any, or adequate, information relevant to the Cumulative Effects of the developments or an adequate opportunity and sufficient resources to respond to and comment on the Cumulative Effects of the developments; and - consult in good faith, address concerns, seek accommodation of Treaty Rights, and ensure minimal impairment by the Cumulative Effects of the developments. [ 11 ] In addition to damages and/or equitable compensation for failure to respect Treaty Rights and uphold the honour of the Crown, the Plaintiffs claim the following relief:

a) a declaration that the Plaintiffs have a constitutional right within the meaning of s. 35 of the Constitution Act, 1982 , pursuant to the Treaty and the NRTA, to hunt, trap and fish certain wildlife species for subsistence, and for cultural, social and spiritual needs;

b) a declaration that the Cumulative Effects of the developments unjustifiably infringe on the Treaty Rights; b.1) a declaration that the Defendants, or either of them, have a duty to consult with and, if indicated, accommodate Beaver Lake with respect to the Cumulative Effects of the developments on the Treaty Rights (Cumulative Effects Consultation), under the supervision of the Court; b.2) a declaration that the Defendants, or either of them, have 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 paras. 19, 26, 30 and/or 31 of the Claim; (iv) revocation of authorizations for the developments or limitations and management of the effects of the developments, which unjustifiably infringe 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, have a duty to revoke the authorizations for, or to otherwise limit and manage the effects of, the developments which unjustifiably infringe the Treaty Rights; and

d) an interim, interlocutory and/or permanent injunction against the Defendants, or either of them, restraining them from acting unconstitutionally in respect of 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, have completed the Cumulative Effects Consultation or a similar process. Positions of the Parties Alberta [ 12 ] Both Alberta and Canada focus their arguments extensively on the

Schedule 2 detailed list of developments. They challenge the relief claimed by the Plaintiffs for a declaration that there is a duty to revoke authorizations and permits and take issue with the injunctive relief claimed. [ 13 ] Alberta concedes a triable issue as to whether, on the date of the Further Amended Statement of Claim, the BLCN’s Treaty Rights were infringed by the Crown due to the Cumulative Effects of the developments in their Core Traditional Territory. [ 14 ] However, Alberta submits that the

Schedule 2 portion of the Claim challenges every Alberta authorization issued with respect to lands within or adjacent to the Core Traditional Territory, spanning three Treaty areas (Treaties Nos 6, 8 and 10).

It implicates decisions of many Crown ministries, government officials, public authorities, and independent arm’s length agencies, boards and tribunals involving: oil and gas, forestry, mining and resource activities, infrastructure activities, as well as all existing Crown leases, permits, agreements, contracts and licences. [ 15 ] Alberta argues that administrative law challenges must be brought in the appropriate forum and within the applicable time limits. Such collateral attacks in the context of a civil claim for damages would be unmanageable, impossible to litigate in a reasonable fashion and abusive.

Alberta notes that private sector proponents are not parties to these proceedings, whereas the procedures applicable to judicial review are procedurally fair and grant standing and rights of participation to all interested parties. It is not appropriate to globally challenge the procedure leading up to Crown decisions in an effort to have those decisions invalidated.

There are significant policy reasons which prevent the courts from encroaching upon the exclusive jurisdiction of a statutory decision maker, board or tribunal. [ 16 ] Alberta asserts that it is inappropriate to mount such collateral attacks on the validity of Crown decisions in the context of a civil claim in which damages are sought for infringement of Treaty Rights, citing R v Lefthand , 2007 ABCA 206 , leave denied [2007] SCCA Nos 468, 470: 47 ... collateral attack on the validity of administrative orders and regulations in matters of conservation and environmental protection is to be avoided.

This is not a rational and orderly way in which to determine the extent of aboriginal rights. The arguments against collateral attack apply doubly to collateral attack based on an alleged failure to consult...The failure to consult is a procedural complaint, one step removed from an argument that aboriginal rights have been breached in substance: Mikisew Cree at paras. 57, 59... ... 49 Whatever the scope of the right to be consulted may be, it is a perishable right. It is the type of right that expires if it is not asserted in a timely manner.

The objective of consulting is to seek input before acting; once the act is done the failure to consult is moot. A failure to consult does not nullify an administrative act. Once an administrative act has been implemented, its validity must be tested based on whether it does or does not properly respect aboriginal rights. Even absent consultation, the decision maker may have "got it right". If the decision violates aboriginal rights, then the failure to consult is moot.

Once the act is done, failure to consult just becomes a part of the justification analysis: Mikisew Cree at para. 59... [ 17 ] With respect to remedies, Alberta argues that although the Plaintiffs deny they are attacking the granting of authorizations or the governing legislation, they seek a declaration that the Defendants have a duty to address revocation or limitation and management of

the effects thereof. [18] Finally, Alberta argues that the Plaintiffs’ five affidavits are generally irrelevant, were not sworn by affiants with first-handknowledge, and are unreliable and argumentative. In sum, they are so highly prejudicial that they should be struck out, wholly orpartially, or otherwise disregarded. The Rule on applications to strike precludes the use of evidence to prove that a pleading discloses (ordoes not disclose) a cause of action. Evidence is only admissible under in relation to the other grounds for the limited purpose of provingthat the pleading is (or is not) sufficient. [19] In

summary, Alberta submits that the case should be limited to an assessment of whether, on the date on which the Claim wasfiled, the Treaty Rights of the BLCN were unjustifiably infringed by the alleged Cumulative Effect of the Crown’s granting ofauthorizations within the Core Traditional Territory, and whether the Plaintiffs are entitled to compensatory damages as a consequence.Alberta argues that only the claim for damages should proceed.

Canada [20] Canada summarizes its main points as follows: - the entire Claim is so broad, general, and unmanageable that it is frivolous, improper, or otherwise an abuse of the Court’sprocess; - the Claim fails to disclose actions carried out by Canada, thereby failing to disclose a cause of action against Canada orconstituting an abuse of process; - parts of the Claim are an abuse of process because the Plaintiffs chose not to pursue adequate alternative remedies in a timelymanner; and - the Federal Court has exclusive jurisdiction to overturn and restrain decisions made by Federal Boards.

Parts of the Claim aretherefore frivolous, improper, and an abuse of process. [21] Canada argues that the action is too broad, vague and general, making it unmanageable and an abuse of process. The Claimconsists of allegations about the authorization and Cumulative Environmental Effects of over 19,000 developments listed in

Schedule 2to the original Statement of Claim. In contrast to Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388, which addressed one authorization, this case in effect constitutes 19,291 judicial reviews. Canada adoptsAlberta’s arguments on the relevance, applicability and utilization of

Schedule 2. [22] Canada also submits that numerous individuals would be entitled to participate in the proceedings, including the 321proponents who have interests in the developments in question. Canada cites Smith v Canada (Minister of Indian Affairs and NorthernDevelopment), 2002 FCT 1090, where the court denied a proposed amendment to a judicial review application which would havechanged the proceeding from a review of one to review of a myriad of decisions of an "almost unknown" number. This would haverendered the proceedings unmanageable.

In Xeni Gwet'in First Nations v British Columbia, 2002 BCSC 1199 , [2002] 4CNLR 356 (BCSC) (Tsilhqot'in), Vickers J noted that giving notice of Aboriginal title proceedings to numerous title holders would havethe drastic effect of putting a halt to the proceedings, and therefore it was not in the interests of the administration of justice.

In contrastto Tsilhqot'in, the interests that the proponents of various developments in this case may have been granted under federal statutoryschemes (if any) do not derive from Alberta's title to the land, but rather from lawful and valid authorizations duly issued directly toproponents through statutory and regulatory regimes.

The proponents' rights, activities, and interests are different than those of eitherDefendant, and consideration of those different activities and interests could impact a decision about the authorizations themselves.Unlike Tsilhqot'in, no challenge has been made in this case to either the competence of Parliament or the Alberta Legislature to enactany legislative schemes allowing the impugned authorizations, nor to the constitutionality of such legislation itself. [23] Canada further argues that it cannot be held responsible for the actions of a Provincial Statutory Board or for the actions ofthose the Board authorizes to conduct various activities.

The land and waters in the alleged Core Traditional Territory are vested in

Alberta. The impugned leases are said to be granted by Alberta and therefore do not involve Canada in any way, other than the distinct claim about the Plaintiffs' exclusion from the lands in the Cold Lake Air Weapons Range ("CLAWR") used by Canada pursuant to an agreement with Alberta.

The authorizations of the impugned development activities (oil and gas, forestry, mining, or other similar activities) were issued by the ERCB; no cause of action is disclosed as against Canada. [ 24 ] At best, the Claim identifies Canada specifically as having only had involvement in (not authorizing) seven of the 19,291 specifically impugned developments.

Canada submits that it is frivolous and an abuse to include Canada in such a vast claim where Canada is only alleged to have participated in a small proportion of the impugned government action. [ 25 ] Canada further argues that the request for a declaration that the Defendants have a duty to revoke the authorizations, amounts to relief in the nature of mandamus . Relief in the nature of certiorari or mandamus is an attack on the validity of the authorizations. This form of requested relief is only available on a judicial review application.

Similarly, the request for an injunction restraining future authorizations or injunctive relief pertaining to past developments (i.e. administrative decisions already executed) is only available by judicial review of the particular decisions in question.

Further, such an injunction would be against the administrative body which granted the authorization, not Her Majesty in Right of Canada. [ 26 ] Canada argues further that any authorizations made by Federal decision-makers could only have been made by a decision-making body that falls within the definition of "Federal Board, commission or other tribunal" as defined in s. 2(1) ("Federal Board or Boards") of the Federal Courts Act (FCA). The Federal Courts have exclusive jurisdiction to deal with the validity of decisions of Federal Boards pursuant to ss. 18(1) and 28 of the FCA: 18.

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (

b) to hear and determine any application or other proceedings for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. Section 18(1)(

b) of the FCA refers to remedies "in the nature of" those listed, including injunctions, certiorari , mandamus , and declaratory relief, all of which the Plaintiffs seek. [ 27 ]

Section 28 of the FCA vests exclusive original jurisdiction in the Federal Court of Appeal where applications for judicial review are made in respect of specified boards, commissions or other tribunals. Canada submits that a litigant who seeks to overturn a decision of a Federal Board is not free to choose between a judicial review proceeding and an action in damages: 18.

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under

section 18.1. [ 28 ] Canada argues that the Claim as pleaded rests upon the alleged unlawfulness of the administrative decisions allowing the developments, and falls within the sole jurisdiction of the Federal Court. Section 2(1) of the Canadian Environmental Assessment Act , SC 1992, c 37 (CEAA) states that "responsible authority”, in relation to a project, means a Federal authority that is required pursuant to subsection 11(1) to ensure that an environmental assessment of the project is conducted. The responsible authorities were bodies "having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament", and are therefore Federal Boards under s. 2(1) of the FCA. This is clearly an exercise of public jurisdiction or authority. [ 29 ] Like Alberta, Canada concedes that the Plaintiffs may bring an action for damages based on the effect of administrative decisions, but only where the object is not to overturn the decisions, but to address their effect.

[ 30 ] On the issue of admissibility of evidence filed on this motion, Canada submits that the Plaintiffs' affidavits are predominantly irrelevant, inadmissible hearsay, or contain unqualified "expert" opinion. Canada submits that all but one are inadmissible. [ 31 ] The Plaintiffs have characterized several of their affidavits as "expert evidence".

Canada questions whether expert evidence is admissible on a motion to strike in the absence of consent of the parties given that such a motion is brought when there is an apparent flaw in the pleading which is rectified by striking or amending, not by incorporating opinion evidence into the pleadings. Evidence filed in this motion can only be used to decide whether the Claim is frivolous, vexatious or an abuse of process. The Plaintiffs' evidence, instead of responding to the issues raised in the Notice of Motion, consists of irrelevant hearsay and opinions on the merits of their Claim.

Evidence cannot be used as a substitute for proper pleadings. [ 32 ] Canada has also submitted affidavits, each of which it submits is based on personal knowledge, and where it is not, Canada asserts that it meets the test of necessity and reliability and the government records exception to the hearsay rule codified in s. 26(1) of the Canada Evidence Act , R.S.C. 1985, c. C-5. The documents exhibited to these affidavits are kept in the normal course of the government's business under s. 55.1 of the CEAA and are available to the public.

The basis for reliability of the evidence is therefore set out in the affidavits themselves. [ 33 ] Canada argues that the Plaintiffs’ Claim should be limited as follows: ... so much land in the Core Traditional Territory has been taken up by development activities that there is no longer a viable right to hunt. Plaintiffs [ 34 ] The Plaintiffs’ central contention is that the Defendants have unconstitutionally infringed the core commitment in Treaty 6 to “preserve the traditional Indian way of life” and to ensure the meaningful exercise of the hunting, fishing and trapping rights secured under the Treaty.

In other words, too much land has been taken up by development.

The Cumulative Effect of that development has seriously and negatively impacted the BCLN right to hunt, fish or trap. [ 35 ] In Mikisew , the Supreme Court described a limit to the Crown’s power to “take up” lands beyond which it amounts to an infringement of Treaty Rights. (See also Keewatin v Minister of Natural Resources , 2011 ONSC 4801 at paras. 1 , 839, 850, 919-24.) In so doing, the Defendants have breached the honour of the Crown and the fiduciary duty as described in Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 SCR 51. [ 36 ] The Plaintiffs submit that they do not challenge the legality or validity of any individual approval or authorization for development, nor do they seek to set aside or quash any individual approval or authorization already granted or issued.

Rather, this is an action for Treaty infringement based on the cumulative impacts of development, as invited by the Supreme Court of Canada in Mikisew . When a First Nation brings an action for Treaty infringement, it must be able to do so in a way that allows a single court to assess the full and combined impact of Crown-authorized development on the continued meaningful exercise of Treaty Rights.

It is not necessary in this case to attribute or apportion responsibility as between individual developments or to review the specific processes that led to the approval of each development, as the focus is on the measurable cumulative impact of all of the developments on the landscape. [ 37 ] The remedies sought are not directed toward a “person or body whose decision, act or omission is subject to judicial review” under Alberta’s Rule 3.15(1) or s. 18(1) of the Federal Court Act .

Nor are the Plaintiffs claiming that they were not consulted appropriately in the authorization processes. [ 38 ] This is not a collateral attack: Canada (Attorney General) v TeleZone Inc , 2010 SCC 62 , [2010] 3 SCR 585 at paras. 13 , 67, 75; Canada (Attorney General) v McArthur , 2010 SCC 63 , [2010] 3 SCR 626 at para. 17 . The Plaintiffs concede that after Rio Tinto , there remains some debate as to whether or when the Crown must consider cumulative impacts of development in the consultation process for a particular authorization.

However, the clear language of Rio Tinto indicates that the Plaintiffs would have faced perhaps insurmountable obstacles to raising, in the context of any individual approval process for a specific development, the issue of the overall impact of development on the meaningful exercise of the Treaty Rights. The Plaintiffs submit that there is no forum to address the

fundamental flaw in the Crown’s land management regime because there is no mechanism for Cumulative Effect review on a regionallevel, other than through an action brought in the Superior Court for infringement of Treaty Rights. [39] The Plaintiffs further state that they only seek relief for events that have already occurred, events resulting fromauthorizations that have already been issued and the Defendants’ failure to exercise their Management Duties. They are not attackingspeculative future conduct. [40] The Plaintiffs emphasize that the threshold for a motion to strike is high.

It must be “beyond doubt”, “entirely clear” or “plainand obvious” that the claims cannot succeed at trial. Claims should not be struck simply because they are novel or complex, especially inthe evolving Aboriginal context. [41] Regarding the claims against Canada, the Plaintiffs state that Canada’s acknowledgment that the Cold Lake Air WeaponsRange Agreement can found a cause of action against Canada suffices to establish that Canada is a proper and necessary party to theaction.

Further, since development cannot proceed without Federal authorization through the environmental assessment process, Canadais directly involved in authorizing developments on Core Traditional Territory. Finally, it has many statutorily mandated environmentalresponsibilities on Core Traditional Territory. Canada was found to be a proper party in: Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 and Xeni Gwet’in First Nations Government v British Columbia, 2002 BCSC 1904, [2002] BCJ No3366.

The court in Keewatin affirmed that the role and responsibility of Canada for the protection of Treaty 6 Rights remains a live issuerequiring determination at trial, with full participation of Canada as a party. [42] Regarding relief, the Plaintiffs first seek a court-mandated and supervised consultation process between the parties. ThePlaintiffs are not asking the Court to order revocation of any particular authorizations. Rather the Plaintiffs ask the Court to declare thatthe Defendants must take steps to bring themselves into constitutional compliance with the Plaintiffs’ Treaty Rights.

Revoking approvalsshould be an option as a means of addressing an unconstitutional infringement of Treaty 6. Injunctive relief may be necessary to preventfurther infringement while Cumulative Effects Consultation unfolds. [43] A superior court has jurisdiction to consider constitutional issues and to provide appropriate remedies including those that areconsidered “prerogative relief”: Reference re Manitoba Language Rights, (SCC), [1985] 1 SCR 721, [1985] SCJ No36; Doucet-Boudreau v NS (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3; Ahousaht Indian Band v Canada, 2011 BCCA237, [2011] BCJ No 913.

Based on the sui generis nature of the Crown-Aboriginal relationship and in light of the Crown’s honour andfiduciary duties, a sensitive and unique approach to awarding remedies, including equitable remedies, for breaches of constitutionallyprotected Aboriginal Rights is required: R v Sparrow, (SCC), [1990] 1 SCR 1075, [1990] SCJ No 49 at para. 59;Guerin v Canada, (SCC), [1984] 2 SCR 335, [1984] SCJ No 45 at para. 102; Lord v Canada (AG), (QC CA), [2000] 3 CNLR 69 at para. 13; Chippewas of Sarnia v Canada, (ON CA), [2000] OJ No 4804, 51 OR(3d) 641 at para. 249 (CA). [44] The Plaintiffs argue that the Crown is not immune from injunctions in cases of violation of the Constitution: P Hogg, Liabilityof the Crown, 2d ed (Ontario: Carswell, 1989) at 26; Van Mulligan v Saskatchewan Housing Corp, (SK KB), [1982]SJ No 1043, 23 Sask R 66 at para. 22 (QB); Saulteau First Nation v Canada (AG), 2007 BCSC 492, [2007] BCJ No 726; SnuneymuxwFirst Nation v BC, 2004 BCSC 205, 26 BCLR (4th) 360. [45] The Plaintiffs assert that this case is analogous to Nemaiah Valley Indian Band v Riverside Forest Products Ltd, 2002 BCSC1199, [2002] 10 WWR 486 where Vickers J held that it was not necessary to give notice to third parties with interests in the land thatwere subject to the plaintiff’s claim for Aboriginal Rights and title.

Rules of Court [46] As this application was filed but not heard prior to the coming into force of the new Rules of Court, the new Rules apply: Rule15.12.

[47] Rule 3.68 provides in part:

(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim ... be struck out...

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim ...; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process...

(3) No evidence may be submitted on an application made on the basis of the condition set out in sub-rule (2)(b). [48] The new and old Rules are of similar effect. On an application to strike on the basis that no reasonable cause of action isdisclosed, the allegations in the pleadings are generally assumed to be true.

No evidence is permitted, and the pleadings should be struckonly if it is “beyond doubt” that the claim cannot succeed: Cerny v Canadian Industries Ltd (1972), (AB CA), 6WWR 88 (Alta CA); Donaldson v Farrell, 2011 ABQB 11 at paras. 30, 31. [49] The parties do not dispute that a court may find a claim to be frivolous, vexatious, or an abuse of process where, among otherthings, a case is factually hopeless, it amounts to a collateral attack on an earlier determination, the court does not have jurisdiction over aclaim, it erodes the principal of finality, or the action misuses the procedure of the court. [50] Prior to embarking on the analysis of the pleadings in this case, it is useful to reiterate the purpose and intention of thefoundational Rules of Court: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in atimely and cost effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process aspracticable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action,

(

a) identify or make up an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. [ 51 ] One of the major challenges in this litigation is to encourage a process that effectively resolves the Claim through court or through some other form of dispute resolution in a timely and cost effective way.

Analysis Commercial Right to Hunt, Fish and Trap [ 52 ] The Plaintiffs, in para. 9 of the Further Amended Statement of Claim, rely on the Natural Resources Transfer Act and the Mikisew case from the Supreme Court of Canada: As part of their usual practices carried out before and at the time of adhering to the Treaty the ancestors of the Beneficiaries hunted, trapped and fished certain animal, bird and fish species for subsistence, and for cultural, social and spiritual needs.

The Treaty confirmed these rights and the Natural Resource Transfer Agreements, 1930 Constitution Act, 1930 (U.K.) 20-21 George V, c. 26 (the “NRTA”) secured to the Beneficiaries the right of subsistence and support (collectively the “Treaty Rights”). [ 53 ] The Plaintiffs acknowledge in response to the Defendants’ arguments that this case will not challenge previous court decisions regarding the commercial right to hunt, fish and trap. Affidavits [ 54 ] Each of the parties has filed a number of affidavits.

Affidavit of Jamie Zyla #2 was helpful simply because it set out some of the pleadings to date in a straightforward fashion. [ 55 ] I have not referred to or relied on any of the other affidavits submitted by counsel. This motion should be heard on the basis of the pleadings alone and whether on the basis of the pleadings, a cause of action is disclosed. The affidavits filed are not helpful in determining this issue.

Is Canada a Proper Party? [ 56 ] Although the “approvals” of the majority of the developments within the Core Traditional Territory are within Provincial authority, there are approximately seven significant Federal approvals that are part of the “Cumulative Effects” alleged by the Plaintiffs such as the Cold Lake Weapons Range and some permits issued under the Canada Environmental Assessment regime. [ 57 ] When dealing with negotiations,

interpretation and implementation of treaties, the court in Haida held at paras. 27 and 35:

27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod overAboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. Itmust respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource inquestion pending claims resolution.

But, depending on the circumstances, discussed more fully below, the honour of the Crown mayrequire it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit aclaimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginalclaimants of some or all of the benefit of the resource. That is not honourable. ... 35 But, when precisely does a duty to consult arise?

The foundation of the duty in the Crown's honour and the goal of reconciliationsuggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or titleand contemplates conduct that might adversely affect it: see Halfway River First Nation v. British Columbia (Ministry of Forests), (BC SC), [1997] 4 C.N.L.R. 45 (B.C.S.C.), at p. 71, per Dorgan J. [58] Canada is a signatory to Treaty No. 6, the foundational document creating the rights and obligations which will be discussedand analysed in this Claim.

It is well established that Canada has a fiduciary duty to First Nations through the Treaty process. This Claimraises issues with respect to that fiduciary duty. Therefore, Canada is properly named as a party.

Schedule 2 [59] Originally, the Statement of Claim contained

Schedule 2 as part of the pleadings. In the Further Amended Statement of Claimfiled 14 May, 2008,

Schedule 2 has been deleted but has been referred to by the Plaintiffs in response to a Demand for Particulars. [60] Canada concedes that claims against them for breach of Treaty or breach of fiduciary duty, if the claim does not seek tooverturn administrative decisions of a Federal Board, can be brought by bringing an action in either this Court or the Federal Court. Sucha claim may rely upon administrative decisions as underlying facts to support the claim, where the result of those decisions is relied uponto support the claim for damages. [61] However, both Alberta and Canada expressed grave concerns regarding the use to be made by the Plaintiffs of the activitieslisted in

Schedule 2. The Plaintiffs submit that

Schedule 2 is simply a list of the developments and a small part of their evidence to showthat the Cumulative Effects of developments are significant in the Core Traditional Territory.

The Plaintiffs attempt to rise above theindividuality of each of the developments, putting in issue whether there is or should be a regional or overall development strategy thathas been developed with the input and consultation from First Nations people. [62] All of the parties have described the focus of this action to be the Crown’s obligation in terms of compensation or damages forthe Cumulative Effects of development activities in the Core Traditional Territory. [63] Alberta and Canada suggest that the inference arising from reference to

Schedule 2 and the relief claimed in paras. b.2(iv) andc) of the prayer for relief is that the Claim, as framed, is so broad that the ensuing claim would be unmanageable. The concern is thatthese paragraphs of the prayer for relief invite the Court to consider, on an individual basis, whether some or all of the licenses should bedeclared to be revoked. [64] One of the challenges in Aboriginal litigation is to focus the parties on the real issues that need to be determined so that amanageable trial can be held within a reasonable period of time.

Such focus enables not only the governments of Alberta and Canada, butalso the BLCN, to discern whether the claims have any legitimacy. [65] Any trial in which there would be discussion of each of the 19,000 activities that may have been approved in the CoreTraditional Territory would be unworkable and unmanageable.

[ 66 ] Looking carefully at the actual wording of paras b.2(iv) and

c) of the prayer for relief, the Plaintiffs ask for a declaration “that the Defendants, or either of them, have a duty to revoke the authorizations ...”. The wording allows the possibility of consideration of the circumstances of the 19,000 permits identified in

Schedule 2. Even though the wording invites the Court to make a declaration and not to in fact revoke the authorizations, the Court has no jurisdiction to make such a declaration in the context of the claim being made. The consideration of the declaration is not reasonable under the circumstances. Allowing the authorizations to be challenged in this fashion opens up an entire area of this Claim that does not address the important issues raised. [ 67 ] The Court has no jurisdiction to consider or, more properly, reconsider the permits or licenses specified in

Schedule 2 with a view to making a declaration that some of those authorizations should not have been authorized. The Plaintiffs are out of time for any form of judicial review of specific listed authorizations. In any event, in terms of the focus of this action, nothing is to be gained by allowing the Plaintiffs to pursue such a declaration. Therefore, paras. b.2(iv) and

c) are struck from the prayer for relief. Supervision by the Court and Declarations with Prospective Impact [ 68 ] The Plaintiffs argue that novel pleadings and novel relief should not be struck automatically. They allege that the duty to consult can have regional aspects requiring meaningful consultation with First Nations groups in the context of long-term regional development. [ 69 ] The ongoing supervision of any post-trial activity by a court is fraught with problems.

However, if the Plaintiffs succeed in their claim, one of the logical potential outcomes would be that the parties involved in this action would sit down and negotiate the application of the duty to consult in the Core Traditional Territory and how ongoing Treaty and Aboriginal Rights will be protected or managed through some process of consultation and negotiation. [ 70 ] The trial of this action will involve significant time exploring the parameters of the duty of consultation. Many cases have already discussed that duty.

There is no danger of pre-judging the case by observing that consultation does not mean “listening” and then doing what one pleases; consultation must be more than that. If consultation is warranted in this case as alleged by the Plaintiffs, it must be between the Defendants and First Nations and might involve negotiation for training, jobs or other benefits that are received for the negotiation of the development.

Again, the nature of the duty to consult is a trial issue which the Court will address. [ 71 ] Therefore, depending on the outcome of the trial issues, it seems a logical extension of the determination of this claim for compensation or damages that a court might provide some ongoing direction for the relationships between all of the parties. As noted in Doucet-Boudreau v Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 SCR 3 at para. 73 , constitutional remedies involving some degree of ongoing supervision do not represent a radical break with the past practices of courts.

At this stage, it would be premature to rule out the possibility of a court’s continued supervision to ensure that the duty to consult is honoured as Treaty Rights are respected. Injunctive Relief [ 72 ] The Defendants argue that many of the declarations sought amount to claims for injunctive relief against the Crown.

Section 17 of the Proceedings Against the Crown Act , RSA 2000, c P-25 clearly states that the court cannot enjoin the Provincial Crown: 17(1) When in proceedings against the Crown any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance but may, instead, make an order declaratory of the rights of the parties.

(2) The court shall not in any proceedings grant an injunction or make an order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown but may, instead, make an order declaratory of the rights of the parties. [ 73 ]

Section 22 of the Crown Liability and Proceedings Act , RSC 1985, c C-50 provides very similar protection to the Federal Crown.

[74] There is ample authority for the proposition that permanent or final injunctions will not be issued against the Crown; they aredeemed largely unnecessary in light of the availability of declarations. There is support for the position that this applies equally in thecontext of Aboriginal claims: see, for example Tsawout Indian Band v Saanichton Marina Ltd (1989), (BC CA), 57DLR (4th) 161 (BCCA); Siska Indian Band v British Columbia (Minister of Forests) (1998), (BC SC), 62 BCLR(3d) 133 (SC). [75] The law is less settled regarding interlocutory injunctions against the Crown.

Although there are clear limitations on the rightto claim injunctive relief against the Crown, interlocutory injunctions have been held to be available in some narrow circumstances. [76] Professors Hogg and Monahan, in Liability of the Crown, 3d ed (Carswell: Toronto, 2000) at §2.4(

g) state: There is one exception to the Crown’s immunity from injunction. Where an injunction is sought to prevent a violation of theConstitution, the Courts will issue an injunction even against the Crown. [77] The court in Haida held at paras. 13 to 15: 13 It is open to plaintiffs like the Haida to seek an interlocutory injunction. However, it does not follow that they are confined to thatremedy. If plaintiffs can prove a special obligation giving rise to a duty to consult or accommodate, they are free to pursue theseremedies.

Here the Haida rely on the obligation flowing from the honour of the Crown toward Aboriginal peoples. 14 Interlocutory injunctions may offer only partial imperfect relief. First, as mentioned, they may not capture the full obligation on thegovernment alleged by the Haida. Second, they typically represent an all-or-nothing solution. Either the project goes ahead or it halts. Bycontrast, the alleged duty to consult and accommodate by its very nature entails balancing of Aboriginal and other interests and thus liescloser to the aim of reconciliation at the heart of Crown-Aboriginal relations, as set out in R. v.

Van der Peet, (SCC),[1996] 2 S.C.R. 507, at para. 31, and Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010, at para. 186.Third, the balance of convenience test tips the scales in favour of protecting jobs and government revenues, with the result thatAboriginal interests tend to "lose" outright pending a final determination of the issue, instead of being balanced appropriately againstconflicting concerns: J. J. L.

Hunter, "Advancing Aboriginal Title Claims after Delgamuukw: The Role of the Injunction" (June 2000).Fourth, interlocutory injunctions are designed as a stop-gap remedy pending litigation of the underlying issue. Aboriginal claimslitigation can be very complex and require years and even decades to resolve in the courts. An interlocutory injunction over such a longperiod of time might work unnecessary prejudice and may diminish incentives on the part of the successful party to compromise.

WhileAboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests.For all these reasons, interlocutory injunctions may fail to adequately take account of Aboriginal interests prior to their finaldetermination. 15 I conclude that the remedy of interlocutory injunction does not preclude the Haida's claim. We must go further and see whether thespecial relationship with the Crown upon which the Haida rely gives rise to a duty to consult and, if appropriate, accommodate.

In whatfollows, I discuss the source of the duty, when the duty arises, the scope and content of the duty, whether the duty extends to thirdparties, and whether it applies to the provincial government and not exclusively the federal government. I then apply the conclusionsflowing from this discussion to the facts of this case. [78] Other case law on the issue was canvassed by Slade J in Kwicksutaineuk/Ah-Kwa-Mish First Nation v British Columbia(Minister of Agriculture and Lands), 2010 BCSC 1699, including Snuneymuxw First Nation v British Columbia, 2004 BCSC 205 atpara. 48, cited by the Plaintiffs.

See also Lord v Canada (Attorney General), (QC CA), [2000] 3 CNLR 69, leavedenied [2000] SCCA No 315; Saskatchewan First Nations and Indian Bands v Canada, 2002 FCT 1131, 223 FTR 64, aff’d 2004 FCA34, but see Tzeachten First Nation v Canada (Attorney General), 2007 BCCA 133, 281 DLR (4th) 752 at paras. 46 to 49. [79] I conclude that it is not plain and obvious at this point that the prayer for injunctive relief, or for declarations which mightamount to claims for an injunctive type relief, against the Crown are doomed to failure. Ongoing Case Management Issues

[ 80 ] Counsel are invited to contact my office to arrange a case management meeting within one month of this Judgment being issued to set time lines for filing and service of Statements of Defence. [ 81 ] Future applications will require counsel to exchange lists of authorities so that cases previously filed will not be filed again and cases filed by one party will not be filed by another. [ 82 ] Counsel have been invited to approach their clients to sit down together to discuss prospective management of the Core Traditional Territory in terms of regional policies as they affect Aboriginal Treaty Rights in particular areas. [ 83 ] The overall challenge to the parties and to myself as case management judge is to focus the issues in this action so that a manageable trial can proceed within a reasonable period of time and so that all of the parties, BLCN and the two governments, have a timely decision on the challenging issues raised in this Statement of Claim.

Summary [ 84 ] In

summary, paras. b.2(iv) and

c) are struck from the Further Amended Statement of Claim. The remaining paras. of the Statement of Claim will stand. Heard on January 30 and 31 and on February 1 and 2, 2012. Dated at the City of Edmonton, Alberta this 28 th day of March, 2012. B.A. Browne J.C.Q.B.A. Appearances: 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