Stoney Nakoda Nations v Canada (Attorney General), 2013 ABQB 752

Court of Queen ’ s Bench of Alberta Citation: Stoney Nakoda Nations v Canada (Attorney General), 2013 ABQB 752 Date: 20131220 Docket: 0601 14544 Registry: Calgary Between: Chief Darcy Dixon, David Bearspaw Jr., Gilbert Francis, Roderick Lefthand, Gordon Wildman, Chief Bruce Labelle, Henry Holloway, Homer Holloway, Charles Mark, Clifford Powderface, Chief Clifford Poucette, Charlie Abraham, Tater House, Watson Kaquitts and Hank Snow, on their behalf and on behalf of all other members of the Stoney Nakoda Nations, also known as Stoney Indian Band, consisting of the Bearspaw First Nation, the Chiniki First Nation and the Wesley First Nation Plaintiffs (Respondents) - and - The Attorney General of Canada and Her Majesty the Queen In Right of Alberta Defendants (Applicants) _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr.

Justice P.J. McIntyre _________________________________________ ______________

Introduction [1] Litigation between Indian bands and federal and provincial governments often involves constitutional questions.Constitutional questions about the invalidity or applicability of Federal or Provincial legislation require notice to the respectiveAttorneys-General of the Federal government and the province. Failure to give this notice can make a decision invalid: Eaton v Brant(County) Board of Education, (SCC), [1997] 1 S.C.R. 241.

Failure to give timely notice can result in the question beingstruck because of prejudice and confusion of issues: Stoney Nakoda Nations Chiefs v Minister of Indian Affairs and NorthernDevelopment (April 17, 2012, F.Ct.). [2] This memorandum deals with constitutional questions restated by the Plaintiffs (the Stoney Nakoda Nations). Background [3] Canada and Alberta have outstanding

summary judgment applications to dismiss the claim of the Stoney Nakoda Nations orto strike their Amended Statement of Claim (the Main Applications). Before the Main Applications are heard, Canada and Alberta applyto strike a second Notice of Question of Constitutional Law by the Stoney Nakoda Nations. The second Notice contains four questions: Question 1: Does the reference to “every undertaking” in

section 8 of the Alberta NRTA apply to the Horseshoe Lands, KananaskisLands and Ghost Lands, or any portions thereof? Question 2: Does the Alberta NRTAA apply to either or both of Canada and Alberta to confirm, or in the alternative, create fiduciary ortrust obligations to the Plaintiffs, as set out in paragraph 1 of the Alberta NRTA, in regard to the bed and banks of the Bow River and inall waters and water power rights appurtenant thereto at Horseshoe Falls as those terms are used in paragraph 1 of

Schedule 1 to theAlberta NRTAA? Question 3: Does the Alberta NRTAA apply to either or both of Canada and Alberta to confirm, or in the alternative, create fiduciary ortrust obligations to the Plaintiffs, as set out in paragraph 1 of the Alberta NRTA, in regard to the bed and banks of the Bow andKananaskis rivers and in all waters and water power rights appurtenant thereto at Kananaskis Falls as those terms are used in paragraph 2of

Schedule 1 to the Alberta NRTAA? Question 4: Does the Alberta NRTAA apply to either or both of Canada and Alberta to create or confirm, or in the alternative, createfiduciary or trust obligations to the Plaintiffs, as set out in paragraph 1 of the Alberta NRTA, in regard to the bed and banks of the BowRivers at the Ghost site that lies within the boundary of the Stoney Indian Reserve as those terms are used in paragraph 3 of

Schedule 1to the Alberta NRTAA? Previous rulings [4] Canada and Alberta succeeded on an earlier application to strike questions on the first Notice of Question of ConstitutionalLaw filed by the Stoney Nakoda Nations. There were 15 questions. I held Question 15 to be a proper question of constitutional law. (Oralreasons for judgment dated April 19, 2012.) I struck the first 14 questions. [5] The Court of Appeal dismissed Canada and Alberta’s appeal from my decision on Question 15: Stoney Nakoda Nations v.Canada (Attorney General), 2012 ABCA 316.

The Stoney Nakoda Nations did not appeal my striking questions 1-14. [6] Question 15 stated: Can provincial limitations legislation, in particular the Alberta Limitations of Actions Act and the Alberta Limitations Act, be applied soas to result in the extinguishment or infringement of treaty rights or aboriginal rights protected under

section 35 of the Constitution Act,1982 and in particular the treaty rights asserted in the Amended Statement of Claim? Issues [7] Canada and Alberta say the questions in the second Notice do not comply with

section 24 of the Judicature Act; are resjudicata and an abuse of process as a restatement of questions I previously struck, and are not germane to the Main Applications. [8] The Stoney Nakoda Nations say striking the new questions is neither appropriate nor necessary. Constitutional questions donot have to be dealt with by a Court. There is no case law holding that striking notices of questions of constitutional law is an appropriateremedy. Striking the Notice would cause prejudice. Analysis

Legislation [ 9 ] Judicature Act , RSA 2000, c. J – 2 Section 24 (1) states: If in a proceeding the constitutional validity of an enactment of the Parliament of Canada or the Legislature of Alberta is brought into question, the enactment shall not be held to be invalid unless 14 days’ written notice has been given to the Attorney General of Canada and the Minister of Justice and Attorney General of Alberta.

Section 24 (2) states: When in a proceeding a question arises as to whether an enactment of the Parliament of Canada or of the Legislature of Alberta is the appropriate legislation applying to or governing any matter or issue, no decision may be made on it unless 14 days written notice has been given to the Attorney General of Canada and the Minister of Justice and Attorney General of Canada.

Section 24 (3) states: The notice shall include what enactment or part of an enactment is in question and give reasonable particulars of the proposed argument. [ 10 ] The Stoney Nakoda Nations do not seek a declaration of invalidity under s 24(1) by these questions, but say that s 24(2) requires that they give this notice because there is a question which legislation governs. Issues [ 11 ] Canada and Alberta say the new questions are the same as I have previously rejected. If they are the same, it would follow that they must be struck again.

If they are different, they must be assessed to see if they are valid constitutional questions. Do I have Jurisdiction to Strike Constitutional Questions? If so, should I? [ 12 ] The Stoney Nakoda Nations raise the issue that it is not appropriate to strike these questions. They simply give notice. Constitutional questions, even if properly asked, do not have to be answered. [ 13 ] As an aside, I note the definition of “pleadings” in the Alberta Rules of Court does not include a notice of constitutional question. Therefore, I ask why rule 3.68 (1)(

d) should be a foundation for the application to strike since the notice is neither “a commencement document or pleading.” [ 14 ] It is too late for either side to suggest that constitutional questions cannot be struck. I earlier ruled that they can be struck. The Court of Appeal did not hold my ruling striking the first 14 questions was inapt. The Federal Court has struck constitutional questions (Stoney Nakoda Nations Chiefs, supra ).

Do the Questions meet the requirements of s24 of the Judicature Act ? [ 15 ] The Court of Appeal has decided that questions essentially identical to the new questions meet the requirements of the Judicature Act . Are these Questions germane to the Main Applications? [ 16 ] In my view these questions are relevant to the Main Applications, assuming they are founded on the pleadings and evidence. Are these questions the same as those I had previously struck? [ 17 ] I attach Appendix A, a comparison chart of the new questions and the old. This chart is based on the applicants’ joint brief.

Though I have looked closely at these questions I am unable to see any difference between 4 new questions and questions 7, 9, 10, 11 and 12 in the first Notice of constitutional question. For that reason I will strike them. Conclusion [ 18 ] The four questions in the second Notice are essentially the same as five questions I had struck in the first Notice because they were not constitutional questions. Therefore they must be struck. [ 19 ] I note, as discussed in argument, that having argued these are not constitutional questions the Applicants will not be able to later suggest they are.

Heard on the 31 st day of May, 2013. Dated at the City of Calgary, Alberta this 20 th day of December, 2013 . P.J. McIntyre J.C.Q.B.A. Appearances: L. Douglas Rae, B. Barrett for the Plaintiffs (Respondents) R. Lee for the Defendant, The Attorney General of Canada S. Folkins, N. Dobson for the Defendant, Her Majesty the Queen in Right of Alberta Appendix A Comparison Chart NQCL 2 NQCL Questions Struck 1. Does the reference to “every undertaking” in

section 8 of the Alberta NRTA apply to the Horseshoe Lands, Kananaskis Lands and Ghost Lands, or any portion thereof? 7. Were the Horseshoe Lands and/or Kananaskis Lands “undertakings” referred to in paragraph 8 of the Alberta NRTA?

2. Does the Alberta NRTAA apply to either or both of Canada and Alberta to confirm, or in the alternative, create fiduciary or trust obligations to the Plaintiffs, as set out in paragraph 1 of the Alberta NRTA, in regard to the bed and banks of the Bow River and in all waters and water power rights appurtenant thereto at Horseshoe Falls as those terms are used in paragraph 1 of

Schedule 1 to the Alberta NRTA? 9. Does her Majesty the Queen in Right of Canada or Her Majesty the Queen in Right of Alberta have “title and control of the bed and banks of the Bow River or in the waters and water power rights appertaining thereto” as those terms are used in paragraph 4 of

Schedule I to the National Resources Transfer (Amendment) Act, 1945, S.C. 1945, c. 10 (The Alberta “NRTAA”)? 10. In regard to “the water power at Horseshoe Falls” as that term is used in paragraph 1 of

Schedule 1 to the Alberta NRTAA, do either or both of Canada and Alberta have fiduciary or trust obligations to the Plaintiffs?” 3. Does the Alberta NRTAA apply to either or both Canada and Alberta to confirm, or in the alternative, create fiduciary or trust obligations to the Plaintiffs, as set out in paragraph 1 of the Alberta NRTA, in regard to the bed and banks of the Bow and Kananaskis rivers and in all waters and water power rights appurtenant thereto at Kananaskis Falls as those terms are used in paragraph 2 of

Schedule 1 of the Alberta NRTAA? 11. In regard to “the water power at Kananaskis Falls” as that term is used in paragraph 2 of

Schedule 1 to the Alberta NRTAA, do either or both of Canada and Alberta have fiduciary or trust obligations to the Plaintiffs? 4. Does the Alberta NRTAA apply to either or both of Canada and Alberta to create or confirm or in the alternative, create fiduciary or trust obligations to the Plaintiffs, as set out in paragraph 1 of the Alberta NRTA, in regard to the bed and banks of the Bow Rivers at the Ghost site that lies within the boundary of the Stoney Indian Reserve as those terms are used in Paragraph 3 of

Schedule 1 to the Alberta NRTAA? 12. In regard to “water power at the Ghost site” as that term is used in paragraph 3 of

Schedule 1 to the Alberta NRTAA, do either or both of Canada and Alberta have fiduciary or trust obligations to the Plaintiffs?