Stoney Nakoda Nations v Canada, 2016 ABQB 193

Court of Queen ’ s Bench of Alberta Citation: Stoney Nakoda Nations v Canada, 2016 ABQB 193 Date: 20160405 Docket: 9901 03798 Registry: Calgary Between: Stoney Tribal Council and Bearspaw, Chiniki and Wesley Bands Plaintiffs/Respondents - and - Her Majesty The Queen In Right of Canada, Canadian Pacific Railway Company, and Encana Corporation (formerly PanCanadian Petroleum Ltd.) Defendants/Applicants And: Her Majesty the Queen in Right of Canada, Canadian Pacific Railway Company, Canadian Pacific Ltd., Fairmont Hotels and Resorts Inc., PanCanadian Petroleum Ltd. and Encana Corp. Third Parties The Attorney General of Alberta Intervenor

_______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ Table of Contents I. Introduction . 3 II. Positions of the Parties . 4 III. Test for

Summary Dismissal 6 IV. SNN’s claims against CPR and Encana . 9 V. Claims against CPR .. 15 A. For Return of in situ PNG .. 15 B. For Trespass Related Claims and the Claim in the Alternative . 15 i. Are limitations laws applicable? . 15 ii. What are the applicable limitations laws? . 22 iii. Procedural background . 25 iv. Factual background . 25 v. Are these claims out of time and therefore without merit? . 33 VI. Claims against Encana . 35 A. For Return of in situ PNG .. 35 i. Overview .. 35 ii. Factual and legislative background . 36 a. Land Parcel 13T3 . 48 b. Land Parcel 15T133 . 53 c. Discussion . 56 iii.

Were the PNG alienated to CPR? . 58 a. Parties’ positions . 58 b. Discussion . 61 iv. Are Encana’s titles indefeasible? . 65 a. Parties’ positions . 65 b. General principles . 66 c. Evidence . 68 1. Agreement of 1958 . 68 2. Agreement of 1963 . 70

3. CPOG Act 1965 . 70 4. Agreement of 1969 . 72 d. Conclusion with respect to indefeasibility . 74 v. Has Encana proven extinguishment of Aboriginal Rights? . 75 VII. Matters Not Addressed . 76 VIII. Conclusion . 77 I. Introduction [ 1 ] Encana Corporation (“ Encana ”) and the Canadian Pacific Railway Company (“ CPR” ) apply for

summary dismissal. They say the plaintiffs, Stoney Tribal Council representing the Chiefs, Councils and members of the Bearspaw, Chiniki and Wesley Bands (also known as the Stoney Nakoda Nations) (“ SNN ”), commenced this action after expiry of the applicable limitation period. [ 2 ] The SNN are suing Encana and CPR for trespass and conversion of petroleum, natural gas and related hydrocarbons (“ PNG ”) that they say is theirs.

They say that Her Majesty the Queen (“Canada” ) breached the duties she owed to the SNN in the late 1800s and early 1900s, by transferring without their consent, and otherwise transferring invalidly and unlawfully, their PNG to CPR, which were later conveyed to its wholly owned subsidiary, now Encana. Canada transferred to CPR portions of the SNN’s reserve lands [1] (by issuing Orders in Council followed by 13 Letters Patent between July 10, 1893 and August 14, 1917 (the “ Railway Lands ”).

The SNN say, further, that in fact the purported transfer was not effective at law and that they are still the lawful owners of the PNG and that they remained with the PNG or that it has reverted to the Reserve Lands. They later said there actually was never any transfer and that they continue to be the lawful owners of the PNG. The SNN allege that CPR and Encana have trespassed on and wrongfully removed PNG. The SNN claim various forms of redress.

The SNN say, in the alternative, that if the conveyance of lands to the CPR validly included the PNG, then CPR did not properly compensate them at the time. [ 3 ] The SNN say this is not an appropriate case for

summary dismissal. They submit that a trial is necessary for the court to adjudicate the issues fairly. Further, they say the applicable limitation periods have not expired, but in any event are constitutionally inapplicable because in this case their effect would be to infringe or extinguish their Aboriginal rights, Aboriginal title, Aboriginal interests, reserve interest and treaty rights (the “ Aboriginal Rights ”) [2] in the PNG. [ 4 ] Encana says, in addition to the claims being out of time, that it cannot be a trespasser on its own property, property that is registered in its name.

Encana says the SNN claims fail because of the indefeasibility of its title. [ 5 ] The SNN say Encana cannot rely on indefeasibility since it was not a bona fide purchaser for value of the PNG, but rather received it in a non-arm’s length transfer from CPR. In any event, they argue, the statutory indefeasibility doctrine is also constitutionally inapplicable because its effect in this case would be to extinguish their Aboriginal Rights in the PNG. [ 6 ] Canada, also a defendant, has not applied for

summary dismissal. Nevertheless it participated in these applications, as did the Attorney General of Alberta (“ Alberta ”), to respond to the SNN’s challenges to the vires of their respective legislation. None of the findings of fact in this decision prejudice the positions of the SNN and Canada in the issues between them in this litigation. [ 7 ] For the reasons that follow, I grant the application of the CPR, dismissing all claims against it, and deny the application of Encana. II.

Positions of the Parties [ 8 ] Encana says the SNN’s pleadings only claim damages and that claims for damages are subject to time limitations. Encana says the alleged causes of action arose in the 1800s and the early 1900s, when CPR acquired fully the PNG or, failing that, roughly 50 years ago when it acquired the PNG from CPR. It argues all claims against it are therefore time barred. [ 9 ] Encana says, in any event of the claim only seeking damages and therefore being out of time, that any interest or right in PNG that the SNN may have once had was extinguished long ago by Canada’s alienation to CPR.

Encana says that the Letters Patent conveyed a fee simple interest to CPR. CPR thereby acquired a common law right of exclusive possession and ownership which, of itself, extinguished the SNN’s Aboriginal Rights. If Encana shows this to the

summary dismissal standard, then Encana’s and CPR’s Applications should be granted because the Aboriginal Rights would not have been extinguished by application of any legislation that the SNN impugn constitutionally, but by the alienation. [ 10 ] Encana also relies on being the registered owner to the PNG on the certificate of title and argues s that its ownership interest is indefeasible regardless of whether the PNG were conveyed to CPR originally. Encana says that it purchased the mineral rights, as reflected in its titles, in the ordinary course of business and in good faith for valuable consideration.

Encana argues that the SNN only claim damages and do not impugn Encana’s title. Encana submits that the transaction that followed, passing the PNG from CPR to what is now Encana, makes it no longer possible to void the title and it remains valid. Encana argues that it cannot be a trespasser on or converter of the PNG because it has title to the PNG and even if the SNN were to challenge Encana’s title, they are out of time. Encana

argues that possession must be proved by either actual possession or that which derives by title. [ 11 ] CPR agrees with Encana and adds that, in any event of those arguments, the trespass and conversion claims against it should also be dismissed summarily because whatever interest it had in the PNG was divested upon transfer to Encana’s predecessor CPOG [3] in 1965. Therefore, there can be no claim against CPR for return of the PNG and any claim for damages against it expired by operation of limitations legislation years ago.

Encana in its application relies upon the limitations legislation applicable at the time of the conveyance to the SNN.

CPR supports Encana’s argument, but also relies on limitations legislation applicable at the time of the commencement of this lawsuit. [ 12 ] With respect to the SNN’s claim against CPR in the alternative, for damages for under-compensation (if the Court finds that the PNG were included in the transfer to CPR), CPR says it is subject to the limitations legislation applicable at the time the action was started and is therefore out of time. [ 13 ] The SNN argue that what is being sought by CPR and Encana is, in effect, an extinguishment of the SNN’s treaty rights and interest in the Reserve Lands and extinguishment of Her Majesty’s interest in those Reserve Lands at the time of the conveyance to CPR.

The onus, they say, is on the Applicants to prove that the SNN’s Aboriginal Rights in the Reserve Lands were already extinguished, for example by operation of any of the various pieces of legislation such as the Indian Act , Railway Act , limitations legislation or by real property instrument.

The SNN argue that regardless of how their Aboriginal Rights in the PNG within the Railway Lands is purported to have been extinguished, the Applicants bear the onus of proving that the Governor in Council clearly and plainly intended to extinguish the SNN’s Aboriginal Rights in the PNG and, if so, must also prove that the Governor in Council had the requisite statutory authority to do so. [ 14 ] Regarding the Applicants’ limitations argument, the SNN say that limitations legislation is constitutionally inapplicable to their claims, since its application would extinguish their rights to the PNG, which the Applicants have failed to prove was previously extinguished.

In oral argument the SNN claimed a continued treaty right to the PNG underlying the Railway Lands in circumstances where the lands were taken without consent or where fair value was not obtained on their behalf. They add that based on the Lieutenant Governor’s account of the treaty negotiations and what was promised, the treaty rights include the right to reserve lands being set aside and the right to exclusive use and occupation for the SNN’s benefit.

The SNN further argue that it entails the right to have the Reserve Lands not sold or taken without the SNN’s consent and if sold or taken with consent, then Canada needed to ensure fair compensation. [ 15 ] The SNN add that what is critical here constitutionally is the sui generis interest in these lands, regardless of whether what was obtained by the CPR was fee simple, fee simple determinable, mere right-of-way, or some other property right, and regardless of how it was obtained.

The Applicants not only need to show that there was an intention to extinguish SNN’s Aboriginal Rights, but they also need to show that the intent was plain and clear. [ 16 ] The SNN argue that considering the magnitude of the issues and the nature and strength of the evidence, it is not possible for the Court to adjudicate fairly and justly on this record. These factors warrant a trial not a

summary process. They say in this case the Court should not adjudicate summarily: [...] due to the importance of the constitutional issues that have been raised by these Applications, not just to the parties but also to First Nations and society as a whole, granting a

summary judgment at this stage on this record, would not be an appropriate remedy. [ 17 ] Alberta opposes any finding of constitutional inapplicability of its legislation.

It urges the Court to exercise restraint, deciding issues whenever possible without determining a constitutional question. [ 18 ] Alberta says the constitutional issues are largely predicated on the existence of Aboriginal rights, Aboriginal title or treaty rights, but the SNN are not seeking any remedies that would require the Court to determine whether the lands are subject to Aboriginal rights, title or treaty rights and whether those alleged rights have been infringed or extinguished. [ 19 ] Alberta submits that the SNN are not alleging treaty rights or Aboriginal interest to damages and argue that they cannot claim Aboriginal rights in a generic way.

Alberta submits that there is nothing in the pleadings that relates to Aboriginal rights; therefore there can be no constitutional challenge that relates to Aboriginal rights. Similarly, with respect to treaty rights, Alberta submits that although there is a general statement from the SNN that the subject lands are reserve lands, in light of the pleadings, there is no specific treaty right alleged to be infringed. The SNN have failed to show how the specific legislation has infringed those rights. [ 20 ] Alberta agrees with Encana that its mineral title to the PNG is indefeasible.

It submits that if there were an issue regarding an alleged improper transfer of mines and minerals from the SNN, such an issue would be between that original grantor and the SNN. It does not follow through to impair the title of subsequent owners of the land. [ 21 ] Alberta adds that issues of trespass are determined based on who has current possession, not who should have proper title, and the issue here is not whether the land should have been alienated but whether it was alienated.

Alberta says whether the SNN still have an interest in the land is a factual matter that needs to be proven on the information that is before the Court and it has not been. III. Test for

Summary Dismissal [ 22 ] Encana and CPR apply for

summary dismissal pursuant to rule 7.3(1) (

b) of the Alberta Rules of Court , Alta Reg 124/2010, which states: 7.3

(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: […]

(

b) there is no merit to a claim or part of it; [ 23 ] The Alberta Court of Appeal summarized the test to be applied in such applications in Maxwell v Wal-Mart , 2014 ABCA 383 : 11 Rule 7.3(1)(

b) provides that a party may apply to the Court for

summary judgment in respect of all or part of a claim where, among other reasons, there is no merit to the claim. […] 12 This test has been recently interpreted to be somewhat wider than the rule it replaced, which required an applicant to demonstrate that there was no genuine issue which could or should be put to trial. Under the new Rule, no genuine issue for trial exists where the judge is able to make a fair and just determination on the merits without a trial, because the

summary judgment process allows him or her to make the necessary findings of fact, to apply the law to those facts and is a proportionate, more expeditious and just means to achieve a just result. Under the new Rule,

summary judgment may be granted if a disposition that is fair and just to both parties can be made on the existing record: see Windsor v Canadian Pacific Railway Ltd. , 2014 ABCA 108 at para 13 ; Combined Air Mechanical Services Inc v Flesch , 2011 ONCA 764 at paras 45-55 , 108 OR (3d) 1. [ 24 ] These comments derive from the Supreme Court of Canada’s decision in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87: 49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. 50 These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.

It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. [ 25 ] The Alberta Court of Appeal in WP v Alberta , 2014 ABCA 404 at paragraph 26 , has said the question now is whether there is: [A]ny issue of “merit” that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily. [emphasis in original] [ 26 ] A claim is without merit “if the facts and the law make the moving party’s position unassailable and entitle it to the relief it seeks.

A party’s position is unassailable if it is so compelling that the likelihood of success is very high”: Access Mortgage Corporation

(2004) Limited v Arres Capital Inc , 2014 ABCA 280 at para 45 [ Access Mortgage ], citing Beier v Proper Cat Construction Ltd., 2013 ABQB 351 at para 61 . [ 27 ] The Alberta Court of Appeal elaborated further in 776826 Alberta Ltd. v Ostrowercha , 2015 ABCA 49 , at paragraphs 9 to 12 : 9 [...] From the process perspective,

summary judgment can be given if a disposition that is fair and just to both parties can be made on the existing record by using that alternative method for adjudication: Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87. 10 From the substantive perspective,

summary judgment can be granted if, in light of what that fair and just process reveals, there is no merit to the claim.

No “merit” means that, even assuming the accuracy of the position of the non-moving party as to any material and potentially decisive matters -- matters which would usually require ordinary forensic testing through a trial procedure with viva voce evidence and which could not be resolved through the fair and just alternative -- the non-moving party’s position viewed in the round has no merit in law or in fact. 11 Stated another way, in order for the non-moving party’s case to have merit, there must be a genuine issue of a potentially decisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the “fair and just process”.

The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice.

The key is whether the circumstances require viva voce evidence in order to properly resolve the case: see Canada v Lameman , 2008 SCC 14 at paras 10 to 11 , [2008] 1 SCR 372. 12 The concept of “merit” in this respect is to be distinguished from the test for striking out pleadings under Rule 3.68 which involves deciding “whether there is any reasonable prospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed”: compare Ernst v Alberta (Energy Resources Conservation Board) , 2014 ABCA 285 at paras 13 to 15 , 85 CELR (3d) 39, under motion [2014] SCCA No 497 (QL). [ 28 ] In Access Mortgage , the Alberta Court of Appeal adopted portions of a consolidation of

summary judgment principles contained in a decision of this Court. Chief Justice Wittmann adopted them all in Attila Dogan Construction and Installation Co. v AMEC Americas Limited , 2015 ABQB 120 at paragraph 51 (affirmed, 2015 ABCA 406 ), as follows: First, the legal or persuasive burden rests on the moving party... The moving party must present the facts which, in combination with the applicable law, make its position unassailable if the nonmoving party does not contest the facts and the law... Second, the nonmoving party has no legal or persuasive burden to discharge... In some circumstances the nonmoving party may be at risk of losing the

summary judgment application if it fails to present a version of the facts which is inconsistent with that relied on by the moving party... Third, the motions court may not make findings of credibility and resolve contested fact issues... That a controversy over nonmaterial facts exists is irrelevant.

Fourth, if the law is unclear, either because the moving party is seeking to extend the scope of a well established proposition or to make new law, a chambers judge may decline to resolve the dispute. This is so even though the trial judge is, arguably, in no better position to decide this challenging legal issue than the chambers judge. The chambers judge may legitimately conclude that her proper role is to identify unassailable positions, which assumes the law on the issue is settled, not develop the law in the course of a

summary judgment chambers application. Fifth, a nonmoving party’s argument that questioning or trial may produce evidence which assists the nonmoving party is without merit. [ 29 ] This latter principle was affirmed as continuing to apply under the new approach to

summary judgment applications in CCS Corp. v Secure Energy Services Inc. , 2014 ABCA 390 at paragraph 56 : In oral argument, counsel for CCS mentioned there were other witnesses whom he would call at trial. But a party resisting

summary judgment achieves nothing by suggesting that it will offer better evidence at trial; it must put its best foot forward for the application. See Lameman (Papaschase Indian Band) v A-G Canada , 2008 SCC 14 , [2008] 1 SCR 372, 372 NR 239 (paras 11 , 19); Access Mortgage Corp (2004) v Arres Capital Inc , supra (para 45 ); Beaver Hills v Greenstreet Development Corp , 2013 ABCA 360 , [2013] AR Uned 425 (Oct 29).

Suspicion is not enough: Beaver Hills case. [ 30 ] In Attila Dogan at paragraph 52, Chief Justice Wittmann added the following to the list of principles, which amplifies the Supreme Court of Canada’s element of proportionality in Hryniak , quoted above: [...] [T]he principle of proportionality will require that the procedure used to adjudicate the dispute should fit the nature of the claim, but proportionality has more than one aspect. The magnitude of the claim in terms of monetary value may have some place in this analysis, but the nature of the claim will as well.

It has been recognized, for example, that disputes over the

interpretation of an instrument, such as a contract, may lend themselves particularly well to

summary judgment: Tottrup v Clearwater (Municipal District 99) , 2006 ABCA 380 . [ 31 ] When the legal issue is unsettled, complex and intertwined with the facts, “it is sometimes necessary to have a full trial to provide a proper foundation for the decision”: Tottrup v Clearwater (Municipal District 99) , 2006 ABCA 380 at paragraph 11 , affirmed post Hryniak by the Alberta Court of Appeal in Windsor and again in Amack v Wishewan , 2015 ABCA 147 at paragraph 36 : Accordingly, a full trial will still be required where a

summary record cannot fairly be used to decide legal issues which are unsettled, complex or intertwined with the facts: see Gayton , supra at para 11; Condominium Corporation No. 0321365 v MCAP Financial Corporation , 2012 ABCA 26 at para 5 , 519 AR 322; Elbow River Marketing Limited Partnership v Canada Clean Fuels Inc ., 2012 ABCA 328 at para 6 , 539 AR 68. This is consistent with the principle set out in Hryniak that

summary judgment is appropriate where the motion judge is confident that he or she can fairly resolve the dispute: see paras 50, 57. If not so confident, then a trial is in order. IV. SNN’s claims against CPR and Encana [ 32 ] Are SNN’s claims against CPR and Encana limited to damages? A number of the parties say they are and that, as a consequence, many of the SNN responses to

summary dismissal have no application here. [ 33 ] In the context of an Aboriginal case, the Supreme Court of Canada has said that

summary dismissal applications are judged on the basis of the pleadings and materials actually before the Court, not on suppositions about what might be pleaded or proved in the future: Canada (AG) v Lameman , 2008 SCC 14 at para 19 . More recently the Supreme Court of Canada appears to have relaxed that somewhat, holding that a functional not technical approach should be taken to pleadings in Aboriginal cases: Tsilhqot’in Nation v British Columbia , 2014 SCC 44 , at paras 20-24 .

Regardless, the starting point for an application of this nature is to ascertain just what the plaintiffs are claiming. [ 34 ] That is not so easy a task in this case.

The SNN’s pleadings and ever expanding “particulars” in this case resemble what Binnie J denounced in Lax Kw’alaams Indian Band v Canada (AG) , 2011 SCC 56 : 41 [...] The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight. [ 35 ] The Alberta Court of Appeal had occasion to consider these very pleadings, though without the last nine years of added “particulars” and the most recent amendment to the Amended Statement of Claim.

It observed in Stoney Tribal Council v PanCanadian Petroleum Ltd. , 2005 ABCA 204 : 11 The wording and terminology of the amended statement of claim, and of the respondent plaintiffs’ reply to demand for particulars, is at times vague or inclusive, not tending to restrict itself to any specifics. [...] [...] 15 […] The amended statement of claim on its face seems to us to cry out for some particulars, if there is not to be endless discovery of unknown extent, and serious confusion at trial.

Discoveries should not become a history seminar on the C.P.R. and land grants in Western Canada. [ 36 ] Regrettably for the task at hand, the particulars supplied following the directions of the Court of Appeal added claims and broadened others. The “particulars” lack the precision and specificity necessary to clarify and bring focus to the claims. Encana’s counsel called them “[I]ncoherent on their face”. [ 37 ] CPR also voiced this concern, arguing that the SNN used particulars to expand the nature of their claims, going against the nature of particulars.

CPR acknowledged, however, that no party formally objected in that regard at the time the SNN filed and served its

particulars, and no party pursued any remedy for the approach taken by the SNN. [ 38 ] CPR argued that the SNN’s expansive approach to particulars was further aggravated by the SNN then taking positions in argument on these applications that are contrary to allegations in their pleadings. CPR identified the following allegations in the SNN’s briefs that contradict their pleadings: (

a) The mines and minerals underlying the Railway Lands were not acquired by CPR; (

b) CPR did not convey all of its mine and mineral interests in Alberta, including those underlying the Railway Lands, to CPOG in 1965; and (

c) Oil and gas may never have been produced from the Railway Lands by CPR, Encana’s predecessors, Encana or anyone. [ 39 ] Encana also submits that the SNN’s claim is unclear and contradictory. It says the SNN in their pleadings concede that Canada conveyed the PNG to CPR, but the arguments later advanced were inconsistent with that concession.

Encana argues that Further Reply (No.4) to Demand for Particulars is not an amendment to the Statement of Claim, and that without actually amending its Statement of Claim, the SNN’s pleadings are deficient. [ 40 ] The SNN explained that they made no admission in their pleadings but merely paraphrased what was purported to have been transferred in 1893 to 1917 and then later in 1965. [ 41 ] Encana argues that the SNN have not pleaded any facts which would entitle them to bring an action for the recovery of land and that the SNN can only acquire status to maintain this action if they can successfully impugn Encana’s title.

Encana adds that the SNN’s claim is one for damages and that there is no claim of treaty rights or Aboriginal rights. Encana says it enjoys indefeasible title. [ 42 ] Alberta submits that recovery of land is not pleaded and only damages are claimed. [ 43 ] Canada agrees with Encana, CPR and Alberta. It argues that on the face of the pleadings, the SNN are seeking damages and/or an accounting of damages and are not asserting any Aboriginal title or right. [ 44 ] The SNN’s Amended Amended Statement of Claim (the “ Statement of Claim ”) seeks only damages and an accounting for trespass and conversion.

They allege that Canada, in breach of duties it owed to the SNN, transferred the SNN’s PNG to CPR. They allege that CPR and its affiliate Encana purport to have title to that PNG yet lawfully do not and, further, that they have trespassed by removing that PNG. The SNN also claim against CPR, in the alternative, that if the transfer by Canada to CPR did validly include the PNG, then CPR failed “to properly compensate” the SNN at the time.

For this alternate plea the SNN also claim damages. [ 45 ] However, at paragraph 19 the SNN add that under the Railway Act CPR was not permitted to take PNG, did not acquire any PNG, and was required to compensate the SNN for the lands taken: (

a) CPR was only permitted to take Indian Reserve land for railway purposes with the consent of the Governor-in-Council; (

b) Upon such consent, CPR was permitted to take only those lands and only those materials required for the construction and maintenance of the railway, which may include stone, gravel, sand or water, but not petroleum, natural gas, or related hydrocarbons (or all of those); (

c) CPR did not acquire an interest in any minerals underlying Indian Reserve lands except those required for the construction and maintenance of the railway, which may include stone, gravel, sand, water, but not petroleum, natural gas, or related hydrocarbons (or all of those); and (

d) CPR was required to compensate the Bands for all Railway Lands taken. [ 46 ] By way of particulars the SNN further allege that any portion of the Railway Lands no longer used for railway purposes had to revert back to reserve status. They allege that under this scenario the purported conveyance of the PNG by CPR to its subsidiary, Encana’s predecessor CPOG, triggered the reversion. [ 47 ] The SNN acknowledge that their pleadings do not claim the recovery of the property. They say that is because the PNG were never conveyed or transferred to CPR in the first place (despite pleading that they were).

The SNN submit that CPR only obtained a right-of-way and nothing more. They say they should not have to plead for recovery of what is and always has been theirs. They do not seek a declaration to that effect. [ 48 ] The SNN say the “basket clause” at the end of their prayer for relief allows the Court to grant declaratory relief or any remedy that the facts pleaded support. The SNN also submit that what is important is that the material facts they pleaded support a cause of action. [ 49 ] The SNN argue that the pleadings allege sufficient facts for the title to be declared void.

The SNN refer to the following subparagraphs of paragraph 1 of the Further Reply (No. 4) to Demand for Particulars: k. In circumstances where CPR’s statutory interest and title to the Railway Lands did not include the P & NG, any purported alienation, conveyance, transfer, assignment or any other disposition of the P & NG by CPR to Encana, through Encana’s predecessors in title and interest, Canadian Pacific Oil and Gas Company and any of its successors, was unlawful and any such purported conveyance, transfer, assignment or any other disposition was void ab initio or, in the alternative, voidable. […] n.

In the alternative, If [ sic ] CPR did properly take and appropriate all or any portion of the Railway lands [ sic ], which is denied, and any

such taking and appropriation of the Railway Lands included all or any portion of the P & NG, which is denied, then CPR’s statutory interest and title to the P & NG was conditional and remained, at all material times, conditional on such P & NG continuing to be used for railway purposes. o. CPR’s statutory interest and title specifically excluded the right to alienate the said P & NG.

Any alienation of the said P & NG by CPR is irrefutable evidence that the said P & NG was not required for railway purposes and in such circumstances title to the P & NG would revert to reserve status by operation of the underlying reversionary interest in favour of Her Majesty, on behalf of the Plaintiffs. […] r.

In circumstances where any of CPR’s activities or dealings were inconsistent with or contrary to the provisions of the Railway Acts, CPR’s possession, use or occupation of the P & NG became unlawful and CPR’s statutory interest and title was rendered void ab initio, or alternatively voidable, and the title to the P & NG would revert to reserve status by operation of the underlying reversionary interest in favour of Her Majesty, on behalf of the Plaintiffs. […] v.

In circumstances where any of Encana’s activities or dealings were inconsistent with or contrary to the provisions of the Railway Acts, which includes the purported alienation of the title by CPR to Encana, then Encana’s possession, use and occupation of the P & NG became unlawful and Encana’s statutory interest and title was rendered void ab initio, or alternatively voidable, and the title to the P & NG would revert to reserve status by operation of the underlying reversionary interest in favour of Her Majesty, on behalf of the Plaintiffs. [ 50 ] The SNN’s replies to demands for particulars also use the term “recovery”.

Counsel for the SNN in their later arguments relied on those instances to suggest that the SNN actually did plead for recovery of the PNG. Specifically, they refer to subparagraphs of paragraph 2 as well as paragraph 3.d. of the Further Reply (No. 4) to Demand for Particulars (emphasis added): 2.a.

The Plaintiffs’ claim against CPR includes an accounting, damages and the recovery of all P & NG that was taken and appropriated by CPR and was in the possession, use or occupation of CPR, whether such taking and appropriating and possession, use or occupation was unlawful or, alternatively, became unlawful due to CPR’s subsequent conduct, as particularized in the pleadings and this Further Reply (No. 4). b.

The Plaintiffs’ claim against Encana includes an accounting, damages and the recovery of all P & NG that was in the possession, use and occupation of Encana , whether such possession, use or occupation was unlawful or, alternatively, became unlawful due to Encana’s subsequent conduct, as particularized in the pleadings and this Further Reply (No. 4). c.

The Plaintiffs’ claim for an accounting, damages and recovery of all P&NG includes all P & NG that currently underlies or remains part of the Railway Lands as well as all P & NG that was recovered , removed and sold that did underlie or was part of the Railway Lands, whether such recovery, removal and sale of the P & NG was conducted directly by CPR or Encana or by other third parties on behalf of CPR or Encana through any mineral leases or other forms of mineral dispositions purported to have been granted by CPR or Encana to any third parties from time to time. [...] 3.d.

The Plaintiffs claim’ [ sic ] for an accounting, damages and recovery includes all P&NG underlying the Railway Lands or forming part of the Railway Lands that has been recovered, removed and sold from any wells that may have operated on the Railway Lands from time to time, as well as all P & NG underlying the Railway Lands or forming part of the Railway Lands that has been recovered, removed and sold from any wells that may have operated outside of the Railway Lands, from time to time, where a proportionate share of the P & NG that is recovered, removed and sold from any such wells are apportioned to the Railway Lands pursuant to the terms of the applicable Unit Agreement or Unit Agreements. [ 51 ] Some of those uses of the word “recovery” are not referring to the SNN’s recovery of the PNG remaining in situ , but of the SNN’s recovery of PNG already removed.

Their pleadings use phrases such as “that has been recovered, removed and sold”, “that was in the possession, use and occupation of Encana” and “that was taken and appropriated by CPR”. These are references to PNG removed from the Railway Lands in the past, for which the SNN want to recover the lost value. Any such PNG already severed from the land is no longer available for return, so only damages can be pursued for that loss.

See: Stoney Tribal Council v PanCanadian Petroleum Limited , 2000 ABCA 209 at para 27 . [ 52 ] Other uses by the SNN of the word “recovery” also do not refer to future return to the SNN of what they say is theirs, but refer to recovery of the PNG from out of the subsurface formations. That is, they refer to the production of the PNG, not the return of PNG. This appears in the Further Reply (No. 4) to Demand for Particulars, for example: “whether such recovery, removal and sale” and “exploring, drilling and recovering”.

When the word “recovery” appears in these particulars, claims for a declaration as to title or rectification of title or return to the SNN of the in situ PNG are not being made. [ 53 ] However, when the SNN state at para 2(

c) that they “claim for an accounting, damages and recovery of all P&NG” and that it “includes all P&NG that currently underlies or remains part of the Railway Lands”, they are seeking the return of in situ PNG. [ 54 ] There the SNN refer to the recovery of all in situ PNG as if they already pleaded the cause of action and are now merely particularizing it. Yet this is the very first mention of it. Until the Further Reply (No. 4) to Demand for Particulars, they made no such plea. As previously mentioned above, however, the Applicants did not formally object to this obvious and significant expansion to the claims. [ 55 ] Nevertheless, by that lone phrase at para 2(

c) of the Further Reply (No. 4), in combination with the SNN’s allegations of fact, including those related to possible grounds for any title presently held by CPR or Encana being void or voidable, I find that the SNN do

expressly claim for more than just damages. They also seek the return of any PNG that remains in situ . [ 56 ] I find the SNN’s pleadings entail a foundation for more than just a claim in damages or an accounting against Encana and CPR. The SNN assert that the PNG were either always the SNN’s property or reverted back from CPR for their benefit at the time CPR attempted to convey them to CPOG.

In their various sets of meandering pleadings and expanding particulars, enough facts are pleaded to support the SNN’s position that their interest in the PNG was not extinguished when Canada granted the Railway Lands to CPR from 1893 to 1917 and they now seek the full return of any PNG remaining in situ . [ 57 ] The critical feature is not the prayer for relief, but the facts alleged: Boreta v Jafar , 2007 ABCA 212 , [2007] SCCA No 439, leave to appeal to SCC refused, 32228 (24 January 2008) at para 12.

In PTL Bobcat and Landscape Services Ltd. v 1149218 Alberta Ltd. , 2013 ABQB 158 at paragraph 28 , the Court stated that “although it is advisable that the pleadings state the relief requested, an omission of that is not fatal i[f] the relief can be inferred from the pleadings.” [ 58 ] Since the SNN claim that the PNG never stopped being part of the Reserve Lands (or alternatively reverted to being part of the Reserve Lands or to Canada for the SNN’s benefit as Reserve Lands), claim trespass and conversion of produced PNG, and claim recovery of in situ PNG, neither Encana nor CPR should be left with any doubt about the core allegations they are now called on to answer.

The functional not technical approach to pleadings in Aboriginal cases endorsed by the Supreme Court of Canada in Tsilhqot’in Nation further compels this conclusion. [ 59 ] Both Encana and Alberta also argue more generally that this is not an “Aboriginal case”, but merely a case in which some of the litigants happen to be Aboriginal. That may have been true of the initial claim, but many of the particulars subsequently filed clearly assert “infringement of ...

Treaty rights, Aboriginal title, Aboriginal rights and Aboriginal interests in the Reserve Lands” [4] : see Further Reply (No. 4) to Demand for Particulars at para 1) i, l, p, and t. Further, these

summary dismissal applications accept just for purposes of these applications that the SNN had Aboriginal Rights to the PNG, but say they were alienated at the time of the transfer to CPR. In response to that claim the SNN say that granting

summary dismissal would have the effect of extinguishing those prior Aboriginal Rights. [ 60 ] In

summary on this threshold issue, I find that the SNN claim the following relief. Against CPR they claim for damages and/or an accounting for unlawful possession, use or occupation, trespass and conversion (collectively, the “ Trespass Related ” claims).

The SNN’s claim in the alternative for an accounting by CPR for all PNG unlawfully removed from the Railway Lands is not a separate further cause of action, but a notice of the further step they intend to pursue to determine the quantum of damages if a “remedial order” (in the sense used in applicable limitations legislation) is granted based on one of the Trespass Related claims. Therefore, I find that all Trespass Related claims are claims for damages. They also claim for recovery of in situ PNG.

In the alternative, if CPR validly received the PNG as part of its original acquisition of the Railway Lands, then the SNN claim for damages from CPR for it under-paying for lands that included mineral rights. Against Encana the SNN claim the Trespass Related claims and for return of in situ PNG. [ 61 ] The SNN claims, therefore, are not limited to damages alone. V. Claims against CPR A. For Return of in situ PNG [ 62 ] I find no merit to the claim against CPR for return of the PNG, since there is no evidence that CPR has any current interest in the PNG or in any way is in possession of the PNG.

If after a trial in this matter it is determined that Canada still “own” the PNG for the benefit of SNN or a reversionary interest in the PNG was triggered, and they are entitled to return of any in situ PNG, it will not return from CPR. [ 63 ] The latest that the CPR may have owned the PNG, if at all, was either around 1965 at the time of the The Canadian Pacific Oil and Gas Limited Minerals Act , SA 1965, c 106 (the “ CPOG Act ”), and associated agreements, or around January 19, 1977 in respect of Certificate of Title 13T3, when the agreed conveyance of Railway Lands PNG was finally effected by registration.

The agreements and statute purported to transfer the beneficial title in the PNG to CPOG; the conveyance of legal title appears to have lagged after that date somewhat. [ 64 ] From the record before the Court, only one of three possibilities occurred:

(1) CPR never received title to the PNG;

(2) CPR received title to the PNG in acquiring the full fee simple interest in the Reserve Lands and then later (at or after 1965) conveyed the PNG rights to CPOG; or

(3) CPR received title to the PNG subject to a determinable reversionary interest which was either triggered in or around 1965 or conveyed there with the PNG. Put another way, either CPR never took title to the PNG in the first place, or it did take title but transferred it around 1965 or later upon registration. None of these possibilities result in CPR currently having an ownership interest to any PNG claimed by the SNN. [ 65 ] CPR could only be at risk of having to return in situ PNG to the SNN if it currently has an interest in the Railway Lands’ in situ PNG.

Nothing on this record suggests that to be possible. The claim for return of in situ PNG against CPR is without merit, has no hope of succeeding and therefore is dismissed. B. For Trespass Related Claims and the Claim in the Alternative [ 66 ] The rest of the claims against CPR seek monetary damages as the remedy. i. Are limitations laws applicable?

[67] The SNN do not say that limitations laws never apply to Aboriginal claimants or claims, but say that in this case they do notapply. They say that whether limitations legislation has the effect of extinguishing substantive rights remains a live issue in Canada andtherefore their claims should not be dismissed summarily. [68] It is correct that some uncertainty remains at law on whether limitations legislation is substantive or procedural. Tolofson vJensen, (SCC), [1994] 3 SCR 1022, and Castillo v Castillo, 2005 SCC 83, most notably, hold it is substantive.

Somejudicial comment restricts this to conflicts of laws cases; others extend it further: see for example Heuman (Next Friend of) v Andrews,2005 ABQB 832; Aucoin v Murray, 2013 NSSC 37. [69] Other cases conclude limitations legislation to be procedural only. In Epcor Power LP v Petrobank Energy & Resources LTD,2010 ABCA 378, the Alberta Court of Appeal stated at paragraph 24: [...] [T]he limitation, to the extent it does apply, does not extinguish the claim or the dispute. At most it will act as a bar to recoveryor a defence to the claim or a portion thereof.

The dispute over the pricing mechanism on a go forward basis will remain. The Court of Appeal did not appear to consider Castillo or Tolofson. [70] In Ravndahl v Saskatchewan, 2007 SKCA 66 at paragraph 17, aff’d 2009 SCC 7, the Court made clear that constitutionalclaims are not immune from expiry and that limitations legislation is always applicable to the personal remedies aspect of a claim. InRavndahl, the plaintiff lost her widow’s pension in 1984 when she remarried.

The Charter equality provision came into force in 1985and the plaintiff commenced her claim in 2000 seeking an order reinstating her spousal pension and awarding damages and interest.McLachlin CJC, for the majority, stated at paragraphs 17 and 28 that limitations legislation applied to “personal remedies that flow fromthe striking down of an unconstitutional statute” and that the plaintiff’s claims for personal relief were statute-barred considering that hercause of action arose in 1985, which was outside the 6-year limitation period.

She also wrote: 27 It is important to distinguish the appellant’s personal, or in personam, remedies, brought by her as an individual, from an in remremedy flowing from s. 52 that may extend a benefit to the appellant and all similarly affected persons. [71] Although it was not addressed by the Supreme Court in Ravndahl, the majority of the Court of Appeal in that case concludedthat, after reviewing Tolofson and Castillo, “there would appear to be no authority to suggest that we now need to consider limitationperiods to be substantive for the purposes of an application such as this”: at para 17 (SKCA). [72] In any event of this general uncertainty in the law, from the cases that follow the law is clear that claims for personal remediesbrought by First Nations, such as the Trespass Related claims, are subject to time limitations legislation. [73] In Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development), (SCC),[1995] 4 SCR 344, the Beaver Indian Band had entered into a treaty with the Crown in 1916.

In exchange for surrendering Aboriginaltitle, the Band was given a parcel of land. In 1940 it surrendered the mineral rights to Canada “in trust to lease” for its benefit: at para 26.In 1945 the reserve lands were later sold to the Director of The Veterans Land Act, inadvertently inclusive of the mineral rights. Theywere then sold in parcels to various veterans by way of agreements for sale.

One issue was whether the subsequent sale of the reserve tothe Crown in trust to “sell or lease” included the mineral rights, considering the previous 1940 surrender of the mineral rights for “lease”. [74] Regarding the limitations issue, both the majority (at paragraph 23) and the dissent (at paragraphs 120-121) concluded thatprovincial limitations legislation applied to the Band’s claim for damages against the Crown for breach of fiduciary duty, regarding themineral rights, by way of the Federal Court Act, RSC 1970 (2nd Supp), c 10, but determined that the Bands were not out of time: [120] The remaining issue is whether those claims regarding mineral rights which survive the 30-year limitation period are barred byother limitation periods.

The parties treated this action as falling under s. 3(4) of the B.C. Limitation Act which prescribes a 6-yearlimitation for “[a]ny other action not specifically provided for”. I am content to do the same. [121] [...] This

section and its equivalents elsewhere embrace a broad definition of discoverability: see M. (K). v. M. (H.), (SCC), [1992] 3 SCR 6. The facts in the case at bar fall within it.

Until approached by a member of the DIA in 1977, the Bands wereignorant of critical facts in the exclusive possession of the Crown: the fact that the mineral rights were transferred to the DVLA for noconsideration; the fact that the DVLA had no right to that transfer; and the fact that the Crown had in its possession knowledge of itserror and the potential value of the mineral rights while it was still within its power to rectify the error.

The Bands became aware of thetrue facts only in 1977, placing their writ well within the applicable limitation period of 6 years. [75] In Blueberry, McLachlin J (as she then was) rejected submissions that the provincial limitations periods should be relaxed ornot applied. She stated at paragraph 122 that, in the context of that case, the arguments were unpersuasive and should not be furtherconsidered.

On this issue the majority of the Court agreed with her. [76] In Lameman, the plaintiffs sued on their own behalf and on behalf of all descendants of the Papaschase Indian Band No. 136.In 1877, the Papaschase Indians adhered to Treaty No. 6 and were allotted a reserve. In 1886, Chief Papaschase and a number of othermembers of his Band surrendered their treaty rights and rights connected with the reserve in exchange for a payment. These members leftthe reserve.

In 1889, the remaining members entered into an agreement to surrender their interest in the reserve to the government with aview to its sale or lease, on condition that the proceeds be held in trust and paid to Band members and their descendants. These peoplejoined the Enoch Band. The Supreme Court of Canada considered an appeal of the

summary dismissal of their claim based on limitationslegislation. Among other things the plaintiffs claimed that (1) the government had wrongfully allowed the Band members to take thepayment without properly advising them of the consequences, (2) the government had wrongfully pressured the members of the Band todissolve the Band, (3) the government had failed to obtain a proper surrender of the reserve land, (4) the government had not sold it formarket value, and (5) the government had breached its treaty obligations by not providing all the land to which the Band was entitled. [77] The Court in Lameman recognized the practical issues that arise when such a claim is brought after many years:

12 We are of the view that, assuming that the claims disclosed triable issues and that standing could be established, the claims arebarred by operation of the Limitation of Actions Act. There is “no genuine issue” for trial. Were the action allowed to proceed to trial, itwould surely fail on this ground. Accordingly, we agree with the chambers judge that it must be struck out, except for the claim for anaccounting of the proceeds of sale, which is a continuing claim and not caught by the Limitation of Actions Act. 13 This Court emphasized in Wewaykum Indian Band v.

Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, that the rules on limitationperiods apply to Aboriginal claims.

The policy behind limitation periods is to strike a balance between protecting the defendant’sentitlement, after a time, to organize his affairs without fearing a suit, and treating the plaintiff fairly with regard to his circumstances.This policy applies as much to Aboriginal claims as to other claims, as stated at para. 121 of Wewaykum: Witnesses are no longer available, historical documents are lost and difficult to contextualize, and expectations of fair practices change.Evolving standards of conduct and new standards of liability eventually make it unfair to judge actions of the past by the standards oftoday. [78] In Manitoba Métis Federation Inc. v Canada (AG), 2013 SCC 14, the appellants were seeking a declaration that: (1) inimplementing the Manitoba Act, the federal Crown breached fiduciary obligations owed to the Métis; (2) the federal Crown failed toimplement the Manitoba Act in a manner consistent with the honour of the Crown; and (3) certain legislation passed by Manitobaaffecting the implementation of the Manitoba Act was ultra vires. [79] McLachlin CJC and Karakatsanis J for the majority reiterated that limitations legislation generally applies to Aboriginalclaims: 138 The respondents argue that this claim is statute-barred by virtue of Manitoba’s limitations legislation, which, in all its iterations,has contained provisions similar to the current one barring “actions grounded on accident, mistake or other equitable ground of relief” sixyears after the discovery of the cause of action: The Limitation of Actions Act, C.C.S.M. c.

L150, s. 2(l)(k) (emphasis added). Breach offiduciary duty is an “equitable ground of relief”. We agree, as the Court of Appeal held, that the limitation applies to Aboriginal claimsfor breach of fiduciary duty with respect to the administration of Aboriginal property: Wewaykum, at para. 121, and Canada (AttorneyGeneral) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 13. [emphasis in original] [80] They found that the Métis claim based on the honour of the Crown was not barred by the provincial limitations law and thatthe Métis were entitled to a declaration that Canada failed to implement

section 31 as required by the honour of the Crown: at paras 133-144. They concluded that although claims for personal remedies flowing from unconstitutional legislation are subject to limitationprovisions, the appellants sought no personal relief and made no claim for damages or for land nor did they seek restoration of the titletheir descendants might have inherited had the Crown acted honourably.

The majority of the Court was of the opinion that just aslimitations legislation could not prevent the courts from issuing declarations on the constitutionality of legislation, limitations legislationcould not prevent the courts from issuing a declaration on the constitutionality with respect to the Crown’s conduct. The Métis soughtthis declaratory relief in order to assist them in extra-judicial negotiations with the Crown.

They added that so long as the constitutionalgrievance at issue here remains unresolved, the goals of reconciliation and constitutional harmony remain unachieved. [81] In addition, the majority was of the opinion that many of the policy rationale underlying limitations statutes did not apply inan Aboriginal context such as the one that was before the Court.

They wrote: 141 Furthermore, many of the policy rationales underlying limitations statutes simply do not apply in an Aboriginal context such as this.Contemporary limitations statutes seek to balance protection of the defendant with fairness to the plaintiffs: Novak v. Bond, (SCC), [1999] 1 S.C.R. 808, at para. 66, per McLachlin J. In the Aboriginal context, reconciliation must weigh heavily in thebalance.

As noted by Harley Schachter: The various rationales for limitations are still clearly relevant, but it is the writer’s view that the goal of reconciliation is a far moreimportant consideration and ought to be given more weight in the analysis. Arguments that provincial limitations apply of their ownforce, or can be incorporated as valid federal law, miss the point when aboriginal and treaty rights are at issue.

They ignore the realanalysis that ought to be undertaken, which is one of reconciliation and justification. [...] [...] The point is that despite the legitimate policy rationales in favour of statutory limitations periods, in the Aboriginal context, there areunique rationales that must sometimes prevail. [142] In this case, the claim is not stale -- it is largely based on contemporaneous documentary evidence -- and no third party legalinterests are at stake.

As noted by Canada, the evidence provided the trial judge with “an unparalleled opportunity to examine thecontext surrounding the enactment and implementation of ss. 31 and 32 of the Manitoba Act”: R.F., at para. 7. [82] The majority of the Court stressed that a declaration is a narrow remedy and, in some cases, would be the only way to giveeffect to the honour of the Crown.

Limitations provisions should not bar such declarations: at para 143. [83] Very recently, in Samson Indian Nation and Band v Canada, 2015 FC 836 (under appeal), Russell J concluded thatlimitations legislation applies to claims by First Nations against Canada to constitutionally protected and Aboriginal rights: para 112. Healso added that in his opinion, limitations do not apply to the cause of action but the remedy that is being sought: at para 129. [84] The SNN submit that this case law is distinguishable and should not be followed.

They say that these and similar cases shareone or more of the following characteristics: 1) Limitations are applied in favour of Canada under the Crown Liability and Proceedings Act; 2) Limitations are applied in favour of Canada with respect to breach of trust or breach of fiduciary duty obligations;

3) There is a finding of fact that a First Nation actually surrendered for sale, or at least a finding of fact that at a minimum there was a very clear and plain intent that the First Nation surrendered for sale Reserve lands at issue; 4) The action is before the Federal Court; 5) The operability and applicability of the limitations provisions are not challenged. [ 85 ] The SNN add that none of the Applicants’ cases relate to the applicability of limitation periods where a First Nation claims that a third party is trespassing on its un-surrendered and unextinguished Reserve Lands and converting therefrom the petroleum and natural gas. [ 86 ] I do not consider these points of distinction meaningful to the issue before me; I consider myself bound by the Supreme Court of Canada precedents.

Provincial limitations legislation is constitutionally applicable to damages claims of First Nations, such as the Trespass Related claims.

The operation of such legislation does not extinguish any underlying Aboriginal Right, but it limits the time within which proceedings may commence to claim damages as a remedy for a breach of any such right. [ 87 ] The SNN have also argued that the doctrines of interjurisdictional immunity and paramountcy have the effect of removing the SNN’s claims for damages from the application of limitations legislation: see generally on these doctrines: Canadian Western Bank v Alberta , 2007 SCC 22 ; and more recently, Carter v Canada (AG) , 2015 SCC 5 . [ 88 ] In Canadian Western Bank v Alberta , 2007 SCC 22 , Binnie and LeBel JJ, writing for the majority, stated that resolution of cases relating to the constitutionality of legislation in relation to the division of powers need always begin with an analysis of the “pith and substance” of the impugned legislation: Canadian Western Bank at para 25 .

If the pith and substance relates to a matter that falls within the jurisdiction of the legislature by which it was enacted, then the courts will conclude that it is intra vires : Canadian Western Bank at para 26 . At the end of a pith and substance analysis, the court may consider interjurisdictional immunity in appropriate circumstances: Canadian Western Bank at para 47 . [ 89 ] As stated in Canadian Western Bank at paragraph 32 , “in certain circumstances, the powers of one level of government must be protected against intrusions, even incidental ones, by the other level”.

With this issue in mind, the courts have developed the doctrines of interjurisdictional immunity and federal paramountcy. The first doctrine is rooted in the exclusivity of the legislative powers (ss 91 and 92) by both levels of government under our Constitution. According to this first doctrine, there is “a basic, minimum and unassailable content” immune from the application of legislation that is enacted by the other legislative level: Canadian Western Bank at paras 33-34 . [ 90 ] In order to trigger the application of the doctrine of interjurisdictional immunity, a two-step test must be met.

As reiterated in Marine Services International Ltd v Ryan Estate, 2013 SCC 44 at paras 54-56 [ Ryan Estate ], the first step is to determine whether the provincial legislation trenches on the protected “core” of a federal competence. If it does, the second step is to determine whether the encroachment is sufficiently serious. This means that if it only affects the core it is not sufficient; it must “impair” it in order for this doctrine to apply. [ 91 ] When interjurisdictional immunity is engaged, the impugned law is not rendered invalid.

Rather, it is inapplicable to the extra- jurisdictional matter, and is read down in order to limit the scope of its application: Ryan Estate at para 57 . As reiterated in Canada (AG) v PHS Community Services Society , 2011 SCC 44 at para 59 , I note that, in fact, even absent conflicting legislation this doctrine may apply.

It is not necessary that the government benefiting from the immunity to exercise its exclusive authority. [ 92 ] The doctrine of federal paramountcy holds that where laws of federal and provincial levels conflict, federal law prevails: Canadian Western Bank at para 32 . [ 93 ] The SNN take no issue with the pith and substance of the limitations legislation relied upon.

They concede that provincial legislatures have the authority to enact general limitations legislation under section 92 (13) (Property and Civil Rights in the Province) or section 92 (14) (Administration of Justice in the Province) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5. Their issue is whether such legislation is applicable, or alternatively operable, to extinguish their interests in the Railway Lands’ PNG. The SNN are not arguing that Aboriginal claims are never subject to limitations legislation.

They are saying that in certain factual matrices, such as this case, where limitations legislation would operate to extinguish certain Aboriginal rights, especially Aboriginal or treaty rights to lands, no limitations legislation or prescription legislation apply. [ 94 ] The SNN argue that if the Court concludes that limitations legislation specifically extinguishes their right and title, such that their right to recover the PNG is specifically extinguished, then it would be in a direct conflict with the Governor in Council’s ability to control the disposition of lands, to control the use of lands, and the minister’s inherent and legislative authority to control, manage and govern the disposition of lands and the use of lands.

The SNN submit that the provincial legislation has the effect of extinguishing the SNN’s Aboriginal interests in the PNG or any portion of its Reserve Lands, which is in direct conflict with provisions of the Indian Act that confirm Canada’s authority to manage and administer. [ 95 ] Although it is unnecessary to examine these arguments given the Supreme Court’s pronouncements on the issue, the points were argued at some length by the SNN and so some comment is warranted. [ 96 ] If the PNG were alienated, and the SNN right or interest to the PNG extinguished, then of course the two constitutional doctrines would be of no assistance to the SNN. [ 97 ] More generally, it is now unclear as to whether the doctrine of interjurisdictional immunity applies to cases involving reserve lands for pre-1982 issues or to railway matters: Tsilhqot’in Nation ; Grassy Narrows First Nation v Ontario (Natural Resources) , 2014 SCC 48 .

The Court in Peter Ballantyne Cree Nation , 2014 SKQB 327 at paragraphs 104-116 , dealt with “the tension between the claim of a violation of a federally protected right and claim for damages and the province which seeks to regulate recovery of damages through imposition of limitation periods”: at para 110. It found that the Court “is bound by this proclamation by the Supreme Court and the plaintiff is precluded from claiming interjurisdictional immunity by virtue of impairment of Aboriginal or treaty rights”: at para 111. The

Court concluded that the doctrine of interjurisdictional immunity does not apply where it relates to claims regarding Aboriginal reservelands under

section 35, given that “the courts have not drawn a distinction between Aboriginal title land and Aboriginal reserve landwhen determining whether these rights are protected under s. 35”: at para 115. In other words, the doctrine of interjurisdictionalimmunity could still apply in cases where

section 35 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK),1982, c 11, is not triggered or invoked. These three cases do not involve railways. [98] Even if interjurisdictional immunity were to apply, the provincial limitations provisions in this case are of general applicationand do not relate to the unassailable core of Parliament’s exclusive jurisdiction under section 91 (24) of the Constitution Act, 1867.

Iagree with the Court in Peter Ballantyne Cree Nation, at paragraphs 126 and 127, that the provincial limitations provisions relied uponby CPR are not aimed at infringing the right of possession, or use and benefit of reserved lands or treaty rights. They are of generalapplication aimed at regulating the time to commence any claim in order to ensure a fair balancing of interests between the parties. Itbars the right to receive a remedy after a certain period of time.

Therefore the doctrine of interjurisdictional immunity would not betriggered in any event. [99] Further, the SNN’s Notice of Constitutional Question was deficient with respect to the argument relating to section 92 (10)and impugning the applicability of Alberta limitations legislation: R v Aberdeen, 2006 ABCA 164; REDM v Alberta (Director, ChildWelfare Act) (1988), 1988 ABCA 272 , 88 AR 346 (CA). [100] The SNN have argued that the provincial limitations legislation goes to the core of the federal jurisdiction over railways undersection 92 (1) (

a) of the Constitution Act, 1867. I find it is unnecessary for me to decide this constitutional issue and, even if I had thediscretion spoken of by Sopinka J in Eaton v Brant (County Board of Education), (SCC), [1997] 1 SCR 241 atparagraphs 53-55, I would exercise it in favour of not engaging on questions for which no notice was given. There was no consent and Iam not satisfied that Alberta had de facto notice.

I would add, however, that in light of Clark v CNR, (SCC), [1988] 2SCR 680, where it was clearly decided that provincial legislatures have the authority to enact general limitations legislation undersections 92 (13) and (14), it is doubtful that the doctrine of interjurisdictional immunity would be triggered in this case. [101] Regarding paramountcy, provincial laws typically apply to Aboriginal matters including Aboriginal lands: see for exampleTsilhqot’in Nation at paras 101-106.

However, where valid federal and provincial enactments are contradictory, or where the provinciallaw frustrates the purpose of the federal legislation, then the provincial law will be read down to the extent of the inconsistency under thedoctrine of federal paramountcy: Ryan Estate at paras 65-69; Canadian Western Bank at paras 69-75; PHS Community Services Society,2011 SCC 44 at para 71; Tsilhqot’in Nation at para 130; see more recently Alberta (AG) v Moloney, 2015 SCC 51; Saskatchewan (AG) vLemare Lake Logging Ltd., 2015 SCC 53.

In Ryan Estate, LeBel and Karakatsanis JJ reiterated, at paragraph 69, the “fundamental rule ofconstitutional

interpretation” that where an enactment can be interpreted as not interfering with a provincial statute, this

interpretationshould be preferred over another applicable construction which would bring about a conflict. The onus is on the party relying on thedoctrine of federal paramountcy: Canadian Western Bank at para 75. [102] The SNN’s Notice of Constitutional Question lacks the requisite specificity in respect of paramountcy also. In any event, in thecontext of the applicability of limitations legislation to monetary claims only, the SNN have failed to demonstrate any conflict orinconsistency between provincial limitations legislation and federal legislation: Clark; Wewaykum; Lameman. ii.

What are the applicable limitations laws? [103] The Limitation of Actions Act was in force in Alberta at the time these claims were commenced (before March 1, 1999):Limitations Act, RSA 2000, c L-12. [104] Sections 1(e), 4, 18 and 51 of the Limitation of Actions Act, RSA 1980 c L-15 provide: 1 (e) “land” includes (

i) corporal hereditaments, and (ii) a freehold lease estate or an interest therein; […] 4(1) The following actions shall be commenced within and not after the time respectively hereinafter mentioned: [...] (

c) actions (

i) for the recovery of money, other than a debt charged onland, whether recoverable as a debt or damages or otherwise, and whether on a recognizance, bond, covenant or other specialty or on a simple contract, express or implied, or (ii) for an account or for not accounting, within 6 years after the cause of action arose; [...]

18 No person shall take proceedings to recover land except (

a) within 10 years next after the right to do so first accrued to that person (hereinafter called the “claimant”), or (

b) if the right to recover first accrued to a predecessor in title, then within 10 years next after the right accrued to that predecessor. [...] 51 Except as otherwise provided in this Part, an action for [...] (

f) trespass or injury to real property or chattels, whether direct or indirect and whether arising from an unlawful act or from negligenceor from breach of a statutory duty, or (

g) the taking away, conversion or detention of chattels. may be commenced within 2 years after the cause of action arose, and not afterwards. [105] At the time the SNN commenced their claims, in addition to the Limitation of Actions Act applying, the common law rule ofdiscovery of a cause of action also applied. The Alberta Court of Appeal summarized it in De Shazo v Nations Energy Company Ltd,2005 ABCA 241 [emphasis in original]: 26 [...] The common law rule was described by the Supreme Court of Canada in Central Trust Co. v.

Rafuse, (SCC),[1986] 2 S.C.R. 147 at 224: “[A] cause of action arises for purposes of a limitation period when the material facts on which it [the causeof action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence.” 27 The Supreme Court revisited the common law discoverability rule in Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R.549, confirming that since the decisions in Kamloops (City of) v.

Nielsen, (SCC), [1984] 2 S.C.R. 2 and Central Trust,discoverability is a “general rule applied to avoid the injustice of precluding an action before the person is able to raise it.”: Peixeiro at563.

The court emphasized the concept of reasonable discoverability: “In balancing the defendant’s legitimate interest in respectinglimitations periods and the interest of the plaintiffs, the fundamental unfairness of requiring a plaintiff to bring a cause of action beforehe could reasonably have discovered that he had a cause of action is a compelling consideration”: Peixeiro at 565. [...] 31 The principle of discoverability does not require perfect knowledge. As this court noted in Hill v. Alberta (South Alberta LandRegistration District) (1993), 1993 ABCA 75 , 100 D.L.R. (4th) 331 at 336 (Alta.

C.A.) (leave to appeal to S.C.C. denied): Even if the discoverability rule of limitations applies to this case (which I need not decide), it does not call for perfect certainty. It doesnot require discovery at all: it says something else will do instead. It suffices that “the material facts on which [the cause of action] isbased ... ought to have been discovered by the plaintiff by the exercise of reasonable diligence...”: Central Trust v. Rafuse... . If theplaintiff is told a fact by someone who is likely to know, surely that makes the fact known or discoverable, even if someone else disputesthe fact.

Very few people who sue have perfect certainty. [106] The discoverability rule has an objective component also, as the Alberta Court of Appeal observed in Athabasca ChipewyanFirst Nation v Alberta (Minister of Energy), 2011 ABCA 29, at paragraph 33, 536 AR 401, leave to appeal to SCC refused, 34154 (23February 2012), speaking of both the now codified version and its predecessor in the common law: Moreover, the discoverability principle, as applied to limitations has always been interpreted to include an objective component.

That is,the wrong is assumed to be discovered when it would reasonably have been expected to be discovered: Yugraneft Corp. v. RexxManagement Corp., 2010 SCC 19, [2010] 1 S.C.R. 649 at para. 60; Gayton v.

Lacasse, 2010 ABCA 123, 482 A.R. 179 at para. 20. [107] For these claims’ discoverability (the Trespass Related claims), the important date is when the SNN first knew, or by theexercise of reasonable diligence ought to have known, the material facts giving rise to the cause of action they now advance. [108] CPR says that the SNN were out of time when they commenced this action for the Trespass Related claims; they knew or oughtreasonably to have known the material facts the SNN say give rise to their Trespass Related claims long before they commenced thisaction.

Therefore, they say those claims ought to be dismissed against them as being without merit. The SNN maintains they were not outof time. iii.

Procedural background [109] The SNN commenced this action against CPR (and Canada) on February 26, 1999. [110] Canada filed a demand for Particulars on May 15, 2001, to which the SNN replied on September 4, 2001. [111] On September 28, 2001, the SNN filed an Amended Statement of Claim, adding PanCanadian Petroleum Limited (a predecessorto Encana) as a defendant. [112] Canada filed its Statement of Defence on June 4, 2002. [113] On October 28, 2002, Encana filed a demand for particulars, to which the SNN replied on January 8, 2004, and again onDecember 10, 2004.

[ 114 ] On December 4, 2002, Canada filed a Third Party Notice against CPR, Canadian Pacific Railway Limited, Canadian Pacific Limited, Fairmont Hotels & Resorts Inc, PanCanadian Petroleum Limited and Encana. [ 115 ] CPR and Encana filed their Statements of Defence on February 4 and 8, 2005, respectively. [ 116 ] On June 9, 2005, the Court of Appeal directed the SNN to amend their Amended Statement of Claim, which they did on November 15, 2012, by filing an Amended Amended Statement of Claim: Stoney Tribal Council v PanCanadian Petroleum Ltd. : 2005 ABCA 204 .

More specifically, the Court of Appeal granted the SNN leave to amend their Amended Statement of Claim with respect to: [8](b) [...] allegations against the appellant, whether trespass, removal, receipt of interests, or claims by it to title, or otherwise, and all claims for damages against the appellant, will be amended to restrict them to petroleum, natural gas, or related hydrocarbons (or all of those), and to exclude other minerals and to exclude surface rights from claims against the appellant. [ 117 ] A Further Further Reply was provided by the SNN on October 6, 2008. [ 118 ] A Further Further Further Reply was provided by the SNN on May 1, 2012, purportedly also in response to the 2005 Court of Appeal Order. [ 119 ] A Further Reply (No. 4) to Demand for Particulars was provided by the SNN on September 21, 2012, in response to Encana’s request for additional particulars sent on May 23, 2012.

It is in this pleading that the SNN first include a claim for recovery of the PNG. [ 120 ] No party formally objected that any of the particulars added new causes of action, that they extended beyond the requirements of the Court of Appeal’s Order, or that they extend beyond the scope of any case management directive. iv.

Factual background [ 121 ] In 1893 CPR paid $730.26 to Canada for 475.77 acres of land from the Stoney Reserve to be used for the railway right-of-way and station grounds at $1.25 per acre plus interest from the date of occupation to the date of payment. [ 122 ] Compensation for other parcels of fee simple land ranged from $2 to $4 per acre: $2, $2.85- $3.39, and $4. The SNN argue those land purchases were relatively comparable and contemporaneous and show that the $1.25 paid to the SNN could not have been payment for a fee simple title.

They say that at the time they could not obtain replacement lands at $1.25 per acre. [ 123 ] The land was registered in CPR’s name under certificates of title 13T3 and 15T133, in 1916 and 1917 respectively. [5] [ 124 ] Order-in-Council PC 10443, dated November 1942 approved, as at August 1, 1940, the surrender to “our Sovereign Lord the King” of the “petroleum and natural gas and mining rights” to Stoney Reserve Lands (Nos. 142, 142 B, 143 and 144) to lease. The Railway Lands were not excluded from this formal surrender, nor mentioned expressly in any way.

The surrender also includes the “surface rights over such area of land within the said reserve as may be necessary for the mining thereof.” Since there is no dispute at this time that the CPR owned the surface rights over the Railway Lands, it seems unlikely that this 1940 surrender included the Railway Lands. [6] [ 125 ] CPR remained registered as owner on the title documents until after 1965 (when the CPOG Act was enacted).

For example, Certificate of Title 13T3 remained in CPR’s name until about January 19, 1977. [ 126 ] At some point the mines and minerals underlying Plan RY10 became registered as Certificate of Title 13T3A in the Alberta land titles system.

Certificate 931 289 034, which replaced Certificate 13T3, shows Canadian Pacific Limited as the owner of the surface rights and one of the certificates for 13T3A shows PanCanadian as the owner of the subsurface. [ 127 ] A caveat was registered against CPR’s title by Shell on January 4, 1972 regarding a claimed interest in an oil and gas lease between Shell and CPOG, reading: [...] CLAIMS AN INTEREST under a lease in writing dated the 1st day of November A.D. 1971, and made between CANADIAN PACIFIC OIL AND GAS LIMITED as Lessor, and SHELL CANADA LIMITED, as Lessee [...]. [7] CPR states that it did not enter into any leases with respect to these lands and did not authorize CPOG to do so.

The SNN questioned on what authority CPOG would enter into a lease with Shell on CPR lands while CPOG was not a registered owner in 1971. [ 128 ] A “Memorandum - Government of Canada” from the Superintendent, Stony-Sarcee [8] Indian Agency to the Chief, Reserves and Trusts”, dated January 22, 1960, and regarding “Canadian Pacific Railroad Right – Stony Reserve” states: At a Stony Council meeting held at Morley on January 19, 1960, the Council requested that we endeavor to obtain for them details of the original agreement giving the C.P.R. a right of way across the Stony Reserve at Morley.

Is it possible to provide the required information? [ 129 ] A letter dat

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