Callan v Lorrnel Consulting Group Ltd, 2017 ABQB 158

Court of Queen’s Bench of Alberta Citation: Callan v Lorrnel Consulting Group Ltd, 2017 ABQB 158 Date: 20170308 Docket: 1303 14324 Registry: Edmonton Between: Rita Callan Respondent/Plaintiff - and - Lorrnel Consulting Group Ltd. otherwise known as Lorrnel Appellant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Background [ 1 ] The Appellant, Lorrnel Consulting Group Ltd. (“Lorrnel”), appeals the decision of the Master, filed May 1, 2015 now reported at Callan v Lorrnel Consulting Group Ltd , 2015 ABQB 287 . On an appeal from the Master under Rule 6.14, the standard of review is “correctness”. [ 2 ] On October 8, 2013 the Respondent filed a Statement of Claim against the Appellant seeking damages for trespass, nuisance and unlawful interference with economic interest all related to certain lands on which the Respondent has traplines.

The Defendant seeks

summary dismissal of the action against it. The main issue in this application is whether the Respondents Statement of Claim is without merit. [ 3 ] The Respondent is the holder of a registered fur management agreement under the Wildlife Act , RSA 2000, c.W-10, which

entitles her to enter and occupy certain public land for the purpose of trapping under s.20 of the Public Lands Act, RSA 2000, c.P-40 . [ 4 ] The Respondent’s registered fur management agreement entitles her to trap within a large area of public lands, including the relatively small area in issue, Sec. 16&17, TWP. 82, RGE.7 W4M (the “Lands”), designated as trapping area TPA #2820. [ 5 ] Lorrnel was interested in exploring the possibility of constructing a gravel pit on the Lands.

In accordance with the required procedure to explore the Lands, Lorrnel obtained Surface Minerals Exploration No. 090184 (“SME 090184”) from the Government of Alberta Environment and Sustainable Resource Development (“AESRD”). SME 090184 entitled Lorrnel to enter and occupy certain public lands for the purpose of exploration under s. 20 of the Public Lands Act . [ 6 ] Prior to obtaining SME 090184, Lorrnel was required to notify aboriginal groups and individuals with rights to the Lands.

The Respondent was one of the individuals required to be notified as she was the holder of a registered fur management agreement. [ 7 ] On October 16, 2009, Lorrnel sent a letter to the Respondent notifying her of Lorrnel’s application to construct a Surface Material Exploration Program. On November 11, 2009, the Respondent contacted Lorrnel and raised the issue of potential disruption of certain wildlife in her trapping area. [ 8 ] On November 17, 2009, SME 090184 was issued by AESRD.

SME 090184 entitled Lorrnel to enter and occupy the Lands for the purpose of exploration under s.20 of the Public Lands Act . [ 9 ] As a result of the Respondent’s November 11, 2009 response, Lorrnel arranged for Alberta Pacific Forest Company [“ALPAC”] to conduct a wildlife survey, in conjunction with the exploration.

The exploration and wildlife survey were conducted from February 10 to 14, 2010 (the “Exploration”). [ 10 ] Upon completion of the Exploration, an individual from ALPAC discussed the results of the wildlife survey with the Respondent. [ 11 ] Reclamation of the area of Lands that were temporarily disturbed was completed after the Exploration in accordance with the requirements of SME 090184.

A letter of clearance was later issued by AESRD on January 16, 2012. [ 12 ] After the Exploration and reclamation of the Lands, no questions or concerns were raised by the Respondent in relation to Lorrnel’s reclamation of the Lands. [ 13 ] Pursuant to SME 090184, Lorrnel was required to notify the Respondent of its activities, but was not required to obtain the Respondent’s consent. [ 14 ] The Respondent trapped both before and after the Exploration was conducted.

During this time the Respondent recorded her trapping activities and submitted Registered Fur Harvest Reports to Alberta Fish and Wildlife as follows: (

a) For the 12 months ending June 30, 2010, submitted September 17, 2010; (

b) For the 12 months ending June 30, 2011, submitted September 7, 2011. [ 15 ] Lorrnel later applied to obtain the lease rights to the Lands for the possibility of constructing the gravel pit. No activity on the Lands was required to obtain SML 100055. On January 16, 2012, SML 100055 was issued by AESRD. Pursuant to SML 100055, Lorrnel was only required to notify the Respondent of its activities, but was not required to obtain the Respondent’s consent. [ 16 ] On June 20, 2012, with approval from AESRD, Lorrnel purported to assign SML 100055 to Statoil Canada Ltd., who is the current holder of SML 100055.

During the time Lorrnel was the holder of SML 100055, Lorrnel did not exercise its right to work the Lands or remove sand or gravel from the surface and did not construct a gravel pit. [ 17 ] Lorrnel’s last entry onto the Lands was during the Exploration on February 10-14, 2010, approximately four years prior to the filing of the Statement of Claim. Appellant’s Position [ 18 ] Lorrnel seeks

summary judgment dismissing the Respondent’s claim as it is without merit. Lorrnel says it has provided tangible evidence that it did not construct a gravel quarry or access road, that Surface Materials Lease 100055 was properly assigned to Statoil Canada Ltd.

Lorrnel, and that it has not been on the lands since on or about February 14, 2010, the date on which the exploration and reclamation of the lands was complete. [ 19 ] Although the Respondent’s Statement of Claim has alleged damages are owed due to trespass, nuisance and interference with economic interest, the Respondent’s Affidavit sworn on February 18, 2016 states that the Respondent’s damages of $100,000 are calculated based on a compensation matrix for the gravel quarry and access road the Respondent alleges were constructed by Lorrnel. [ 20 ] The Respondent is clear that her fur harvest and destruction to her way of life are not included as part of her claim.

The Respondent’s February 18, 2016 Affidavit states the entirety of the damages claimed in her Statement of Claim are based on a compensation matrix for the gravel quarry and access road she alleges were constructed by Lorrnel. Consequently, as Lorrnel did not construct the gravel quarry or access road that is the subject of the Respondent’s damages calculations, she is unable to establish nuisance, trespass or interference with economic relations, and her claim is without merit and should be dismissed. The Respondent’s Position

(

a) Assignment [21] Contrary to the assertion of Lorrnel, their Surface Materials Lease remains in force in their name. SML 100055 is held inLorrnel’s name and the issue is not determined by the last date that they allege they physically were on the land. Statoil Canada Ltd. hasapplied as recently as the Fall of 2015 to have the Licence of Occupation for the Surface Materials Lease placed into its name withoutachieving this.

The Surface Materials Lease remained in Lorrnel’s name until recently and all Surface Materials Lease activities must betheirs whether or not they have in fact been carried out by their assignee. Further, an assignment, especially with no notice to a thirdparty, does not relieve the assignor of liability. Accordingly the obligations of trespass, nuisance, and unlawful interference with theRespondent’s economic interest continue to be with Lorrnel. (

b) Real Property Interest: Public Lands Act [22] The ability to explore for sand and gravel on these Crown Lands is governed by the Public Lands Act, R.S.A. 2000, c. P-40,as the letter of approval for the Surface Materials Exploration dated November 17, 2009 stated in the first paragraph: Pursuant to

Section 20 of the Public Lands Act, authorization is hereby granted to enter upon the above land shown on the attachedsketch for the purpose of surface materials exploration. Letter to Jordan Cicoria, of Lorrnel from the Government of Alberta, Sustainable Resource Development, dated November 17, 2009. [23]

Section 20 recognizes other interests in Public Lands and provides for a priority in rights and usage:

(1) No person shall enter on and occupy public land for any purpose unless ... (

c) the person is the holder of a registered fur management agreement under the Wildlife Act respecting the public land, ... (

e) the person is expressly authorized to enter on and occupy the public land for that purpose by the director or an officer, Public LandsAct, s. 20. [24] Each right under

section 20 is subject to pre-existing rights and to the “rights of aboriginal peoples recognized and affirmedunder

Part 2 of the Constitution Act, 1982”: section 20(9). The Respondent has pre-existing rights of her trapline which she has had since1975 and her aboriginal rights recognized under the Constitution,

section 35. The interests of the Respondent, an aboriginal, are acontinuing interest in the land that is constitutionally protected under

section 35 of the Constitution Act, 1982. Métis are Indians undersection 91(24) of the Constitution Act, 1867 and have the same rights as Indians and require the same consultation as Indians on thelands where they exercise their aboriginal rights. On this issue, Lorrnel consulted First Nations but did not consult the Respondent who isowed the same constitutional obligation: Constitution Act, 1982,

section 35; Constitution Act, 1867,

section 91; Daniels et al v.H.M.T.Q., 2016 SCC 12; Behn v. Moulton Contracting Ltd. 2013 SCC 26 , [2013] 2 SCR 227, paras. 18-35; Coastal FirstNations v British Columbia, 2016 BCSC 34, paras. 7-7, 193-215. [25] The authorization for Lorrnel SME 090184 was for “the purpose of surface materials exploration”, and was effective betweenthe dates specified which were November 17, 2009 with an expiry date of May 16, 2010. Condition 7 of the Surface MaterialsExploration No.

SME 090184 states: Unless otherwise approved by a departmental officer, the holder shall use only existing clearings/trails and not clear any new areas. [26] It was a requirement that “[a]ny areas disturbed under this exploration approval must be satisfactorily reclaimed”. Schedule“A” set out the conditions which were required to be complied with. It was necessary to apply for a lease to operate by submitting“digitally by May 26, 2010”.

This application could result in a lease boundary being approved in principle which then required that aplan of survey and an approved conservation and reclamation plan with a security deposit be submitted. [27] Condition 2

c) requires that the holder (Lorrnel) “shall not conduct any activity on the land where prior rights have beenissued without the consent of the holder of these prior rights”. Condition 2

d) specifically required that there be communication with theregistered trapper and that Lorrnel may be responsible for any damages to traps, snares or other improvements. On the Land StandingReport at the bottom of page 5 it lists TPA 2820 as active, issued on August 6, 1986 and held by Respondent. As well, the AmendedSketch Plan by Lorrel [sic] Consulting shows TPA 2820 held by Respondent. [28] The Respondent did raise specific concerns regarding disruption of wildlife while she was trapping.

On January 16, 2012,Sustainable Resource Development issued a Letter of Clearance to Lorrnel Consulting Group Ltd. for SME 090184 which shows that theSurface Materials Exploration was cancelled but this cancellation was clearly only for a ‘moment’ because a Surface Materials Lease100055 was issued shortly to Lorrnel. [29] The Application and Authorization SME 090184 in November, 2009 was the first step in a continuing process to develop agravel quarry. The evidence is that this gravel quarry continues to exist contrary to the assertion of Lorrnel that nothing occurred afterFebruary 10-14, 2010.

This is clearly shown by the granting of the Surface Materials Lease and later by the assignment to Statoil Canada. [30] On the same day that the Surface Materials Exploration was cancelled, January 16, 2012, Lorrnel was granted a SurfaceMaterials Lease for the SE 1/4

Section 16 and the SE 1/4 and N 1/2

Section 17, Township 82, Range 7, W4M (“SML 100055”). Thiscovers an area of 31.92 hectares of land on the Respondent’s trapline. The map displays that Surface Materials Lease 950009 (alsoincluded in Claim) is immediately south of Surface Materials Lease 100055 covering at least as large as area.

[31] For consultation for Surface Materials Lease 100055, Lorrnel Consulting met with the Chipewyan Prairie First Nation locatedat Chard, Alberta, the Fort McMurray First Nation located at Gregoire Lake, and the Heart Lake First Nation located at Heart Lake, justnortheast of Lac La Biche, None of these First Nations have the proximity of the Respondent’s trapline to this Surface Materials Lease.Although Métis have constitutional rights under s. 35 of the Constitution Act, 1982, and the Respondent, Métis, has specificconstitutional rights on her trapline, Lorrnel Consulting never engaged in any consultation with the Respondent, did not resolve thecomplaints that she raised with Lorrnel in November, 2009 and did not advise her of their application for the Surface Materials Lease.Plainly their statement that they did not develop the gravel quarry is not accurate. [32] As well, the Guidelines for Acquiring Surface Material Dispositions on Public Land, states on page 7 that a Surface MaterialLease: Requires written consent from any disposition holder, which must be submitted to Land Management Branch (LMB), prior to approval. [33] A Land Use Investigation is required as stated on page 41 with the applicant obtaining a land standing report and obtainingconsent from all “possible land use conflicts”.

This requires: The LSAS helps the applicant identify who needs to be contacted, including trappers, holders of timber dispositions, agriculturaldispositions, industrial holdings and/or dispositions, Indian Reserves, Métis Settlements, Forestry Management Agreements (FMAs) andother areas of special concern. [34] The Respondent did not provide any written consent to this Surface Material Lease and had objected directly to Alberta aboutthis development, however it appears from these agreements with Alberta that Lorrnel must have represented that it did have consentfrom her. [35] Lorrnel have been engaged in a continuing activity since 2009 which has breached the provisions of all of the relatedapprovals, which require consultation and agreement with the trapline holder.

Further Lorrnel has misrepresented the amount ofcompensation for the assignment to Statoil Canada at $1.00, an amount which is often an indicator for either a transaction betweenclosely related parties or an invalid sale. There is and have been trespass, nuisance and interference with the Respondent’s economicinterest in her trapline either by Lorrnel or by their assignee, entitling her to settlement of damages and interests. This has continued in2015 and continues today. The Surface Materials Lease made on June 7, 2012 provides in

Schedule “A” that the holder of the SurfaceMaterials Lease c) “shall not conduct any activity on the land where prior rights have been issued without the consent of the holder ofthese prior rights”. These “prior rights” include the trapline of the Respondent as stated on page 61 of the Record of Proceedings. [36] The ‘assignment’ alleged by Lorrnel with Statoil Canada Ltd. is for a ‘value’ of $1.00 and is not agreed to by the Director,Public Lands Act as required.

The Surface Materials Lease requires payments for the Surface Materials Lease to be made on a yearlybasis so presumably it has value yet the Appellant has not produced any evidence on this. No evidence regarding this significant detailhave been provided by Lorrnel. (

c) Profit-á-Prendre [37] A registered trapline is a profit-á-prendre on land with all of the rights to claim for trespass, nuisance and interference witheconomic interest: Stewart Estate v. TAQA North Ltd., 2015 ABCA 357, paras. 162-168, 172-174, 196-228, 291-93. Canadian ForestProducts Ltd. v. Sam, 2011 BCSC 676, para, 97. Bolton v. Forest Pest Management Institute, (BCCA), para. 17. [38] A nuisance continues as long as the nuisance is occurring on the land: Roberts v. City of Portage le Prairie, (SCC), [1971] S.C.R. 481, at 491-2. Neuman v.

Parkland County, 2004 ABPC 58, para. 75. [39] Even when the activity is undertaken for a public purpose, damages will still be awarded for nuisance. Here there is noevidence that this activity was undertaken for a public purpose. [40] A profit-á-prendre is recognized as an interest in land in Alberta: Scurry-Rainbow Oil Limited v. Galloway Estate, 1994ABCA 313, paras. 9-23. Nywening v. Melton Holdings Ltd., 1998 ABQB 103, paras. 10-17. Robillard v.

Staff 2008 BCSC 1266, paras.2 1-26 [41] Conflicting interests in land, without any evidence of an agreement between Lorrnel and the Respondent, should result indismissal of an application for

summary judgment: H. Ash & Associates Ltd. v. Banham, 2014 ABQB 718, para. 12. The Law on

Summary Dismissal [42]

Summary judgment/summary dismissal assists in fulfilling the foundational rules of out Rules of Court, and ensures that onlyclaims with merit proceed. Where a claim cannot succeed on the merits, it is just and fair that it be dismissed in the early stages. [43] This appeal requires the Court to consider the rules for

summary judgment, and the general legal principles of trespass,nuisance and interference with economic relations. As a general rule, the Courts must refrain from determining disputed or contentiousquestions of fact in a

summary dismissal application. [44] However there are instances where the Court is permitted to accept certain facts or draw inferences of fact as outlined inEmile Labby Trucking Ltd. v. Option Inc., 2014 ABQB 248, citing Janvier v 834474 Alberta Ltd., 2010 ABQB 800 at para 17: The Master generally does not have jurisdiction to determine disputed or contentious questions of fact. If there remains a dispute onmaterial facts at the time of the application, there must be a trial. However, if one party’s evidence on material facts is either destroyedby cross-examination on affidavit or the introduction of other evidence rendering that party’s evidence completely noncredible, then the

Master may accept certain facts or may draw inferences of fact. [ 45 ] It has been held that allegations are not entitled to weight simply by being included in an Affidavit, and that Courts have the discretion to reduce the weight of evidence if it is inconsistent with other evidence, as the Court noted in Klein v. Wolbeck , 2016 ABQB 28 at paras 26 and 27 : The weight of affidavit evidence may properly be found to be reduced for example, the evidence is not consistent with other evidence and known circumstances. That is to say, common sense need not be abandoned in the face of an allegation in an affidavit.

Allegations are not entitled to weight just because they are included in an affidavit. ... Claims in an affidavit have no weight if the statements are “self-serving,” in the sense of being “merely conclusory,”“argumentative,” or having no evidence supporting the claims made besides the claims themselves; that is to say, f the claims are “bare assertions” or “mere assertions. [ 46 ]

Summary judgment applications are to be decided on the material that is before the judge, and not on suppositions about what might be pleaded in the future. In Canada (Attorney General) v. Lameman, 2008 SCC 14 at para 19 , the Court held: A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future, 4f the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. Analysis [ 47 ] The damages claimed in the Statement of Claim are based on trespass, nuisance and interference with economic interests.

However in the Respondent’s Affidavit filed February 18, 2016, the Respondent revises the basis for the damages sought in her Statement of Claim and calculates damages owing in the amount of $100,000 based on the Guideline and Compensation between Aboriginal Trappers within the Community of Fort McKay and in the Petroleum Industry 2009 (“McKay Guideline”). [ 48 ] The McKay Guideline is not a legislative requirement and there is no obligation for companies to compensate trappers in accordance with the McKay Guideline.

Using the McKay Guideline, the Respondent calculates $100,000 in damages based solely on the construction of an alleged gravel pit and access road by Lorrnel. [ 49 ] The Respondent alleges the gravel pit is 640 acres (259 hectares) which requires compensation of $64,751.12 under the Fort McKay Guideline. She then states the amount owing for the roadway access is “in the range” of $30,000 and notes: “which in addition to the calculation for the compensation for the gravel pit is approximately $100,000 which I claimed as damages in this action.

I have not calculated the amount that I have lost in my fur harvest of the destruction to my way of life” [ 50 ] The Respondent acknowledges in her Affidavit that the basis of her claim is not related to her fur harvest or the destruction to her way of life. As such, there is no merit in the Respondent’s claims of trespass, nuisance and interference with economic interests with respect to the loss in her fur harvest and destruction to way of life. [ 51 ] A gravel quarry was never constructed by Lorrnel.

Lorrnel has provided a survey of the area evidencing that the area included in SML 100055 is still treed and a gravel quarry does not exist within the boundaries of SML 100055.

There is a gravel quarry outside the boundaries of SML 100055, but Lorrnel did not construct this gravel quarry and does not hold the Surface Materials Lease for this gravel quarry. [ 52 ] During the cross examination of the Respondent on her affidavit filed February 18, 2016, the Respondent acknowledged the gravel quarry referenced throughout her affidavit was constructed by ALPAC in the mid ‘80s: Q: So what date do you allege that the gravel quarry was constructed? A: Oh, boy, way, way way back I’d say in the mid ‘80s. Q: Okay.

So the gravel pit that you’re referring to throughout your Affidavit is the gravel pit that was constructed in the mid ‘80s? A: Yes, by ALPAC. [Cross-examination on Affidavit of Rita Callan filed September 19, 2016 at pg 40, lines 6-16] [ 53 ] In the Respondent’s Affidavit filed February 18, 2016, she also alleges that Lorrnel constructed a road to access the gravel quarry. However under examination the Respondent acknowledged that Lorrnel did not actually construct the road: Q: So looking at the survey, you allege that Lorrnel constructed a road or that a road was constructed. A: They did not construct it. Q.

Okay. So but which road are you referring to when you refer to a road that was constructed? A: Okay. I guess this is the road we’re talking about, because I don‘t know what this is. These maps shouldn‘t even exist.

Q: So you’re pointing at the road that goes from the bottom right of that survey, and it goes up towards this pink area, correct? A: Yeah Q: And so I just want to be clear on your allegation. Are you alleging that Lorrnel or someone they hired built a road to construct this alleged gravel pit? A: I never said that once. Lorrnel didn‘t build nothing. They’re not builders. They’re not contractors. All they do is they go and measure, they tell the company, “Okay, this has been approved to you people. Go for it.” That’s what they do. They don‘t do the actual work.

They didn‘t go there with machinery and start opening roads. They don‘t-- Q: Correct A: ---do that Q: So you’re not alleging that Lorrnel or someone they hired built this road? A: Of course not. I didn‘t say that. [Cross-Examination on Affidavit of Respondent filed September 19, 2016 at pg. 51, line 8-pg. 52 line 20] [ 54 ] Earlier in the questioning, the Respondent referred to this road as the “North Star Road” as North Star constructed the road and ALPAC made an addition to the road: A: North Star built it, but now it keeps going.

And Al-Pac had added another 8 kilometres to that road right up to the gravel pit that we are talking about.

It’s right in the middle of my trapline. [Cross-Examination on Affidavit of Respondent filed September 19, 2016 at pg. 10, lines 17-20]. [ 55 ] If the Respondent has not claimed damages for her fur harvest and destruction to way of life, the only basis the Respondent can claim trespass, nuisance and interference with economic interests is if Lorrnel did in fact construct the gravel quarry and access road. [ 56 ] The Respondent acknowledged under cross-examination that the gravel quarry, that is the cause of the alleged damages and the basis of the compensation calculated under the McKay Guideline, was constructed in the mid-1980s by ALPAC [Cross-Examination on Affidavit of Respondent filed September 19, 2016 at pg.40, lines 6-16]. [ 57 ] Lorrnel did not obtain SML 100055 until June 7, 2012.

As such, the gravel quarry referenced by the Respondent is not located on the lands included in SML 100055, and was not constructed by Lorrnel as it was constructed in the mid-1980s.

The survey provided by Lorrnel, consistent with Jordan Cicoria’s affidavit evidence, confirms that Lorrnel did not construct a gravel pit on the lands included in SML 100055 and that a gravel pit does not exist on the lands included in SML 100055. [ 58 ] As a gravel pit does not exist within the boundaries of SML 100055 and the gravel pit the Respondent alleges she is owed compensation for under the McKay Guideline was not constructed by Lorrnel, there is no merit to the Respondents claim against Lorrnel. [ 59 ] The Respondent also acknowledged under cross-examination that the access road, that is the cause of the alleged damages and the basis of the compensation calculated under the McKay Guideline, was not constructed by Lorrnel but was constructed by North Star and ALPAC. [Cross-Examination on Affidavit of Respondent filed September 19, 2016 at pg. 51, line 8-pg. 52 line 20]; [Cross- Examination on Affidavit of Respondent filed September 19, 2016 at pg. 10, lines 17-20]. [ 60 ] If the access road that is the cause of the damages and compensation being claimed by the Respondent was not constructed by Lorrnel, Lorrnel is not responsible for the damages or compensation being claimed by the Respondent.

As such, there is no merit to the Respondent’s claim against Lorrnel. Conclusion [ 61 ] The Respondent has made assertions in her Affidavits, but has not provided tangible evidence of her claim that Lorrnel constructed a gravel quarry or access road on the lands included in SML 100055. The Respondent has also failed to provide support for her alleged damages due to trespass and nuisance. Allegations are not entitled to weight simply because they are included in an affidavit. [ 62 ] The Respondent submits that there is conflicting evidence that must be weighed which requires a trial.

This is not the case here however as the Respondent has made a number of statements that cannot be given any weight. [ 63 ] The Court is able to conclude that: (

a) A gravel quarry was not constructed, by Lorrnel on the lands included in SML 100055; (

b) Lorrnel met all notification requirements for the SME and SML with respect to the Respondent; and (

c) The SML 100055 was validly assigned to Statoil in 2012 and is currently in Statoil’s name. [ 64 ]

Summary dismissal applications require both parties to put their best evidence forward and where the evidence is lacking, the Court may draw a negative inference. The Respondent has made assertions that a gravel quarry was constructed, but has provided no

further evidence through photographs or surveys to show a gravel quarry has been developed within the boundary of SML 100055. Conversely, Lorrnel has provided a survey that evidences a gravel quarry has not been developed within the boundary of SML 100055. [ 65 ] The Respondent has made assertions that the SML was not properly assigned and is still in Lorrnel’s name.

However Lorrnel has provided evidence that the SML was in fact assigned, that the assignment was recognized by AESPD, and that SML 100055 is currently in the name of Statoil. [ 66 ] The Respondent has admitted that her damages do not include a loss in her fur harvest or the destruction to her way of life.

It should also be noted that even if these damages were included, the Respondent has failed to provide any evidence of nuisance to her traplines or a decline in her trapping numbers. [ 67 ] There is no tangible evidence of damaged traplines, and the Respondent has failed to demonstrate that the nuisance is evidenced by the numbers in her fur harvest reports. The most recent fur harvest report provided by the Respondent is from September of 2011, which is more than five years ago.

Under cross-examination the Respondent admitted that she completed fur harvest reports from 2012-2015, but refused to provide these fur harvest reports: Cross-Examination on Affidavit of Respondent filed September 19, 2016 at pgs. 44, line 21-pg. 48 line 11. If there was evidence of damaged traps or evidence in Ms. Callan’s fur harvest reports that reflected the alleged nuisance, the Respondent ought to have provided this evidence. [ 68 ] The weight of affidavit evidence may properly be found to be reduced if the evidence is not consistent with other evidence and known circumstances.

The Respondent’s assertions are reduced, due to the fact that they are inconsistent with the evidence provided by Lorrnel. Given that Lorrnel did not construct a gravel quarry or access road, fulfilled its notification requirements and properly assigned SML 100055 to Statoil, the Respondent’s claims for trespass and nuisance are unsupported. [ 69 ] The Respondent’s claim therefore has no merit, and

summary judgment should be granted. [ 70 ] The Respondent’s claim is dismissed as it is without merit, and costs of all proceedings are awarded to Lorrnel. Heard on the 7 th day of October, 2016. Dated at the City of Edmonton, Alberta this 6 th day of March, 2017. Donald Lee J.C.Q.B.A. Appearances: Tracy A. Van Brunt Gowling Lafleur Henderson LLP for the Appellant/Defendant Priscilla Kennedy DLA Piper (Canada) LLP for the Respondent/Plaintiff