Wesley v Alberta, 2019 ABQB 925

Court of Queen’s Bench of Alberta Citation: Wesley v Alberta, 2019 ABQB 925 Date: 20191205 Docket: 0301 19586 Registry: Calgary Between: Chief Ernest Wesley and Councillors Robert Crawler, Tater House, Clifford Poucette and Rufus Twoyoungmen of the Wesley First Nation, being a part of the Stoney Indian Band, suing on behalf of all the other members of the Wesley First Nation, who are also all members of the Stoney Indian Band, - and – Chief Darcy Dixon and Councillors Donald Thomas Dixon, Rodrick Hunter, Keith Lefthand and Gordon Wildman of the Bearspaw First Nation, being a part of the Stoney Indian Band, suing on behalf of all the other members of Bearspaw First Nation, who are also all members of the Stoney Indian Band, - and – Chief Aaron Young and Councillors Frank Crawler, Henry Holloway, Homer Holloway, and Gerald Kaquitts of the Chiniki First Nation, being part of the Stoney Indian Band, suing on behalf of all other members of the Chiniki First Nation, who are also all members of the Stoney Indian Band, - and – Chief Ernest Wesley and Councillors Robert Crawler, Tater House, Clifford Poucette, Rufus Twoyoungmen and Chief Darcy Dixon and Councillors Donald Thomas Dixon, Rodrick Hunter, Keith Lefthand and Gordon Wildman and Chief Aaron Young and Councillors Frank Crawler, Homer Holloway, Henry Holloway and Gerald Kaquitts suing on their own behalf and on behalf of all other members of the Stoney Indian Band, which comprises the members of the Wesley, Bearspaw and Chiniki First Nation (“ÎYÂRHE NAKODA”) - and –

The Stoney Indian Band Plaintiffs - and - Her Majesty the Queen In Right of the Province of Alberta and the Attorney General of Canada Defendants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I. Overview [ 1 ] Sixteen years ago, the Stoney Nakoda Nations (“ the Stoney ”) commenced an action against the governments of Alberta and Canada. Among other things, it seeks a declaration of Aboriginal title and rights to a large area of land in southern Alberta.

Pre-trial activities are well underway, and pleadings closed many years ago. [ 2 ] Two members of the Blackfoot Confederacy, the Siksika First Nation (“ the Siksika ”) and the Piikani First Nation (“ the Piikani ”), now seek to join that litigation by being added as Defendants. They jointly apply for that relief pursuant to the Alberta Rules of Court, AR 124/2010 (the “ Rules ”). The application is opposed by the Stoney and Alberta, with Canada taking no position. [ 3 ] To decide this application, I must determine whether the Applicants are entitled under the Rules to apply at this stage to be added as a party.

In my capacity as Case Management Justice, I must also consider whether the essential relief sought is more appropriately found in other provisions of the Rules —specifically the opportunity to apply for intervenor status. [ 4 ] I have decided that the Applicants do not have standing to apply to be added as defendants in the Action because rule 3.74(2) (

b) allows only existing parties to makes such an application. I have also decided that the appropriate course of action for the Applicants to take in these circumstances is to file an application for intervenor status, pursuant to rule 2.10. That rule allows the Court to manage, at the outset, the manner of participation in the Action in a way that will allow for an appropriate contribution to the litigation process while not unfairly prejudicing the interests of the existing litigants who have already spent considerable time and resources to prepare the action for trial. II.

The Stoney Claim [ 5 ] The Stoney claim seeks a declaration of Aboriginal rights and title to a large area of Southern Alberta.

As noted by the first Case Management Justice designated in this matter, Justice Martin (as she then was), the claim is comprehensive and based on constitutional law principles that are complex and are still, some ten years later, developing: Wesley v Alberta, 2009 ABQB 418 at para 2 . [ 6 ] As particulars have been demanded and provided, the claim has been refined, so as to distinguish between areas that are characterized as “Traditional Lands” (subject to the Stoney claim for Aboriginal title and rights) and areas that are characterized as “Traditional Use Lands” (subject to the Stoney claim for Aboriginal rights only). [ 7 ] The claim also seeks compensation from the Crown for natural resources taken from all of these areas, without consent of the Stoney. [ 8 ] The geographic scope of the Traditional Lands includes the Eastern slopes of the Rocky Mountains from the 54 th parallel to the Canada-USA border.

All of the Traditional Lands fall within Treaty No. 7, an historic treaty whose signatories include the Stoney, the Siksika, the Piikani and many other First Nations such as another member of the Blackfoot Confederacy (the Kainai First Nation) and

the T’suut’ina Nation. [ 9 ] The geographic scope of the Traditional Use Lands is even larger. It includes the Traditional Lands, as well as lands extending north of the 54 th Parallel and far to the East of the Eastern slopes of the Rocky Mountains. As such, the claim extends beyond Treaty No. 7, and includes portions of Treaty No. 4 and Treaty No. 6.

The claim, therefore, implicates the treaty (and potentially other) interests of many additional Alberta First Nations. [ 10 ] The Stoney acknowledge in their Statement of Claim (as amended) that other First Nations may have an interest in lands subject to the claim.

In respect of the Traditional Lands over which they claim Aboriginal Title, they plead that certain of these lands are and have been subject to exclusive use and occupation by the Stoney, while other portions of these lands have been used and occupied by the Stoney and other First Nations on a basis of “shared exclusivity”. [ 11 ] They plead that their claim to Aboriginal rights and title is “without prejudice” to the claims of other First Nations. III. Status of Litigation [ 12 ] As might be expected given the complex nature of an Aboriginal Title claim, litigation of the Stoney claim has been slow.

The time period relevant to the claim extends back to well before the signing of the historic numbered treaties in 1870 in what is now Alberta.

The discovery of documents involves the compilation of many kinds of historical records, including letters and diaries of early European explorers; correspondence; newspaper and other publications; academic research; and all forms of government records. [ 13 ] To date, the parties have exchanged 18,136 documents, including: 5276 by the Stoney (in eight installments), 5038 by Alberta (in nine instalments), and 7822 by Canada (in three instalments). [ 14 ] The Stoney has questioned Canada’s representative in 40 days of questioning that has taken place over a number of years and resulted in 4458 pages of transcripts and 1848 undertakings.

Canada has responded to 346 of the undertakings. In case management I was advised that it can often take considerable time to respond to undertakings in this claim, as many necessitate the assignment of research projects that can take months to complete. [ 15 ] Questioning of Alberta’s representative has more recently been commenced.

Four days of questioning took place in May of 2019, resulting in 479 pages of transcripts and 233 undertakings. [ 16 ] In addition to negotiation of a Document Exchange Protocol, the parties have engaged in discussions regarding protocols for the de bene esse examination of Stoney Elders and, as I understand it, confidentiality arrangements regarding such examinations. Discussions have also been held regarding an Agreed Statement of Facts, but for obvious reasons those are at a very preliminary stage. [ 17 ] Two contested applications have been heard under case management.

The first dealt with the sufficiency of the Stoney response to Demands for Particulars by the defendants: Wesley v Alberta , 2009 ABQB 418 . The second dealt with objections and refusals to provide undertakings made during the questioning of Canada’s representative: Wesley v Alberta , 2009 ABQB 418, aff’d 2015 ABCA 76 . [ 18 ] To date there have been 25 case management meetings, with the next scheduled for December 19, 2019. IV.

Applications to be Added as Defendants [ 19 ] On October 19, 2018 the Applicants applied for Orders adding them as Defendants in the Action. [ 20 ] In support of the application, the Siksika filed an affidavit sworn by one of its Elders and former band councillors, Mr. Clarence Wolf Leg. The Wolf Leg Affidavit provides a brief overview of the history of the Blackfoot Nations in Southern Alberta and Montana.

It describes the Blackfoot Territory as including lands stretching from the North Saskatchewan River in the north, the Big Sand Hills area (including Cyprus Hills) in the east, the Yellowstone River in the south, and the Rocky Mountains in the west. [ 21 ] The Wolf Leg Affidavit states that the Stoney claims to exclusive use and occupation of either the Traditional Lands or the Traditional Use Lands that are within the Blackfoot Territory are “not correct or valid”, as they are lands that the Blackfoot Nations have used and occupied at all times prior to, during and following the making of Treaty No.7. Mr.

Wolf Leg further attests that both Blackfoot oral history and European history record that the Blackfoot enforced their use and control of Blackfoot Territory immediately prior to Treaty No. 7 and after that time, he attests that “to the extent that the Stoney had any presence on the land they claim in their Action, they were there with the permission of the Blackfoot.” [ 22 ] Similar evidence is contained in the affidavit of Mr. Doane Crow Shoe on behalf of the Piikani Nation. Mr. Crow Shoe is a councillor of the Piikani Nation and has been involved in Piikani internal governance since 2002.

He asserts that the Blackfoot Confederacy claims most of the southern half of Alberta as part of their traditional territory. Mr. Crow Shoe adopts the Wolf Leg Affidavit for the purposes of the Piikani application and confirms that the evidence deposed in the Wolf Leg Affidavit is consistent with what he knows to be true of Blackfoot history and territory as learned through teachings from elders and other members of the Piikani Nation. A.

Actions taken by the Siksika and the Piikani – 2003-2017 [ 23 ] The Stoney advised the Applicants of its intention to bring a claim against Canada and Alberta in the Fall of 2003. The Applicants responded by placing the Stoney on notice that they would defend their interests as necessary. However, they took no steps to

join this Action until 2017, when they notified counsel for Stoney of their intent to apply to be added as Defendants. [ 24 ] The Applicants offer different reasons for their inaction. The Siksika say that they were not properly advised by their legal counsel as to the potential effects of the Action on their interests.

In response to a letter from the Siksika expressing concern over the fact that the law firm in question had acted for the Siksika in the past and was now acting for the Stoney, the lawyer reassured them that the claim was being advanced on a without prejudice basis and also that it was being filed in order to protect against potential limitations arguments by government.

He also advised them that if they were concerned about the claim they were free to file a claim of their own. [ 25 ] The Siksika also say that they met with the Stoney in 2012 and received assurances from them that the claim would not adversely affect their interests, although they left the meeting in question with unresolved concerns. [ 26 ] The Piikani, like the Siksika, say that when the claim was first made, they regarded it as outrageous.

They ask the Court to have regard for the fact that the Piikani were, for many years, under financial management which restricted their ability to participate in litigation. [ 27 ] Both the Siksika and the Piikani say that considerable effort was made to develop a common position and strategy as between them and the Kainai First Nation (also a member of the Blackfoot Confederacy) from 2013 to 2016.

They also assure the Court that they have no desire to delay the litigation and will cooperate with other parties in minimizing the disruption that would be caused by adding them as Defendants at this stage. [ 28 ] The Stoney do not accept the reasons offered by the Applicants for their delay.

They note that both Nations have been able to participate in other Aboriginal rights claims, including being co-plaintiffs (along with the Stoney and others) in a Federal Court action relating to the Natural Resource Transfer Agreement and in the case of the Siksika, an action against the Federal government regarding their claim to Aboriginal rights and title over Castle Mountain that led to a $123 Million settlement in 2016. [ 29 ] The Stoney and Alberta both contend that adding the Applicants as Defendants at this stage would inevitably complicate an already complicated lawsuit to the prejudice of all the parties currently involved.

B. Proposed Defence [ 30 ] The Siksika and the Piikani both propose to defend the Action on a similar basis. They will say that since time immemorial, the Blackfoot Confederacy has used, occupied, and maintained control over the lands claimed by the Stoney, including both the “Traditional Lands” and the “Traditional Use Lands” as those terms are defined by the Stoney. [ 31 ] The Siksika filed a draft Statement of Defence and the Piikani deposed that they would file a substantially similar Statement of Defence if added as Defendants.

The Applicants will specifically respond to the Action with the following assertions:

a) that the plaintiffs or their predecessors did not have control on an exclusive, shared, or joint basis of the Traditional Lands or the Traditional Use Lands, nor did they have intention or capacity to do so;

b) that at all material times the Blackfoot Nations used and occupied the Traditional Lands and the Traditional Use Lands;

c) that the plaintiffs or their predecessors did not exclude the Blackfoot Nations from those lands nor did they have the intention or capacity to do so; and

d) that the plaintiffs or their predecessors did not exercise activities, practices, traditions and customs in the Traditional Use Lands at the time of contact with the Europeans, or if they did, such activities were not integral to the Plaintiffs’ distinct culture and further that such activities were only done with and pursuant to permission given to them by the Blackfoot Nations. [ 32 ] The Wolf Leg Affidavit offers evidence of the Blackfoot tradition of fiercely defending their lands and protecting Blackfoot territory through specific protocols governing admission of visitors into that territory. [ 33 ] It is clear that both Applicants seek to be added as Defendants in order to dispute the heart of the Stoney claim to both Aboriginal title and Aboriginal rights within the Treaty No. 7 area.

At the same time, their position regarding the manner in which Treaty No. 7 is to be interpreted will be the same as the Stoney’s. Each will contend that Treaty No. 7 did not operate to extinguish or cede pre- existing claims to title and rights, placing both the Stoney and the Applicants in opposition to Canada and Alberta on that important issue. V. Assessment A. Standing [ 34 ] Rule 3.74 of the Rules governs the addition of parties after the close of proceedings.

It states: Adding, removing or substituting parties after close of pleadings 3.74(1) After close of pleadings, no person may be added, removed or substituted as a party to an action started by statement of claim except in accordance with this rule.

(2) On application, the Court may order that a person be added, removed or substituted as a party to an action if

(

a) in the case of a person to be added or substituted as plaintiff, plaintiff by-counterclaim or third party plaintiff, the application is made by a person or party and the consent of the person proposed to be added or substituted as a party is filed with the application; (

b) in the case of an application to add or substitute any other party, or to remove or to correct the name of a party, the application is made by a party and the Court is satisfied the order should be made.

(3) The Court may not make an order under this rule if prejudice would result for a party that could not be remedied by a costs award, an adjournment or the imposition of terms. [ 35 ] It is clear from the plain language of rule 3.74(2)(

a) that applications to add or substitute plaintiffs may be made by a “person” or a “party”. However, an application under rule 3.74(2)(

b) to add any other “party”, such as a defendant, must be made by someone who is already a party to the action. [ 36 ] This is consistent with the notion that a plaintiff is entitled to decide who she or he wishes to sue: W.A. Stevenson & J.E. Côté , Civil Procedure Encyclopedia, vol 1 (Edmonton: Juriliber, 2003) at 8-64. B. Interests of Justice [ 37 ] The wording of rule 3.74(2)(

b) also makes it clear that it is to be applied in two steps. First the applicant must be an existing party. Second, the Court must be satisfied that the order should be made. The latter requirement is discretionary and engages more general considerations such as the nature of the interest advanced, the reasons for delay in seeking to be added as a party, and the prejudice that might be occasioned by adding a defendant against the wishes of other parties. [ 38 ] The Applicants acknowledge that they are not parties, but urge me to eschew a “strict” or “formalistic”

interpretation of rule 3.74. They say that it would be contrary to the interests of justice, access to justice, and reconciliation to decide that they should be precluded from applying to be added as defendants simply because pleadings have closed and they are not parties to the action. [ 39 ] I disagree. [ 40 ] First, to take such an approach would be to effectively rewrite rule 3.74 . The question of whether the order “should be made” does not arise unless a “party” makes the application.

Therefore, even if I agreed with the Applicants that the interests of justice requires their addition as plaintiffs, I would not be able to make the order sought because they do not meet the first requirement under the rule. [ 41 ] The requirement that an application such as this can only be made by an existing party is not a matter of formality or technicality.

In Stratum Projects Alberta Inc v Aman Building Corporation 2017 ABQB 351 , Master Schlosser of this Court described the history of rule 3.74 , including the work done by the Alberta Law Reform Institute (“ALRI”) prior to the enactment of the “new” Rules in 2010. He noted, and I agree, that while the ALRI recommended that standing to seek addition of new parties be liberally worded (as is the case in the respective rules of Ontario and British Columbia), that recommendation did not carry the day: see paras 17-20.

A narrower approach was taken to adding new parties after the close of pleadings, but this was coupled with a broad discretion to allow non-parties to intervene in an action, pursuant to rule 2.10. [ 42 ] In McIver v Alberta (Ethics Commissioner), 2017 ABQB 695 the Court had occasion to comment further on these alternative modes of participation, albeit in the context of rule 3.75 governing the addition of parties in a judicial review against the applicant’s wishes. Justice Eamon noted that the Rule 3.74(2)(

b) requirement that the applicant be an existing party to the Action does not appear in rule 3.75: see para 27. He then went on to discuss how the Court should exercise its discretion to add parties to a judicial review sparingly, noting the need to be mindful that rule 2.10 provides an avenue for participation in the proceeding without being added as a respondent. [ 43 ] I agree with the approach taken in McIver regarding adding respondents to judicial reviews against the wishes of an applicant.

I would also note that the interests of justice engaged in deciding whether a person should be added as a party to an action are quite different than those involved when deciding whether new respondents should be added to a judicial review or statutory appeal. [ 44 ] In their arguments against a strict

interpretation of rule 3.74, the Applicants argued that I have statutory jurisdiction to grant the relief they are seeking pursuant to

section 8 of the Judicature Act, RSA 2000, c J-2 .

Section 8 gives the Court broad powers to grant the necessary relief to ensure the final determination of all matters and avoid multiplicity of legal proceedings. They also pointed to rule 1.2 which states that the purpose of the Rules is to provide a means “by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.” [ 45 ] I accept that this Court has broad jurisdiction, but the Rules must still be complied with.

In any event, I do not consider that the interests of justice would be served by adding the Siksika and the Piikani as Defendants at this stage of the Action. Nor would adding the parties as Defendants be the most timely or cost effective way of proceeding. [ 46 ] It is clear that the proposed defence would necessarily engage litigation not only of the Stoney claim to Aboriginal title and rights over much of Southern Alberta, but also the claim of the Blackfoot Confederacy to those lands. As structured, the proposed defences are clearly duel-edged swords.

If successful, the Applicants would defeat the Stoney claim by proving their own, even though they seek no declaration themselves. This would substantially complicate, and no doubt delay trial of a claim that is now in its sixteenth year of litigation. I agree with Alberta that, at minimum, it would be expected that pleadings would have to be re-opened, with further amendments to the Statement of Claim and the Statements of Defence, and further demands for particulars.

Moreover, the questioning completed to date would have to be revisited with a view to addressing the new claims put forward by way of the proposed defences. [ 47 ] I am also not satisfied that the delay in seeking to be added as a party, for the purpose of advancing this defence, was reasonable or justified. Aboriginal title and rights are advanced in different ways. A Statement of Claim may advance them, but an action seeking a declaration of title and rights can carry with it substantial cost and litigation risk.

[ 48 ] In this case the Siksika and the Piikani were aware of the Stoney claim but considered it “outrageous” (and presumably of low risk). They chose for many years to advance their interests in the lands in different ways than becoming directly involved in the Action or commencing one of their own. That choice was theirs to make. [ 49 ] Nonetheless, I do agree with the Applicants that they have important evidence to offer in this Action, and a different perspective to bring before the Court regarding the legal issues raised.

It is possible that the same might be said for other Indigenous groups who stand to be affected by the Stoney claim and who may in the future seek to participate. [ 50 ] Although the potential participation by others remains to be decided when those circumstances arise, it is my view that the appropriate mechanism for consideration of the Siksika and the Piikani participation would be through an application for Intervener status pursuant to rule 2.10.

That rule states: Intervenor status 2.10 On application, a Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rights and privileges specified by the Court. [ 51 ] A properly structured intervention application could address the Applicants’ need to defend their interests while still respecting the Stoney’s procedural right to choose the defendants against whom they seek relief.

If granted, intervenor status would also provide a concrete litigation plan describing how the Applicants participation would dovetail with the steps already being taken by the parties, and those remaining to be agreed upon by the parties or determined by the Court in the course of case management. [ 52 ] Having regard to the unique aspects of Aboriginal title and rights litigation, intervenor status has the potential to accommodate the various interests at play more appropriately than would having the Applicants (or any other First Nations who may seek to participate in the future) added as defendants.

Accordingly, even if I agreed with the Applicants that they are entitled to apply to be added as defendants, I would have opted for the intervention route. C.

Should the former rule 38(6) apply? [ 53 ] Although I have found that an application for intervenor status is the appropriate way forward, I will comment briefly on the argument by the Applicants that the former rule 38(6) should apply. [ 54 ] Pursuant to rule 38(6) of the former rules, any person could be added as a defendant where the person is “interested in the subject matter or the result of the action” and “should be allowed to defend the action or any issue therein”. [ 55 ] In the transitional provisions of the current Rules, rule 15.6 states the following: Resolution of difficulty or doubt 15.6 If there is doubt about the application or operation of these rules to an existing proceeding or if any difficulty, injustice or impossibility arises as a result of this Part, a party may apply to the Court for directions or an order, or the Court may make an order, with respect to any matter it considers appropriate in the circumstances, including: (

a) suspending the operation of any rule and substituting one or more former rules, with or without modification, for particular purposes or proceedings or any aspect of them; (

b) modifying the application or operation of these rules in particular circumstances or for particular purposes. [ 56 ] The Applicants in this case argued that a “difficulty or injustice” arises from rule 15.2 which states that the current Rules apply to all “existing proceedings”. Existing proceedings are proceedings commenced but not concluded under the former rules: r 15.1(a). [ 57 ] The Applicants stated that, but for rule 15.2, the former rules would have applied to the Stoney claim which was commenced prior to the introduction of the new Rules .

In effect, their argument is that the application of the current Rules , specifically rule 3.74 itself, results in an injustice for the Applicants and that I should rely on rule 15.6 to apply the former rule instead. [ 58 ] I do not find it appropriate to do so. [ 59 ] As was stated in Park Avenue Flooring Inc v EllisDon Construction Services Inc , 2016 ABCA 211 , rule 15.6 was included in the Rules to avoid harsh consequences during the transition between the former rules and the new rules and it should not be applied lightly: at para 11.

I agree with the Respondents that rule 15.6 is not a basis for disregarding the current legal test under the now-in-force rules in favour of a different test under the former rules. I also agree that the transitional focus of the Rules in this

part is less relevant now, when the Rules have been in place for nearly a decade. [ 60 ] In conclusion, and based on the above analysis, there is no difficulty or injustice that arises by application of the current Rules . VI. The Path Forward [ 61 ] The applications of the Siksika and the Piikani to be added as Defendants in this action are dismissed. If counsel cannot agree on costs within 30 days, that matter can be referred to me for a decision by way of correspondence, not to exceed five pages, exclusive of authorities.

[ 62 ] The Applicants may apply to be added as intervenors to the Action pursuant to rule 2.10. Should they wish to do so, they should advise the Court and the parties to the action of their intent to file such an application through the existing case management process. Heard on the 22 nd and the 23 rd day of October, 2019. Dated at the City of Calgary, Alberta this 4 th day of December, 2019. R.A. Neufeld J.C.Q.B.A. Appearances: E. Sigurdson and P. Millerd For Siksika Nation C. Hanert For Piikani Nation A. Stephenson and A. Argento For Alberta S. Martin and A. Elliot For Attorney General B. Barrett, J. O’Reilly and T. Osvath For Stoney Indian Band