Docket: 2101 15851 Stoney Nakoda Nations Applicants - v. -, 2023 ABKB 700

Court of King’s Bench of Alberta Citation: Stoney Nakoda Nations v His Majesty the King In Right of Alberta As Represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office), 2023 ABKB 700 Date: 20231204 Docket: 2101 15851; 2101 15928; 2101 16010.

Registry: Calgary Between: Docket: 2101 15851 Stoney Nakoda Nations Applicants - and - His Majesty the King In Right of Alberta as represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office) and the Alberta Energy Regulator and the Joint Review Panel Acting In Its Capacity As the Alberta Energy Regulator Respondents And Between: Docket: 2101 15928 Benga Mining Limited Applicant - and - Alberta Energy Regulator and the Joint Review Panel for The Grassy Mountain Coal Project Acting in its Capacity as the Alberta Energy Regulator Respondent Municipal District of Ranchland No. 66 and Municipality of Crowsnest Pass Interveners And Between: Docket: 2101 16010 Piikani Nation (Aboriginal Consultation Office) Applicants - and - His Majesty the King In Right of Alberta as represented by the Minister of Aboriginal Relations (Aboriginal Office) and the Alberta Energy Regulator and the Joint Review Panel Acting in its capacity as the Alberta Energy Regulator Respondents _______________________________________________________ Reasons for Judgment

of the Honourable Justice Allison G. Kuntz _______________________________________________________ Introduction [ 1 ] The Alberta Energy Regulator and the Joint Review Panel for the Grassy Mountain Coal Project acting in its capacity as the Alberta Energy Regulator (collectively, the AER ) move to strike or summarily dismiss the judicial review applications of (

i) Benga Mining Limited , now known as Northback Holdings Corporation ( Northback ), (ii) Stoney Nakoda Nations ( Stoney Nakoda ) and (iii) Piikani Nation (Aboriginal Consultation Office) ( Piikani ), challenging a decision of the AER (the AER Decision ) not to approve Northback’s Grassy Mountain Coal Project (the Project ). [ 2 ] The AER denied the Project pursuant to its authority under the Responsible Energy Development Act , SA 2012, c R-17.3 ( REDA ). Section 45(1) of REDA permits appeals from decisions of the AER to the Alberta Court of Appeal ( ABCA ) on questions of jurisdiction or on questions of law.

Section 56 of REDA is a privative clause, which states that, subject to sections 38 , 42 (neither of which are relevant for this case) and 45, “ every decision of the Regulator or a person carrying out the powers, duties and functions of the Regulator is final and shall not be questioned or reviewed in any court by application for judicial review or otherwise ...” (emphasis added). [ 3 ] Northback exercised its right to seek leave to appeal under s. 45(1) of REDA , as did Stoney Nakoda and Piikani. All three applications were dismissed by the ABCA (the Leave Decision ).

Subsequent applications for leave to appeal to the Supreme Court of Canada (the SCC ) were also dismissed. That being the case, the AER submits that Northback, Stoney Nakoda, and Piikani have exhausted their rights to judicial review of the AER Decision, and that s. 56 prohibits further review.

The AER also submits that the appeal rights under REDA afford the requisite, constitutionally required, degree of supervision over the AER Decision, such that this Court should exercise its discretion not to hear the applications for judicial review filed by Northback, Stoney Nakoda, and Piikani. [ 4 ] In the alternative, the AER submits that the applications for judicial review of the AER Decision are res judicata , a collateral attack on the ABCA’s decision denying leave, and disclose no reasonable claim such that they should be summarily dismissed. [ 5 ] The AER is joined on this application by the Municipal District of Ranchland No. 66 ( MD ), who had Intervenor status at the hearings before the AER, Respondent status on the applications for leave to appeal to the ABCA, and Intervenor status on this application.

Preliminary Issue – AER’s Status to Bring this Application [ 6 ] Northback raised a preliminary issue regarding whether it was appropriate for the AER to have filed this application. Northback submits that the AER’s application is inappropriate because, as the administrative decision-maker whose decision is the subject of judicial review, the AER should remain an impartial party.

Northback submits that while the AER claims to be bringing this application on the basis that s. 56 of REDA precludes judicial review and the Leave Decision renders judicial review res judicata , it is actually arguing and attacking the merits of the judicial review application. I disagree. [ 7 ] The AER is seeking to enforce s. 56 of REDA . That determination does not require reference to the merits of the judicial review application.

The AER is also relying on the findings in the Leave Decision - and not its own view of the proposed grounds for judicial review - to argue that the applications for judicial review are precluded by statute or are res judicata . This is a procedural application, and the merits are not in issue. I do not think the AER has overstepped in bringing this application. [ 8 ] In addition, I agree with the AER that there is no other party to bring this application.

If the AER is not permitted to do so, the issues surrounding the enforceability of s. 56 would not be resolved other than by default in favour of Northback, Stoney Nakoda, and Piikani. Northback, Stoney Nakoda, and Piikani’s Position [ 9 ] Northback acknowledges that s. 56 of REDA is a privative clause purporting to exclude judicial review of the AER Decision. However, Northback submits that judicial authorities make it clear that the legislature cannot oust judicial review entirely, and that privative clauses have no effect on the availability of judicial review.

That being the case, Northback submits that neither s. 56 of REDA or the circumscribed right of appeal under s. 45 can be used to prevent it from pursuing judicial review of the AER Decision on questions of fact and mixed fact and law. [ 10 ] Stoney Nakoda and Piikani adopt and rely on the submissions of the Northback in opposition to the AER’s application to strike. Analysis of Vavilov [ 11 ] In support of its position, Northback relies primarily on the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov [ Vavilov ], 2019 SCC 65 , and post- Vavilov decisions.

In Vavilov , the SCC directed a new framework for selecting the standard of review on judicial review. The new framework starts with the presumption of a reasonableness review and ascribes appellant standards of review where the legislature has provided for a statutory right of appeal. In Vavilov , the SCC also provided guidance to reviewing courts on conducting a reasonableness review: Vavilov , e.g., paras 16-17 and 73-75 .

[ 12 ] I do not agree with Northback that Vavilov made a definitive finding that a privative clause has no effect on the availability of judicial review. I also do not agree with Northback that Vavilov , together with post- Vavilov decisions, equals such a clear pronouncement. My doubts as to the correctness of Northback’s

interpretation of Vavilov , can be summarized in the following four points. [ 13 ] First, and as noted above, Northback’s submission begins with the principle that there is a constitutional right to judicial review and that judicial authorities are clear that the legislature cannot oust judicial review entirely: Vavilov , para 24 , citing to Dunsmuir , para 31. This submission is not contentious. Northback submits that contrary to its constitutional right and the prevailing judicial authorities, s. 56 of REDA purports to preclude judicial review of the AER Decision entirely.

Northback’s submission ignores that its statutory right to appeal under s. 45 of REDA is part of the judicial review framework. I agree that as per Vavilov , a statutory right to appeal and a right to judicial review are distinct ( Vavilov , e.g., para 52 ), however, both procedures still result in the judicial review of an administrative decision.

Considering Northback’s statutory right of appeal under s. 45 of REDA , Northback cannot argue that s. 56 operates to completely insulate the AER Decision from a reviewing court, thereby running afoul of Vavilov , and other authorities. [ 14 ] Second, and as submitted by the AER, Dunsmuir reaffirmed the decision of the SCC in Crevier , that the legislature may oust judicial review on certain issues with a privative clause: Dunsmuir , para 31, citing to Crevier , paras 237-238.

Northback submits that Dunsmuir and Crevier are dated and should only be relied on as cited by Vavilov for affirming that judicial review is protected by the constitution, and that “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Vavilov , para 24 , citing to Dunsmuir , para 31, and Crevier paras 236-37. The quote that Northback relies on from Vavilov , Dunsmuir , and Crevier , states that legislatures cannot shield administrative decisions “entirely”, which suggests that they can be shielded to some extent (perhaps through a privative clause) just not absolutely.

The AER’s reliance on Dunsmuir and Crevier is consistent with Vavilov . [ 15 ] Third, prior to Vavilov , courts used the contextual approach to select the standard of review on judicial review. Within the contextual approach, a privative clause was used to inform the selection of the standard of review and was considered a reflection of the legislature’s intent for the courts to use a deferential standard. In Vavilov , the SCC determined that a privative clause is no longer relevant to determining the standard of review: Vavilov , para 49 .

The SCC also reiterated that respect for the legislature is the “polar star” of judicial review and held that courts are now required “to give effect to the legislature’s institutional design choices to delegate authority through statute”: Vavilov , paras 33 and 36 . If a privative clause has: (

a) lost its utility with respect to determining the standard of review, and (

b) not been struck down (I note here the AER’s observation that none of the judicial review applications challenge the constitutional validity of s.56 ) then, together with Vavilov’s focus on respecting legislative intent, it is necessary to give effect to the plain and ordinary meaning of a privative clause such as s. 56 of REDA . [ 16 ] Finally, Northback submits that appellate-level cases have interpreted paragraphs 45 and 52 of Vavilov to mean that the mere fact that a statutory right of appeal exists for questions of law does not, on its own, impugn the right of an applicant to seek judicial review of administrative decisions on questions of fact or mixed fact and law.

Paragraphs 45 and 52 of Vavilov are as follows: [45] [....] The existence of a limited right of appeal, such as a right of appeal on question of law or a right of appeal with leave of a court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding.... .... [52] [...] However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.

But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. (emphasis added) [ 17 ] Northback’s submission reiterates a plain reading of paragraph 52 of Vavilov but does not address the phrase that I have underlined.

As submitted by the AER, the words “does not, on its own” suggest that a circumscribed right of appeal on questions of law and jurisdiction (like s. 45 of REDA ) could be coupled with something else, such as a privative clause (like s. 56 of REDA ), to preclude a right to judicial review beyond the appeal. I agree that the words “does not, on its own” could be referring to a privative clause.

They could also be referring to the court’s discretion to hear or deny judicial review, or they could encompass both, or even something else. [ 18 ] In oral submissions, Northback stated that it is not clear from Vavilov what “does not, on its own” means but it cannot mean a privative clause because judicial review is constitutionally protected.

Again, this submission ignores that Northback’s statutory right of appeal under s. 45 of REDA forms part of the judicial review framework. [ 19 ] The point in paragraph 52 of Vavilov is that a circumscribed right of appeal is not “on its own” determinative of a right to other judicial review, and that any judicial review beyond the circumscribed right of appeal is its own procedure and begins with the presumption of a reasonableness review. [ 20 ] Paragraph 52 of Vavilov leaves open the possibility that the judicial review beyond a circumscribed right of appeal may be precluded, and directs the court to consider other factors when deciding whether it is, such as whether the legislature has, for example, (

a) within constitutional limits, insulated an administrative decision from judicial interference, perhaps through a privative clause: Vavilov , para 36 , or (

b) provided for “both appeal and judicial review mechanisms in different context, thereby indicating two roles for reviewing courts”: Vavilov , para 44 . [ 21 ] In

summary, I disagree with Northback, Stoney Nakoda and Piikani that Vavilov does not allow this Court to strike their judicial review applications under s. 56 of REDA . Having reviewed Vavilov , I will turn to some of the post- Vavilov decisions that Northback, Stoney Nakoda and Piikani rely on as further authority for their submission that a privative clause has no effect on the availability of judicial review. There is nothing in any of these other decisions that changes my view on Vavilov , or on whether the applications for judicial review can be struck.

Analysis of Post-Vavilov Decisions –Federal Court of Appeal [ 22 ] Northback relies on Neptune Wellness Solutions v Canada (Border Services Agency), 2020 FCA 151 [ Neptune ], Canada v Best Buy , 2021 FCA 161 [ Best Buy ], and BCE Inc. v Québecor Média Inc. , 2022 FCA 152 [ BCE ] as confirming Northback’s continued right to judicial review on questions of fact or mixed fact and law notwithstanding the privative clause and statutory right of appeal found in REDA . [ 23 ] The AER submits that the decisions are conflicting and that there is no merit to the suggestion that the leading SCC authority in Crevier (cited with approval in both Dunsmuir and Vavilov ) has been over-ruled by these lower court decisions.

Further, the AER notes that Justice Stratas of the Federal Court of Appeal has confirmed that there is a conflict on this issue in the lower courts and has directed the issue to a hearing that is still pending: Democracy Watch v Canada (Attorney General) , 2022 FCA 208 [ Democracy Watch ]. [ 24 ] In Neptune , the Federal Court of Appeal commented in obiter that “[t]here may nonetheless be judicial review of questions of fact or mixed fact and law from which a legal issue cannot be extricated by virtue of general principles and

section 38 of the Federal Courts Act ”: Neptune , para 15 . The obiter from Neptune was considered by the Federal Court of Appeal in Best Buy , where the minority and the majority concurred in the result, but disagreed as to whether in that case, judicial review was available despite a statutory right of appeal. [ 25 ] In Best Buy , the Federal Court of Appeal considered the interplay between a privative clause and a right of appeal at, respectively, subsection 67(3) and

section 68 of the Customs Act, RSC 1985, c.1 (2 nd Supp ) . Also relevant to the analysis was s. 18.5 of the Federal Courts Act: Best Buy , paras 59-60 (minority reasons) and paras 75, 88, 111, 119 (majority reasons) , and BCE , para 58 . [ 26 ] The minority took the view that subsection 67(3) and

section 68 precluded the Court from reviewing decisions of the Canadian International Trade Tribunal ( CITT ) for errors of fact or mixed fact and law that did not rise to the level of errors of law: Best Buy , para 3 . The minority did not think this

interpretation offended the rule of law and found it to be consistent with the decision in Crevier that while the legislature cannot eliminate judicial review of an administrative decision, it may oust judicial review on issues not touching on jurisdiction: Best Buy , paras 52-60 .

Further, the minority found this approach to be consistent with the focus in Vavilov on respect for legislative intent: Best Buy , para 39 . [ 27 ] The majority in Best Buy took the opposite view, and highlighted, among other things, paragraphs 45 and 52 of Vavilov (as does Northback ) for the finding that a circumscribed right of appeal does not preclude judicial review. The majority found that paragraphs 45 and 52 of Vavilov mirrored s. 18.5 of the Federal Courts Act, which provides for a right of judicial review to the extent the underlying decision is not also subject to appeal: Best Buy , paras 110-11 .

The majority in Best Buy also found that the SCC did not specifically endorse the notion that a privative clause may bar access to judicial review: Best Buy , 112. [ 28 ] Northback submits that BCE has resolved the conflicting reasons in Best Buy . In BCE , the Federal Court of Appeal considered whether the applicant ( Bell ) could bring an application for judicial review after having sought and been denied leave to appeal a decision of the Radio-television and Telecommunications Commission under s. 31(2) of the Broadcasting Act , S.C. 1991. c. 11 .

As stated by the Federal Court of Appeal, “[t]he issue [arose] because of the combined effects of subsection 31(2) of the Broadcasting Act and sections 18.5 and 28 of the Federal Courts Act” : BCE , para 53 . [ 29 ] There was no discussion in BCE regarding the impact of a privative clause like s. 56 of REDA . The Federal Court of Appeal allowed Bell to proceed with judicial review because s. 18.5 of the Federal Courts Act contemplates judicial review to the extent the issues are not subject to statutory appeal.

Section 18.5 is a positive statement regarding the availability of judicial review, and not a privative clause precluding judicial review like s. 56 of REDA . [ 30 ] These decisions from the Federal Court of Appeal are instructive, but I agree with the AER that the issue in dispute before this Court has not been finally determined by them: see also in that regard, Slatter JA’s concurring reasons in Georgopoulos v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2023 ABCA 285 [ Georgopoulos ] at para 15 . These decisions from the Federal Court of Appeal do not change my understanding of Vavilov .

I respectfully remain of the view that Vavilov does not preclude enforcement of a privative clause like s. 56 of REDA where coupled with a statutory right of appeal like s. 45 of REDA . Analysis of Post- Vavilov Decisions – Trial Level Decisions [ 31 ] Northback submits that at the trial-level, courts generally tend to accept Vavilov to mean that where there is a limited statutory right of appeal on questions of law, judicial review is still available on other reviewable questions.

In that regard, Northback refers to this Court’s decisions in Zarooben v The Workers' Compensation Board, Assessment Corp. et al, 2021 ABQB 232 , affirmed on appeal 2022 ABCA 50 [ Zarooben ], Maillet v Alberta (Appeals Commission for Alberta Worker’s Compensation) , 2022 ABKB 776 [ Maillet ], and Norheim v Chief Judge of the Provincial Court of Alberta , 2021 ABQB 465 [ Norheim ]. [ 32 ] In Zarooben , the Court considered both an appeal and an application for judicial review filed by Mr. Zarooben from a decision of the Appeals Commission under the Worker’s Compensation Act , RSA 2000, c W-15 [the WCA ].

Section 13.1 of the WCA defines the powers of the Appeal Commission and, subject to a right of appeal to the Court of King’s Bench on questions of law or jurisdiction under s. 13.4 of the WCA , states that decisions of the Appeals Commission are “final and conclusive and [are] not open to question or review in any court.” [ 33 ] In addition to filing an appeal in the Court of King’s Bench under s. 13.4 of the WCA , Mr. Zarooben filed an application for judicial review under the Alberta Rules of Court , Alta Reg 124. The Court considered as a preliminary issue whether Mr.

Zarooben could proceed with both the appeal and the application for judicial review. It appears the question arose because of irregularities in Mr. Zarooben’s pleadings, and not because there was an objection to Mr. Zarooben proceeding on both fronts.

[ 34 ] The Court determined that the irregularities could be cured and allowed Mr. Zarooben to proceed with both the appeal and the judicial review. In doing so, the Court considered Vavilov for the principle that “proceeding with judicial review and an appeal at the same time remains possible”, and for the purposes of understanding the standard of review on the appeal vs the judicial review: Zarooben , paras 34, 63-81 . [ 35 ] The Court in Zarooben was not asked to consider the privative clause at s 13.1(1) of the WCA . The decision in Zarooben was appealed to the ABCA.

The meaning of the privative clause in s. 13.1(1) of the WCA was also not before the ABCA. This was confirmed by the concurring reasons of Slatter JA in Georgopoulos : Georgopoulos , para 12 , footnote 1. [ 36 ] Likewise, in Maillet , the Court was not asked to consider the impact of the privative clause in s. 13.1(1) of the WCA on Mr. Maillet’s right to bring an application for judicial review. The Court relied on Vavilov for the principle that a statutory right of appeal is subject to appellant standards of review and does not preclude judicial review on other reviewable questions: Maillet , paras 19-28 .

But again, there was no express discussion regarding the impact of the privative clause in s. 13.1(1) . [ 37 ] The decision in Norheim is also distinguishable from this case because the Court in Norheim was dealing with a privative clause that barred any type of review, which is not the case here. [ 38 ] As with my review of the cases from the Federal Court Appeal, my review of these trial level decisions does not change my understanding of Vavilov .

I respectfully remain of the view that Vavilov does not preclude enforcement of a privative clause like s. 56 of REDA when coupled with a statutory right of appeal like s. 45 of REDA . Conclusion [ 39 ] I have considered the statutory right of appeal under s. 45 of REDA , and the privative clause under s. 56 . I have also considered the impact of Vavilov , and the decisions referred to in Vavilov and decided after Vavilov , on the enforceability of s. 56 of REDA . In my view, Vavilov does not stand for the proposition that a privative clause has no impact on the availability of judicial review.

It also does not require or allow the Court to ignore a plainly worded privative clause. [ 40 ] The statutory right of appeal at s. 45 of REDA provided Northback, Stoney Nakoda, and Piikani with sufficient opportunity to have the AER Decision reviewed. I find that their right to seek leave to appeal under s. 45 of REDA together with the privative clause at s. 56 of REDA is sufficient to bar further judicial review.

Therefore, the applications for judicial review of Northback, Stoney Nakoda, and Piikani are dismissed. [ 41 ] Given my decision that s. 56 of REDA is enforceable and prevents Northback, Stoney Nakoda, and Piikani from pursuing their applications for judicial review, it is not necessary for me to decide the other issues raised by the AER and MD which may have also barred the applications for judicial review. Heard on the 12 th day of September, 2023. Dated at the City of Calgary, Alberta this 4 th day of December, 2023. Allison G. Kuntz J.C.K.B.A. Appearances: P.

Jonathan Faulds, K.C., Field LLP, and William McClary, Alberta Energy Regulator for the Respondents/Applicants Michael B. Niven, K.C. and Michael Custer of Carscallen LLP Intervenor for the Respondents/Applicants Martin Ignasiak, K.C. and Laura Gill from Bennett Jones LLP for the Applicant/Respondent

Caireen Hanert and Alison Gray of Gowling WLG Canada LLP for the Applicant/Respondent Brooke Barrett, Rae and Company for the Applicant/Respondent