2023 FC, 2023 FC 1299

Date: 20230926 Dockets: T-2022-89 T-1437-19 Citation: 2023 FC 1299 Montreal, Québec, September 26, 2023 PRESENT: The Honourable Mr.

Justice Lafrenière Docket: T-2022-89 BETWEEN: CHIEF VICTOR BUFFALO, ACTING ON HIS OWN BEHALF AND ON BEHALF OF THE OTHER MEMBERS OF THE SAMSON INDIAN NATION AND BAND AND THE SAMSON INDIAN NATION AND BAND Plaintiffs and HIS MAJESTY THE KING IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, AND THE MINISTER OF FINANCE Defendants Docket: T-1437-19 BETWEEN: CHIEF AND COUNCIL OF SAMSON CREE NATION ON THEIR OWN BEHALF AND ON BEHALF OF SAMSON CREE NATION Applicants and THE ATTORNEY GENERAL OF CANADA AS REPRESENTED BY THE HONOURABLE SEAMUS O’REGAN MP, MINISTER OF INDIGENOUS SERVICES AND AS REPRESENTED BY THE EXECUTIVE DIRECTOR OF INDIAN OIL AND GAS CANADA Respondents ORDER AND REASONS I.

Introduction [ 1 ] By this motion brought pursuant to subsection 114(4) of the Federal Courts Rules , SOR/98-106 [ Rules ], the Samson Indian Band [Samson], a “band” within the meaning of subsection 2(1) of the Indian Act, RSC 1985, c I-5 , seeks an order approving the settlement of two representative proceedings and their dismissal after reaching a global agreement with Her Majesty the Queen in Right of Canada [Crown].

Samson seeks this order on a without costs basis, to come into effect upon the execution of the final settlement agreement by the Chief, Finance, Results and Delivery Officer [CFRDO] of Indigenous Services Canada, on behalf of the Crown, and confirmation to the Court by Samson of receipt of payment of the settlement proceeds (together, the “Conditions Precedent”). [ 2 ] The claims in the first proceeding bearing Court File No.

T-2022-89 (hereinafter referred to as “the Action”), a very large and complex action brought by Samson more than 30 years ago against the Crown, the Minister of Indian Affairs and Northern Development and the Minister of Finance, primarily relate to the Crown’s management of Samson’s oil and gas interests in the Pigeon Lake Reserve, a reserve which Samson shares with three other First Nations.

I am very familiar with this case given my involvement as case management judge over the past 13 years. [ 3 ] The Action seeks to enforce rights held solely by Samson as a band and does not engage any individually held rights. However, because the Action is framed as a representative action, subsection 114(4) of the Rules requires this Court’s approval before the Action can be settled. [ 4 ] The second proceeding in Court File No. T-1437-19 is an application (hereinafter referred to as “the Application”) whose claims

overlap with those contained in the Action. The Application is also a representative proceeding and therefore requires this Court’s approval for settlement. [ 5 ] After many years of litigation, Samson and the Crown agreed to settle the claims in the Action, the Application and certain other related claims before the Alberta Court of King’s Bench [ABKB], as described further below. The parties have agreed in principle to a settlement in the amount of $134 million, subject to internal approvals within both organizations and subject to the approval of this Court.

The necessary internal approvals have been obtained, including a ratification vote by Samson’s members who voted overwhelmingly in favour of proceeding with the settlement of the Action. [ 6 ] Samson relies on the affidavit of Vernon Saddleback, the current elected Chief of Samson, that sets out the background to the litigation, a

summary of the settlement and ratification processes, and the terms of the settlement. [ 7 ] The parties jointly request that the Court approve the settlement in order to bring this long-standing litigation to an end. For the reasons that follow, the request is granted. II. Background to the Action [ 8 ] Samson is an adherent to Treaty No. 6 of 1876 [Treaty 6] between the Crown and the Cree of central Alberta.

Two reserves were set aside for the use and benefit of the Samson people pursuant to Treaty 6: a . the Samson Indian Reserve No. 137 (the “Samson Reserve”) was set aside for the exclusive use and benefit of the band in 1889; and b . in 1896, the Pigeon Lake Indian Reserve No. 138A (the “Pigeon Lake Reserve”) was set aside for the use of the “Indians of the Hobbema Agency”, including Samson. [ 9 ] Samson shares the Pigeon Lake Reserve with the Ermineskin First Nation, the Louis Bull Tribe and the Montana First Nation (collectively, together with Samson, the “Maskwacis Nations”). [ 10 ] Samson surrendered its mineral interests in the Pigeon Lake Reserve in 1946.

At around the same time, the other Maskwacis Nations executed similar surrenders. Since then, the Crown has managed the oil and gas interests of the Maskwacis Nations on behalf of the Maskwacis Nations, including entering into oil and gas leases with various operators, collecting the royalties payable under those leases and holding the revenues from the leases in trust for the Maskwacis Nations. [ 11 ] The Action was commenced in 1989. At that time, it was common practice for a proceeding by a band to be brought as a representative proceeding due to uncertainty as to the capacity of a band to sue in its own name.

The Action was accordingly framed as a representative action brought by the then Chief and Council of Samson on behalf of Samson and its members. The claims in the Action were brought by Samson as a band in respect of rights and interest held by the band. They did not include claims on behalf of individual Samson members. III. Samson’s Claims in the Action [ 12 ] The claims in the Action are primarily focused on the Crown’s management of Samson’s oil and gas interests in the Pigeon Lake Reserve and the revenues from those interests.

For trial management purposes, the parties generally treated the claims in the Action as divided into three or four categories: a . the “Money Management Claim”, which involved claims relating to the Crown’s treatment of funds it received from oil and gas producers on the Pigeon Lake Reserve; b . the “Oil and Gas Claims”, which relate to the Crown’s management of oil and gas production on the Pigeon Lake Reserve, how the Crown dealt with the oil and gas producers, and related issues that affected the revenues received by Samson from oil and gas production.

The Oil and Gas Claims include: i . “Inequitable Production Claims,” which relate to whether the Crown took adequate steps to ensure that production of oil and gas from the Pigeon Lake Reserve was maximized; ii . “Royalty Claims,” which relate to whether the Crown obtained lawfully owing royalties from the oil and gas that was produced from the Pigeon Lake Reserve.

These include complaints about the royalty rate set by the Crown, and complaints about the way in which royalties were calculated (“Royalty Calculation Issues”); iii . the “Survey Claim”, which relates to the way the boundary of the Pigeon Lake Reserve along the edge of Pigeon Lake was determined by the Crown, and whether Her Majesty the Queen in Right of Alberta, who held title to the land underlying the lake, received more royalties than it ought to have and Samson less than it ought to have; and iv . the “Oil Valuation Claim”, which was based on the imposition of measures in relation to the pricing, export, and sale of oil and gas from the Pigeon Lake Reserve; c . the “Programs and Services Claim”, which alleges that the Crown had a policy of discriminating against “wealthy” or “oil-rich” bands (including the Maskwacis Nations) when it provided government funding for programs and services on reserve, and that this discrimination was unlawful and a breach of the Crown’s duties; and

d. the “PCD Claim”, which alleges that the Crown permitted Samson to make excessive per capita distributions (“PCDs”) tomembers from oil and gas revenues, thereby depleting the funds that ought to have been held for future generations. [13] The Money Management Claim and the Oil Valuation Claim were two of the largest claims in terms of potential value. The lengthytrial of the Money Management Claim, along with certain general issues in relation to Treaty 6, took place before Justice MaxTeitelbaum over 370 hearing days from 2000 to 2005 and was ultimately decided against Samson (Buffalo v.

Canada, 2005 FC 1622) ,although the judge did order the transfer to Samson of its specific purpose funds held in the Consolidated Revenue Fund. Appeals to theFederal Court of Appeal (Ermineskin Indian Band and Nation v. Canada, 2006 FCA 415) and Supreme Court of Canada (ErmineskinIndian Band and Nation v. Canada, 2009 SCC 9) were unsuccessful. [14] In 2013, the Crown applied for

summary judgment dismissing the Oil Valuation Claim on the basis that the claim was statute-barred. In 2015, Justice James Russell held in Samson First Nation v. Canada, 2015 FC 836 that limitation periods were applicable tothe claim despite accepting, for the purposes of the

summary judgment motion, that Samson’s Treaty Rights were at stake. He concludedthat the Oil Valuation Claim had not been brought within the applicable limitation period under Alberta law, as incorporated by referencein

section 39 of the Federal Courts Act, RSC 1985, c F-7 which was six years from discovery of the cause of action. This ruling wasupheld by the Federal Court of Appeal: Buffalo v. Canada, 2016 FCA 223. Leave to appeal to the Supreme Court of Canada was refused:Chief John Ermineskin, et al. v.

Her Majesty the Queen in Right of Canada, et al., (SCC). [15] As a result of the dismissal of the Money Management Claim and the Oil Valuation Claim, the outstanding claims in the Action arethe Programs and Services Claim, the PCD Claim, and the Oil and Gas Claims other than the Oil Valuation Claim (the “Outstanding Oiland Gas Claims”). [16] The Parties have now agreed on a formal settlement of the litigation (hereinafter referred to as the “Settlement” or “SettlementAgreement”, as the case may be). A.

The Terms and Conditions of the Settlement [17] The Settlement Agreement provides that in return for the dismissal and release of this Action and other pleadings amendments andreleases which Samson has agreed to give in respect of related proceedings before the ABKB, the Crown agrees to pay the amount of$134 million dollars as a global settlement amount (the “Settlement Proceeds”).

The remaining terms of the Settlement Agreement are(1) terms which are typically common in any settlement agreement, such as indemnities and a provision for dispute resolution, and (2)terms regarding the process by which the Settlement Agreement will be approved by the parties and by this Court. [18] The Settlement Agreement places no restrictions on the use of the Settlement Proceeds. This aspect of the agreement was made clearto Samson’s members. It was explained at the information sessions, as well as in the “Settlement

Summary” and “FAQ” made availableon Samson’s website, that the decision as to the use of the Settlement Proceeds lies with Samson’s Chief and Council, and that once paidby the Crown, the funds will be at the disposition and under the management of Samson’s elected officials. None of the SettlementProceeds will be handled through Samson’s legal counsel; they will all be paid directly to Samson. [19] In 2022, Samson Chief and Council provisionally approved the terms of the Settlement Agreement, as agreed between the parties, tobe put forward to Samson’s membership for approval.

At the same time, they approved the Notice of Ratification Vote (the “RatificationNotice”), which set out the question on which Samson members were asked to vote, and particulars of the voting process. B. The Ratification Process [20] The Settlement Agreement outlines the process by which Samson will approve the agreement so that it becomes binding on Samsonand all of its members.

It requires approval by a resolution of Chief and Council, and approval by Samson’s members at a ratificationvote, with a majority of those who vote voting in favour of approving the Settlement Agreement. [21] Prior to the ratification vote, the Ratification Notice was posted on Samson’s website and on local media, as well as variouslocations on the Samson Reserve. In addition, extensive materials were made available on Samson’s website, including: a. a

summary of the terms of the Settlement Agreement prepared by Samson’s legal counsel; b. a poster advertising the dates for voting online or in person and the place for voting in person, which was also physically posted atvarious locations on the Samson Reserve; c. posters advertising information sessions, which were also physically posted at various locations at the Samson Reserve; and d. a “FAQ” sheet providing answers to questions frequently asked by Samson members concerning the Settlement, which addressedtopics such as the manner in which the Settlement Proceeds would be used, clarification with respect to the actions to be settled,whether Samson would be giving up any interests in land or treaty rights, whether the band could or should ask for more money,how the Settlement amount compared to the Crown’s potential liability, and whether Samson’s lawyers would be paid any amountfrom the Settlement Proceeds.In regard to this last item, Samson members were advised that no contingency payments would bemade to Samson’s legal counsel and that 100% of the settlement proceeds would be payable directly to Samson. [22] A total of six information sessions were held to provide information to Samson members concerning the Settlement and to permitthe members to ask questions.

Each information session included, among other things: a. a presentation by Samson’s legal counsel, describing in more detail the history of the litigation, the claims made in the Action andrelated proceedings, and the terms of the Settlement Agreement;and

b . a presentation addressing the manner in which Samson’s Chief and Council intended to allocate the Settlement Proceeds and the future decision-making process with respect to the use to be made of the Settlement Proceeds. C.

The Vote [ 23 ] The ratification vote to approve the Settlement took place on November 15, 2022, with Samson’s members able to vote by mail or in person. [ 24 ] A majority (82.4%) of voters voted in favour of approving the Settlement, with 858 members voting in favour of approval and 172 members voting against. [ 25 ] On September 7, 2023, the Chief and Council of Samson resolved to approve and assent to the Settlement Agreement and to execute the Settlement Agreement on behalf of Samson.

Mr Saddleback states that band Council considered the approval of the Settlement Agreement to be in the best interests of Samson taking into account the lengthy history of these proceedings and the immediate and long term needs of the community. D. Related Proceedings [ 26 ] There is some overlap between the claims made in this Action and the claims made by Samson in the Application and other actions before the ABKB. The Settlement Agreement requires the amendment or release (or both) of overlapping claims in the following related proceedings: a . Buffalo v Canada et al , ABKB Action No. 9903-03798; b .

Buffalo v Canada and Alberta et al , ABKB Action No. 9603-05665; c . Buffalo v Canada and Imperial Oil Resources Limited , ABKB Action No. 9901-03802; d . Buffalo v Amoco Canada Petroleum Company Ltd and Canada et al , ABKB Action No. 9901-03800; e . Statement of Defence and Counterclaim in Chevron Canada Resources v Canada , ABKB Action No. 9701-07434, and Alberta Court of Appeal No. 1901-0211AC; f .

Buffalo v Canada and Alberta , ABKB Action No. 9903-03870 (and the duplicate claim Buffalo v Canada and Alberta , ABKB Action No. 9903-03868); g . the Application, and related thereto the September 17, 2019 request for a Ministerial Review of the August 1, 2019 decision, contained in a letter from Rae and Company; and h . Attorney General of Canada v Imperial Oil Resources Ltd , ABKB Action No. 0901-08509 (Collectively, the “Related Proceedings”). E.

The Court Approval Process [ 27 ] The parties have proposed that the Court adopt a two-step approval process as follows: a . the Court will issue an order approving the agreement and dismissing the Action and the Application, conditional upon the execution of the Settlement Agreement by the CFRDO of Indigenous Services Canada; and b . once the Settlement Agreement has been fully executed, the Settlement Proceeds paid and receipt of the Settlement Proceeds confirmed by Samson by way of letter to the Court, the Court will then issue a final order approving the Settlement Agreement and dismissing the Action and the Application.

IV. Issue [ 28 ] The only issue to be determined on this motion is whether the settlement of the two proceedings between Samson and the Crown should be approved and the proceedings dismissed subject to the Conditions Precedent. V. Analysis [ 29 ] As noted earlier, because the Action and Application are framed as a representative proceedings, they may not be settled without the approval of this Court. Rule 114 of the Rules provides:

" 114

(1) Despite rule 302, a proceeding, other than a proceeding referred to in

section 27 or 28 of the Act, may be brought by or against a person acting as a representative on behalf of one or more other persons on the condition that " " (

a) the issues asserted by or against the representative and the represented persons " " (

i) are common issues of law and fact and there are no issues affecting only some of those persons, or " " (ii) relate to a collective interest shared by those persons; " " (

b) the representative is authorized to act on behalf of the represented persons; " " (

c) the representative can fairly and adequately represent the interests of the represented persons; and " " (

d) the use of a representative proceeding is the just, most efficient and least costly manner of proceeding. " "

(2) At any time, the Court may " " (

a) determine whether the conditions set out in subsection (1) are being satisfied; " " (

b) require that notice be given, in a form and manner directed by it, to the represented persons; " " (

c) impose any conditions on the settlement process of a representative proceeding that the Court considers appropriate; and " " (

d) provide for the replacement of the representative if that person is unable to represent the interests of the represented persons fairly and adequately. " "

(3) An order in a representative proceeding is binding on the represented persons unless otherwise ordered by the Court. " "

(4) The discontinuance or settlement of a representative proceeding is not effective unless it is approved by the Court. " "

(5) Every document in a proceeding commenced under subsection (1) shall be prefaced by the heading “Representative Proceeding”. " " 114

(1) Malgré la règle 302, une instance — autre qu’une instance visée aux articles 27 ou 28 de la Loi — peut être introduite par ou contre une personne agissant à

titre de représentant d’une ou plusieurs autres personnes, si les conditions suivantes sont réunies : " "

a) les points de droit et de fait soulevés, selon le cas : " " (

i) sont communs au représentant et aux personnes représentées, sans viser de façon particulière seulement certaines de celles-ci, " " (ii) visent l’intérêt collectif de ces personnes; " "

b) le représentant est autorisé à agir au nom des personnes représentées; " "

c) il peut représenter leurs intérêts de façon équitable et adéquate; " "

d) l’instance par représentation constitue la façon juste de procéder, la plus efficace et la moins onéreuse. " "

(2) La Cour peut, à tout moment : " "

a) vérifier si les conditions énoncées au paragraphe (1) sont réunies; " "

b) exiger qu’un avis soit communiqué aux personnes représentées selon les modalités qu’elle prescrit; " "

c) imposer, pour le processus de règlement de l’instance par représentation, toute modalité qu’elle estime indiquée; " "

d) pourvoir au remplacement du représentant si celui-ci ne peut représenter les intérêts des personnes visées de façon équitable et adéquate. " "

(3) Sauf ordonnance contraire de la Cour, l’ordonnance rendue dans le cadre d’une instance par représentation lie toutes les personnes représentées. " "

(4) Le désistement ou le règlement de l’instance par représentation ne prend effet que s’il est approuvé par la Cour. " "

(5) Dans une instance par représentation, la mention « Instance par représentation » est placée en tête des actes de procédure.

" [ 30 ] In Kwicksutaineuk Ah-Kwa-Mish First Nation v Canada (Attorney General) , 2012 FC 517 , Justice Yves de Montigny noted at paragraph 82 that “[t]here is very little jurisprudence interpreting Rule 114 .” In particular, there are few reported decisions of this Court addressing the test that ought to be applied in determining whether to approve a settlement under Rule 114(4) . [ 31 ] In the recent case of Siksika First Nation v Canada , 2022 FC 434 , Justice Paul Favel outlined the process to be used in a Rule 114 approval in a factual context similar to the one in the present case.

Justice Favel stated at paragraph 71 that “the main factors the Court should consider when approving a settlement and discontinuing an action are: the scope or extent of the information; the notice provided to the membership; and members’ ability to participate and vote in a process that expresses their approval or disapproval of the settlement.” He considered that where the band membership had already been provided an opportunity to assess the reasonableness of the settlement agreement for themselves and voted to approve the settlement through a ratification process, the Court should hesitate to weigh in on the specifics of the terms of the settlement agreement or second guess the rationale for the specific terms of the settlement and “there is less Court oversight required.” At the same time, he acknowledged the Court must still assess the reasonableness of the proposed settlement under Rule 114(4) .

I agree. This Court’s role under subsection 114(4) cannot simply be reduced to acting as a rubber stamp.

[ 32 ] That said, it is not the Court’s role to substitute its own opinion and withhold its approval. Absent any circumstances suggesting that the Settlement is imprudent, due deference ought to be accorded to the views of the band’s representatives, and those of the overwhelming majority of its voting members, that the Settlement is in the best interests of their community: see Ballantyne v Bighetty , 2011 FC 994 at paras 57-59 . There are no such circumstances in this case. A.

Collective as opposed to Individual Claims [ 33 ] When the Action was commenced in 1989, it was unclear whether a band could sue as a collective entity in its own name. For that reason, it was standard practice for an action by a band to be brought by the chief and council of the band in a representative capacity, suing on behalf of the members as a collective: see Papaschase Indian Band (Descendants of) v Canada (Attorney General) , 2004 ABQB 655 at para 166 (reversed in part on other grounds, 2006 ABCA 392 , and restored 2008 SCC 14 ).

Since then, it has been made clear that an Indian band is a legal and political entity that can sue or be sued and need not frame an action to enforce its rights and interests as a representative proceeding: Key First Nation v Lavallee , 2021 FCA 123 at para 47 . [ 34 ] As mentioned earlier, the claims made in the Action are not individual claims. They are collective claims brought by Samson as “an enduring, self-governed entity that has distinct rights and obligations”: Kwicksutaineuk/Ah-Kwa-Mish First Nation v Canada (Attorney General) , 2012 BCCA 193 at para 76 .

Collective claims are based on rights and interests that are vested in the band, rather than in its members as individuals: see Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development) , 2001 FCA 67 at paras 19 , 23 [ Blueberry ]. If this action were brought today, it would not be framed as a representative proceeding.

It would be brought by Samson as a band in its own name. [ 35 ] The nature of this action is therefore very different than others where court approval of a settlement is required, such as a typical class action where the Court must undertake an inquiry, albeit a limited inquiry, into the prospects of success in the action and the merits of the settlement. Class actions typically involve a representative who is vested by the court with authority to represent numerous individuals, a “class” with similar claims.

Class definition is important because it identifies the persons who are entitled to notice and relief, if awarded, and who will be bound by any judgment or settlement if they do not opt out . The present Action does not involve an aggregation of individual claims, and the authority of the representatives (Samson’s Chief and Council) is not procedural and for the purposes of taking actions only.

Rather, the capacity of the Chief and Council to represent Samson in this litigation, and in relation to the Settlement, flows from the self-governing nature of a band under the Indian Act . [ 36 ] Given the collective nature of the claims made in the present Action, the will of the collective (as expressed through its elected representatives and the majority vote of its members) is a weighty if not determinative factor in favour of approving the Settlement.

In addition, the circumstances giving rise to the Settlement are strong indicia of an agreement that constitutes a fair resolution of these long- outstanding claims. [ 37 ] All this is consistent with Samson’s status as a self-governing First Nation and with the fact that the Settlement relates to claims that are held by the band as a collective, not by individual Samson members. A band may or may not decide to distribute all or part of the proceeds of litigation, whether obtained by way of a judgment or through a settlement, to its members.

However where, as here, the action concerns the rights and interests of the band as a collective, the individual members have no entitlement to those proceeds. They are the collective property of the band, to be used as the band sees fit in the best interests of the collective: Blueberry at para 23. B. Expense and Risk of Continued Litigation [ 38 ] Samson notes that, since there is a possibility that the Settlement may not be approved by the Court, any detailed analysis of the strengths and weaknesses of Samson’s case would be inappropriate.

As this Court has noted in McLean v Canada , 2019 FC 1075 at paragraphs 78-79 : [78] In a settlement situation, the parties cannot easily put their frank assessment of the merits of their case to the Court - the approval might not be given and the parties would then have to proceed with the action. [79] However, it is obvious that this is a complex case, that there would be significant evidentiary problems dealing with long past events and many legal issues and defences with which to contend. While there may be some assurance of some success, its nature and breadth is clearly uncertain.

It is a case which cries out for settlement. [ 39 ] Samson has established that given the nature of the claims advanced in the Action, and the history of these proceedings, there is no doubt that significant expense and risk would be involved in taking the remaining claims to trial. [ 40 ] As reflected in the pleadings, the claims raised in the Action appear factually and legally complex and the factual basis of many of the claims is disputed.

The Action also raises legal issues of first instance regarding the scope of the Crown’s duties, given the unique fiduciary and trust-like position which the Crown occupied with respect to the Pigeon Lake Reserve as the legal owner of the oil and gas interests. In addition, the Crown has elected to argue a number of defences, including limitation periods. Such issues raise the kinds of litigation risks which must be weighed against the potential for a successful outcome in considering whether the decision to settle was reasonable. [ 41 ] It has now been over 30 years since this action was commenced.

I am satisfied that if the Settlement is not approved, years of continued litigation could follow with no guarantee of success or recovery beyond the Settlement amount. [ 42 ] As previously noted, the issues that have been tried to date have been single, discrete issues. The time and costs involved in bringing the numerous remaining claims in the Action to trial can be expected to significantly exceed what was involved in relation to the Money Management and Oil Valuation Claims.

In particular, expert evidence will be required on numerous issues, including technical oil and gas matters, accounting matters, the standard of care and damages.

[ 43 ] Further, there is no guarantee that further litigation would be successful, if it were to proceed. There is at least some risk that the litigation will fail in whole or in part, and that Samson will recover an amount less than the Settlement amount or nothing at all. [ 44 ] The constraints imposed upon counsel are even greater here, given that the other three Maskwacis Nations, with which Samson shares the Pigeon Lake Reserve, have commenced actions that are materially the same as the Action. Two of those actions have not been settled.

To engage in any discussion of the weak points in Samson’s case would be detrimental to the interests of its neighbours. Moreover, the number and complexity of the claims involved in the Action are such that an in-depth assessment of their merits is impractical as well as inappropriate. [ 45 ] In addition, the expense of the proceedings has been a significant drain on Samson’s resources and this can be expected to continue if the litigation is not settled.

There can be little doubt that this was an important factor in the decision of the Council and members of Samson to approve the Settlement. [ 46 ] Finally, the range of potential damages which Samson might recover in the Action, should it proceed to trial, is extremely broad and fraught with uncertainty.

The quantum will depend upon, among other things: a . which of the numerous claims made in the Action are successful; b . the quantification of the initial value of those claims, which in many cases will require expert evidence; c . the availability of interest; and d . the impact of limitation periods, as addressed above. In theory, Samson could recover nothing or it could recover hundreds of millions of dollars. C.

The Approval Process [ 47 ] On the evidence before me, I find that the terms of the Settlement Agreement were communicated to Samson’s members through Samson’s website and through several information sessions at which legal counsel were present and answered questions. The nature and history of the Action and the Related Proceedings were also explained, and any questions or concerns expressed by the members were addressed in the FAQ and at the information meetings.

The members had every opportunity to fully inform themselves as to the advantages and disadvantages of settlement prior to exercising their right to vote. [ 48 ] An overwhelming majority (82.4%) of Samson voters voted in favour of the Settlement.

As this Court has repeatedly stated in the context of class actions, and as Justice Catherine Kane emphasized in McCrea v Canada , 2019 FC 122 at paragraph 73 , the fact that some class members are not in favour of the Settlement is not a sufficient reason to withhold approval: The Court’s focus is on the reasonableness and fairness of the settlement for the class as a whole.

A few dissatisfied or misinformed Class Members should not derail an agreement that is otherwise well supported and reasonable when all relevant factors are taken into account […] [ 49 ] This approach is particularly appropriate in this case where the claims being settled are collective claims of the band as a whole, and individual rights are not being affected. [ 50 ] I should add that during a case management conference held on August 22, 2022 to fix a hearing date for the motion, Samson was directed to provide notice of the hearing to band members, which it did by posting a public notice on Samson Cree Nation’s website and Facebook page providing information and instructions to register to remotely view the hearing.

No one sought leave to intervene on the motion. D. Factors Weighing in Favour of Approving the Settlement [ 51 ] Samson has established that it is in its best interests and those of its members to approve the Settlement Agreement. Various factors weighing in favour of approval are set out below: a . the Settlement was negotiated at arm’s length and was accepted by both parties; b . the Settlement has been approved by Samson’s Chief and Council and by an overwhelming majority of those members who voted at the ratification vote; c . this Court has previously approved a settlement of Ermineskin v Canada , Action No.

T-1254-92, which was litigated throughout together with the present Action, and d . the Settlement will bring an end to longstanding litigation. In addition to receiving the Settlement Proceeds of $134 million, Samson will be spared the expense of further litigation, permitting it to devote its resources to the pressing needs of the community and its members. VI. Conclusion [ 52 ] I am satisfied that the Settlement is fair, reasonable and in the best interests of Samson and its members and that the Settlement Agreement was approved by band members following a fair and transparent ratification process.

[ 53 ] In the circumstances, I would exercise my discretion in favour of approving the Settlement on the terms agreed to by the parties. ORDER IN T-2022-89 AND T-1437-19 THIS COURT ORDERS that : 1. The Settlement Agreement is approved pursuant to subsection 114(4) of the Federal Courts Rules governing representative proceedings, subject to: (

a) the execution of the Settlement Agreement by the Chief, Finance, Results, and Delivery Officer (CFRDO) of Indigenous Services Canada; and (

b) the payment of the Settlement Proceeds by Canada, as directed by Samson Cree Nation’s Chief and Council by way of a Direction to Pay in the form required by the Settlement Agreement. (Together, “Conditions Precedent”). 2. The dismissal of the action in T-2022-89 and the application in T-1437-19 without costs is approved, subject to the Conditions Precedent. 3.

Upon Samson Cree Nation confirming to this Court in writing, by way of a letter filed with the Registry accompanied by a draft order, that the Conditions Precedent have been satisfied, the matter shall be referred to the Court for issuance of a further Order unconditionally approving the Settlement Agreement and deeming the proceedings to be dismissed as though they had been heard and determined on their merits. 4. The undersigned shall remain seized with this matter. ank “Roger R. Lafreniѐre” blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKETS: T-2022-89 T-1437-19

STYLES OF CAUSE: T-2022-89, CHIEF VICTOR BUFFALO, ACTING ON HIS OWN BEHALF AND ON BEHALF OF THE OTHER MEMBERS OF THE SAMSON INDIAN NATION AND BAND AND THE SAMSON INDIAN NATION AND BAND v HIS MAJESTY THE KING IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, AND THE MINISTER OF FINANCE T-1437-19, CHIEF AND COUNCIL OF SAMSON CREE NATION ON THEIR OWN BEHALF AND ON BEHALF OF SAMSON CREE NATION v THE ATTORNEY GENERAL OF CANADA AS REPRESENTED BY THE HONOURABLE SEAMUS O’REGAN MP, MINISTER OF INDIGENOUS SERVICES AND AS REPRESENTED BY THE EXECUTIVE DIRECTOR OF INDIAN OIL AND GAS CANADA PLACE OF HEARING: held by videoconference DATE OF HEARING: September 22, 2023 ORDER AND REASONS: LAFRENIÈRE J.

DATED: september 26, 2023 APPEARANCES : L. Douglas Rae For The PlaintiffS/ APPLICANTS Clarke Hunter, KC Ray Chartier Linda Maj, KC Raymond Lee For The Defendants FOR THE RESPONDENTS SOLICITORS OF RECORD : Rae and Company Barristers and Solicitors Calgary, Alberta For The PlaintiffS/ FOR THE APPLICANTS

Norton Rose Fulbright Canada LLP Barristers and Solicitors Calgary, Alberta Attorney General of Canada Prairie Region Edmonton, Alberta For The Defendants/ RESPONDENTS