Wesley v Alberta, 2022 ABKB 713

Court of King’s Bench of Alberta Citation: Wesley v Alberta, 2022 ABKB 713 Date: 20221026 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 the 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 of all other members of the Stoney Indian Band, which comprises the members of the Wesley, Bearspaw and Chiniki First Nations (“Îyârhe Nakoda”) -and- The Stoney Indian Band

Plaintiffs - and - His Majesty the King in Right of the Province of Alberta and the Attorney General of Canada Defendants _______________________________________________________ Reasons for Judgment of the Honourable Justice R.A. Neufeld _______________________________________________________ I. Overview [ 1 ] In 2003, the Stoney Nakoda First Nations (collectively) and the Stoney Indian Band or tribe (“the Stoney") commenced an action against the Governments of Alberta and Canada.

The action seeks wide-ranging relief relating to Aboriginal rights and land; it would affect most of Southern Alberta. [ 2 ] The Plaintiffs distinguish between areas that are characterized as “Traditional Lands”, which are subject to a claim for Aboriginal title and rights, and areas that are characterized as “Traditional Use Lands”, which are subject to a claim for Aboriginal rights only. [ 3 ] The claim also seeks compensation for natural resources taken from the Traditional Lands and Traditional Use Lands without the consent of the Stoney. [ 4 ] The Traditional Lands include 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 Nation, the Piikani Nation, the Kainai Nation, and the Tsuu T’ina Nation. [ 5 ] The Traditional Use Lands 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. The claim includes portions of Treaty No. 4 and Treaty No. 6 territory. [ 6 ] After years of pre-trial discovery and litigation, Alberta and Canada have applied to have the action summarily dismissed on the basis that it is time-barred.

They say that the time is ripe for such an application, as there are years of pre-trial and trial processes still ahead, all of which are unnecessary as the action is destined to fail, due to limitations and laches. [ 7 ] The Stoney argue that their claim for recognition of Aboriginal rights and title is not and cannot be barred by limitation of action legislation or the doctrine of laches.

Even if the Statement of Claim was filed outside the time prescribed by statute, it must be permitted to continue, as to find otherwise would effectively extinguish their rights under s. 35(2) of the Constitution. [ 8 ] They also argue that the amended, amended Statement of Claim (“the amended Statement of Claim” or “AASC”) is in essence a claim for declaratory relief, which is not subject to limitations. To the extent that it includes claims for remedial relief, these can be severed.

[ 9 ] To decide this application, a number of determinations must be made. [ 10 ] First, I must be satisfied that the record before me is sufficient to make a fair and just decision at this stage, rather than at trial. [ 11 ] Second, I must determine whether the limitation periods prescribed by statute apply to this claim – a question which in itself has three subparts. [ 12 ] The first is whether the relief sought in the Statement of Claim is essentially declaratory or remedial.

The second is whether some of the relief sought is severable, such that if parts of the claim are time-barred, the remaining parts can be salvaged. The third is whether limitations legislation and laches apply at all in in this case if they would operate to prevent the claim from being fully heard, given the provisions in s. 35(2) of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“the Constitution ”), the UNDRIP Act , and the Natural Resources Transfer Act , 1930. [ 13 ] I have decided that as drafted and particularized, the amended Statement of Claim goes far beyond seeking declaratory relief. It is in essence coercive in nature.

It seeks massive monetary compensation, an accounting for and recovery of all natural resource revenue ever received by Alberta and Canada over a major portion of Southern Alberta; and the quashing of all permits, licences and authorizations ever granted by Alberta and Canada over a major portion of Southern Alberta. [ 14 ] While the remedial relief sought is time-barred, it is also severable. In the circumstances of this case, partial

summary dismissal is appropriate so that the declaratory relief sought can proceed toward trial after being severed from the time-barred remedial relief. This includes allowing claims for declaratory relief that are hybrid in nature to proceed, such as claims where the relief may be coercive by granting exclusive possessory rights, or may otherwise affect the rights of third parties. The form and availability of such relief is best determined at a later point in this proceeding.

Consequently, only the clearly remedial relief claimed will be summarily dismissed. [ 15 ] As for the constitutionality of the Limitations Act , I have determined that the time periods prescribed in the Act do not offend s. 35(2) of the Constitution . Limitations prescriptions do not extinguish the rights of prospective litigant.

Rather they limit the time for the commencement of an action to enforce, by coercion, those rights. [ 16 ] The Stoney had the opportunity to commence this action many years ago, and in fact, commenced a variety of actions in the 1980’s and early 1990’s asserting Aboriginal rights and title – albeit none as ambitious as this one. Accordingly, it cannot be said that the Limitations Act prevented the Stoney from obtaining the coercive relief now sought. Nor does it prevent the Stoney from seeking declaratory relief, as such relief is not subject to limitations. II.

The Claim [ 17 ] This action was commenced on December 18, 2003. Demands for particulars were issued by Canada and Alberta in 2006. The sufficiency of the Stoney’s initial reply was contested before Justice Martin, as she then was, of this Court (and on appeal).

This led to two amendments to the Statement of Claim, and more detailed particulars being provided in amended, amended replies to Canada and Alberta filed on October 1, 2014. [ 18 ] When reviewed together the most recent amended Statement of Claim and particulars reveals an action of tremendous temporal, economic and geographic range. [ 19 ] The claim has three essential and intertwined components. [ 20 ] First, the Stoney seek a declaration of Aboriginal rights within all the land covered by Treaty No. 7, as well as certain lands within Treaty No. 4 and Treaty No. 6.

These lands are referred to in the claim as “Traditional Use Lands.” [ 21 ] Second, the Stoney seek a declaration of Aboriginal title to approximately 5 million hectares of land on the Eastern Slopes of the Rocky Mountains extending from the 54th parallel in the north to the 49th parallel in the south, as well as several discrete locations beyond the Eastern Slopes having distinct cultural and historical importance.

These are referred to in the Statement of Claim as the “Traditional Lands.” [ 22 ] Although unclear from the amended Statement of Claim itself, the particulars seek to have Treaty No. 7 interpreted so as to import into the treaty oral promises made to the signatory First Nations, and include their understanding of the bargain made when the treaty was signed. For example, it will be argued that when properly interpreted, the treaty did not include a surrender or ceding of Aboriginal title, but instead confirmed that Aboriginal title (and other unspecified Aboriginal rights) would be retained.

It will be argued that under the terms of the treaty, as properly understood, natural resources on or under the surface of the land continued to belong to the First Nation signatories. Only the surface of the land was being given up, and then only for settlement. Similarly, the claim as particularized asserts a continued right of self-government following the treaty, and a right to be exempt from taxation. [ 23 ] Based on these claims, the amended Statement of Claim seeks different forms of relief.

Some are expressed as being ​​​​- declaratory of rights in the form of unextinguished Aboriginal title, and existing Aboriginal and Treaty rights, including all natural resources in the Traditional Lands, and certain natural resources in the Traditional Use Lands. [ 24 ] Other forms of relief sought could have the Court make declarations and/or orders directly affecting third parties, award damages to the Stoney, and provide injunctive relief in respect of infringement of rights and title. [ 25 ] The relief sought is as follows:

A. A Declaration that the Îyârhe Nakoda have, and at all relevant times have had, unextinguished Aboriginal Title and existing Aboriginal Rights and Treaty Rights in and to the Traditional Lands and the Natural Resources thereof, and Aboriginal Title to the Traditional Lands, as well as existing Aboriginal Rights and Treaty Rights in and respecting the Traditional Use Lands; B.

A Declaration that the Aboriginal Title and Rights of the Îyârhe Nakoda are constitutionally protected, take precedence over and condition, and are a burden and encumbrance upon, any right or claim of Defendants in and to the Traditional Lands and the Natural Resources thereof and in and to the remainder of the Traditional Use Lands; C.

A Declaration that all relevant times the Îyârhe Nakoda have had and still have the right to the exclusive use, enjoyment and ownership of the Natural Resources of and in the Traditional Lands or to the shared use, enjoyment and ownership of the Natural Resources with other Aboriginal nations of and in the Traditional Lands; D.

In the alternative, a Declaration that at all relevant times the Îyârhe Nakoda have had and still have the right to the shared use, enjoyment and ownership of the Natural Resources of and in certain parts of the Traditional Lands either on an exclusive basis or together with other Aboriginal nations; E. In the further alternative, a Declaration that at all relevant times the Îyârhe Nakoda have had and still have the beneficial ownership of the Natural Resources in all or, alternatively in certain parts of the Traditional Lands; E1.

A Declaration that at all relevant times the Îyârhe Nakoda have had and still have the right to use and benefit from certain of the Natural Resources of and in the Traditional Use Lands; F. A Declaration that at all relevant times Defendants have had and still have trust, fiduciary or other equitable obligations to the Îyârhe Nakoda with respect to all rights and interests of Îyârhe Nakoda in and to the Traditional Lands and the Natural Resources thereof and with respect to all the rights and interests of the Îyârhe Nakoda in the Traditional Use Lands; G.

A Declaration that Defendants have breached their trust, fiduciary and equitable obligations to Plaintiffs in respect to the rights of Plaintiffs, in respect to the Traditional Lands and the Natural Resources thereof and in respect to the remainder of the Traditional Use Lands and have not acted in accordance with the Honour of the Crown in respect to the constitutionalized rights of the Plaintiffs; H. A Declaration that Defendants have unlawfully issued or caused to be issued various authorizations, permits, leases, licenses, and contracts respecting the Traditional Lands and the Natural Resources thereof; I.

An Order quashing such authorizations, permits, leases, licenses, and contracts as are incompatible with the Aboriginal Title or inconsistent with the exercise of the Aboriginal or Treaty Rights of Îyârhe Nakoda in the Traditional Lands; I.1 A Declaration that Defendants have breached or alternatively unlawfully interfered with the Aboriginal Title, Aboriginal Rights and Treaty Rights of Plaintiffs in the Traditional Lands and the Natural Resources thereof and the Aboriginal Rights and Treaty Rights of Plaintiffs in the Traditional Use Lands; J.

A Declaration that the Îyârhe Nakoda have suffered losses and damages in the total amount of $20 billion, comprising the amount of $10 billion as a result of breaches of the Attorney General of Canada and an amount of $10 billion as a result of breaches of Defendant His Majesty the King in Right of Alberta; K. An award of damages or equitable compensation from Defendant the Attorney General of Canada in favour of the Îyârhe Nakoda in the amount of $10 billion; L.

An award of damages or equitable compensation from Defendant His Majesty the King in the Right of the Province of Alberta in favour of the Îyârhe Nakoda in the additional amount of $10 billion; M. An accounting:

a) for the value of all Natural Resources extracted from the Traditional Lands including royalties, payments and fiscal revenues;

b) for all royalties, payments and fiscal revenues received by Defendants that related to the extraction of Natural Resources from the Traditional Lands;

c) for the value of the unjust enrichment of Defendants. N. An Order that the Defendants pay the Îyârhe Nakoda any amount to which they are entitled consequent upon such an accounting; O. Interlocutory and permanent relief as required to prevent further or new interference with the Aboriginal Title and Rights of Îyârhe Nakoda over the Traditional Lands and Natural Resources and the Aboriginal and Treaty Rights of the Îyârhe Nakoda over the remainder of the Traditional Use Lands; P. All further and proper declarations, accounts, inquiries, orders and directions to carry out the remedies awarded; Q.

Pre-judgment and post-judgment interest according to the Judgment Interest Act , as amended. [ 26 ] The particulars provided by the Stoney elaborate on the breaches of fiduciary duty, and the Crown’s appropriation of natural resources properly belonging to the Stoney. The natural resources claimed include oil and gas; forestry products; mines and minerals, and hydro-electric energy production.

Authorizations issued since Treaty No. 7 include oil and gas permits, leases and other authorizations; forest management plans and agreements; mining permits and/or leases; ammonite shell agreements; coal leases; hydro-electric project approvals; salt leases; water priority licences and irrigation agreements; highways; tourist and recreational developments; and those related to the development of national and provincial parks; grazing leases and permits; rights of way; fur management licences; farm

development leases and project approvals under the provincial environmental impact assessment process. [ 27 ] A partial list of third parties that have been granted authorizations to develop natural resources is four pages in length. [ 28 ] The particulars also state that development of the Traditional Lands and Traditional Use Lands and the exploitation of natural resources have caused serious infringements of Aboriginal and Treaty rights without adequate consultation and accommodation.

These activities constitute illegal expropriation and appropriation of the Traditional Lands, as the Stoney and their ancestors are and were entitled to the use and benefit of such lands and natural resources and all proceeds from the Traditional Lands, and to benefit from development of the Traditional Use Lands. [ 29 ] The Stoney therefore claim entitlement to damages and an accounting as a result of the Defendants’ breach of fiduciary duty to protect the Stoney from such exploitation, and the Defendants’ unjust enrichment.

In addition, it is claimed that special damages also arise out of the sui generis and constitutionalized nature of their Aboriginal and treaty rights and the Defendants’ failure to consult. III. The

Summary Dismissal Applications [ 30 ] In their Statements of Defence, Alberta and Canada each plead that the Stoney claim is barred under the Limitations Act , and by the equitable doctrine of laches. A. Evidence of Alberta [ 31 ] In support of its application for

summary dismissal on those grounds, Alberta filed voluminous affidavits.

They demonstrate that: 1) Since Treaty No. 7 was signed in 1870, the lands contained therein (other than Reserves) have been taken up for settlement, or otherwise managed in accordance with the written terms of the treaty. 2) Development of Southern Alberta including Treaty No. 7 lands and other lands included in the Stoney claim has been conspicuous for all to see. 3) Surface and subsurface dispositions of lands (other than Reserve lands) have been made to and acted upon by government, individuals, and companies for over 150 years, pursuant to legislation in effect at the time.

Canada settled a claim by the Plaintiffs for the alleged failure to secure exclusive mineral rights to the Ghost Lake and Kananaskis Falls strips of land. This claim was settled on March 20, 1991 for $19.6 million dollars. 4) The Traditional Lands for which Aboriginal title is claimed, comprises approximately 5 million hectares of land. a. Within these lands, there are four national parks and 48 provincial parks. b. The Traditional Lands contain 11 provincially owned hydro-electric facilities, the earliest of which was licensed in 1909, and the most recent in 1969.

Other major provincially owned water infrastructure includes the following facilities that were licensed between 1903 and 2000: the Western Irrigation Diversion Weir, the Carseland Bow Headworks, the Little Bow Diversion, the St. Mary Reservoir and the Oldman River Dam. c. Six Forest Management Agreements overlap to some extent with the Traditional Lands, except for Traditional Lands Sites 6 and 7. d. Coal agreements dating back to the 1950s include lands located in Traditional Lands Sites 1, 4, 6, 7 and 8. There are no coal agreements in the remaining Traditional Lands Sites. e.

Petroleum and Natural Gas Leases and Licenses dating back to the 1950s cover lands in all eight of the Traditional Lands Sites. f.

Well pad facilities, the earliest granted prior to 1950, exist in all eight Traditional Lands Sites. 5) Since at least 1970 the Stoney have been vocal in their understanding that the Crown considers that Treaty No. 7 constituted a surrender and ceding of title and Aboriginal rights in return for the promises contained in Treaty No. 7; whereas the Stoney consider that there was no such agreement. 6) Between 1977 and 2006, the Chiefs (and in most instances, also Councilors and/or other members) of some or all the Stoney Nations on behalf of such Nations initiated claims that addressed Aboriginal title, Aboriginal rights within their claimed territories, the

interpretation of Treaty 7 and specifically the surrender terms, and hydroelectric developments on the Bow River. Four actions remain active, one was settled and three were dismissed. These claims were as follows: a. 1977 Federal Court Action: John Snow (Chief) et al v The Queen This claim was initiated in December 1977 by all of the Stoney Nakoda Nations against Canada. It sought a declaration of Aboriginal title for the area generally known as the Bighorn-Kootenay Plains District of Alberta, alleging none of these lands were ceded or purchased. This action remains active.

The last recorded entry with the Federal Court was on January 12, 2022. It has not proceeded to trial. b. 1985 ABQB Action (April 1985)

This claim was brought by all of the Stoney Nakoda Nations against Calgary Power Company carrying on business under the name of TransAlta Utilities Corporation. The claim involved a disagreement over the terms of agreements reached to allow the construction of hydroelectric projects by the Horseshoe Falls, the Kananaskis Falls, and near the junction of the Bow and Ghost Rivers. The Plaintiffs alleged the Defendant made fraudulent representations to induce agreement, and the terms of the representations never ended up in the final agreements.

They further alleged they were indued to sign the agreements under threat of expropriation. At the time, few Band members spoke English. The agreements date back to 1907, 1914 and 1929 respectively. The action was dismissed in 2002 when the parties agreed to a settlement. c. 1988 Federal Court Action #1 (August 1988): Canada v Stoney Band This claim was brought by all the Stoney Nakoda Nations against Canada. This claim related to the same hydroelectric projects as in the 1977 Federal Court Action.

The claim states that Canada is in a fiduciary relationship with the Stoney and must act, in land transactions, in the best interests of the Band. Otherwise, the claim makes the same allegations about violations of the agreements as made in the 1985 ABQB Action. d. In 1991, the Ghost Lake claim was settled through the Specific Claims process and thus the action with respect to those lands was discontinued: Canada v Stoney Band , 2005 FCA 15 at para 4 [ Stoney FCA ]. In November 2002, an agreement was finalized between the Stoney Band and TransAlta concerning the Horseshoe lands: Stoney FCA at para 5 .

A residual claim regarding the Horseshoe lands and a claim regarding the Kananaskis Lands remained, but the Band took no further steps to move these claims forward: Stoney FCA at para 5 . The matter underwent Status Review, and the action was dismissed in January 2005: Stoney FCA at para 63 . e. 1988 Federal Court Action #2 (December 1988) The claim was brought by the Bearspaw Band against Canada as represented by the Minister of Indian and Northern Affairs and TransAlta Utilities Corporation.

The claim relates to the same agreements to allow hydroelectric projects at Kananaskis Falls and the junction of Bow River and Ghost River as in the 1985 ABQB Action and the 1988 Federal Court Action #1. The plaintiffs claim that Aboriginal title to the land of the Stoney and their Aboriginal rights were at no time conveyed, ceded, or transferred to Canada.

In 1999, the matter was dismissed after the Plaintiffs failed to provide a substantive response to the Notice of Status Review. f. 1993 Federal Court Action (September 1993): The Queen et al v Chief John Ear et al This claim was brought by all of the Stoney Nakoda Nations against Canada as represented by the Minister of Indian and Northern Affairs and the Minister of Finance. The claim alleges the Plaintiffs have Aboriginal title and rights to much of the territory covered by Treaty 7, including the natural resources in that area.

The Plaintiffs claimed Canada breached its trust, fiduciary, or equitable obligations towards the Plaintiffs. In respect of the surrenders of certain mineral rights, the Plaintiffs claim those rights were held by Canada in trust for the use and benefit of the Stoney. This action remains under case management. The last recorded entry with the Federal Court was on March 5, 2020. It has not proceeded to trial. g. 1999 Federal Court Action #1 (February 1999) This claim was brought by all the Treaty 7 First Nations and Treaty 7 Tribal Council against Canada.

The claim seeks a declaration that the Plaintiffs have an Aboriginal right to pass and re-pass across the Canada-US border and bring goods across the border without paying duties or taxes. The claim asserts Canada is in a fiduciary relationship with the Plaintiffs and is in breach of that relationship. The claim asserts that the Stoney possess Aboriginal title to certain lands within Treaty No. 7 The last recorded entry with the Federal Court was on March 23, 2020. h. 1999 Federal Court Action #2 (February 1999) This claim was brought by all of the Treaty 7 First Nations against Canada and Alberta.

The Plaintiffs allege the Crown has not upheld its fiduciary relationship towards the Plaintiffs, as it failed to make adequate provision for the protection of the Plaintiffs’ lands and natural resources. The Plaintiffs asserted their understanding of Treaty 7 was that it was an agreement to share the land in exchange for the promises made by the Crown representatives. They sought a declaration that they did not cede or surrender their Aboriginal title or right over the Treaty 7 territory or any of the resources on that territory. The last recorded entry with the Federal Court was on March 23, 2020. i.

The Dixon Action: Dixon v Canada (Attorney General) , 2015 ABQB 565 The Stoney brought this claim against Alberta and Canada on December 22, 2006. The Amended Statement of Claim alleged that Canada improperly took three parcels of land from the Stoney reserves in 1907, 1914, and 1929, the Horseshoe Lands, the Kananaskis Lands and the Ghost Lands (“the Lands”) to enable TransAlta to build hydroelectric dams and reservoirs: Dixon at para 4 . These are the same lands as were at issue in the 1985 ABQB Action and the 1988 Federal Court Action #1.

The Plaintiffs also asserted Aboriginal and treaty rights to the Lands and to the Stoney Reserves, including rights to the lakes, rivers, and waterways, mines and minerals, both surface and subsurface: Dixon at para 5 . They asserted Aboriginal title over large portions of Alberta: Dixon at para 35 . The issue before the Court was whether the Plaintiffs’ claims constituted an abuse of process and whether the court should grant

summary dismissal: Dixon at para 15 . The Plaintiffs also raised a Constitutional Question about the applicability of limitations

legislation to these issues: Dixon at para 42 . Justice McIntyre held the Dixon action was an abuse of process, as “the Dixon action raises essentially the same claims regarding the Lands as those in the TransAlta, Goodstoney and Bearspaw actions”: Dixon at para 77 . Justice McIntyre noted the Plaintiffs settled the TransAlta action (1985 ABQB Action), the Goodstoney action was partially settled with the remainder dismissed by the Federal Court (1988 Federal Court Action #1) and the Federal Court dismissed the Bearspaw action (1988 Federal Court Action #2): Dixon at para 77 .

Justice McIntyre held the Dixon action was also duplicative of the Wesley action (the present case): Dixon at para 79 . The action was struck as an abuse of process on September 11, 2015: Dixon at 92. B. Evidence of the Stoney [ 32 ] The Stoney rely on four different affidavits, filed in response to the applications. [ 33 ] The primary affidavit was sworn by William Snow, the acting Director of Consultation for the Stoney. The Snow affidavit does not address the timing of discovery or discoverability of facts upon which a claim of Aboriginal rights and title could be based.

Instead, it provides evidence regarding the context and merits of those claims, including the history of the Stoney (or Îyârhe Nakoda, viz Rocky Mountain Sioux); their constituent members; their use and occupation of the Traditional Lands and Traditional Use Lands; their use of minerals and animal resources; their customs, traditions and economies; their oral, traditional understanding of Treaty No. 7 and their history of assertion of Aboriginal rights and title before regulatory tribunals.

It concludes by attesting to the importance of this action to the Stoney people: This Action is extremely important to the Stoney Nakoda people because, without it, the legal status of the Stoney Nakoda Nations’ Aboriginal rights and title will never be resolved and the un-declared legal rights of the Stoney Nakoda will be forever be at issue as between Canada and Alberta. The Stoney Nakoda will perpetually be in the position of trying to prove the impacts on their legal interests.

Were a declaration obtained from the Court, the Stoney Nakoda Nations would no longer be required to assert and prove their rights for every possible project that could impact those rights. Rather, the Stoney Nakoda would have actual say over how its lands are to be used which should have always been the situation.

Without this Action there can be no reconciliation. [ 34 ] Snow’s affidavit asserts that the Stoney continuously occupied, used and possessed and practiced traditional activities including hunting, fishing and trapping in the Traditional Use Lands since time immemorial or at least since well before any contact with Europeans or any assertion of Crown sovereignty. The Stoney exclusively occupied and controlled the headwaters and valleys and areas of the Eastern slopes of the Rocky Mountains, from approximately the Crowsnest River to the Athabasca River.

The Stoney shared various parts of the remainder of their traditional use lands with the Plains and Woods Cree, the Siksika, the Piikani, the Kainai, the Tsuu T’ina, the Saulteaux (O’Chiese and Sunchild), the Kootenai (Ktunaxa) and the Shuswap (Tk’emlúps te Secwepemc). [ 35 ] Prior to 1877, temporary peace agreements were periodically negotiated between the Plains Cree and the Stoney as well as with various Blackfoot Nations. [ 36 ] The affidavit includes evidence of the continued use of the Traditional Lands after the conclusion of Treaty 7. Exhibit I is a letter from an Indian Commissioner dated July 20, 1905.

It describes how members of the Stoney Nations disobeyed orders to stay on reserve lands to go hunting along the eastern slopes of the Rocky Mountains and into British Columbia. [ 37 ] The affidavit provides evidence of the Stoney’s perspective on the treaty-making process. Snow describes how the Stoney have an oral tradition and history. All Stoney promises were made orally and remembered. Not one member of the Stoney understood, read or wrote English, and not one of the non-Indians (the Crown’s representatives, advisors or assistants) or their interpreters spoke Stoney. Treaty No. 7 was negotiated through

interpretation from English to Cree to the Stoney language, leading to misunderstanding. From the Stoney perspective, Treaty No. 7 is an oral agreement. [ 38 ] Snow states the ancestors of the Stoney did not understand the agreement would be interpreted as meaning surrender of land to the Europeans for all time. The concept of surrender was foreign to them (according to the Stoney’s Amended Reply to Alberta’s 2014 Demand for Particulars).

The Stoney were told and understood that Treaty No. 7 would guarantee the ability of the Stoney to pursue their traditional way of life, which included hunting, fishing, trapping and gathering. They understood this as meaning complete freedom to live a traditional way of life, not confinement to a small reserve.

In their 2014 Reply to Alberta’s Demand for Particulars, the Plaintiffs state that, according to their oral history, Treaty No. 7 was a peace treaty, meaning the money was exchanged for peace, not land. [ 39 ] The Plaintiffs, in their Amended Reply to Alberta’s 2014 Demand for Particulars, assert that no mention of surrendering lands or the subsurface minerals was made during the negotiations. [ 40 ] The Chiefs further expected they would receive three reserve lands, but the text of the treaty only contemplated one at Morleyville. [ 41 ] Snow states that the oral and written terms of Treaty No. 7 affirm all the Aboriginal rights of the Stoney in respect to their practices, customs, traditions, spirituality, language, culture and institutions, including their Aboriginal right of self-determination or self- government and including their hunting, fishing, trapping and gathering rights over all the Traditional Use Lands, their access thereto and the right to build camps and shelters thereon. [ 42 ] Snow’s affidavit notes that, in addition to the various actions initiated in Federal Court and at the Court of Queen’s Bench of Alberta, the Stoney have participated in many regulatory proceedings and hearings to protect their Aboriginal and treaty rights. [ 43 ] The other affidavits relied upon by the Stoney provide evidence regarding the history of litigation between the Stoney and either Canada or Alberta.

IV. The Text of Treaty No. 7 and the Principles of TreatyInterpretation [44] The text of Treaty No. 7 contains the following key provisions: a. The purpose of the Treaty was “to open up for settlement…a tract of country…and to obtain the consent thereto of Her Indiansubjects inhabiting said tract.” Additionally, it was to ensure “peace and good will between [Her Indians] and Her Majesty.” b. The Treaty promises “that Her Indian people may know and feel assured of what allowance they are to count upon and receivefrom Her Majesty's bounty and benevolence.” c.

The cession provision states that the signatory First Nations “do hereby cede, release, surrender, and yield up to the Government ofCanada for His Majesty the King and her successors for ever, all their rights, titles, and privileges whatsoever to the lands includedwithin the following limits… And also all their rights, titles and privileges whatsoever, to all other lands wherever situated in the North-West Territories, or in any other portion of the Dominion of Canada.” d.

The Treaty affirms the hunting rights of the signatory First Nations, subject to the taking up of land: “His Majesty the King herebyagrees with her said Indians, that they shall have right to pursue their vocations of hunting throughout the Tract surrendered as heretoforedescribed, subject to such regulations as may, from time to time… and excepting such Tracts as may be required or taken up from time totime for settlement, mining, trading or other purposes by Her Government of Canada.” e.

The Treaty establishes the Stoney reserve “in the vicinity of Morleyville.” [45] Aboriginal land rights survive European settlement and remain valid unless extinguished by treaty or otherwise: Tsilhqot'inNation v British Columbia, 2014 SCC 44 at para 10 [Tsilhqot’in] citing Calder v Attorney-General of British Columbia, (SCC), [1973] SCR 313 (SCC) at 402 [Calder]. [46] In 1999, Justice McLachlin (as she then was), in her dissenting reasons, summarized the principles governing theinterpretation of treaties: R v Marshall, (SCC), [1999] 3 SCR 456 at para 78 [Marshall]: 1.

Aboriginal treaties constitute a unique type of agreement and attract special principles of

interpretation: R. v. Sundown, (SCC), [1999] 1 S.C.R. 393, at para. 24; R. v. Badger, (SCC), [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, (SCC), [1985] 2 S.C.R. 387, at p. 404.See also: J. [Sákéj] Youngblood Henderson, "Interpreting Sui Generis Treaties" (1997), 36 Alta. L. Rev. 46; L.I. Rotman, "DefiningParameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test" (1997), 36 Alta. L. Rev. 149. 2.

Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favor of the aboriginalsignatories: Simon, supra, at p. 402; Sioui, supra, at p. 1035; Badger, supra, at para. 52. 3. The goal of treaty

interpretation is to choose from among the various possible

interpretations of common intention the one whichbest reconciles the interests of both parties at the time the treaty was signed: Sioui, supra, at pp. 1068-69. 4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger, supra, at para.41. 5. In determining the signatories' respective understanding and intentions, the court must be sensitive to the unique cultural andlinguistic differences between the parties: Badger, supra, at paras. 52-54; R. v. Horseman, (SCC), [1990] 1 S.C.R. 901at p. 907. 6.

The words of the treaty must be given the sense which they would naturally have held for the parties at the time: Badger, supra, atparas. 53 et seq.; Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29, at p. 36. 7. A technical or contractual

interpretation of treaty wording should be avoided: Badger, supra; Horseman, supra; Nowegijick supra. 8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on thelanguage” or realistic: Badger, supra, at para. 76; Sioui, supra, at p. 1069; Horseman, supra, at p. 908. 9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. Theinterpreting court must update treaty rights to provide for their modern exercise.

This involves determining what modern practices arereasonably incidental to the core treaty right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p. 402. [47] The majority in Marshall, at para 12, further emphasized that “where a treaty was concluded verbally and afterwards writtenup by representatives of the Crown, it would be unconscionable for the Crown to ignore the oral terms while relying on the writtenterms.” [48] Marshall builds on the analysis in R v Badger, (SCC), [1996] 1 SCR 771 (SCC) at para 52 [Badger], whichrecognized the unique context of treaty-making: [T]he treaties were not translated in written form into the languages…of the various Indian nations who were signatories.

Even if theyhad been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently. Asa result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modernrules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the

time of the signing. [ 49 ] Finally, the honour of the Crown is always at stake in the

interpretation of treaties: Badger at para 41 , Restoule v Canada (Attorney General) , 2021 ONCA 779 at para 253 [ Restoule ONCA ] . It is assumed that the Crown intends to fulfill its promises: Badger at para 41 . V. The Limitations Defence A. General Principles [ 50 ] Limitations legislation is a critical component of the Canadian legal system. It serves to facilitate access to justice, while at the same time protecting Canadians from potential injustices and abuses of process that can be associated with stale claims.

These include the inherent difficulty of defending claims that are brought long after relevant evidence has disappeared, and memories have dimmed. They also include the risk that decisions taken in good faith and in reliance on the status quo will be overtaken by such claims or must unfairly be defended through the prism of current values, norms, and legal standards. [ 51 ] Limitations legislation strikes a balance by establishing deadlines for the commencement of actions.

It bars recovery of remedial relief if those deadlines are not met, with the operative date for the commencement of tolling of the deadline being the date on which the facts underlying the claim were discovered or reasonably discoverable. The bar to relief has nothing to do with the merits of the claim, but is procedural in nature. B. The Claim [ 52 ] The Statement of Claim in this case was filed on December 10, 2003. It has been twice amended in the ensuing years and particularized. [ 53 ] The Limitations Act came into force in Alberta on March 1,

Section 2.2 provides that it applies to all claims that were discovered or reasonably discoverable before that date: 2(2) Subject to sections 11 and 13, if, before March 1, 1999, the claimant knew, or in the circumstances ought to have known, of a claim and the claimant has not sought a remedial order before the earlier of (

a) the time provided by the Limitation of Actions Act , RSA 1980 cL-15, that would have been applicable but for this Act, or (

b) two years after the Limitations Act , SA 1996 c L-15.1 , came into force, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 54 ] The operative limitation period under s. 2.2 is the earlier of that which would have applied under the previous Limitations of Action Act (the “ LAA ”), or two years after the Limitations Act came into force. Depending on the nature of the claim, recourse to the LAA may be necessary for historical claims to determine the precise date on which a limitation period commenced to toll.

For example, claims for monetary damages, an accounting, equitable relief, and any other cause of action not specifically identified in s. 4 of the LAA are to have been commenced within 6 years of discovery, and claims by Aboriginal people for breach of fiduciary duty by the Crown continue to be subject to the LAA , as if the Limitations Act had not been brought into force.

Under the LAA proceedings to recover land were required to be commenced within ten years of the right to do so having first accrued (s. 18). [ 55 ] In this case the facts underlying the claims for damages, and accounting for natural resource revenue, breaches of the Crown’s fiduciary duties, and other remedial relief have been known to the Stoney since at least 1970. This is clear from the evidence of Alberta. It is also not contested by the Stoney, which bases its opposition to the

summary dismissal applications on other arguments. [ 56 ] Not only were the facts underlying the claim known to the Stoney since at least 1970, similar (albeit more focussed) claims were in fact advanced during actions commenced in this Court and/or the Federal Court from 1977 to 1999. These historical actions are summarized earlier in these reasons, at para 31(6)(

a) through (h). [ 57 ] In the circumstances, it is not necessary to determine with precision the exact date on which the applicable limitation periods began to toll.

Papaschase Indian Band No 136 v Canada (Attorney General) , 2004 ABQB 655 , rev'd on other grounds 2006 ABCA 392 and restored 2008 SCC 14 [ Lameman ], a decision of Slatter J. (as he then was), at paragraph 137, provides a concise explanation of why such an endeavor is unnecessary in a case such as this, where on any reasonable measure the limitation period for remedial relief has long since passed: When an action is commenced very shortly after a limitation period has expired, it is often necessary to examine the issue of actual discovery, or reasonable discoverability, with considerable precision.

In some cases, a difference of a few days or weeks is crucial. In those cases it is often necessary to have a trial of an issue to determine exactly when the cause of action was discovered or could have been discovered. The same does not hold true in actions like the present one where the events underlying the cause of action occurred over a century ago. Here the record either demonstrates when the cause of action was discovered, or sufficiently precise inferences can be drawn from the record to be sure that time has long since run out.

Even if the actual discovery or discoverability of a claim can be ascertained within a few years or even a few decades, that is sufficiently precise to determine the issue. In a very old case, determining whether the action is sufficiently “hopeless” to grant an application for

summary dismissal does not require the same degree of precision, and the inferences that the court can draw about discovery or discoverability without resorting to a trial are much wider. This is particularly so when it is remembered that the burden of proving lack of discovery and a genuine issue for trial is on the Plaintiffs.

[ 58 ] On the face of it therefore, the claims for remedial relief advanced by the Stoney in paragraphs G to Q of the amended Statement of claim are barred by limitations. However, the Stoney argue that for a number of reasons the LAA and Limitations Act do not apply as the Crown is not entitled to advance such a defence, and the legislation is constitutionally inoperative. I will address those later in these reasons, but before doing so will address a discrete argument advanced by the Stoney arising out of a previous claim that they say was “ported” into this action and is, consequently, within time. C.

The Dixon Action [ 59 ] The Stoney argue that the claims in the Dixon Action, described at paragraph 31(6)(

i) were “ported” into this action and contain more recent claims that are not caught by limitations. They base this on certain comments of McIntyre J, when he dismissed the Dixon Action for abuse of process in 2015. [ 60 ] In the Dixon Action, filed in 2006, the Stoney argued that there was an improper taking of three parcels of land in the early 1900s for hydroelectric dams, as provision was not made for the lands to revert to the beneficial ownership of the Stoney once the lands were no longer needed.

The Stoney also made broader claims relating to Aboriginal title and treaty rights, not just in relation to the three parcels of lands, but for larger tracts within their traditional territories. [ 61 ] The Stoney argue that not all of the claims in the Dixon Action were historical, and that Canada and Alberta committed a new breach when they took no steps to reacquire the lands in 2000. They say this resulted in a new claim commencing, and the limitation period did not expire within 6 years of the filing of the present Action.

Further, they argue that hydro licenses issued in 1998 for certain dams, which they challenged in the Dixon Action, arose within 6 years of the filing of the present Action. [ 62 ] For this argument to succeed, the Stoney’s position that the Dixon Action was “ported” into this case must be accepted. [ 63 ] On my reading of McIntyre J’s reasons, there is no direction to port (or consolidate) the Dixon action into this one. [ 64 ] In his decision, McIntyre J introduced the Dixon Action as encompassing two types of claims, at paras 4-5.

The first related to three parcels of land, which he referred to as “the Lands.” Along with claiming the reversionary rights to the Lands were improperly excluded from the agreements, the Stoney claimed the “surrenders” of land were invalid, the conveyances to TransAlta void, and that TransAlta’s continued use and occupation was a trespass and a nuisance.

The Stoney also made claims relating to improper use of easements and rights-of-way on the Lands, and infringement of water rights and enjoyment of the Lands, at paras 31-33. [ 65 ] The second type of claim related to a broader assertion of Aboriginal and treaty rights, both in relation to the Lands, and further in relation to the Stoney Reserves and traditional lands, including rights to surface rights, waterways, and mines and minerals.

Further, the pleadings asserted Aboriginal title over large portions of Alberta, including the Bow River, Kananaskis River and Ghost River watersheds. [ 66 ] The Stoney sought a declaration that Canada and Alberta were trustees or fiduciaries of the Lands and breached their obligations. They also sought broader declarations relating to water rights and mines and minerals, and sought significant sums in damages and an accounting for their breach.

They also sought general damages for trespass and nuisance, and for the failure to enforce their revisionary rights. [ 67 ] Before McIntyre J, Alberta and Canada alleged the Dixon Action was an abuse of process due to overlapping claims between it and other previous lawsuits commenced by the Stoney, all of which had settled or been dismissed. They also alleged it was an abuse of process to allow the present action, referred to as the Wesley Action, and the Dixon Action to be pursued concurrently due to significant overlaps. [ 68 ] McIntyre J dismissed the Dixon Action in whole as an abuse of process.

He found it raised “essentially the same claims regarding the Lands as those in the [previous] TransAlta, Goodstoney and Bearspaw actions” at para 77 (these three cases are referred to in paragraph 31 of this judgment as the 1985 ABQB Action, the 1988 Federal Court Action #1, and the 1988 Federal Court Action #2, respectively). Notably the three actions had all been settled or dismissed, at paras 77-78: I hold the Dixon action to be an abuse of process.

A review of the history of the actions, including all the relevant prior pleadings, makes it apparent that the Dixon action raises essentially the same claims regarding the Lands as those in the TransAlta, Goodstoney and Bearspaw actions. The Plaintiffs settled the TransAlta action. The Goodstoney action was partially settled. The Federal Court dismissed the remainder of the claim. The Federal Court dismissed the Bearspaw action. Alberta was not named as a defendant in any of those previous actions, but that does not preclude a determination that the Dixon action is an abuse of process.

A finding of abuse of process is not limited to the strict requirements of res judicata or issue estoppel. It is a more flexible mechanism for the court to prevent the misuse of its procedures. ... [ 69 ] As for the Wesley Action (the present Action), which was commenced three years prior to the Dixon Action, McIntyre J found comparing the two “makes the abuse of process most obvious” at para 79. The two actions were “duplicative” as they related to “the same lands and the same natural resources, and the same alleged underlying aboriginal and treaty rights” at para 79.

He noted the scope of the Wesley Action was broader overall, as it dealt with broad Aboriginal and title rights claims in the Stoney’s traditional territories, whereas the Dixon Action was more focussed on the Lands. However, the Dixon Action also made broad assertions about the entire traditional territories and there were significant overlaps, see paras 83-84. [ 70 ] McIntyre J noted that even if the pleadings were not identical, “duplicative actions are a waste of court resources” and “a party is not entitled to bring a second action while the first is still pending”.

Finally, in comments relied on by the Stoney presently, he stated that “the substantive issues raised in the Dixon action can be addressed in the concurrent Wesley action. The lands and natural resources at issue in the Dixon action are also at issue in the Wesley action and should be pursued in that forum”, at para 86.

[ 71 ] I do not interpret these comments as “porting” the Dixon Action into the present one. [ 72 ] McIntyre J found that the Dixon Action’s claims relating to the Lands should not proceed as they were essentially the same as those in the TransAlta, Goodstoney, and Bearspaw actions, all three of which had been concluded by 2015, see para 77. He noted abuse of process is not limited to the strict requirements of res judicata or issue estoppel , at para 78, but allowed the court to prevent the “misuse” of its procedures by allowing similar claims to proceed, at para 78.

Thus, even if not every pleading from the Dixon Action relating to the Lands had been addressed in the prior three claims, it would have been a misuse of court procedures to allow the Dixon Action to proceed. [ 73 ] It is clear the issues of surrenders and reversionary rights were raised in both the Goodstoney and Bearspaw actions (see paras 49, 52, 58 and 62 of McIntyre’s reasons), and were therefore part of the duplicated claims in the Dixon Action. [ 74 ] As re-litigation of those claims was not permitted, the revisionary rights claims, historical or not, were not “ported” into the present Action. [ 75 ] Although the hydroelectric dam license renewals from 1998 were not specifically mentioned in McIntyre’s J’s reasons, similar reasoning applies regarding abuse of process.

Additionally, the proper recourse for challenging administrative decisions such as regulatory licenses is through judicial review, which has a six-month limitation period: see, Athabasca Chipewyan First Nation v Alberta (Minister of Energy) , 2009 ABQB 576 , aff’d 2011 ABCA 29 , leave to appeal to SCC refused, 34154 (February 23, 2012) [ Athabasca ]. [ 76 ] As for McIntyre J’s comments that the “substantive issues” in the Dixon Action could be addressed in the concurrent Wesley Action, I find those comments referred to the broader claims relating to Aboriginal title, natural resources, and Aboriginal rights on the Lands and in the traditional territories, which are indeed being considered as part of the present action.

He was not referring to the reversionary claims or hydroelectric licence issues raised by the Stoney; nor porting them into the present action. [ 77 ] To conclude, no portion of the Dixon Action was ported into this action, and review of the Dixon Action judgment does not change my view that limitation periods for remedial relief started to run in the present action at least in the 1970’s. D. The Stoney Response Regarding Applicability of Limitations Legislation [ 78 ] The Stoney argue that the Limitations Act does not bar its claim, for three basic reasons.

First, the claim is for a declaration of its constitutionally protected rights, and is not subject to limitations legislation. Aboriginal rights and title are sui generis rights, which are by nature historical and not subject to limitations and laches as they do not fit within the policy and legal framework underlying the law of limitations. They do not have life until recognized by the Crown or declared to exist by the Courts, so the pursuit of declaratory relief can never be out of time or stale dated.

Second, the unfettered availability of recourse to the Courts to establish rights and title claims is essential to reconciliation, and adheres to the United Nations Declaration on the Rights of Indigenous Peoples , GA Res 61/295 (September 13, 2007) (“UNDRIP”). Third, it is dishonourable for Alberta and Canada to advance a limitations or laches defence. They also pose a number of related constitutional questions for determination. [ 79 ] In the alternative, the Stoney say that it is not possible to fairly decide the limitations issue at this stage. The Court cannot be confident that

summary dismissal is just and reasonable on the record to date, given the continuing evolution of jurisprudence regarding the proof of Aboriginal rights and title. I will deal first with the substance of the Stoney response, and will return to the availability of

summary dismissal in the concluding

section of these reasons. VI.

Is This a Claim for Declaratory Relief? [ 80 ] As will be discussed later in these reasons, it is clear from the case law that Aboriginal claims, including claims for breach of fiduciary duty, breach of treaty rights, and continuing trespass (among others) are subject to limitations legislation, in accordance with the terms of such statutes. [ 81 ] The Stoney argue that this case is distinguishable because the essence of its action is to be found in the declarations sought, and in particular its request for a declaration of Aboriginal rights and title to the Traditional Lands (and natural resources therein), and a declaration of Aboriginal rights in the Traditional Use Lands.

It says that the requests for damages, an accounting for natural resource revenue, and other non-declaratory relief are ancillary to the declarations, and severable. [ 82 ] The Stoney rely heavily on Manitoba Métis Federation Inc v Canada (Attorney General) , 2013 SCC 14 [ Manitoba Métis ] as authority for this proposition. [ 83 ] I will turn to that case shortly, but at the outset it bears emphasizing that the Limitations Act excludes declaratory relief from its operative limitations periods.

Those apply only to remedial orders, which are defined in s 1(1) as follows: “remedial order” means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right, but excludes i. a declaration of rights and duties, legal relations or personal status, ii. the enforcement of a remedial order, iii. judicial review of the decision, act or omission of a person, board, commission, tribunal or other body in the exercise of a power conferred by statute or regulation, or

iv. a writ of habeas corpus . . . [ 84 ] It follows that if this claim had been structured so as to seek pure declaratory relief, no issue would arise, as the Limitations Act does not operate as a bar to relief. [ 85 ] In Manitoba Métis , the Supreme Court considered whether a claim for a declaration that the Crown had breached its honour in the implementation of a constitutional statute (the Manitoba Act ) was barred under The Limitation of Actions Act , CCSM c L150 . The specific question was whether the request fell under s. 2(1)(

k) of that statute, which set a limitations period of six years for commencing an action for equitable relief. The Manitoba statute did not carve out actions for declaratory relief. Nor did it contain a “basket clause” whereby causes of actions not specifically enumerated were subject to limitation periods (as found in Alberta’s Limitations Act ). [ 86 ] The Supreme Court held that the Manitoba Limitations of Actions Act could not operate to limit access to the courts for a declaration that the Crown had failed to act honorably in discharging its constitutional obligation to properly implement the Manitoba Act .

However, in doing so the Supreme Court not only affirmed the general applicability of limitations legislation to Aboriginal claims, but also stated that if the Metis had been seeking personal remedies the exception would not have applied: Manitoba Métis at para 143 . [ 87 ] As noted by Justice Martin (as she then was) in 2006, this action is like none other. The geographic scope of the claim of Aboriginal rights extends over much of Southern Alberta, and over all of the Eastern Slopes of the Rocky Mountains within Alberta boundaries. The temporal scope of the claim extends back to 1870.

The claim for Aboriginal title, including exclusive possession of the Traditional Lands would implicate hundreds if not thousands of rights and tenure holders having interests in public lands, including other Aboriginal groups. The claim for damages starts at $10 billion as against each level of government and then ascends to include an accounting for natural resources and revenue dating back to Alberta’s inception (if not before).

The claim for the quashing of permits issued for development within the Traditional Lands would if granted call into question a century of investment made in reliance on such authorizations. [ 88 ] I accept that the underlying motive or objective of the Stoney is to achieve declaratory recognition of its rights for use in future regulatory proceedings or negotiations (as attested to by William Snow). However, it is the Statement of Claim, as amended and particularized, that frames the relief being sought.

Much of that relief is without precedent and is clearly personal and coercive in nature. [ 89 ] In Yellowbird v Samson Cree Nation No 44 , 2006 ABQB 434 , aff’d 2008 ABCA 270 [ Yellowbird ], Slatter J (as he then was) at paragraph 35 discussed the difference between an action that seeks pure declaratory relief and one that seeks remedial relief.

He articulated the following test: If the Court granted the declaration, and the defendant resisted the implementation of the declaration, could the plaintiff “leave the court in peace” and enjoy the benefits of the declaration “without further resort to the judicial process”? The amended Statement of Claim demonstrates that at present the answer to that question in this case is “no.” The declarations sought are intertwined with the ensuing claims for damages, an accounting for natural resource revenue earned by government, and the quashing of permits and authorizations held by third parties.

Moreover, certain of the declarations are of a hybrid nature and arguably seek remedial relief by asserting claims that would take priority over the rights of others, including entities who are not before the Court. [ 90 ] Thus the “further resort to the judicial process” as referred to in Yellowbird is to be found in the amended Statement of Claim itself, as currently structured. If the action is to proceed, the clear claims for remedial relief must be severed. VII.

Applicability of Limitations Legislation to Aboriginal Claims [ 91 ] The jurisprudence is clear that limitations legislation applies to Aboriginal claims that include requests for remedial relief. [ 92 ] In Wewaykum Indian Band v Canada , 2002 SCC 79 [ Wewaykum ], the Supreme Court of Canada considered an action commenced by the Campbell River Band alleging that Reserve Lands were improperly transferred to the Cape Mudge Band in 1943. The Plaintiff alleged that the Crown breached its fiduciary duty to protect those lands, and that the Cape Mudge Band was committing a continuing trespass.

Justice Binnie, for the Court, found that the action was barred by limitations and laches, at paragraphs 134-137: The appellants contend that every day they are kept out of possession of the other band’s reserve is a fresh breach, and a fresh cause of action. As a result, their respective claims are not yet statute barred (and could never be). Acceptance of such a position would, of course, defeat the legislative purpose of limitation periods. For a fiduciary, in particular, there would be no repose.

In my view such a conclusion is not compatible with the intent of the legislation Section 3(4), as stated, refers to “[a]ny other action not specifically provided for” and requires that the action be brought within six years “after the date on which the right to do so arose”. It was open to both bands to commence action no later than 1943 when the Department of Indian Affairs finally amended the relevant

Schedule or Reserves. There was no repetition of an allegedly injurious act after that date. The damage (if any) had been done. There is nothing in the circumstances of this case to relieve the appellants of the general obligation imposed on all litigants either to sue in a timely way or to forever hold their peace. Similarly, the “ultimate limitation” in s. 8(1) runs “from the date on which the right to [initiate proceedings] arose”.

All of the necessary ingredients of the causes of action pleaded in these proceedings could have been asserted more than 30 years prior to the date on which the actions were eventually commenced. The trial judge found that no new or fresh cause of action had arisen at any time within the 30- year period. None of the legislated exceptions being applicable, the 30-year “ultimate limit” applies by reason of its incorporation by reference into federal law.

This conclusion accords with the result on this point reached in Semiahmoo Indian Band v. Canada, (FCA), [1998] 1F.C. 3 (C.A.), per Isaac C.J., at para. 63; Constigan v Ruzicka (1984), 1984 ABCA 234 , 13 D.L.R. (4th) 368 (Alta. C.A.), atpp. 373-74; Lower Kootenay Indian Band v. Canada (1991), 42 F.T.R. 241; Fairford First Nation v. Canada (Attorney General), (FC), [1999] 2 F.C. 48 (T.D.), at paras. 295-99. [Emphasis added] [93] In Lameman, the respondent Band alleged breach of fiduciary duty, malicious behaviour and breach of treaty.

Its claim wasbased on the assertion that the Crown breached its obligations in failing to grant land to the Band as required under Treaty No. 6. Thefederal government obtained

summary dismissal on the basis (inter alia) of limitations. [94] The Supreme Court held that the claim was discoverable in 1970, stating at paragraph 13: This Court emphasized in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, that the rules of limitation periodsapply to Aboriginal claims. The policy behind limitation periods is to strike a balance between protecting the defendant’s entitlement,after a time, to organize his affairs without fearing a suit, and treating the plaintiff fairly with regard to his circumstances.

This policyapplies as much to Aboriginal claims as to other claims ... [95] In Goodswimmer v Canada, 2017 ABCA 365, leave to appeal to SCC refused, 37899 (July 5, 2018), the Alberta Court ofAppeal found that a land entitlement claim was subject to a previous settlement: para 111. In doing so, it commented on the applicabilityof limitations legislation to treaty land entitlement claims, at paras. 113-114: The primarily relevant claims are the claims that existed prior to the 1987 action being commenced, and prior to the Treaty LandEntitlement Settlement Agreement being entered into in 1990.

On the face of it, any such claims have long since been barred by thepassage of time. The facts that made those claims discoverable were well known at the time that the Treaty Land Entitlement SettlementAgreement was negotiated.

Even claims that arise out of the Treaty Land Entitlement Settlement Agreement itself, such as alleged irregularities in the negotiations orwith the referendum process, occurred seven years before the Statement of Claim was issued. [96] The Court of Appeal also observed that limitations legislation can extinguish claims with a Charter or constitutional basis,noting that the longer the passage of time, the higher the chance that vested rights will be disturbed, with collateral effects on thirdparties: Goodswimmer at paras 115-116. [97] In Athabasca, the Alberta Court of Appeal found that the six-month limitation period provided for in the Alberta Rules ofCourt for challenging administrative decisions (issuance of oilsands leases) applied notwithstanding that the basis of the challenge wasassertion of Aboriginal and treaty rights: para 22.

It also held that the limitation period could not be avoided by seeking a declaration ofinvalidity, which had the same effect as a quashing of the decision: at paras 23-24, citing Lameman. [98] In Manitoba Métis, the Supreme Court of Canada confirmed that Wewaykum and Lameman remain good law, such thatAboriginal claims are subject to limitations legislation.

However, where a claim for declaratory relief does not include a claim forcoercive remedial relief, and does not affect third parties, an exception exists: at para 134. [99] In Samson First Nation v Canada, 2015 FC 836 [Samson], aff’d Buffalo v Canada, 2016 FCA 223, leave to appeal to SCCrefused, 37277 (March 9, 2017), Russell J for the Federal Court applied Wewaykum and Lameman, holding that both limitations andlaches are applicable to claims against Canada, even where the rights at stake are constitutionally protected treaty and Aboriginal rights:at para 21.

The Federal Court rejected the argument that limitation periods could not constrain actions to enforce such rights. It noted thatin effect, the plaintiffs were arguing that they had a constitutional right to commence litigation whenever it was advantageous orconvenient to do so, and that no such immunity exists: Samson at para 240. [100] In R v Jim Shot Both Sides, 2022 FCA 20 [Jim Shot Both Sides], Rennie JA for the Federal Court of Appeal endorsed theFederal Court’s analysis in Samson.

It also endorsed the Samson decision’s rejection of the argument that application of limitationslegislation to Aboriginal claims extinguishes the rights underlying the claim at paragraph 221: The argument that a limitation period extinguishes the treaty right has a fundamental flaw; limitation periods speak only to when a rightmight be enforced. The point was also made by Russell J. in Samson at para. 129: Samson’s second argument is that the application of a limitation period effectively expunges or infringes constitutionally-enshrinedAboriginal and treaty rights.

In my view, Samson is simply asking the Court to ignore clear authorities that tell us that limitation periodsdo not expunge rights, they bar remedies based upon those rights. As Chippewas, above, makes clear, the seeking of a remedy is not anAboriginal or treaty right, and limitations periods merely bar the remedy.

Samson ignores the line of cases that makes a distinctionbetween substantive and procedural law in the context of limitations and relies upon Tolofson, above, a conflict of law case, for themotion now before the Court where we have an established line of authority on point, where the Supreme Court of Canada has told usthat limitation periods do apply to this kind of case. [Emphasis added in Jim Shot Both Sides] [101] Rennie JA went on to reject the argument that Manitoba Métis allows the courts to waive the application of limitations, statingat paras 226-229: The jurisprudential underpinning of this argument is Manitoba Métis and the discussion of the Supreme Court that many of the policyrationales that justify limitation periods do not have the same resonance in the context of Aboriginal claims.

Manitoba Métis dealt with a failure by government to implement

section 31 of the Manitoba Act, a constitutional instrument. The Court

stressed the unique nature of the grievance, noting that the failure to implement

section 31 created an “ongoing rift in the national fabric”and unless remedied “constitutional harmony” would remain unachieved, as the matter was “of national and constitutional import” (atpara 140). At paragraph 143 of Manitoba Métis the Court noted that the Métis “seek no personal relief and make no claim for damagesor for land. Nor do they seek restoration of the title their descendants might have inherited had the Crown acted honorably” (at para.137). The relief sought was purely declaratory to assist in extra-judicial negotiation and no third party interests were engaged (at para.142).

This case stands in marked contrast to Manitoba Métis. As the Federal Court judge noted, “Manitoba Métis dealt with a very differentmatter than that before this Court in this action” (Reasons at para. 399). I agree with his conclusion that Manitoba Métis does not standfor the proposition that limitations may be waived in a claim where the plaintiff seeks land or damages in lieu, as it does here. I do not understand Manitoba Métis to be establishing a new doctrine of law allowing judges to waive limitation periods, or for theSupreme Court to be departing from its prior jurisprudence by implication.

To the contrary, in Manitoba Métis, the Supreme Courtconfirms the application of Lameman (at para. 138). A court would be on very uncertain, if not arbitrary ground, if it appropriated toitself the authority to override the clear choice of Parliament in respect of prescription legislation. If the discretion to waive existed, howwould it be exercised? How would claims that were filed three years late, as here, be distinguished from claims that are 13 or 30 yearstoo late?

While reconciliation is the over-arching objective, and serves as the lens through which judges are to view the law, it does notallow a court to disregard the law expressed by the Legislatures or Parliament. However meritorious the objective may be (Canada(Attorney General) v. Utah, 2020 FCA 224), judges cannot skew their reasons to avoid binding jurisprudence. [102] The Stoney argue that claims for Aboriginal rights and title such as this are essential to the establishment and protection of suchrights under s. 35 of the Constitution, and as such can never be barred by limitations legislation.

They say that this distinguishes this casefrom cases such as Wewaykum, Samson, Goodswimmer, and Jim Shot Both Sides, which dealt with Aboriginal claims based onexisting, recognized rights. [103] In argument, counsel traced the history of Aboriginal rights recognition in Canada, from Calder to Sparrow to Delgamuukw vBritish Columbia, (SCC), [1997] 3 SCR 1010 to Tsilhqot'in. It was argued that not only are Aboriginal rights suigeneris in nature, but so too is the process of litigating such rights. That process necessarily focusses on historical reconstruction, and itcan take decades to bring a claim to trial.

To apply conventional limitations periods to such claims would be to effectively extinguish therights claimed without a hearing on the evidence and would undermine reconciliation efforts. [104] I agree that Aboriginal rights and title litigation is in many respects unique. There are many legal and strategic layers to evenstraightforward claims much less ones as ambitious as this one. The pre-trial discovery process is also complex, as is evidenced by themany years of questioning and document production that have passed in this very case. [105] I do not agree however that limitations legislation is to be ignored.

The Federal Court of Appeal, the Alberta Court of Appealand the Supreme Court of Canada have all made it clear that Aboriginal claims are not exempt from limitations constraints, particularlywhen they include claims for remedial, coercive relief: Wewaykum at paras 134-137, Lameman at para 13, Manitoba Métis at para 138,Goodswimmer at paras 113-114, Samson at para 112, and Jim Shot Both Sides at para 221.

I agree with the reasoning of the FederalCourt of Appeal in Jim Shot Both Sides, and consider myself bound by Wewaykum, Lameman, Manitoba Métis and Goodswimmer inrespect of the claims for remedial relief advanced by the Stoney. VIII. Is it Contrary to the Honour of the Crown to SeekSummary Dismissal Based on Limitations and Laches? [106] The Stoney argue that Alberta and Canada are acting dishonorably by seeking

summary dismissal. This argument is based onthe importance of declarations of rights and title to the assertion of Aboriginal rights as a mechanism for reconciliation as well as thetiming of the applications for

summary dismissal (almost twenty years after commencement of the claim). In Canada’s case, it wasargued that the pursuit of

summary dismissal was contrary to the federal government’s own guidelines for litigation of Aboriginalclaims, and different than the approach taken in litigation for breach of treaty in Ontario.

In the Attorney General of Canada’s closingsubmissions dated September 25, 2020 in Saugeen First Nation v The Attorney General of Canada, 2021 ONSC 4181 [Saugeen],Canada stated that they would “no longer be relying on limitation statutes with respect to any of the causes of action or remedies,” andwith respect to laches, “Canada will not be relying on this defence with respect to the declaration of Aboriginal title.” Ontario furtherabandoned the defence of laches, as noted by the trial judge: Saugeen at para 1146.

Further, in Restoule v Canada (Attorney General),2020 ONSC 3932 at para 103, the trial judge noted Canada did not plead limitations as a bar to the claim for breach of treaty. [107] I do not consider the reliance on a limitations defence to be dishonorable. As defendants in a multi-billion-dollar action, Canadaand Alberta are entitled to rely on all available statutory and non-statutory defences.

In doing so it is important to reconciliation generallyfor the Crown not to take positions that are unnecessarily confrontational or disrespectful, but the litigation strategy employed is for thegovernment to decide on a case-by-case basis. [108] Limitations legislation serves to protect all litigants. Governments have availed themselves of limitations defences over theyears on all manner of claims, including Aboriginal claims.

No case authority was provided to me in which the reliance on limitationslegislation has found to have been dishonorable, although as a matter of policy the Crown may choose to refrain from advancing suchdefences. [109] Reliance on the equitable doctrine of laches is a somewhat different story. The conduct of the Crown is relevant whenconsidering whether the defence would be available, having regard to the declaration sought.

To that extent, the delay in bringing asummary judgment application based on laches invites consideration of why the application was not brought much sooner, andespecially before extensive, and expensive questioning of Canada’s representatives had taken place. This will be taken into account inthe next portion of my decision.

IX. The Defence of Laches [110] Alberta and Canada argue that if the relief claimed is not barred by limitations legislation, it is barred by the equitable doctrineof laches. [111] The defence of laches operates to bar equitable claims by plaintiffs who unreasonably and unfairly delay prosecution of theiraction. It has two elements: unreasonable delay in circumstances that constitute acquiescence (which gives rise to a waiver of theplaintiff’s rights), or unjust disturbance of the status quo.

It is available at the discretion of the Court: Chippewas of Sarnia Band vCanada (Attorney General), (ON CA), [2000] 51 OR (3d) 641 (ONCA) at para 290 [Chippewas]. [112] Alberta argues that there has clearly been an unreasonable delay, and acquiescence by the Stoney. The Traditional Use Landsencompass most of Southern Alberta, and within that the Traditional Lands comprise some five million hectares of land on the EasternSlopes of the Rockies. Both have been subject to conspicuous settlement, development, natural resource extraction and infrastructureconstruction since Treaty No. 7 was signed in 1870.

The Stoney have witnessed that activity without bringing action to assert Aboriginalrights and title until 1977, when the first of a series of seven actions was brought. [113] Alberta also argues that it is “patently obvious” that it would be unjust to disturb the status quo by quashing all permits andauthorizations issued by the Province within the Eastern Slopes of the Rockies since the Province’s inception: Indeed, Canada and Alberta acted in good faith by granting Authorizations to facilitate the economic, industrial, infrastructural and socialdevelopment of the Province, as did numerous third parties who were granted rights and interests under these Authorizations.

It would beunreasonable and manifestly unjust to disrupt this status quo now, after so much time has elapsed. [114] Canada supports Alberta’s position. [115] The Stoney acknowledge that limitations and laches have applied to “certain claims” involving Aboriginal or treaty rights orbreach of fiduciary duty. However, they say that declaratory relief for recognition of Aboriginal rights and title has never been barred byeither limitations or laches.

They characterize this as an unexplored area of the law. [116] As discussed earlier, the amended Statement of Claim as currently structured is not properly characterized as seeking puredeclaratory relief. [117] Even if it did seek such relief, the defence of laches would potentially be available. The Court would need to determine whethereither of the two elements of the defence have been established by the Defendant, and if the equities of the case warrant denial of therequested declaration. [118] While there may

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