Introduction

The last Bench Press post reviewed the British Columbia Court of Appeal’s landmark decision in Saik’uz First Nation and Stellat’en First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154, which held that Nechako Nations could rely on as-yet-unproven Aboriginal title and rights claims to ground a tort action against a private proponent.

Now in Ominayak v Penn West Petroleum Ltd, 2015 ABQB 342 we have a new decision from Alberta that applies Saik’uz First Nation in one key respect, but refuses to follow it in another.

In the result, the First Nations plaintiffs in Ominayak can pursue a tort claim in trespass against Penn West, and they can seek to prove their property rights as part of that action. This proceeding is in addition to a separate lawsuit against the federal and provincial Crowns, although the Court acknowledged that the actions might have to be consolidated, or one adjourned / stayed, given their similarities.

A collateral attack…

Penn West had been granted several project approvals from provincial agencies to conduct an oil and gas exploration program. These included “licences with respect to roads, drilling, mineral leases, facilities, and pipelines” (as described at para 1). The plaintiffs claim Aboriginal title to and rights in the project area.

As part of the approval process, Penn West consulted with the Lubicon Lake Cree. Lubicon Lake Nation (“LLN”) Chief Ominayak, one of the plaintiffs in this case, indicated in 2011 that “he did not have concerns” with the program; Alberta subsequently concluded that consultation was “adequate” (paras 8-10).

However, in 2012, the LLN filed objections with the Energy Resources Conservation Board (as it was then known).

The Board found that the licences “did not directly and adversely affect the LLN.” LLN did not apply for judicial review (paras 11-12).

Instead, the plaintiffs sued Penn West in 2013, requesting (in part) a declaration that all of the approvals were invalid (para 15).

Applying the Supreme Court of Canada decision in Behn v Moulton Contracting Ltd, 2013 SCC 26, Justice Simpson agreed with Penn West that this part of the claim constituted a collateral attack on the previously issued approvals and had to be struck (paras 4, 43, 55, 60, 63). The plaintiffs could not have the approvals invalidated when they had not sought judicial review, even if they had concerns about a potentially inadequate consultation process (para 48; see also para 53 on the “mutual duty of good faith” during consultation).

This is where Justice Simpson refused to follow Saik’uz First Nation. In Saik’uz, the BCCA rejected a collateral attack argument, because the Nechako Nations were “not challenging the validity of the licence in question” but instead arguing that the licence was constitutionally inapplicable to them. But for Justice Simpson, this was a “distinction without a difference” – as he rhetorically asked, “if the licence was granted without constitutional authority, is it not invalid?” (para 50).

In an interesting aside, Justice Simpson expressed concern about the potential “legal and economic uncertainty” that might result for project proponents if their approvals could be “hijacked by later aboriginal rights claims” in a lawsuit (para 57). And yet one wonders whether economic uncertainty might be the inevitable price to pay for legal clarification of these rights claims, especially after Tsilhqot’in Nation v British Columbia, 2014 SCC 44. The Supreme Court made clear in Tsilhqot’in that projects may have to be suspended or even cancelled while rights and title claims are resolved.

…But not an abuse of process

The plaintiffs succeeded on the second part of the application, by fending off Penn West’s attempt to have their action dismissed as an abuse of process.

Penn West claimed that it was an abuse of process for the plaintiffs to pursue two parallel actions: An action against the federal and provincial Crowns, which was filed in June 2013, and the action against Penn West, commenced in November 2013.

Justice Simpson accepted that the Penn West action was “identical to the Crown action in many respects” (para 37). It covered the same land (albeit only two smaller pieces of the bigger area at issue in the Crown action), and the same core issue: “the essence of both claims with respect to the Plaintiffs’ rights of control of the land and the resources through aboriginal title or other aboriginal rights [is] the same” (para 37).

Here, Justice Simpson drew a bright line between public and private law as a way to distinguish between the two actions. The plaintiffs were pursuing public claims against the Crown, e.g. in constitutional law and related to the honour of the Crown, and private claims against Penn West, in trespass and maybe nuisance. This made them sufficiently different, such that the plaintiffs could pursue both without committing an abuse of process.

However, both sets of claims are founded on their rights in and on the land at issue. For this reason, Prof Nigel Bankes, writing for ABlawg, rightly questions whether the Court’s private/public dichotomy is tenable (p2):

… I am less sure about the public/private distinction that Justice Simpson relies upon to support his conclusion, since an argument about competing property claims is perhaps best characterized as a private law argument. That said, to the extent that an aboriginal title claim is based on the property laws of a pre-existing legal system (as acknowledged in both Delgamuukw, [1997] 3 SCR 1010 and Tsilhqot’in, 2014 SCC 44) then it does have aspects of a claim in public law. Better then I think simply to have said that there can be no duplication when the defendant in the two actions is different rather than to distinguish the actions on the basis of public and private law.

Justice Simpson followed Saik’uz First Nation on the point about pre-existing rights. He accepted the BCCA’s conclusion that Aboriginal rights and title “pre-exist the declaration of their existence,” such that a cause of action based on those property rights “may exist before a declaration of aboriginal title is made” (para 39).

Therefore, it would not be an abuse of process to plead the same facts in support of the claimed property interests in both actions (para 41).

Conclusion

It will be interesting to see how this reasoning plays out in action, once Saik’uzOminayak, and other cases proceed to trial on these property-based claims against private parties. The idea that Aboriginal rights and title can be pleaded and proven in “private” litigation against project proponents is quickly becoming accepted in the law. Unless and until the Supreme Court offers a different view, private tort claims, without the Crown involved, may become a more attractive way for Aboriginal groups to advance their rights.