In Lameman v. Alberta, 2013 ABCA 148, the Alberta Court of Appeal dismissed an appeal by the Crown in Right of Alberta (“Alberta”) and the Attorney General of Canada (“Canada”) from a decision of the Alberta Court of Queen’s Bench refusing to strike portions of the Statement of Claim of the Beaver Lake Cree Nation (“BLCN”). By affirming the lower court’s decision, the Court of Appeal allowed the BLCN’s claim for damages for treaty infringement to proceed. The basis for the BLCN’s claim is that the cumulative impacts of past Crown authorizations for resource development in their traditional territory unjustifiably infringes their rights to hunt, trap, and fish under Treaty 6.

Background

BLCN is a signatory to Treaty 6. Under Treaty 6, the signatory First Nations surrendered certain lands to the Crown in exchange for reserve land and other benefits, including the right to hunt, trap, and fish throughout the tracts surrendered. BLCN alleges that the Treaty requires Alberta and Canada to manage BLCN’s core traditional lands to ensure that its members are able to exercise their treaty rights.

In its claim, BLCN seeks damages from Alberta and Canada for alleged breaches of their Treaty 6 obligations. By granting approximately 19,000 individual authorizations for oil and gas, forestry, mining, and other activities on BLCN’s claimed “core lands”, BLCN argues that Alberta and Canada have failed to discharge their responsibilities under the Treaty. BLCN says the cumulative impact of these authorizations infringes their treaty rights, as anticipated by Mikisew.

Queen’s Bench Decision

Alberta and Canada applied to strike some or all of the BLCN’s Statement of Claim, taking issue with the fact that the BLCN challenged every authorization issued with respect to lands within or adjacent to the BLCN’s core traditional territory. These allegations implicated the decisions of dozens of Crown bodies involving 300-some projects related to a range of activities. Alberta and Canada argued that the scope of the allegations was too broad and it was inappropriate to attack the validity of Crown decisions in the context of a civil claim.

The case management judge partly agreed with Alberta and Canada and struck the portions of the Statement of Claim that sought to revoke some or all of the 19,000 individual authorizations. However, the court rejected any further amendments to the claim.

Appeal Decision

Alberta and Canada appealed, claiming, among other things, that the BLCN’s action was a collateral attack on authorizations already granted and previously unchallenged. The Court of Appeal rejected this argument, stating the public purposes of judicial review are fundamentally different than a private claim for damages, and noting that the lower court had already struck BLCN’s claim to have the authorizations revoked.

The Court observed (at para. 26):

As currently drafted, the action appears to focus largely on whether, regardless of the extent of consultation with the plaintiffs and the extent of accommodation of any interests of the plaintiffs that may have occurred as a result of the statutory and regulatory frameworks as existed at the relevant times, there was a basis for liability of either Canada or Alberta for cumulative and avoidable effects adverse to the plaintiffs. 

Ultimately, the appeal was dismissed in its entirety, allowing BLCN’s action for damages and a permanent injunction against the provincial and federal Crowns to proceed.

Conclusion

The Alberta Court of Appeal’s decision to refuse to strike BLCN’s claim may result in the adjudication of one of the first actions for damages for past infringements contemplated in Rio Tinto. The decision is also noteworthy as the past infringement at issue arises from the cumulative impacts of development from numerous unrelated projects spanning multiple resource sectors.