Declaratory Relief, Evidence, Forests, Remedies, Constitutional, Jurisdiction, Liability
The Athabasca Cree First Nation ("ACFN") commenced judicial review proceedings challenging various oil sands leases issued by the Province of Alberta ("Alberta") to Shell from 2006 - 2008. The ACFN argued that Alberta had failed to consult with the ACFN prior to granting the leases. Alberta and Shell were successful before the Case Management Judge in having most of the ACFN judicial review application summarily dismissed as the application was brought more than six months after the leases were issued. The application was therefore out of time under then Rule 753.1.1 of the Alberta Rules of Court (now Rule 3.15(2)). The Alberta Court of Appeal affirmed the summary dismissal by the Case Management Judge. The Court reviewed the procedure for issuing oil and gas leases on Crown lands and noted that Alberta does not engage in consultation at the lease disposition stage as only a small percentage of Crown leases are ultimately developed. The Alberta Court of Appeal held that the six-month limitation period under the Rules of Court applied. The ACFN could not avoid this limitation by arguing that it was seeking only declaratory relief rather than an order to quash the leases. The Court of Appeal also addressed the issue of constructive notice although essentially in obiter given its finding that the proceedings were out of time. The evidence was that Alberta's Aboriginal Community Link website provided First Nations in Alberta with all posting and sales information for Crown leases. The ACFN had computer and internet access at the relevant time and ACFN did not submit any evidence as to when it actually learned of the lease postings, arguing instead that a full judicial review was required to determine the issue of notice. The Court of Appeal held that there was a positive obligation on the ACFN to show it did not or could not have known about the lease.