Aboriginal Law Newsflash - May 2011

In this issue:

Consultation and Limitation Periods The Duty to Consult in an Environmental Assessment, Land Claim and IBA Provisions of Bill C-24, the First Nations Certainty of Land Titles Act in force Consultation in the Context of Environmental Assessment

Consultation and Limitation Periods

Athabasca Chipewyan First Nation v. Alberta (Minister of Energy), 2011 ABCA 29

http://www.canlii.org/en/ab/abca/doc/2011/2011abca29/2011abca29.html

January 28, 2011

The Athabasca Chipewyan First Nation (ACFN) sought judicial review of five oil and gas leases granted to the respondent, Shell Canada Ltd. by the Minister of Energy. The respondents sought summary dismissal on the basis that the judicial review had not been filed within the six months required by the Alberta Rules of Court. The lower Court had dismissed the Appeal on the basis that Rule 753.11(2) excluded the Court's ability to enlarge or abridge timelines.

In its interpretation of the relevant limitation period, the Court relied on Papaschase (the Court of Appeal decision later known as Lameman at the Supreme Court of Canada) on the issue of whether this is a distinction to be made when seeking damages or declarations that attack an administrative decision or legislation. Slatter J. found that no distinction is to be drawn between a motion to quash an administrative decision and a motion seeking declaratory remedies. The Supreme Court affirmed in Lameman that limitation laws apply to Aboriginal constitutional claims in the same way as they apply to any other claims affected by a limitation period. The Legislature intended the limitation to operate without regard to potential applicant knowledge or constructive knowledge. The courts have applied the rule consistently.

In the case at bar, the ACFN argued that the duty to consult required proof by the Minister that he gave actual notice to the community. In effect, it argued that the limitation had not yet started to run. The Court of Appeal found for the province and held that the lower Court's decision was not palpably unreasonable and therefore could not be disturbed. The Court of Appeal did not interfere with the lower Court conclusion that if there was no duty to consult, the limitation began to run from the date when the leases were granted. If there was a duty to consult (and it was held by the Court of Appeal that there was) the limitation period would begin to run the day the oil sands leases were posted on the Aboriginal community link. The Court concluded that this was sufficient in the circumstances.

This decision may well be challenged in...