Alberta Court Of Queen's Bench Quashes Alberta's Refusal To Transfer Or Sell Subsurface Land Rights To A First Nation Band

Added to the growing list of recent court decisions on land claim issues between First Nations and provincial Crowns is the recent Alberta Court of Queen's Bench decision in Kainaiwa/Blood Tribe v. Alberta (Energy) 2017 ABQB 107 (Blood Tribe). In Blood Tribe, Jeffrey J. denied the Blood Indian Band's (the Band) request for mandamus on the grounds that Treaty 7, the Natural Resource Transfer Agreement, Schedule to the Constitution Act, 1930 (UK), 20 & 21 Geo V, c 26 (NRTA) and the honour of the Crown did not entitle the Band to subsurface rights on certain lands sought by the Band to be added to its reserve land. However, the Court did quash and send back for reconsideration the decision of the Alberta Minister of Energy to refuse to transfer or sell the subsurface rights to the Band. The Court held that the Minister's discretionary decision was unreasonable for a number of reasons, including deficiencies in the intelligibility and rationality of the decision and reasons.

Background Facts

Under the terms of Treaty 7 signed in 1887, the Band gained rights in certain lands known as the Blackfoot Crossing Reserve. Between 1880 and 1881, the Band was dissatisfied with the Blackfoot Crossing Reserve and agreed to surrender its rights in the Blackfoot Crossing Reserve in exchange for a new reserve that is currently occupies (the Reserve). While surveying the Reserve in 1882, the federal Crown became aware that a non-Indian man, David Akers (Akers), was living at its eastern extremity and in 1883, an Amended Treaty 7 was finalized. The federal Crown later discovered that several pieces of land within the Reserve was inadvertently sold to Akers. Akers refused to relocate and the federal Crown obtained a surrender of approximately 444 acres (the Claim Land) from the Band without compensation (the Surrender). In 1970 the federal crown reacquired and reincorporated 219 acres of the Claim Land into the Reserve. Approximately 225 acres of the Claim Land remained outstanding from the original Agreement.

In 1995, the Band submitted a claim alleging that it did not receive compensation for the Surrender, and that the Surrender was invalid. Negotiations resulted in two settlement Agreements, the first in 1997 (the 1st Akers Settlement) and the second in 2003 and 2004 (the 2nd Akers Settlement). Under the 1st Akers Settlement, the Band received $2,346,000 and the option of purchasing 444 acres to be added to its reserve land, provided that the Band consulted...