Court Quashes Alberta Minister Of Energy's Refusal To Transfer Subsurface Mineral Rights To First Nation

Failure to consider goal of reconciliation with First Nations was 'unreasonable'

Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107

On February 14, 2017, Mr. Justice Jeffrey of the Alberta Court of Queen's Bench (the "Court") quashed the Alberta minister of energy's decision to refuse a request by the Blood Indian Band (the "Blood Tribe" or "the Tribe") that Alberta consent to a transfer of subsurface land rights for the use and benefit of the Blood Tribe in relation to lands acquired by the Tribe pursuant to a Specific Claim settlement with Canada.

The decision is significant in that it stands for the principle that, prior to making a discretionary determination relating to a First Nation, the Crown must consider the impact of the Crown's decision on reconciliation between the Crown and First Nations. The principle of reconciliation, the court concluded, is a constitutionally-required consideration that must inform the exercise of governmental discretion, and acts as a legal limitation on that discretion.

Background and Procedural History

Pursuant to Treaty 7 of 1877, and in common with other numbered treaties across the Prairies, Canada was required to establish First Nation reserves of a certain size, based on the population of the First Nation adherents to the treaty (the so-called "land quantum" provision common to such treaties).

In the course of surveying the Blood Tribe's reserve set aside pursuant to that treaty, the federal government became aware of a non-Indian who was living at the eastern end of the reserve. Rather than insist that he vacate the lands, Canada purported to obtain a "surrender" of 444 acres of reserve land in 1889. However, there was no evidence that the Tribe had consented to the surrender or that it was otherwise lawfully obtained, or that any compensation whatsoever had been paid to the Tribe for the land removed from them.

The Blood Tribe submitted a claim relating to the unlawful surrender in the 1990s, and subsequently entered into two settlement agreements with Canada, by which Canada paid compensation to the Tribe intended for the purchase replacement lands, with the intent that those lands be converted into reserve land and thereby restore to the Blood Tribe the amount of reserve land that had been previously removed from them, unlawfully.

To that end, the Blood Tribe purchased the surface rights to 6 parcels of land (totalling 664.8 acres) with the settlement monies it had obtained from Canada.

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