Aboriginal Treaty Rights – Judicial Review – Mandamus
In this decision, the ABQB considered the Blood Indian Band’s (the “Band”) application to the ABQB seeking:
1. A mandamus order directing the provincial Crown to transfer to the Band certain subsurface land rights; or
2. In the alternative, judicial review, asking the ABQB to quash the provincial Minister of Energy’s (the “Minister”) refusal to transfer to the Band those subsurface land rights (the “Minister’s Decision”), and to direct the Minister’s reconsideration.
Mandamus is a judicial remedy that compels a servant of the Crown to exercise a statutory duty it owes, but has failed to exercise.
The ABQB denied mandamus, but granted the Band’s request for judicial review. The ABQB quashed the Minister’s Decision and remitted the matter back to the Minister for reconsideration.
History and Background
The Band signed Treaty Number 7 on September 22, 1877. Under the terms of Treaty 7 several reserves were set aside for the Blackfoot, Blood and Sarcee Bands along the Bow River near Blackfoot Crossing. The Band selected the land, which is the site of its current reserve (the “Reserve”), and then relocated there in 1880 and 1881.
While surveying the Reserve in 1882, the federal government became aware that a non-Indian man, David Akers, was living at its eastern extremity, at the confluence of the St. Mary’s and Old Man rivers. Once Canada realized it had mistakenly sold several pieces of land contained within the Reserve to Mr. Akers, the federal government asked Akers to relocate. He refused.
The ABQB explained that, in light of Akers’ refusal to relocate: “the only recourse for the Department of Indian Affairs was to obtain a surrender of the land from the Blood”. Commissioner Hayter Reed was authorized to take the surrender. After requesting additional instructions regarding compensation, he was told “when taking the surrender you had better make the most favourable terms possible with the Indians, committing the Department as little as possible to any question of compensation, either in land or in any other way”.
On September 2, 1889, the federal government obtained from the Band a surrender (the “Surrender”) of its lands located between the Oldman and St. Mary’s River, with an area of approximately 444 acres (the “Surrendered Land”).
1st and 2nd Akers Settlement Agreements
In 1995, the Band made a claim under the federal Specific Claim Policy, alleging that it did not receive compensation for the Surrendered Land and that the Surrender itself was invalid.
In 1996, a settlement agreement was reached between the Band and Canada (the “1st Akers Settlement”). It was a full and final settlement of the Band’s claim that Canada failed to pay compensation for the Surrendered Land. Canada paid $2,346,000 to the Band under the terms of that settlement.
After the 1st Akers Settlement, the Band continued to press its other claim that the Surrender was invalid. In 2004, Canada and the Band entered into a second settlement agreement (the “2nd Akers Settlement”). It was a full and final settlement of the Band’s claim that the Surrender was invalid. Under the terms of the 2nd Akers Settlement, Canada paid to the Band an additional $3,555,000.
Under the 1st and 2nd Akers Settlements, the Band received a combined $5,800,000 and the option of purchasing up to 669 acres that could be added to the Reserve. In 2008 and 2009, the Band purchased surface rights to 6 parcels of land, totaling 664.8 acres (the “Purchased Lands”). The subsurface rights remained vested in the Provincial Crown. Portions of the subsurface rights of the Purchased Lands were subject to coal leases, an ammonite lease and oil and gas leases.
Test for Mandamus
The ABQB explained that Mandamus is a judicial remedy that compels a servant of the Crown to exercise a statutory duty it owes but has failed to exercise (see e.g. Peter Lehmann Wines Ltd v Vintage West Wine Marketing Inc, 2015 ABQB 481 at para 52).
The ABQB set out the applicable test, from the Federal Court of Appeal decisions in Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 (CA)). The ABQB explained that an applicant must satisfy the following three elements to be granted a mandamus remedy:
1. There must be a public legal duty to act;
2. The duty must be owed to the applicant; and
3. There must be a clear right to performance of that duty,
(the “Apotex Test”).
Parties’ Submission re Mandamus
The Band submitted that the Minister of Energy was required to convey to it the subsurface rights associated with the Purchased Lands, by virtue of Treaty 7, the Natural Resource Transfer Act (“NRTA”) and the honour of the Crown. The Band submitted that each of these enactments required the Crown to transfer to the Band the subsurface rights for the Purchased Lands.
With respect to the NRTA and Treaty 7, the Band submitted that Alberta is obliged to consent to the transfer of the subsurface rights by operation of the NRTA. The Band referred to NRTA Section 1, whereby all public land within Alberta were transferred from the Federal Crown to the Provincial Crown, “subject to any trusts existing in respect thereof”. The Band argued that the transfer of land from the Federal Crown to Provincial Crown was subject to the existing First Nation treaty rights, including the right to Reserve land under Treaty 7.
Specifically, the Band argued that in order to make the Band whole and to restore the Band to the position it was in prior to the 1889 Surrender, the Province must transfer the subsurface rights underlying the Purchased Lands to the Band.
Further, the Band pointed to s 10 of the NRTA to argue that Alberta has a duty to assist Canada in fulfilling its treaty obligations.
The Crown submitted that:
1. It was under no such legal obligation, constitutional or otherwise, and
2. the Minister’s decision was discretionary, need only have been reasonable, and was reasonable.
ABQB Decision re Mandamus
The ABQB found that it was only after entering into the 1st and 2nd Akers Settlement that the Band acquired an interest in the Purchased Lands. Prior to that (and at the time the NRTA was enacted), the Band did not have any interest in or claim to the subsurface rights underlying the Purchased Lands. The ABQB found that on the coming into force of the NRTA, Alberta received the Purchased Lands, including the associated subsurface rights, unencumbered by any obligation to the Band.
Nor did the Band, in the ABQB’s opinion, presently have any interest in the subsurface rights underlying the Purchased Lands. Accordingly, neither Treaty 7 nor the NRTA obligated Alberta to transfer to the Band the subsurface rights.
The ABQB held that mandamus did not lie against the Minister because Alberta was not under any legal obligation to transfer the subsurface property rights to the Band, and therefore the Band failed to meet the requirements of the Apotex Test.
Judicial Review
Even though the Minister had no legal obligation to authorize the transfer of the requested property to the Band, the ABQB found that he nevertheless had the authority to do so.
The ABQB found that the power to transfer the requested mineral rights was delegated to the Minister without any statutory limitations, guidance, criteria or considerations. The ABQB found that the range of acceptable outcomes therefore was very broad.
Adequacy of Minster’s Reasons
The ABQB noted that the Minister’s decision delivered to the Band consisted of the following single sentence:
After careful consideration, the Government of Alberta is not prepared to transfer or sell the underlying mineral rights to the Blood Tribe.
The ABQB found that while the NRTA does not expressly require the Minister to provide reasons, their absence made the Court’s task of gauging the reasonableness of the Minster’s Decision “extraordinarily difficult.”
The ABQB cited the Supreme Court of Canada’s (“SCC”) decision in Montréal (City) v Montreal Port Authority, 2010 SCC 14 at para 38, where the SCC stated:
The concept of “reasonableness” relates primarily to the transparency and intelligibility of the reasons given for a decision. But it also encompasses a quality requirement that applies to those reasons and to the outcome of the decision-making process.
The ABQB found that even though the NRTA contains no mandatory considerations for such decisions, or limitations on the breadth of the Minister’s discretion, the broader law does. Specifically, ABQB held that section 35 of the Constitution requires the Minister to consider whether, and if so how, any decision may advance or impair the process of reconciliation between Aboriginal peoples and the Crown.
The ABQB found that the Minister failed to consider the role the decision could play for the Band in the ongoing process of reconciliation. The ABQB found that the Minister’s decision was unreasonable because of the deficiency in the intelligibility and rationality of the Minister’s reasons, exacerbated by the Minister’s failure throughout the decision making process to consider the opportunity for the decision to promote the process of reconciliation between the Crown and the Band, as the law requires.
The ABQB therefore quashed the decision and returned the Band’s request to the Minister for reconsideration.
