Date: 20250305
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Docket: T-590-24
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Citation: 2025 FC 415
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Edmonton, Alberta, March 5, 2025
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PRESENT: Madam Associate Judge Catherine A. Coughlan |
BETWEEN:
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BIG ISLAND LAKE CREE NATION
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Plaintiff
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and
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ATTORNEY GENERAL OF CANADA
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Defendant
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ORDER AND REASONS
[1] The Defendant, Attorney General of Canada [Canada], brings this motion in writing for leave to bring third-party claims, pursuant to Rules 193, 194, and 369 of the Federal Courts Rules, SOR/98-106 [Rules], against His Majesty the King in Right of Alberta [Alberta] and His Majesty the King in Right of Saskatchewan [Saskatchewan]. Canada relies on section 19 of the Federal Courts Act, RSC, 1985, c F-7, which grants the Federal Court jurisdiction to determine intergovernmental disputes, as the basis for this Court’s jurisdiction to determine whether a third‑party claim can be brought against the provinces.
[2] In the underlying action, the Plaintiff, Big Island Lake Cree Nation [BILCN], a band residing in the Treaty 6 territory, alleges that by establishing, occupying and operating the Primrose Lake Air Weapons Range [PLAWR] in the province of Saskatchewan, Canada has wrongfully denied BILCN access to those lands to hunt, fish, trap and gather, and has failed to appropriately compensate BILCN for this loss.
[3] Canada asserts that Saskatchewan and Alberta are necessary parties to the underlying claim because they hold, control, administer, and regulate the lands and natural resources being claimed by BILCN. As such, Canada says that any declarations or orders made with respect to these lands and natural resources will directly affect the rights of those provinces. Further, any obligations and liability Canada may owe to BILCN “is informed by Saskatchewan and Alberta’s obligations under their respective Natural Resource Transfer Agreements (NTRAs) and the 1953 Agreements and the Further Agreements.”
[4] Both provinces resist the motion, asserting that Canada’s proposed third-party claim is unrelated to BILCN’s claim against Canada and therefore has no chance of success. In making this submission, the provinces suggest that Canada has misconstrued the relief that BILCN seeks against it in the underlying action. Further, Alberta asserts that there is no connection between BILCN’s Claim against Canada and Alberta.
[5] For the reasons that follow, I am satisfied that the motion must be dismissed.
II. Background
[6] In 1953, Canada signed agreements with the provinces of Alberta and Saskatchewan to use provincial Crown lands for the purposes of national defence and military activities [the “1953 Agreements”
]. Included in these activities is the operation of the Cold Lake Air Weapons Range [CLAWR] in Alberta, which is also known as the PLAWR in Saskatchewan; it is Canada’s only tactical overland air weapons range. These agreements have since been amended or updated by both Saskatchewan and Alberta [the “Further Agreements”
].
[7] I pause to note that neither the 1953 Agreements nor the Further Agreements are in evidence before the Court on this motion but are pled in Canada’s Statement of Defence.
[8] On March 20, 2024, BILCN filed a Statement of Claim [Claim] against Canada. The Claim alleges that BILCN has Treaty, Aboriginal, and inherent rights to access certain lands in the province of Saskatchewan that are part of the PLAWR. Specifically, BILCN argues that their exclusion from the PLAWR constitutes breaches of Treaty 6, the duty to consult, the honour of the Crown, fiduciary obligations, and the UN Declaration on the Rights of Indigenous Peoples, OHCHR, 33rd Sess, UN Doc A/RES/61/295 (2007) GA Res 61/295.
[9] By Order dated April 3, 2024, the action was made a specially managed proceeding.
[10] Following a case management conference on October 17, 2024, Canada was ordered to file its Statement of Defence not later than October 21, 2024.
[11] In its Statement of Defence, Canada pleads that Saskatchewan is a necessary party to the Claim by virtue of the relief sought by BILCN, specifically related to the lands and resources vested in that province. The Statement of Defence pleads various facts with respect to the Saskatchewan Natural Resources Transfer Agreement [NRTA], the PLAWR agreements between Saskatchewan and Canada and previous litigation involving Canada, Saskatchewan and Big Island Lake.
[12] On November 6, 2024, BILCN filed its Reply to the Statement of Defence [Reply] in which it denied that Saskatchewan is a necessary party to this Claim. The Reply provides that BILCN does not seek any relief against Saskatchewan and its Claim will not affect or prejudicially affect Saskatchewan in any direct way. More specifically, the Reply provides that BILCN is not seeking any relief to lands and resources currently vested in the province of Saskatchewan. The Reply asserts that BILCN seeks damages solely for Canada’s breach of Treaty 6 as it is “Canada that excludes and restricts Big Island Lake’s access to the Air Weapons Range and Air Weapons Range Lands.”
[13] On December 4, 2024, Canada filed an Amended Statement of Defence pleading that Alberta is a necessary party to the action.
[14] Following a case management conference on December 9, 2024, I ordered Canada to serve and file its motion record for leave to file third-party claims against Saskatchewan and Alberta by December 31, 2024.
[15] On January 17, 2025, Saskatchewan and Alberta filed their respective responding motion records.
[16] On January 17, 2025, BILCN filed their written representations, which sought to clarify their position that they do not seek relief against Alberta or Saskatchewan. BILCN concluded by taking no position on the motion.
[17] Of note, Canada did not file any written representations in reply.
[18] Rules 193 and 194 of the Rules contemplate third-party claims. On a motion for leave to commence a third-party claim, the Court considers the same factors that are relevant on a motion to permit a pleadings amendment to introduce a new cause of action: Alberta v Canada, 2018 FCA 83 at para 20. Specifically, the viability of a third‑party claim rests on whether it has a reasonable prospect of success: McCain Food Limited v J.R. Simplot Company, 2021 FCA 4 at para 25 [Simplot].
[19] Further, “a third-party claim must stand on its own as an independent proceeding, separate from the main action and not merely incidental to it”
: Simplot at para 26, citing R v Thomas Fuller Construction Co (1958) Ltd et al, [1980] 1 S.C.R. 695 at 709; 744185 Ontario Inc v Canada, 2020 FCA 1 at para 32. “That said, regard may be had to the main action if it assists in determining what is in issue in the related third‑party claim”
: Simplot at para 26, citing Canada (Attorney General) v Gottfriedson, 2014 FCA 55 at para 34.
[20] The parties are agreed on the applicable test for a third-party claim set out above. Accordingly, the Court is left only to determine whether the proposed third-party claims have a reasonable prospect of success.
[21] At paragraph 6 of Canada’s Notice of Motion, it asserts as grounds for its motion that Saskatchewan and Alberta are necessary parties to the underlying Claim because they hold, control, administer, and regulate the lands and natural resources being claimed by BILCN in its Claim. Thus, asserts Canada, any declarations or orders with respect to the lands and natural resources will directly affect the rights of both Saskatchewan and Alberta. Canada submits that these grounds flow from the fact that any obligations and liability Canada may owe to BILCN are informed by Saskatchewan and Alberta’s obligations under their respective NRTAs, the 1953 Agreements, and the Further Agreements. In the result, Canada urges that it is not plain and obvious that Canada’s third-party claims have no reasonable prospect of success against Saskatchewan and Alberta.
[22] Canada buttresses its position by its reliance on a 2018 decision of the Federal Court of Appeal in Alberta v Canada, 2018 FCA 83 [AB v Canada]. Canada asserts that the decision confirms its ability to file a third-party claim against a province in the context of the NRTA. In that case, the Court determined that there was “no doubt”
Canada had an arguable case for indemnity or contribution based on the wording of article 1 of the NRTA: AB v Canada at para 70.
[23] Canada also relies on an unreported decision, dated March 18, 2024, of this Court granting leave to Canada to file third-party claims against Saskatchewan and Alberta in what Canada describes as an “analogous matter”
: Chipewyan Prairie First Nation v His Majesty the King in Right of Canada (Court File No. T-1490-23) [Chipewyan Prairie].
[24] As noted earlier, BILCN took no position on this motion but provided clarification: (1) responding to paragraphs 9 and 11 of Canada’s written representations, BILCN does not seek any relief against Saskatchewan or Alberta, nor any relief related to lands and resources vested in those provinces and (2) in response to paragraph 10 of the written representations, BILCN does not seek damages with respect to “sharing”
the Air Weapons Range facilities, but rather damages for its continuing wrongful exclusion from the Air Weapons Range lands.
[25] Alberta advances several arguments in support of its position as follows:
(i)BILCN, as a first Nation located in Saskatchewan, has no connection to Alberta nor does its Claim plead any connection to Alberta.
(ii)Canada’s claims to contribution and indemnity for lands and resources have no reasonable prospect of success because BILCN has not claimed any entitlement to lands or resources and does not challenge any past transfer, holding, control, administration, or regulation of any resources. This position is set out in BILCN’s Reply which states that it is not seeking any relief with respect to “lands and resources currently vested in the province of Saskatchewan.”
(iii)Canada’s NRTA claims have no reasonable prospect of success because none of the provisions relied upon by Canada give it a right of contribution and indemnity from Alberta. Alberta relies on section 1 of the Alberta NRTA for the express provision “that the ‘Province shall not be liable to account to Canada for any such payment made’ to it with respect to lands, mines, minerals and royalties of the province after the coming into force of the agreement.”
Alberta challenges Canada’s reliance on the Federal Court of Appeal’s decision in AB v Canada at para 70, which held that “there is no doubt, considering the wording of article 1 of the NRTA, that Canada has an arguable case for indemnity or contribution,”
on the basis that Alberta did not object to the third-party claim as it does in this case. In any case, Alberta contends that the AB v Canada decision has been overtaken by a 2022 decision of the Saskatchewan Court of Appeal in George Gordon First Nation v Saskatchewan, 2022 SKCA 41 (CanLII) and a 2024 decision of the Alberta Court of Appeal in Wesley v Alberta, 2024 ABCA 276 (CanLII). Those cases, Alberta says, stand for the proposition that the provinces did not receive the lands and minerals from Canada subject to a First Nations trust.
(iv)Canada’s contractual claims against Alberta have no reasonable prospect of success because they are based on the CLAWR Agreements and BILCN’s Claim makes no reference to those agreements. Further, the CLAWR Agreements are not in evidence before this Court and therefore, the Court can not properly assess Canada’s allegations.
(v)Canada’s breach of duty claims have no reasonable prospect of success because BILCN’s Claim only pleads breaches of treaty and fiduciary duties that Canada owes to BILCN. Alberta posits that if Canada is liable to BILCN for any breaches, it is not entitled to pass off responsibility and liability for its conduct to Alberta.
(vi)Canada’s trust claims have no reasonable prospect of success because “Alberta is both the legal and beneficial owner of the lands, mines, minerals, and royalties of the province, and did not take them subject to any trust with a First Nation as beneficiary.”
In any case, Alberta argues that Canada has failed to plead the necessary elements to support a valid trust claim.
(vii)Lastly, Alberta asserts that Canada misconstrues the relief sought by BILCN in characterizing the dispute as an interest in land and ownership and exploitation of resources when BILCN does not raise such claims nor seek such relief. Alberta exhorts the Court to reject Canada’s attempt to expand the action through alternative and hypothetical arguments.
[26] Alberta concludes that Canada’s reliance on Chipewyan Prairie is misplaced because BILCN’s Claim is not analogous to Chipewyan Prairie’s claim which claimed, “an interest in lands and resources within the PLAWR”
: Chipewyan Prairie at para 6.
[27] Saskatchewan advances three arguments in support of its position. Some of those arguments overlap with Alberta’s.
[28] First, Saskatchewan says that it cannot be liable for Canada’s refusal to grant BILCN access to the PLAWR when Canada controls access to those lands. First Nations, like BILCN, do not need provincial approval to exercise their constitutionally protected Treaty harvesting rights which are protected under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Rather, it is Canada who controls BILCN’s ability to exercise their Treaty rights in the PLAWR. Accordingly, Saskatchewan cannot be liable for Canada’s refusal to compensate BILCN, nor can it be liable for Canada’s decision to create the PLAWR or occupy and operate the PLAWR.
[29] Second, and as argued by Alberta above, BILCN’s Claim is not analogous to the claims in AB v Canada and Chipewyan Prairie because BILCN does not lay claim to the lands and resources of the PLAWR. Thus, those decisions are distinguishable.
[30] Third, Canada’s proposed third-party claim fails to plead material facts to support its assertion that Saskatchewan denied BILCN access to the PLAWR, over which Saskatchewan had a right to limit third-party access. Saskatchewan says such bald assertions, without material facts as to actual instances where Saskatchewan denied access, does not particularize the “who, when, where, how and what”
required of a proper pleading: Mancuso v Canada (National Health and Welfare), 2015 FCA 227, aff’d Rebello v Canada (Justice), 2023 FCA 67 at para 19. Further, BILCN makes no such claim against Saskatchewan.
B. Do the third-party claims have a reasonable prospect of success?
[31] As noted earlier, Canada bears the onus to show that the third-party claims have a reasonable prospect of success and are related to the subject-matter of the dispute. Here, Alberta and Saskatchewan have advanced several cogent arguments undercutting Canada’s position. Indeed, those arguments suggest that the third-party claims have no reasonable prospect of success and that factually, they are unrelated to BILCN’s Claim against Canada. In failing to file a reply, Canada has not responded to any of those arguments.
[32] Of note, and determinative of this motion, is Canada’s failure to address BILCN’s submission that it is not seeking relief against either Saskatchewan or Alberta and that they are not proper parties. In that sense, as the provinces rightly note, Canada misconstrues the Claim against it and has propounded third-party claims based on that misunderstanding of the relief sought by BILCN.
[33] This lack of alignment between the BILCN Claim and the proposed third-party claims is best illustrated at paragraph 19 of Saskatchewan’s written representations, reproduced below:
19. … Canada pleads that:
• If Canada must provide BILCN “any of the lands, mines, minerals, royalties, waters, and water-powers, or sums due payable for same (NRTA resources), or compensation in lieu thereof,” then Saskatchewan is liable for same under the Natural Resources Transfer Agreement, 1930 (“NRTA”) (Canada’s Record, pgs. 30-31 at para 25).
[BILCN does not seek such relief from Canada].
• If Canada is liable for harms or losses related to the PLAWR natural resources, including “forest, oil, mineral, sub-surface, fur, and fish resources,” then Saskatchewan is liable for harms or losses caused by its resource extraction activities, if any (Canada’s Record, p. 31 at para 26; p. 33 at para 31).
[BILCN does not claim such harms or losses].
• If Canada controlled, administered or regulated the lands and natural resources in the PLAWR, then Saskatchewan became a trustee by taking possession, holding, controlling, administering and regulating same (Canada’s Record, p. 32 at para 29).
[BILCN does not claim the lands or natural resources or challenge their administration].
• If transferring the lands and resources to Saskatchewan under the NRTA is void or improper, then Canada is entitled to indemnification for any harms or losses to the First Nation (Canada’s Record, pgs. 32-33 at para 30).
[BILCN does not challenge the NRTA transfer].
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•If the said transfer is void or improper, Saskatchewan has been unjustly enriched by its use of the PLAWR lands and natural resources (Canada’s Record, p. 33 at para 32).
[BILCN does not challenge the NRTA transfer; claim the lands and natural resources; or seek relief in relation to their use].
• Saskatchewan breached the Treaty, the NRTA and a fiduciary duty by administering and benefitting from the lands and natural resources and for denying BILCN access thereto (Canada’s Record, pgs. 33-34 at paras 33 & 34).
[BILCN does not claim the lands and resources or allege that Saskatchewan denied it access …]
[34] At paragraphs 20-31, Saskatchewan further distinguishes the relief sought in Chipewyan Prairie and AB v Canada, and the relief sought by BILCN. The point is clear, BILCN does not seek analogous relief.
[35] To the extent that Canada based its third-party pleading on a different action, seeking much different relief, it is plain and obvious that the proposed third-party claims have no reasonable prospect of success, and this motion must be dismissed.
[36] As a result of this conclusion, there is no need for me to address whether Canada should be granted an extension of time to issue the third-party claims. However, before leaving this issue and for future consideration, the fact that a matter is in case management does not automatically supplant the prescribed timelines provided by the Rules. In this case, based on the factors set out in Canada (Attorney General) v Hennelly, 1999 CanLII 8190 at para 3 (FCA) [Hennelly] for an extension of time, I would have found a continuing intention to pursue this motion based on my Order of December 9, 2024, directing Canada to bring the within motion.
[37] With respect to the balance of the Hennelly factors, it is incumbent on the party seeking an extension to satisfy the factors which is normally accomplished through admissible evidence, of which none was presented on this motion.
V. Costs
[38] The provinces seek their costs of this motion. As the successful parties, they are entitled to their costs.
ORDER in T-590-24
THIS COURT ORDERS that:
The motion is dismissed.
Alberta and Saskatchewan are entitled to their costs calculated at the midpoint of Column III of Tariff B.
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"Catherine A. Coughlan" |
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Associate Judge |
FEDERAL COURT
SOLICITORS OF RECORD
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