Executive Summary: Key Legal and Evidentiary Issues

• The Court considered whether Cold Lake First Nations was a “directly affected” party requiring service under Rule 3.15 of the Alberta Rules of Court.

• The contractual rights under the Cold Lake Access Agreement and their relevance to the judicial review were analyzed.

• The meaning and application of “directly affected” in the context of judicial review service requirements, as distinct from standing or intervenor status, was examined.

• The impact of Alberta’s refusal to negotiate access for Whitefish Lake First Nation #128 to the Cold Lake Air Weapons Range (CLAWR) was assessed.

• Cold Lake’s application for intervenor status and the relevant legal factors were evaluated.

• The Court considered the implications for reconciliation and the risks of complicating bilateral Indigenous-government negotiations by allowing third-party involvement.

Background and facts

Cold Lake First Nations (Cold Lake) applied to strike a judicial review application brought by Whitefish Lake First Nation #128 (Whitefish) on the basis that Cold Lake was not served as a “directly affected” person or body under Rule 3.15 of the Alberta Rules of Court. In the alternative, Cold Lake sought intervenor status in the judicial review. The judicial review at issue was brought by Whitefish to quash a decision of His Majesty the King in Right of Alberta as represented by the Minister of Environment and Protected Areas and the Minister of Indigenous Relations (Alberta). The decision under review was Alberta’s refusal to negotiate access for Whitefish to the Cold Lake Air Weapon’s Range (CLAWR), an area controlled by Canada’s Department of National Defence but owned by Alberta.

The other named respondent, His Majesty the King in Right of Canada as Represented by the Minister of National Defence (Canada), had not participated in the proceedings to date. Cold Lake is a third party First Nation that has access to the CLAWR under an access agreement signed between it, Alberta, and Canada (the Cold Lake Access Agreement). The Cold Lake Access Agreement requires that, before Canada can grant access to the CLAWR to any other person, Alberta must provide its written consent, and Canada must consult with Cold Lake. Whitefish did not name Cold Lake as a respondent in the originating application for judicial review and did not serve it within six months of Alberta’s decision. The parties agreed that a failure to serve the originating application on a directly affected person or body is fatal to the judicial review, but disagreed on whether Cold Lake was directly affected.

Legal analysis and policy terms

The Court reviewed Rule 3.15 of the Alberta Rules of Court, which requires service of an originating application for judicial review on every person or body directly affected by the application. The Court emphasized that Rule 3.15 is mandatory and applied strictly, and that failure to serve a directly affected party within the limitation period is fatal to the judicial review application. The central issue was whether Whitefish’s judicial review application directly affected Cold Lake.

The Court examined Alberta jurisprudence and found that “directly affected” must be given its ordinary meaning, applied to the particular facts of each case. The Court rejected the premise that “directly affected” should be interpreted restrictively, instead applying normal rules of statutory interpretation. The Court found that Cold Lake’s contractual right to consultation would only be triggered if Canada, with Alberta’s consent, decided to grant access to another party. Since Alberta had refused to negotiate with Whitefish, the precondition for consultation was not met. The judicial review was therefore a bilateral matter between Whitefish and Alberta, not one that directly affected Cold Lake.

The Court referenced a recent Federal Court decision, Cold Lake First Nations v Canada (Attorney General), 2024 FC 925, which held that the duty to consult Cold Lake did not give it the right to be consulted regarding another Indigenous community’s entitlement to access, but was limited to the impact on Cold Lake’s own access rights. The Court agreed that allowing one Indigenous community to insert itself into another’s entitlement discussions would hamper reconciliation.

Cold Lake also applied for intervenor status in the judicial review. The Court noted that, for standing as an intervenor, a party must demonstrate a potential adverse effect on its rights or interests. The Court applied the two-step test under Rule 2.10 of the Alberta Rules of Court, considering whether Cold Lake’s participation was necessary, whether its interests would be affected, and whether it would provide some expertise or fresh perspective. The Court found that Cold Lake’s participation was not necessary, would not assist the Court, and could complicate and delay the proceedings while undermining reconciliation.

Outcome

The Honourable Justice K.H. Oviatt dismissed both Cold Lake’s application to strike the judicial review and its alternative application for intervenor status. The Court concluded that Cold Lake was not directly affected by the judicial review and had no entitlement to be served or to participate as an intervenor. Whitefish is presumptively entitled to costs. If the parties cannot agree on costs, they may file written submissions, not exceeding five pages, within sixty days of the decision. No specific monetary amount was ordered or awarded in the decision. All facts, names, and dates are as stated in the decision dated August 28, 2025, under Docket 2303 16220, Registry: Edmonton, 2025 ABKB 499.