Executive Summary: Key Legal and Evidentiary Issues

• Indigenous Plaintiffs seek declaratory relief and damages against Alberta for destroying a cabin to which they claim a Treaty and Indigenous right, characterized as a "Sundown cabin."

• Alberta argued the claims should be struck or summarily dismissed because individual Plaintiffs cannot assert communal Indigenous and Treaty rights, and all claims are statute-barred under the Public Lands Act.

• Whether the cabin qualifies as a Sundown cabin under R v Sundown remains unresolved, with disputed issues around traditional expeditionary practices, geographic location outside the Plaintiffs' First Nations' territory, and the cabin's original commercial fishing purpose.

• Unresolved jurisprudence exists on whether individual First Nations members have standing to pursue claims grounded in collective Treaty and Aboriginal rights without formal assignment from their nations.

• Alberta's good faith in destroying the cabin is contested, as the province did not communicate its Sundown cabin policy or determination to the Croys at any time prior to this litigation despite being aware of Ms. Croy's Treaty claims.

• The Court dismissed Alberta's application in its entirety, finding genuine triable issues that cannot be resolved through summary judgment, and awarded costs to the Plaintiffs.

The facts of the case

Eileen Croy, a member of the O'Chiese First Nation located northwest of Rocky Mountain House, AB, on lands that form part of Treaty 6 territory, along with her son Cameron Beaverbones (also a member of O'Chiese First Nation) and her grand-niece Kim Borle (a member of the Beaver First Nation on Treaty 8 territory), brought an action against His Majesty the King in Right of Alberta before the Court of King's Bench of Alberta. The dispute centred on the destruction of a cabin near Bistcho Lake in Treaty 8 territory in northern Alberta, close to the Northwest Territories. Ms. Croy claimed that she and her spouse, Albert Croy (not a party and not Indigenous), originally built a cabin near the lake in 1988 for the purposes of residential and Treaty fishing, with the knowledge and approval of the nearby Dene Tha' First Nation at the time. In 1995, Alberta Forestry, Lands and Wildlife (which became Alberta Environment and Parks or "AEP") granted Mr. Croy a disposition allowing him to build and use a cabin near the lake for commercial fishing, and Ms. Croy claims she and Mr. Croy moved their original cabin to the place near the lake that fit within the disposition. Mr. Croy held a provincial licence permitting him to commercially fish on the lake and, as part of the disposition, made a statutory declaration that he would not "use or allow this cabin to be used for any purpose other than that of commercial fishing."

The cabin's history and Alberta's involvement

Ms. Croy claims the original cabin was destroyed by fire in 2004, and she and Mr. Croy built another cabin (the "Cabin") with assistance from others. In March 2005, the 1995 disposition was replaced by a new disposition for the same purpose on public land near the lake. The 2005 disposition did not include a statutory declaration from Mr. Croy regarding the Cabin. The disposition stated it was for commercial fishing purposes and further stated the affected lands were not to be used for a residence, guiding, or outfitting services. Ms. Croy claims that for years, Mr. Croy engaged in commercial fishing, and she engaged in fishing pursuant to her Indigenous heritage, culture, and Treaty rights, and they both used the Cabin for these purposes. The other Plaintiffs also claim they used the Cabin as part of their Indigenous heritage, culture, and Treaty rights. When Alberta ceased all commercial fishing in the province in 2014, the Plaintiffs claim they continued to use the Cabin following this cessation as part of their Indigenous heritage, culture, and Treaty rights. In 2016, AEP wrote to Mr. Croy and three other persons who previously held commercial fishing dispositions near the Cabin, asking them all to submit plans for the removal and disposal of their cabins and associated items. Mr. Croy did not respond or submit a plan. In December 2016, Alberta cancelled Mr. Croy's disposition, and the cancellation letter again asked for a reclamation plan, to which Mr. Croy again did not respond.

The Sundown cabin claim and Alberta's policy

In June 2017, Mr. Croy met with a representative of AEP, and they discussed the possibility that Ms. Croy, as a member of the O'Chiese First Nation with associated Treaty status who used the Cabin for fishing, may qualify as a claimant to the Cabin as a "Sundown cabin." Sundown cabins refer to the Supreme Court of Canada's decision in R v Sundown, [1999] 1 SCR 393, which recognized the right to cabins or other shelters incidental to Treaty rights to hunt and fish where the traditional practices of a First Nation included expeditionary hunting and fishing and use of remote camps and structures. AEP established guidelines and a policy with criteria for Sundown cabins, which included contact between the relevant First Nation and AEP. AEP determined, sometime prior to the Cabin's demolition, that the Cabin did not qualify as a Sundown cabin. None of the guidelines, policy, or the determination that the Cabin did not fit within them were conveyed to the Croys at any time prior to this litigation being commenced, and the policy and guidelines were not publicly accessible. In spring 2020, Alberta says they tried to contact the Croys by phone three times in two days and left a message asking them to call back. Alberta claims they were trying to get more information on Ms. Croy's Sundown claim, but there is no evidence that their questions were left in the voice message, and there is no evidence that AEP did anything to inform Ms. Croy about what, in Alberta's views or policy, can constitute a Sundown cabin. AEP issued an Order to Vacate in February 2020, requiring Mr. Croy to vacate the land, Cabin, and all associated structures, debris, and personal items, but that Order was paused due to COVID-19. AEP issued a new Order to Vacate in July 2020, requiring Mr. Croy to notify AEP of the removal of his structure and belongings by March 31, 2021. In September 2020, the Dene Tha' First Nation advised the Province that it was concerned about infringements on and interferences with its claimed Treaty rights resulting from cabins on the lake. At various times throughout this process starting in 2016, the Croys consistently informed Alberta and its representatives that Ms. Croy wanted to continue using the Cabin pursuant to her Treaty rights. On April 21, 2021, AEP's compliance division removed some contents from the Cabin and other structures, and destroyed the Cabin through controlled burning.

Alberta's grounds for summary dismissal

Alberta applied for summary dismissal or to strike the Plaintiffs' claims on several grounds. First, Alberta argued the Plaintiffs lacked standing because Indigenous and Treaty rights are communal and cannot be claimed by individuals, relying on Behn v Moulton Contracting, 2013 SCC 26, and the collective nature of rights described in Sundown. Second, Alberta relied on section 59.22 of the Public Lands Act, RSA 2000, c P-40, to argue that this section bars the Plaintiffs' claims entirely, as it provides that no action lies against the Crown for damages resulting from any order or decision made in good faith under the Act. Third, Alberta argued the action constituted a collateral attack or abuse of process because the Plaintiffs did not challenge the orders issued which required the Cabin to be removed or destroyed. Fourth, Alberta submitted the Cabin could not qualify as a Sundown cabin because the Plaintiffs did not assert that their First Nations' traditional practices included expeditionary hunting or fishing which required the use of shelters, the Cabin's location was nowhere near the traditional hunting and fishing territories of the Plaintiffs' First Nations, the Cabin was built and used as a commercial fishing and family cabin, and its structure did not conform to the appropriate shelter for a Sundown cabin as observed by the SCC in Sundown.

The Court's analysis of standing and collateral attack

Justice K.A. McLeod examined each of Alberta's grounds. On standing, the Court noted that the Supreme Court of Canada in Behn explicitly stated it could not make a definitive statement regarding when individuals may assert Aboriginal or Treaty rights, and that the Behn case was not the case in which to attempt to do so. The SCC acknowledged that "in appropriate circumstances, individual members can assert certain Aboriginal or Treaty rights" and that "despite the critical importance of the collective aspect of Aboriginal and Treaty rights, rights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour." The Court found it did not read the jurisprudence as having reached the conclusion that claims founded in communal rights cannot be pursued by individuals exercising those communal rights, and that such a conclusion would be an overly narrow interpretation that would result in individuals being able to assert their Treaty and Aboriginal rights only when defending themselves when charged for exercising them, but unable to be made whole by advancing claims as individual plaintiffs. On collateral attack, the Court distinguished the case from Behn, noting that Mr. Croy — to whom the Orders to Vacate were directed — is not Indigenous, is not a Plaintiff, and asserts no Treaty right, while none of the Plaintiffs need a permit for a Sundown Cabin and they do not seek to restore any permit or the ability to fish commercially.

Crown immunity and the Sundown cabin analysis

Regarding Crown immunity under the Public Lands Act, the Court observed that it was unaware of any decisions that had considered this provision, and unaware of a court's assessment of a statutory Crown immunity provision in the context of asserted section 35 related rights under the Constitution. The Court noted existing authority for the proposition that provincial laws cannot (with some exceptions) interfere with Treaty rights, and for the idea that Crown immunity provisions cannot prevent constitutional review, leaving open the issue of whether the PLA can immunize Alberta from Treaty rights claims. The Court also found that whether Alberta acted in good faith in destroying the Cabin was itself a disputed factual matter unsuitable for resolution on a summary dismissal application. On the Sundown cabin question, the Court found triable issues on each of Alberta's sub-arguments: the evidence regarding historical expeditionary practices, while not readily apparent, could not be conclusively rejected at this stage, and the Court noted that the specific allegation of insufficient pleading and evidence regarding historical practice was not part of the Amended Application for dismissal; existing case law such as R v Pierone, 2018 SKCA 30, supported the possibility that Treaty rights could be exercised in a different Treaty area through the Natural Resources Transfer Agreement; the origin of the Cabin for commercial fishing did not determine whether the Plaintiffs could establish their right to safeguard the Cabin as incidental to their Treaty rights to hunt and fish; and the brief description of an appropriate shelter in Sundown did not create a particular requirement for the structure of other Sundown cabins. On the honour of the Crown, fiduciary duty, and duty to consult, the Court found that given the triable issues on whether the Cabin is a Sundown cabin, it would be problematic to dismiss on these bases, as the Cabin's destruction may constitute a breach of the Crown's obligations if the Cabin were established as a Sundown cabin at trial.

Ruling and outcome

The Court dismissed Alberta's application to strike or dismiss the Plaintiffs' claims. Costs are payable to the Plaintiffs — Eileen Croy, Cameron Beaverbones, and Kim Borle — as the successful parties on this application. The Court directed that if the parties cannot agree on costs, they can submit argument on costs not exceeding five pages within 60 days. No exact amount of costs or damages was determined at this stage, as the matter is to proceed to a full trial where the substantive issues — including whether the Cabin qualifies as a Sundown cabin, whether the Plaintiffs have standing as individuals exercising collective Treaty rights, and what remedies may be available — will be resolved.