Executive Summary: Key Legal and Evidentiary Issues

• Cold Lake First Nations appealed a chambers judge's decision that it was not "directly affected" by Whitefish Lake First Nation #128's judicial review application against Alberta.

• Whitefish sought access to the Cold Lake Air Weapons Range for exercising treaty and aboriginal rights, but Alberta refused to negotiate, citing limited space and an existing arrangement with Cold Lake.

• Alberta's refusal was challenged as unreasonable, inconsistent with section 15 of the Canadian Charter of Rights and Freedoms, section 35 of the Constitution Act, 1982, and a breach of the honour of the Crown and the duty to consult.

• The central procedural issue was whether rule 3.15(3)(c) of the Alberta Rules of Court required Whitefish to serve Cold Lake as a party "directly affected" by the judicial review.

• References to the Cold Lake Access Agreement were found to be part of the factual background only, not central to the judicial review or its outcome.

• No reviewable error was identified by the Court of Appeal, and the appeal was dismissed.

The dispute over access to the Cold Lake Air Weapons Range

The case arose from a dispute involving access to the Cold Lake Air Weapons Range, a military training area straddling the Alberta-Saskatchewan border. The Range is controlled by Canada, but the land is owned by each province. Cold Lake First Nations has had limited access to the Alberta portion of the Range lands since 2003.

Whitefish's request and Alberta's refusal

In 2022, Whitefish approached Canada about obtaining access to the Range lands for the purpose of exercising treaty and aboriginal rights. Canada expressed an openness to negotiating access but advised that granting access would require Alberta's consent. Whitefish contacted Alberta. Alberta refused to negotiate, advising Whitefish it would not consider any new requests to access the Alberta portion of the lands. While Alberta acknowledged access was provided to Cold Lake, it stated that access had been provided "in the context of Alberta's and Canada's relations with that specific First Nation approximately 20 years ago." Alberta said it did not anticipate expanding access, as there was "only limited space and time when access for non-military purposes can occur."

Whitefish's judicial review application

In 2023, Whitefish applied for judicial review of Alberta's refusal to negotiate, arguing it was unreasonable, inconsistent with section 15 of the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982, and constituted a breach of the honour of the Crown and Alberta's duty to consult. Whitefish did not serve its originating application on Cold Lake.

Cold Lake's motion to strike

In 2024, Cold Lake applied for an order striking Whitefish's application for judicial review on the basis that Whitefish had failed to serve it, contrary to the requirement in rule 3.15(3)(c) of the Alberta Rules of Court, Alta Reg 124/2010, that an originating application for judicial review must be served on every person or body directly affected by the application. Cold Lake argued it was "directly affected" by the judicial review application because it was the only First Nation with an access agreement for the Alberta lands, the judicial review raised issues about whether the lands had been "taken up," and the judicial review might raise issues regarding or impacting the interpretation of its access agreement.

The chambers judge's decision

The chambers judge denied the application, holding the judicial review did not "directly affect" Cold Lake for the purposes of rule 3.15(3)(c), as Alberta's decision related to "bilateral negotiations between Whitefish and Alberta" regarding the rights and entitlements of Whitefish only, not Cold Lake. While the Cold Lake Access Agreement was part of the factual background and context, it was not central to the judicial review. The chambers judge also concluded that the references by Whitefish and Alberta to Cold Lake and to the Cold Lake Access Agreement were simply part of the factual background and context, and not central to the decision or the judicial review. She further held that the record does not support that Whitefish served either Alberta or Canada as signatories to the Cold Lake Access Agreement, with Alberta named as the decision maker, and Canada named as the leaseholder.

The Court of Appeal's ruling

Cold Lake appealed the chambers judge's decision, arguing that the chambers judge took an "incorrectly narrow" view of the words "directly affected" by failing to appreciate that a direct effect could include "the legal and practical implications" on Cold Lake of "the Court having to interpret the legal effect and nature" of its access agreement. Cold Lake also cited this Court's decision in Julien v Alberta (Appeals Commission for Alberta Workers' Compensation), 2023 ABCA 81, for the proposition that where there is a doubt as to whether a person or body may be directly affected, then that person or body will be considered "directly affected" for the purposes of Rule 3.15(3)(c). The Court of Appeal found that Julien did not broaden the meaning of "directly affected"; rather, it reiterated that the words "directly affected" are to be given their ordinary meaning, applied to the particular facts of each case. The Court noted that the chambers judge comprehensively reviewed the law on rule 3.15(3)(c), correctly noted that the question of whether a particular person or body is "directly affected" by a judicial review application is "highly fact dependent," and was owed deference in her assessment. As Cold Lake had not identified any reviewable error, the appeal was dismissed. The successful party in this proceeding was Whitefish Lake First Nation #128. No exact monetary amount was ordered, granted, or awarded, as the matter concerned a procedural question regarding service requirements under the Alberta Rules of Court.