June 5, 2015

No attacks on statutory decisions via Aboriginal title actions: Ominayak v. Penn West Petroleum Ltd.


The Lubicon Lake Nation filed two separate actions asserting their aboriginal rights and title over an area that included an area where Penn West was granted approvals for oil production. One action was filed against the Crown asserting Aboriginal rights and title and seeking a declaration that all licenses, permits, and leases granted by Alberta in a certain area (the “Crown Action”) were illegal, void, and had no legal effect. Another action was filed against Penn West which, inter alia, sought a declaration that Alberta’s approvals for oil production were illegal owing to the Lubicon Lake Nation’s title and rights, and also for a finding of trespass and interference with Aboriginal rights in two parcels of land that were a part of the Crown Action.

Penn West applied to strike Lubicon Lake Nation’s statement of claim in the action brought against it on the basis that it was an abuse of process, given the identical claims made in the Crown Action, and in the alternative, a collateral attack on approvals granted to Penn West by Alberta for oil production on the subject lands.

The court rejected the argument that the actions amounted to an abuse of process given the causes of action were not the same and the defendants were different.  However, the court decided that the Lubicon Lake Nation’s claim that the approvals for Pen West’s oil and gas licenses were invalid amounted to a collateral attack. The court noted that the Nation took no issue with these approvals during its consultations with Penn West.

The court held that Lubicon Lake Nation’s claim for Aboriginal rights and for private wrong-doings with respect to its asserted Aboriginal rights could continue but that the portions of the claim which challenged Alberta’s approval of the oil and gas licenses to Penn West were to be struck. The court expressed its concerns that allowing such a collateral attack would allow for certain mischief, including allowing a Nation to ignore the judicial review process by stating no concern at the consultation stage, only to later invalidate the approval by claiming Aboriginal title. The court suggested that legal and economic uncertainty could result if a regulatory approval process could be later “hijacked” by aboriginal rights claims.

Ominayak v. Penn West Petroleum Ltd., 2015 ABQB 342

Lisa C. Fong, Michael Ng, and Siddharth Akali