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LIMITATION OF ACTIONS - Time - When time begins to run

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Appeal by the Stoney Tribal Council (Council) from an order of a case management judge summarily dismissing its action against the Canadian Pacific Railway (CPR). The Council sought an order directing CPR to return in situ petroleum, natural gas and related hydrocarbons that belonged to the Stoney Nakoda Nations. Between 1893 and 1917, Canada had transferred to CPR portions of the Stoney Nakoda Nations’ reserve lands for railway purposes. CPR received title to the lands and in 1917 was issued a certificate of title to the mines and minerals underlying the lands. The Stoney Nakoda Nations surrendered their petroleum, natural gas and mining rights in respect of their reserve lands in 1940. The surrender did not mention the railway lands. At the time of the railway construction, the Indian Act stated that reserve lands had to be surrendered in order to be transferred. Canadian Pacific Oil and Gas purchased CPR’s mineral lands in 1963 and 1969. Encana was its successor corporation. Between 1960 and 1982, the Stoney Nakoda Nations made inquiries to Canada and CPR regarding the grant of the railway lands. The case management judge concluded that the Stoney Nakoda Nations were alive to the possibility of an issue as to the ownership of the mineral rights by 1971. In March 1981, an unsigned draft of the Band Council Resolutions reaffirmed that the mineral rights underlying the CPR railway right-of-way within the Stoney Reserve boundaries were never surrendered to the CPR and remained the property of the Stoney Indian Band. A signed resolution dated from April 1981 did not refer to the mines and minerals. However, the case management judge held that by April 1981 there was some knowledge within the Stoney Nakoda Nations of the issues with the grant of the railway lands to CPR. The present action against Canada and CPR was commenced in 1999. A predecessor to Encana, PanCanadian Petroleum Limited, was added as a defendant in 2001. In granting CPR summary judgment, dismissing the Council’s claim, the case management judge found there was no merit to the claim for the return of the in situ petroleum, natural gas and related hydrocarbons by CPR because CPR did not currently have title to them. Either CPR had transferred title to Canadian Pacific Oil and Gas, or it never had title in the first place. He also found that the claims against CPR were statute-barred under the two-year and six-year limitations periods stipulated by ss. 4 and 51 of the provincial Limitation of Actions Act. Specifically, the appellant knew or ought to have known about the material facts giving rise to the cause of action in 1965, at the earliest, or in 1982, at the latest.

HELD: Appeal dismissed. The Council’s claim for the return of in situ petroleum, natural gas and hydrocarbons from CPR had no prospect of success. The case management judge did not err in finding that the Council’s claim was statute-barred given that, at very latest, the Stoney Nakoda Nations discovered their claim for potential damages against CPR by 1982, well outside the applicable limitation period. The dismissal of the Council’s claim against CPR did not give rise to a risk of inconsistent verdicts in relation to its claims against Encana and Canada. The case management judge’s conclusion that the appellant’s claims against CPR were statute-barred did not require him to make factual findings that could bind the trial judge. Nor did he make a binding determination on the nature of CPR's interest in the original grant with respect to mines and minerals.

Stoney Tribal Council v. Canada, [2017] A.J. No. 1390, Alberta Court of Appeal, M.S. Paperny, T.W. Wakeling and S.J. Greckol JJ.A., December 18, 2017. Digest No. TLD-January152018009