In broader and ongoing litigation between the parties, the Beaver Lake Cree Nation (“BLCN”) claimed, among other things, that the Federal and Provincial Crown had significantly infringed its Treaty rights by providing authorizations for activities which adversely affected BLCN’s traditional hunting, fishing, and trapping territories. In the present Application, the Attorney General for Alberta applied for advice and direction from the Court, and a Declaration that BLCN’s claims were restricted to events that had already occurred before May 14, 2008, when the Action was commenced by BLCN. For its part, BLCN contended that actions taken by the Crown after 2008 were already included in its claim.

Justice Jerke considered the purpose and intention of the Alberta Rules of Court to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost‑effective way. On his reading of the Statement of Claim, Jerke J. found that BLCN had claimed for past and future damages arising from actions already taken by the Crown. It did not seek relief for harm caused by actions not yet taken as of the time of filing.

However, the Court noted that using the “linear, settler-based litigation model” to resolve a claim for Treaty infringement was “much like trying to fit a square peg into a round hole”. In that regard, Justice Jerke noted that Treaties contain ongoing rights and obligations and, in particular, BLCN’s claim related to allegations of breach of an ongoing fiduciary duty, breach of a claimed ongoing management obligation, and the effect of the accumulation of a host of activities. In light of this, the Court found that the actions alleged were not “frozen in time” as of the date of the Statement of Claim. They included all actions taken by the Crown on an ongoing basis. Jerke J. further noted that interpreting the Statement of Claim in this way avoided serial litigation, which would be contrary to Rule 1.2 and the obligation to engage in meaningful reconciliation.

In the result, Justice Jerke provided the direction in response to the Application that the Statement of Claim included actions of the Crown that took place after the Statement of Claim was filed. The Court further granted BLCN leave to amend its Statement of Claim.