The Plaintiff, Stoney Nakoda Nations (“SNN”), commenced an Action for trespass and conversion of petroleum, natural gas, and related hydrocarbons (“PNG”) which they claimed were properly theirs. SNN argued that various transfers of PNG to Canadian Pacific Railway (“CPR”) and CPR’s wholly owned subsidiary, which is now Encana, were either invalid or for inadequate consideration. The Defendants, Encana and CPR, brought an Application for Summary Dismissal. Encana argued that the claims were brought out of time, that it cannot be a trespasser on its own property, and that SNN’s claims fail because of Encana’s indefeasibility of title. CPR’s Application for Summary Dismissal was on the same grounds, and any interest it had in the lands was wholly transferred to Encana, and therefore CPR had no interest in any of the PNG at issue in the Action. Further, any claim for damages against CPR was out of time and thus statute-barred. SNN argued that what was being sought by CPR and Encana was, in effect, an extinguishment of Aboriginal Treaty Rights. Therefore the Applicants bore the onus of proving that there was a clear and plain intent by the Crown to extinguish SNN’s Aboriginal Treaty Rights in the PNG.

Jeffrey J., in considering Rule 7.3, noted that Summary Judgment can be granted if there is no merit to the claim. “No merit” means that, even assuming the accuracy of the position of the non-moving party as to any material or potentially decisive matters, the non-moving party’s position has no merit in law or in fact. Justice Jeffrey noted that another way to explain the concept of merit is that, in order for the non-moving party’s case to have merit, there must be a genuine issue or a potentially decisive material fact in the case which cannot be summarily found against the Respondents on the record. The mere assertion of a position by the Respondent in a Pleading or otherwise, or the mere hope of the non-moving party that something will turn up at Trial, will not suffice for a position to have merit. This is distinguished from the test under Rule 3.68, which involves deciding “whether there is any reasonable prospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed”.

Based on the record before the Court, Jeffrey J. dismissed the claim as against CPR. Jeffrey J. also found that SNN had actual knowledge that certain parties had claimed ownership of the PNG in issue by 1982 at the latest. As such, the Action against CPR was summarily dismissed as it was statute barred and without merit.

Regarding SNN’s claim as against Encana for the recovery of in situ PNG, Jeffrey J. held that Encana had not met its burden to show that the Crown had intended the alienation of the PNG at issue to CPR such that SNN’s Aboriginal Rights were extinguished. Consequently, the issue could not be decided on a summary basis, and Encana’s Application was denied. Jeffrey J. also found that SNN had raised sufficient doubt as to whether the transfer from CPR to Encana’s predecessor was for sufficient consideration such that it was not beyond doubt that the defence had merit. Jeffrey J. noted that the determination of indefeasibility of Encana’s title called for a complex determination of legal issues, intertwined with various degrees of social, historical, legislative and corporate facts. Justice Jeffrey concluded that, in such cases, a full Trial is required.