WHITEFISH LAKE FIRST NATION #128 v ALBERTA (MINISTER OF ENVIRONMENT AND PROTECTED AREAS)

This Appeal concerned whether a First Nation was a person “directly affected” by a Judicial Review Application such that it had to be served under Rule 3.15(3)(c). The underlying Judicial Review was brought by Whitefish Lake First Nation #128 (“Whitefish”) challenging Alberta’s refusal to negotiate access to lands within the Cold Lake Air Weapons Range for the exercise of Treaty and Aboriginal rights. Cold Lake First Nations (“Cold Lake”), which already had limited access to the Alberta portion of the range under a prior agreement, argued that it was directly affected and that the Judicial Review should be struck because it had not been served.

The Court affirmed that Rule 3.15 requires a Judicial Review Application to be served on the decision-maker and every person or body “directly affected” by the Application. Whether a party is directly affected is a fact-specific inquiry that turns on the nature of the remedy sought and the potential legal effect of the proceeding. The Court held that the Chambers Judge correctly applied this framework and properly examined whether the Judicial Review would determine or affect the legal rights of Cold Lake.

On the record before the Chambers Judge, the Court agreed that Cold Lake was not directly affected. The Judicial Review concerned Alberta’s refusal to negotiate with Whitefish regarding potential access to the lands and therefore focused on Whitefish’s alleged rights and Alberta’s decision. Although Cold Lake’s access agreement was referenced as part of the factual background, the Judicial Review did not seek interpretation of that agreement or determination of Cold Lake’s Treaty rights. The Court accepted the Chambers Judge’s finding that the terms of third-party agreements, including Cold Lake’s access arrangement, were not central to the issues raised by the Judicial Review.

The Court also rejected the argument that the concept of “directly affected” should be interpreted broadly whenever there is uncertainty. Relying on Julien v Alberta (Appeals Commission for Alberta Workers' Compensation), 2023 ABCA 81, the Court clarified that Julien did not expand the meaning of “directly affected”. Rather, it confirmed that the phrase must be given its ordinary meaning and applied to the facts of each case, while recognizing that applicants should err on the side of service where doubt exists because of the strict consequences of Rule 3.15.

Because the Chambers Judge’s conclusion that Cold Lake was not directly affected was a factual assessment entitled to deference and no reviewable error was shown, the Court dismissed the Appeal.