On March 21, 2017, Alberta enacted the Public Lands Administration (Exercise of Rights) Amendment Regulation, O.C. 106/2017, which creates explicit exemptions for the exercise of Treaty rights from various permitting and other restrictions in the Public Lands Administration Regulation, AR 187/2011.
The Public Lands Administration Regulation, AR 187/2011 attracted significant opposition from First Nations when it was developed in 2011 in large part because it did not distinguish the exercise of Treaty or Aboriginal rights from other types of uses when creating new permitting requirements and restrictions on the use of Crown lands. In fact, it purported to treat the exercise of Treaty rights as “recreational uses”.
Sixteen Treaty 6, 7 and 8 First Nations initiated coordinated litigation in the Alberta Court of Queen’s Bench alleging that Alberta had failed to adequately consult with them before enacting the Public Lands Administration Regulation, that provisions of the regulation unjustifiably infringed their Treaty rights and that Alberta lacked jurisdiction to enact those provisions. The lawsuit sought declarations from the Court that the problematic provisions are of no force and effect in relation to the exercise of Treaty rights.
This new regulation enacted by Alberta on March 21, 2017 was part of a settlement agreement reached between the Government of Alberta and the First Nations in that litigation. The Public Lands Administration (Exercise of Rights) Amendment Regulation is significant for resolving that lawsuit.
More broadly, the Public Lands Administration (Exercise of Rights) Amendment Regulation is significant because it creates the first explicit exemption for Treaty rights in an Alberta land use regulation.
Clayton Leonard and Mark Gustafson represented many of the First Nations in the litigation that led to this outcome.