The Alberta Court of Appeal refused leave to appeal a decision of the Metis Settlements Appeal Tribunal which had dismissed a challenge to the actions of a Metis Settlement Council on the grounds that the challenge had not been filed within the time limits established by the Metis Settlements Act, RSA 2000, c M-14.

Kib Hogenson, a member of the Kikino Metis Settlement, died in 2006 holding a Metis Title to a quarter section of land within the settlement.  Mr. Hogenson had also held Provisional Metis Title to an adjacent quarter section, but that provisional title had expired in July of 2005.  The deceased failed to file estate directions in relation to either parcel of land, and the Kikino Settlement Council assumed Land Trustee status with respect to them under the Kikino Settlement Land Policy.  The Council then applied to the Metis Settlements Land Registry to have title to the parcels transferred to the Kikino Metis Settlement, which was done on 30 September 2008.  The Settlement Council then subdivided the lands, granting a small house parcel to one Jason Thompson on 9 August 2010, and designating the remainder as the Kikino Game Preserve.

The applicant, Walter Pruden asserted a family relationship with Mr. Hogenson by “adoption” although that relationship was apparently unofficial and unclear.  Following Hogenson’s death, Pruden had been asked by the Kikino Settlement Council to look after the deceased’s farm and livestock, and he continued to harvest hay on part of the land until 2012 under an arrangement which required him to provide part of the hay harvest to the Game Preserve.  At two meetings of the Kikino Settlement Council in October of 2012, Pruden was informed that the Council intended to keep the land as a Game Preserve.  At the second meeting, on 10 October 2012, Pruden requested that the two quarter sections be “posted” so that he could apply to have it granted to him.  The Council refused this request, and informed Pruden of its refusal by letter dated 14 December 2012.

Pruden appealed to the Metis Settlement Appeals Tribunal.  The Tribunal found that Pruden had known of the Kikino Settlement Council’s decision to assume title to the parcels in 2008, or at the latest by 2010 when they had been subdivided.  Pursuant to the Metis Settlements Act, such a decision had to be appealed within 30 days.  The Tribunal exercised its discretion not to extend the appeal deadline.  It doubted whether a decision not to “post” land was appealable, but decided it did not have to determine that issue, since it was clear that Pruden had not acted within the appeal period whatever date might have been selected as the date of the decision.  Pruden applied for leave to appeal from the Tribunal’s determination.

At the commencement of his judgment on this leave application, Mr. Justice Watson observed that:

[1] The Constitution Amendment Act of Alberta, 1990, RSA 2000, c C-24, acknowledges that Metis people were present when the province came into existence and that the land set aside for their use is a “unique part of the history and culture of the Province”. Alberta expressed in that Act the policy that … the “Metis settlement land” is held by the Metis Settlements General Council under letters patent from the Crown.

[2] The Metis Settlements Act, RSA 2000, c M-14 (and the associated Metis Settlements Land Registry Regulation, AR 361/91), the Metis Settlements Land Protection Act, RSA 2000, c M-16, the Alberta-Metis Settlements Accord of July 1, 1989, the Metis Settlements Accord Implementation Act, RSA 2000, c M-15, and Resolution 18 of 1985, passed unanimously by the Legislative Assembly of Alberta, as of June 3, 1985, constitute an architecture of law in Alberta which gives effect to the policies expressed in the Constitution Amendment Act, notably the maintenance of the “land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta”.

[4] Within this legal framework … the Metis Settlements Appeal Tribunal, … has been empowered to serve the purposes of self-governance for Metis people of the province. …. Also within this legal framework is the Metis Settlement Land Registry and the office of the Registrar under the Metis Settlements Land Registry Regulation.

[6] In this context … the implementation of the land base policy … is done largely under the Land Policy. The Land Policy contains a carefully constructed system which balances the communal land rights and protections for Metis people generally, and for settlement populations in particular, as against reasonably asserted and assigned individual rights of access and use, with an element of individualized succession within families. The role of the Tribunal and the role of the Metis Settlement Land Registry are part of that system.

Watson J.A. further noted that:

[19] An appeal from a decision of the Tribunal, by operation of s 204, can only be taken on a question of law or jurisdiction. Furthermore, the question of law or jurisdiction must be important enough to engage the intervention of a panel of this Court in order to provide guidance not merely in the case here but more generally for the operations of the Tribunal, or for the broader public interest in the future. In practical terms, that usually means that the case cannot just be about the specific interest of a particular person. The disposition of that person’s case must raise some arguable issue of foundational importance, or must arguably have a precedential impact, or must operate in a way which arguably distorts the proper functioning of the Tribunal or of the method of land control governance that it represents.

Mr. Justice Watson was clearly concerned about the role which a tribunal should play on the hearing of a review from its own decisions.  In this case, the Kikino Settlement Council had not appeared on the Mr. Pruden’s application for leave to appeal.  Nor had the Metis Settlement General Council, nor the Metis Land Registry, although all three had been served with notice of the application.  Thus the only respondent before the Court was the Metis Settlements Appeal Tribunal.

The Tribunal did not consent to or oppose the grant of leave, but sought directions if leave were granted.  Nonetheless, Mr. Justice Watson noted that:

[22] …  This Court has described the role of tribunals as generally subject to what was called a ‘neutrality’ rule …. Whether the test of tribunal participation has become increasingly flexible or not, if the tribunal’s involvement is not necessary forensically, that speaks against advocacy participation ….
[23] The position of the Tribunal here was not a situation where the investigative or prosecutorial branch of an institution or administrative body could be distinguished from an adjudicative branch of the same institution or body, such that the investigative or prosecutorial office could act in opposition to the applicant without transgressing the neutrality rule….
[24] Howsoever disquieting the situation may be in some cases, the question whether a tribunal should argue the merits of its decision has no ‘one size fits all’ answer…. Northwestern Utilities and CAIMAW v Paccar of Canada Ltd, [1989] 2 SCR 983 flagged the central and competing concerns of impartiality and adequate adjudicative capacity. Paccar … was not unsympathetic to tribunal advocacy for the latter purpose.
[25] Another concern as to impartiality concern arises when a tribunal steps in to defend its decision. When a court allows an application for judicial review, it has a broad discretion in the selection and design of remedies …. It is often the case that the matter will be remanded to the same tribunal (if not the same people) for re-consideration, which may raise concerns of arbitrariness or even of reasonable apprehension of bias….
[26] Certainly, the usual practice is that counsel for tribunals refrain from taking an advocacy role, although occasionally one finds that counsel may overshoot despite that understood need for restraint…. On the other hand, counsel for a tribunal exceeding the topic of jurisdiction may be harmless in the end….
[27] Counsel for the Tribunal recited the history of the matter, and spoke to the scope of Tribunal jurisdiction thus staying within the boundaries of cases as above although the reference to the topic whether a right of appeal existed under s. 8 of the Land Policy for posting decisions was new. As in the Quebec case, it seems to me that the slight excess of the participatory rights of the Tribunal was harmless. All in all, I dwell on this problem in this case to urge the General Council to consider participating whenever it is apparent that an individual settlement council does not.

On the central issue in the case, Watson J.A. confirmed that limitation periods are driven by policy. Whether to grant an extension of time was clearly within the discretion of the Tribunal.  Consequently, a presumption of reasonableness as the standard of review applies. Regardless, in this case the Tribunal was correct in its timing calculus. While it had granted long extensions of time to hear claims in the past, those decisions did not create a precedent requiring the Tribunal to grant an extension to the applicant.

Regarding the question of whether the Kikino Settlement Council acted outside of its duties, Watson J.A. stated that the analysis would be entirely fact sensitive and therefore also within the Tribunal’s discretion. Watson J.A. concluded that:

[34] In the end, the decision of the Tribunal is reasonable on its face, and is not afflicted by arguable error of law that goes to the heart of the decision and is important to more than the applicant. The applicant did not re-start the clock by asking again twice in October, 2012 and in December, 2012, for the same relief. The applicant has not cited authority for the proposition that he was entitled in law to extend the time limit by the method of asking for the same relief repeatedly and then appealing the most recent refusal. That is particularly not a desirable position of law to inflict on the Tribunal’s role and discretion. So even if the extension of time was properly characterized as only being required back to October, 2012, the Tribunal could reasonably refuse.

In the result, the application for leave to appeal was dismissed.


Kenneth J. Tyler

Other Author

Alexander C. Bjornson


Aboriginal Law