Action No AC IN THE COURT 1 OF APPEAL OF ALBERTA

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1 Action No AC IN THE COURT 1 OF APPEAL OF ALBERTA IN THE MATTER OF THE METIS SETTLEMENTS ACT, BEING C.M-14.30F THE STATUTES OF ALBERTA AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL ORDER #9 OF THE LAND ACCESS PANEL OF THE METlS SETTLEMENTS APPEAL TRIBUNAL DATED JANUARY 28,1998 Between: PADDLE PRAIRIE METlS SETTLEMENT and ARTHUR CHALIFOUX - and - Applicants BERNICE RIDSDALE and THE METlS SETTLEMENTS APPEAL TRIBUNAL Respondents MEMORANDUM OF LAW SUBMITTED ON BEHALF OF THE APPLICANTS FOR LEAVE TO APPEAL APPLICATION SCHEDULED FOR JULY 14,1998 ACKROYD, PIASTA, ROTH & DAY Barristers and Solicitors 1500, Jasper Avenue Edmonton, Alberta T5) 359 Karin E. Buss Counsel for the Applicants ROONEY PRENTICE Barristers and Solicitors #501,407-8Ih Avenue S.W. Calgary, Alberta T2P 1 E5 Jim Prentice Counsel for the Respondent, the Metis Settlements Appeal Tribunal Bernice Ridsdale Box 87 Paddle Prairie, Alberta TOA 2W0 Respondent

2 Action No AC IN THE COURT OF APPEAL OF ALBERTA IN THE MATTER OF THE METIS SETTLEMENTS ACT, BEING C.M-14.30F THE STATUTES OF ALRERTA AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL ORDER t9 OF THE LAND ACCESS PANEL OF THE METIS SETTLEMENTS APPEAL TRIBUNAL DATED JANUAltY 28,1998 Between: PADDLE PRAIRIE METIS SETTLEMENT and ARTHUR CHALIFOUX - and - Applicants BERNICE RIDSDALE and THE hletls SETTLEMENTS APPEAL TRlBUNAL Respoadeats MEMORANDUM OF LAM' SUBMITTED ON EEHALF OF FOR LEAVE T O APPEAL APPLICATION SCHEDULED FOR ACKROYD, PIASTA, ROTH & DAY Barristers 2nd Solicitors 1530, 1066; Jasper Avenue Edmonton, Alberta T5J 3S9 Karin E. Buss Counsel for the Applicants ROONEY?RENTICE Barristers and Solicitm #Sol, Avenue S.W. Calgary, Alberta T2P 1 E5 Jim Prentice Counsel for the Respondent, the Metis Settlenlents Appeal Tribunal Bernice Ridsdale Box 87 Paddle Prairie, Alberta TOA 2W0 Respondent

3 TABLE OF CONTENTS 1. INTRODUCTION... Page 1 II. GROUNDS OF APPEAL... Page 2 Ill. FACTS... Page3 A. THE TRIBUNAL'S JURISDICTION... Page 3 B. C. FACTS RELATED TO THE SURFACE RIGHTS COMPENSATION PAYMENTS ANDLAND TRANSFER... Page 3 FACTS RELATED TO AGREEMENT FORTRANSFER OF SECTION 33 BETWEEN CHARLIE CHALIFOUX AND JESSE RIDSDALE... Page 5 IV. POINTS OF LAW... Page 8 STANDARD OF REVIEW... Page 8 A. Did the Metis Settlements Appeal Tribunal Land Access Panel have jurisdiction to hear and render a decision with respect to the dispute referred to it by Bernice Ridsdale on November ?... Page 8 B(1) B(2) Did the Tribunal fail to apply to properly interpret and apply the applicable statutory instruments?... Page 1 1 Did the Board fail to take into account relevant considerations or vice versa or reach a conclusion unsubstantiated by the evidence?... Page 13 CONCLUSION... Page16 V. RELIEF SOUGHT... Page 18

4 Page 1 1. INTRODUCTION This is an application for leave to appeal a decision of the Metis Settlements Appeal Tribunal, Land Access Panel (hereinafter the "Tribunal") described as LAP Order No. 9. Leave is sought pursuant to s.204 of the Metis Settlements Act which provides for a right of appeal to the Court of Appeal from the Tribunal on questions of law or jurisdiction.

5 Page 2 II. GROUNDS OF APPEAL The Applicant seeks leave to appeal on the following questions of law: A. Did the Metis Settlements Appeal Tribunal Land Access Panel have jurisdiction to hear and render a decision with respect to the dispute referred to it by Bernice Ridsdale on November 7, 1 996? B. Did the Tribunal err in law in determining that Arthur Chalifoux transferred his right to compensation for surface rights to Bernice Ridsdale?

6 Page 3 Ill. FACTS A. THE TRIBUNAL'S JURISDICTION 1. On November 7, 1996 Bernice Ridsdale wrote a letter to the Metis Settlements Appeal Tribunal asking it to investigate Arthur Chalifoux's claim that he still had an interest in land, described in her letter as SW W5M, which she alleged to have purchased from Mr. Chalifoux on March 3, Letter from B. Ridsdale to H. Robinson dated November 7, 1996 Record filed by the Tribunal May 26, 1998, Schedule B. - a c d L, cc-ck A A hearing was held by the Tribunal on November 4, The parties present at the hearing included Bernice Ridsdale and her mother, Ernestine Ridsdale, Arthur Chalifoux and representatives of the Paddle Prairie Metis Settlement and Stealth Resources Ltd. 3. The Tribunal released a decision on January 28, 1998, referred to as LAP Order No. 9 by which the Tribunal ordered Stealth Resources to pay to Paddle Prairie Metis Settlement surface rights compensation from 1993 to 1996 and ordering that upon receipt of the compensation, it be paid by the Settlement to Bernice Ridsdale. The Order further declared that Bernice Ridsdale "is entitled to all ongoing compensation payments for the wellsite and access road in SE W5M as long as she remains an occupant of the affected lands". - /3&pz 7- L c c,o +,3 L>yL - yml1 - a&~- f2' , B. FACTS RELATED TO THE SURFACE RIGHTS COMPENSATIO~GAYM AND LAND TRANSFER 1. Arthur Chalifoux is a memberof the Paddle Prairie Metis Settlement and was the holder of an allotment of lands legally described as the south half of Section 33, Township 105, Range 24, West of the Fifth Meridian ("Section 33") on the Paddle Prairie Metis Settlement.

7 Page 4 2. In October, 1976 the Surface Rights Board granted a Right of Entry Order to Petrofina Canada Ltd. with respect to Section 33. Record, Schedule D. 3. A Compensation Order for surface rights granted to Petrofina Canada Ltd. under the Right of Entry Order was made on March 9, 1978 by the Surface Rights Board ordering Petrofina Canada Ltd. to pay specified compensation to Arthur Chalifoux and others. Record, Schedule D. 4. On November 1, 1990 the Metis Settlements Act, S.A. 1990, c.m-14.3 was proclaimed in force. This new legislation gave the Metis Settlements General Council ("General Council") fee simple title to the lands comprising the eight Metis Settlements in Alberta. It created a new system of land holding and land interests which could be held by the eight Metis Settlements in Alberta and their individual members. This new Act also created the Metis Settlements Appeal Tribunal which had jurisdiction inter alia over surface rights disputes on Metis Lands similar to the jurisdiction of the Surface Rights Board prior to November 1, Effective November 1, 1990 an agreement was entered into between General Council, Paddle Prairie Metis Settlement ("Paddle Prairie"), and Petro-Canada with respect to surface rights and compensation for surface rights to certain lands, including Section 33. This agreement was consented to by Arthur Chalifoux "as holder of an allocation" for the said, ~..,. -,: -25.' *- 7 - & or, 53 dated November 1, Record, Schedule B and D. 6. The lease superceded the previous Surface Right Entry Order and Compensation Order. Surface Rights Agreement, Article 33 Record, Schedule D.

8 Page 5 7. The Surface Rights Agreement provided that certain compensation would be payable to the occupant of the land, Arthur Chalifoux and all compensation would be paid by Petro- Canada directly to the Paddle Prairie Settlement Council who would then pay "any and all amounts claimed by MEMBERS, OCCUPANTS, or any other parties which may have a claim to compensation as a result of the granting of their rights under this agreement..." 8. Effective June 1, 1993 Petro-Canada assigned its rights under the Surface Rights Agreement to Stealth Resources Ltd. Assignment and Novation of Surface Rights, Agreement made June 1, Record, Schedule D. C. FACTS RELATED TO AGREEMENT FORTRANSFER OF SECTION 33 BETWEEN Arthur Chalifoux AND JESSE RIDSDALE 1. The parties agreed before the Tribunal that several years ago (approximately 10) a "handshake deal" was made between Arthur Chalifoux and Jesse Ridsdale (Bernice Ridsdale's brother) for the transfer of Arthur Chalifoux's interest in SE and SW 33 tojesse Ridsdale. There was no written agreement between the parties. LAP Order No. 9, pages 8 to 11. Record, Schedule A. 2. It appears from the course of dealings between the parties and the evidence of Arthur Chalifoux and Bernice Ridsdale, the original agreement contemplated that Jesse Ridsdale would pay for the land over time, in cash and in kind. 3. A handwritten list of payments was submitted on behalf of Mr. Chalifoux which listed yearly payments of variable amounts in cash or in goods received from Jesse Ridsdale for the

9 Page 6 years 1988 to 1990 and a cash payment by Ernestine Ridsdale of $1 00 in 1990 and the transfer of a truck from Bernice Ridsdale to Arthur Chalifoux in Handwritten schedule of payments Record, Schedule E. See also LAP Order No. 9, pages 9 and According to Mr. Chalifoux, the purchase price was $15,000 of which he received value in the amount of $14,300. According to Bernice Ridsdale, a total of $18,300 in cash or kind was paid. There is no evidence in the Record as to Bernice or Jesse Ridsdale's understanding of the amount of the purchase price. 5. On March 29, 1993, it appears that Arthur Chalifoux and Bernice Ridsdale signed a document entitled "Land lnterest Transfer" with respect to SW-33 on March 29, The document simply states "I hereby transfer to the Transferee the interest in the parcel of land shown herein". The interest shown is "an allotment". The Transferee is shown as Bernice Ridsdale. Metis Settlements Land Registry, Land lnterest Transfer Record, Schedule D. 6. On March 30, 1993 it appears that Arthur Chalifoux and Bernice Ridsdale signed another "Land lnterest Transfer" with respect to SE-33. Metis Settlements Land Registry, Land lnterest Transfer Record, Schedule D. 7. An excerpt from minutes, apparently of the Paddle Prairie Metis Settlement Council, with a handwritten date of April 7, 1993 indicate that the Council approved a Land Conversion with respect to SE and SW 33, converting Arthur Chalifoux's interest to an "allotment" for farming purposes (this appears to have been done pursuant to the Land Conversion Regulation which took effect with the new Metis Settlements Act, which will be described later in this BrieO. Record, Schedule D.

10 Page 7 8. The same minutes record a further resolution by which Council purported to approve the following land transfers: Arthur Chalifoux toernestine Ridsdale-SW & SW W5 Arthur Chalifoux to Bernice Ridsdale- NE & NW W5 9. It appears that on October 21, 1993 Arthur Chalifoux signed a document stating: I, Arthur Chalifoux, wish to retain the surface rights compensation rights to SE W5. 1 have transferred the improvements to Bernice Ridsdale, but not the compensation payments. Document entitled "Surface Rights Compensation" Record, Schedule D. 10. The Record contains a further excerpt of minutes, with a handwritten date of January 12, 1994 which record a resolution of Council to approve an application by Bernice Ridsdale for Metis title to SW & SE 33. Document entitled "Surface Rights Compensation" Record, Schedule D. 11. Copies of cheque requisitions included in the Record indicate that surface rights compensation was paid to Arthur Chalifoux by Paddle Prairie in the amount of $1,684 in 1994, 1995, and Record, Schedule D.

11 Page 8 IV. POINTS OF LAW STANDARD OF REVIEW 1. Pursuant to s. 204 of the Metis Settlements Act, an appeal lies from a decision of the Tribunal on a question of law or jurisdiction, after leave has been granted. 204(1) An appeal from a decision of the Appeal Tribunal on a question of law or a question of jurisdiction lies to the Court of Appeal after leave to appeal has been obtained. 2. We submit the standard for review on a leave to appeal application, is whether or not the Applicant can establish a reasonably arguable point of law or jurisdiction which could reasonably affect the result. Rendall v. Edmonton, [I9951 A.J. No.1182 (Alta. C.A.) at para. 2 FAB I]. A. Did the Metis Settlements Appeal Tribunal Land Access Panel have jurisdiction to hear and render a decision with respect to the dispute referred to it by Bernice I Ridsdale on November 7, 1996? 1. TheTribunal assumed jurisdiction to adjudicate thisdispute between Ms. Ridsdale and Mr. Chalifoux pursuant to Section 121 of the Metis Settlements Act. / LAP Order No. 9, page 6 Record, Schedule A /. 2. Section 121 gives the Tribunal jurisdiction to direct the Provinc~al Treasurer to pay the / sum of money which a mineral leaseholder or an operator faik to pay under a Surface Lease or a Surface Rights Order made by LAP. 1' i /' 3. For convenience, portions of Section 121 '/, i 121(1) If an existing mineral leaseholder or operator fails to pay money /'

12 Page 9 (a) (b) under a surface lease, or ordered to be paid by the Existing Lease Land Access Panel or the Land Access Panel, within 30 days of the date that it is due, the person entitled to receive the money may submit to the Land Access Panel evidence of the failure to pay.. (2) On receipt of satisfactory evidence of failure of the existing mineral leaseholder or operator to pay, the Land Access Panel may direct the Provincial Treasurer to pay out of the General Revenue Fund the amount of money to which the person is entitled [emphasis added]. ~ivision 7, Metis Settlements Act [TAB It is clear from a review of Division 7 of the Metis Settlements Act, that Section 121 is in reference to the powers of the Land Access Panel and the Existing Leases Land Access Panel to make Right of Entry Orders and Compensation Orders for persons holding mineral leases or operating projects related to the extraction of minerals from under Metis lands. These powers are similar in many respects to those exercised by the Surface Rights Board. 5. Section 189 of the Act sets out the Appeal Tribunal's jurisdiction. Generally, Section 189 gives the Appeal Tribunal jurisdiction over matters specifically referred to it under any enactment, including regulations and General Council policies and matters referred to it by consent of the parties. 6. Pursuant to subsection 189(l)(d), the Tribunal may also decide disputes between two individual members of a Settlement, where: All the parties involved in the difference or dispute agree in writing that the Tribunal should decide the matter. Metis Settlements Act, Division 3, s. 189(1) FAB 31

13 Page The Tribunal found that Stealth Resources Ltd. made is annual surface rights compensation payments for the years in question to the Paddle Prairie Metis Settlement, as required by the terms of the Surface Rights Agreement. LAP Order No. 9, Page 17 and 18 Record, Schedule A. 8. Accordingly, we submit that Section 121 could not be invoked by the Tribunal to give it jurisdiction in this matter, because there was no failure to pay money under a Surface Lease by the mineral leaseholder or operator (Stealth Resources Ltd.), as required by the plain wording of Section 121. Rather, this matter arises from a dispute as to the terms and conditions of the transfer of an interest in Metis lands. The Tribunal does not have jurisdiction over private dispute between two settlement members, without the written consent of both members, pursuant to subsection 189 (l)(d), and such consent was not provided by Mr. Chalifoux. B. Did the Tribunal err in law in determining that Arthur Chalifoux transferred his right to compensation for surface rights held by Stealth Resources to Bernice Ridsdale? 1. In the alternative, if the Tribunal did have jurisdiction, which we submit that it clearly did not, it lost that jurisdiction by erring in its interpretation and application of the law respecting the land interests of Bernice Ridsdale and Arthur Chalifoux. 2. In summary, the relevant facts are: (a) (b) (c) a verbal agreement was made between Arthur Chalifoux and Jessie Ridsdale approximately 10 years ago; Jessie Ridsdale did not appear before the Tribunal and did not give evidence with respect to the terms of that agreement or the compensation paid by him; Mr. Chalifoux testified that he signed the land transfer form transferring his interest in SE 33 and SW 33 to Bernice Ridsdale, at the request of Ernestine Ridsdale;

14 Page 1 1 Mr. Chalifoux testified hedid not know what the agreement was between Jessie Ridsdale and Bernice Ridsdale giving rise to her interest in the land; Mr. Chalifoux testified that he did not transfer his rights to receive compensation for the surface rights to Bernice Ridsdale or "the Ridsdales"; LAP Order No. 9, Pages 10 and 11 Record, Schedule A. on October of 1993, Mr. Chalifoux signed a statement that he did not wish to transfer his rights to the surface compensation; the purported transfer of Mr. Chalifoux's allotment to Bernice Ridsdale was made on March 29Ih and March 30", 1993; Mr. Chalifoux's land was not converted to an interest recognized by the Metis Settlements Act, as required by the Land Conversion Regulation until at least April 9, 1994, when the conversion was purportedly approved by Settlement Council; and the purported transfer of SE 33 was never approved by Settlement Council, although a transfer to Ernestine Ridsdale was purported to be approved also on April 9, B(1) Did the Tribunal fail to apply to properly interpret and apply the applicable statutory instruments? 3. Pursuant to Section 99 of the Metis Settlements Act, no right or interest can exist on Metis land except by provision of the Metis Settlements Act, under General Council Policy or a Settlement Bylaw passed in accordance with General Council Policy. 4. Under the Act, General Council Policies are binding on each settlement and prevail over the Metis Settlements Act or any other enactment which conflicts with the policy: s.226(5).

15 Page The land interest Conversion Regulation provides a mechanism for the conversion of "Certificates of Occupancy" which were issued under the former legislation (the Metis Betterment Act) to interests created under the new legislative regime. Failure to convert a land interest prior to June 30, 1995, results in extinguishment of the former interest. Alberta Reg , s.3, 4 [TAB Persons who did not have a Certificate of Occupancy under the former legislation are required to apply for an interest under the new legislative regime. Albeita Reg , s. 4 FAB Allotments may be granted to individual settlement members only by the Settlement Council, if an application is made and certain requirements are met. Alberta Reg , s. 9 [TAB 41. Metis Settlements General Council Land Policy, Section 2.6 DAB r?& W 8. Most importantly, the Conversion Regulation provided that:. 15. No allocation may be sold, transferred, or dealt with on or after November 1, 1991, except for the purpose of converting the allocation in accordance with this regulation. Alberta Reg [TAB "Allocation" is defined as: A right or interest, other than a Certificate of Occupancy, in a parcel granted under the former Act to a member of a settlement association under the former Act. Alberta Reg , s. 1 (a) [TAB &#&-VT bti Mr. Chalifoux had an allomt, not a Certificate of Occupancy under the former legislation, and therefore he was prohibited from transferring that interest to Bernice Ridsdale or anyone else after November 1, 1991.

16 Page Under the previous legislative regime, a transfer of land between Metis Settlement members was governed by Alta. Reg (repealed). The regulation was in effect at the time of the "handshake deal" between Mr. Chalifoux and Mr. Ridsdale and it prohibited the transfer of an allotment without the "consent and approval" of the Minister. There is no evidence on the record with respect to this consent and approval. Alta Reg , s.9 [TAB Accordingly, the transfer from Arthur Chalifoux to Bernice Ridsdale is invalid and should not have been relied upon by the Tribunal. 13. It appears from a review of the Tribunal's decision, the Tribunal was not aware of s.15 of the Land Conversion Regulation, or alternatively, was not aware of its relevance as there is no reference to s.15 in the decision. i_jxr.. L a- &*- / > 7 P; 3 d2 J.y4 vp,mr,. / T,,:.-,2r, 7,: B(2) Did the Board fail to take into a conclusion unsubstantiated by the evidence? /id-c &?A cu/., dd f- 14. In reaching its conclusion that Mr. Chalifoux had transferred to Bernice Ridsdale all of his interest in SE 33, including his rights to surface rights compensation, the Board took into account irrelevant considerations and had no relevant probative evidence to support this inference. 15. A statutory delegate's duty to take into account relevant considerations and act on relevant probative evidence is summarized by Lord Denning in the following excerpt from the case of in Re: Stalybridge:...Under this section it seems to me that the Court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute: or if he has taken into consideration

17 Page 14 matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical to the position when the Court has power to interfere with the decision of a lower Tribunal which erred in point of law. Re Stalybridge, Ashbridge investments Ltd. v. Minister of Housing, [I W.L.R (C.A.), cited in Halton Region Aggregate Products v. Ontario, [I No UAB With respect to the sufficiency of the evidence, a reviewing Court can interfere "where the evidence, viewed reasonably, is incapable of supporting a Tribunal's findings of fact". Toronto Board of Education v. O.S.S.T.F. (1997), 144 D.L.R. (4d) 385 at 399 (S.C.C.) citing Lester v. United Association ofjourneyman, [I S.C.R. 644 UAB 81 (note however that the court was enunciating a test for the "patently unreasonable" standard of review because it was dealing with a privative clause which is not present in this matter). 15. In the Tribunal's reasons for concluding that Arthur Chalifoux had transferred his rights to compensation under the November 1" Surface Rights Agreement, the Tribunal stated: The panel makes its decision that Bernice Ridsdale is entitled to B'd g' the compensation for SE 33-1 O2-24-W5M based on the principle ' A that the compensation payable for a well site runs with the land unless an agreement is reached between the parties which states otherwise. While the testimony provided that the hearing shows that the parties involved in the dispute may not have fully understood this principle, the panel hopes that its decision will help clarify the issue of compensation rights and land transfers. The panel decides that the land transfer form signed by Mr. Chalifoux in March, 1993 finalized the land deal for SE and transferred all of Mr. Chalifoux's interest in the lands, (including the well site compensation) to Bernice Ridsdale. Because there was no Bill of Sale for the land and the land transfer form did not place any restrictions on Bernice Ridsdale's interest in SE 33..., the panel has no evidence to show that Mr. Chalifoux is entitled to the compensation for the well site after he signed the land transfer form.

18 Page However, the panel finds that when Mr. Chalifoux signed the land over to Bernice Ridsdale in March, 1993, he lost any rights to claim further payment for the land. 17. It is clear from reviewing the Decision, that the Board looked to the "Land Interest Transfer" form to determine what was agreed between the parties. However, the Land Transfer form was not a Bill of Sale nor a substitute for a Bill of Sale. It contained no reference whatsoever to the terms and conditions of the agreement. The agreement was between Mr. Chalifoux and Mr. Jessie Ridsdale, and the agreement was not reduced to writing. The only possible relevant evidence with respect to the terms and conditions upon which Mr. Chalifoux agreed to transfer his interest in his land, is the testimony of Mr. Chalifoux, and Mr. Jessie Ridsdale, who was not present at the hearing. There is no evidence that Bernice Ridsdale was present when the "handshake" deal was made. 18. The Tribunal appeared to assume that a "written agreement" was necessary to carve out from the sale of the land a lesser interest such as the right to the compensation. The land transfer form did not include any provision for exempting out any interest from the transfer; or any other terms or condition of the sale _ 33t 2 '. J bd +" '- -7 flo r'4,,,'1 f'>, -L R pp.airl^ 19. It appears -P f om the Record that there was no evidence as to the extent of Bernice Ridsdale's interest in the lands; the documentary evidence shows her as the registered holder of Metis Title to SE 33 as of February, There is no evidence of the extent of the interest she acquired from her brother and whether she holds legal title in trust for her brother who appears to have made most of the payments for the land. 20. In summary, the only relevant evidence with respect to the terms and conditions of the agreement for the sale of Mr. Chalifoux's interest in SE 33, was the oral agreement between Mr. Jessie Ridsdale and Mr. Chalifoux. Ms. Ridsdale's understanding was not relevant, she was not a party to the agreement. The Tribunal's conclusion that it had "no evidence to show that Mr. Chalifoux is entitled to compensation for the well site after he signed the land transfer

19 Page 16 form" is erroneous as it disregards Mr. Chalifoux's testimony and appears to assume that the evidence must be in written form. TheTribunal furthererred by concluding Mr. Chalifoux had no rights to the land after the Transfer form was signed because (a) the transfer was invalid; 21.- We respectfully submit that the applicant has demonstrated a reasonably arguable question of law or jurisdiction which affects the validity of the Tribunal's decision. 22. Firstly, it is reasonably arguable that the Tribunal had no jurisdiction to determine the dispute between Mr. Chalifoux and Ms. Ridsdale, as the conditions required to invoke Section 121 of the Metis Settlements Act, which was relied upon by the Tribunal to clothe itself with jurisdiction, were not met. The holder of the surface access rights, Stealth Resources, had been making compensation agreements in accordance with the Surface Rights Agreement of November 1, There was no default in its obligations. Rather, the matter before the Tribunal was a private dispute with respect to the terms and conditions of the sale of certain interests in land, which requires theconsent of the parties to invoke the jurisdiction of the Tribunal. 23. Secondly, it is reasonably arguable that the Tribunal erred in determining that Mr. Chalifoux had transferred his rights to surface rights compensation to Ms. Ridsdale. The transfer agreement which the Board relied on to determine the extent of the interest, we submit is void because the Transfer was contrary to the prohibition against transfers contained in Section 15 of the Land Interest Conversion Regulation, which was not referred to by the Tribunal.

20 Page Thirdly, the Tribunal based its decision on an unreasonable inference of fact based upon irrelevant considerations. We submit the Board misdirected itself in determining what constituted relevant evidence for the purpose of deciding the terms and conditions of the agreement by Mr. Chalifoux and Mr. Ridsdale. Rather than looking to the terms and conditions of theagreement between Arthur Chalifoux andjesse Ridsdale, thetribunal looked to the (invalid) Transfer form between Arthur Chalifoux and Bernice Ridsdale to determine what was agreed to by the parties with respect to surface rights compensation. It also had no evidence as to the extent of Bernice Ridsdale's interest in the land.

21 Page 18 V. RELIEF SOUGHT 1. The Applicant respectfully request that leave to appeal be granted from the decision of the Metis Settlements Appeal Tribunal Land Access Panel, Order No. 9. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Estimated Time for Argument: 1.3 hrs.

22 AUTHORITIES OF THE APPLICANT 1. Rendallv. Edmonton, [I9951 A.J. No.1182 (Alta. C.A.) at para Division 7, Metis Settlements Act. 3. Metis Settlements Act, Division 3, s. 189(l). 4. Alberta Reg. 362/91, s. 3, 4 5. Metis Settlements General Council Land Policy, Section Alta Reg. 110/60, s Re Stalybridge, Ashbridge Investments Ltd. v. Minister of Housing, [I W.L.R (C.A.), cited in Halton Region Aggregate Products v. Ontario, [I ). No Toronto Boardof Education v. O.S.S. J.F. (1 997), 144 D.L.R. (4d) 385 at 399 (S.C.C.) citing Lester v. United Association oflourneyman, [I S.C.R. 644.