On February 18, 2026, the Alberta Court of King’s Bench (ABKB) issued its decision in Croy v Alberta, 2026 ABKB 116, allowing members of the Croy family to advance their claim for declaratory relief and damages against Alberta for the destruction of their family cabin, used to exercise Treaty and Aboriginal rights. TLE Law represented the Croy family in Alberta’s unsuccessful summary dismissal application.
Background
On April 21, 2021, Alberta Environment and Parks (“AEP”) officials removed some contents from the Croy family cabin (the “Cabin”) before destroying it in a controlled burn. The Cabin had existed on the shore of Bistcho Lake in northwestern Alberta in one form or another since 1988. It was originally built so that Ms. Croy could exercise her Treaty right to fish.
In 1995, Mr. Croy obtained an Alberta permit to use the Cabin for commercial fishing. For decades, Mr. and Ms. Croy used the Cabin to practice their respective vocations. After closing the commercial fishery in 2014, the province ordered the removal of the Cabin. Beginning in 2016, Ms. Croy notified Alberta that she continued to use the Cabin to practice her Indigenous culture and Treaty rights. Despite this, Alberta burned the Cabin to the ground in 2021 after Mr. Croy failed to comply with an Order to Vacate issued in July 2020.
In 2017, AEP met with Ms. Croy, a member of the O’Chiese First Nation in central Alberta, to discuss whether the Cabin qualified as a “Sundown Cabin”. Sundown cabins refer to the Supreme Court of Canada’s (“SCC”) decision in R v Sundown, [1991] 1 SCR 393 (“R v Sundown”), which recognizes the right to construct cabins or other shelters incidental to Treaty rights where the First Nation traditionally used remote camps as part of an expeditionary method to hunt, fish, and trap. In 2017, AEP established policy and guidelines for the recognition of Sundown cabins (the “Policy”). The Policy required contact between the relevant First Nation and AEP, and that the cabin be in a geographic area where the First Nation traditionally hunted, fished and trapped, and continues to do so.
At some point between 2017 and the Cabin’s destruction, Alberta determined that the Cabin did not meet its criteria for a Sundown cabin. It never notified Ms. Croy that the Policy existed or explained why AEP believed the Cabin was not a Sundown cabin.
Alberta Loses Its Application for Summary Dismissal
Alberta applied for summary dismissal on two broad assertions:
- Individual plaintiffs cannot make out claims to Indigenous and Treaty rights to a Sundown cabin, which is a communal right; and
- The claims are statute-barred.
The Honourable Justice McLeod found that there were legal and factual arguments that could not be dealt with summarily and dismissed Alberta’s application.
Standing for Individual Plaintiffs to Make a Claim Based on Collective Treaty Rights
Firstly, the Court rebuffed Alberta’s assertion that the Plaintiff clearly have no standing to seek compensation for the Cabin, given that any interests in a Sundown cabin are communal and cannot be pursued by individual members of a First Nation.
Relying on the SCC decision in Behn v Moulton Contracting, 2013 SCC 26 (“Behn”) and Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14, Justice McLeod found that Alberta’s interpretation of the jurisprudence was overly narrow and results in individuals being able to assert their Treaty and Aboriginal rights only when defending themselves from charges for exercising them, but being unable to be compensated by advancing claims as individual plaintiffs (para 41). In Behn, the SCC acknowledged that, although certain collective rights are held by the Aboriginal community, individual members can exercise them, or be assigned them, and that, in certain circumstances, individual members can assert Aboriginal or Treaty rights (paras 33-34).
The Test for whether the Cabin is a Sundown Cabin
A critical issue during the hearing was whether Alberta had correctly interpreted the SCC decision in R v Sundown.
Before destroying the cabin, Alberta concluded that Sundown cabins must be located on lands where the relevant First Nation traditionally used the expeditionary method to hunt and fish and continues to do so today – i.e., on the traditional territory of Ms. Croy’s First Nation (para 66). The Plaintiffs asserted that, like the right to hunt and fish in Alberta, the right to build Sundown cabins has been modified by the Natural Resources Transfer Agreement of 1930 (the “NRTA”). As a result, Sundown cabins can be built and used on all unoccupied Crown lands where members of the First Nation have the right to hunt, fish, and trap (para 69). Justice McLeod found that the question of whether Sundown cabins must be situated within a First Nation’s traditional territory was an issue for trial (para 71).
Alberta also concluded that Sundown cabins must meet certain requirements. They cannot be used by only one family; the cabin must have been originally established for the purposes of a Sundown cabin; and a cabin with storage sheds, aluminum boats, skidoos, a ladder, jerry cans, and other commercial fishing equipment is not the type of structure that can be sanctioned as a Sundown cabin (paras 72, 76). Justice McLeod found that while the SCC in R v Sundown had made a brief reference to the evolution of shelters from moss-covered lean-tos to log cabins as being appropriate, it did not set out a particular set of requirements that Sundown cabins must meet (paras 75 – 76).
Collateral Attack or Abuse of Process
The Court was also not convinced that the Plaintiff’s claim was an abuse of process or collateral attack. Alberta argued that its actions were lawfully taken under the Public Lands Act, RSA 2000, c P-40 (the “Act”), and that, as a result, the Plaintiffs had to judicially challenge these decisions before the Cabin was destroyed (para 43). Justice McLeod found that the Plaintiffs did not need a permit for a Sundown Cabin and, therefore, they were not seeking to restore any permit or otherwise reverse any decision under the Act (para 48).
Can the Public Lands Act Prevent a Claim of Trespass or Negligence to Treaty Rights
Alberta argued that s.59.22 of the Act prevents a claim for trespass or negligence founded on a breach of Treaty rights where the Crown decision was taken in good faith. The Plaintiffs argued that Alberta did not act in good faith when it failed to fully inquire into Ms. Croy’s Sundown cabin claim. Finding no prior jurisprudence on s.59.22 and the need for a full trial to determine the facts, Justice McLeod declined to strike the claim on this basis (para 53).
Key Takeaways
- Individual members of First Nations in Canada may have standing to bring claims, including for damages, against provincial or federal governments for violations of certain Treaty and Aboriginal rights, including those related to Sundown cabins.
- Any person who experiences losses (such as the destruction of a cabin or confiscation of personal property) in connection with a violation of their Treaty and/or Aboriginal rights is encouraged to seek legal advice.
- First Nations and their members may have Treaty and Aboriginal rights to construct and use Sundown cabins anywhere they have the right to hunt, fish, and trap. The Courts have yet to fully explore these rights.
- If questions arise concerning rights attached to Sundown cabins, First Nations and their members are encouraged to immediately seek legal advice. Policies and guidelines established by the Crown may not be entirely consistent with existing case law, and timely action may be required.
For more information, please contact Glenn Epp, Partner at TLE LLP (gepp@tlellp.ca), or Philippe Johnson, Associate at TLE LLP (pjohnson@tlellp.ca).