APPEAL WATCH: MNS v Saskatchewan (Environment) on Land Claims and Judicial Review

The Supreme Court of Canada (“SCC”) is set to hear an appeal out of the Saskatchewan Court of Appeal (“SKCA”) on a decades-long Métis land claim proceeding through a judicial review application in the case of Métis Nation – Saskatchewan v Saskatchewan (Environment), 2023 SKCA 35 [MNS]. 

Facts

Under s 35 of the Constitution Act, 1982, the treaty rights of Aboriginal peoples of Canada, including the Métis peoples, are recognized and affirmed. For decades, the Métis Nation of Saskatchewan (“MNS”) asserted that among such rights are title over parts of northern Saskatchewan and the right to hunt, fish, and trap for commercial purposes [MNS, para 6]. 

In 1994, the MNS brought an action against the province and Canada requesting for a declaration that they have existing Aboriginal rights and title within the claimed land [MNS, para 7]. Saskatchewan and Canada defended the action, denying that MNS ever had or now have the rights and title claimed [MNS, para 8]. Then, in 2005, the court ordered a stay of proceedings in the 1994 action, also providing that the plaintiffs would not be entitled to apply for a lift of the stay until they assured the immediate and full disclosure of documents requested by Saskatchewan – MNS never applied to lift the stay of proceedings [MNS, para 9]. In June 2010, Saskatchewan published a document titled “First Nation and Métis Consultation Policy Framework,” where they stated that they will consult with and accommodate, as appropriate, affected First Nations and Métis communities prior to decisions or actions that may adversely impact their rights. However, the document reasserts that Saskatchewan contests the MNS’ claim to Aboriginal title and commercial use of resources [MNS, para 10]. On September 16, 2020, MNS commenced a second action against Saskatchewan, seeking a declaration that the 2010 policy is invalid and that reliance on it as a basis for not consulting the Métis peoples for use of their claimed land is “inconsistent with the Crown’s duty of honourable dealing towards Indigenous peoples” under s 35 [MNS, para 11]. Saskatchewan responded by asserting that the policy is consistent with the Crown’s obligations and that the MNS have no credible right to the land claimed [MNS, para 12].

In addition to the 2020 Action which remains ongoing, in March of 2021, NexGen Energy Ltd. (“NexGen”) applied for permits to complete a field mineral exploration program on areas of the Métis claimed land [MNS, para 13]. Saskatchewan subsequently wrote to Métis groups to notify them that the duty to consult was triggered regarding their right to hunt, trap, and fish for food—not in relation to commercial purposes nor to the MNS’ claimed lands [MNS, para 13; 18]. Saskatchewan subsequently issued NexGen permits in July of 2021 [MNS, para 14]. MNS then issued its originating application in this case, a request for judicial review of the Minister’s decision to issue a permit claiming that Saskatchewan is ultra vires s 35. They also request declarations that Saskatchewan failed to engage in good faith consultations and to uphold the honour of the Crown [MNS, para 15]. Saskatchewan applied to strike the issues related to MNS’ claimed lands, and commercial claims under Rules 7-9(2)(b) and (e) of The King’s Bench Rules which allow for striking of a pleading that is scandalous, frivolous, or vexatious or is otherwise an abuse of process [MNS, para 18-19]. Specifically, they claimed that the declarations MNS seeks are vexatious and an abuse of process because the issues are already before the court, submitting that attempts to mitigate these issues in the context of a judicial review proceeding—“which is, by its very nature, a summary proceeding”—is not appropriate [MNS, para 19]. 

Judicial History 

At the Court of King’s Bench for Saskatchewan, the Chambers judge found that although no part of MNS’ application is vexatious, the application is an abuse of process because “it raises the same issues as in the 1994 and 2020 action,” and while the status of the 1994 action is open to question, the 2020 action is current and viable [MNS, para 20-21]. Similarly, the Chambers judge found that the originating judicial review application was not an appropriate procedure for the matter [MNS, para 22]. As such, the Chambers decision allowed MNS to proceed with its application but without any allegation that Saskatchewan breached a duty to consult on their claimed land and their commercial claims [MNS, para 23].

Issue 

Can MNS seek judicial review of the granted permits as an alleged breach of the duty to consult the Métis people about the impact of these permits on their claimed rights? [MNS, para 2]

Decision

To address the issue at bar, Leurer J.A., writing for a unanimous bench, identifies three sub-issues, asking whether (1) the order is interlocutory; (2) the inclusion of the struct paragraphs is an abuse of court processes; and (3) the originating application is an appropriate commencement document for MNS’ claim [MNS, para 25]. 

The Chambers’ Order is Final not Interlocutory 

Saskatchewan maintains that the order under appeal is interlocutory and so the SKCA is without jurisdiction [MNS, para 26]. Leurer J.A. identifies a distinction between final and interlocutory orders: the former is defined as orders that “if allowed to stand, finally dispose of the rights of the parties,” while the latter is defined as “one made during the progress of an action or other proceeding that relates to some intermediate matter at issue…not to the ultimate matter in issue” [MNS, para 27]. Under these definitions, he identifies the Chambers’ order as final, since the effect of the decision is to preclude MNS from mounting a meaningful challenge to Saksatchewan’s granting of permits to NexGen in alleged violation of the duty to consult [MNS, para 28]. He mounts this finding in various cases where the SCC finds the duty to consult to arise in various contexts, including those where the Crown is contemplating taking action that can adversely affect claimed but unproven Aboriginal rights as in this case [MNS, para 30; 33]. Consequently, the SKCA rejects Saskatchewan’s argument that the Chamber’s decision was interlocutory, and affirms their jurisdiction.

Declarations Sought are Distinct and so not Abuse of Process 

Saskatchewan takes issue with specific paragraphs in MNS’ originating application that seeks declarations that the province failed to uphold the honour of the Crown by failing to consult with MNS on the grounds that it raises the same issues as the 1994 and 2020 actions, and so is an abuse of process [MNS, para 44-45]. Leurer J.A. again disagrees, finding that although superficially the 1994 and 2020 actions relate to the same underlying issue, the proceedings are not identical [MNS, para 47]: the previous actions relate to the existence of Aboriginal title or rights, while the current proceeding relates to the Crown’s actions in the face of asserted title or rights [MNS, para 49].  As such, the SKCA finds that the origination application brings forth distinct legal issues and is thereby not an abuse of process.  

MNS’ Originating Application is Permitted under the King’s Bench Rules 

Since the Chambers judge determined that there were material facts in dispute in the 2020 action, he found the summary determination before ineffectual, and so struck MNS’ application [MNS, para 56]. Leurer J.A. took issue with this finding as an error of law, citing Rule 3-49(1)(g) which allows for an action to commence by an originating application where the remedy claimed is “the judicial review of a decision, act or omission of a person or body.” MNS’ request for judicial review of the Minister’s granting of permits falls under this category, not under Rule 3-49(1)(i) which allows for such originating applications “with respect to any matter where it is unlikely that there will be any material facts in dispute.” The question of material facts in dispute is not a threshold inquiry, but one of many considerations under The King’s Bench Rules. Moreover, even in instances where the originating application may involve contested facts, the remedy is not to strike the action but to direct that appropriate procedures apply to it [MNS, para 60]. As such, the SKCA finds that the Chambers judge erred in striking MNS’ originating application, citing Rule 3-49(1)(g).

Analysis 

The SKCA’s finding that an asserted but unproven claim to Aboriginal rights triggers the government’s duty to consult in contexts where government actions may adversely impact the asserted right is inline with SCC jurisprudence as established in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73. In Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, the SCC reaffirms this principle at para 33, stating that the duty to consult “derives from the need to protect Aboriginal interests while land and resource claims are ongoing.” The reasoning is easy to follow: the existence of a claimed right is divorce from the duty to consult, and it is precisely in uncertain situations of the former where the latter needs to be triggered.  

The question before the SCC, whether they choose to address it or not, will come down to what constitutes ongoing land and resource claims. While the Constitution is clear that Aboriginal land rights exist, the borders and boundaries of such rights continue to be litigated decades after patriation. As of 2024, there are thousands of Treaty Land Entitlement claims—claimed lands that the Crown failed to provide Aboriginal peoples under a treaty—across Canada, with around 90% stemming from Manitoba and Saskatchewan. Tensions arising from these claims stretch across the country, from Wet’suwet’en peoples in British Columbia who are opposing the Coastal Gaslink pipeline to the Mi’kmaq peoples in Nova Scotia who are expanding their Aboriginal title claim. Does the duty to consult expand to these claims? The jurisprudence says yes, which is hopeful but not a solution to such a broad and deep problem. Even if the SCC reaffirms the government’s obligation to uphold the honour of the Crown and consult with Aboriginal groups in the context of adverse impacts on claimed rights, the solution lies not in originating documents and judicial orders but in negotiated bills and acts—hopefully, the former can inspire the latter. 

Conclusion 

In Métis Nation – Saskatchewan v Saskatchewan (Environment), the SKCA found that the duty to consult is triggered when asserted but unproven Aboriginal rights are adversely impacted by government decisions and policies. Specifically, the SKCA found that MNS’ originating application, a judicial review of the Minisiter’s decision that bypassed consultation, is a permitted course of action. The SCC, in addressing this case, will have to outline the boundaries of what constitutes an ongoing Aboriginal right claim to which duty to consult is owed. 

This article was edited by Ariel Noel Montana.