George Gordon First Nation v HMQ in Right of the Province of Saskatchewan and Canada (AG), 2020 SKQB 90

Application dismissed. The Government of Saskatchewan was not subject to a duty to consult with the First Nation regarding further mineral dispositions, as this was satisfied with the processes stipulated in the Treaty Land Entitlement agreement.

Indigenous Law Centre – CaseWatch Blog

George Gordon First Nation [“GGFN”] initiated this action by statement of claim, naming as defendants Her Majesty the Queen in Right of Saskatchewan [“Saskatchewan”] and Her Majesty the Queen in Right of Canada [“Canada”]. It claimed various relief, including an interim and permanent injunction against the defendants from granting further mineral dispositions in the Jansen Area or Evaporite Area, and ten billion dollars in damages. Where an Entitlement Band requests acquisition of Crown minerals, the Ministry places a temporary freeze on the minerals pending its review of the request. If approved, the freeze will continue to allow the Band time to acquire the surface rights. This freeze period can continue for up to three years.

This application had a long and complex history, but it had the benefit of case management by an experienced justice of this Court. The parties involved in this application are sophisticated and represented by experienced and able counsel. To determine if the summary judgement process was suitable to dispose of this matter, the Court answered three questions in the affirmative: 1) can the judge to make the necessary findings of fact; 2) can the judge to apply the law to the facts; and 3) if this is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v Mauldin, 2014 SCC 7). This matter was determined suitable for summary judgment. A trial was not required to determine the issues.

The allegation is that both Saskatchewan and Canada had and have a duty to consult with GGFN before Saskatchewan makes any mineral disposition on lands which could be selected by GGFN to satisfy its treaty land entitlement. Canada and Saskatchewan argue there was, and is, no duty to consult. Saskatchewan also argues that the GGFN Treaty Land Entitlement agreement [“TLE”] was intended to conclude the dispute and barred any further claims, including this one.

Canada had a duty to consult with and, where proved, accommodate GGFN and other TLE Bands with respect to land claims under Treaty No. 4. This was done through treaty land entitlement negotiations and agreements, including the GGFN TLE. Saskatchewan had no corresponding duty to consult under Treaty No. 4. Saskatchewan’s obligations under the TLE were to Canada, not GGFN.

Canada and Saskatchewan satisfied any duty to consult through the negotiations leading to the TLE Framework Agreement and, in the case of GGFN, the negotiations resulting in the GGFN TLE. If Saskatchewan had a duty to consult with GGFN about Crown mineral dispositions, that duty was satisfied by its practice of providing information to TLE Bands. GGFN’s claim of a duty to consult that extended to both notice of any applications and a right to supersede those applications went beyond any required consultation and accommodation. This would amount to a veto which the courts have rejected.

Even without a duty to consult, the honour of the Crown would still apply to Saskatchewan’s implementation of the GGFN TLE. Saskatchewan’s practices were fair and balanced. The honour of the Crown, which did apply, was respected. GGFN received the payments to which it was entitled from Canada and was able to obtain within the prescribed period its shortfall acres and other land, with minerals.

The claim of GGFN against Saskatchewan is therefore dismissed. Its claim against Canada was based on a duty of Canada to compel or assist GGFN to enforce its claim against Saskatchewan. The foundation for this claim is lacking. Canada does not exercise supervisory jurisdiction over the provinces with respect to the exercise of their constitutional authority. Nor did the GGFN TLE provide a contractual basis for Canada to compel Saskatchewan to provide GGFN with the requested notice of mineral dispositions and right of first refusal. GGFN’s claim against Canada was premised on a breach of duty by Saskatchewan. Since the claim against Saskatchewan is dismissed, there is no basis for a claim against Canada.



Jim Shot Both Sides v Canada, 2019 FC 789

Claim allowed in part. A First Nation signatory to Treaty 7 filed a claim in 1980. Breaches of treaty obligations only became actionable with the passage of the Constitution Act, 1982. Canada is liable for the breach of treaty, but all other claims are time-barred. 

Indigenous Law Centre – CaseWatch Blog

In 1877, Treaty 7 was made between Canada, the tribes of the Blackfoot Confederacy, the Stoney, and the Sarcee Indians. Treaty 7 promised the Blood Tribe and each of the others, a reserve. The Blood Tribe reserve is at issue in this matter. It is set out in Treaty 7, however, that location was changed by agreement between the Blood Tribe and Canada.

Canada did two surveys of the area that was to become the Blood Reserve. The first was done in 1882 [“1882 Survey”] and the second was done in 1883 [“1883 Survey”]. The Blood Tribe asserts that the 1882 Survey, at law, created a reserve and the reduction of 102.5 square miles by the 1883 Survey required that it surrender that land as is provided for in The Indian Act, 1880. The Blood Tribe gave no such surrender. It therefore submits that it is entitled to that land or compensation for the loss of it.

Canada pleads that this action is time-barred by virtue of the Limitations Act. The Blood Tribe submits that Canada’s breach of its Treaty obligations to the Blood Tribe only became actionable in 1982 with the passage of the Constitution Act, 1982. The Blood Tribe commenced this action by Statement of Claim filed in 1980.

The Court found that a reserve for the Blood Tribe was created prior to 1883. The reserve that was set apart for them is that laid out by the 1882 Survey. It could not be reduced in size without obtaining a surrender from the Blood Tribe. There is no evidence how Canada arrived at the 650 square mile reserve created by the 1882 Survey. It appears to be based on a Blood Tribe population of 3250. Absent evidence as to how Canada arrived at the population figure it appears to have used, and given that the Court’s finding that the actual population was 3550, it is concluded that Canada failed to fulfill its treaty obligation.

The material facts as set out in the original Statement of Claim are that the Blood Tribe was a party to Treaty 7, that under the Treaty the Blood Tribe was entitled to a reserve of a size to be determined based on the Treaty Land Entitlement process [“TLE”], that Canada provided a reserve, but that the reserve provided was not of the required size under the TLE. The Blood Tribe sought a declaration that it is entitled to additional lands, or in the alternative, damages. These are the material facts that touch on the claim of breach of treaty. They are few and straightforward.

Paragraph 5(1)(g) of the Limitations of Actions Act provides that an action for breach of treaty must be commenced within six years after the cause of action arose. It may seem odd, but here the Blood Tribe commenced this action two years before the cause of action arose. It did so because it pleaded the action as if it were a breach of contract claim. As result of the view of the Supreme Court of Canada that treaties are not contracts (R v Sundown, [1999] 1 SCR 393; First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58), it has turned out that the claim of the Blood Tribe is not one for breach of contract but rather is a claim for breach of treaty.

The Blood Tribe since commencing this action has been the beneficiary of the entrenchment of treaty rights into the Constitution Act, 1982. Canada has not put forward any arguments on the temporal application of the Constitution Act, 1982 to suggest that it would not apply to an ongoing action. For these reasons, the claim of the Blood Tribe for breach of the TLE promise in Treaty 7 is not time-barred.

For the reasons above, the claim of the Blood Tribe is allowed, in part. The Court finds that Canada is in breach of the TLE formula in Treaty 7 in regards to the size of the Blood Reserve. The Plaintiffs were entitled under the TLE formula to a reserve of 710 square miles, whereas the current Reserve is 547.5 square miles. Canada is liable to the Blood Tribe for this breach of Treaty. All other claims are dismissed as time-barred.