Saskatchewan (Attorney General) v. Pasqua First Nation

Saskatchewan (Attorney General) v. Pasqua First Nation
Court (s) Database
Federal Court of Appeal Decisions
Date
2016-04-29
Neutral citation
2016 FCA 133
File numbers
A-11-15
Notes
A correction was made on July 18th, 2017.
Reported Decision
Decision Content
Date: 20160429
Docket: A-11-15
Citation: 2016 FCA 133
CORAM:
PELLETIER J.A.
NEAR J.A.
GLEASON J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN AS REPRESENTED BY
THE ATTORNEY GENERAL OF SASKATCHEWAN
Appellant (Defendant)
and
CHIEF M. TODD PEIGAN ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE PASQUA FIRST NATION AND THE PASQUA FIRST NATION
Respondents (Plaintiffs)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA
(Defendant)
Heard at Regina, Saskatchewan, on November 10, 2015.
Judgment delivered at Ottawa, Ontario, on April 29, 2016.
REASONS FOR JUDGMENT BY:
NEAR J.A.
GLEASON J.A.
CONCURRING REASONS BY:
PELLETIER J.A.
Date: 20160429
Docket: A-11-15
Citation: 2016 FCA 133
CORAM:
PELLETIER J.A.
NEAR J.A.
GLEASON J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN AS REPRESENTED BY
THE ATTORNEY GENERAL OF SASKATCHEWAN
Appellant (Defendant)
and
CHIEF M. TODD PEIGAN ON BEHALF OF HIMSELF AND ALL OTHER MEMBERS OF THE PASQUA FIRST NATION AND THE PASQUA FIRST NATION
Respondents (Plaintiffs)
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA
(Defendant)
REASONS FOR JUDGMENT
NEAR AND GLEASON JJ.A.
[1] On September 15, 1874, at Fort Qu’Appelle, Saskatchewan, representatives of Queen Victoria and of various Cree and Saulteaux First Nations concluded Treaty Number 4. Among the promises made in Treaty Number 4 was the commitment by the Crown to provide the signatory First Nations with reserve land “of sufficient area to allow one square mile for each family of five, or in that proportion for larger or smaller families”. This promise was not fulfilled, and there was a shortfall in the amount of reserve land provided to Treaty Number 4 First Nations, including the Pasqua First Nation [the PFN], whose members, as represented by Chief Todd Peigan, are the respondents in this appeal.
[2] In 1992, the Crown in right of Canada [Canada], the Crown in right of Saskatchewan [Saskatchewan] and a number of First Nation signatories to Treaty 4 (and to Treaties 6 and 10) concluded the Saskatchewan Treaty Land Entitlement Framework Agreement among her Majesty the Queen in Right of Canada and the Minister of Indian Affairs and Northern Development and the Entitlement Bands and Her Majesty in Right of Saskatchewan [the Framework Agreement].
[3] The Framework Agreement is a comprehensive agreement that creates a framework for the fulfillment of the Crown’s outstanding obligations under Treaty 4 and the two other numbered treaties. It also provides for the subsequent conclusion of similar settlement agreements between Canada, Saskatchewan and First Nations with treaty land entitlement claims in Saskatchewan who did not sign the Framework Agreement. The PFN concluded such an agreement with Canada and Saskatchewan on September 30, 2008 [the PFN Settlement Agreement].
[4] Both the Framework Agreement and the PFN Settlement Agreement [together, the Agreements] provide that disputes arising under them will be referred to the Federal Court for determination. Sections 20.20 of the Framework Agreement and 20.19 of the PFN Settlement Agreement state in relevant part that:
… in the event the parties … are unable to agree on any matter, including a question of interpretation of any term, covenant, condition or provision of this Agreement, the determination of any such disagreement, and the enforcement thereof, shall be within the exclusive jurisdiction of the Federal Court of Canada.
[5] On June 17, 2014, the PFN commenced an action in the Federal Court, in which it named Canada and Saskatchewan as respondents, alleging that both Canada and Saskatchewan had violated their obligations under the PFN Settlement Agreement and that both had also failed to discharge their obligations to consult with the PFN regarding, in particular, the grant of a subsurface mineral lease in September 2010 for the Legacy Mining Project.
[6] Saskatchewan brought a motion to strike the PFN’s action as against it, arguing that the Federal Court does not have jurisdiction over Saskatchewan or over the subject matter of the PFN’s claim against Saskatchewan. On January 8, 2015, Justice Boswell of the Federal Court dismissed Saskatchewan’s motion in a short “speaking order” in which he held that section 20.20 of the Framework Agreement was sufficient to provide the Federal Court jurisdiction over the PFN’s claim against Saskatchewan, principally by virtue of the provisions of paragraph 17(3)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7 [the FCA]. This paragraph provides that the Federal Court has exclusive original jurisdiction to hear and determine any question of law, fact or mixed law and fact that the Crown and any person have agreed in writing would be determined by the Federal Court.
[7] Saskatchewan has appealed the Federal Court’s order to this Court and argues that, notwithstanding the attornment clauses in sections 20.20 of the Framework Agreement and 20.19 of the PFN Settlement Agreement, the Federal Court has no jurisdiction over Saskatchewan or over the subject matter of the PFN’s claim as against Saskatchewan.
[8] We disagree, and, for the reasons set out below, believe that the Federal Court possesses jurisdiction over the portions of the PFN’s claim that allege a breach of Saskatchewan’s obligations under the PFN Settlement Agreement. However, the portion of the claim, as currently pleaded, which alleges a violation by Saskatchewan of its duty to consult with the PFN with respect to the grant of the subsurface lease for the Legacy Mining Project fall outside the jurisdiction of the Federal Court. We would accordingly allow this appeal in part and, making the order that the Federal Court ought to have made, would strike the portions of the Statement of Claim that allege that Saskatchewan breached its duty to consult with the PFN with respect to this Project, providing the PFN with leave to amend this portion of the claim in accordance with these Reasons. Success being divided, we would propose that each party bear its own costs of this appeal and in the Federal Court.
I. Relevant Legislative Backdrop [9] To place the issues in this appeal in context, it is helpful to begin by reviewing the legislative backdrop to the Framework Agreement and PFN Settlement Agreement.
[10] Under section 109 of the British North America Act, 1867 (now the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3), the four provinces that came together to form Canada in 1867 were afforded the right to administer Crown lands and rights to natural resources and minerals situated in the provinces. However, when Manitoba, Alberta and Saskatchewan joined Confederation (in 1870 in the case of Manitoba and in 1905 in the case of Alberta and Saskatchewan), the newly-created western provinces were not granted the right to administer Crown land, nor were they given control over natural resources in the provinces (see Manitoba Act, 1870, S.C. 1870, c. 3, s. 30; Saskatchewan Act, S.C. 1905, c. 42, s. 21; Alberta Act, S.C. 1905, c. 3, s. 21).
[11] In 1930, Canada and the three prairie provinces reached a series of agreements, called the Natural Resources Transfer Agreements [the NRTAs], which transferred to the prairie provinces control over natural resources and provided them the right to administer Crown lands in the province, subject to certain exceptions. One of these exceptions involves outstanding treaty obligations to indigenous peoples. The NRTAs provide that Manitoba, Alberta and Saskatchewan could be required to transfer unoccupied Crown lands to Canada to satisfy outstanding treaty obligations. Paragraph 10 of the Saskatchewan NRTA provides in this regard that Saskatchewan:
… will, from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may, in agreement with the appropriate Minister of the Province, select as necessary to enable Canada to fulfill its obligations under the treaties with the Indians of the Province, and such areas shall thereafter be administered by Canada in the same way in all respects as if they had never passed to the Province under the provisions hereof.
Similar provisions are contained in the NRTAs applicable to Manitoba and Alberta.
[12] Parliament and the western provincial legislatures passed legislation to implement the NRTAs: Manitoba Natural Resources Transfer Act, S.M. 1930, c. 30; Manitoba Natural Resources Act, S.C. 1930, c. 29; An Act to ratify a certain Agreement between the Government of the Dominion of Canada and the Government of the Province of Saskatchewan, S.S. 1930, c. 87; Saskatchewan Natural Resources Act, S.C. 1930, c. 41; Alberta Natural Resources Act, S.A. 1930, c. 21; Alberta Natural Resources Act, S.C. 1930, c. 3. Thereafter, the British Parliament adopted the Constitution Act, 1930 (U.K.), 20-21 Geo. V, c. 26, to incorporate the NRTAs into the constitution. Section 1 of the Constitution Act, 1930 provides as follows:
The [NRTAs] are hereby confirmed and shall have the force of law notwithstanding anything in the Constitution Act, 1867, or any Act amending the same, or any Act of the Parliament of Canada, or in any Order in Council or terms or conditions of union made or approved under any such Act as aforesaid.
Les [CTRN] sont par les présentes confirmées et auront force de loi nonobstant tout ce qui est contenu dans la Loi constitutionnelle de 1867, ou dans toute loi la modifiant, ou dans toute loi du Parlement du Canada ou dans tout arrêté du Conseil ou termes ou conditions d’Union faits ou approuvés sous l’empire d’aucune de ces lois.
II. The Framework Agreement and the PFN Settlement Agreement [13] It was against the foregoing backdrop that the Framework Agreement and the PFN Settlement Agreement were negotiated.
[14] The Framework Agreement was signed in 1992 by the Prime Minister and the Minister of Indian Affairs and Northern Development, on behalf of Canada, by the Premier and the Minister responsible for the Indian and Métis Affairs Secretariat, for Saskatchewan, and by 23 Chiefs of various Indian Bands with unfulfilled treaty land entitlements in Saskatchewan. Their signatures were witnessed by the Chief of the Federation of Saskatchewan Indian Nations and the Treaty Commissioner of Saskatchewan.
[15] The Framework Agreement provides for the payment of monies [referred to as “Entitlement Monies”] by both Canada and Saskatchewan to trust funds to be set up on behalf of the signatory Bands (Article 3). The bulk of these funds are to be used to purchase land equivalent to the shortfall in reserve acreage owed to each Band under the treaties their forbearers signed with the Crown (ss. 4.01(a)(i), 4.01(b)). Excess funds may be used to purchase additional acreage or for other Band development purposes (s. 4.01(a)(ii)).
[16] The lands to be so purchased by the signatory Bands need not be contiguous to an existing reserve, and, indeed, the Framework Agreement specifically contemplates that purchased lands may be within an existing municipality (Article 9). Section 4.05(b) of the Framework Agreement contemplates that a Band desirous of purchasing Crown land advise Saskatchewan (in the case of provincial Crown lands) or Canada (in the case of federal Crown lands) of the lands it wishes to purchase, and Saskatchewan or Canada must respond to such requests within 90 days.
[17] The Framework Agreement provides that sale of Crown lands following receipt of such a request is governed by the principle of “willing seller/willing buyer” (s. 4.05(a)). Under section 4.06 of the Framework Agreement, Saskatchewan and Canada are bound to give “favourable consideration” to offers from the signatory Bands to purchase Crown lands. Once they have agreed to the sale, subject to certain exceptions, Canada and Saskatchewan are prohibited from selling the lands to third parties or granting third parties an interest in the lands for a period of 18 months (ss. 4.05(c) and (d)).
[18] Several exceptions to the foregoing obligations are recognized in the Framework Agreement; these include the designation of the lands as critical wildlife habitats under the applicable provincial legislation, the fact that the land a Band wishes to purchase is occupied by a third party, who has not given its consent to the sale of the land, or the designation of lands as being subject to a “Public Purposes Plan”, in which Saskatchewan sets out an intention to conserve or use Crown minerals located on or under the lands for the benefit of all or a substantial portion of the people of Saskatchewan (ss. 4.07, 4.08(a), 5.04(a)(iii)). Generally speaking, where an exception pertains, the lands need not be sold to one of the signatory Bands.
[19] The Framework Agreement contemplates that once a signatory Band purchases land and satisfactory arrangements have been made for dealing with third party interests in the land (in accordance with the detailed provisions set out in the Framework Agreement), the purchased lands will be surrendered by the Band to Canada. The Framework Agreement further contemplates that, subject to the provisions of the agreement, Canada will then set apart the lands so surrendered as additional reserve lands for the benefit of the Band [defined as an “Entitlement Reserve” in the agreement]. Under section 11.09 of the Framework Agreement, Saskatchewan is required to transfer to Canada all interests Saskatchewan might have had in the land so surrendered to Canada to ensure that the land set aside as an Entitlement Reserve is free of provincial Crown rights or encumbrances.
[20] Before any Entitlement Monies can be paid to a signatory Band, section 10 of the Framework Agreement requires that the Band ratify the Framework Agreement through the conclusion of a “Band Specific Agreement” (ss. 10.01(a), 22.01(a)). Each Band Specific Agreement must outline, among other things, the signatory Band’s shortfall acreage, the total amount of Entitlement Monies to be paid in trust to the Band pursuant to the Framework Agreement and any other provisions of specific concern having been the subject of negotiations between the Band and Canada. To take effect, a Band Specific Agreement must be ratified by Band Council Resolution and must subsequently be executed by Canada (ss. 10.01(a), 10.03).
[21] Section 10.02 of the Framework Agreement provides that other Bands may adhere to the agreement at a date subsequent to its conclusion by the original signatories, provided they have an outstanding treaty land entitlement under Treaties 4, 6, or 10 and provided they take the steps outlined in the Framework Agreement, which include the conclusion of a Band Specific Agreement in accordance with section 10.01(a).
[22] By virtue of the entitlements provided to the signatory Bands under the Framework Agreement, the Bands agreed in Article 15 to release Canada from all outstanding claims related to treaty land entitlement.
[23] In Article 16 of the Framework Agreement, Canada and the signatory Bands similarly released Saskatchewan from its obligations under section 10 of the Saskatchewan NRTA, contingent in part upon Saskatchewan’s compliance with the terms of the Framework Agreement. The provisions of Article 16 of the Framework Agreement are relevant to the issue of the jurisdiction of the Federal Court over the PFN’s claim and are therefore produced in their entirety. They provide:
CANADA AND ENTITLEMENT BANDS - FINALITY OF SETTLEMENT RESPECTING SASKATCHEWAN
16.01 FINALITY - CANADA AND SASKATCHEWAN:
(a) Canada, Saskatchewan and the Entitlement Bands agree that the financial and other contributions to be made by Saskatchewan pursuant to the Amended Cost Sharing Agreement and this Agreement are a means by which Saskatchewan shall fulfil its obligations under paragraph 10 of the Natural Resources Transfer Agreement with respect to the Treaty land entitlement of each Entitlement Band which signs a Band Specific Agreement.
(b) Canada and Saskatchewan acknowledge that an agreement to be entered into between Canada and Saskatchewan (as set out in Schedule 4) provides for the release and discharge of the obligations of Saskatchewan under paragraph 10 of the Natural Resources Transfer Agreement and that Canada and Saskatchewan agree to recommend to the Parliament of Canada and the Legislative Assembly of Saskatchewan, respectively, enactment of statutes ratifying and confirming the agreement.
16.02 RELEASE BY CANADA AND ENTITLEMENT BANDS:
(a) Canada and each of the Entitlement Bands hereby agree that, after ratification, execution and delivery of a Band Specific Agreement, as long as Saskatchewan is paying to Canada and the Treaty Land Entitlement (Saskatchewan) Fund the amounts required to be paid by Saskatchewan in respect of each of the said Entitlement Bands in accordance with this Agreement, and Saskatchewan has not failed, in any material way, to comply with its other obligations hereunder:
(i) the Superintendent General of Indian Affairs shall not request Saskatchewan to set aside any land pursuant to paragraph 10 of the Natural Resources Transfer Agreement to fulfil Canada's obligations under the Treaties in respect of that Entitlement Band; and
(ii) the Entitlement Band shall not make any claim whatsoever that Saskatchewan has any obligation to provide land pursuant to paragraph 10 of the Natural Resources Transfer Agreement.
(b) Notwithstanding subparagraph (a), Canada and each of the Entitlement Bands further agrees to forever release and discharge Saskatchewan, Her heirs, servants, agents and successors from all claims, obligations, promises, undertakings or representations made by Saskatchewan to Canada relating to Saskatchewan's obligations to assist Canada in fulfilling the Treaty land entitlement of such Entitlement Band, or their predecessors in title, pursuant to paragraph 10 of the Natural Resources Transfer Agreement from and after the earlier of:
(i) the date upon which such Entitlement Band reaches its Shortfall Acres Acquisition Date; or
(ii) the date upon which Saskatchewan has paid to Canada all amounts required to be paid by Saskatchewan pursuant to this Agreement in respect of such Entitlement Band.
[Emphasis in original]
[24] In addition to the legislation mentioned in Article 16, the Framework Agreement also contemplates the passage of other legislation aimed at giving effect to certain provisions of the agreement. By virtue of section 20.19(a), Saskatchewan agreed to present legislation in its Legislative Assembly on a variety of matters, including the transfer of mineral rights to the Entitlement Bands and the relinquishment of any residual interest in land set apart by Canada as an Entitlement Reserve. Pursuant to section 20.19(b), Canada agreed to present legislation in Parliament pertaining to matters including varying common law riparian rights and the creation of a Special Purpose Account to administer the Treaty Land Entitlement Fund in which Saskatchewan’s payments under the Framework Agreement are to be collected [referred to as the
“Treaty Land Entitlement (Saskatchewan) Fund”].
[25] The Framework Agreement provides that certain types of disputes arising under it are to be referred to arbitration (Article 19) and that all other disputes are to be referred to the Federal Court, under section 20.20, cited above. It is common ground between Saskatchewan and the PFN that the subject matter of the PFN’s claim against both Saskatchewan and Canada is not referable to arbitration.
[26] Finally, of note, section 21.01 of the Framework Agreement provides that Canada, Saskatchewan and the signatory Bands “will, in good faith, employ their best efforts to fulfil the terms of [the Framework Agreement] according to its true spirit and intent and that they will negotiate in good faith any further [agreement(s)] that are required in order to do so”.
[27] In material respects, the PFN Settlement Agreement is identical to the Framework Agreement, save that it was negotiated and signed by the PFN, Saskatchewan and Canada several years after the Framework Agreement was concluded. Due to its later conclusion, the PFN Settlement Agreement makes reference to the federal Claim Settlements (Alberta and Saskatchewan) Implementation Act, S.C. 2002, c. 3 and provides in section 20.24 that that Act applies to the PFN Settlement Agreement and its implementation.
III. The Legislation Passed to Give Effect to the Framework and PFN Settlement Agreements [28] Both Saskatchewan and Canada passed legislation further to the Agreements.
A. Federal Legislation (1) The Saskatchewan Treaty Land Entitlement Act, S.C. 1993, c. 11 [29] The Saskatchewan Treaty Land Entitlement Act, S.C. 1993, c. 11 makes provision for a bi-partite agreement between Canada and Saskatchewan to amend the Saskatchewan NRTA and also references the Framework Agreement and the subsequent Band Specific Agreements (like the PFN Settlement Agreement) that the Framework Agreement contemplates.
[30] In terms of the amendment of the Saskatchewan NRTA, the Saskatchewan Treaty Land Entitlement Act provides in section 3 that:
3 (1) The NRTA Amendment Agreement is hereby confirmed and shall take effect according to its terms.
3 (1) L’accord modifiant la CTRN est confirmé et prend effet conformément à sa teneur.
(2) If, either before or after the coming into force of this subsection,
(2) Est confirmé et prend effet conformément à sa teneur l’accord conclu — avant ou après l’entrée en vigueur du présent article — entre le gouvernement du Canada et celui de la Saskatchewan relativement à un accord conclu avec une bande indienne de cette province en règlement d’une revendication fondée sur des droits fonciers issus de traités, si les conditions suivantes sont remplies :
(a) an agreement is entered into with an Indian band of Saskatchewan in settlement of a treaty land entitlement claim on the same or substantially the same basis as the Framework Agreement, and
a) l’accord conclu avec la bande indienne est semblable ou identique à l’accord-cadre;
(b) in connection with the agreement referred to in paragraph (a), the Government of Canada and the Government of Saskatchewan enter into an agreement in the same or substantially the same form as the NRTA Amendment Agreement,
the agreement between the Government of Canada and the Government of Saskatchewan referred to in paragraph (b) is hereby confirmed and shall take effect according to its terms.
b) l’accord conclu par ces gouvernements est semblable ou identique à l’accord modifiant la CTRN.
[31] The “NRTA Amendment Agreement” is defined in section 2 of the federal legislation as meaning “the agreement to vary the [NRTA] entered into between the Government of Canada and the Government of Saskatchewan and set out in Schedule I”.
[32] Schedule I to the Saskatchewan Treaty Land Entitlement Act sets out the entire NRTA Amendment Agreement. In its introductory clauses, the NRTA Amendment Agreement recognizes the outstanding treaty land obligations owed to several Saskatchewan First Nations, notes Saskatchewan’s obligations in respect of them as set out in paragraph 10 of the Saskatchewan NRTA and references the conclusion of the Framework Agreement, its provision for subsequent similar agreements and their provision for release of Saskatchewan from its obligations under paragraph 10 of the Saskatchewan NRTA. The release language is incorporated into sections 2 and 3 of the NRTA Amendment Agreement, which provide in relevant part as follows:
2. Canada hereby agrees that the Superintendent General of Indian Affairs shall not request Saskatchewan to set aside any land pursuant to paragraph 10 of the Natural Resources Transfer Agreement to fulfil Canada’s obligations under the treaties in respect of any Entitlement Band..., that ratifies, executes and delivers a Band Specific Agreement (or in respect of the past, present and future members of such Indian Bands), as long as Saskatchewan is paying to Canada and the Treaty Land Entitlement (Saskatchewan) Fund the amounts required to be paid by Saskatchewan in respect of each of the said Entitlement Bands in accordance with the Framework Agreement and Saskatchewan has not failed, in any material way, to comply with its other obligations thereunder....
2 Le Canada convient que le surintendant général des Affaires indiennes ne demandera pas à la Saskatchewan de mettre des terres de côté aux termes du paragraphe 10 de la Convention sur le transfert des ressources naturelles pour remplir les obligations incombant au Canada en vertu des traités à l’égard […] des bandes ayant droit à des terres […], lorsqu’elles ratifient et signent un accord particulier (ou à l’égard des membres passés, actuels et futurs de ces bandes), pourvu que la Saskatchewan verse au Canada et au Fonds de règlement des droits fonciers issus des traités en Saskatchewan les montants à payer par celle-ci pour chacune de ces bandes, en vertu de l’accord-cadre, et pourvu que la Saskatchewan se conforme pour l’essentiel aux autres obligations que lui impose […] cet accord […].
3. Notwithstanding section 2 hereof, Canada further agrees that it will forever release and discharge Saskatchewan from all of its obligations pursuant to paragraph 10 of the Natural Resources Transfer Agreement in respect of each Entitlement Band...that has entered into a Band Specific Agreement;
3 Malgré l’article 2, le Canada convient en outre de libérer définitivement la Saskatchewan de toutes les obligations que lui impose le paragraphe 10 de la Convention sur le transfert des ressources naturelles à l’égard de chacune des bandes ayant droit à des terres […] lorsqu’elles concluent un accord particulier :
(a) in the case of any Entitlement Band, from and after the earlier of:
a) dans le cas de l’une ou l’autre des bandes ayant droit à des terres, à partir de la première des dates suivantes :
(i) the date upon which such Entitlement Band reaches its Shortfall Acres Acquisition Date; or
(i) la date à laquelle la superficie manquante de la bande sera acquise,
(ii) the date upon which Saskatchewan has paid all amounts required to be paid by Saskatchewan to Canada and the Treaty Land Entitlement (Saskatchewan) Fund pursuant to the Framework Agreement in respect of such Entitlement Band;...
(ii) la date à laquelle la Saskatchewan aura payé tous les montants qu’elle doit verser au Canada et au Fonds de règlement des droits fonciers issus des traités en Saskatchewan, en vertu de l’accord-cadre, pour la bande; […]
[33] It is common ground between the parties that Saskatchewan and Canada signed a Memorandum of Agreement in the same or substantially the same form as the NRTA Amendment Agreement further to the execution of the PFN Settlement Agreement to release Saskatchewan from its obligations under the NRTA in respect of the PFN. Such agreement falls within the purview of paragraph 3(2)(b) of the Saskatchewan Treaty Land Entitlement Act.
[34] Section 4 of the Saskatchewan Treaty Land Entitlement Act provides for the creation of the Treaty Land Entitlement (Saskatchewan) Fund, referred to in section 20.19(b)(iv) of the Framework Agreement, and for the transfer to the Fund of the monies payable by Saskatchewan and Canada under the Framework Agreement and subsequent settlement agreements, like the PFN Settlement Agreement.
[35] Section 7 of the Saskatchewan Treaty Land Entitlement Act specifically confirms the sections in the Framework Agreement which amend the common law as it applies to riparian rights. The Act states that the relevant sections of the Framework Agreement “are hereby confirmed”. They are also incorporated into Schedule II of the legislation.
(2) The Claim Settlements (Alberta and Saskatchewan) Implementation Act, S.C. 2002, c. 3 [36] The federal Claim Settlements (Alberta and Saskatchewan) Implementation Act applies to the PFN Settlement Agreement by virtue of paragraph 3(b) of the Act, which provides for its application to any settlement agreement that provides that it is subject to the Act. (As noted, the PFN Settlement Agreement contains such a provision in section 20.24.)
[37] The Claim Settlements (Alberta and Saskatchewan) Implementation Act details the process by which lands surrendered to Canada under the Framework Agreement or subsequent settlement agreements are to be set apart as reserves under the Indian Act, R.S.C. 1985, c. I-5. Of note, section 6 provides that an interest in lands identified by an Entitlement Band, but not yet set apart as a reserve, may be conditionally surrendered to the Crown for transfer to a third party. Subsection 6(5) further provides that such prospective surrenders are deemed to have been made under the Indian Act.
[38] Section 7 of the Claim Settlements (Alberta and Saskatchewan) Implementation Act allows Canada to grant third parties conditional interests in the lands to be set apart as reserve lands. Pursuant to subsection 7(3) of the Act, such conditional interests are deemed to have been granted under the Indian Act.
B. Saskatchewan Legislation [39] The Saskatchewan Natural Resources Transfer Agreement (Treaty Land Entitlement) Act, S.S. 1993, c. S-31.1 annexes the NRTA Amendment Agreement and provides in section 2 that this agreement “is to take effect according to its terms”.
[40] The Treaty Land Entitlement Implementation Act, S.S. 1993, c. T-20.1 provides that Saskatchewan shall not retain any residual interest (pertaining to minerals, waterways or land forming the bed of a waterway) in lands set apart as reserve land pursuant to the Framework Agreement or any subsequent Band Specific Agreements, except where Saskatchewan specifically retains such an interest or where Canada expressly acknowledges such a reservation.
C. Orders-in-Council [41] In addition to the foregoing legislation, Orders-in-Council were adopted by the Governor General in Council and by the Lieutenant Governor in Council to authorize the federal and Saskatchewan representatives to sign the Framework Agreement and the NRTA Amendment Agreement (P.C. 1992-1400, June 26, 1992, Weekly Listing of Federal Cabinet Orders in Council, Vol. 13, No. 19; Saskatchewan Order-in-Council O.C. 797/92, September 9, 1992), as well as the PFN Settlement Agreement and the Memorandum of Agreement concluded between Canada and Saskatchewan attached to the PFN Settlement Agreement (P.C. 2008-1665, September 13, 2008, Weekly Listing of Federal Cabinet Orders in Council, Vol. 29, No. 37; Saskatchewan Order-in-Council O.C. 406/2008, June 19, 2008).
IV. The Statement of Claim [42] As noted, the PFN advances two distinct types of claims in its Statement of Claim: allegations that Canada and Saskatchewan have breached their obligations under or in connection with the PFN Settlement Agreement and allegations that Saskatchewan and Canada breached their constitutional and other obligations to consult with the PFN when Saskatchewan granted a subsurface mineral lease to a third party in connection with the Legacy Mining Project.
[43] The latter claim is detailed in paragraphs 41 to 56 of the Statement of Claim. In this section, the PFN pleads that the subsurface mineral lease in question was granted in September 2010 (which pre-dates any of the PFN’s requests under the PFN Settlement Agreement to purchase provincial Crown lands). In this section of the Statement of Claim, the PFN further pleads that before the mineral lease was granted, Saskatchewan and Canada ought to have consulted with the PFN, in accordance with their constitutional and other obligations. However, the PFN makes no allegation in this portion of the Statement of Claim that the alleged failure to consult violated the PFN Settlement Agreement.
[44] In the balance of the Statement of Claim, after setting out the background to the Agreements, the PFN asserts that Saskatchewan and Canada breached their obligations under or in connection with the PFN Settlement Agreement, principally by refusing on multiple occasions to make provincial Crown lands available for sale to the PFN. More specifically, the PFN pleads that it made several requests to Saskatchewan to set aside provincial Crown lands for its benefit under the PFN Settlement Agreement and that Saskatchewan refused the requests, claiming that the requested lands had been sold, were subject to pre-existing mineral leases or had been designated as wildlife habitat. The PFN asserts that, despite this, the lands in question ought to have been transferred to it under the PFN Settlement Agreement. It also asserts that by reason of these actions it was forced to purchase lands from third parties and was unfairly and in a discriminatory fashion required to bear sole responsibility for clearing the third party interests from the lands purchased.
[45] In its prayer for relief, the PFN claims several declarations, damages, interest and costs. In many instances, its claims in respect of the alleged breach of the PFN Settlement Agreement are interwoven with claims based on the alleged failure to consult in breach of fiduciary, common law or constitutional obligations that the PFN alleges are owed to it by Saskatchewan and Canada.
V. Jurisdiction of the Federal Court over the PFN’s Claim [46] Having set out the relevant background, we turn now to consider whether the Federal Court erred in deciding that it possesses jurisdiction to adjudicate the PFN’s action against Saskatchewan. This is a pure question of law and thus the Federal Court’s order is reviewable on the standard of correctness: Canadian Forest Products Ltd. v. Canada (Attorney General), 2005 FCA 220 at para. 21, [2006] 1 F.C.R. 570; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8; Trainor Surveys (1974) Ltd. v. New Brunswick, [1990] 2 F.C. 168, 1990 CarswellNat 623 at para. 10 (T.D.).
[47] Assessment of whether the Federal Court was correct in assuming jurisdiction to adjudicate the PFN’s action against Saskatchewan involves consideration of two inter-related issues: first, whether Saskatchewan can claim to be immune from suit before the Federal Court by virtue of Crown immunity and, second, whether the Federal Court has subject matter jurisdiction over the claims made against Saskatchewan in this action as the Federal Court must possess both jurisdiction over the parties and subject matter jurisdiction for a suit to proceed before it: Alberta v. Toney, 2013 FCA 217 at para. 10, 2013 CarswellNat 3339 [Toney]. The issues raised by Saskatchewan’s motion are therefore more complex than the Federal Court appreciated in its brief speaking order.
A. Crown Immunity [48] Turning, first, to the issue of Crown immunity, the starting point for the discussion is the recognition that, at common law, the Crown was immune from suit before any court: Peter Hogg, Patrick Monahan &Wade K. Wright, Liability of the Crown, 4th ed. (Toronto: Carswell, 2011) at 485.
[49] This common law rule has been abrogated by statute in Canada. Provincial legislation expressly provides that the Crown in right of each province may be sued before the courts of that province, and the FCA and the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 [CLPA] expressly make the Crown in right of Canada amenable to suit before either the Federal Court or the superior court of the province where a cause of action arises, except where the Federal Court has exclusive jurisdiction over the claim (CLPA, s.21; FCA, s.17). However, none of these statutes makes the Crown in right of a province amenable to suit before the Federal Court (or, for that matter, before the courts of another province).
[50] As Saskatchewan correctly notes, several cases have held that, in light of this, the provincial Crown may not be sued in the Federal Court due, in part, to the principle of Crown immunity. More specifically, this Court and the Federal Court have held that subsections 17(1) and (2) of the FCA, which provide for suits against the Crown in the Federal Court, do not apply to the provincial Crown, because the “Crown” is defined in section 2 of the FCA as meaning Her Majesty in Right of Canada: Vollant v. Canada, 2009 FCA 185 at para. 5, 2009 CarswellNat 1900; Shade v. The Queen, 2001 FCT 1067 at paras. 15-21, 26, (sub nom. Blood Band v. Canada) 2001 CarswellNat 2232; Greeley v. “Tami Joan” (The), 113 F.T.R. 66, 1996 CarswellNat 731 at para. 18 [Greeley]; Khagee v. Canada, [1992] 3 F.C. 576, 1992 CarswellNat 131 at paras. 12, 27-28 (T.D.); Varnam v. Canada (Minister of National Health & Welfare), [1988] 2 F.C. 454, 1988 CarswellNat 180 at para. 14 (C.A.); Joe v. Canada, [1984] 1 C.N.L.R. 96, 1983 CarswellNat 486 at para. 4 (F.C.A.), aff’d [1986] 2 S.C.R. 145; Lubicon Lake Band v. Canada, [1981] 2 F.C. 317, 1980 CarswellNat 15 at para. 8 (T.D.); Union Oil Co. v. Canada, [1974] 2 F.C. 452, 1974 CarswellNat 107 at para. 17 (T.D.), aff’d [1976] 1 F.C. 74 (C.A.).
[51] In a similar fashion, section 19 of the FCA has been held to be insufficient to render the Crown in right of a province amenable to suit before the Federal Court at the instance of a third party, even in circumstances where Canada is a co-defendant and might advance a claim against the province: Toney at para. 24; Fairford Band v. Canada (Attorney General), [1995] 3 F.C. 165, 96 F.T.R. 172 at para. 13. (Section 19 of the FCA allows for actions before the Federal Court between a province and Canada or between provinces when a province has passed legislation affording the Federal Court jurisdiction to adjudicate such claims.)
[52] Saskatchewan argues that the foregoing principles and authorities are equally applicable in the present case and that it therefore cannot be named by the PFN in its action before the Federal Court. We disagree as there is an important difference between this case and the cases relied on by Saskatchewan. In this case, unlike those cited by Saskatchewan, there are two agreements – the Framework Agreement and PFN Settlement Agreement – in which Saskatchewan agreed that claims to interpret and enforce the Framework Agreement and the PFN Settlement Agreement will be advanced in the Federal Court.
[53] More specifically, as already noted, Saskatchewan agreed in section 20.19 of the PFN Settlement Agreement that “any matter, including a question of interpretation of any term, covenant, condition or provision” of the PFN Settlement Agreement and all matters relating to the enforcement of the agreement “shall be within the exclusive jurisdiction of the Federal Court of Canada”. This provision must be interpreted as an agreement by Saskatchewan to attorn to the jurisdiction of the Federal Court.
[54] Issues similar to these were canvassed by the Supreme Court of Canada in Bank of Montreal v. Attorney General (Quebec), [1979] 1 S.C.R. 565, 1978 CanLII 173 [Bank of Montreal v. Quebec] where the Supreme Court held that the Crown is bound by the contracts it concludes and that the rights and prerogatives of the Crown cannot be invoked to limit or alter the terms of a contract that is binding on the Crown (see 573-575).
[55] In the Bank of Montreal v. Quebec case, the Province of Quebec opened a bank account at the Bank of Montreal and sought to claim from the Bank the amount of a cheque on which an endorsement had been forged that the forger caused to be debited from the Province’s account. The Province learned of the existence of the forgery three and a half years before it gave the Bank notice of it. The Bank refused to reimburse the Province, relying on provisions in the Bills of Exchange Act, R.S.C. 1970, c. B-5, which provided fo