Case information

Aboriginal law — Land and mineral claims — Duty to consult — Honour of the Crown — Fiduciary duty of the Crown — Reconciliation — Treaty land entitlement settlement agreement — Do provincial Crown fiduciary obligations and the provisions of paragraph 1 of the Saskatchewan Natural Resources Transfer Agreement (Saskatchewan Natural Resources Act, SC 1930, c. 41, at schedule) create an obligation on the provincial Crown with regard to a First Nation’s unfulfilled Treaty right to land and mineral? — Can a provincial Crown claim that First Nations’ interests created through unfulfilled Treaty rights to land and minerals given effect in a Treaty Land Entitlement Settlement Agreement be exempt from Crown obligations under paragraph 1 of the Natural Resources Transfer Agreement or a duty to consult? — Do the release provisions in Treaty Land Entitlement Settlement Agreement release the Crown’s overarching constitutional and fiduciary duties to First Nations, including the obligation of fair dealing? — Did Saskatchewan’s disposition of mineral rights without consultation engage a potential right or claim of the applicants under Treaty No. 4 between Her Majesty the Queen and the Cree and Saulteaux Tribe of Indians at Qu’appelle and Fort Ellice or the George Gordon First Nation Treaty Land Entitlement Settlement Agreement or both? — Does Canada have a duty to protect the applicants’ constitutional rights to lands and minerals under Treaty from actions of a provincial government? — Saskatchewan Natural Resources Act, SC 1930, c. 41, at schedule, para. 1, 10 and 11.

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On September 15th 1874, the applicants, collectively called George Gordon First Nation (GGFN), became a party to Treaty No. 4 between Her Majesty the Queen and the Cree and Saulteaux Tribe of Indians at Qu’appelle and Fort Ellice (Treaty No. 4). Among other things, Treaty No. 4 specified the amount of land required for reserves based on a First Nation’s population at the rate of one square mile for each family of five. The whole of the land covered by the treaty was administered by His Majesty the King in Right of Canada (Canada), but was transferred to the provinces of Alberta, Manitoba and Saskatchewan in 1930 by way of various Natural Resources Transfer Agreement (NRTA). The Saskatchewan Natural Resources Transfer Agreement (Saskatchewan Natural Resources Act, SC 1930, c. 41, at schedule) transferred all Crown lands, minerals and other natural resources from Canada to the province. Like other First Nations, GGFN did not receive the amount of land to which it was entitled under Treaty No. 4. Many land claims were filed against Canada by Saskatchewan First Nations. Canada requested the help of the respondent His Majesty the King in Right of Saskatchewan (Saskatchewan) to settle these claims. In 1992, a framework agreement, 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, to settle Treaty land entitlement (TLE) claims was signed by Canada, Saskatchewan and 25 First Nations. GGFN was not a party to the framework agreement. GGFN submitted a TLE claim in 1996 but the claim was not accepted for negotiation until 2004. In 2006, an agreement in principle was reached, which was ratified by the members of the GGFN, and signed by the GGFN, Canada and Saskatchewan in 2008 (GGFN TLEA). Among other things, the GGFN TLEA allowed GGFN to purchase up to 115,712 acres of land to set aside as reserve land and required GGFN to purchase at least 8 960 shortfall acres within 12 years of the coming into force of the GGFN TLEA. Once purchased by GGFN, land and mineral rights would be transferred from Saskatchewan to Canada, for the benefit of GGFN. Mineral rights could not form a part of the reserve land unless GGFN also purchased the surface rights to the land. Where mineral rights were undisposed and GGFN purchased the surface rights, Saskatchewan had to transfer those mineral rights to Canada for the benefit of GGFN unless it was counter to the public interest to do so. The GGFN TLEA required Canada and Saskatchewan to pay GGFN $26,662,416.42 to allow the latter to purchase land and mineral rights. This sum was paid in full by Saskatchewan and Canada. All of the shortfall acres were purchased by GGFN by the prescribed date. Before, during and after the negotiation of the GGFN TLEA, Saskatchewan disposed of mineral rights within a 100 km radius of the GGFN reserve lands to third parties. GGFN filed an action against Saskatchewan and Canada before the Court of Queen’s Bench, alleging that both respondents had breached their duty to consult with GGFN before disposing of the mineral rights.

The Court of Queen’s Bench of Saskatchewan dismissed the applications and the Court of Appeal for Saskatchewan dismissed the appeal.