Supreme Court sides with Métis Nation-Saskatchewan in land consultation battle with Sask. government
The legal battle was sparked when NexGen Energy Ltd., based in Vancouver, applied to the Government of Saskatchewan for permits for a field mineral exploration project in March 2021. The project is located near Patterson Lake, which is about 636 kilometres northwest of Saskatoon.
According to court documents, the Saskatchewan government and the Métis Nation-Saskatchewan (MN-S) met and discussed the project, knowing it affected the rights of Métis people in the area. Saskatchewan later issued mineral exploration permits to the company in July the same year.
MN-S said the provincial Ministry of Environment failed to properly consult the nation and sought a judicial review of the Ministry's actions. The criteria for that review are what was under dispute at the Supreme Court. After Friday's ruling, that review will now proceed through the court as it was originally filed.
The question before the Supreme Court was whether the judicial review should have to consider whether the province has a duty to consult on land that MN-S has previously made claims on, even if those claim were stayed and never resolved.
The Saskatchewan government argued that because MN-S and the province are already embroiled in a separate case about consultation on asserted land claims, the judicial review should not also consider that duty. The province alleged it was an abuse of process because multiple cases would be centred on the same issue.
A full panel of nine Supreme Court judges heard the case in November 2024. In their decision, issued Friday, Justice Malcolm Rowe wrote that having two or more ongoing legal cases that involve similar issues does not necessarily meet the bar for an abuse of process.
The Supreme Court decision said there is a potential that two of the cases brought forward by MN-S could conclude with different rulings on the province's duty to consult, but that it could be addressed through case management.
Rowe also wrote that Indigenous litigants can be at fault for an abuse of process, but legal cases about vindicating Aboriginal rights have to be approached within its "unique context."
"Court procedures should facilitate, not impede, the just resolution of Aboriginal claims," the decision read, in part.
While speaking at a news conference Friday, Saskatchewan Premier Scott Moe said the required engagement needs to happen with Indigenous communities and Indigenous people.
"I think we've come a long way in that space, but there's always more work to do. So we commit to doing that and working alongside [MN-S] President McCallum, whom I talk to often," he said.
Arriving at the Supreme Court
Saskatchewan has a policy stating it does not consult on asserted land claims. Saskatchewan agrees that the Métis people have rights to hunt, trap and fish for food on the land, which led to the consultation, but argues the MN-S does not have commercial rights to the land.
A judge at the Court of Queen's Bench (now called Court of King's Bench) sided with the Saskatchewan government in its decision, but that decision was overturned by the Saskatchewan Court of Appeal.
The Supreme Court of Canada granted the provincial government a leave to appeal the case in December 2023 and the case was heard in November 2024.
MN-S says it's not seeking to prove its land claim, but that the judicial review should still look at whether the province failed to consult on the land MN-S sought to claim. A landmark ruling in 2004 found that governments have a legal duty to consult Aboriginal communities, even if a land claim is unproven.
The Saskatchewan government is arguing to the Supreme Court that the MN-S is bringing multiple actions against the government about the same legal issue, calling it an abuse of process.
MN-S disagrees, arguing the judicial review is distinct from past cases.
In the background
In 1994, MN-S brought a statement of claim against Saskatchewan and Canada, seeking rights to "large areas" of the province, according to court documents. Those lands include the place where NexGen applied to explore.
That action was stayed in 2005 because of a dispute about document disclosure. The judge said MN-S could lift the stay in the future, but MN-S has not applied to do so.
In 2020, MN-S challenged a government policy from 2010 that, according to court documents, "reiterated that claims to Aboriginal title and commercial rights would not be 'accepted' by the provincial government," and would not be subject to the Crown's duty to consult. That case is still ongoing.
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