Sask. government, Métis Nation-Saskatchewan await Supreme Court decision Friday in land consultation battle
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, 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 meeting that happened were not sufficient consultation and sought a judicial review of the provincial Ministry of Environment's actions.
That review has not yet happened, as the two parties have been arguing over what should be included.
The question before the Supreme Court is whether the judicial review should have to consider whether the province has a duty to consult on land that MN-S has previously made on claim on, even though that claim was stayed and has not been decided.
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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