SASKATOON — Saskatchewan Court of Appeal has ruled that Métis Nation-Saskatchewan can seek a judicial review on whether the province has breached the duty to consult with Métis when granting exploration permits to NexGen Energy for the Rook 1 project in the northwestern part of the province.
However, the three-judge panel made it clear in their unanimous ruling March 20 that granting the judicial review did not mean MN-S has established it has the right to be consulted.
“My conclusion that MNS’s originating application may proceed in its original form does not mean that it has established that Saskatchewan owed a duty to consult with respect to the impact of the Permit and associated exploration activities in all the rights it asserts. Rather, I have simply decided that MNS may advance claims that it has identified in that commencement document by way of its originating application,” wrote Justice Robert W. Leurer. His ruling was fully supported by Justices Richards and Tholl.
The province had argued that when MN-S undertook its legal action in 2021 against Saskatchewan and NexGen, MN-S already had existing action on the same issue. Saskatchewan argued that MN-S was once again challenging the province’s alleged lack of consultation with Métis and refusal to discuss Métis land claims and commercial harvesting rights.
The lower court agreed with the province.
In a ruling delivered in January 2022, Justice D.N. Robertson, of the Queen’s Bench for Saskatchewan, stated, “The MNS chose to bring the prior actions, but for whatever reason has not diligently pursued these actions. I conclude it would be an abuse of process to allow the issues raised in those existing actions to be addressed in this action.”
In 1994, MN-S brought legal action against Saskatchewan and Canada claiming existing Aboriginal rights and title in the area of the province that NexGen now proposes to carry out uranium exploration. The action was stayed in 2005 by the court pending full disclosure of documents and materials by MN-S, which the court had previously ordered. MN-S never applied to lift the stay.
Then in 2020, MN-S commenced a second action against Saskatchewan challenging the province’s 2010 policy, which contested MN-S’s claim to Aboriginal title and commercial use of resources.
MN-S argued that Sect. 35 of the Constitution Act, 1982 recognized the rights of Métis.
“… There is overlap in some aspects of the 1994 Action, the 2020 Action and the originating application. However, the key issues are different, as are the remedies that are claimed in each,” stated the court of appeal. Because of this “there is no risk of inconsistent outcomes.”
Even if the 1994 Action claiming the northwest land failed, or the 2020 Action to have Saskatchewan’s policy declared unconstitutional failed, that did not stop MN-S from being successful in its current application that Saskatchewan had breached its duty to consult, said the court of appeal.
The court of appeal delivered its decision one day before the Saskatchewan government gave third and final reading to the Saskatchewan First Act, which asserts and confirms the province’s exclusive jurisdiction over natural resources, including who can be licensed and where and how exploration can take place.
Both Métis and First Nations have opposed the legislation and called out the government for lack of consultation both before the bill was drafted and as the bill worked its way through the legislature.
“The Court’s decision affirms MN-S’s right to hold the province accountable for its refusal to consult and provides support to MN-S’s position that the province’s consultation policy is unconstitutional,” said the MN-S in a statement.
“While we are pleased with the Court’s decision, we would have preferred to collaborate rather than pursue legal avenues,” said MN-S Vice-president Michelle LeClair.