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Cassels Successful in Saskatchewan Court of Appeal re Province’s Duty to Consult


On March 20, 2023, the Saskatchewan Court of Appeal overturned a Court of Queen’s Bench (as it then was) decision and ruled that the Métis Nation – Saskatchewan (“MN-S”) has the right to raise arguments around the Government of Saskatchewan’s (the “Province”) refusal to discuss Métis claims to commercial harvesting rights and title when deciding to issue a mining exploration permit (the “Permit”).

The key issue related to the Government of Saskatchewan’s express policy of not consulting in respect of Métis or First Nation claims to commercial harvesting rights or title (the “2010 Policy”). In late 2020, MN-S filed a claim that the 2010 Policy was unconstitutional (the “2020 Claim”). While the 2020 Claim was ongoing, MN-S applied for judicial review of the issuance of a Permit related to uranium exploration in Northern Saskatchewan. The activity was to occur in the heart of the Northwest Saskatchewan Métis Land Claim (filed in 1994) and in an area with a long and rich history of Métis use and occupation. The judicial review application cited, among other things, the Province’s refusal to discuss potential impacts to asserted Métis commercial harvesting rights and title.

In response to MN-S’s application for judicial review, the Province applied to strike those portions dealing with commercial harvesting rights and title. While the Province acknowledged that it had refused to consult with MN-S about their asserted Aboriginal title and commercial rights claim, the Province claimed that raising these matters represented an abuse of process, since MN-S was separately challenging the 2010 Policy through the 2020 Claim. In response, MN-S argued that it should be permitted to bring forward the full context in which consultation occurred, and that blocking MN-S from bringing these matters forward would have implications for all consultation matters across Saskatchewan until the 2020 Claim was resolved.

The Court of Queen’s Bench found it was an abuse of process for MN-S to raise the Province’s refusal to consult regarding commercial harvesting and title rights in the context of the judicial review. This decision was overturned in its entirety by the Court of Appeal which noted that the 2020 Claim was different from the judicial review application and sought different remedies: in the case of the 2020 Claim, the remedy was declarations regarding a policy, while the judicial review application sought a review of the Province’s conduct in issuing the Permit. MN-S’s efforts to raise the Province’s refusal to consult regarding commercial harvesting and title rights when issuing the Permit was not an abuse of process.

Cassels represented MN-S.

RELATED EXPERTISE: Aboriginal | Litigation