Pasqua First Nation v. Saskatchewan (Attorney General), (2016) 483 N.R. 63 (FCA)

• Judge: Pelletier, Near and Gleason, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 10, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2016), 483 N.R. 63 (FCA);2016 FCA 133

Pasqua First Nation v. Sask. (A.G.) (2016), 483 N.R. 63 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. MY.004

Her Majesty the Queen in Right of Saskatchewan as represented by the Attorney General of Saskatchewan (appellant)

(defendant) v. Chief M. Todd Peigan on behalf of himself and all other members of the Pasqua First Nation and the Pasqua First Nation (respondents)

(plaintiffs) and Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada (defendant)

(A-11-15; 2016 FCA 133)

Indexed As: Pasqua First Nation v. Saskatchewan (Attorney General)

Federal Court of Appeal

Pelletier, Near and Gleason, JJ.A.

April 29, 2016.

Summary:

In 1993, Canada, Saskatchewan and a number of First Nation signatories to Treaty 4 concluded the Saskatchewan Treaty Land Entitlement Framework Agreement. The Framework Agreement was a comprehensive agreement that created a framework for the fulfilment of the Crown's outstanding obligations under Treaty 4. The Pasqua First Nation (PFN) concluded such an agreement with Canada and Saskatchewan on September 30, 2008 (the PFN Settlement Agreement). Both the Framework Agreement and the PFN Settlement Agreement provided that disputes arising under them would be referred to the Federal Court for determination (Framework Agreement, s. 20.20 and PFN Settlement Agreement, s. 20.19). On June 17, 2014, the PFN commenced an action in the Federal Court, in which it named Canada and Saskatchewan as respondents, alleging that both Canada and Saskatchewan had violated their obligations under the PFN Settlement Agreement and that both had also failed to discharge their obligations to consult with the PFN regarding, in particular, the grant of a subsurface mineral lease in September 2010 for the Legacy Mining Project. Saskatchewan brought a motion to strike the PFN's action as against it, arguing that the Federal Court did not have jurisdiction over Saskatchewan or over the subject matter of the PFN's claim against Saskatchewan.

The Federal Court, per Boswell, J., dismissed the motion in a short "speaking order" in which he held that s. 20.20 of the Framework Agreement was sufficient to provide the Federal Court jurisdiction over the PFN's claim against Saskatchewan, principally by virtue of the provisions of s. 17(3)(b) of the Federal Courts Act. Saskatchewan appealed, arguing that notwithstanding the attornment clauses in ss. 20.20 of the Framework Agreement and 20.19 of the PFN Settlement Agreement, the Federal Court had no jurisdiction over Saskatchewan or over the subject matter of the PFN's claim as against Saskatchewan.

The Federal Court of Appeal held that the Federal Court possessed jurisdiction over the portions of the PFN's claim that alleged a breach of Saskatchewan's obligations under the PFN Settlement Agreement. However, the portion of the claim, as currently pleaded, which alleged a violation by Saskatchewan of its duty to consult with the PFN with respect to the grant of the subsurface lease for the Legacy Mining Project fell outside the jurisdiction of the Federal Court. The court accordingly allowed this appeal in part and, struck the portions of the Statement of Claim that alleged that Saskatchewan breached its duty to consult with the PFN with respect to that Project, providing the PFN with leave to amend that portion of the claim in accordance with the court's reasons.

Courts - Topic 4008

Federal Court of Canada - Jurisdiction - General - Provincial Crown - The Federal Court of Appeal discussed generally the issue of Crown immunity and whether that principle protected a provincial Crown from being sued in Federal Court - See paragraphs 48 to 65.

Courts - Topic 4016.3

Federal Court of Canada - Jurisdiction - Trial Division - Consent jurisdiction (s. 17(3)) - Section 17(3)(b) of the Federal Courts Act (FCA) provided that the Federal Court had exclusive original jurisdiction to hear and determine any question of law, fact, or mixed law and fact that the Crown and any person had agreed should be determined in the Federal Court - The Federal Court of Appeal interpreted this provision, noting that there had been relatively few cases decided under s. 17(3)(b) - The court concluded that "... paragraph 17(3)(b) of the FCA does not operate only to oust the jurisdiction of the provincial superior courts in cases where there is concurrent jurisdiction but, rather, must also be interpreted as both conferring jurisdiction upon the Federal Court and ousting provincial jurisdiction in situations where the federal Crown and the other parties to the action or application have agreed in writing that the issue will be brought before the Federal Court for determination" - See paragraphs 76 to 83.

Courts - Topic 4016.3

Federal Court of Canada - Jurisdiction - Trial Division - Consent jurisdiction (s. 17(3)) - A land settlement agreement between the Pasqua First Nation (PFN), Canada and Saskatchewan provided that the Federal Court had exclusive jurisdiction to determine interpretation and enforcement disputes arising from the agreement (the attornment clause) - PFN sued Saskatchewan in Federal Court, alleging that Saskatchewan violated its obligations under the agreement and breached a duty to consult regarding a subsurface mineral lease for a mining project - Saskatchewan moved to strike the action, for want of jurisdiction - The Federal Court of Appeal held that the combined effect of the attornment clause and s. 17(3)(b) of the Federal Courts Act, which allowed parties to attorn to the jurisdiction of the Federal Court by agreement, provided the Federal Court with exclusive jurisdiction over the portions of PFN's claim which asked the court to interpret and enforce the settlement agreement - However, the Federal Court did not possession jurisdiction over the portion of the claim alleging a breach of the duty to consult - That claim was unrelated to the interpretation and enforcement of the settlement agreement and neither the attornment clause nor s. 17(3)(b) were applicable - See paragraphs 46 to 94.

Courts - Topic 4054

Federal Court of Canada - Jurisdiction - Trial Division - Indians - [See second Courts - Topic 4016.3 ].

Courts - Topic 4210

Federal Court of Canada - Jurisdiction - Particular matters - Claims by individuals against provincial Crown - [See both Courts - Topic 4016.3 ].

Courts - Topic 5687

Provincial courts - General - Jurisdiction or powers - Over Indians - [See second Courts - Topic 4016.3 ].

Courts - Topic 5697

Provincial courts - Jurisdiction or powers - Ousting - [See both Courts - Topic 4016.3 ].

Crown - Topic 2801

Crown immunity - General - [See Courts - Topic 4008 ].

Practice - Topic 2241

Pleadings - Striking out pleadings - Grounds - Lack of jurisdiction - [See second Courts - Topic 4016.3 ].

Counsel:

Karen Jones and James Fyfe, for the appellant (defendant);

Cynthia Westaway and Benjamin Hiemstra, for the respondents (plaintiffs).

Solicitors of Record:

R. James Fyfe, Regina, Saskatchewan, for the appellant (defendant);

Devlin Gailus Westaway, Ottawa, Ontario, for the respondents (plaintiffs);

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This appeal was heard in Regina, Saskatchewan, on November 10, 2015, before Pelletier, Near and Gleason, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered on April 29, 2016, including the following opinions:

Near and Gleason, JJ.A. - see paragraphs 1 to 94;

Pelletier, J.A., concurring reasons - see paragraphs 95 to 121.