There was no basis for federal court jurisdiction over duty to consult claim against province

Crown relationship

There was no basis for federal court jurisdiction over duty to consult claim against province

Treaty Number 4 (“treaty”) of 1874 required Crown to provide First Nation with specified amount of land. There was shortfall in amount of reserve land provided to First Nation. In 1993 Crown and First Nation concluded Saskatchewan Treaty Land Entitlement Framework Agreement, which created framework for fulfillment of Crown’s outstanding obligation under treaty. First Nation concluded settlement agreement with Canada and province (“PFN settlement agreement”). First Nation brought action asserting respondents violated PFN settlement agreement. Province’s motion to strike action as against it was dismissed. Province appealed. Appeal allowed in part. Portions of statement of claim alleging province breach duty to consult with First Nation with respect to mining project was struck with leave to amend. Federal Court possessed jurisdiction over portions of claim that alleged breach of province’s obligations under PFN settlement agreement. Portion of claim that alleged violation by province of its duty to consult with First Nation with respect to grant of subsurface lease for mining project fell outside jurisdiction of Federal Court. Attornment clause in PFN settlement agreement was sufficient to ground jurisdiction in Federal Court to interpret and enforce PFN settlement agreement. Portions of First Nation’s action seeking to have Federal Court interpret and enforce PFN settlement agreement dealt with treaty land entitlement settlement, and insofar as First Nation sought to enforce rights to additional reserve lands, these portions of action concerned federal common law and were intimately connected with Indian Act (Can.). Section 17(3)(b) of Federal Courts Act (Can.) was attributive of jurisdiction and afforded jurisdiction to Federal Court. Section operated not only to oust jurisdiction of provincial superior courts in cases where there was concurrent jurisdiction but also conferred jurisdiction upon Federal Court and ousting provincial jurisdiction in situations where federal Crown and other parties to action agreed in writing that issue would be brought before Federal Court for determination. There was no basis for Federal Court jurisdiction over duty to consult claim against province as province did not attorn to jurisdiction of Federal Court. Claim with respect to mining project were distinct from claims that related to PFN settlement agreement and attornment clause in PFN settlement agreement did not apply. Pelletier J.A. wrote concurring reasons finding there was support for jurisdiction on stand-alone basis.
Saskatchewan (Attorney General) v. Pasqua First Nation (Apr. 29, 2016, F.C.A., J.D. Denis Pelletier J.A., D.G. Near J.A., and Mary J.L. Gleason J.A., A-11-15) 266 A.C.W.S. (3d) 100.