January 30, 2018
On January 8, 2018, Ochapowace Cree Nation (“OCN”) filed a statement of claim in Federal Court against Saskatchewan and Canada in relation to Saskatchewan’s unlawful sale of vacant Crown lands in two separate public auctions that took place in the spring and fall of 2017, respectively. OCN is seeking declaratory relief and equitable compensation in relation to Saskatchewan’s failure to meet its constitutional, contractual, fiduciary, and honourable duties to OCN, allowing Canada’s outstanding treaty land entitlement (“TLE”) to OCN to remain unresolved.
The TLE Framework greement
Canada and OCN entered Treaty 4 in 1874. Treaty 4 required Canada to set aside “sufficient area to allow one square mile for each family of five, or in that proportion for larger or smaller families”. Canada failed to fulfill this promise, resulting in OCN’s TLE shortfall.
In 1992, Canada, Saskachewan, and and 25 First Nation signatories to Treaties 4, 6, and 10, including OCN, executed the Treaty Land Entitlement Framework Agreement (“Framework Agreement”). The Framework Agreement creates a mechanism for Saskatchewan’s participation in the fulfillment of Canada’s outstanding TLE obligations under Treaties 4, 6, and 10, which was a condition set out in the 1930 Natural Resources Transfer Agreement (“NRTA”). An additional eight First Nations have since executed the Framework Agreement, bringing the total number of so-called “Entitlement Bands” to 32.
In 1993, OCN, Saskatchewan, and Canada executed the Ochapowace Cree Nation Treaty Land Entitlement Settlement Agreement (“Settlement Agreement”) adopting portions of the Framework Agreement by referential incorporation.
The Settlement Agreement compensates OCN (in land and cash in lieu), for the land, including minerals and other natural resources, it never received pursuant to its TLE under Treaty 4, and for the loss of use of the same.
Saskatchewan is released of its constitutional obligation to Canada in respect of each Entitlement Band under the Framework Agreement after the Entitlement Band has acquired its Shortfall Acres and transferred those acres into Entitlement Reserve land.
Currently, the Plaintiff needs to obtain an additional 2,037.12 acres to meet its Shortfall Acres under the Settlement Agreement to release Saskatchewan of its obligations thereunder, including to Canada pursuant to the terms of the NRTA.
The Spring Auction
First Nations across Saskatchewan were surprised to learn on March 1, 2017 (through Facebook) that Saskatchewan engaged a third-party auctioneering firm to dispose of surplus Crown lands across the province.
The online bidding for 62 parcels began on March 1, 2017, and closed in stages on March 17, 2017.
OCN Chief and Council worked closely with Maurice Law and the Federation of Sovereign Indigenous Nations (“FSIN”) in the spring of 2017 to respond to rolling auctions of vacant Crown lands, including meeting with the Saskatchewan Minister of Agriculture Lyle Stewart in April 2017.
The Fall Auction
On September 15, 2017, the Ministry of Agriculture advised FSIN First Nations that an upcoming auction of vacant Crown land would commence on October 23, 2017. OCN submitted a land selection to obtain two parcels that were to be included in the auction pursuant to the Settlement Agreement on October 24, 2017. On October 31, 2017, Saskatchewan advised OCN that it would not be making those lands available for selection given that they were already included in the auction. The auction proceeded, and one of the two parcels that OCN selected was sold to a third-party purchaser.
Saskatchewan has a constitutional, contractual, fiduciary, and honourable duty to diligently implement the Framework Agreement in accordance with its terms in a purposive and equitable manner. Implicitly, Saskatchewan is legally required to provide Entitlement Bands with prior notice when Saskatchewan decides to make available for purchase newly saleable lands in an auction in order to ensure Entitlement Bands are provided a reasonable opportunity to select such lands on a willing-seller/willing-buyer basis pursuant to the Framework Agreement before they are disposed of. Failure to provide such notice undermines the objectives and the spirit and intention of the Framework Agreement, which aims to meet the Crown's unfulfilled treaty obligations and Entitlement Bands' corresponding TLE.
Without notice that newly saleable lands would be made available for public auction in March 2017, OCN had no opportunity to select those lands to satisfy its outstanding TLE before they were offered to the public. In refusing to honour OCN’s land selection in October 2017, Saskatchewan is in further breach of its constitutional, contractual, fiduciary, and honourable duties, attracting an award of equitable compensation in relation to OCN’s lost opportunity to obtain the parcel that has since transferred to a third-party.