Court of Appeal for Saskatchewan  
Docket: CACV3625  
Citation: George Gordon First Nation v  
Saskatchewan, 2022 SKCA 41  
Date: 2022-03-29  
Between:  
The George Gordon First Nation and the Chief and Council of the George Gordon  
First Nation Comprised of Chief Glen Pratt and Councillors John McNab, Bonny  
Gordon, Donna Anderson, Hugh Pratt, Dennis Hunter, Bryan A. McNabb, Nathan  
Bitternose and Dennis Bird on their own Behalf and on Behalf of the Chief and  
Council of the George Gordon First Nation and on Behalf of All Past, Present and  
Future Members of the George Gordon First Nation  
Appellants  
(Plaintiffs)  
And  
Her Majesty the Queen in Right of Saskatchewan  
and the Attorney General of Canada  
Respondents  
(Defendants)  
Before:  
Ottenbreit, Whitmore and Tholl JJ.A.  
Appeal dismissed  
Disposition:  
Written reasons by:  
In concurrence:  
The Honourable Mr. Justice Tholl  
The Honourable Mr. Justice Ottenbreit  
The Honourable Mr. Justice Whitmore  
On appeal from:  
Appeal heard:  
2020 SKQB 90, Regina  
October 7, 2021  
Counsel:  
Jeffrey Rath, Claire Drysdall and Katherine Newton for the Appellants  
James Fyfe for Saskatchewan  
Thor Kristiansen and Candace Almightyvoice for Canada  
i
CONTENTS  
I.  
INTRODUCTION .............................................................................................................. 1  
BACKGROUND ................................................................................................................ 1  
CHAMBERS DECISION................................................................................................... 6  
ISSUES ............................................................................................................................. 15  
ANALYSIS....................................................................................................................... 15  
II.  
III.  
IV.  
V.  
A. Treaty No. 4 and relevant legislation................................................................................ 15  
B. Interpretation of the NRTAs .............................................................................................. 19  
1.  
2.  
3.  
4.  
Positions of the parties................................................................................................ 19  
Principles of legislative interpretation........................................................................ 20  
History, nature and purpose of the NRTAs ................................................................. 23  
Interpretation of paragraph 1 of the NRTA ................................................................. 26  
C. Duty to consult.................................................................................................................. 32  
1.  
2.  
3.  
Crowns knowledge of an identified claim or right.................................................... 35  
Crown conduct or decision that engages a potential right.......................................... 36  
The potential for adverse effect.................................................................................. 48  
D. Breach of a duty to consult ............................................................................................... 54  
1.  
2.  
3.  
4.  
Decision to be reviewed ............................................................................................. 54  
Standard of review of the adequacy of consultation................................................... 55  
Placing the duty to consult on a spectrum .................................................................. 56  
Sufficiency of Saskatchewans consultation .............................................................. 59  
E. Canadas role with regard to a duty to consult ................................................................. 62  
F. Claim barred by the release provisions............................................................................. 64  
1.  
2.  
3.  
Relevant sections of the Settlement Agreement......................................................... 65  
Principles of interpretation ......................................................................................... 68  
Analysis of the release provisions .............................................................................. 73  
G. Final issue ......................................................................................................................... 75  
VI. CONCLUSION................................................................................................................. 75  
Page 1  
Tholl J.A.  
I.  
INTRODUCTION  
[1]  
The appellants, the George Gordon First Nation, its Chief, Council and members  
[collectively GGFN], commenced an action against Saskatchewan and Canada in the Court of  
Queens Bench, seeking declarations, damages and other relief. In general, the action alleged that  
the respondents had each breached their duty to consult with GGFN before Saskatchewan disposed  
of mineral rights within 100 km of GGFNs existing reserve. The claim was dismissed in its  
entirety on a summary judgment application: George Gordon First Nation v Saskatchewan, 2020  
SKQB 90 [Chambers Decision]. The appellants seek to have the findings regarding liability  
overturned, certain declarations made, and the matter remitted for a determination of damages.  
[2]  
For the reasons that follow, the appeal is dismissed.  
II.  
BACKGROUND  
[3]  
The following is only a brief outline of the touchstone facts, which are provided for the  
purposes of introductory context. The history of this matter is far more complex.  
[4] When what would become the four provinces of Ontario, Quebec, New Brunswick and  
Nova Scotia formed the Dominion of Canada in 1867, each province received the right to  
exclusively administer Crown lands and natural resources located within its own borders, pursuant  
to s. 109 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No  
5. When Manitoba joined Confederation in 1870, it was not granted those same rights. Control  
over Crown land and natural resources within Manitoba remained with Canada: the Manitoba Act,  
1870, SC 1870, c 3, s 30, reprinted in RSC 1985, App II, No 8.  
[5]  
In 1874, Treaty No. 4 between Her Majesty the Queen and the Cree and Saulteaux Tribes  
of Indians at Quappelle and Fort Ellice, 15 September 1874, was entered into on behalf of the  
Canadian government and First Nations peoples that inhabited an area that covered a large part of  
(now) southern Saskatchewan and some relatively small portions of (now) southern Alberta and  
(now) western Manitoba. Chief Kaneonuskatew (from the Little Touchwood Hills area), on behalf  
   
Page 2  
of GGFN, placed his mark on Treaty No. 4 on September 15, 1874. Among other things, the treaty  
specified that the reserves of land assigned to each signatory Band would be based on its population  
and consist of one square mile for each family of five, prorated for larger or smaller families.  
[6]  
When Treaty No. 4 was signed, all of the land covered by the treaty was administered by  
Canada. Saskatchewan and Alberta became provinces in 1905; but, as in the case of Manitoba, the  
administration of Crown lands and natural resources remained with Canada: the Saskatchewan  
Act, SC 1905, c 42, s 21, reprinted in RSC 1985, App II, No 21, and the Alberta Act, SC 1905, c 3,  
s 21, reprinted in RSC 1985, App II, No 20. It was not until 1930 that the various Natural  
Resources Transfer Agreements [NRTAs (as a plural)] transferred all Crown lands, minerals and  
other natural resources within each province from Canada to Manitoba, Saskatchewan and Alberta.  
Prior to those transfers, Canada had sold or had given some of those mineral rights to private  
parties and that ownership was not affected by the NRTAs.  
[7]  
As of the date of the Chambers application, 16.5% of the mineral rights in southern  
Saskatchewan were in private hands with the remainder, excepting those underlying national  
parks, Indian reserves and other small federal parcels, held by the province. None of the mineral  
rights in the unsurveyed portion of northern Saskatchewan are privately owned.  
[8]  
GGFN, like many other First Nations, received some land under Treaty No. 4, but did not  
obtain the amount of land to which it was entitled. Prior to December 30, 1955, 30,720 acres had  
been set aside as reserve land for GGFN. As of May 12, 2012, the George Gordon Indian Reserve  
No. 86 consisted of 35,678 acres located on the edge of the Little Touchwood Hills, approximately  
62 km from Fort QuAppelle. There was no dispute that this was less land than GGFN should have  
received under Treaty No. 4.  
[9]  
In the 1970s, various First Nations in Saskatchewan filed claims against Canada for failing  
to provide them with all of the land to which they were entitled under several treaties, including  
Treaty No. 4. Canada requested cooperation from Saskatchewan, under the terms of the Natural  
Resources Transfer Agreement, being Schedule 3 to the Constitution Act, 1930 (UK), 20-21 Geo  
V, c 26, reprinted in RSC 1985, App II, No 26 [NRTA (as a singular)], in order to fulfill the  
outstanding treaty land entitlement [TLE]. During the process, the involved parties determined  
Page 3  
there was inadequate unoccupied Crown land in Saskatchewan of sufficient quality and in  
appropriate locations to satisfy the TLE.  
[10] On January 16, 1991, the (then) Federation of Saskatchewan Indian Nations [FSIN],  
Canada and Saskatchewan signed A General Protocol Agreement on the Negotiation of Treaty  
Land Entitlement Settlements in Saskatchewan. On September 22, 1992, the Saskatchewan Treaty  
Land Entitlement Framework Agreement among her Majesty the Queen in Right of Canada and  
the Minister of Indian Affairs and Northern Development and the Entitlement Bands and Her  
Majesty in Right of Saskatchewan [Framework Agreement] was signed by Canada, Saskatchewan  
and 25 individual First Nations. GGFN was not one of those signatories. The Framework  
Agreement represented a compromise among the parties regarding how population should be  
calculated for the purposes of TLE.  
[11] Both Saskatchewan and Canada passed legislation and issued Orders in Council to support  
the implementation of the Framework Agreement and subsequent TLE agreements. For a detailed  
explanation of these instruments, see Saskatchewan (Attorney General) v Pasqua First Nation,  
2016 FCA 133 at paras 2841, [2016] 3 CNLR 174, leave to appeal to SCC refused, 2016 CanLII  
89832 [Pasqua First Nation 2016].  
[12] By Band Council resolution on May 26, 1996, GGFN asked the FSIN to provide assistance  
by conducting research on GGFNs TLE claim. After the research was completed, GGFN  
submitted its TLE claim to Canada in September of 1996, but that claim was not accepted under  
the terms of Canadas then existing TLE policy. Canada changed its policy in 1998 and, in March  
of 2004, GGFNs TLE claim was reassessed and accepted for negotiation. Saskatchewan had no  
role in making those decisions.  
[13] Canada, Saskatchewan and GGFN began intensive, facilitated TLE negotiations in July of  
2004. The negotiations were chaired by the Indian Claims Commission. A representative from the  
FSIN attended the negotiations. An agreement in principle was reached in November of 2006. The  
resulting agreement [Settlement Agreement], which is modelled on the Framework Agreement, is  
a complex document that exceeds 100 pages in length. It was ratified by the members of GGFN in  
February of 2008 and signed by GGFNs Chief and Council in March of 2008. It was signed by  
Saskatchewan and Canada on April 15, 2008, and August 11, 2008, respectively.  
Page 4  
[14] The Settlement Agreement is a lengthy and comprehensive document, exceeding 100 pages  
in length. I will not attempt to describe its terms in any detail, except as necessary. Under the  
Settlement Agreement, GGFN could purchase up to 115,712 acres of land to have set apart as  
reserve lands. GGFN was obligated to purchase at least 8,960 shortfall acres within 12 years of the  
date of the Settlement Agreement. GGFN was required to acquire both the surface rights and the  
mineral rights as part of any land it purchased as shortfall acres. The surface rights to any  
additional acres could be purchased with or without the associated mineral rights, subject to certain  
limits set out in the Settlement Agreement. Conversely, the Settlement Agreement does not permit  
the purchase of mineral rights to form part of GGFNs reserve without also acquiring the surface  
rights. If GGFN purchased surface rights to land for which the mineral rights were undisposed,  
Saskatchewan was required to transfer those mineral rights to Canada for GGFN, without  
compensation, subject to a public purposes exception.  
[15] GGFN was responsible for identifying and purchasing the land that it wished to acquire.  
The land did not need to be contiguous to its existing reserve and could be located anywhere in the  
province. Once acquired, the land and mineral rights would be surrendered to Canada, which  
would then set it apart as additional reserve lands for GGFN. The Settlement Agreement provided  
GGFN with $26,662,416.42, all of which has been paid, to fund the purchase of surface and  
mineral rights. Saskatchewan paid $7,998,724.93 of that amount and Canada paid the remainder.  
[16] All of the 8,960 shortfall acres were purchased by GGFN and subsequently set aside as  
reserve lands as of March of 2018. By February of 2019, GGFN had purchased a total of 17,040.84  
acres of land. Saskatchewan had transferred 10,122 acres of Crown mineral rights to GGFN that  
had been moved to reserve status, with 6,499 additional acres ready to be transferred to reserve  
status and 6,583 other acres of Crown mineral rights frozen, pending GGFNs purchase of the  
surface rights.  
[17] Saskatchewan disposed of other mineral rights contiguous to or nearby GGFNs existing  
reserve lands, or within a 100 km radius, to private third parties, while it was negotiating the  
Settlement Agreement and after the Settlement Agreement was signed and in effect. As a point of  
clarification, Saskatchewan does not sell its mineral rights to private parties. The terms disposed  
or disposition refers to the granting of permits, claims, leases or licences to private third parties for  
Page 5  
mineral extraction for a specific period of time or while certain conditions prevail. The ownership  
of the mineral rights remains with the province. Mineral rights frequently revert back to  
Saskatchewan after the terms of the disposition instrument have expired. Of particular interest and  
concern to GGFN with regard to these dispositions were lands within a 100 km radius of its  
existing reserve that contained potash minerals, such as potassium carbonate, potassium chloride  
and potassium oxide, and the instruments that granted the right for the exploration and mining of  
those substances to specific corporations after May of 2008. In his July 27, 2018, affidavit, Glenn  
Pratt, who is a former Chief and current Councillor for GGFN, a current member of its TLE Board,  
and Chief Executive Officer of George Gordon Developments Ltd., averred that it is a goal of  
GGFN to build and operate a potash mine on its TLE lands. There was no evidence that this  
aspiration was communicated to Saskatchewan or Canada during the negotiation of the Settlement  
Agreement or before the impugned mineral dispositions were made to third parties.  
[18] On December 9, 2011, GGFN had a statement of claim issued in the Court of Queens  
Bench. It sought, inter alia, declaratory relief, in specie remedies, an accounting, damages of  
10 billion dollars, and other compensation from Canada and Saskatchewan, arising out of the  
alleged failure to consult regarding the disposition of mineral rights in the period when the  
Settlement Agreement was being negotiated and after it was signed. GGFN asserted that the  
dispositions, and absence of consultation, prevented GGFN from obtaining surface and mineral  
rights to the land that was subject to the dispositions. The February 8, 2014, amended, amended  
statement of claim is 50 pages in length, and contains a voluminous number of assertions and  
claims. It is supplemented by lengthy replies to two demands for particulars and by two replies to  
the statements of defence. This extremely brief description of the claim is provided only for the  
purposes of general context.  
[19] As of February of 2019, 29 of the 33 Bands that entered into the TLE process in  
Saskatchewan, including GGFN, had acquired their shortfall acres. It took an average of eight  
years for each of these Bands to acquire their shortfall acres. A total of 875,367 acres had been  
transferred to reserve status, consisting of 538,816 acres of private land and 336,550 acres of  
Crown land. Saskatchewan had paid an aggregate amount of 273 million dollars to satisfy its  
obligations under TLE agreements. The total amount paid by Canada was not set out in the  
Page 6  
evidence. In addition, Saskatchewan had transferred 840,063 acres of Crown minerals under those  
agreements.  
III. CHAMBERS DECISION  
[20] In 2018, GGFN applied to the Court of Queens Bench seeking summary judgment. It  
sought judgment in the following terms:  
1. An Order for Summary Judgment on the claim of the Applicants against the Respondents  
that:  
a. The Respondents Canada and Saskatchewan had an obligation to consult with  
the Applicants prior to and following the conclusion of the [Settlement Agreement]  
with respect to the disposition of mineral interests.  
b. At all material times, the Respondents Canada and Saskatchewan did not consult  
or did not adequately consult the Applicants with respect to:  
i. Disposal of subsurface lands or minerals or both contingent to or nearby  
GGFNs reserve lands or within a 100 kilometre radius or within the  
Treaty No. 4 territory … while negotiating the [Settlement Agreement].  
ii. Disposal of subsurface lands or minerals or both contingent to or nearby  
GGFNs reserve lands or within a 100 kilometre radius or within the  
Treaty No. 4 territory … after the [Settlement Agreement] was ratified and  
in effect.  
2. Costs; and  
15. … a separate hearing following the application for summary judgment to address  
quantum of damages.  
[21] The parties arrived at an agreed statement of facts, which was supplemented by affidavits  
from each party. GGFN filed two affidavits from Mr. Pratt, along with an affidavit from an  
evidence administrator employed by GGFNs counsel. Saskatchewan filed affidavits from five of  
its current or former officials: Megan Schaefer, Donna Wilson, Douglas Gordon MacKnight,  
Marilyn Lolacher and Susan Carani. Canada filed affidavits from two of its officials: John  
Manning and Robbin Lloyd. Four of Saskatchewans witnesses and one of Canadas witnesses  
were orally questioned on their affidavits and the associated transcripts were filed on the  
application. There was no viva voce evidence. The parties agreed that the quantum of damages  
would be determined at a later stage if necessary.  
 
Page 7  
[22] The Chambers judge rendered his decision on April 2, 2020. He began by introducing the  
issues and the nature of the application and then moved on to review the background of the matter.  
This narration covered the structure of the Crown, a brief history of the treaty-making process in  
Canada, specific aspects of Treaty No. 4 regarding land, the purposes of the reserve system, the  
failure of the Crown to allot sufficient land to satisfy its treaty obligations, the basis for the TLE,  
and the negotiations that had led to the Settlement Agreement. The Chambers judge set out lengthy  
excerpts from the Settlement Agreement that had been referred to by counsel in argument. He then  
turned to an examination of the constitutional framework of Canada, beginning with The  
Constitution Act, 1867, and continuing with the Ruperts Land Act, 1868 (UK), 31-32 Vict, c 105,  
reprinted in RSC 1985, App II No 9, the Ruperts Land and North-Western Territory Order (23  
June 1870), the Saskatchewan Act, and the Constitution Act, 1982, being Schedule B to the Canada  
Act 1982 (UK), 1982, c 11, reprinted in RSC 1985, App II, No 44 [Constitution Act, 1982].  
[23] The Chambers judge noted that, unlike the other existing provinces, Saskatchewan and  
Alberta did not have control over natural resources and Crown land upon their creation. Such  
jurisdiction was retained by the federal government. He observed that this distinction was removed  
in 1930, and traced the constitutional amendments which did so. In Saskatchewans case, this was  
accomplished under The Saskatchewan Natural Resources Act, with a constitutional amendment  
through the Constitution Act, 1930 (UK), 20-21 Geo v, c 26, schedule 3, reprinted in RSC 1985,  
App II, No 26 [Constitution Act, 1930] that last mentioned Act reproduced a Memorandum of  
Agreement between Canada and Saskatchewan, agreed to on March 20, 1930. That memorandum  
is the Saskatchewan NRTA. The Chambers judge also referenced the provincial legislation that  
was passed as a consequence of this change.  
[24] The Chambers judge observed that Saskatchewan does not transfer its mineral titles to  
private parties. Instead, it grants licences or leases for mineral extraction, known as mineral  
dispositions, which are subject to conditions, including time limits. He accepted Mr. MacKnights  
evidence that these dispositions frequently lapse and revert to Saskatchewan. The Chambers judge  
determined that, since 2002, Saskatchewan has made information available to the general public  
regarding the location and status of Crown mineral rights through a publicly accessible website.  
This information is made available to Bands with TLE, but they are not specifically notified when  
other persons apply for mineral dispositions. He found that, when a Band expressed an interest in  
Page 8  
acquiring a particular piece of land under the TLE process, Saskatchewan would place a temporary  
freeze on any further mineral dispositions for that land and, pending a review of the request, would  
allow the Band time to acquire the surface rights. After review, such a freeze could last up to three  
years. Under this portion of his judgment, the Chambers judge found that Saskatchewan had  
transferred over 840,000 acres of Crown minerals to Bands under the TLE process since 1992.  
[25] After reviewing this context, the Chambers judge referenced the list of evidence filed by  
each party and set out the lengthy agreed statement of facts in its entirety. The Chambers judge  
then turned to the issue of whether the matter was a suitable case to resolve through the summary  
judgment procedures set out in Rules 7-2 to 7-5 of The Queens Bench Rules. The parties had  
agreed that it could be decided summarily, but the Chambers judge undertook the necessary  
independent task of assessing the matter and the relevant principles in order to satisfy himself that  
it was such a case. After doing so, he was satisfied that the matter could be summarily determined  
and a trial was not required.  
[26] The Chambers judge decided that the application required him to answer the following  
questions (at para 63):  
(a)  
(b)  
(c)  
What does GGFN seek under a duty to consult?  
Is GGFNs claim barred by the terms of the Settlement Agreement?  
Did Saskatchewan have a duty to consult GGFN with respect to mineral  
dispositions before or after the signing of the Settlement Agreement?  
(d)  
(e)  
If there was a duty to consult, did Saskatchewan breach its duty?  
Did Canada have a duty to consult GGFN with respect to mineral dispositions  
before or after the signing of the Settlement Agreement?  
(f)  
If there was a duty to consult, did Canada breach its duty?  
[27] In answering the first question, the Chambers judge concluded GGFN was seeking the  
following under the duty to consult:  
Page 9  
[65] Counsel for George Gordon, in argument, emphasized that George Gordon had greatly  
reduced its claim for relief from the original statement of claim. So, for example, it no  
longer sought to stop all future mineral dispositions or require transfer of existing mineral  
dispositions. And it no longer sought immediate judgment for ten billion dollars. Instead,  
it now sought a declaration for a duty to consult and a judgment for damages to be assessed,  
allowing the parties the opportunity to negotiate the amount of damages.  
[66] As will be discussed below, the duty to consult may take different forms, depending  
on the circumstances, including the significance of the alleged infringement of or impact  
on Aboriginal or treaty rights. Counsel for George Gordon explained what George Gordon  
sought from the defendants under a duty to consult. George Gordon wanted to be notified  
of any applications for mineral dispositions. It sought this notice so that it could then assess  
whether it wanted to acquire those same minerals under a right of first refusal.  
[67] Counsel for George Gordon candidly explained that the reason George Gordon might  
wish to acquire those minerals is because the original applicant will presumably have  
already determined there are likely valuable minerals below the surface of those lands.  
And, George Gordon believes it could, on the basis of Article 5.05 of the [Settlement  
Agreement], then acquire the rights to those minerals at no cost to George Gordon.  
[28] Turning to the second issue, the Chambers judge noted that Saskatchewan and Canada both  
asserted that the claim was barred by the express terms of the Settlement Agreement. In accepting  
this argument, the Chambers judge reviewed the specific terms of the Settlement Agreement and  
made conclusions regarding the intentions of the parties in negotiating the agreement under the  
TLE process:  
[71] I accept that the treaty land entitlement negotiations and resulting agreements were  
intended to resolve outstanding land claims by Saskatchewan First Nations. The  
negotiations leading up to the [Settlement Agreement] was between sophisticated parties  
with assistance from the Treaty Commissioner. Article 10.03 confirms that George Gordon  
entered into the agreement after receiving legal advice. The agreement is carefully drafted.  
A review of the agreement as a whole, including the specific provisions, confirms the  
parties agreed to conclude existing claims and bar future claims.  
[72] As the Supreme Court of Canada said, in Beckman v Little Salmon/Carmacks First  
Nation, 2010 SCC 53 at para 109, [2010] 3 SCR 103, Legal certainty is the primary  
objective of all parties to a comprehensive land claim agreement. Saskatchewan and  
Canada are entitled to rely upon the provisions of the [Settlement Agreement] which bar  
claims.  
[73] The [Settlement Agreement] provisions barring claims are intended to have broad  
application. George Gordon agreed, under clause 15.01(c), “… not to assert any cause of  
action the Band or any of its Members ever had, now have or may hereafter have  
against Canada or Saskatchewan relating to or arising from any Treaty land entitlement  
…”. George Gordon also agreed, under subclause 16.02(a)(ii), the [Entitlement] Band  
shall not make any claim whatsoever that Saskatchewan has any obligation to provide land  
pursuant to paragraph 10 of the Natural Resources Transfer Agreement. Saskatchewan is  
entitled to rely on these provisions, as is Canada under the provisions releasing it from past  
and future claims.  
Page 10  
[74] That, however, does not conclude this case. While the limiting provisions are intended  
to have broad application, they are also subject to conditions, including in clause 16.02(a)  
“… as long as Saskatchewan has not failed, in any material way, to comply with its  
other obligations hereunder. If Saskatchewan failed to comply with its side of the bargain,  
George Gordon would still be entitled to pursue a claim.  
[75] I will therefore consider further questions below, while keeping in mind the limitations  
on liability provided in the [Settlement Agreement]. In doing so, I do accept  
Saskatchewans points that:  
1. Saskatchewans reciprocal obligations under the [Settlement  
Agreement] are primarily with Canada, not George Gordon;  
2. George Gordon did not dispute that Saskatchewan had met its  
obligations under the [Settlement Agreement] to make the required  
payments to Canada and to transfer the lands and minerals requested by  
Canada;  
3. George Gordon acquired its shortfall acres within the time period  
contemplated in the [Settlement Agreement]; and  
4. George Gordon has not identified any provision in the [Settlement  
Agreement] imposing an express duty to consult on Saskatchewan or  
Canada.  
[29] The Chambers judge examined the various claimed sources of imposing a duty to consult  
constitutional, treaty, honour of the Crown, fiduciary obligations, trust and contractual before  
returning to review that duty. He noted that everyone agreed that a general duty to consult existed  
in the abstract but observed that this conclusion did not address the precise issue in question. He  
stated that he must examine the specific bases for asserting a duty to consult that existed with  
regard to the mineral dispositions in the context of the circumstances at hand.  
[30] First, the Chambers judge analyzed the constitutional nature of the NRTAs, referencing  
Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124, [2017] 1 WWR  
685, leave to appeal to SCC refused, 2017 CanLII 38581 [Peter Ballantyne], and R v Blais, 2003  
SCC 44, [2003] 2 SCR 236 [Blais], but found that there was no constitutional duty to consult based  
on the NRTAs, when considered in the context of the terms in the Settlement Agreement that barred  
or limited claims.  
[31] The Chambers judge turned to an examination of GGFNs argument that the Settlement  
Agreement was an extension of Treaty No. 4. This assertion was rejected based on Saskatchewan  
(Attorney General) v Pasqua First Nation, 2018 FCA 141 [Pasqua First Nation 2018], and  
Muskoday First Nation v Saskatchewan, 2016 SKQB 73, [2016] 3 CNLR 123 [Muskoday First  
Page 11  
Nation]. He found that the Settlement Agreement did not create treaty obligations between  
Saskatchewan and GGFN.  
[32] In assessing the effect of the honour of the Crown on Saskatchewans specific duty to  
consult, the Chambers judge took guidance from Pasqua First Nation 2016, Peter Ballantyne,  
Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 [Haida  
Nation], and David Arnot, The Honour of the First Nations The Honour of the Crown: The  
Unique Relationship of First Nations with the Crown, in Jennifer Smith and D. Michael Jackson  
(eds), The Evolving Canadian Crown (Montreal: McGillQueens University Press, 2012). After  
consulting these sources, he concluded that the honour of the Crown requires the Crown to act in  
good faith and engage in genuine consultations when a duty to consult exists, but the honour of  
the Crown did not create such a duty in the matter at hand.  
[33] GGFN had also argued that a further source of a duty to consult by Saskatchewan could be  
found in the equitable doctrines of fiduciary duty and trust law. In examining this assertion, the  
Chambers judge reviewed Manitoba Métis Federation Inc. v Canada (Attorney General), 2013  
SCC 14, [2013] 1 SCR 623; Ermineskin Indian Band and Nation v Canada, 2009 SCC 9, [2009]  
1 SCR 222; and Lac La Ronge Indian Band v Canada, 2001 SKCA 109, 206 DLR (4th) 638, leave  
to appeal to SCC refused, [2002] 3 SCR vii. After doing so, he found that Saskatchewan was not  
in a trust relationship with GGFN in terms of the selection of shortfall lands. Saskatchewans role  
was described as largely passive, with its duty consisting of responding to requests from GGFN.  
The Chambers judge found that no fiduciary obligations arose that could give rise to a duty to  
consult by Saskatchewan in relation to mineral interests.  
[34] The Chambers judge assessed whether a duty to consult could be found in the Settlement  
Agreement itself. In conducting this part of his analysis, he took note of Canada (Attorney  
General) v Long Plain First Nation, 2015 FCA 177, 388 DLR (4th) 209 [Long Plain First Nation  
CA], and Pasqua First Nation 2018. In rejecting the notion that the Settlement Agreement created  
a duty to consult, the Chambers judge commented as follows:  
[102] I agree with Saskatchewan that, if such a duty was contemplated in the terms  
proposed by George Gordon, one would expect to find it expressed within the agreement.  
In other words, if George Gordon wanted notice of any third party applications for  
acquisition of mineral resources so that it could pre-empt them with its own claim, it should  
have asked for that right at the bargaining table. If it did not do so, or if it did and that  
Page 12  
request was rejected, it should not expect the court to re-write the agreement to introduce  
such a term after the fact. …  
[103] Further, there is no evidence that Saskatchewan is in breach of its obligations under  
the [Settlement Agreement]. On the contrary, the evidence shows Saskatchewan met its  
obligations to Canada and George Gordon. As such, it is entitled to rely upon the  
agreement, including the waiver and release provisions reviewed above. Those provisions  
bar this claim.  
[35] The Chambers judge then returned to a general review of the existence of a duty to consult  
for Saskatchewan. In doing so, he set out the foundational principles on which a general duty to  
consult is based: s. 35 of the Constitution Act, 1982; Haida Nation; Taku River Tlingit First Nation  
v British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550; and Mikisew  
Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388  
[Mikisew Cree]. He relied extensively on Ktunaxa Nation v British Columbia (Forests, Lands and  
Natural Resources Operations), 2017 SCC 54, [2017] 2 SCR 386 [Ktunaxa Nation], for its review  
of when a duty to consult may arise and what it entails. He further referenced Buffalo River Dene  
Nation v Saskatchewan (Energy and Resources), 2015 SKCA 31, [2015] 7 WWR 82 [Buffalo River  
Dene Nation], for the notion that there is a meaningful threshold for triggering a duty to consult.  
He then concluded that a duty to consult was not triggered in this case, based on his consideration  
of an identified treaty or Indigenous right or claim, Crown conduct, and a real potential for an  
actual, foreseeable, adverse impact. The following portions of the Chambers Decision sets out his  
conclusions on these issues:  
[112] First, was there an identified treaty or Aboriginal right or claim to mineral rights?  
The claim of George Gordon to additional reserve lands was known before the [Settlement  
Agreement]. This claim was based on its interpretation of Treaty No. 4. The [Settlement  
Agreement], while not a treaty, was an agreement to implement a process to settle that  
claim. That agreement included an ability to acquire mineral rights, albeit through Canada,  
when George Gordon acquired the surface rights. There was, therefore, an identified claim.  
[113] Second, was there impugned Crown conduct? George Gordons position is that  
Saskatchewan was obliged to provide notice of application by other persons for mineral  
dispositions held by Saskatchewan. The purpose of that notice would be to allow George  
Gordon to consider whether it wanted the mineral rights. If it did, then George Gordon  
would exercise an effective right of first refusal to acquire the mineral rights without any  
payment.  
[114] Saskatchewan points out that its policy of first come, first served was in place and  
continued throughout these events. George Gordon was not disadvantaged by this policy.  
George Gordon had and has the same opportunity as anyone else to acquire surface rights  
and to apply for mineral dispositions. What George Gordon sought was a change in practice  
that would favour George Gordon over others, allowing it to jump a prior claim of a third  
party. The proposed change in practice would be a dramatic departure from past practice  
Page 13  
with significant implications. Leaving aside the effect on commercial practice and public  
expectations, what of the other Bands with treaty land entitlement? How would  
Saskatchewan choose between them? If one Band could jump the queue, why not others?  
[115] Finally, was there an actual foreseeable adverse impact? George Gordon argued that  
the failure of Saskatchewan to provide prior notice and then to allow it a right of first refusal  
effectively deprived George Gordon of its right to acquire land close to the original reserve  
and within its traditional territory.  
[118] I agree with Saskatchewan that George Gordon was not forcedto acquire land  
elsewhere. It was naturally constrained by the same factors that would affect any buyer,  
including price and availability in the marketplace.  
[119] George Gordon was in the same position as anyone else seeking to acquire real  
property. In fact, it may have been in a better position in terms of information, since the  
Saskatchewan ministries provided special access to treaty land entitlement Bands. …  
George Gordon was told no later than 2010 of significant Crown mineral reserves in the  
vicinity of the Reserve that contained undisposed Crown minerals available for treaty land  
entitlement selection. …  
[120] The [Settlement Agreement], consistent with the TLE Framework Agreement, put  
the Band in the drivers seat. It had the right and the responsibility to find and acquire lands  
for acquisition. There was no unfairness in this. Rather, it addressed concerns of past  
paternalism.  
[121] On the evidence, Saskatchewans policies and practice did not present an  
unreasonable barrier. Under the existing process, Saskatchewan has approved transfer of  
840,063 acres of provincial Crown minerals to Canada … (The exact amount of land  
transferred varies between affidavits. This may reflect different dates when the affiant  
calculated the amounts.)  
[122] Under the treaty land entitlement agreements, 875,367 acres of land have been  
transferred to Reserve status. Of this, 538,816 acres were acquired through private land  
sales and 336,550 acres were acquired by Bands through transfer of provincial Crown  
lands. …  
[123] Saskatchewan has paid $273 million in full satisfaction of its obligations to pay  
Canada under the treaty land entitlement agreements. Saskatchewan paid $7,998,724.93 to  
Canada on June 30, 2013, in full satisfaction of its obligations in relation to George Gordon.  
… George Gordon received $26,662,416.42 from Canada in full satisfaction of its financial  
obligations under the [Settlement Agreement]. …  
[124] Under the [Settlement Agreement], George Gordon is entitled to acquire 115,712  
acres to be converted to Reserve lands. This will more than triple the size of the original  
Reserve, which is 35,678 acres.  
[125] George Gordon finished acquiring its 8,960 shortfall acres under the [Settlement  
Agreement] on March 28, 2018. … George Gordon has acquired 10,122 acres of  
undisposed provincial Crown minerals and has another 13,242 acres under active treaty  
land entitlement selection. …  
[126] The evidence supports a conclusion that the process provided under the [Settlement  
Agreement] worked. It did not prevent George Gordon from acquiring land, including  
minerals, to satisfy its entitlement.  
Page 14  
[127] The practice of a first come, first served policy may have made George Gordons  
goal of acquiring potash reserves more difficult. But if so and with respect, George  
Gordons proposal was an unreasonable expectation of Saskatchewan and of Canada.  
[128] Saskatchewan was not required to agree to this novel proposal by George Gordon.  
As stated above in [Muskoday First Nation] at paras 5355 and 67, the honour of the Crown  
remains compatible with due regard for the public interest and other private interests.  
Saskatchewans decision to stay with its standard practice of first come, first served was  
reasonable. George Gordons request for notice of applications for mineral dispositions  
under a duty to consult was not reasonable.  
[131] George Gordon has not established impugned Crown conduct that had an actual  
foreseeable adverse impact on the plaintiffsAboriginal rights. I find there was no duty to  
consult as proposed by George Gordon.  
[36] After arriving at this conclusion, the Chambers judge stated that, even if he were wrong  
about the absence of a duty to consult, he would find that the duty to consult was not breached by  
Saskatchewan. He determined that Saskatchewans practices, both before and after the Settlement  
Agreement was reached, provided sufficient notice to GGFN about potential land and mineral  
dispositions available for acquisition. He stated that, [b]oth in terms of the practice and the result,  
there was no unfairness(at para 133).  
[37] The Chambers judges reasons with regard to Canadas duty to consult were short, which  
appears to have been in keeping with the focus of GGFNs arguments that mainly implicated  
Saskatchewans conduct:  
[135] Canada had a duty to consult and accommodate the treaty land entitlement Bands  
claiming a shortfall of reserve lands. Canada and Saskatchewan did consult on this claim  
through the treaty land entitlement negotiations. Those negotiations did produce  
agreements, including the [Settlement Agreement], which settled those claims. That duty  
to consult was met.  
[136] George Gordons claim of a duty to consult on the part of Canada was premised on  
a breach by Saskatchewan of its duty to consult. George Gordons claim relates to the  
process by which mineral title is transferred to Canada for the purpose of establishing  
reserve lands. In the case of Canada, the claimed duty was to assist George Gordon in  
compelling Saskatchewan to do its duty. I do not believe a duty to consult on the part of  
Canada can be so constructed.  
[137] Since I have found that Saskatchewan was not subject to a duty to consult as claimed  
and, if it was subject to a duty to consult, that duty was satisfied by the actions it took,  
George Gordons claim against Canada cannot succeed. I would therefore dismiss that  
claim.  
[138] Even if Saskatchewan did default on its obligations to George Gordon under the  
[Settlement Agreement], that agreement was clearly structured to keep the contracting  
relationships bilateral, rather than trilateral: for example, see Article 20.16. Further, Canada  
Page 15  
had no supervisory authority over Saskatchewan, either constitutionally or contractually.  
In other words, a breach of an obligation by Saskatchewan against George Gordon would  
not trigger a breach by Canada. In any event, the issue is academic, since Saskatchewan  
did not breach its obligations under the [Settlement Agreement] to either Canada or George  
Gordon.  
[139] Since I have found Canada had no duty to consult as alleged, Canada cannot have  
breached any such duty.  
[38] GGFNs claim was dismissed with costs to Canada and Saskatchewan.  
IV. ISSUES  
[39] The issues in this appeal can be broadly summarized as follows:  
(a)  
(b)  
Did the Chambers judge err in his interpretation of the NRTA?  
Did the Chambers judge err in finding that Saskatchewan did not have a duty to  
consult with GGFN on any other basis before it disposed of mineral rights to third  
parties?  
(c)  
(d)  
If a duty to consult existed, did the Chambers judge err in determining that  
Saskatchewan did not breach its duty?  
Did the Chambers judge err in deciding that Canada did not have a role with regard  
to a duty to consult with GGFN before Saskatchewan disposed of mineral rights to  
third parties or err in deciding that Canada did not breach its obligations in this  
regard?  
(e)  
Did the Chambers judge err by deciding that GGFNs claim was barred by the  
release provisions in the Settlement Agreement?  
V.  
ANALYSIS  
A. Treaty No. 4 and relevant legislation  
[40] The following portions of Treaty No. 4 are relevant to this matter:  
     
Page 16  
The Cree and Saulteaux Tribes of Indians, and all other the Indians inhabiting the district  
hereinafter described and defined, do hereby cede, release, surrender and yield up to the  
Government of the Dominion of Canada, for Her Majesty the Queen, and Her successors  
forever, all their rights, titles and privileges whatsoever, to the lands included within the  
following limits, that is to say:—  
Commencing at a point on the United States frontier due south of the  
northwestern point of the Moose Mountains; thence due north to said point  
of said mountains: thence in a north-easterly course to a point two miles  
due west of Fort Ellice; thence in a line parallel with and two miles  
westward from the Assiniboine River to the mouth of the Shell River;  
thence parallel to the said river and two miles distant therefrom to its  
source; thence in a straight line to a point on the western shore of Lake  
Winnipegosis, due west from the most northern extremity of Waterhen  
Lake; thence east to the centre of Lake Winnipegosis; thence northwardly,  
through the middle of the said lake (including Birch Island), to the mouth  
of Red Deer River; thence westwardly and southwestwardly along and  
including the said Red Deer River and its lakes, Red Deer and Etoimaini,  
to the source of its western branch; thence in a straight line to the source  
of the northern branch of the QuAppelle; thence along and including said  
stream to the forks near Long Lake; thence along and including the valley  
of the west branch of the QuAppelle to the South Saskatchewan; thence  
along and including said river to the mouth of Maple Creek; thence  
southwardly along said creek to a point opposite the western extremity of  
the Cypress Hills; thence due south to the international boundary; thence  
east along the said boundary to the place of commencement. Also all their  
rights, titles and privileges whatsoever to all other lands wheresoever  
situated within Her Majestys North-West Territories, or any of them. To  
have and to hold the same to Her Majesty the Queen and Her successors  
for ever.  
And Her Majesty the Queen hereby agrees, through the said Commissioners, to assign  
reserves for said Indians, such reserves to be selected by officers of Her Majestys  
Government of the Dominion of Canada appointed for that purpose, after conference with  
each band of the Indians, and to be of sufficient area to allow one square mile for each  
family of five, or in that proportion for larger or smaller families; provided, however, that  
it be understood that, if at the time of the selection of any reserves, as aforesaid, there are  
any settlers within the bounds of the lands reserved for any band, Her Majesty retains the  
right to deal with such settlers as She shall deem just, so as not to diminish the extent of  
land allotted to the Indians; and provided, further, that the aforesaid reserves of land, or  
any part thereof, or any interest or right therein, or appurtenant thereto, may be sold, leased  
or otherwise disposed of by the said Government for the use and benefit of the said Indians,  
with the consent of the Indians entitled thereto first had and obtained, but in no wise shall  
the said Indians, or any of them, be entitled to sell or otherwise alienate any of the lands  
allotted to them as reserves.  
And further, Her Majesty agrees that Her said Indians shall have right to pursue their  
avocations of hunting, trapping and fishing throughout the tract surrendered, subject to  
such regulations as may from time to time be made by the Government of the country,  
acting under the authority of Her Majesty, and saving and excepting such tracts as may be  
required or taken up from time to time for settlement, mining or other purposes, under grant  
or other right given by Her Majestys said Government.  
Page 17  
[41] Section 35 of the Constitution Act, 1982, is as follows:  
Recognition of existing aboriginal and treaty rights  
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are  
hereby recognized and affirmed.  
Definition of aboriginal peoples of Canada  
(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples  
of Canada.  
Land claims agreements  
(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by  
way of land claims agreements or may be so acquired.  
Aboriginal and treaty rights are guaranteed equally to both sexes  
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred  
to in subsection (1) are guaranteed equally to male and female persons.  
(Bold emphasis in original)  
[42] Section 109 of the Constitution Act, 1867, is as follows:  
Property in Lands, Mines, etc.  
109 All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of  
Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable  
for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of  
Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise,  
subject to any Trusts existing in respect thereof, and to any Interest other than that of the  
Province in the same.  
[43] The relevant portions of the Saskatchewan NRTA are as follows:  
Transfer of Public Lands Generally  
1 In order that the Province may be in the same position as the original Provinces of  
Confederation are in virtue of section one hundred and nine of the [Constitution Act, 1867],  
the interest of the Crown in all Crown lands, mines, minerals (precious and base) and  
royalties derived therefrom within the Province and the interest of the Crown in the waters  
and water-powers within the Province under the Irrigation Act, being chapter sixty-one of  
the Revised Statutes of Canada, 1906, as amended by chapter thirty eight, 7-8 Edw. VII,  
and chapter thirty-four, 9-10 Edw. VII, and under the Dominion Water Power Act [RSC  
1985, c W-4], and all sums due or payable for such lands, mines, minerals or royalties or  
for interests or rights in or to the use of such waters or water-powers, shall from and after  
the coming into force of this agreement and subject as therein otherwise provided, belong  
to the Province, subject to any trusts existing in respect thereof, and to any interest other  
than that of the Crown in the same, and the said lands, mines, minerals and royalties shall  
be administered by the Province for the purposes thereof, subject, until the Legislature of  
the Province otherwise provides, to the provisions of any Act of the Parliament of Canada  
relating to such administration; any payment received by Canada in respect of any such  
lands, mines, minerals or royalties before the coming into force of this agreement shall  
continue to belong to Canada whether paid in advance or otherwise, it being the intention  
that, except as herein otherwise specially provided, Canada shall not be liable to account  
to the Province for any payment made in respect of any of the said lands, mines, minerals  
or royalties before the coming into force of this agreement, and that the Province shall not  
be liable to account to Canada for any such payment made thereafter.  
Page 18  
Indian Reserves  
10 All lands included in Indian reserves within the Province, including those selected and  
surveyed but not yet confirmed, as well as those confirmed, shall continue to be vested in  
the Crown and administered by the Government of Canada for the purposes of Canada, and  
the Province will from time to time, upon the request of the Superintendent General of  
Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its  
administration, such further areas as the said Superintendent General may, in agreement  
with the appropriate Minister of the Province, select as necessary to enable Canada to fulfil  
its obligations under the treaties with the Indians of the Province, and such areas shall  
thereafter be administered by Canada in the same way in all respects as if they had never  
passed to the Province under the provisions hereof.  
11 The provisions of paragraph one to six inclusive and of paragraphs eight of the  
agreement made between the Government of the Dominion of Canada and the Government  
of the Province of Ontario on the 24th day of March, 1924, which said agreement was  
confirmed by Statute of Canada, fourteen and fifteen George the Fifth chapter forty-eight,  
shall (except so far as they relate to the Bed of Navigable Waters Act) apply to the lands  
included in such Indian reserves as may hereafter be set aside under the last preceding  
clause as if the said agreement had been made between the parties hereto, and the  
provisions of the said paragraphs shall likewise apply to the lands included in the reserves  
heretofore selected and surveyed, except that neither the said lands nor the proceeds of the  
disposition thereof shall in any circumstances become administrable by or be paid to the  
Province.  
[44] These are the relevant portions of s. 92 and s. 92A of the Constitution Act, 1867:  
Exclusive Powers of Provincial Legislatures  
Subjects of exclusive Provincial Legislation  
92 In each Province the Legislature may exclusively make Laws in relation to Matters  
coming within the Classes of Subjects next hereinafter enumerated; that is to say,  
5. The Management and Sale of the Public Lands belonging to the Province and of  
the Timber and Wood thereon.  
Non-Renewable Natural Resources, Forestry Resources and Electrical Energy  
Laws respecting non-renewable natural resources, forestry resources and electrical  
energy  
92A(1) In each province, the legislature may exclusively make laws in relation to  
(a) exploration for non-renewable natural resources in the province;  
(b) development, conservation and management of non-renewable natural  
resources and forestry resources in the province, including laws in relation to the  
rate of primary production therefrom … .  
Page 19  
B.  
Interpretation of the NRTAs  
1. Positions of the parties  
[45] GGFN argues that the Chambers judge misinterpreted paragraph 1 of the NRTA by failing  
to determine that, when Canada transferred surface and subsurface rights to Saskatchewan under  
the NRTAs in 1930, it was subject to pre-existing Indigenous interests. It asserts that  
Saskatchewans title was burdened by GGFNs pre-existing treaty rights, including the unfulfilled  
Treaty No. 4 right to lands and the underlying minerals. GGFN asserts that the Chambers judge  
failed to address its argument that Treaty No. 4 is a trust or, alternatively, an interest other than  
that of the Crown, under paragraph 1 of the NRTAs. The Chambers judges finding that  
Saskatchewan only had obligations to Canada under the provincial NRTA is asserted to be a clear  
error of law. GGFN relies specifically on the following portion of paragraph 1 of the NRTA:  
Transfer of Public Lands Generally  
1 In order that the Province may be in the same position as the original Provinces of  
Confederation are in virtue of section one hundred and nine of the [Constitution Act, 1867],  
the interest of the Crown in all Crown lands, mines, minerals (precious and base) and  
royalties derived therefrom within the Province and the interest of the Crown in the waters  
and water-powers within the Province under the Irrigation Act, being chapter sixty-one of  
the Revised Statutes of Canada, 1906, as amended by chapter thirty eight, 7-8 Edw. VII,  
and chapter thirty-four, 9-10 Edw. VII, and under the Dominion Water Power Act, and all  
sums due or payable for such lands, mines, minerals or royalties or for interests or rights  
in or to the use of such waters or water-powers, shall from and after the coming into force  
of this agreement and subject as therein otherwise provided, belong to the Province,  
subject to any trusts existing in respect thereof, and to any interest other than that of the  
Crown in the same … .  
(Italic emphasis added)  
[46] With regard to the trust portion of its argument, GGFN asserts that Saskatchewan received  
the Crown lands and natural resources in 1930, subject to the terms of Treaty No. 4 and GGFNs  
interests in such. It argues that Saskatchewan thereby became a trustee and owes fiduciary  
obligations to GGFN as a beneficiary of Treaty No. 4, which forms one of the bases for a duty to  
consult existing for Saskatchewan. Its argument regarding any interest is not distinct from its  
submissions regarding the alleged trust.  
[47] Saskatchewan contends that the NRTAs did not create a trust and the lands and natural  
resources were not transferred to Saskatchewan subject to a trust or other interest of the nature  
claimed by GGFN. It asserts that the NRTAss purpose was to put Saskatchewan on an equal  
   
Page 20  
footing with the other provinces by giving it jurisdiction and beneficial ownership of the natural  
resources. In its factum, Saskatchewan argues that acceding to GGFNs argument would  
effectively creat[e] province-wide Indian reserves in minerals, thus undermining the goal of  
provincial equality and equal participation in the federation. Saskatchewan further argues that it is  
implausible to suggest that the prairie provinces would have agreed to hold all mineral rights in  
trust, pending the resolution of all existing and potential TLE claims. It points to the fact that such  
claims are still being settled 90 years after the NRTAs were entered into as evidence that such a  
situation would be untenable.  
2.  
Principles of legislative interpretation  
[48] When interpreting legislation generally, all of the relevant provisions of an enactment must  
be read together and be given the fair, large and liberal interpretation that best ensures the  
attainment of the objects of the enactment within its own context: Ballantyne v Saskatchewan  
Government Insurance, 2015 SKCA 38 at para 19, 457 Sask R 254, and Rizzo & Rizzo Shoes Ltd.  
(Re), [1998] 1 SCR 27. However, when interpreting constitutional agreements, such as the NRTAs,  
different considerations apply. While constitutional agreements are not ordinary legislation, they  
are also not on the same footing as the Constitution. This distinguishing feature was described in  
Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 SCR 99  
[Daniels]:  
[44] The issue in Blais was whether a provision of Manitobas Natural Resources  
Transfer Agreement, which allowed Indiansto hunt out of season, included Métis. It is  
true that the Court concluded that Indiansin the Natural Resources Transfer Agreement  
did not include Métis, but what was at issue was a constitutional agreement, not the  
Constitution. This, as this Court noted in Reference re Same-Sex Marriage, 2004 SCC 79,  
[2004] 3 S.C.R. 698, is a completely different interpretive exercise:  
[30] … it is submitted that the intention of the framers should be  
determinative in interpreting the scope of the heads of power enumerated  
in ss. 91 and 92 given the decision in R. v. Blais, [2003] 2 S.C.R. 236, 2003  
SCC 44. That case considered the interpretive question in relation to a  
particular constitutional agreement, as opposed to a head of power which  
must continually adapt to cover new realities. It is therefore  
distinguishable and does not apply here.  
[49] The provisions of the NRTAs must be interpreted with the provisions of the Constitution  
Act, 1982, in mind, particularly s. 35, but the same interpretative principles do not apply to a  
constitutional agreement as would pertain to a constitutional provision. Care must be taken when  
interpreting the NRTAs so as not to apply principles that are only applicable to the interpretation  
 
Page 21  
of the Constitution itself. The following reasoning from R v Desautel, 2021 SCC 17, 456 DLR  
(4th) 1 [Desautel], emphasizes these points:  
[42] The Crown and the Attorney General of Saskatchewan submit that s. 35(1) should be  
interpreted similarly to the Natural Resources Transfer Agreements (NRTAs), which  
were entered into between Canada and each of the Prairie provinces using nearly identical  
language, and added as schedules to the Constitution. The NRTAs use both the phrases  
Indians of the Provinceand Indians within the boundaries thereof. In Frank v. The  
Queen, [1978] S.C.R. 95, at pp. 1012, this Court explained that the former was narrower  
than the latter, in that the latter included Indianswho were passing through the province,  
not just those ordinarily resident in the province. Respectfully, there is no reason why  
aboriginal peoples of Canadain s. 35(1) of the Constitution Act, 1982, should be  
interpreted the same way as Indians of the Provincein the NRTAs. In Daniels v. Canada  
(Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, this Court  
held that s. 91(24) of the Constitution Act, 1867, was broader than the NRTAs: the Métis  
are Indiansunder s. 91(24), but not under the NRTAs. The NRTAs, this Court explained,  
are constitutional agreement[s], not the Constitution, which requires a completely  
different interpretive exercise(para. 44).  
(Footnotes omitted)  
[50] Daniels and Desautel postdate Blais, but, in my view, Blais remains the leading authority  
on the interpretation of the NRTAs. Blais instructed that the NRTAs, as constitutional documents,  
must be read generously and interpreted based on their purpose and the context in which they came  
about. In discussing this requirement, the Supreme Court provided the following summary of the  
governing principles:  
[16] Against this background, we turn to the issue before us: whether Indiansin para. 13  
of the [Manitoba] NRTA include the Métis. The starting point in this endeavour is that a  
statute and this includes statutes of constitutional force must be interpreted in  
accordance with the meaning of its words, considered in context and with a view to the  
purpose they were intended to serve: see E.A. Driedger, Construction of Statutes (2nd ed.  
1983), at p. 87. As P.-A. Côté stated in the third edition of his treatise, Any interpretation  
that divorces legal expression from the context of its enactment may produce absurd  
results(The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 290).  
[17] The [Manitoba] NRTA is a constitutional document. It must therefore be read  
generously within these contextual and historical confines. A court interpreting a  
constitutionally guaranteed right must apply an interpretation that will fulfill the broad  
purpose of the guarantee and thus secure for individuals the full benefit of the  
[constitutional] protection: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.  
At the same time it is important not to overshoot the actual purpose of the right or freedom  
in question, but to recall that the [constitutional provision] was not enacted in a vacuum,  
and must therefore be placed in its proper linguistic, philosophic and historical  
contexts: Big M Drug Mart, supra, at p. 344. This is essentially the approach the Court  
used in 1939 when the Court examined the historical record to determine whether the term  
Indiansin s. 91(24) of the [the Constitution Act, 1867] includes the Inuit (Reference as  
to whether Indiansin s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the  
Province of Quebec, [1939] S.C.R. 104).  
Page 22  
[18] Applied to this case, this means that we must fulfill but not overshoot” – the purpose  
of para. 13 of the [Manitoba] NRTA. We must approach the task of determining whether  
Métis are included in Indiansunder para. 13 by looking at the historical context, the  
ordinary meaning of the language used, and the philosophy or objectives lying behind it.  
[51] Another principle of interpretation, which has potential application to the NRTAs, is the  
ambiguity principle. This principle of interpretation applies to enactments affecting Indigenous  
peoples and posits that any ambiguity that exists in the wording of the legislation should be  
interpreted in favour of the Indigenous claimants. In Canada, this principle was first expressed in  
R v Nowegijick, [1983] 1 SCR 29, in the context of treaty rights, and has been referenced in many  
subsequent decisions: see, for example, R v Van der Peet, [1996] 2 SCR 507 at paras 2425, and  
R v Badger, [1996] 1 SCR 771 at para 9.  
[52] In Blais, the Supreme Court more directly described how the ambiguity principle applies  
to the interpretation of the NRTAs:  
[37] In the absence of compelling evidence that the term Indiansin para. 13 includes the  
Métis, the appellant invokes the principle that ambiguities should be resolved in favour of  
Aboriginal peoples … . This principle is triggered when there are doubts about the most  
fitting interpretation of the provision in question. In such cases, a generous and liberal  
interpretation is to be preferred over a narrow and technical one … .  
[38] The ambiguity principle does not assist the appellant in this case. The historical  
documentation is sufficient to support the view that the term Indiansin para. 13 of the  
[Manitoba] NRTA was not meant to encompass the Métis. Nor do we find relevant the  
respondents counterargument that the ambiguity principle precludes extending the  
protection of para. 13 to the Métis because this would dilutethe value of Indian hunting  
rights in Manitoba. If Indiansin para. 13 includes the Métis, then such an interpretation  
will prevail whether or not dilutionresults.  
[53] Although the ambiguity principle should be engaged in all situations where constitutional  
agreements or legislation relating to Indigenous people is sufficiently unclear, this principle does  
not apply when the agreements or legislation is not ambiguous. It is not an invitation for Indigenous  
claimants to engage in a search for ambiguity and then attempt to have any uncertainty or  
competing interpretation resolved in their favour. There must be genuine uncertainty in order for  
this principle to be of assistance to claimants.  
[54] In summary, the NRTAs must be interpreted through their own unique historical, contextual  
and linguistic lens. If genuine ambiguity exists, the uncertainty will be resolved in favour of the  
Indigenous claimants. However, in interpreting the NRTAs, courts are not free to invent new  
obligations foreign to the original purpose of the provision at issue(Blais at para 40) and must  
Page 23  
pay heed to the caution that “‘[g]enerousrules of interpretation should not be confused with a  
vague sense of after-the-fact largesse(R v Marshall, [1999] 3 SCR 456 at para 14 [Marshall]).  
[55] A standard of correctness applies when reviewing the Chambers judges interpretation of  
the provisions of the NRTAs.  
[56] It is within this framework, that trusts and other interests, as used in paragraph 1 of the  
NRTAs, must be interpreted.  
3.  
History, nature and purpose of the NRTAs  
[57] A brief examination of the historical and constitutional background to the NRTAs is  
required in order to assess the competing interpretations urged upon the Court by the parties.  
[58] When Saskatchewan and Alberta were created as provinces in 1905, they did not initially  
have jurisdiction over Crown lands and natural resources. Manitoba, albeit in a different situation  
that need not be explored here, also faced a similar situation. While I have defined the NRTA  
(singular) to refer to the Saskatchewan NRTA, a similar bilateral agreement was entered into  
between Canada and each of Manitoba, Saskatchewan and Alberta, which sought to remedy this  
imbalance in Confederation. The three agreements became schedules to the Constitution Act, 1930.  
For the general purposes of this judgment, there is nothing to be gained by distinguishing between  
the three agreements; however, as noted above, I will continue refer to the three natural resources  
Acts as NRTAs (plural), the Saskatchewan NRTA as singular, and differentiate the others where  
necessary.  
[59] The general purpose of the Manitoba NRTA was explored in Blais, where, in a per curiam  
judgment, the Supreme Court described it thus:  
[10] … The three NRTAs arose as part of an effort to put the provinces of Alberta, Manitoba  
and Saskatchewan on an equal footing with the other Canadian provinces by giving them  
jurisdiction over and ownership of their natural resources. Paragraph 1 of each of these  
Agreements reads in part: [the common language of the three NRTAs is quoted]. In other  
words, the Agreements were largely concerned with the transfer of contractual and related  
liabilities from Canada to the provinces. Indeed, early litigation relating to the NRTAs  
involved precisely this: [citation omitted].  
[11] In the midst of these transfer provisions, three out of 25 paragraphs in the Manitoba  
NRTA come under the separate heading Indian Reserves. Paragraph 13 is one of them.  
These paragraphs are identical to paras. 1012 of the Alberta and Saskatchewan NRTAs.  
The three provisions indicate that, notwithstanding the transfer of control over land to  
 
Page 24  
Manitoba, responsibility for administering Indian reserves will remain with the federal  
Crown (para. 11); that the rules set out in the March 24, 1924 agreement between Canada  
and Ontario will apply to these Indian reserves and to any others subsequently created in  
the Province (para. 12); and that provincial hunting and fishing laws will apply to Indians  
except that these laws shall not prevent Indians from hunting and fishing for food on  
unoccupied Crown lands (para. 13).  
[12] The broad purpose of the NRTA was to transfer control over land and natural resources  
to the three western provinces. The first two of the three provisions on Indian Reserves”  
were included to specify that the administration of these reserves would remain with the  
federal government notwithstanding the general transfer.  
(Underline emphasis in original)  
[60] This Court has also commented generally on the purposes of the NRTAs. In R v Grumbo  
(1998), 159 DLR (4th) 577 (Sask CA) [Grumbo], Sherstobitoff J.A., writing for the majority, noted  
that the primary purpose of The Natural Resources Transfer Agreement and confirmatory  
legislation was to transfer Crown lands from the Government of Canada to the Province of  
Saskatchewan …” (at para 29). While not directly on point, in Peter Ballantyne at paras 4748,  
Herauf J.A. determined that paragraphs 10 and 11 of the NRTA (i.e., the paragraphs dealing with  
Indian Reserves) did not create any obligations with regard to Indigenous people.  
[61] In their 1929 report, Hon. W.F.A. Turgeon, Hon. T.A. Crerar, and Charles M. Bowman,  
Report of the Royal Commission on the Transfer of the Natural Resources in Manitoba (Ottawa:  
FA Acland, printer, 1929) [1929 MB Resource Report], the Commissioners wrote the following  
regarding provincial control of natural resources (at 78):  
The Object and Intent of the Order in Council.  
Admittedly the object of the Order in Council is to place the Province of Manitoba in the  
position in which it would have been had it come into Confederation in 1870 vested with  
the ownership and control of its natural resources to the same extent and with the same  
rights and limitations as have always prevailed in the case of Ontario, Quebec, Nova Scotia  
and New Brunswick, who entered the Union in 1867. The position to be created for  
Manitoba is one of equality in all respects with the older provinces; nothing less but also,  
of course, nothing more than equality of treatment is intended to be brought about.  
[62] A fundamental rationale behind the transfer of Crown land and natural resources under the  
NRTAs was to provide for the financial security of each province. In their 1935 report, Hon. A.K.  
Dysart, Hon. T.M. Tweedie, and George C. McDonald, Report of the Royal Commission on the  
Natural Resources in Alberta (Ottawa: J.O. Patenaude printer, 1935), the Commissioners set out  
the basic principle underlying provincial control of natural resources (at 7):  
Page 25  
Chapter II  
Control of Natural Resources in Canada  
5. The principle. It seems to be a principle, widely if not universally followed in British  
democracies, that natural resources should be administered and controlled by the province  
in which they lie, for the revenue and other purposes of that province.  
[63] These financial goals were further described by the majority in Reference re Exported  
Natural Gas Tax, [1982] 1 SCR 1004 at 10801081:  
The allocation in 1930, by agreement and constitutional amendment, of property to the  
Crown in the right of the province of Alberta necessarily carries with it the right of the  
province to the proceeds of disposition in the words of Duff J. to enjoy the fruits of that  
property[The Attorney-General of the Province of British Columbia v The Attorney-  
General for Canada (1922), 64 SCR 377 at 385]. The resources were intended to be an  
important source of revenue, indeed the basis of the provincial financial integrity, and  
therefore must be capable of realization. Some activity must accompany any disposal. …  
It is clear that the natural gas was not processed or combined in any way with any other  
material. At the border the gas was delivered to the United States buyer. It can hardly be  
said that the province was in the businessof processing natural gas. It was simply selling  
its property in its natural and deliverable state and to which property the province  
undoubtedly has the sole and absolute title.  
[64] Turning from the NRTAs, it is equally important to examine the text of Treaty No. 4,  
because it is an essential part of the context for interpreting the meaning of trusts and other  
interests as used in paragraph 1 of the NRTAs. The following portions of the treaty are relevant to  
this interpretation:  
The Cree and Saulteaux Tribes of Indians, and all other the Indians inhabiting the district  
hereinafter described and defined, do hereby cede, release, surrender and yield up to the  
Government of the Dominion of Canada, for Her Majesty the Queen, and Her successors  
forever, all their rights, titles and privileges whatsoever, to the lands included within the  
following limits, that is to say: —  
[A geographical boundary described in detail]  
And Her Majesty the Queen hereby agrees, through the said Commissioners, to assign  
reserves for said Indians, such reserves to be selected by officers of Her Majestys  
Government of the Dominion of Canada appointed for that purpose, after conference with  
each band of the Indians, and to be of sufficient area to allow one square mile for each  
family of five, or in that proportion for larger or smaller families … .  
And further, Her Majesty agrees that Her said Indians shall have right to pursue their  
avocations of hunting, trapping and fishing throughout the tract surrendered, subject to  
such regulations as may from time to time be made by the Government of the country,  
acting under the authority of Her Majesty, and saving and excepting such tracts as may be  
required or taken up from time to time for settlement, mining or other purposes, under grant  
or other right given by Her Majestys said Government.  
(Emphasis added)  
Page 26  
[65] The emphasized portions of the excerpts from Treaty No. 4 illustrate two important points  
that must be considered when interpreting paragraph 1 of the NRTA:  
(a)  
Indigenous title to land was fully surrendered in Saskatchewan over 50 years before  
the NRTA was signed; and  
(b)  
the treaty expressly stated that the Crown represented by Saskatchewan as of 1930  
would have the right to utilize land that was not set aside as Indian reserves for  
the purposes of, among other things, mining.  
[66] It is with this overall purpose in mind, and within the entire context of the NRTAs and the  
existence and wording of Treaty No. 4, that paragraph 1 of the NRTA must be interpreted.  
4.  
Interpretation of paragraph 1 of the NRTA  
[67] Although there is a large body of case law that addresses various sections of the Manitoba,  
Saskatchewan and Alberta NRTAs, none of the parties, or this Court (in its own research), were  
able to identify any instances that interpreted the phrase subject to any trusts existing in respect  
thereof, and to any interest other than that of the Crown in the same the specific portion of  
paragraph 1 of the NRTAs that is now in question. I will focus my analysis on the term trusts,  
because that is where the parties concentrated their submissions. However, all of the analysis  
applies equally to the phrase any interest other than that of the Crown.  
[68] The word trusts is not defined in the NRTAs. The following succinct, albeit incomplete,  
definition was adopted by Collier J. in R v Guerin, [1982] 2 FC 385 at 413414, affd [1984] 2  
SCR 335, as set out in R.T. Oerton, Underhills Law Relating to Trusts and Trustees, 12th ed  
(London, UK: Butterworths, 1970) at 3:  
A trust is an equitable obligation, binding a person (who is called a trustee) to deal with  
property over which he has control (which is called the trust property), for the benefit of  
persons (who are called the beneficiaries or cestuis que trust, of whom he may himself be  
one, and any one of whom may enforce the obligation. Any act or neglect on the part of a  
trustee which is not authorised or excused by the terms of the trust instrument, or by law,  
is called a breach of trust.  
[69] In GGFNs view, the trusts referred to in paragraph 1 of the NRTA include an interest in all  
mineral rights for any Band with an unfulfilled TLE. It submits that the trust in this case was  
established by Treaty No. 4, under which GGFN asserts it is one of the beneficiaries. It contends  
 
Page 27  
that Saskatchewan accepted the transfer of mineral rights from Canada as trust property and held  
those mineral rights as trustee for the benefit of Bands in the province, including GGFN as long  
as TLEs remain unfulfilled. For the reasons that follow, I cannot give effect to these arguments.  
[70] In order for GGFN to be a beneficiary of a trust referenced in the NRTA, Saskatchewan, as  
trustee, would have to have something less than a full beneficial interest in mineral rights in  
general. A portion of the beneficial interest would have to be held for the benefit of GGFN and,  
presumably, other Bands with unfulfilled TLEs. If Saskatchewan holds the entirety of the  
beneficial interest, this argument cannot succeed. In examining this proposition, I return first to  
the 1929 MB Resource Report.  
[71] It is clear from that report that the prevailing belief was that the provinces not only had  
control of natural resources, but also full beneficial ownership, without any burden of the kind  
claimed, of a trust nature or otherwise, related to treaty obligations. This is evident from the  
following conclusion reached by the Commissioners (at 39):  
We find then that it was expressly decided by the Privy Council in the case of Canada vs.  
Ontario, (1910) A.C. 637, and the earlier cases therein referred to, that the Dominion has  
no legal claim against a Province or against the lands of a Province when an Indian treaty  
is concluded, because the undertaking to pay annuities to the Indians constitutes no charge  
upon the land, which remains the beneficial property of the Provincial Government.  
[72] The overall scheme of the NRTA was a mechanism to transfer Crown lands and natural  
resources from the federal government to Saskatchewan, providing Saskatchewan with the same  
rights in relation to land and natural resources as those enjoyed by the original four provinces. This  
provided Saskatchewan the freedom to administer and profit from these resources in the same  
manner as the older provinces. This purpose militates against an interpretation that the land and  
mineral rights were imbued with a trust by the NRTA in favour of GGFN for unfulfilled treaty  
obligations.  
[73] This interpretation is also consistent with the undisputed fact that Canada holds existing  
reserve lands for the benefit of each First Nation and has the duties and obligations associated with  
that state of affairs. It is my view that similar duties and obligations do not arise for Saskatchewan  
with respect to mineral rights on non-reserve lands.  
Page 28  
[74] GGFN relies on Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC  
48, [2014] 2 SCR 447 [Grassy Narrows], for the proposition that Saskatchewan holds the mineral  
rights in trust while there are outstanding TLEs. It contends that Saskatchewan holds legal title for  
administrative purposes to Treaty No. 4 lands and resources pursuant to the NRTA and is bound  
by all of the duties that were attendant upon Canada prior to the transfer to the provinces. This  
leads to their conclusion that, while TLEs remain unfulfilled, a trust in the mineral rights exists. In  
my view, that case does not support this assertion.  
[75] In Grassy Narrows, the Supreme Court grappled with the question of whether Ontario  
could take up lands by granting a licence to a private company to conduct clear-cut forestry  
operations in territory in the Keewatin area covered by Treaty 3 between Her Majesty the Queen  
and the Saulteaux Tribe of the Ojibbeway Indians at the Northwest Angle on the Lake of the Woods  
with Adhesions, 3 October 1873, or whether Canada needed to approve the licence as well. Writing  
for the Court, McLachlin C.J.C. determined that a two-step process, requiring federal  
authorization, was not necessary. In doing so, she wrote as follows:  
[31] Once the Keewatin lands came within Ontarios borders in 1912, s. 109 of the  
Constitution Act, 1867 became applicable. Section 109 provides:  
109. All Lands, Mines, Minerals, and Royalties belonging to the several  
Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and  
all Sums then due or payable for such Lands, Mines, Minerals, or  
Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova  
Scotia, and New Brunswick in which the same are situate or arise, subject  
to any Trusts existing in respect thereof, and to any Interest other than that  
of the Province in the same.  
Section 109 establishes conclusively that Ontario holds the beneficial interest in the  
Keewatin lands and the resources on or under those lands. In addition, s. 92(5) of the  
Constitution Act, 1867 gives the Province exclusive power over the Management and Sale  
of the Public Lands belonging to the Province and of the Timber and Wood thereonand  
s. 92A gives the Province exclusive power to make laws in relation to non-renewable  
natural resources, forestry resources, and electrical energy. Together, these provisions give  
Ontario the power to take up lands in the Keewatin area under Treaty 3 for provincially  
regulated purposes, such as forestry.  
[76] In my view, the conclusion urged by GGFN does not flow from this reasoning. While  
McLachlin C.J.C. noted that Ontario also had obligations under Treaty 3, such as the duty to  
consult, this is a long way from determining that each province holds all mineral rights in trust  
while there are outstanding TLEs. To the contrary, Grassy Narrows supports a narrower  
interpretation of trusts in paragraph 1 of the NRTAs because it confirms that the provinces hold the  
Page 29  
beneficial interest in the lands, including resources. While, as summarized in paragraph 35 of  
Grassy Narrows, both levels of government have responsibilities for fulfilling obligations of the  
Crown under the treaties with respect to matters that fall under their own jurisdiction within the  
division of powers set out in the Constitution Act, 1867 those obligations do not support the  
existence of trusts, as asserted by GGFN.  
[77] In this vein, I find the reasoning from Kainaiwa/Blood Tribe v Alberta (Energy), 2017  
ABQB 107, 21 Admin LR (6th) 332, persuasive and in accordance with the above analysis. In  
Kainaiwa, the Blood Indian Band and Canada entered into two settlement agreements after Canada  
had mistakenly sold some of the reserve lands to a private party. The settlement agreements  
provided the Blood Indian Band with monetary compensation for the surrenderand gave it the  
option of purchasing land that could be added to its reserve. The Blood Indian Band purchased  
surface rights to six parcels of land, but the subsurface rights were vested in the provincial Crown  
and were subject to leases. Alberta refused to transfer the subsurface rights to the Blood Indian  
Band. As a result, the Blood Indian Band sought mandamus directing Alberta to transfer the  
subsurface land rights to it. It argued that Alberta was obliged to consent to the transfer of  
subsurface rights because paragraph 1 of Albertas Natural Resources Transfer Agreement, being  
Schedule 2 to the Constitution Act, 1930 (UK), 20-21 Geo V, c 26, reprinted in RSC 1985, App II,  
No 26 [Alberta NRTA], transferred all public land within Alberta to the province subject to any  
trusts existing in respect thereof. The Blood Indian Band argued that the transfer was subject to  
the right to reserve land under Treaty No. 7 between Her Majesty the Queen and the Blackfeet and  
Other Indian Tribes, at the Blackfoot Crossing of Bow River and Fort Macleod, 22 September  
1877, which included subsurface rights. However, the Alberta Court of Queens Bench found that,  
inferentially, the six parcels of land were not imbued with a trust under paragraph 1 of the Alberta  
NRTA because that land had not previously been part of the Blood Indian Bands reserve. In  
making this determination, Jeffrey J. stated the following:  
[64] However, the Bands argument overlooks the fact that the Purchased Lands never  
formed part of the Bands reserve; they were never subject to any interest created by Treaty  
7. Only after entering into the 1st and 2nd Akers Settlement did the Band acquire an interest  
in the Purchased Lands. Prior to that and, more specifically, when the [Alberta] NRTA was  
enacted, the Band did not have any interest in or claim to the subsurface rights underlying  
the Purchased Lands. Alberta received those subsurface rights unencumbered by any  
obligation to the Band. The Band does not presently have any interest in the subsurface  
rights underlying the Purchased Lands. Accordingly neither Treaty 7 nor the [Alberta]  
NRTA oblige Alberta to transfer to the Band the subsurface rights.  
Page 30  
[78] Furthermore, lands surrendered under a treaty are not encumbered by a trust in relation to  
treaty obligations. This was made clear by Lamer C.J.C. in Delgamuukw v British Columbia,  
[1997] 3 SCR 1010, where he discussed the effect on the nature of the Crowns ownership once  
Indigenous title was surrendered or extinguished:  
[175] … Although that provision vests underlying title in provincial Crowns, it qualifies  
provincial ownership by making it subject to the any Interest other than that of the  
Province in the same. In St. Catherines Milling [(1887), 13 SCR 577], the Privy Council  
held that aboriginal title was such an interest, and rejected the argument that provincial  
ownership operated as a limit on federal jurisdiction. The net effect of that decision,  
therefore, was to separate the ownership of lands held pursuant to aboriginal title from  
jurisdiction over those lands. Thus, although on surrender of aboriginal title the province  
would take absolute title, jurisdiction to accept surrenders lies with the federal government.  
The same can be said of extinguishment -- although on extinguishment of aboriginal title,  
the province would take complete title to the land, the jurisdiction to extinguish lies with  
the federal government.  
(Emphasis added)  
See also R v St. Catharines Milling and Lumber Company (1887), 13 SCR 577; Ontario v Canada  
(1895), 25 SCR 434; and Haida Nation at para 59.  
[79] While Grumbo dealt with a different issue, Sherstobitoff J.A., for the majority, was of the  
opinion that trusts in relation to land and mineral rights in paragraph 1 of the NRTAs referred to  
existing Indian reserves, not all other land or mineral rights in the province:  
[29] … Under [paragraph] 1, the transfer was made subject to any trusts existing in respect  
thereof. Since all Indian lands were held by Canada, and since Canada had exclusive  
jurisdiction over Indians, [paragraph] 10 provided that all Indian reserves and other lands  
reserved or to be reserved for Indians continued to be vested in Canada. [Paragraph] 11  
provided that certain statutory conditions would apply to Indian reserves in Saskatchewan.  
[80] There is nothing in the authorities that would support an assertion that the original four  
provinces were limited in their ability to deal with mineral rights as a result of outstanding treaty  
obligations or that the newer provinces had some additional burden imposed on them that was not  
shared by the older provinces. To the contrary, they all support the notion that the purpose of the  
NRTAs was to place Saskatchewan, and its counterparts, on the same footing as the other provinces.  
This accords with the opening portion of the NRTAs: In order that the Province may be in the  
same position as the original Provinces of Confederation are in virtue of section one hundred and  
nine of the [Constitution Act, 1867] …” (at paragraph 1). In my opinion, it could not be clearer  
that Saskatchewan was to be placed in the exact same position as Ontario, Quebec, New Brunswick  
and Nova Scotia in relation to its natural resources after the NRTA was signed in 1930.  
Page 31  
[81] Of course, the words in question must have some meaning. It is a principle of statutory  
interpretation that Parliament and the provincial legislatures do not include superfluous language.  
This principle is applicable to the interpretation of the NRTA as well. A full reading of the NRTA  
provides an answer to this query by revealing that other provisions of it, echoed in similar  
paragraphs in the two other NRTAs, explicitly set out several of the trusts and interests referred to  
in paragraph 1: such as, pre-existing land, mines, mineral and royalty interests and entitlements  
(paragraphs 2 and 3); land grants to railway companies (paragraph 4); rights held by the Hudsons  
Bay Company (paragraph 5); existing Indian reserves (paragraphs 10 and 11); soldier settlement  
lands (paragraph 13); national parks (paragraphs 1417); land registered in Canadas name in the  
land titles registry or used by Canada (paragraph 19); and historic sites, bird sanctuaries and public  
shooting grounds (paragraph 20).  
[82] Turning to the ambiguity principle, I find that the language in paragraph 1 of the NRTA is  
quite clear. There is no lack of clarity or uncertainty that would invoke this principle to arrive at  
the interpretation urged upon this Court by GGFN. It does not make sense that Saskatchewan and  
Canada would specifically address these other trusts and interests but leave the general phrase to  
capture the significant and all-encompassing asserted rights of GGFN and other Bands. This is  
even more unlikely when one considers that the NRTA explicitly addressed several interests of  
Bands in Indian reserves (paragraphs 10 and 11) and hunting, fishing and trapping rights  
(paragraph 12). There is no mention of any specific trust or interest for unfulfilled treaty  
obligations within the text of the NRTA. In my view, this was not merely an oversight or of such a  
nature that the drafters would expect it to be captured by the general language of paragraph 1,  
particularly in light of the specific language in paragraphs 10 and 11. Knowing the text of Treaty  
No. 4, and other treaties, and knowing that there remained unfulfilled obligations under those  
treaties, the drafters of the NRTA addressed outstanding TLE by including paragraphs 10 and 11.  
Those paragraphs, particularly paragraph 10, address unfulfilled TLE and provide a mechanism  
by which Saskatchewan must provide assistance to Canada to fulfill Canadas obligations. This  
leaves no room for TLE to be captured by the general phrase referred to in paragraph 1 of the  
NRTAs.  
[83] This interpretation is in harmony with s. 35(1) of the Constitution Act, 1982. It accords  
with the two purposes of s. 35(1) as set out in Desautel:  
Page 32  
[22] … As I will explain, the two purposes of s. 35(1) are to recognize the prior occupation  
of Canada by organized, autonomous societies and to reconcile their modern-day existence  
with the Crowns assertion of sovereignty over them. These purposes are reflected in the  
structure of Aboriginal rights and title doctrine, which first looks back to the practices of  
groups that occupied Canadian territory prior to European contact, sovereignty or effective  
control, and then expresses those practices as constitutional rights held by modern-day  
successor groups within the Canadian legal order. The same purposes are reflected in the  
principle of the honour of the Crown, under which the Crowns historic assertion of  
sovereignty over Aboriginal societies gives rise to continuing obligations to their  
successors as part of an ongoing process of reconciliation.  
[84] In short, I conclude that the NRTA did not transfer Crown lands and mineral rights to the  
province subject to a trust or other interest in relation to minerals with GGFN as the beneficiary.  
GGFNs legal and beneficial rights were surrendered under Treaty No. 4. When Crown lands and  
resources were transferred to Saskatchewan in 1930, it then held both the legal and beneficial title  
to the subsurface rights. As such, a duty to consult with GGFN in relation to mineral dispositions  
cannot arise on the basis of a trust or other interest as referred to in paragraph 1 of the NRTA. If  
such a duty exists, it must be found elsewhere. I find no error in the Chambers judges conclusion  
on this issue.  
C.  
Duty to consult  
[85] In addition to its assertions regarding paragraph 1 of the NRTA, GGFN argues that a duty  
to consult arose under several other principles or a combination of those principles. It contends  
that the Chambers judge erred by finding that a duty to consult did not arise in these circumstances  
through an examination of the situation at hand when viewed through the lens of s. 35 of the  
Constitution Act, 1982, the unfulfilled obligations under Treaty No. 4, the honour of the Crown,  
and the resultant Crown fiduciary obligations. Saskatchewan argues that the Chambers judge  
correctly determined that there was no duty to consult.  
[86] The duty to consult in question in this matter is related only to the narrow issue of whether  
Saskatchewan had a duty to consult with GGFN before it disposed of mineral rights to third parties  
within a 100 km radius of GGFNs existing reserve lands, so that GGFN could consider if it wished  
to obtain those mineral rights. This duty is argued to have arisen during the negotiation of the  
Settlement Agreement (which settled outstanding land claims in 2008) and after the settlement  
came into effect. I use these temporal and geographic limits because, while GGFNs submissions  
also repeatedly refer to mineral rights throughout the entire province, or in Treaty No. 4 territory,  
 
Page 33  
and refer to the year 1969 at one point, this time period and land radius is what was being asserted  
by GGFN in its claim in the Court of Queens Bench. Thus, it is not seeking, in this action, to have  
a duty to consult found to exist outside of these parameters. The limits capture the location and  
timing of the dispositions related to the potash rights that underpin this action.  
[87] The test to determine whether a duty to consult exists in any particular circumstance is  
well-established and was correctly identified by the Chambers judge. The Supreme Court in Haida  
Nation set out the test and subsequently explicitly broke it down into three elements in Rio Tinto  
Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 at paras 31, 40, 42, 4450, [2010] 2 SCR  
650 [Rio Tinto]:  
(a)  
(b)  
(c)  
knowledge by the Crown of a potential claim or right the Crown must have  
knowledge, actual or constructive, of a potential, identified Indigenous claim or  
right to the land or resource to which it attaches;  
Crown conduct or decision there must be current contemplated Crown conduct  
or a Crown decision, including a strategic, higher-level decision, that may adversely  
have an impact on the claim or right at some point in time; and  
adverse effect of the proposed Crown conduct on an Indigenous claim or right –  
the contemplated conduct or decision must have the potential to adversely affect an  
Indigenous claim or right in an appreciable manner, and the claimant must show  
a causal relationship between the proposed government conduct or decisionand  
the potential for such an effect (at para 45).  
[88] The duty to consult is grounded in the honour of the Crown and has a constitutional  
character: Rio Tinto at paras 3234, Mikisew Cree at paras 33 and 5158, and Mikisew Cree First  
Nation v Canada (Governor General in Council), 2018 SCC 40 at para 20, [2018] 2 SCR 765  
[Mikisew Cree First Nation 2018]. The context created by the principle of the honour of the Crown,  
and s. 35(1) of the Constitution Act, 1982, was recently discussed by the Supreme Court in  
Desautel:  
[29] The two purposes of s. 35(1) were reiterated in Mitchell [[2001] 1 SCR 911] by  
McLachlin C.J., who said:  
Page 34  
[9] Long before Europeans explored and settled North America, aboriginal  
peoples were occupying and using most of this vast expanse of land in  
organized, distinctive societies with their own social and political  
structures. [T]he Crown asserted that sovereignty over the land, and  
ownership of its underlying title, vested in the Crown. With this assertion  
arose an obligation to treat aboriginal peoples fairly and honourably, and  
to protect them from exploitation, a duty characterized as fiduciaryin  
Guerin [[1984] 2 SCR 335]. [Underline emphasis added in Desautel;  
citations omitted; para 9.]  
[30] In this Courts recent jurisprudence, the special relationship between Aboriginal  
peoples and the Crown has been articulated in terms of the honour of the Crown. As was  
explained by McLachlin C.J. and Karakatsanis J. in Manitoba Metis [2013 SCC 14], at  
para. 67:  
[67] The honour of the Crown [] recognizes the impact of the  
superimposition of European laws and customson pre-existing  
Aboriginal societies [R v Van der Peet, [1996] 2 SCR 507 at para 248, per  
McLachlin J., dissenting]. Aboriginal peoples were here first, and they  
were never conquered; yet, they became subject to a legal system that they  
did not share. Historical treaties were framed in that unfamiliar legal  
system, and negotiated and drafted in a foreign language. The honour of  
the Crown characterizes the special relationshipthat arises out of this  
colonial practice [Beckman v Little Salmon/Carmacks First Nation, 2010  
SCC 53]. [Underline emphasis added in Desautel; citations omitted.]  
While the honour of the Crown looks back to this historic impact, it also looks forward to  
reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually  
respectful long-term relationship(Beckman v. Little Salmon/Carmacks First Nation, 2010  
SCC 53, [2010] 3 S.C.R. 103, at para. 10; see also Mikisew Cree First Nation v. Canada  
(Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 21, per  
Karakatsanis J.; and Newfoundland and Labrador (Attorney General) v. Uashaunnuat  
(Innu of Uashat and of Mani-Utenam), 2020 SCC 4, at paras. 21 and 28, per Wagner C.J.  
and Abella and Karakatsanis JJ.; and at paras. 2078, per Brown and Rowe JJ., dissenting).  
The honour of the Crown requires that Aboriginal rights be determined and respected, and  
may require the Crown to consult and accommodate while the negotiation process  
continues (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004]  
3 S.C.R. 511, at para. 25; see also Taku River Tlingit First Nation v. British Columbia  
(Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24). It also  
requires that the Crown act diligently to fulfill its constitutional obligations to Aboriginal  
peoples (Manitoba Metis, at para. 75).  
It is within this constitutional and legal framework that the asserted duty to consult must be  
evaluated.  
[89] The existence of a duty to consult is a question of law reviewable on the standard of  
correctness: Haida Nation at para 63 and Buffalo River Dene Nation at para 31. It is the Chambers  
judges bottom-line conclusion that a duty to consult was not triggered in this case which must be  
evaluated.  
Page 35  
1.  
Crowns knowledge of an identified claim or right  
[90] As set out earlier, the Chambers judge concluded that GGFN had an identified claim of  
which Saskatchewan and Canada were aware:  
[112] First, was there an identified treaty or Aboriginal right or claim to mineral rights?  
The claim of George Gordon to additional reserve lands was known before the [Settlement  
Agreement]. This claim was based on its interpretation of Treaty No. 4. The [Settlement  
Agreement], while not a treaty, was an agreement to implement a process to settle that  
claim. That agreement included an ability to acquire mineral rights, albeit through Canada,  
when George Gordon acquired the surface rights. There was, therefore, an identified claim.  
[91] While acknowledging that the Chambers judge determined there was an existing claim,  
GGFN submits that it did not have just a claim, it had an unfulfilled treaty right to land and  
minerals pursuant to Treaty No. 4 and the Settlement Agreement. GGFN asserts that there were  
two separate periods of consultation that arose as a result of that claim in relation to that right: the  
negotiation period prior to 2008 and the period that ran after the Settlement Agreement was signed  
in 2008.  
[92] GGFN argues that its unfulfilled treaty rights to land and minerals, pursuant to Treaty  
No. 4, are treaty rights that are protected by s. 35(1) of the Constitution Act, 1982. It further  
contends that its rights under the Settlement Agreement are constitutionally protected treaty rights.  
GGFN relies on the principles of the honour of the Crown and Canadas and Saskatchewans  
fiduciary obligations to assert that a right to consultation existed.  
[93] Saskatchewan fully acknowledges that it was aware of GGFNs unfulfilled TLE in the  
negotiation period and after the Settlement Agreement was signed. The recitals to the agreement  
confirm this. However, it argues that the Settlement Agreement is not a treaty and does not have a  
constitutional footing.  
[94] I begin by observing that, in the case of a treaty the Crown, as a party, will always have  
notice of its contents(Mikisew Cree at para 34): see also Buffalo River Dene Nation at para 36.  
However, the Settlement Agreement is not a treaty; and, therefore, it did not create treaty rights  
and is not constitutionally protected. This issue was decided in Pasqua First Nation 2018 (at  
para 12) and Muskoday First Nation (at para 37), where very similar agreements that arose under  
the TLE process were found not to be treaties. I agree with the conclusion of those two courts on  
this issue.  
 
Page 36  
[95] Moreover, this conclusion is unambiguously sustained by the terms of the Settlement  
Agreement itself, where this very issue was decided by the parties and agreed to in s. 20.21:  
20.21 No Creation of Treaty Obligation  
Each of the parties agrees that nothing in this Agreement is intended, nor shall it be  
interpreted or construed in any way:  
(a) as confirming, acknowledging or creating any obligation under any  
treaty as between Saskatchewan and the Band; or  
(b) as any admission on the part of Saskatchewan that it now has, ever had,  
or may hereafter have, any direct or indirect obligation to provide land or  
money to any Person whatsoever (other than its obligations to provide  
unoccupied Crown Land to Canada) pursuant to the Natural Resources  
Transfer Agreement.  
[96] Despite this conclusion, it is my view that nothing turns in this part of the test on whether  
the Settlement Agreement is categorized as a treaty or whether the assertion by GGFN is labelled  
as an identified claim or an identified right. In conducting the analysis of this first portion of the  
test, it was necessary for the Chambers judge to understand the nature of the claim or right and the  
Crowns knowledge of the set of circumstances that gave rise to it. The threshold to find knowledge  
of an identified right or claim is not high: Rio Tinto at para 40. Here, the examination of this aspect  
is relatively simple. GGFN had unfulfilled TLE under Treaty No. 4, which was addressed through  
the successful negotiations that culminated in the signing and ratification of the Settlement  
Agreement. Those facts were not in dispute and were known and understood by all of the parties.  
There is no question that both Saskatchewan and Canada were well aware of GGFNs unfulfilled  
TLE during the negotiation of the Settlement Agreement and in the period after it was signed. It  
was the very reason for entering into the Settlement Agreement. This portion of the test is easily  
satisfied and was correctly determined by the Chambers judge.  
2.  
Crown conduct or decision that engages a potential right  
[97] GGFN asserts that any disposal by Saskatchewan of mineral rights to third parties during  
the negotiation of the Settlement Agreement, and during the period after it was signed but before  
GGFN had acquired the land it was entitled to was conduct that engaged a right that it held. That  
right was the right to obtain surface and subsurface rights to that same land in order to have  
GGFNs outstanding TLE fulfilled. It alleges that Saskatchewan deliberately withheld information  
that the province had received through third party applications for mineral dispositions on land in  
close proximity to the existing GGFN reserve lands and then disposed of those rights for its own  
 
Page 37  
profit and to the detriment of GGFN. It contends that any mineral dispositions by Saskatchewan  
in the delineated time period and geographic location of potential Settlement Agreement lands had  
an adverse effect on its treaty rights. Saskatchewan disputes all of this.  
[98] The examination of steps two and three of the Rio Tinto test (i.e., Crown conduct and  
adverse effect) generate significant overlap. It is not simply any Crown conduct that triggers the  
impingement of a potential Indigenous right and satisfies the second requirement. The conduct or  
decision must engage a claim or potential right in a manner that may result in an adverse effect on  
that claim or potential right. Although the adverse effect portion of the test requires a separate  
examination, this third aspect of the Rio Tinto test informs the analysis of the second step. As such,  
the nature of the claim, the mineral rights in question, the alleged adverse effect, and all of the  
surrounding circumstances provided important context for this portion of the Chambers judges  
decision.  
[99] In my view, the Chambers judge did not err in determining that Saskatchewans conduct  
or decision by continuing to dispose of mineral rights in the same manner as it had previously  
done, without providing further information to GGFN, during the period that the Settlement  
Agreement was being negotiated or after it was signed did not engage a potential right or claim  
of GGFN. I reach this conclusion for the following reasons.  
[100] First, the mineral dispositions did not underlie any land that already formed part of the  
existing GGFN reserve (i.e., pre-Settlement Agreement lands). The conduct or decision had no  
potential to affect the existing reserve land.  
[101] Second, under paragraph 10 of the NRTA, Saskatchewans obligation with regard to Crown  
land held by the province was to Canada and was triggered only when Canada made a request for  
lands. There was no evidence that this specific type of request was made in a manner that is relevant  
to the matter at hand. GGFNs claim related only to mineral rights.  
[102] Third, as noted earlier, GGFNs claim is only in relation to mineral rights. Treaty No. 4  
does not contemplate a reserve consisting of minerals only, with the surface rights being held  
privately by an unrelated party. The Settlement Agreement did not change this limitation. GGFN  
can only obtain mineral rights to add to its existing reserve if the surface rights are also available  
Page 38  
for acquisition. Saskatchewan was not disposing of surface rights when it made mineral  
dispositions.  
[103] Fourth, there was no evidence that Saskatchewan granted any mineral dispositions related  
to any Crown land in the geographical area that is the subject of the claim. Saskatchewan grants  
mineral dispositions for both private and Crown land. The vast majority of the land in southern  
Saskatchewan consists of privately held land, not Crown land. GGFN did not have the right to  
obtain any privately held land, absent a willing seller. Saskatchewan provided notice to GGFN of  
a huge number of undisposed Crown mineral titles associated with this privately held land. There  
was no evidence that GGFN obtained any such privately held surface rights to land and was  
prevented from obtaining the associated mineral rights because Saskatchewan had already  
disposed of them.  
[104] Fifth, as soon as GGFN expressed an interest in obtaining a parcel of land, private- or  
Crown-held, Saskatchewan would suspend any future Crown mineral dispositions for that specific  
land for an initial review period of 3 months, followed by a freeze period of 18 months, which was  
automatically extended by a further 18 months when the surface rights were privately owned. The  
disposition of Crown mineral rights by Saskatchewan would be frozen for up to 39 months, while  
GGFN arranged for the acquisition of surface rights. As of the date of the Chambers hearing,  
13,242 acres of Crown mineral rights remained frozen on behalf of GGFN. Of those frozen acres,  
GGFN had acquired approximately half of the surface rights and was waiting for the land to attain  
reserve status so that Saskatchewan could transfer the corresponding mineral rights to them. GGFN  
had not yet acquired the surface rights for the other half. There was no evidence that Saskatchewan  
had disposed of any mineral rights for any land that GGFN had expressed an interest in obtaining  
under the terms of the Settlement Agreement. This freeze represented Crown conduct whereby  
Saskatchewan completely accommodated GGFN in relation to its claim.  
[105] Sixth, a duty to consult by Saskatchewan with regard to mineral dispositions cannot be  
grounded in a fiduciary duty arising out of the honour of the Crown in relation to the  
implementation of the Settlement Agreement. As set out in Pasqua First Nation 2016 (at paras 62–  
63), the Crown does not owe fiduciary duties in the performance of TLE agreements: see also  
Muskoday First Nation (at para 54). Further, in Pasqua First Nation 2016, the majority observed  
Page 39  
that the parties cannot use the court to rewrite or reinterpret the terms of the [TLE] agreement”  
(at para 64). Saskatchewan must act honourably in respecting and abiding by the terms of the TLE  
agreements, but a duty to consult does not arise as a result of this requirement: Pasqua First Nation  
2018 at paras 1213. There are no allegations that Saskatchewan breached any provision of the  
Settlement Agreement. This principle does not support a finding that Crown conduct or a decision  
on the part of Saskatchewan affected an Indigenous right or claim of GGFNs.  
[106] GGFN relies on Long Plain First Nation v Canada (Attorney General), 2012 FC 1474,  
[2013] 1 CNLR 184, revd in part in Long Plain First Nation CA [Long Plain First Nation FC],  
and Long Plain First Nation CA, for the proposition that the mineral disposition process engaged  
its rights and triggered a duty to consult. In that matter, the duty to consult was similarly alleged  
to have arisen in the context of TLE agreements. However, while these decisions have relevance  
to other aspects of this matter, I find them to have no bearing on the existence of a duty to consult.  
As recognized by GGFN in its written argument, in Long Plain First Nation FC (at para 66) and  
Long Plain First Nation CA (at paras 73 and 97), Canada conceded that it had a duty to consult.  
As a result, the judgments do not analyze the constituent elements as set out in Rio Tinto. There is  
no such concession in the matter at hand.  
[107] Seventh, the terms of the Settlement Agreement itself demonstrate that the issue of mineral  
rights and dispositions were front and centre for the parties, but an examination of those provisions  
does not support a finding that the Crowns continued disposition of mineral rights was conduct  
that required additional consultation. The following sections of that agreement, while not  
providing a complete list of all of the provisions that address mineral interests, illustrate this point:  
Article 4  
Land Acquisition  
4.05 Principle Underlying Sale of Crown Lands:  
(c) If Canada or Saskatchewan agree to sell any federal or provincial Crown Lands or  
Crown Improvements as aforesaid, then for a period of eighteen (18) months following  
delivery by Canada or Saskatchewan of a notification to the Band confirming their  
intention to sell, the identified Crown Lands or Crown Improvements shall be available for  
sale to the Band, subject only to an agreement (or a determination hereunder) respecting  
the purchase price and satisfaction of any applicable conditions precedent.  
Page 40  
(d) During the eighteen (18) month period referred to in subsection (c), neither Canada nor  
Saskatchewan shall (other than for the benefit of the Band) permit the sale of such federal  
or provincial Crown Lands or Crown Improvements, or grant any Third Party Interests in  
respect thereof without the prior written consent of the Band, except:  
(i) any interests which any existing Third Party Interest Holder is entitled to  
pursuant to the terms of a contractual arrangement with Saskatchewan or Canada  
or pursuant to provincial legislation;  
(ii) Public Utility Easements; or  
(iii) any new Third Party Interest with a term of less than one (1) year.  
4.06 Sale of Crown Land:  
Subject to applicable law, each of Canada and Saskatchewan agrees to give favourable  
consideration to offers from the Band to purchase federal or provincial Crown Land,  
including federal or provincial Crown Improvements thereon, and not to unreasonably  
withhold the same, provided that nothing in this Agreement (with the exception of  
subsection 4.05(c)) shall be interpreted as requiring Canada or Saskatchewan to sell or  
transfer any specific parcel of federal or provincial Crown Land (including Crown  
Improvements thereon) to, or for the benefit of, the Band.  
Article 5  
Minerals  
5.01 Shortfall Acres to Include All Minerals:  
(a) The Band agrees that, prior to the Shortfall Acres Acquisition Date, all Entitlement  
Land Purchased shall include all Minerals and shall be free and clear of all Mineral  
Dispositions and, in the case of Land in respect of which all the underlying Minerals are  
owned by the provincial or federal Crown, such Minerals shall not, in the case of provincial  
Crown Minerals, be the subject of any Public Purposes Plan.  
(b) Notwithstanding subsection (a) above, prior to the Shortfall Acres Acquisition Date,  
the surface of Entitlement Land may be Purchased without acquiring all, or any, of the  
underlying Minerals, provided however:  
(i) the eligibility of such Entitlement Land to become an Entitlement Reserve shall  
be subject to the terms and conditions of this Agreement, including, without  
limitation, the terms of section 4.03, this Article, Article 8 and Article 11; and  
(ii) in any event, the aggregate surface area of all Entitlement Land Purchased  
without acquiring all, or any, of the underlying Minerals prior to the Shortfall  
Acres Acquisition Date, shall not exceed Four Thousand (4,000) acres.  
5.02 Land Exceeding Shortfall Acres:  
From and after the Shortfall Acres Acquisition Date, the surface of Land may be Purchased  
without acquiring all, or any, of the underlying Minerals, provided, however, eligibility of  
such Land for creation as an Entitlement Reserve shall be subject to the terms and  
conditions of this Article and Article 11.  
5.03 Certain Crown Owned Minerals:  
(a) Canada and Saskatchewan agree to give favourable consideration to offers from or on  
behalf of the Band to Purchase federal or provincial Crown Minerals which are subject to  
a Mineral Disposition, provided that each Mineral Disposition Holder consents to such  
Purchase.  
Page 41  
(c) If the Band indicates in writing that it wishes to Purchase any provincial or federal  
Crown Minerals pursuant to this Agreement, Canada and Saskatchewan agree to advise the  
Band as soon as reasonably possible, but in any event within ninety (90) days of receipt of  
such a written request, containing a description that identifies the subject property, whether  
or not they are prepared to sell the said Crown Minerals and to identify any conditions  
precedent that must be satisfied by the Band prior to the sale being finalized.  
(d) If Canada or Saskatchewan agree to sell any Crown Minerals as aforesaid, then for a  
period of eighteen (18) months following delivery by Canada or Saskatchewan of a  
notification to the Band confirming their intention to sell, the identified Crown Minerals  
shall be available for sale to the Band subject to an agreement (or a determination under  
this Agreement) respecting the purchase price and the satisfaction of any identified  
conditions precedent.  
(e) During the period referred to in subsection (d), Canada and Saskatchewan agree that  
they shall not (other than for the benefit of the Band) sell or transfer any interest in, grant  
any Mineral Disposition, or establish any Public Purpose, in respect of any such Crown  
Minerals without the Bands prior written consent, except any interests which any existing  
Mineral Disposition Holder is entitled to pursuant to the terms of the Mineral Disposition  
or provincial legislation.  
5.04 Transfer of Certain Minerals by Saskatchewan and Canada Without  
Compensation:  
(a) In respect of all Entitlement Land up to and including the Bands Saskatchewan  
Formula Quantum:  
(i) where Saskatchewan is the Fee Simple Mineral Owner of any Undisposed  
Minerals underlying such Entitlement Land, Saskatchewan shall, without  
compensation, transfer such Undisposed Minerals to Canada for the benefit of the  
Band effective upon creation of the Entitlement Reserve;  
(ii) where Saskatchewan at any time becomes the Fee Simple Mineral Owner of  
any Undisposed Minerals underlying an Entitlement Reserve, Saskatchewan shall,  
without compensation, promptly transfer the same to Canada for the benefit of the  
Band;  
(iii) notwithstanding subparagraph (i), but subject to subparagraph (iv), where  
Saskatchewan is the Fee Simple Mineral Owner of any Undisposed Minerals  
underlying Entitlement Land which are required for Public Purposes,  
Saskatchewan shall not be required to transfer such Undisposed Minerals to  
Canada for the benefit of the Band;  
(iv) where Saskatchewan is the Fee Simple Mineral Owner of any Minerals which  
were, as at the date that such Entitlement Land was Purchased, withheld by  
Saskatchewan for Public Purposes but any of such Minerals have subsequently  
ceased to be necessary for Public Purposes, Saskatchewan shall, without  
compensation, promptly transfer such Minerals to Canada for the benefit of the  
Band;  
Page 42  
(v) Saskatchewan shall, upon a written request from the Band, advise the Band of  
the existence (or non-existence) of a Public Purposes Plan in respect of any  
particular Undisposed Minerals as soon as reasonably possible, but in any event  
within thirty (30) days of receipt by Saskatchewan of such a request;  
(vi) In the event of a dispute between Saskatchewan and the Band as to whether  
any Undisposed Minerals underlying Land were the subject of a Public Purposes  
Plan:  
(A) as of the date that Saskatchewan received written notice from the Band  
that the Land was the subject of an Agreement to Purchase with a third  
party; or  
(B) in the case of provincial Crown Lands, as of the date that the Band has  
made a request to Saskatchewan pursuant to subsection 5.04(a)(v);  
shall be referred to the Arbitration Board for resolution in accordance with Article  
19; and  
(vii) where Canada is, or at any time becomes, the Fee Simple Mineral Owner of  
any Undisposed Minerals underlying Entitlement Land, Canada agrees to set apart  
such Undisposed Minerals as part of the Entitlement Reserve without  
compensation.  
(b) Crown Minerals which are, or were, the subject of a Mineral Disposition shall be  
deemed to be Undisposed Minerals in the following circumstances:  
(i) when the Disposition Holder does not exercise, within the time frame permitted  
pursuant to the Mineral Disposition, any available option to renew the Mineral  
Disposition;  
(ii) when the Mineral Disposition Holder abandons the Mineral Disposition;  
(iii) if the Mineral Disposition Holder fails to produce or extract the Mineral which  
is the subject of the Mineral Disposition for a period of time which would, under  
the terms of the Mineral Disposition, permit Saskatchewan or Canada to terminate  
the Mineral Disposition or refuse to renew the same; or  
(iv) the term of the Mineral Disposition, including all renewals, has expired.  
5.06 Valuation of Minerals:  
(a) The independent appraiser selected or appointed pursuant to section 5.03 shall  
determine the purchase price of Crown Minerals which Saskatchewan has agreed to sell to  
the Band by determining the net present day value to Saskatchewan of the Provincial  
Mineral Revenues that Saskatchewan would have earned if not for the transfer of the  
Minerals to the Band.  
5.07 Non-Consent of Disposition Holder:  
(a) Notwithstanding subsection 5.03(a), where Saskatchewan is the Fee Simple Mineral  
Owner of Minerals underlying Entitlement Lands which it does not hold in trust pursuant  
to an existing trust agreement or trust certificate for any Person, but a Mineral Disposition  
Holder does not consent to the sale of such Minerals to the Band, Saskatchewan agrees that  
it will give favourable consideration to the Purchase of its interest notwithstanding the lack  
of consent by the Mineral Disposition Holder provided an Agreement to Purchase has first  
Page 43  
been entered into among Canada, Saskatchewan and the Band containing the following  
terms and conditions, together with others that the parties may agree upon:  
(i) the purchase price for the said Minerals shall, unless otherwise agreed, be paid  
to Saskatchewan upon the signing of the Agreement to Purchase the same;  
(ii) Saskatchewan will agree to transfer the Minerals to Canada for the benefit of  
the Band forthwith upon the expiration or termination of the interest held by the  
Mineral Disposition Holder that failed or refused to consent to the sale of the  
Minerals to the Band;  
(iii) Saskatchewan will pay to the Band (or to Canada in the event the surface of  
the Entitlement Land is held in the name of Canada) for the use and benefit of the  
Band, all Provincial Mineral Revenues actually paid to Saskatchewan in respect of  
the said Minerals between the date of the signing of the agreement referred to in  
subparagraph 5.07(a)(i) and the date of the transfer of Minerals referred to in  
subsection 5.07(a)(ii), minus an agreed-upon fee for administration not to exceed  
five (5%) percent of such Provincial Mineral Revenues; and  
(iv) in the event of a default by the Mineral Disposition Holder, Saskatchewan  
agrees to take all reasonable steps to collect any unpaid Provincial Mineral  
Revenues owing by such Mineral Disposition Holder to Saskatchewan pursuant to  
the terms of the Mineral Disposition.  
(b) In any case where subsection (a) is applicable, Canada agrees that any Provincial  
Mineral Revenues transferred to Canada for the benefit of the Band pursuant to subsection  
5.07(a) will not be considered to be revenues of Saskatchewan for the purpose of  
calculating any entitlement which Saskatchewan might have to equalization payments or  
for the purposes of other federal-provincial fiscal arrangements whatsoever.  
5.08 Transfer of Provincial Crown Minerals in Certain Circumstances:  
(a) Where Saskatchewan is the Fee Simple Mineral Owner of any Minerals underlying  
Entitlement Lands which it does not hold in trust pursuant to an existing trust agreement  
or trust certificate for any Person which are subject to a Mineral Disposition and the Band  
indicates that it wishes to Purchase the Minerals and to pay for the Minerals out of the  
future revenue to be earned from those Minerals, Saskatchewan will transfer the Minerals  
to Canada, unencumbered, effective upon the Entitlement Reserve creation provided:  
(i) the Mineral Disposition Holder has agreed to surrender its Mineral Disposition  
and accept a Replacement Mineral Disposition; and  
(ii) Canada agrees to take all necessary steps to create a Replacement Mineral  
Disposition and, pursuant thereto, to remit to Saskatchewan, from those amounts  
received by Canada from the Mineral Disposition Holder, an amount equivalent to  
the Provincial Mineral Revenues which would have otherwise been payable to  
Saskatchewan (based upon actual production by such Mineral Disposition Holder)  
had the Minerals which are the subject of the Replacement Mineral Disposition  
not been transferred to Canada.  
(b) In the event that the Mineral Disposition Holder defaults under the terms of the  
Replacement Mineral Disposition, Canada and the Band agree:  
(i) to immediately advise Saskatchewan of the default;  
Page 44  
(ii) to take all reasonable steps to collect the amounts due from the Mineral  
Disposition Holder and to pay therefrom an amount up to (but not exceeding) the  
Provincial Mineral Revenues owing by Canada to Saskatchewan pursuant to  
subsection 5.08(a)(ii) to the date the Replacement Mineral Disposition is  
terminated; and  
(iii) upon request of Saskatchewan, to take steps to cancel the Replacement  
Mineral Disposition if the default has not been remedied prior to receipt of such  
request from Saskatchewan.  
(c) In the event that the Replacement Mineral Disposition is terminated as a result of the  
default by the Mineral Disposition Holder, any of Canada, Saskatchewan or the Band may  
arrange for a new Replacement Mineral Disposition and Canada agrees to grant the new  
Replacement Mineral Disposition on terms and conditions generally available in the  
industry at the time and for a period of time, including associated rights of renewal, similar  
to those that had been contained in the original Mineral Disposition. In such an event,  
Canada agrees to take all necessary steps to create a new Replacement Mineral Disposition  
and thereafter the obligations of Canada, as outlined under subsections 5.08(a) and (b),  
shall thereafter continue in respect of the new Replacement Mineral Disposition.  
(d) In the event that arrangements for a new Replacement Mineral Disposition have not  
been made within five (5) years from the date of termination of a Replacement Mineral  
Disposition as provided under subsection (b), no further payments shall be required to be  
made by Canada to Saskatchewan in respect thereof and Saskatchewan shall forthwith  
cease to have any rights or beneficial interest in respect of the affected Minerals or potential  
revenues derived therefrom.  
(e) Saskatchewan agrees to promptly notify Canada of any changes from time to time in  
the royalties, taxes and rents which form the basis for the calculation of Provincial Mineral  
Revenues unless, pursuant to applicable federal legislation, such changes are deemed to  
apply to the Replacement Mineral Disposition without notice.  
(f) The terms of any Replacement Mineral Disposition shall include, unless otherwise  
agreed among Canada, Saskatchewan and the Band, provisions which:  
(i) to the extent reasonably possible coincide with the term of the Mineral  
Disposition including all available renewals;  
(ii) automatically increase the amounts otherwise payable by the Mineral  
Disposition Holder pursuant to the Replacement Mineral Disposition in  
accordance with any increases in the royalties, taxes and rents which form the basis  
for calculation of the Provincial Mineral Revenues; and  
(iii) automatically terminate the Replacement Mineral Disposition not more than  
sixty (60) days following any default in payment of any amounts due to be paid by  
the Disposition Holder to Canada pursuant to the terms thereof.  
(g) In the event that Canada is entitled, pursuant to the terms of the Replacement Mineral  
Disposition, to receive amounts which exceed the Provincial Mineral Revenues, then such  
excess amounts, if any, shall be received by Canada for the use and benefit of the Band.  
Page 45  
5.12 Purchase of Freehold and Federal Crown Minerals Only:  
The parties agree that, from and after the Shortfall Acres Acquisition Date, freehold or  
federally held Minerals, or any interests therein, may be Purchased without the Band  
having to Purchase the surface of the Land. In such an event, the Band agrees that such  
Minerals, or any interest therein, shall not be set apart as an Entitlement Reserve unless  
ownership of all accompanying Land has been acquired in the form required pursuant to  
this Agreement.  
Article 20  
General Provisions  
20.12 Entire Agreement:  
(a) This Agreement shall constitute the entire agreement between the parties relating to the  
settlement of outstanding Treaty land entitlement claim of the Band, and supersedes and  
cancels any and all pre-existing agreements and understandings relating thereto including,  
without in any way limiting the generality of the foregoing, any alleged understanding  
among the parties commonly known as the 1976 Agreementor the Saskatchewan  
Formula.  
(b) No preliminary drafts or prior versions of this Agreement, whether signed or unsigned,  
and none of the documents, letters, memoranda of position, minutes or other written  
material delivered or released by any party on a without prejudicebasis shall be utilized  
or relied on by any party (save and except for the party which produced, released or  
delivered the same) to construe the terms or affect the validity or interpretation of this  
Agreement.  
(c) No representation, inducement, promise, understanding, condition or warranty not set  
forth herein has been made or relied upon by any party.  
[108] These lengthy excerpts are reproduced in order to illustrate the level of detail that was  
included in the Settlement Agreement related to mineral resources and dispositions. In addition to  
these specific portions, there are numerous other sections that address these same topics more  
tangentially. Further, the definition section set out in Article 1 is peppered with references to  
minerals rights and their disposition, including a specific definition for minerals, mineral  
disposition and undisposed minerals.  
[109] I note that paragraphs 5.03(d) and (e), in particular, demonstrate that the parties turned their  
mind to notification with regard to Crown minerals. These provisions specify the circumstances  
that oblige Saskatchewan to provide notification to GGFN, regarding the disposition of Crown  
minerals and to not dispose of them under certain circumstances. There is no evidence that  
Saskatchewan breached these obligations. The notice requirement set out in the sections is  
significantly different from what GGFN now asserts was necessary. If additional notification were  
required, one might have expected it would have been included in these provisions. Their absence  
is notable and cannot be interpreted as an oversight in this context.  
Page 46  
[110] Sections 5.04, 5.06, 5.08 and 5.12 include additional examples of terms that contain  
detailed provisions regarding mineral dispositions by Saskatchewan and acquisitions by GGFN.  
This provides additional evidence that the parties turned their mind to these issues but did not see  
the need for any additional provisions regarding consultation of the nature now asserted.  
[111] I further observe that, under s. 5.04(a)(i), Saskatchewans provision of Crown-held mineral  
rights for privately held land is contingent on GGFN obtaining the surface rights through a private  
sale. To repeat an earlier point, there was no evidence that GGFN obtained any such privately held  
land and was prevented from obtaining the mineral rights because Saskatchewan had already  
disposed of them during the negotiation period or after the Settlement Agreement was signed.  
[112] Lastly, on the effect of the terms of the Settlement Agreement with regard to a duty to  
consult, I note that s. 20.12 indicates that it contains the entire agreement among the parties.  
Nothing in the Settlement Agreement prohibits Saskatchewan from disposing of mineral rights in  
the manner that it did or without additional consultation with GGFN.  
[113] A General Protocol Agreement on the Negotiation of Treaty Land Entitlement Settlements  
in Saskatchewan and the Framework Agreement similarly do not contain any consultation  
requirements of the nature asserted by GGFN.  
[114] Despite the significant terms in the Settlement Agreement addressing when and how  
GGFN was to acquire mineral rights, and the explicit right of GGFN to acquire undisposed Crown  
mineral rights without paying compensation, there is nothing in the Settlement Agreement that  
required Saskatchewan to provide notice to GGFN when a third party expressed an interest in  
mineral rights and the province agreed to dispose of those rights. Of course, a duty to consult does  
not need to be found in the text of an agreement in order to exist in relation to the subject matter  
of that agreement: Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 69,  
[2010] 3 SCR 103 [Beckman], and Long Plain First Nation CA at paras 119120. However, when  
a sophisticated party like GGFN in the context of the TLE framework, with the assistance of the  
FSIN and the Treaty Commissioner, while being represented by independent legal counsel and  
financial advisors throughout the negotiation enters into a comprehensive settlement document,  
which is designed to resolve long-outstanding entitlements under a treaty, the absence of  
provisions requiring Saskatchewan to do what GGFN now alleges it was required to do, while not  
Page 47  
determinative, must hold some sway. This is particularly true when the agreement is replete with  
terms that are directly related to the acquisition of mineral rights.  
[115] Finally, if GGFNs position were to be accepted, Saskatchewan would have been required  
to share all information about mineral dispositions that third parties had applied for and, in effect,  
offer a right of first refusal to GGFN with regard to all mineral dispositions in an area extending  
100 km in each direction from its existing reserve lands (i.e., pre-Settlement Agreement lands). In  
other words, stripped to its core, the impugned Crown conduct consists of not providing  
confidential information (supplied by third parties) and then offering GGFN a right of first refusal  
to the mineral rights to which the confidential information and third party expression of interest  
related. As noted by the Chambers judge, this change in practice would be a dramatic departure  
from past practice with significant implications(at para 114). While GGFN disputes the  
characterization of its position as that of requiring a right of first refusal, the inevitable result of  
consultation in the form asserted by GGFN would be the creation of such a right. The Chambers  
judge did not err in finding that it would do just that. As discussed by the Supreme Court in Haida  
Nation (at paras 4849) and Ktunaxa Nation (at para 83), consultation does not always lead to  
accommodation and is not the equivalent of a veto. However, the required consultation, as asserted  
by GGFN in the matter at hand, would have approached that of a veto.  
[116] GGFN asserts that it was not asking for a veto and points to the fact that Saskatchewan  
could have invoked the public purposes provisions of the Settlement Agreement. A close reading  
of those provisions does not support that position. That term is defined in the Settlement  
Agreement as follows:  
Article 1  
Definitions and Interpretation  
1.01 Definitions:  
57.  
Public Purposesmeans the utilization or conservation of Minerals for the  
benefit of the general public of the Province of Saskatchewan, or a substantial  
portion thereof as distinguished from purposes which concern particular  
individuals or estates in Land or Minerals but, for greater certainty, does not  
include the purpose of earning current, or protecting future, royalties, taxes or  
other revenues on behalf of Saskatchewan.  
(Italic emphasis added)  
Page 48  
[117] The mineral dispositions in question appear to have been made for the dominant purpose  
of earning royalties, taxes or other revenue for Saskatchewan. In his cross-examination,  
Mr. MacKnight stated that, from Saskatchewans perspective, a public purpose is not related to  
the future development of the resource. Generally, … a public purpose [is] in an area where they  
might flood it for a dam at some date, and we dont want mineral claims in that area. While I am  
not determining this issue, as it is not before me, it is by no means certain that the public purposes  
exception would have applied to the impugned mineral dispositions.  
[118] The consultation process asserted by GGFN would require Saskatchewan to provide the  
fruits of the research, efforts and due diligence of third parties to GGFN and then allow it to benefit  
from the information contained in those applications and obtain the identified mineral rights, all  
under the umbrella of the Settlement Agreement. First Nations in Saskatchewan have acquired  
over 840,000 acres of mineral rights under the TLE process, without the form of consultation and  
right of first refusal urged by GGFN. I see no basis for finding that such a consultation process  
was necessary.  
[119] Based on all of these factors, it is my view that the Chambers judge was correct in  
determining that there was no conduct or decision by Saskatchewan that engaged a right or claim  
held by GGFN that would have triggered a duty to consult. The Crown conduct, as represented by  
Saskatchewan, had no potential to affect GGFNs existing claim or rights.  
3.  
The potential for adverse effect  
[120] The Chambers judge found there was not an actual foreseeable adverse effect on GGFNs  
rights. In doing so, he reasoned as follows (repeated here for reference):  
[115] Finally, was there an actual foreseeable adverse impact? George Gordon argued that  
the failure of Saskatchewan to provide prior notice and then to allow it a right of first refusal  
effectively deprived George Gordon of its right to acquire land close to the original reserve  
and within its traditional territory.  
[118] I agree with Saskatchewan that George Gordon was not forcedto acquire land  
elsewhere. It was naturally constrained by the same factors that would affect any buyer,  
including price and availability in the marketplace.  
[119] George Gordon was in the same position as anyone else seeking to acquire real  
property. In fact, it may have been in a better position in terms of information, since the  
Saskatchewan ministries provided special access to treaty land entitlement Bands. …  
 
Page 49  
[120] The [Settlement Agreement], consistent with the TLE Framework Agreement, put  
the Band in the drivers seat. It had the right and the responsibility to find and acquire lands  
for acquisition. There was no unfairness in this. Rather, it addressed concerns of past  
paternalism.  
[121] On the evidence, Saskatchewans policies and practice did not present an  
unreasonable barrier. …  
[126] The evidence supports a conclusion that the process provided under the [Settlement  
Agreement] worked. It did not prevent George Gordon from acquiring land, including  
minerals, to satisfy its entitlement.  
[127] The practice of a first come, first served policy may have made George Gordons  
goal of acquiring potash reserves more difficult. But if so and with respect, George  
Gordons proposal was an unreasonable expectation of Saskatchewan and of Canada.  
[128] Saskatchewan was not required to agree to this novel proposal by George Gordon.  
As stated above in [Muskoday First Nation] at paras 5355 and 67, the honour of the Crown  
remains compatible with due regard for the public interest and other private interests.  
Saskatchewans decision to stay with its standard practice of first come, first served was  
reasonable. George Gordons request for notice of applications for mineral dispositions  
under a duty to consult was not reasonable.  
[121] GGFN contends these determinations were made in error. The adverse effect asserted by  
GGFN from the disposal of Crown mineral rights to third parties without notice to GGFN is the  
resultant inability of it to subsequently exercise its treaty right to additional land and minerals and  
to acquire subsurface rights of its choosing, held by Saskatchewan, without having to pay any  
compensation. It further asserts that it was adversely affected because the mineral dispositions  
made by Saskatchewan diminished the lands and minerals available to GGFN, particularly with  
regard to potash, with which to have their rights fulfilled under Treaty No. 4 and the Settlement  
Agreement. Saskatchewan argues that the Chambers judge appropriately considered all of the  
circumstances and did not err in finding an absence of potential adverse impact.  
[122] Having affirmed that there was no conduct or decision by Saskatchewan that required  
consultation, and given the overlap between steps two and three of the Rio Tinto test, it is difficult  
to isolate and examine a potential adverse effect. However, a separate assessment of this aspect of  
the test is required. The connection between the latter two steps in the test necessitates that the  
analysis of this third aspect of the Rio Tinto test be informed by the adverse effect factors that  
wove their way into my examination of the second part.  
Page 50  
[123] The meaning of adverse effect (also sometimes called adverse impact) has been extensively  
discussed in the jurisprudence, and is comprehensively canvassed in Buffalo River Dene Nation at  
paras 4176. While I have considered all of the cases mentioned in Buffalo River Dene Nation, I  
find the following statements of the law, mentioned in that case, to be particularly relevant to the  
matter at hand.  
[124] In Rio Tinto, McLachlin C.J.C. described this element of the test in terms of appreciable  
adverse effect that prejudices the future exercise of the right itself:  
[46] Again, a generous, purposive approach to this element is in order, given that the  
doctrines purpose, as stated by Newman [The Duty to Consult: New Relationships with  
Aboriginal Peoples (Saskatoon: Purich Publishing, 2009], is to recognize that actions  
affecting unproven Aboriginal title or rights or treaty rights can have irreversible effects  
that are not in keeping with the honour of the Crown(p. 30, citing Haida Nation, at  
paras. 27 and 33). Mere speculative impacts, however, will not suffice. As stated in R. v.  
Douglas, 2007 BCCA 265, 278 D.L.R. (4th) 653, at para. 44, there must an appreciable  
adverse effect on the First Nationsability to exercise their aboriginal right. The adverse  
effect must be on the future exercise of the right itself; an adverse effect on a First Nations  
future negotiating position does not suffice.  
[47] Adverse impacts extend to any effect that may prejudice a pending Aboriginal claim  
or right. Often the adverse effects are physical in nature. However, as discussed in  
connection with what constitutes Crown conduct, high-level management decisions or  
structural changes to the resources management may also adversely affect Aboriginal  
claims or rights even if these decisions have no immediate impact on lands and resources:  
Woodward, [Native Law, loose-leaf (Rel 4), vol 1 (Toronto: Carswell, 1994)] at p. 5-41.  
This is because such structural changes to the resources management may set the stage for  
further decisions that will have a direct adverse impact on land and resources. For example,  
a contract that transfers power over a resource from the Crown to a private party may  
remove or reduce the Crowns power to ensure that the resource is developed in a way that  
respects Aboriginal interests in accordance with the honour of the Crown. The Aboriginal  
people would thus effectively lose or find diminished their constitutional right to have their  
interests considered in development decisions. This is an adverse impact: see Haida  
Nation, at paras. 7273.  
[125] In Hupacasath First Nation v Canada (Foreign Affairs), 2015 FCA 4, 379 DLR (4th) 737,  
Stratas J.A. described this aspect of the test as follows:  
[85] Both before the Federal Court and in this Court, the central issue was whether the third  
of these requirements a causal relationship between the Crown conduct and potential  
adverse impacts on pending Aboriginal claims or rights was met. The degree of causal  
relationship and whether it has been met in this case lies at the core of the debate between  
the parties.  
[86] On this, the parties agree that the Federal Court accurately identified the law  
concerning the degree or quality of causal relationship that must be present in order to  
trigger a duty to consult. That law is found, once again, in Rio Tinto, supra and contains  
two elements:  
Page 51  
• The focus of the analysis must be the effect caused by the Crown conduct on  
Aboriginal rights or the exercise of rights (at paragraph 46). A general adverse  
impactor an effect caused on matters divorced from rights, such as a First  
Nations future negotiating position,is irrelevant (at paragraphs 46 and 50);  
• While a “generous, purposive approach [must] be taken, the effect on rights  
must be one of appreciable adverse effect. While possibleimpacts can qualify,  
those that are [m]ere[ly] speculative will not suffice(at paragraph 46).  
[101] Before us, the appellant emphasized that there is a difference between possibilities”  
and speculationsand that while the Supreme Court said the duty to consult does not arise  
in the case of the latter, it does in the case of the former. The mere possibility of harm is  
enough.  
[102] The appellant is right to draw this distinction to our attention. And in some cases the  
line between the two might be a fine one. However, the aims behind the recognition of the  
duty can assist us in drawing the line. To reiterate, they are to protect Aboriginal rights  
from injury, to protect against irreversible effects and to preserve the future use of the  
resources claimed by Aboriginal peoples while balancing countervailing Crown interests:  
see paragraphs 8283 above. An impact that is, at best, indirect, that may or may not happen  
at all (such that we cannot estimate any sort of probability), and that can be fully addressed  
later is one that falls on the speculative side of the line, the side that does not trigger the  
duty to consult.  
[126] In Buffalo River Dene Nation, Caldwell J.A., after exhaustively examining the  
jurisprudence on adverse effect, summarized this requirement as follows:  
[90] A potential adverse impact one that is more than speculative will be proven when  
the claimant has established that the impugned Crown conduct will have some appreciable  
and current potential to adversely impact the substance of a claimed right. …  
[91] That leads to the second reason. The duty to consult is triggered at a low threshold,  
but it must remain a meaningful threshold the applicant has to establish some sort of  
appreciable or discernible impact flowing from the impugned Crown conduct before a duty  
to consult in relation to that impact will arise. This is both logical and practical because  
there has to be something for the Crown and the Aboriginal group to consult about the  
duty to consult is, at core, a practical doctrine. …  
[127] It is not enough to simply articulate a speculative adverse effect. I expect that such an  
articulation could almost always be accomplished by skilled counsel. As noted above by Caldwell  
J.A., there must be a current and appreciable potential to have an adverse effect on the substance  
of the claim or right.  
[128] Turning to the matter at hand, I note, as a first point, that Saskatchewan did not change its  
practice of mineral dispositions as a result of the TLE process. While there was a boom in potash-  
related dispositions from 2005 to 2008, it continued to deal with mineral rights in much the same  
manner as it had done for decades. The designation of the potash area by Saskatchewan, in which  
Page 52  
dispositions of other subsurface rights would not be permitted, was a modification to existing  
practice, but this shift did not cause any detriment to GGFN. To the contrary, this shift would have  
benefitted it by removing the possibility of companies seeking oil and gas dispositions in the potash  
area.  
[129] While GGFN asserts that Saskatchewans actions forced it to choose land and minerals up  
to 600 km from its existing reserve and relies on Binnie J.s analogy to the truffle diggers of  
southern France, in Mikisew Cree at para 45, as illustrative of the problem with such an option –  
the evidence does not support an assertion that Saskatchewans conduct forced it to make those  
distant acquisitions. Up until 2015, mineral dispositions for subsurface mineral salts, including  
potash, were made by Saskatchewan on a first come, first served application process. Since 2015,  
they have been done through a public tendering process. Only one new potash mine has become  
operational in Saskatchewan since the spike in potash dispositions in 2005 to 2008. Many of the  
potash dispositions acquired by private parties in the period from 2005 to 2008 have expired or  
otherwise terminated and have reverted to Saskatchewan. The Chambers judge found as a fact that  
there were other lands and minerals that could have been obtained by GGFN in close proximity to  
its existing reserve and that it was not forced to obtain other land. This finding was well supported  
by the evidence.  
[130] GGFN did chose some land and minerals that were at a great distance from its existing  
reserve, as it was entitled to do under the Settlement Agreement, but there was no evidence  
explaining why GGFN had done so or why there was nothing suitable in a closer proximity. The  
evidence was to the contrary with regard to suitable nearby lands. However, under the terms of the  
Settlement Agreement, GGFN was entitled to acquire land anywhere in Saskatchewan and, like  
other First Nations, selected some land far away from its existing reserve in preference to closer  
land. Presumably, it did so based on its evaluation of the potential benefit of those acquisitions to  
the members of the Band.  
[131] While some of the impugned mineral dispositions were on land adjacent to, or in close  
proximity to, GGFNs existing reserve, the analysis must not lose sight of the fact that it is the  
mineral rights, and its ability to potentially exploit those mineral rights for economic gain, that  
forms the basis of GGFNs concerns. As set out in Mr. Pratts affidavit, GGFN wished to obtain  
Page 53  
mineral rights in southern Saskatchewan with that purpose in mind. The claim at hand arises out  
of GGFNs dissatisfaction with not being able to obtain the mineral rights to specific land in  
southern Saskatchewan that contains potash reserves.  
[132] It is true that GGFN cannot now obtain the mineral rights to specific parcels of land,  
particularly potash rights, that it is aware were acquired by third parties. It has missed the chance  
to either develop its own potash mine on those exact lands, or enter into a royalties agreement with  
a third party who would develop a mine on those lands. However, such a missed opportunity does  
not translate into an adverse effect on GGFNs rights in the situation at hand. As noted in  
Ms. Wilsons and Mr. MacKnights affidavit, there were 3,774,845 acres of Crown mineral  
reserves in the potash area in south central Saskatchewan as of the date of the Chambers  
application. Of those mineral reserves, only 144,309 acres, or 3.8%, had been the subject of  
dispositions, making those lands unavailable at the time of the Settlement Agreement. This left  
96.2% of the Crown mineral reserves in the area potentially available for selection by GGFN, with  
a majority of the minerals undisposed. There is no explanation in the evidence as to how the Crown  
disposition of this 3.8% prejudiced GGFNs aspirations. As seen from the map appended as exhibit  
F to Mr. MacKnights affidavit, the existing GGFN reserve is located centrally within the potash  
area. While it was unable to take advantage of advance knowledge of private mining companies’  
exploration work and analysis, and then exercise a right of first refusal for land that had already  
been evaluated at third party expense, there is no evidence that its ambitions to acquire land and  
Crown mineral rights in the potash area in close proximity to its existing reserve were thwarted by  
the manner in which Saskatchewan made mineral dispositions. An adverse effect cannot be  
founded on an uncommunicated, novel, economic ambition that was only a mere conjecture, was  
speculative in nature and where there is no evidence, given the availability of other potash rights,  
that it was potentially hindered.  
[133] Based on this additional analysis, combined with my observations under the second part of  
the Rio Tinto test, it is my view that the Chambers judge was correct in determining that there was  
no adverse effect from Saskatchewan continuing to dispose of mineral rights in the negotiation  
period and in the period after the Settlement Agreement was signed.  
Page 54  
D.  
Breach of a duty to consult  
1. Decision to be reviewed  
[134] The Chambers judge determined that, even if a duty to consult with GGFN did exist,  
Saskatchewan had not breached that duty. His reasons for doing so were brief:  
If there was a duty to consult, did Saskatchewan breach its duty?  
[132] If I am wrong and a duty to consult did exist, then I would find it was satisfied by  
the procedures followed by Saskatchewan. As stated in the Supreme Court decision in  
Ktunaxa Nation at para 80:  
[80] …  
• The duty to consult and, if appropriate, accommodate the  
Aboriginal interest is a two-way street. The obligations on the  
Crown are to provide notice and information on the project, and  
to consult with the Aboriginal group about its concerns. …  
[133] Saskatchewans practices, both before and after the [Settlement Agreement], did  
provide notice to George Gordon about potential land and mineral dispositions available  
for acquisition. Both in terms of the practice and the result, there was no unfairness.  
[134] Having regard to all of the above considerations, George Gordon has failed to  
establish breach of a duty to consult by Saskatchewan.  
[135] GGFN