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Indigenous - Duty to Consult (4). Saskatchewan (Environment) v. Métis Nation – Saskatchewan
In Saskatchewan (Environment) v. Métis Nation – Saskatchewan (SCC, 2025) the Supreme Court of Canada dismissed a provincially-brought JR seeking "a declaration that Saskatchewan breached its duty to consult by failing to consult MNS about the impact of the exploration permits with respect to title and commercial harvesting rights". The appeal relates to an interlocutory "motion to strike portions of MNS’s application, based on abuse of process", due to the existence of other proceedings involves the same matters.
The court considers the indigenous duty to consult, here while indigenous rights are still uncertain:[50] The duty to consult operates pending a final determination of claims (Haida, at para. 38; see also Rio Tinto, at para. 33). As such, any arguments that the duty to consult does not arise until after rights and title claims are resolved are inconsistent with this Court’s jurisprudence. The duty to consult serves “to provide protection to Aboriginal and treaty rights” while land and resource claims are ongoing, and to further “the goals of reconciliation between Aboriginal peoples and the Crown” (Rio Tinto, at para. 34, citing Haida). As this Court explained in Haida, at para. 27:The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable. [51] At all stages, both sides must be governed by the duty of mutual good faith (Haida, at para. 42; Behn, at para. 42; R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533, at para. 88). The Crown must possess “‘the intention of substantially addressing [Aboriginal] concerns’ as they are raised” (Haida, at para. 42, quoting Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 168). On their end, Indigenous claimants “must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached” (para. 42).
[52] The duty to consult arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Haida, at para. 35; Desautel, at para. 72). In other words, three conditions must exist for the duty to consult to arise: (1) actual or constructive knowledge of the potential existence of the Aboriginal right or title; (2) contemplated Crown conduct; and (3) a potential adverse effect on the asserted right (Haida, at para. 35; Rio Tinto, at para. 51; Desautel, at para. 72).
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