GOVERNMENT OF SASKATCHEWAN – MINISTRY OF AGRICULTURE APPLICANT/RESPONDENT v. CARRY THE KETTLE FIRST NATON, 2023 SKKB 172

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 172 Date: 2023 08 17 Docket: QBG-RG-00742-2022 Judicial Centre: Regina BETWEEN: GOVERNMENT OF SASKATCHEWAN – MINISTRY OF AGRICULTURE APPLICANT/RESPONDENT -and- CARRY THE KETTLE FIRST NATON RESPONDENT/APPLICANT Counsel: P. Mitch McAdam, K.C., and Macrina Badger for the applicant Karey Brooks, K.C., and Naomi Moses for the respondent FIAT MITCHELL J. AUGUST 17, 2023 A.

Overview [ 1 ] The Government of Saskatchewan—Ministry of Agriculture [Saskatchewan] applies to strike out entirely the originating application commenced by Carry the Kettle Nakoda Nation, known in the Nakoda language as Cega’kin [CTKNN], and dated March 15, 2022. Saskatchewan invokes Rules 7-9(2)(

b) and (

e) of The Queen’s Bench Rules , as well as this Court’s inherent jurisdiction, in support of its application. [ 2 ] In the originating application, CTKNN seeks, among other things, declarations that Saskatchewan (1) has a duty to consult with and, if appropriate, accommodate CTKNN under s. 35 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982, (UK), 1982, c 11 respecting any decision to sell or lease vacant Crown lands located within the CTKNN’s traditional

territory, and (2) has a duty to consult with and, if appropriate, accommodate CTKNN respecting the cumulative adverse effects on itsTreaty rights under s. 35 of the Constitution Act, 1982 of any decision to sell or lease those Crown lands. [3] Saskatchewan asserts that CTKNN’s originating application is vexatious and amounts to an abuse of thisCourt’s process. It states that in 2017, CTKNN commenced a separate action against both the Government of Canada and Saskatchewanraising the very same issues.

See: Chief Brady O’Watch on her own behalf and on behalf of all other Carry the Kettle First Nationbeneficiaries of Treaty No. 4 and Carry the Kettle First Nation v Her Majesty the Queen in Right of the Province of Saskatchewan andthe Attorney General of Canada, QBG-RG-03225-2017, dated December 21, 2017 [2017 Action].

To permit the originating applicationto proceed in tandem with the 2017 Action, Saskatchewan submits, would offend the proscription against multiplicity of proceedingsraising the same legal issues involving the same parties, and be an abuse of this Court’s time and limited judicial resources. [4] CTKNN demurs. It admits there is some overlap between the issues raised in the 2017 Action and thisoriginating application.

However, CTKNN submits that there are fundamental differences between the two legal proceedings. [5] Issues related to alleged breaches of the Crown’s procedural duty to consult are more typically addressed byapplications for judicial review. That, CTKNN asserts, is the correct way to characterize the originating application. [6] Conversely, issues relating to alleged breaches of treaty rights are more appropriately determined following aformal trial.

That is the subject matter which a trial of the 2017 Action will attempt to resolve. [7] It is well-settled that before a matter can be stayed either because it is vexatious or amounts to an abuse ofprocess, an applicant must meet a high legal threshold. This fiat explains why I have concluded that Saskatchewan has failed to reach thisthreshold. Despite the existence of the 2017 Action which is on-going, I am not persuaded that also permitting the originating applicationto proceed to a hearing is either vexatious or an abuse of this Court’s process. B.

Law [8] On this application, as noted, Saskatchewan invokes Rules 7-9(2)(

b) and (

e) of The Queen’s Bench Rules, aswell as this Court’s inherent jurisdiction. Rule 7-9(2)(

b) states that a pleading may be struck out if it is “scandalous, frivolous orvexatious”. Rule 7-9(2)(

e) authorizes a court to strike out a pleading if it “is otherwise an abuse of process”. [9] As a superior court of inherent jurisdiction, this Court has the power to control its own process. This power isessential to the preservation of the rule of law. See, for example: MacMillan Bloedel Ltd. v Simpson, (SCC), [1995] 4SCR 725. It includes the power to direct a stay of proceedings where appropriate. See: Onion Lake Cree Nation v Stick, 2018 SKCA 20at para 46, [2018] 5 WWR 111.

While this authority is inherent in this court, it is also acknowledged in Rule 1-4(3) of The Queen’sBench Rules and affirmed in s. 6-13 of The King’s Bench Act, SS 2023, c 28. [10] Although the terms “abuse of process”, “frivolous”, and “vexatious” are often used interchangeably, it is helpfulto differentiate among them. [11] A pleading will qualify as “scandalous” if it levels degrading charges or baseless allegations of misconduct orbad faith against an opposite party.

See: Siemens v Baker, 2019 SKQB 99 at para 23, [2019] 5 CTC 129 [Siemens], and Paulsen vSaskatchewan (Ministry of Environment), 2013 SKQB 119 at para 45, 418 Sask R 96 [Paulsen]. Courts in British Columbia, forexample, have described a scandalous pleading as “one that is so irrelevant that it will involve the parties in useless expense and willprejudice the [pursuit] of the action by involving them in a dispute apart from the issues”.

See: Turpel-Lafond v British Columbia, 2019 BCSC 51 at para 23, 429 DLR (4th) 131 [Turpel-Lafond] quoting from Woolsey v Dawson Creek (City), 2011 BCSC 751 at para 28. [12] A pleading will qualify as “frivolous” if it is plain or obvious or beyond reasonable doubt the claim it advancesis groundless and cannot succeed.

See: Hunt v Carey Canada Inc., (SCC), [1990] 2 SCR 959 at 980; Yashcheshen vJanssen Inc., 2022 SKCA 140 at para 20-21 [Yashcheshen]; Siemens at para 25, and Paulsen at para 47. [13] A pleading will qualify as “vexatious” if it was commenced for an ulterior motive (other than to enforce a truelegal claim) or maliciously for the purposes of delay or simply to annoy the defendants.

See: Siemens at para 24, and Paulsen at para 46.Put another way, it is vexatious if it does not assist in establishing a plaintiff’s cause of action or fails to advance a claim known in law.See: Turpel-Lafond at para 23. [14] Finally, the concept of a pleading qualifying as an abuse of process is more expansive than these other categories. In Bear v Merck Frosst Canada & Co., 2011 SKCA 152 at para 38, 345 DLR (4th) 152, for example, the Court of Appealstated that “[t]he need to maintain the integrity of the adjudicative process sits at the heart of the concept of abuse of process”. See also:Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63 at para 51, [2003] 3 SCR 77. [15] Very recently, in Métis Nation – Saskatchewan v Saskatchewan (Environment), 2023 SKCA 35 [Métis NationCA] rev’g in

part 2022 SKQB 23 [Métis Nation KB] – a case directly relevant to Saskatchewan’s application – the Court of Appealreviewed the principles relating to the doctrine of abuse of process. Writing for the Court, Leurer J.A. stated at para. 46: [46] The doctrine of abuse of process is a flexible tool employed to prevent the administration of justice from being misused.

There isoften no individual marker indicating when a proceeding will be an abuse of process, and it will typically be necessary to consider all therelevant context and background of a matter: Bear v Merck Frosst Canada & Co., 2011 SKCA 152 at para 41, [2012] 6 WWR 1; andCanadian Pacific Railway Company v Kelly Panteluk Construction Ltd., 2020 SKCA 123 at para 58, 17 CLR (5th) 138 [Kelly Panteluk].However, one factor that tilts toward the conclusion that a proceeding is abusive is where a party is attempting to relitigate an issue thathas already been decided, or is currently being decided, in another forum: Bear at para 38; and Toronto (City) v C.U.P.E., Local 79, 2003SCC 63 at para 51, [2003] 3 SCR 77.

Such attempts waste the resources of the parties, courts and witnesses alike, while riskinginconsistent results and undermining the credibility of the entire judicial process.

[16] Determining if a matter amounts to an abuse of process involves a discretionary decision. See, for example:Canada (Attorney General) v Merchant Law Group LLP, 2017 SKCA 62 at para 100, [2017] 10 WWR 664.

That said, this discretionshould be exercised sparingly and only in exceptional cases as it generally will result in the dismissal of the action or the application.See, for example: Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (Sask CA) at para 18; Philion v Ontario (Attorney General), 2014 ONCA 567 at paras 31 and 49, 376 DLR (4th) 618; and R v Mahalingan, 2008 SCC 63 at para 42,[2008] 3 SCR 316 [Mahalingan]. C. Discussion [17] Although on this application Saskatchewan invoked Rules 7-9(2)(

b) and (e), its argument focussed primarily, ifnot exclusively, on the abuse of process doctrine. However, before I turn to an analysis of that argument, I will address briefly the issueof whether the originating application qualifies as a frivolous or vexatious pleading. 1. The Originating Application is not Frivolous or Vexatious [18] I am satisfied that it is not possible to characterize the originating application as frivolous or vexatious in anyway. It cannot be said to lack legal merit nor was it commenced for an ulterior or improper purpose. Pleadings which do not disclosethese infirmities do not run afoul of Rule 7-9(2)(

b) of The Queen’s Bench Rules. See, especially: Métis Nation CA at para 20, referencingMétis Nation QB at para 44, and Yashcheshen. [19] If Saskatchewan is going to succeed in its application to strike the originating application in its entirety, it mustdemonstrate on a balance of probabilities that it amounts to an abuse of this Court’s process. I turn to my analysis of this issue now. 2. The Originating Application is not an Abuse of Process [20] When assessing if a pleading qualifies as an abuse of the court’s process, the inquiry is case specific andcontextual.

It asks whether on the whole the respondent is misusing the court’s processes. See: Métis Nation CA at para 40, andCanadian Pacific Railway Company v Kelly Panteluk Construction Ltd., 2020 SKCA 123 at para 58, 17 CLR (5th) 138 [Kelly Panteluk]. [21] Multiple legal proceedings, in and of themselves, do not reach the threshold needed to demonstrate an abuse ofthe courts process. See: Mahalingan at para 42, and Kelly Panteluk at para 59.

In Kelly Panteluk at para 59, Ottenbreit J.A. for the courtproposed a two-step inquiry when making this assessment: (1) do the multiple actions relate to the same dispute or matter, and to whatextent? and (2) have the multiple actions been commenced “properly, honestly and in good faith” or are they intended to be vexatious oroppressive to the other litigants in the litigation?

See further: Métis Nation CA at para 46. [22] This approach to multiple legal actions involving the same issues and the same parties is exemplified, for example, in the recent case of Herold v Wassermann, 2022 SKCA 103, 473 DLR (4th) 281 which emerged following the catastrophicHumboldt Broncos bus crash in April 2018. There, a certification application, and an individual action raising the identical legal issues,and involving the same parties were allowed to proceed concurrently.

While the plaintiffs had commenced individual actions, they werealso prospective plaintiffs in any future certification action unless and until they opted out of it pursuant to s. 18 of The Class Actions Act,SS 2001, c C-12.01. [23] To provide context to the arguments advanced by the parties on this application, it is useful to compare the reliefrequested by CTKNN in both the 2017 Action and the originating application. CTKNN’s statement of claim issued in 2017 is found atExhibit “A” of the affidavit of R. James Fyffe sworn September 15,2022.

It is helpful for comparative purposes to present them side-by-side in the following chart: PRAYERS FOR RELIEF REQUESTED BY CTKNN 2017 Action – Statement of Claim 2022 Originating Applicationa) a declaration thatthe Plaintiffs [CTKNN] have a constitutionalright within the meaning of s. 35 of theConstitution Act, 1982, pursuant to the Treatyand the NRTA, to hunt, trap and fish forsubsistence, and for cultural, social andspiritural needs;

b) a declaration thatthe cumulative Adverse Effects of the CrownAuthorizations unjustifiably infringe theTreaty Rights;

c) a declaration thatthe Defendant,s or either of them, havebreached fiduciary duties owed to Carry theKettle and/or have failed to uphold the honourof the Crown by authorizing the AdverseEffects;

d) a declaration thatthe Defendants, or either of them, have a duty I. Orders Sought The Applicant, Carry the Kettle NakodaNation (“Carry the Kettle”), seeks thefollowing remedies and orders: 1. A declaration thatthe Saskatchewan Ministry of Agriculture(“MoA) has a duty to consult and, ifappropriate, accommodate the Applicant withrespect to cumulative adverse effects on itsTreaty rights when making decisions aboutthe sale or lease of MoA lands; 2.

A declaration thatthe MoA has failed to fulfil the duty to consultand accommodate the Applicant under s. 35 ofthe Constitution Act with respect to itsdecision to sell or lease vacant Crown lands inthe Applicant’s Traditional Territory, asdescribed in Appendix A (the “LandDispositions”);

to consult with and, if indicated, accommodate Carry the Kettle with respect to the Adverse Effects of the Crown Authorizations on the Treaty Rights (“Cumulative Effects Consultation”), under the supervision of the Court;

e) a declaration the Defendants, or either of them, have failed to adequately consult with, and if indicated, accommodate Carry the Kettle with respect to the cumulative effects on Crown Authorizations on the Treaty Rights;

f) a declaration that the Defendants, or either of them, have a duty to address any or all of the following issues in a Cumulative Effects Consultation process with Carry the Kettle, with the goal or restoring and/or securing the meaningful exercise of the Treaty Rights in perpetuity: (

i) the appropriate fulfilment of the Treaty Obligations; (ii) the appropriate process for addressing the Infringements; (iii) the appropriate way to address some or all of the failures listed in the Claim; (iv) restoration of the traditional territory; (

v) appropriate funding for Carry the Kettle to participate in Cumulative Effects Consultation and related processes; and (vi) any other issues identified by the Court.

g) an interim, interlocutory and/or permanent injunction against the Defendants, or either of them, restraining them from acting unconstitutionally in respect of the Crown Authorizations, and/or restraining them from acting unconstitutionally by granting further Crown Authorizations in the traditional territory until the Defendants, or either of them, have completed the Cumulative Effects Consultation;

h) damages and/or equitable compensation from the Defendants for any failure of the Defendants, or either of them, to respect the Treaty Rights and to uphold the honour of the Crown;

i) damages and/or equitable compensation from the Defendants, or either of them, for any unjustifiable infringement of the Treaty Rights;

j) an accounting and/or damages and/or equitable compensation from the Defendants in respect of any breach of fiduciary duty by the Defendants, or either of them;

k) pre- and post- judgment compound interest in respect of any 3. An order in the nature of certiorari setting aside and/or quashing the Land Dispositions; 4. An order in the nature of mandamus providing that the MoA must consult with the Applicant with respect to cumulative adverse effects to the Applicant’s Treaty rights when making decisions about MoA land dispositions, and in accordance with the reasons of this Court; 5.

An order of prohibition restraining the MoA from disposing of further Crown lands in the Applicant’s Traditional Territory until it consults with the Applicant with respect to the cumulative adverse effects on the Applicant’s Treaty rights; 6. Such further and other relief as ordered by this Court; and 7. Costs of this application.

damages or compensation[.] [ 24 ] Saskatchewan points to the fact that CTKNN has raised the issue of the Crown’s duty to consult in both the 2017 Action and the originating application. This, it asserts, demonstrates the high degree of duplication present in these matters. Saskatchewan does not dispute that a judicial review proceeding is an appropriate mechanism for adjudicating duty to consult issues. It is not, however, the only mechanism. For example, Saskatchewan cites George Gordon First Nation v Saskatchewan , 2022 SKCA 41 [ George Gordon First Nation ] as illustrating that duty to consult issues, along with Treaty infringement claims can be determined by way of a

summary judgment application. [ 25 ] Saskatchewan submits that having chosen to advance duty to consult issues in both proceedings, CTKNN must now decide which proceeding it wishes to pursue. If CTKNN wishes to proceed with the originating application, it should discontinue the 2017 Action. Alternatively, if CTKNN is concerned about the delay in bringing the 2017 Action to trial it can initiate an application for

summary judgment. [ 26 ] CTKNN asserts that duty to consult issues should only be adjudicated by way of judicial review not a formal action raising issues of Treaty rights infringement.

To support this submission, CTKNN relies particularly upon Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) , 2005 SCC 69 at para 59 , [2005] 3 SCR 388 ; Prophet River First Nation v Canada (Attorney General) , 2017 FCA 15 at paras 77-78 and 80-81 , 408 DLR (4 th ) 165 [ Prophet River ] , and Fort McKay First Nation v Prosper Petroleum Ltd. , 2020 ABCA 163 at para 83 per Greckol J.A. concurring. [ 27 ] I accept that in the province of Saskatchewan, at least, duty to consult issues can be joined with treaty infringement claims and adjudicated on a

summary judgment application. That is the lesson of George Gordon First Nation . Although the procedural propriety of that process was not assessed by the Court of Appeal, it is apparent that the matter proceeded through two levels of court in this province without objection. [ 28 ] That said, I am persuaded CTKNN has shown that sufficient differences exist between the duty to consult issues and the treaty infringement claims which demonstrate that the originating application is not so duplicative of the 2017 Action it amounts to an abuse of this Court’s process.

I say this for the following reasons. [ 29 ] First, unlike the originating application, the 2017 Action names both Saskatchewan and the Crown in right of Canada as defendants. It is much broader in scope and implicates not only the constitutional obligations owed to CTKNN by both the province and federal Crown. It also claims compensatory damages for breaches of those obligations, if proved. To determine these claims, it will be necessary for the parties to develop a full evidentiary record. [ 30 ] Second, the duty to consult is the only issue to be decided in the originating application.

A judicial review application is a

summary proceeding. Typically, the only material to be considered by a reviewing court is the information and evidence that was before the decision-maker, in this case the Minister of Agriculture. Its scope is far more limited, and it is not the proper process for determining if CTKNN’s treaty rights have been unjustifiably infringed, now or in the past. See , for example: Prophet River at para 78 . [ 31 ] Third, the duty to consult with indigenous groups such as CTKNN is an on-going obligation on the Crown. This duty is prospective in nature, as it is engaged prior to any treat infringement.

As Abella J. concurring in Mikisew Cree First Nation v Canada (Governor General in Council) , 2018 SCC 40 at para 67 , [2018] 2 SCR 765 stated : “[T] he Crown’s duty to consult is not dependent on the finding that an infringement resulted, but is, instead, a component of the Crown’s overarching obligation to deal honourably with Indigenous peoples when regulating their rights”. [ 32 ] Returning then to Métis Nation CA , during oral argument counsel for Saskatchewan referred to Métis Nation QB as a case “on all fours” with this one (at the time this application was argued, the appeal of Métis Nation QB was under reserve in the Court of Appeal). [ 33 ] The procedural history of that case resembles this application.

In 1994, the Métis Nation – Saskatchewan [MNS] commenced an action against both Saskatchewan and Canada asserting Aboriginal title and rights to certain lands in the province [1994 Action]. This action was judicially stayed in 2005 because the MNS had failed to comply with its document disclosure obligations. [ 34 ] In 2020, MNS commenced a new action challenging Saskatchewan’s policy in force since 2010 which rejected MNS’ claim to Aboriginal title and commercial use of resources [2020 Action].

This action asserted that Saskatchewan’s policy was “inconsistent with the Crown’s duty of honourable dealing towards Indigenous peoples and its obligations under

Section 35 ” of the Constitution Act, 1982 : Métis Nation CA at para 11 . [ 35 ] Subsequently, in August 2021, MNS commenced a judicial review application challenging Saskatchewan’s decision to authorize mineral exploration on lands claimed by MNS.

This originating application asserted, among other things, that the issuance of these authorizations breached s. 35 , and Saskatchewan’s duty to consult the MNS in good faith. [ 36 ] Saskatchewan applied to strike out those aspects of the originating application which alleged a breach of the duty to consult with MNS respecting potential impacts to its asserted Aboriginal title and commercial harvesting rights.

See: Métis Nation CA at para 18 . [ 37 ] At first instance, the chambers judge concluded that permitting the impugned aspects of MNS’ originating application to proceed “would be an abuse of process because it raises the same issues as in the 1994 Action and the 2020 Action”

adding that while “status of the 1994 Action is open to question, the 2020 Action is current and viable”: Métis Nation QB at para 65. [38] MNS appealed. The Court of Appeal reversed the chamber judge’s decision. Leurer J.A. acknowledged that“[s]uperficially” the two actions and the originating application related to the same issue, namely MNS’ claim to Aboriginal title andcommercial harvesting rights in the province of Saskatchewan. It did not follow, however, that these various proceedings were identicalor any one of them constituted an abuse of the court’s process.

See: Métis Nation CA at para 47. [39] In Métis Nation CA at para 48, Leurer J.A. elaborated as follows: [48] In the context of a judicial review based on a claim that the Crown has not fulfilled its duty to consult, the task facing a judge isnot to determine the ultimate validity of the underlying claims to Aboriginal rights or title but to determine whether those claims arecredible and whether the Crown’s actions have impacted those rights.

As Binnie J. stated in Mikisew Cree First Nation v Canada(Minister of Canadian Heritage), 2005 SCC 69 at para 34, [2005] 3 SCR 388, this is a “low threshold” where “[t]he flexibility lies not inthe trigger … but in the variable content of the duty once triggered”. While the assessment of whether the required threshold has beenpassed will not, in many cases, be an easy or meaningless task for the reviewing judge, it will generally be a far cry from the kind ofanalysis necessary to establish proof of an Aboriginal claim: Taku River Tlingit First Nation 2004 SCC 74 , [2004 SCC 43,[2004] 3 SCR 550] at para 25.

This is because the judge’s task is not to finally determine the existence of Aboriginal rights or title butonly to review whether a constitutional duty has been fulfilled: Chartrand v British Columbia (Forests, Lands and Natural ResourceOperations), 2015 BCCA 345 at para 68, [2016] 1 WWR 58, quoting Huu-Ay-Aht First Nation v British Columbia (Minister of Forests),2005 BCSC 697 at para 94, 33 Admin LR (4th) 123. [40] Put more succinctly, whether it is commenced by way of an originating application or a statement of claim, anapplication for judicial review is “more about the manner of the Crown’s dealings with an Aboriginal group than the substantiveoutcome of those dealings” (emphasis in original): Métis Nation CA at para 49 quoting Buffalo River Dene Nation v Saskatchewan(Energy and Resources), 2015 SKCA 31 at para 43, [2015] 7 WWR 82. [41] In my view, a similar result should obtain in this application.

The originating application seeks judicial review ofdecisions taken by the Minister of Agriculture to lease lands over which CTKNN claims a Treaty right and respecting which,Saskatchewan failed in its duty to consult prior to their disposition.

This application can be decided based solely upon the record filedwith the court. [42] The 2017 Action, more generally, asserts that Saskatchewan and Canada have breached CTKNN’s treaty rightsover many years and seeks compensation in the form of damages respecting these alleged continuing breaches. [43] Accordingly, for these reasons, I conclude that although there is some overlap in the 2017 Action and theoriginating application, the issues central to each matter are, for the most part, distinct, and the remedies claimed are different.Consequently, allowing both matters to proceed in tandem does not amount to an abuse of process.

D. Conclusion [44] Saskatchewan’s application seeking to strike CTKNN’s originating application entirely is dismissed. [45] CTKNN is entitled to its costs of this application which I set at $1,000.00. [46] In conclusion, I thank counsel for their helpful written briefs and oral submissions. J. G.G. MITCHELL