WITCHEKAN LAKE FIRST NATION Plaintiff v. HER MAJESTY THE QUEEN IN, 2021 FC 1074

Date: 20211015 Docket: T-1777-19 Citation : 2021 FC 1074 Ottawa, Ontario, October 15, 2021 PRESENT: The Honourable Mr. Justice Favel BETWEEN: WITCHEKAN LAKE FIRST NATION Plaintiff and HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN AS REPRESENTED BY THE ATTORNEY GENERAL OF SASKATCHEWAN AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA Defendants ORDER AND REASONS I. Nature of the Matter [ 1 ] This is a motion by Her Majesty the Queen in Right of Saskatchewan [Saskatchewan] for

summary judgment pursuant to Rule 215 of the Federal Courts Rules SOR/98-106 [ Rules ] dismissing the Statement of Claim [Claim] by Witchekan Lake First Nation [WLFN]. WLFN’s Claim states that Saskatchewan breached its contractual obligations with respect to the Saskatchewan Treaty Land Entitlement Framework Agreement [Framework Agreement], leaving Canada’s Treaty land entitlement [TLE] obligations unfulfilled.

Furthermore, WLFN claims that Saskatchewan has a contractual duty to implement the terms of the Framework Agreement and the WLFN TLE settlement agreement [Settlement Agreement] in a purposive and equitable manner, and in a manner consistent with the honour of the Crown. [ 2 ] The grounds for Saskatchewan’s motion are:

a) The issues raised in the Claim can be determined without the need for a full trial;

b) There is no express or implied term in the Framework Agreement that requires Saskatchewan to provide WLFN notice and priority to purchase Provincial Crown lands before putting those lands into a public auction, as alleged;

c) WLFN's Claim is contrary to the Framework Agreement and would render certain provisions within it meaningless;

d) WLFN’s Claim misconstrues the TLE agreement process;

e) Saskatchewan has not frustrated the purpose, failed to give effect to the express terms or eviscerated the intentions of the Framework Agreement by not giving WLFN notice and priority;

f) Saskatchewan provided notice to First Nations, including WLFN, further to Saskatchewan’s First Nations and Métis Consultation Policy Framework [Consultation Policy] well in advance of placing lands into a public auction; and

g) WLFN has not identified provisions in the Framework Agreement that Saskatchewan has breached. [ 3 ] The motion is dismissed. II. Background [ 4 ] WLFN is an Indian band recognized under the Indian Act , RSC, 1985, c 1-5 that adhered to Treaty Number Six in 1950.

Treaty Number Six requires that Canada set aside " “one square mile for each family of five, or in that proportion for larger or smaller families.” " WLFN did not receive the amount of land it should have received when it adhered to Treaty Number Six, resulting in a TLE shortfall. [ 5 ] Canada has jurisdiction over " “Indians, and Lands reserved for the Indians” " pursuant to section 91(24) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3 , reprinted in RSC 1985, Appendix II, No 5.

Under the 1930 Natural Resources Transfer Agreement [NRTA] Canada transferred all Crown lands, mines, minerals, and other natural resources within Saskatchewan to the province. This transfer obligated Saskatchewan to set aside unoccupied Crown lands necessary to allow Canada to fulfill its TLE obligations to First Nations within the province.

A. Overview of the Framework Agreement [ 6 ] In 1992, twenty-five First Nations, including WLFN, signed the Framework Agreement with Canada and Saskatchewan. In short, the Framework Agreement sought to satisfy any outstanding TLE obligations owed by Canada and Saskatchewan to First Nations pursuant to the various numbered Treaties. To give effect to the Framework Agreement, Canada also entered into specific Settlement Agreements with individual First Nations, including WLFN. Since 1992, eight additional First Nations have settled their outstanding TLE claims.

Those settlements are modeled on the Framework Agreement. Currently, Canada and Saskatchewan are negotiating outstanding TLE claims with four more First Nations under the Framework Agreement. [ 7 ] Framework Agreement negotiations were governed by a document dated January 16, 1991 entitled A General Protocol Agreement on the Negotiation of Treaty Land Entitlement Settlement Agreements in Saskatchewan , signed by Canada, Saskatchewan, and the Federation of Saskatchewan Indian Nations, now the Federation of Sovereign Indigenous Nations [FSIN]. [ 8 ] Framework Agreement negotiations were conducted in 1991 and 1992.

The FSIN represented the twenty-five First Nations who approved the Framework Agreement, including WLFN. The FSIN’s lead negotiator was the late Dr. Lloyd Barber. Some representatives from WLFN are listed as attending some meetings on behalf of WLFN as well. In the individual Settlement Agreements, each First Nation warranted that they received independent legal advice prior to ratifying their own Settlement Agreements.

WLFN and Canada entered into a Settlement Agreement dated June 14, 1993, adopting portions of the Framework Agreement by referential incorporation. [ 9 ] I will highlight certain provisions within the Framework Agreement that are relevant.

Article 1 contains certain defined terms: (25) “Entitlement Band” means any of those twenty-six (26) bands… (

a) Canada has, prior to the Execution Date, accepted for negotiations a claim for outstanding Treaty land entitlement under the terms of Treaty Number Four, Treaty Number Six, or Treaty Number Ten; and (

b) its Chief is now a signatory hereto or, alternatively, hereafter becomes a signatory hereto in accordance with the provisions of

Article 10; (26) “Entitlement Land” means Lands, Minerals or Improvements in Saskatchewan hereafter purchased and which are intended to be set apart as an Entitlement Reserve pursuant to the provisions of a Band Specific Agreement, the Trust Agreement or this Agreement; (32) “Equity Quantum” means, in respect of a particular Entitlement Band, the total area of Land, expressed in acres, which has been calculated in accordance with

section 2.02, and which is set forth in column 7 of

Schedule 1; (81) “Shortfall Acres”, in respect of a particular Entitlement Band, means that area of Land (including all existing Minerals in respect thereof), the total acreage of which is set forth in column 4 of

Schedule 1. [ 10 ] WLFN’s Shortfall Acres equalled 7,923 acres and its Equity Quantum or Equity Acres equalled 32,442.6 acres.

Article 11.01 requires that Entitlement Bands make best efforts to acquire their Shortfall Acres within twelve years. WLFN completed acquiring its Shortfall Acres in 1998 and has acquired an additional 8,310 Equity Acres since that time. [ 11 ] Under

Article 11.04(

a) Entitlement Bands may purchase private lands without any involvement of Saskatchewan or Canada. WLFN has acquired over 9000 acres of private lands. [ 12 ]

Article 4.05 and 4.06 of the Framework Agreement sets out some of the provisions regarding the sale of Crown lands at issue in the Claim and in this motion: 4.05 PRINCIPLE UNDERLYING SALE OF CROWN LANDS (

a) Canada, Saskatchewan and the Entitlement Bands agree that, except as otherwise specifically provided herein, transactions involving the sale by Canada or Saskatchewan of federal or provincial Crown Lands (including federal or provincial Crown Improvements in respect thereof) shall be governed by the principle of "willing seller/willing buyer". (

b) If an Entitlement Band indicates in writing that it wishes to Purchase any provincial or federal Crown Land or Crown Improvements pursuant to this Agreement, Canada and Saskatchewan agree to advise the Entitlement Band as soon as reasonably possible, but in any event within ninety (90) days of receipt of a written request containing a description that identifies the subject property, whether or not they are prepared to sell the said Crown Lands or Crown Improvements, and to identify any conditions precedent that must be satisfied by the Entitlement Band prior to the sale being finalized. (

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 Entitlement Band confirming their intention to sell, the identified Crown Lands or Crown Improvements shall be available for sale to the Entitlement Band, subject only to an agreement (or a determination hereunder) respecting the purchase price and satisfaction of any applicable conditions precedent. (

d) During the eighteen (18) month period referred to in subsection (c), neither Canada nor Saskatchewan shall (other than for the benefit of the Entitlement 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 Entitlement 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. (

e) In the event that Canada or Saskatchewan have agreed to sell any Crown Lands or Crown Improvements to an Entitlement Band, the purchase price shall be equal to the fair market value of the Crown Lands or Crown Improvements as determined by an independent appraiser. (

f) The cost of an appraisal under subsection (

e) shall be bore by the two parties equally. (

g) Failing agreement between the parties as to the selection of an independent appraiser within thirty (30) days, the independent appraiser shall be appointed by the Chairperson of the Arbitration Board upon application by one or both of the parties. (

h) In the event that the fair market value of Crown lands or Crown Improvements has been determined by an independent appraiser, the purchase price as so determined shall be binding on the parties and, unless otherwise agreed in writing, the transaction of Purchase and sale shall be concluded based on such determination within sixty (60) days of the date such appraisal is completed unless the Entitlement Band elects not to complete such Purchase at the price determined, in which case the Entitlement Band shall be obligated to forthwith cover all of the appraisal costs incurred. (

i) Notwithstanding subsections (

e) to (

h) inclusive, the parties may agree on a purchase price without an appraisal. 4.06 SALE OF CROWN LAND Subject to applicable law, each of Canada and Saskatchewan agrees to give favourable consideration to offers from an Entitlement Band to purchase federal or provincial Crown Land, including federal or provincial Crown Improvements thereon, and not to unreasonably withhold acceptance of 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, any Entitlement Band. [ 13 ]

Article 4.05 sets out the process for the sale of Crown lands to Entitlement Bands and describes the principle of " “willing seller/willing buyer.” " If an Entitlement Band states in writing that it wishes to purchase a specific parcel of Crown land, and the Crown is willing to sell that land, then the purchase price is determined by the process set out in Articles 4.05(

e) to (i). [ 14 ]

Article 4.06 provides that the Crown has a legal obligation to give " “favourable consideration” " to offers from Entitlement Bands to purchase Crown land and a legal obligation " “not to unreasonably withhold acceptance” " of such offers. There is no requirement for the Crown to sell or transfer any specific parcel of Crown land to any Entitlement Band.

The one exception is in paragraph 4.05(c), which contemplates a situation where a Crown has expressed its willingness to sell certain identified Crown land in response to an Entitlement Band’s expression of desire to purchase that specific land. [ 15 ] To give effect to the Framework Agreement both Saskatchewan and Canada passed legislation that varied the NRTA. The amendments transferred responsibility to Saskatchewan to make Crown lands available to Entitlement Bands in satisfaction of outstanding TLE obligations. [ 16 ] Saskatchewan's NRTA obligations are fulfilled upon the earlier of (

i) the date that an Entitlement Band reaches its Shortfall Acres Acquisition Date, or (ii) the date that Saskatchewan has paid all amounts required to be paid by Saskatchewan to Canada and the Treaty Land Entitlement (Saskatchewan) Fund pursuant to the Framework Agreement in respect of such Entitlement Band. Saskatchewan has paid $273 million in satisfaction of its obligation to pay Canada under the TLE agreements, with its final payment to Canada concerning WLFN in 2003. B.

The Land at Issue [ 17 ] On or about March 1, 2017, the FSIN became aware through social media of an upcoming public auction [2017 Auction] of 62 parcels of Crown land and informed the WLFN. Information regarding the auction was made available online in a handout prepared by the auctioneers and included the descriptions and pictures of 62 total parcels for sale. [ 18 ] On September 17, 2017, Saskatchewan advised the FSIN of the public auction, which would start on October 23, 2017, and provided a list of parcels that would be available.

Three of those parcels were of particular interest to WLFN as they formed part of a traditional trapping, hunting, and fishing area used by WLFN [the Three Parcels]. [ 19 ] On October 24, 2017, WLFN submitted a land selection over the Three Parcels in accordance with the Framework Agreement. On October 31, 2017, Saskatchewan responded stating that the province would not sell the Three Parcels to WLFN. Instead, Saskatchewan would sell the Three Parcels in the 2017 Auction. In February 2019, WLFN learned of a second auction.

On February 27, 2019, WLFN once again submitted a land selection for three different parcels. On March 26, 2019, Saskatchewan declined to sell the lands to WLFN. It advised WLFN that it would not sell the lands to WLFN due to a prior commitment to auction them at the 2019 Auction. [ 20 ] On October 30, 2019, WLFN filed the Claim against Saskatchewan and Canada concerning the lands available at the 2017 and 2019 Auctions.

As previously stated, WLFN claims that Saskatchewan breached its contractual obligations leaving Canada’s Treaty obligations unresolved and that Saskatchewan failed to uphold the honour of the Crown. C. Evidence on this Motion

[ 21 ] Saskatchewan filed affidavits of: 1) Susan Carani, the Executive Director of Lands and Consultation Branch in the Ministry of Government Relations, who has knowledge of the Framework Agreement; 2) Megan Schaefer, Director of Strategic Initiatives of the Saskatchewan Ministry of Agriculture, who has knowledge of consultations concerning agricultural lands pursuant to the Consultation Policy; 3) Gregory Hayes, Manager of the Lands Unit of the Fish, Wildlife and Lands Branch of the Saskatchewan Ministry of Environment, who has knowledge of Crown lands within Saskatchewan; and 4) Donna Wilson, Manager of Mineral Rights Services in the Ministry of Energy and Resources, who has knowledge of the Framework Agreement and the database concerning transfers of Crown land and minerals to Entitlement Bands for reserve creation purposes. [ 22 ] WLFN filed affidavits of: 1) Heather Bear, Vice-Chief of the FSIN, who has knowledge of the FSIN’s approach to the issues surrounding the public sales of Crown lands; and 2) Wendy Jim, Lands Manager of the WLFN, who has knowledge of WLFN’s TLE implementation and administration. [ 23 ] Canada did not file any evidence and relied on its written memorandum of law.

III. The Issue [ 24 ] The only issue for consideration is whether Saskatchewan has satisfied the test for the granting of

summary judgment pursuant to Rule 215 . IV. Legal Framework [ 25 ] Rule 215 reads as follows: If no genuine issue for trial 215

(1) If on a motion for

summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summary judgment accordingly. Genuine issue of amount or question of law

(2) If the Court is satisfied that the only genuine issue is (

a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant

summary judgment with a reference under rule 153 to determine the amount; or (

b) a question of law, the Court may determine the question and grant

summary judgment accordingly. Powers of Court

(3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may (

a) nevertheless determine that issue by way of

summary trial and make any order necessary for the conduct of the

summary trial; or (

b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by

summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding. [ 26 ] In Rallysport Direct LLC v 2424508 Ontario Ltd , 2019 FC 1524 [ Rallysport ] Justice Fuhrer summarized the legal principles applicable to motions under Rule 215 at paragraph 42: In Milano Pizza , Mactavish J (as she then was) thoroughly canvassed the law of

summary judgment as applied to the Federal Courts following the Supreme Court’s decision in Hryniak , above: Milano Pizza , above at paras 24-41. These principles are as follows: A. The purpose of

summary judgment is to allow the Court to (

i) dispense summarily with an action if there is no genuine issue to be tried, (ii) conserve scarce judicial resources, and (iii) improve access to justice: Milano Pizza , above at para 25. B.

Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication; to be “fair and just” the process “must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found”: Milano Pizza , above at para 29, citing Hryniak , above at paras 5 and 28.

C. The test of whether no genuine issue for trial exists is whether the case is so doubtful that it does not deserveconsideration by the trier of fact at a future trial; or, alternatively, whether there is “no legal basis” to the claimbased on the law or the evidence brought forward.

It is not restricted to the “clearest of cases”: Milano Pizza,above at paras 31 and 33, citing Canada (Citizenship and Immigration) v Campbell, 2014 FC 40 at para 14, ItvTechnologies Inc. v Wic Television, 2001 FCA 11 at paras 4-6, Premakumaran v Canada, 2006 FCA 213 atparas 9-11; Canada (Minister of Citizenship and Immigration) v Schneeberger, 2003 FC 970 at para 17;Manitoba v Canada, 2015 FCA 57 at para 15-16; and Burns Bog Conservation Society v Canada, 2014 FCA170 at paras 35-36. D.

Where the necessary facts cannot be found to resolve the dispute fairly and justly, or where it would beunjust to make a finding on those facts alone,

summary judgment should not be granted: Milano Pizza, above atparas 29 and 36, citing Hryniak, above at para 28. E. It would be unjust to make a finding on the facts alone where issues were not raised by one party, as doing sowould preclude them from knowing the case to meet: Milano Pizza, above at paras 107-108 and 112, citingAlbian Sands Energy Inc. v Positive Attitude Safety System Inc., 2005 FCA 332 [Albian Sands] at para 45. F. Issues of credibility should not be decided on a motion for

summary judgment. Observing live testimony andcross-examination often places a judge in a better position to draw appropriate inferences, and to weighevidence, than can be done on affidavit evidence alone: Milano Pizza, above at paras 37-38, citing TPGTechnology Consulting Ltd. v Canada, 2013 FCA 183 at para 3; Newman v Canada, 2016 FCA 213 at para 57;Suntec Environmental Inc. v Trojan Technologies, Inc., 2004 FCA 140 [Suntec] at paras 20, 28-29; MacNeilEstate v Canada (Department of Indian and Northern Affairs), 2004 FCA 50 at para 38. G. Not all conflicting evidence will raise credibility issues and preclude

summary judgment. Courts should“take a hard look at the merits of the case” to determine if credibility issues need be resolved: Milano Pizza,above at para 39, citing Granville Shipping Co. v Pegasus Lines Ltd. SA, (FC) at para 7. H. The effect of granting

summary judgment will be to preclude a party from presenting any evidence at trial; inother words, the unsuccessful party will lose its day in court: Milano Pizza, above at para 40, citing Apotex Inc.v Merck & Co. Inc., 2004 FC 314 at para 12, aff’d 2004 FCA 298. [27] In addition, the party seeking

summary judgment must establish the facts necessary to obtain

summary judgment. The respondingparty bears the burden of showing that there is a genuine issue for trial. Both parties must put their best foot forward when attempting todischarge these burdens (Gemak Trust v Jempak Corporation, 2020 FC 644 at para 133 [Gemak]). [28] Both Saskatchewan and WLFN agree that the legal principles set out in Rallysport and in Gemak are applicable. V. Parties’ Positions A.

Saskatchewan’s Position [29] Saskatchewan submits that none of the facts needed to summarily dispose of WLFN’s Claim are in dispute: it held the auctions inquestion; it declined WLFN’s purchase requests; WLFN does not dispute that Saskatchewan provided it notice under its ConsultationPolicy; and Saskatchewan has adduced evidence surrounding the Framework Agreement negotiation and implementation, which allowsthis Court to reject WLFN’s assertion of an implied term. [30] Saskatchewan relies on several Saskatchewan cases that it asserts have already contemplated the same issues raised by WLFN’sClaim (George Gordon First Nation v Saskatchewan, 2020 SKQB 90 [George Gordon]; Bear v Saskatchewan, 2016 SKQB 73 [Bear];One Arrow Indian Band v Saskatchewan, (SKQB) [One Arrow]; Watson v Canada, 2020 FC 129 [Watson]). [31] Saskatchewan denies that there was a breach of the terms of the Framework Agreement.

Its arguments are summarized below: 1) WLFN claims that the Framework Agreement cannot work unless the Court reads in an implied term of notice and an opportunity topurchase lands. This amounts to reading in a right of first refusal, which is completely answered by the amendment and entire agreementclauses in the Framework Agreement. Furthermore, this argument was already rejected in George Gordon. Reading in an implied term iscontrary to

Article 4.05(

d) of the Framework Agreement and would make this

article redundant. Documents created by the FSIN and theOffice of the Treaty Commissioner do not raise any issues concerning the sale of crown lands to First Nations, nor do they indicate thatSaskatchewan must provide prior notice. 2) Since 1993, WLFN has had the opportunity to acquire the Three Parcels pursuant to the Framework Agreement. This is well beforethey were placed into public auction. The land acquisition process is a band-driven process.

WLFN had the onus to initiate that process,which they did not do (George Gordon at para 120). 3) Contrary to WLFN’s assertions, Saskatchewan did notify both the WLFN and FSIN pursuant to the Consultation Policy. WLFN didnot respond. 4) There was no power imbalance in the negotiations. The FSIN’s lead negotiator was Dr. Lloyd Barber, who was a sophisticatedrepresentative. 5) WLFN claims that Saskatchewan failed to give favourable consideration under

Article 4.06 by refusing to sell the lands in question.This argument is without merit as there is no evidence or facts to support this position. Nothing in

Article 4.06 can be interpreted as

requiring Saskatchewan to sell land to any First Nation. This issue was addressed in Bear at paras 40, 50, and 72 . [ 32 ] Saskatchewan states that deciding the issues within WLFN’s Claim is largely a matter of contractual

interpretation. Therefore,

summary judgment is the appropriate method to dispense with this Claim. B. WLFN’s Position [ 33 ] WLFN states that Saskatchewan has not satisfied its burden of establishing that there is no genuine issue for trial and has not tendered sufficient evidence to determine the issues.

Additionally, there are factual disputes that require a trial. [ 34 ] WLFN’s submissions are summarized as follows: 1) This matter requires the Court to interpret the Framework Agreement in a factual matrix ( Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 [ Sattva ] at para 50 ), which is distinguishable from the circumstances of Rallysport ; 2) There are gaps in the evidence with respect to the factual matrix which can only emerge at trial ( Apotex Inc v Merck & Co Inc, 2004 FC 314 at paras 28 , 34-35 [ Apotex ], aff’g 2004 FCA 298 ); 3) There are general issues for trial related to the

interpretation of the terms “favourable consideration”, “willing seller/willing buyer”, “good faith” and “best efforts”, which require a trial. A trial is also required to assess whether an implied term of notice and reasonable opportunity arises and whether Canada is released from its obligations pursuant to

Article 15. TLE agreements are not just commercial agreements whose meaning is divined by parsing the technical meaning of particular words in the agreement ( Canada v Long Plain First Nation , 2015 FCA 177 at para 112 [ Long Plain ] ); 4) Bear and George Gordon are not binding on this Court.

Bear is only relevant to the extent that it demonstrates a higher standard of deliberation than Saskatchewan undertook in the present case, including a consideration of whether selling the lands was in the public interest ( Bear at paras 19-22 ); 5) The Court’s finding in Ochapowace Cree Nation v Saskatchewan , 2019 FC 1288 [ Ochapowace ] , dealing with an application to strike, is informative.

Similar to this case, that case dealt with an argument regarding an implied term of a Settlement Agreement that was based on the Framework Agreement. [ 35 ] WLFN submits that it has established genuine issues for trial concerning the

interpretation of the express terms of the Framework Agreement and the existence of an implied term of notice and reasonable opportunity to purchase. It submits that Saskatchewan's motion should be dismissed. C. Canada’s position [ 36 ] Canada does not seek a specific order in respect of Saskatchewan’s motion. Canada states that it is not involved in monitoring or approving Saskatchewan’s sale of provincial Crown lands.

While Canada has a process in place regarding the sale of federal Crown land under the Framework Agreement, neither the sale of federal Crown lands nor Canada’s processes are at issue in this action. The only lands at issue are those sold by Saskatchewan. Canada is not liable for any asserted breach of the Framework Agreement by Saskatchewan. [ 37 ] Canada asserts that TLE Agreements, including the Framework Agreement and individual Settlement Agreements, recognize and respect outstanding TLE claims, and play an important role in advancing reconciliation. VI. Analysis [ 38 ] The principal goal of a

summary judgment proceeding is establishing a fair process resulting in a just adjudication of disputes while turning the Courts mind to proportionality, timeliness, and affordability ( Hryniak v Mauldin, 2014 SCC 7 at para 28 ). [ 39 ] The onus is on Saskatchewan to establish that there is no genuine issue for trial in light of the legal principles set out above at paragraph 26. There is no genuine issue for trial if, based on the record, a judge can make the necessary findings of fact, apply the law to the facts, and determine that

summary judgment is a proportionate, expeditious, and a less expensive way to proceed. While credibility should not be decided on motions for

summary judgment " “the mere existence of apparent conflict in the evidence does not preclude

summary judgment – judges should take a ‘hard look’ at the merits of the case” " ( Hinton v Jempak Corporation, 2020 FC 644 at paras 21-23 ). [ 40 ] I find that Saskatchewan has not met its onus under Rule 215 and the legal principles set forth in paragraph 26, above. WLFN has established that there is a genuine issue for trial. The motion is dismissed. Below I address the parties’ various submissions, which I have broken down into the following categories: sufficiency of evidence; implied terms; good faith, best efforts, and favourable consideration; and release.

(1) Sufficiency of Evidence [ 41 ] Saskatchewan submits that two documents attached to Susan Carani’s affidavit, the Chiefs Policy Committee: Principles in the Settlement of Treaty Land Entitlement in Saskatchewan [Chiefs Policy Committee Document] and the Report and Recommendations on Treaty Land Entitlement [Report and Recommendations Document], sufficiently set out the factual matrix which led to the Framework Agreement. WLFN states that these two documents are high-level documents that do not encapsulate the entirety of the discussions or context that gave rise to the Framework Agreement. Thus, the relevant factual matrix has not been established.

[ 42 ] WLFN requests a trial to explore the surrounding circumstances that existed upon signing the Framework Agreement and states that other documents exist that may be relevant to these circumstances. Saskatchewan, relying on Gemak , disagrees and states that WLFN is required to put its best foot forward on this motion and cannot rely on what may be adduced as evidence at a later stage in the proceeding . Saskatchewan cites Canada v Lameman , 2008 SCC 14 [ Lameman ] , for the principle that " “[a] motion for

summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future” " ( at para 19). [ 43 ] Saskatchewan submits that neither the Chiefs Policy Committee Document nor the Report and Recommendations Document raise concerns about Saskatchewan selling lands to third parties. Nor do they mandate that Saskatchewan provide prior notice to the Entitlement Bands.

I am not persuaded that these two documents and the Framework Agreement itself represent a complete record of the surrounding circumstances known to parties at the time that the Framework Agreement was executed. One of the main participants on behalf of the FSIN, Dr. Lloyd Barber, is deceased. However, Susan Carani’s affidavit includes a list of individuals who acted as observers to the negotiations. These individuals, including two who are listed as representing WLFN, may have relevant evidence to provide with respect to the surrounding circumstances.

As well, the Framework Agreement sets out the names of the individual Chiefs who signed the Framework Agreement, and some of these individuals may be available to provide some additional insight into the process and discussions leading to the signing of the Framework Agreement. [ 44 ] I acknowledge Saskatchewan’s argument that WLFN is required to put its best foot forward. I also acknowledge that Saskatchewan did not suggest that the two WLFN observers, or others, should have provided evidence on this motion.

Similarly, WLFN did not suggest that there may be other individuals who may be able to provide direct evidence of what transpired in the negotiations leading to the Framework Agreement. Nevertheless, I am of the view that the issues in this matter will require a more fulsome examination of the surrounding circumstances of the events leading to the conclusion of the Framework Agreement. [ 45 ] In accordance with consideration D articulated above in paragraph 26, I find that it would be unjust to make factual findings based on the limited affidavit evidence and cross-examination transcripts provided.

I can appreciate that Saskatchewan has provided four very knowledgeable witnesses on this motion while WLFN has provided two very knowledgeable witnesses. However, none of these witnesses were directly involved in the negotiations. Accordingly, I find that a trial is needed to address all the legal issues in this case, due to the significant factual matrix involved. [ 46 ] Through the affidavit of Wendy Jim, WLFN states that it was unaware of the July 22, 2016 and January 26, 2017 correspondence from Saskatchewan.

Saskatchewan asserts that it sent these letters pursuant to the Consultation Policy to inform the WLFN that certain lands, including the Three Parcels, would be put up for auction in 2017. Saskatchewan attached these letters to the affidavit of Ms. Schaefer. Whether WLFN received these letters has a bearing on credibility, which should not be determined on a motion for

summary judgment. The finding of credibility will be relevant to the determination of the matter at trial (see considerations F and G at paragraph 26 above).

(2) Implied Terms [ 47 ] Saskatchewan submits that the term " “willing buyer/willing seller” " is a principle found in

Article 4.05 of the Framework Agreement.

Article 4.05 governs the process for reaching consensus ad idem on a purchase price once Saskatchewan has agreed to sell to a First Nation. Saskatchewan states that WLFN’s

interpretation of " this term " is incorrect and that this term has previously been considered in decisions involving similar issues ( One Arrow at paras 28-37 and Bear at paras 42-50 ). Saskatchewan also states the " “amendment” " and " “entire agreement” " clauses in the Framework Agreement dispense with WLFN’s submission that there are implied terms, as these clauses provide some finality and certainty to the settlement of outstanding TLE claims. [ 48 ] Saskatchewan states that Articles 4.05(

c) and (

d) address when Saskatchewan must give notice and priority to WLFN before selling Crown lands to a third party. Saskatchewan submits that these provisions were not triggered. Since Entitlement Bands can acquire TLE lands by participating in auctions, Saskatchewan gave WLFN notice of the auctions months in advance pursuant to the Consultation Policy. [ 49 ] Saskatchewan states that

Article 4.05(

d) shows that the parties turned their minds to how the TLE process would restrict Saskatchewan’s ability to sell Crown lands to third parties. In fact,

Article 4.05(

d) reflects the precise degree to which Saskatchewan was willing to limit its constitutional authority to sell Crown lands. Additionally,

Article 4.06 states that " “nothing in this Agreement shall be interpreted as requiring Canada or Saskatchewan to sell or transfer any specific parcel of federal or provincial Crown land to, or for the benefit of, any Entitlement Band.” " [ 50 ] In comparison, WLFN states that the

interpretation of " “willing seller/willing buyer” " must account for the circumstances leading to the Framework Agreement. WLFN asserts that such an examination is required to address the legal issues in the Claim. WLFN submits that by failing to discuss potential terms of sale, Saskatchewan failed to act in accordance with established principles of a willing seller/willing buyer pursuant to

Article 4.05(

a) of the Framework Agreement. Furthermore, Saskatchewan reneged on its position as a willing seller once WLFN submitted its request. As a result, Saskatchewan also breached subsection 4.05(

b) of the Framework Agreement . For these reasons, WLFN states that notice of a sale of provincial Crown lands and a reasonable opportunity to purchase those lands prior to their committal to auction must be read into the Framework Agreement as implied terms. According to WLFN, these implied terms are required to give effect to the express terms . [ 51 ] WLFN states that the existence of implied terms is a genuine issue best left to a trial judge. WLFN cites Ochapowace for this proposition.

In Ochapowace , the Court stated: … the right to notice and a reasonable opportunity to purchase claimed by Ochapowace may or may not amount to a right of first refusal. It is also possible that Ochapowace will be partly successful in having such a term implied. Thus, it is difficult, at this stage, to reach a firm decision as to the relevance of the comparison with the Manitoba TLE Agreement. Again, this will be decided by the trial judge ( at para 36).

[ 52 ] Saskatchewan argues that Ochapowace is distinguishable on the basis that it dealt with a motion to strike a claim under Rule 221. Different considerations and principles apply to

summary judgment applications. While this is true, I am of the view that Ochapowace still provides some guidance as it also dealt with public auctions and whether a right to notice may or may not amount to a right of first refusal. As the Court stated in Apotex , " “where the arguments before the motions judge and the reasons for rejection of the motion relate to the very same issue, surely I should give some consideration to those reasons and results” " (at para 19).

The issues in Ochapowace are similar to the present matter and the outcome in Ochapowace is indicative that such issues are better suited to a trial. I agree with WLFN that a trial judge is best left to determine whether WLFN has a right to notice and a reasonable opportunity to purchase as an implied term . [ 53 ] In reviewing George Gordon , One Arrow , and Bear , I find their application is limited to the present matter for several reasons. In George Gordon there was an agreed statement of facts.

The First Nation in that case also requested that Saskatchewan provide notice of any applications for mineral dispositions so that the First Nation could consider whether to acquire those same minerals under what the Court termed a right of first refusal ( George Gordon at paras 66, 67 ). That is not the case in the present matter. [ 54 ] In One Arrow , the proceeding also involved a

summary judgment application where the parties had an agreed statement of facts. As well, neither party cited case authorities to support their written and oral submissions. Accordingly, the Court addressed the issues without engaging in a lengthy analysis. The Court did not provide an in depth analysis of the principles of

interpretation, the law of contract, or the emerging principle of “good faith bargaining” (at para 18). Furthermore, the Court addressed the issues in light of the parties’ practices in prior land transactions (at para 23). In this case, there is no agreed statement of facts. The parties have submitted an extensive body of cases to support their respective positions. Finally, the parties have not provided evidence pertaining to their past practices in land transactions except for stating that WLFN has purchased Crown lands in the past.

For all of these reasons, One Arrow is of limited jurisprudential value. [ 55 ] In Bear , the parties agreed to proceed summarily. Bear also involved a consideration of the public interest in determining whether to sell lands to the First Nation (see para 23). This is unlike the present matter, where there is no indication that Saskatchewan, in deciding not to sell the parcels in question to WLFN, assessed the public interest. In this case, the public interest may be a relevant factor for a trial judge to consider. In addition, the Court in Bear adopted the reasoning in One Arrow at paragraph 45 .

As pointed out in the previous paragraph, the parties in One Arrow did not provide a body of case law and, therefore, the legal analysis was admittedly limited. [ 56 ] Lastly, the factual matrix in the present matter is unlike the cases noted above. The public auction differentiates this matter from the cases Saskatchewan relies on. The issue of if or how the public auction impacts the Framework Agreement is an issue for trial.

(3) Good Faith , Best Efforts, and Favourable Consideration [ 57 ] WLFN submits that Saskatchewan failed to give " “favourable consideration” " under

Article 4.06 by refusing to sell the lands to it during the auctions. Furthermore, Saskatchewan breached its common law contractual duty of good faith performance by failing to have appropriate regard for the legitimate interests of WLFN under the Framework Agreement . [ 58 ] Saskatchewan disagrees and states that " “favourable consideration” " only includes a thorough consideration of offers, in good faith, and without engaging in sharp practice ( Bear at para 50 ).

Saskatchewan submits that WLFN has failed to present facts or evidence that could establish that it failed to consider the requests thoroughly, in good faith, and without engaging in sharp practice . WLFN’s failure to request the lands in a timely manner is contrary to its obligation to make best efforts under

Article 21 of the Agreement. [ 59 ] On the issue of " “best efforts” " under

Article 21, Saskatchewan states that WLFN’s position ultimately results in WLFN having a right of first refusal. [ 60 ] Saskatchewan also states that removing land parcels for TLE purposes during an auction would disrupt the auction process and have financial costs for Saskatchewan. Saskatchewan points out that the extensive internal and external reviews that the province conducts before including any land parcel in an auction would be in vain if parcels had to be removed from auctions due to untimely TLE requests.

They further point out that WLFN had since 1993 to select the lands in question. [ 61 ] Canada states that the Framework Agreement recognizes and respects outstanding TLE claims, and plays an important role in advancing reconciliation. The TLE agreements " “are not be interpreted like commercial contracts” but instead “must be interpreted in accordance with the objectives of honourable conduct, reconciliation and fair dealing with Aboriginal peoples” " ( Long Plain at paras 117-118 ).

This is helpful guidance that may be considered by the trial judge. [ 62 ] In my view, Bear , One Arrow , and George Gordon arose in different contexts and dealt with different issues than the present matter. In those cases, the parties only made submissions on contractual

interpretations on the facts and circumstances before them. Unlike in the present matter, there is no indication that the parties were looking at the essence of the negotiations leading to the development and finalization of the Framework Agreement in order to ascertain the meaning of certain provisions. WLFN also denies that it is seeking a right of first refusal as the Court characterized the request in George Gordon . Whether or not notice and a reasonable opportunity to purchase amounts to a right of first refusal is an issue for the trial judge ( Ochapowace at para 36 ).

Therefore, the findings in Bear , One Arrow , and George Gordon have limited jurisprudential value before this Court. [ 63 ] Saskatchewan submits that WLFN’s Claim largely turns on the

interpretation of “good faith”, “best efforts”, and “favourable consideration”. Further, since this is essentially a matter of contractual

interpretation, a

summary judgment is an appropriate procedure ( Hyrniak at para 27). While the general rule is that matters of contractual

interpretation are appropriate for

summary judgment, this rule was developed in the context of commercial agreements. That is not the case in the matter before me. [ 64 ] While TLE agreements are contracts, they arise within a much larger factual matrix. As noted in Long Plain , " “For over a century, Canada had broken a treaty promise to provide certain Aboriginal bands with lands. And to remedy the broken promise, Canada entered into certain agreements with some of the bands… to facilitate their acquisition of lands.” " The purpose of TLE agreements is to remedy broken treaty promises. This context is quite distinguishable from a commercial contract.

[ 65 ] It may very well be the case that when all parties agree (as was the case in One Arrow , Bear , and George Gordon ) and the parties ask the court to provide a straightforward contractual

interpretation, a motion for

summary judgment will be appropriate to interpret TLE agreements. However, it is equally fair that a full trial may be needed to interpret an agreement that, at its core, is about broken treaty promises dating back one hundred years ago and which gave rise to a complex set of negotiations to settle the issue of outstanding TLE claims. This is a unique factual matrix that, in my view, may give rise to " “gaps” " in the factual matrix as contemplated in Apotex . [ 66 ] In this case, WLFN has established that there is a gap in the evidence.

The gap that WLFN has identified is the lack of information about the surrounding circumstances that existed when the Framework Agreement was executed. Without this information, this Court cannot “ " determine the proper

interpretation of the provisions” " nor can the matter be disposed fairly or justly. Accordingly, WLFN has successfully established the need for a trial.

(4) Release [ 67 ] Saskatchewan also cites

Article 16 of the Framework Agreement in support of its argument that WLFN is prohibited from challenging the terms of the Framework Agreement.

Article 16 releases Saskatchewan from its NRTA obligation to Canada once a Band acquires its Shortfall Acres, or upon Saskatchewan fully paying Canada, whichever comes first. WLFN acquired its Shortfall Acres in 1998. Saskatchewan completed payment in 2003. While

Article 15.06 sets out circumstances of when the release may not be relied upon, none of these circumstances are pleaded by WLFN. Saskatchewan also cites George Gordon at paragraph 71 in support of its reliance on the release provisions of the Framework Agreement. [ 68 ] WLFN states that Canada failed to set aside sufficient land resulting in a TLE shortfall, specifically in its ability to acquire its Equity Acres. The recent auctions reduce the total acreage of unoccupied Crown land available for selection by Entitlement Bands. Therefore, Canada has not been released from its outstanding obligations related to the TLE based on its failure to comply with

Article 15 of the Framework Agreement. [ 69 ] Canada states that it has always honoured and has not breached its obligations pursuant to the Framework Agreement and the Settlement Agreement. Saskatchewan cites

Article 15.01(

b) where WLFN agreed it would not bring Treaty rights claims against Canada or Saskatchewan. [ 70 ] The practical legal effect of a full release and indemnity provision requires a full consideration of the parties’ legal positions and evidence of the negotiations leading to the Framework Agreement. It appears that such evidence was not adduced in George Gordon . As set out above, the Framework Agreement is still used as the basis for additional TLE negotiations.

A fulsome examination of the background of the negotiations is required to consider the legal effect of the above contractual provisions and to provide certainty so that such negotiations can continue to proceed. The issues are not narrow and while the Claim involves only WLFN and Saskatchewan, the resolution of any of the issues in this case will affect more than WLFN, particularly with a novel issue involving a public auction. VII. Conclusion [ 71 ] As set out above, Saskatchewan has not demonstrated that there is not a genuine issue for trial.

WLFN does not have the burden of proving all of the facts in their case. Rather, WLFN must provide evidence showing that there is a genuine issue for trial. In my view, it has done so. The motion is dismissed with costs. ORDER in T-1777-19 THIS COURT ORDERS that the motion for

summary judgment is dismissed. The matter will proceed to trial. WLFN is entitled to costs. "Paul Favel" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1777-19 STYLE OF CAUSE: WITCHEKAN LAKE FIRST NATION v HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN, AS REPRESENTED BY THE ATTORNEY GENERAL OF SASKATCHEWAN AND, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: April 12, 2021 ORDER AND REASONS: FAVEL J. DATED: october 15, 2021 APPEARANCES :

Ryan M. Lake Aron Taylor Dana Martin For The Plaintiff James Fyfe For The Defendants Melissa Nicolls Jean-Daniel Boulet For The Defendants SOLICITORS OF RECORD : Maurice Law Barristers and Solicitors Calgary, Alberta For The Plaintiff Attorney General of Canada Saskatoon, Saskatchewan For The Defendants