Indigenous groups signal upcoming legal battle over Sask. First Act

The Saskatchewan First Act was borne out of meetings and consultations, but its a lack of consultation with Indigenous communities that has the act destined for a courtroom.

On Thursday, Saskatchewan Party government members voted unanimously to pass the act, known as Bill 88.

The government has said the bill is meant to assert provincial jurisdiction and prevent federal government intrusion.

Usually, bills pass with little fanfare outside of cheers and the sounds of hands slapping desks on the governing party's side of the aisle.

That happened on Thursday, but it was the presence of a large opposition in the public galleries that stole the attention.

Approximately 150 people from First Nations and Métis communities packed the benches to watch the proceedings.

As Opposition NDP members stood to vote no, the gallery stood as well — an unusual sight in the legislature.

Perhaps more unusual was the fact that many in the gallery on Thursday morning also watched committee on Wednesday in person.

On Wednesday, the Opposition introduced a motion in committee to have Indigenous guests appear as witnesses and give testimony about Bill 88, but that was voted down by Saskatchewan Party committee members.

Following proceedings on Thursday, Premier Scott Moe said the government was not bothered by the presence of opposition to the bill saying, it was democracy in action.

"We're very appreciative of when folks engaged at committee last night and engage today. We can be thankful for the democracy we have. And when people engage in that democracy, most certainly we're a government that's going to meet them and have those conversations as we have over the last number of months," he said.

Moe said he planned to meet with some people in attendance Thursday.

Moe called the discussions over the past few months "admittedly what is a sensitive conversation that we're finding our way through as we look ahead."

Lack of consultations could lead to legal action

For First Nations and Métis leaders, the crux of the issue is an alleged lack of meaningful conversations, both in advance of the creation of the bill and leading up to its passage.

Last summer, Premier Scott Moe appointed now-former MLA Lyle Stewart and former Saskatchewan Party MLA Allan Kerpan to lead a series of closed-door meetings on how Saskatchewan could increase its provincial autonomy.

Those meetings were coupled with town halls hosted by Sask. Party MLAs in various communities in the province.

The result was a white paper titled Drawing the Line: Defending Saskatchewan's Economic Autonomy. It was released in October 2022.

In November, the government introduced its flagship piece of legislation, the Saskatchewan First Act. 

Almost immediately, the Federation of Sovereign Indigenous Nations (FSIN) and the Métis Nation-Saskatchewan (MN-S) spoke out against the bill. Both said they were not consulted and the bill violated inherent and treaty rights.

On Thursday, the FSIN issued a news release before the bill passed.

"FSIN will take legal action to oppose the Act, as it infringes on First Nations Inherent and Treaty Rights to land, water, and resources."

In the legislature rotunda following the vote, MN-S vice president Michelle LeClair said the organization's legal department was looking at the issue.

"We need to caucus with all of our people involved, because one thing we do right as Métis people and as First Nations people is, we do consult our communities. We talk to our communities and get their advice. Where are we going? What are we gonna do? How are we gonna react?" Leclair said.

"That's something we don't see in this in this government or in this house."

Government amends bill

The government made an 11th-hour change to Bill 88 by introducing an amendment to include the following clause:

"Nothing in the Act abrogates or derogates from the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982."

The government could have introduced the amendment at any time since the bill was introduced in November. 

When asked if the government is ignoring treaty rights, Moe said, "nothing could be further from the truth. It's our government, it's a member from Athabasca, Jim Lemaigre that actually introduced the amendment that was passed that reaffirms not only treaty rights that are in the Constitution in Bill 88, but really reaffirms this government stance that not only do we respect treaty rights in this province and those of those rights that our First Nations and Métis individuals have."

What happens next?

The FSIN is promising legal action and MN-S is hinting at it, but questions remain on what the bill will actually do in practice.

First Nations and Métis leaders, and Saskatchewan's Treaty commissioner, have spoken out against the bills preamble regarding provincial jurisdiction, which points to the controversial 1930 Natural Resources Transfer Agreement between the federal and provincial government, an agreement Indigenous people have been at odds with because they say they were never consulted before that deal was reached. 

On Thursday, Onion Lake Cree Nation Chief Henry Lewis said in a letter, "we only allowed the Crown to use our lands to the depth of a plough. We still retain full access over control and jurisdiction over the natural resources in our territories."

Lewis called Bill 88 a "step backwards."

"The autonomy that Saskatchewan claims with Bill 88 over its land and resources came at the expense of our ancestors and our livelihoods."

Lewis said he is concerned Bill 88 will lead to future Crown land sales without proper consultation.

Onion Lake Cree Nation, which borders Saskatchewan and Alberta, is suing the Alberta government over its Alberta Sovereignty Act.

Saskatchewan's Opposition justice critic Nicole Sarauer said she expects legal action.

"I imagine this legislation will be challenged in court by Indigenous leadership prior to [government] being able to use it federally. I have a feeling this will be challenged very quickly."

She called on the government to send the bill to the Saskatchewan Court of Appeal for a legal opinion.

Sarauer said the bill will not change battles between the province and Ottawa.

Mitch McAdam, the director of Saskatchewan Constitutional Law Branch, said in committee on Wednesday that Bill 88 is a "novel" and "interesting" exercise and "not one that other provinces have embarked on, so there are not a lot of precedents to follow."

When asked if the bill had legal weight, Minister of Justice Bronwyn Eyre said the government feels it does.

"It certainly isn't carving out new powers," Eyre told the committee.

She pointed to one element — the creation of an economic tribunal that will look at the economic impacts of federal policies. Eyre said that could be used to support a legal challenge.

On Wednesday, Sarauer and the NDP called for an amendment to the bill to include Indigenous representation on the tribunal, but that amendment was voted down by Sask. Party committee members.

McAdam and Eyre said the contents of the act will be helpful in future court cases.

"We believe that those provisions will have an impact if and when we end up in court arguing about these matters in the future," McAdam said.

McAdam said the bill is not an attempt to change jurisdiction, but "an important statement to make about provincial jurisdiction."

Listen | The Morning Edition's Political Panel discusses the passage of the Saskatchewan First Act: