Suing The Provincial Crown In The Federal Court: The Federal Court Of Appeal Upholds Attornment Clause In First Nations Settlement Agreement Against Saskatchewan

In an important decision regarding the jurisdiction of the Federal Court in aboriginal claims, the Federal Court of Appeal has affirmed the right of the Pasqua First Nation to sue the Government of Saskatchewan in the Federal Court for breach of a settlement agreement on the basis of an attornment clause. In Canada v Peigan, 2016 FCA 133,1 Saskatchewan argued that notwithstanding the attornment clause, which directed that any disputes arising under the settlement agreement be determined by the Federal Court, it was immune from suit in the Federal Court and, alternatively, that the suit did not fall within the Court's subject matter jurisdiction. The Federal Court of Appeal rejected both arguments, finding that the Federal Court possesses exclusive jurisdiction over the portions of the claim alleging a breach of Saskatchewan's obligations under the settlement agreement.

Background

In 1993, Canada, Saskatchewan, and a number of First Nations signatories to Treaties 4, 6 and 10 signed 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 (the "Framework Agreement"), which sets out a framework for the fulfillment of the Crown's outstanding obligations under the three numbered treaties. The Framework Agreement also provides for the conclusion of similar agreements with other First Nations groups who did not sign on to the Framework Agreement. The Pasqua First Nation concluded such an agreement with Canada and Saskatchewan in 2008 (the "PFN Settlement Agreement").

Both the Framework Agreement and the PFN Settlement Agreement provide that disputes arising under them shall be within the exclusive jurisdiction of the Federal Court. The relevant provisions provide, in relevant part:

... in the event the parties ... are unable to agree on any matter, including a question of interpretation of any term, covenant, condition or provision of this Agreement, the determination of any such disagreement, and the enforcement thereof, shall be within the exclusive jurisdiction of the Federal Court of Canada.2

In 2014, the Pasqua First Nation commenced an action in the Federal Court against Canada and Saskatchewan alleging that they had breached their obligations under the PFN Settlement Agreement. In addition, the claim alleged that Canada and Saskatchewan had failed to discharge...