Form 3-9 (Rule 3-9) G COURT FILE NUMBER a Qs COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE REGINA PLAINTIFFS METIS NATION OF SASKATCHEWAN and MBTIS NATION SASKATCHEWAN SECRETARIAT INC. DEFENDANT THE GOVERNMENT OF SASKATCHEWAN NOTICE TO DEFENDANT 1 The plaintiffs may enter judgment in accordance with this Statement of Claim or the judgment that may be granted pursuant to The Queen's Bench Rules unless, in accordance with paragraph 2, you: (a) serve a Statement of Defence on the plaintiffs; and (b) file a copy of it in the office of the local registrar of the Court for the judicial centre named above. 2 The Statement of Defence must be served and filed within the following period of days after you are served with the Statement of Claim (excluding the day of service): (a) 20 days if you were served in Saskatchewan; (b) 30 days if you were served elsewhere in Canada or in the United States of America; (c) 40 days if you were served outside Canada and the United States of America. 3 In many cases a defendant may have the trial of the action held at a judicial centre other than the one at which the Statement of Claim is issued. Every defendant should consult a lawyer as to his or her rights. 4 This Statement of Claim is to be served within 6 months from the date on which it is issued. v-Di day of September, 5 This Statement of Claim is issued at the above-named judicial centre on the \ L_T. 2020. Court Seal J. ISION t_OCA.L!D Local Registrar -1-4216,P STATEMENT OF CLAIM A. THE PARTIES 1. The Metis Nation of Saskatchewan ("MN-S") is the government of the Metis in Saskatchewan, as further described below, representing the rights and interests of Saskatchewan Metis. 2. Metis Nation Saskatchewan Secretariat Inc. (the "Metis Secretariat") is the administrative body by which the policies and programs of MN-S are carried out and administered. It is established as a non-profit corporation pursuant to section 5 of the Metis Act, SS 2001, c M-14.01 (the "Act"). 3. The Defendant, the Government of Saskatchewan (the "Province"), is the lawful representative of the Saskatchewan Crown and through which any civil claim against it is properly brought. B. THE METIS OF SASKATCHEWAN AND MN-S (i) The Metis of Saskatchewan 4. The rights of the Metis are recognized in section 35 of the Constitution Act, 1982 ("Section 35"), which states that "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed" and which defines the Aboriginal peoples of Canada as including Indian, Inuit and Metis peoples. 5. The Metis have faced a history of marginalization and harm resulting from colonization and government policy towards Indigenous peoples in Canada. Through this history, Metis have seen their rights, practices, and lands impacted by development, foreign settlement, and other Crown initiatives. Crown initiatives targeting the fabric of Metis communities themselves, including through Canada's residential school system, have also added obstacles for Saskatchewan Metis to exercise, advance, and protect their Aboriginal rights for themselves and for future generations. 6. As a result of their unique history, Saskatchewan Metis assert Aboriginal rights including, inter elle, those: a. to harvest animals, plants, and natural resources for food, cultural, ceremonial, traditional, and religious use, for both personal and community purposes; b. to harvest animals, plants, and natural resources for commercial purposes; and c. to lands, and their resources, including as set out in the Northwest Saskatchewan Land Claim as commenced by MN-S and others on March 1, 1994 (QB No. 619 of AD 1994) (the "Northwest Claim"). MN-S 7. MN-S is governed in accordance with the Constitution of Metis Nation — Saskatchewan (the "MN-S Constitution") which was proclaimed by Metis people in Saskatchewan on December 3, 1993 and has been amended from time to time. 8. MN-S is the government of the Metis in Saskatchewan. This was recognized by the Government of Canada ("Canada") through the 2019 Metis Government Recognition and SelfGovernment Agreement (the "Governance Agreement"), entered into between MN-S and the Canada. The Governance Agreement, among other things, provides and recognizes: a. that MN-S is mandated to represent the Metis in Saskatchewan; b. the inherent right of self-determination and self-government of the Metis of Saskatchewan; c. that the Metis of Saskatchewan shall act through MN-S in asserting, claiming, negotiating and exercising any collectively held rights or freedoms protected under Section 35. 9. The role of MN-S as the representative of Metis rights and interests in Saskatchewan is also acknowledged by the Province under the Act, which provides in section 3 that the Province and MN-S will work together through bilateral processes to address issues that are important to Metis people, including: (a) capacity building; (b) land; (c) harvesting; and (d) governance. 10. MN-S actively represents and advances Metis rights. For example, in 2019, MN-S and the Province signed the "Affirmation of the Memorandum of Understanding on Metis Food Harvesting Rights" which recognizes that the Metis of Saskatchewan have established MN-S as their government, mandated to advance Metis rights. MN-S is also currently negotiating the Saskatchewan Metis land claims with Canada, including the Northwest Claim, pursuant to the 2018 Framework Agreement for Advancing Reconciliation. (iii) The Organizational Structure of MN-S 11. MN-S is the government of the Metis in Saskatchewan. 12. The MN-S Constitution states in Article 13 that MN-S is seeking self-government as a third order of government within Canada. 13. The MN-S Constitution details the organizational structure of MN-S and creates components of government, which include: a Metis Nation Legislative Assembly ("MNLA"), an elected Provincial Metis Council ("PMC"), an executive ("Executive"), 12 regions (the "Regions"), each with a regional council, and locals ("Locals"). Under the MN-S Constitution: a. The MNLA: The MNLA is the governing authority of MN-S. This body has the authority to enact legislation, regulations, rules and resolutions governing the affairs and conduct of the Metis in Saskatchewan. b. The Executive: While the legislative authority of MN-S resides with the MNLA, the President of MN-S is the democratically elected head of the Executive (sometimes referred to as "head office"). The President is responsible for all aspects of the Executive, but may assign executive portfolios to government ministers with the approval of the PMC and ratification by the MNLA. c. The PMC: The PMC is composed of 4 executive members, and 12 regional representatives. The PMC forms the cabinet, and selected PMC members are responsible for portfolios assigned by the President. d. The Regions: Saskatchewan is divided into 12 Regions. Regions are responsible for MN-S programs and services that are decentralized to the regional level. e. The Locals: Under the MN-S Constitution, Locals are the basic unit of MN-S in each community. The number of Locals fluctuates in accordance with the rules for admittance and dissolution under the MN-S Constitution. There are currently approximately 130 Locals. Locals may be created and dissolved with the approval of, and are fully subject to the laws of, the MNLA. 14. The Metis Secretariat serves as the administrative body for MN-S, through which the policies and programs directed by MN-S are administered and carried out. The board of directors of the Metis Secretariat is comprised of the same individuals as the PMC. (iv) Consultation and the Organizational Structure of MN-S 15. Locals operate on a volunteer basis and are provided basic operating funds by MN-S. This funding is not intended to address protecting and advancing Metis rights and interests with governments and proponents, since these are activities of the Executive. 16. The Executive manages MN-S's governance activities throughout Saskatchewan. The Executive has professional, technical, and legal resources, experience, and infrastructure for protecting and advancing Metis interests through both consultation and government-to-government negotiations and initiatives. 17. In 2008, in recognition of the capacity constraints then-in-existence at all levels of MN-S, an Interim Statement of Principles on Metis Consultation and Accommodation was adopted by the MNLA (the "Interim Statement"). The Interim Statement instructs governments to provide all consultation notices to the Executive, in addition to the impacted Locals and Regions. 18. MN-S is currently in the process of finalizing a new consultation policy to replace the Interim Statement. C. THE PROVINCE AVOIDS ITS CONSTITUTIONAL OBLIGATIONS TO CONSULT WITH MN-S 19. In June 2010, the Province issued a document titled "First Nation and Metis Consultation Policy Framework" (the "2010 Policy"). The 2010 Policy presents the Province's policy on consultation with First Nations and Metis communities for use by the Province's ministries, agencies, Crown corporations, First Nations, Metis and proponents. 20. The Province has communicated to MN-S that it does not consult on matters which are not subject to the 2010 Policy. 21. Numerous provisions of the 2010 Policy are inconsistent with Canada's constitutional protections for Indigenous rights under Section 35 and the obligation of the Crown to act honourably in its dealings with Indigenous peoples. For example: a. Title Claims: The 2010 Policy states that the Province does not accept assertions by the Metis of Aboriginal title with respect to land or resources, and consequently, decisions that may adversely affect Metis land claims are not subject to the 2010 Policy; b. Disposition of Minerals: The 2010 Policy states that the disposition of minerals under The Crown Minerals Act, SS 1984-85-86, c C-50.2 ("The Crown Minerals Act") is not subject to the 2010 Policy; c. Commercial Resources: The 2010 Policy states that impact to commercial uses of resources by the Metis, such as commercial trapping and fishing, are not subject to the 2010 Policy; and d. Consultation Representatives: The 2010 Policy states that when consulting, the Province recognizes presidents of the Locals as the appropriate representatives for consultation, and will only consult with "provincial" Metis entities if the elected leadership has delegated this authority through its constitutional decision-making process, and the consulting ministry has a written, signed copy of the authorization. In practice, MN-S understands that the Province will not consult with the Executive, or even copy the Executive on consultation notices, unless the appropriate Local president has provided the Province with a signed authorization. D. ON-GOING CHALLENGES WITH THE 2010 POLICY 22. The damaging effects of the 2010 Policy on the Metis of Saskatchewan include: a. the Metis of Saskatchewan not being informed of Crown actions or decisions which may adversely impact their constitutionally protected rights, including commercial harvesting rights and rights to lands, and their resources, and as a consequence being unable to: i. understand the potential adverse effects of the Crown conduct; ii. inform the Crown of Metis concerns; or iii. engage in meaningful dialogue about accommodation measures where appropriate; b. express refusal of the Province to provide consultation notices to the President or delegated employees of the Executive and, as a consequence, consultation notices going unanswered, since they are received by Locals that are operated on a volunteer basis and which are not equipped or operated to provide timely, meaningful responses and otherwise advocate for Metis rights; c. the Crown's refusal, in those instances where it does consult, to properly consider Metis concerns regarding potential adverse effects to Metis rights and interests, including commercial harvesting rights and rights to lands and their resources; d. undermining Saskatchewan Metis self-determination and self-government, as reflected in the MN-S Constitution, by requiring that Locals "authorize" the Executive to act on their behalf before the Province will consult with the Executive or share notices of consultation — in effect imposing an alternative framework for selfgovernment which is different from, and undermines the authority of, the MN-S Constitution; e. perpetuating the long history of marginalization of the Metis, which contributes to challenges the Metis community faces today, including marginalization of Metis rights, culture, traditional activities, and use of Metis lands; and f. aggregating intergenerational Metis anxieties, which include: i. community apprehension regarding how continued development will impact land claims (for example, the Northwest Claim), including concerns that Metis lands are being irreparably altered and denuded; ii. concerns that important rights and interests of the Metis are being ignored, marginalized, and irreparably harmed as a result of the policies of the Province; and iii. concerns regarding the legacy of development and the Province's policies on Metis lands, communities, health, and the safety of lands, wildlife, and food sources. 23. The Province's reliance on the 2010 Policy is not honourable. 24. The 2010 Policy, and the Province's significant reliance thereon, reflects an effort on the part of the Province to avoid, or minimize and marginalize, meaningful consultation with Saskatchewan Metis. As a result, the Province avoids its constitutional obligation to honourably and meaningfully understand, and where appropriate accommodate, Metis interests and concerns. 25. MN-S recognizes that reconciliation requires a balancing of interests. However, relying on policies which seek to avoid, or minimize and marginalize, the concerns and engagement of the Metis is not honourable, and is inconsistent with the constitutional principles based in Section 35, including the Crown's duty to consult with, and where appropriate accommodate, the Metis. E. RECENT ENGAGEMENT WITH THE PROVINCE REGARDING CONSULTATION 26. An example of the Province's dishonourable and unconstitutional reliance on the 2010 Policy is demonstrated in its issuance of permits to Denison Mines Corp. ("Denison") and other mineral exploration companies. 27. Denison operates multiple uranium projects in Saskatchewan, which are in the traditional territory of the Metis. 28. In or about the fall of 2019 and early 2020, the Province considered and issued a number (the actual number being within the sole purview of the Province) of exploration permits, including several to Denison. These permits were issued in respect of lands that fall within the traditional territory of the Metis and are therefore subject to Crown consultation obligations. Of these permits, MN-S was provided with notice regarding only two (the "Disclosed Permits") and was not provided notice of, or engaged in consultation in respect of, a number of other exploration permits considered and issued during that same time period (the "Undisclosed Permits"), including some to Denison. 29. The Province's consultation on the Disclosed Permits and failure to consult on the Undisclosed Permits is prejudicial to the Saskatchewan Metis and otherwise wholly improper in several respects, and exemplifies: a. the Province's failure and continuing refusal to consider concerns related to Metis interests in the lands themselves, including Metis title, and the Province's exclusive focus on current hunting, fishing, trapping, and other non-commercial uses of land; and b. the Province's failure and continuing refusal to provide MN-S with notice of the Undisclosed Permits, which resulted in the Metis losing the opportunity to consider potential impacts of the exploration program on Metis rights and to communicate such concerns to Provincial decision-makers. 30. The Province's dishonourable conduct regarding both the Disclosed Permits and the Undisclosed Permits, and consultation more broadly, reflects the obstacles that the 2010 Policy creates for advancing Metis concerns and promoting meaningful consultation and, where appropriate, accommodation. For example: a. the duty to consult does not require the proving of rights or the Crown's acceptance of a claim. All that is required is the Crown's knowledge of a credible, but unproven claim. The Province cannot rely on the 2010 Policy to shield it from consulting and providing reasonable notice simply because it does not accept the claim; and b. the Province's reliance on the 2010 Policy as the basis of refusing to provide notice to, or consult with the Executive, unless it is provided a form of "delegation" satisfactory to the Province, is inconsistent with the MN-S Constitution, the expressed will of the MNLA, and the Crown's obligation to act honorably. F. THE PROVINCE'S RELIANCE ON THE 2010 POLICY IS DISHONOURABLE AND UNTENABLE AT LAW 31. As previously noted, there is no basis in Canadian law for refusing to consult simply because the Crown does not accept an asserted Aboriginal right. 32. The Province presumably is aware that its approach (based on the 2010 Policy) impairs consultation by removing the Executive from engagement and placing the burden of responding to and engaging in consultation on Locals. 33. The Province's continuing reliance on the 2010 Policy is inconsistent with the constitutional principle of the honour of the Crown. The Province's refusal to consider Metis land rights or commercial harvesting rights, based on its own 2010 Policy, is wrong at law, offends efforts towards reconciliation, and reflects a pattern of the Province acting to avoid meaningfully engaging with the Executive on Metis rights. 34. For the above reasons, the Province's conduct in reliance on the 2010 Policy is dishonourable, prejudicial, and otherwise unlawful. 35. Further, the 2010 Policy contravenes Canadian law regarding the duty to consult and is therefore invalid. RELIEF SOUGHT: 36. The Plaintiffs seek the following: a. Declarations that: i. The 2010 Policy is invalid and may not be relied upon; ii. The Province's reliance on all or parts of the 2010 Policy breaches the honour of the Crown; iii. The Province's duty to consult Saskatchewan Metis includes, where relevant, consulting on Metis claims to lands and resources; iv. The Province's reliance on the 2010 Policy as a basis for not considering Metis title concerns is inconsistent with the Crown's duty of honourable dealing towards Indigenous peoples and its obligations under Section 35; v. The Province's reliance on the 2010 Policy as a basis for not consulting on disposition of minerals under The Crown Minerals Act is inconsistent with the Crown's duty of honourable dealings towards Indigenous peoples and its obligations under Section 35; vi. The Province's reliance on the 2010 Policy as a basis for not consulting on commercial uses of resources by Metis peoples is inconsistent with the Crown's duty of honourable dealing towards Indigenous peoples and its obligations under Section 35; vii. The Province's duty to consult Saskatchewan Metis requires the Province to engage with the Executive as the representative of Metis rights and interests, or in the alternative, requires, at a minimum, providing notice to the Executive; and viii. The Province's preconditions to consulting with MN-S, including but not limited to receiving a delegation from a Local president, are inconsistent with the Crown's duty of honourable dealing towards Indigenous peoples; b. An order that the Province identify and disclose to the Executive all matters since 2010 that MN-S should have been provided notice of and/or consulted on but were not because of the 2010 Policy; c. Damages; d. Costs; and e. Such further relief as may be just in the circumstances. , Saskatchewan, this 15th day of DATED at September, 2020. Thomas Isaac, counsel for the Plaintiffs CONTACT INFORMATION AND ADDRESS FOR SERVICE If prepared by a lawyer for the party: Name of firm: Cassels Brock Lawyers Name of lawyer in charge of file: Thomas Isaac Address of legal firms: 2200 — 885 West Georgia Street Vancouver, BC, V6C 3E8 Telephone number: 604.691.6100 Fax number (if any): 604.691.6120 E-mail address (if any): tisaac@cassels corn MLTAIIVNS LOCAL REGISTRAR • Regina • Saskatoon Action N Requested By: Lynda REGINA / SASKATOON Date: September 15 2020 File No.: 0054662.00005 Lawyer: TJM Matter Name: General Governance Advising Metis Nation Client Name: M Attached Please Find: — 1 Joint Request for Pre-Trial Conference Certificate of Lawyer Notice of Intent to Defend Formal Offer to Settle Certificate of Search Statement of Defence Appearance Day Notice Judgment Registry Search Notice of Cross-Claim Appointment for Questioning Tax Certificate Notice of Third Party Claim Praecipe for Subpoena Title Originating Application Monitor's Report Mortgage Notice of Application Brief of Law Book of Authorities Application Without Notice Order Notice of Change of Representation Draft Order Judgment Notice of Withdrawal of Lawyer Memorandum of Law Bill of Costs Notice of Appal Demand for Particulars Consent to Payment Out of Court Appeal Book Statement of Claim ~_ Reply to Demand for Particulars ' Discontinuance of Claim Factum Affidavit of Certificate of Service Affidavit of Affidavit of Service Affidavit of Acknowledgement of Service El Note Action for Default of Defence I Answer n. E cn 11File and return __stamped copy(ies) EIssue Statement of Claim and return ❑ Set for (next) Chambers date on El Other Comments Date Don p; Done By: WhitelYellow- to Court Runner Fee Paid: S Pink -File Copy 1 sealed copy(ies) I.