[8] The Applicants filed an Amended Notice of Application on December 21, 2023.

[9] The Applicants seek the judicial review of the decision by Transport Canada to issue a permit on March 17, 2023 (the “Permit”) to the Corporate Respondents pursuant to section 7(6) of the Canadian Navigable Waters Act, R.S.C., 1985, c. N-22 (the “CNWA”) for an outfall structure portion of the McIlvenna Bay Mine Project (the “Project”).

[10] More particularly, the Applicants seek a declaration that the Permit constitutes a breach by Canada, as represented by the Minister of Transport (the “Minister”), of its legal and constitutional duties toward the MN-S to:

[11] The Applicants allege that the Permit was issued in connection with the Corporate Respondents’ Project that consists of building a base and precious metals underground mine and surface mineral processing facility in east-central Saskatchewan, approximately 375 kilometres northeast of Saskatoon and 65 kilometres west-southwest of Creighton. The Project is located on Crown lands within Treaty 10 Territory and the documented traditional territory of the Métis Nation, among other Indigenous peoples of the area.

[12] The MN-S alleges that the Permit application involved certain activities and work to be carried out respecting the project which could have a prejudicial effect on the Aboriginal rights or title of the MN-S.

[13] The MN-S alleges that the issuance of the Permit represented a strategic, higher-level decision, since it had the potential to remove the authority of the Minister of the Environment to designate the Project under section 9(1) of the Impact Assessment Act. S.C. 2019, C. 28, section 1 (the “IAA”).

[14] The ANOA contains the allegation that between July 2022 and March 2023, the MN-S did not receive appropriate notifications or information about the Permit, including the potential that the issuance of the Permit may preclude the Project’s designation under the IAA.

[15] The Applicant alleges that the Minister issued the Permit stating in part that “the Minister has considered each of the factors listed in subsection 7(7) of the Act, additional information provided by the Corporate Respondents and any adverse effects that the decision to approve the work may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.”

[16] The MN-S alleges that the Minister did not provide appropriate notification to the MN-S with respect to the consideration or issuance of the Permit and its implications pursuant to the IAA. Notification of the issuance of the Permit and its implications under the IAA were only brought to the attention of the MN-S in passing by way of a letter from the Impact Assessment Agency of Canada to counsel for the MN-S on August 10, 2023.

[17] The MN-S alleges that the Crown’s duty to consult with MN-S respecting the Permit was accordingly at issue.

[18] The MN-S alleges that the Crown has an obligation to consult an Indigenous community when the Crown, 1) has knowledge, real or constructive, of a potential Aboriginal right or claim, and 2) contemplates conduct that 3) might adversely affect the Aboriginal right or claim. That duty to consult is alleged to extend to strategic, higher-level decisions that may have an impact on Aboriginal claims and rights as is the case in this proceeding.

[19] Finally, the MN-S alleges that the Government of Saskatchewan and Corporate Respondents have acknowledged the impact of the Project on the Métis Nation and the Crown’s corresponding duty to consult the MN-S with respect to the Project.

[20] It is apparent that the issues raised by the Applicant focus squarely on the Crown’s duty to consult in the circumstances described in the ANOA. The Crown that is referred to throughout the pleading is the Government of Canada as represented by the Minister of Transport and the issues that may arise all relate to the Minister’s decision to issue the Permit.

[21] The connection between the material facts pleaded and the relief sought in the ANOA and the Province of Saskatchewan is limited to the geographic location of the Project and the allegation that there is a recognition by the Government of Saskatchewan as a non-party to this proceeding that Canada has a duty to consult the Applicants with respect to the Project.

[22] There is no material fact pleaded by the Applicants with respect to the Province of Saskatchewan that might reasonably give rise to legal consequences within the scope of the pleaded judicial review during the hearing of the application.

[23] The AGS’s motion relies on the affidavit of Susan Carani sworn in December 2023 and the AGS’s written representations.

[24] Ms. Carani’s affidavit speaks to her employment duties with the Government of Saskatchewan as including the duty of monitoring litigation concerning the Government of Saskatchewan that involves First Nations and Métis rights issues such as the Crown’s duty to consult. She deposes that she is aware of three active litigation matters brought against the Government of Saskatchewan, or a Minister thereof, by the MN-S that raise issues of whether Saskatchewan must consult the MN-S, as opposed to MN-S Locals, and consult the MN-S in relation to its asserted Aboriginal title and rights, and whether Saskatchewan’s First Nations and Metis Consultation Policy Framework is unconstitutional.

[25] Ms. Carani attaches copies of the Originating Application for Judicial Review in court file KBG-RG-01831-2023 dated August 11, 2023, in court file QBD 1904 of 2021 dated August 31, 2021, the statement of claim in court file QBG 1477/20 dated September 15, 2020, and a copy of a Notice of Application in court file QBG 1477/2020 dated April 21, 2023, and affirms that each of those proceedings engage the Province of Saskatchewan, its duty to consult and Saskatchewan’s First Nations and Metis Consultation Policy Framework. Each of these proceedings are proceedings before the courts of Saskatchewan.

[26] The AGS’s notice of motion and written representations argue that the MN-S impugns the Province of Saskatchewan’s First Nations and Metis Consultation Policy Framework in its materials filed in this proceeding, and that a determination made by this Court with respect to the First Nations and Metis Consultation Policy Framework will have precedential weight affecting the outcome of the King’s Bench matters pending before courts in Saskatchewan. The AGS seeks leave to make submissions as an intervenor in this proceeding as a result.

[27] The AGS argues that it should be granted leave to intervene and make submissions to this Court in relation to:

[28] More specifically, if granted leave to intervene the AGS would submit that:

[29] The MN-S opposes the AGS’s motion on the basis that this proceeding does not raise any issue of general importance that would justify the AGS’s intervention It also argues that even if there was such a question there is no nexus between the question and the interests of the Province of Saskatchewan. It pleads that the AGS’s intervention would be inconsistent with Rule 3, and with reconciliation and the honour of the Crown. Finally, it pleads that this Court is not the proper forum of the AGS’s submissions, and that there is no constitutional question at issue.

[30] The AGS’ reply written representations were improperly filed. The AGS did not seek the Court’s permission to disregard the Rules and file written representations by way of letter rather than in the proper format. Their content, in any event, highlighted that the apparent basis of their argument for leave to intervene was the content of Mr. Vermette’s affidavit.

[31] The AGS’s motion is problematic in that it fails to adduce the evidence necessary for it to be successful on this motion.

[32] The AGS did not include a copy of the ANOA in this proceeding in support of its motion. As the AGS’s motion for leave to intervene must be determined in light of the issues raised in the proceeding, the AGS’s failure to include a critically material document in its motion record, the ANOA that delineates the issues the AGS says are of public importance on the MN-S’s application for judicial review and justify its intervention, would be sufficient for this Court to dismiss the AGS’ motion (Ewert v Assistant Commissioner Policy and Programs, 2022 CanLII 117825 (FC) at para 3; Sorribes c. Société Radio-Canada, 2023 CF 978 (CanLII) at para 6; Tehrankari v. Canada, 2022 CanLII 109756 (FC)).

[33] The ANOA was produced by the MN-S in its responding record and is therefore before the Court on this motion and may be considered.

[34] The “materials” referred to in the AGS’ argument is the affidavit of Mathew Vermette that was sworn and served on November 17, 2023, as contemplated by Rule 306 of the Rules and by this Court’s Order dated October 18, 2023. Mr. Vermette’s affidavit is not filed with this Court and might never be filed with this Court for the purposes of the underlying application for judicial review: affidavit evidence on an application for judicial review is not before the Court on the merits until it is included in the Applicant’s Record to be served and filed pursuant to Rule 309.

[35] Mr. Vermette’s affidavit was not included in the AGS’s motion record. This absence of evidence in support of the AGS’s argument would be sufficient for the Court to dismiss the AGS’s motion as there was no factual basis in its motion record for its argument for leave to intervene based on Mr. Vermette’s affidavit.

[36] Mr. Vermette’s affidavit was produced by the MN-S in its responding record and is therefore before the Court on this motion and may be considered.

[37] The Court also observes that the AGS has led no evidence as to what its submissions would be if it was granted leave to intervene in this proceeding. The AGS’s written representations contain what it would argue if granted leave to intervene. The content of written representations are not evidence (Canada (National Revenue) v. Distribution Carflex Inc., 2023 CanLII 110323 (FC), at paras 26 to 28). The Court has nothing by way of evidence before it as to what the AGS would submit if granted leave, only an argument as to what it would submit. Evidence and argument are two different things.

[38] The Court observes without making any determination that Mr. Vermette’s affidavit evidence pertaining to the First Nations and Metis Consultation Policy Framework as referred to in the AGS’s argument might not be legally relevant to the underlying application at all. The Court is concerned on judicial review with the evidentiary record that was before the decision maker whose decision is sought to be reviewed. The evidentiary record, including the evidence with respect to the duty to consult and its scope, was built before the Minister (Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245 (CanLII), [2015] 4 FCR 75, at para 43, citing Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22). It has not been demonstrated on this motion that the First Nations and Metis Consultation Policy Framework was at issue before the Minister at time of the decision sought to be reviewed.

[39] Leaving aside the AGS’s motion’s procedural and evidentiary issues, I observe that the more fundamental questions at issue on this motion remain unsatisfied by the AGS as a result of an absence of evidence and unpersuasive argument.

[40] The ANOA does not raise any issue with respect to the First Nations and Metis Consultation Policy Framework or its constitutionality.

[41] The Province of Saskatchewan’s duty to consult the MN-S is not raised as an issue in the ANOA at all.

[42] The Province of Saskatchewan’s duty to consult the MN-S pursuant to the First Nations and Metis Consultation Policy Framework does not appear to be an issue or a likely issue that would require any submissions before this Court as there is nothing in the ANOA or in the record before the Court on this motion that suggests that the March 17, 2023, Permit issued by Transport Canada was dependent upon or related to the First Nations and Metis Consultation Policy Framework.

[43] The AGS has not met its burden on this motion. It has not established that there is a question of public importance that is connected to the interest of the Government of Saskatchewan or to the population of Saskatchewan. It has not led evidence with respect to how its intervention would be consistent with Rule 3 of the Rules, and has failed to establish that the objectives of Rule 3 would be met if it were granted leave to intervene. The AGS’s intervention would in my view be inconsistent with Rule 3 because it would require a widening of the issues framed by the MN-S’ ANOA. The AGS has not satisfied the requirements for leave to intervene to be granted to it in this proceeding.

[44] Whether the outcome of this proceeding has precedential value in the AGS’s other disputes with the MN-S pending before the courts in Saskatchewan remains to be seen. What is certain, however, is that the AGS will have the opportunity to make submission in that regard before the courts in Saskatchewan when and if the time comes.

[45] The costs of this motion will be payable by the AGS to the MN-S as the MN-S is the successful party.

[46] The Court encourages the MN-S and the AGS to confer and to try to reach an agreement as to the costs of this motion prior to February 14, 2024. If they agree on the costs of this motion by then, they may deliver a letter on consent to the case management office in Ottawa to my attention that sets out their agreement as to costs and, if the Court considers such costs appropriate, a subsequent Order as to costs consistent with the agreement as to costs will issue.

[47] In the event that the parties do not agree on the costs of this motion, then the responding party MN-S shall have until February 19, 2024, to serve and file its costs submissions that do not exceed three pages, double-spaced, exclusive of schedules, appendices and authorities. The moving party AGS will then have until March 1, 2024 to serve and file its costs submissions, also limited to three pages, double-spaced, exclusive of schedules, appendices and authorities.

[48] If no agreement as to costs is filed by February 14, 2024, and no costs submissions are served and filed by February 19, 2024, then no costs will be awarded on this motion.

[49] The Court observes that this is a case managed proceeding pursuant to Rule 385 of the Rules. As a case managed proceeding, all motions are to be heard and determined by the Case Management Judge. It is customary and expected that any person seeking to file a motion in a case managed proceeding shall request a case management conference with the Case Management Judge prior to initiating their motion as their motion may have an impact other events that have been scheduled in the proceeding that may have to be managed as a result. The AGS took no such steps prior to initiating this motion.