First Nation appeals lost bid to get info on mineral claims

A First Nation north of Regina is appealing to Saskatchewan’s highest court after losing its bid to get inside information on mineral rights applications in a wide swath of Saskatchewan.

A Court of Queen’s Bench Justice concluded George Gordon First Nation was trying to get the “jump” on potash companies, but the lawyer representing the band countered that it simply wants royalties that would otherwise go to the province.

The First Nation first filed the claim in 2011. It was seeking $10 billion in damages initially and the cancellation of mineral rights held by mining giant BHP Billiton, which has permits and leases to almost 10,000 square kilometres northwest of the George Gordon reserve.

That could have affected the company’s proposed multi-billion Jansen potash mine. But George Gordon later walked back its claim, instead seeking a declaration upholding a duty to consult and damages to be determined by the court.

On April 2, Justice Neil Robertson of the Court of Queen’s Bench found in favour of the federal and provincial governments, dismissing George Gordon’s claim and ordering it to pay legal costs.

Jeffrey Rath, the band’s lawyer, said he’s disappointed with Robertson’s decision. He had argued that the province breached a duty to consult with George Gordon by not informing it when it received applications for mineral rights, not only in the area close to its reserve, but across all Treaty 4 lands.

The First Nation had signed a $26.7-million treaty land entitlement agreement that allowed it to purchase up to 115,712 acres of land to be added to its reserve. Under the agreement, the band would get free access to minerals on those lands — unless a third party already had rights to them.

In Robertson’s view, that’s why George Gordon wanted the headsup on third-party applications. In the April 2 decision, he suggested that it was trying to swoop in after mining companies had already done their homework, pre-empting applications through a “right of first refusal.”

According to the decision, Rath admitted as much.

“Counsel for George Gordon candidly explained that the reason George Gordon might wish to acquire those minerals is because the original applicant will presumably have already determined there are likely valuable minerals below the surface of those lands,” Robertson wrote.

He called that “unreasonable” and warned that it would be a “dramatic” departure from the system now in place, with significant implications for industry and other First Nations.

“What George Gordon sought was a change in practice that would favour George Gordon over others, allowing it to jump a prior claim of a third party,” he wrote.

Robertson found that there was no duty to consult on the third-party applications, and that Saskatchewan already had fulfilled its duty by providing fair notice about potential land and mineral rights available.

In Robertson’s view, what George Gordon was seeking would have amounted to a “veto” on mineral projects.

But in an application dated April 9, Rath asked the Saskatchewan Court of Appeal to overturn that decision. He said Robertson ignored important arguments and misapprehended the law.

In his view, Robertson bought into the erroneous premise that First Nations “need to take a back seat to everyone else in the province.” He said it’s not fair that the province has access to the information in the applications, while George Gordon is forced to choose its land blindly.

What George Gordon sought was a change in practice that would favour George Gordon over others.

He suggested that the government wants First Nations with treaty land entitlement to choose land that’s already been deemed “worthless,” while it holds onto areas with real potential.

“The Government of Saskatchewan is keeping that land for itself so it can have the royalties,” Rath said.

“BHP Billiton would still be the developer,” he added. “The only question is who owns the underlying minerals.”

Rath also argued that the province gave away rights to land in areas George Gordon was angling for before the treaty land entitlement agreement was signed, including for the Jansen mine. He said Robertson largely ignored that argument.