Executive Summary: Key Legal and Evidentiary Issues

• Scope of Federal Court jurisdiction over constitutional, fiduciary and honour of the Crown claims versus purely contractual Treaty Land Entitlement (TLE) disputes
• Justiciability of Pasqua First Nation’s contractual allegations under the Framework Agreement and its band-specific Settlement Agreement at the pleadings stage
• Application of the stringent “plain and obvious” / “bereft of any possibility of success” test on motions to strike in complex treaty and TLE contract cases
• Effect of earlier TLE jurisprudence (including Witchekan Lake and Ochapowace) on interpreting the Framework Agreement and on whether PFN’s claim discloses a reasonable cause of action
• Alleged abuse of process in pleading constitutional and fiduciary breaches previously found beyond the Federal Court’s jurisdiction
• Dispute over mootness of PFN’s claims against the Water Security Agency, particularly whether a “live controversy” remains regarding the Echo Lake Lands and alleged breaches of TLE obligations

Background and facts of the dispute
Pasqua First Nation (PFN) adheres to Treaty No. 4, entered into in 1874. Under Treaty 4, PFN was entitled to a defined quantum of reserve land, but it alleges that this entitlement was not fully met, creating an outstanding shortfall. In 1992, twenty-two Indian bands in Saskatchewan, including PFN, entered into a Framework Agreement with Canada and the Government of Saskatchewan to resolve these outstanding treaty land entitlement issues through a structured Treaty Land Entitlement (TLE) process. In 2005, PFN and Canada began bilateral negotiations to address compensation for the acreage PFN should have received under Treaty 4. Those negotiations culminated in a 2008 band-specific Settlement Agreement between PFN and Canada. Together, the 1992 Framework Agreement and PFN’s 2008 Settlement Agreement are referred to as the Treaty Land Entitlement Agreements (TLE Agreements). Under these agreements, PFN claims rights in relation to the selection and acquisition of certain lands to fulfill its outstanding Treaty 4 land entitlement. Some of the lands PFN was interested in acquiring are two parcels adjacent to Echo Lake (the “Echo Lake Lands”).

The Echo Lake lands and competing interests
The Echo Lake Lands were originally owned by Canada and used by the Water Security Agency (WSA) to operate a water control structure. In 2014, Canada and the WSA entered into an agreement under which ownership of the Echo Lake Lands was transferred to the WSA in 2015. After the transfer, Saskatchewan notified PFN that a third-party company, Abaco Energy Services Ltd. (Abaco), had made an offer to purchase the Echo Lake Lands. PFN consistently objected to a sale of the Echo Lake Lands to Abaco, asserting that it was interested in acquiring these parcels under the TLE process pursuant to its Settlement Agreement. The Abaco transaction ultimately collapsed due to flooding risks associated with the lands. PFN, meanwhile, made its own offers to purchase the Echo Lake Lands, but the WSA refused to sell to PFN. PFN alleges that this refusal to sell, and the way the lands were dealt with, breached rights and obligations under the TLE Agreements and other duties owed to PFN. The dispute over the WSA’s handling of PFN’s offers and Saskatchewan’s role in the disposition of the Echo Lake Lands lies at the heart of this proceeding.

The Amended Statement of Claim and alleged breaches
PFN’s Amended Statement of Claim (the “Claim”) seeks declaratory relief against three defendants: His Majesty the King in Right of Canada (Canada), the Government of Saskatchewan (Saskatchewan) and the Water Security Agency (WSA). PFN pleads that each defendant breached obligations owed to it in relation to the Echo Lake Lands. Against Saskatchewan and the WSA, PFN alleges not only contractual breaches of the TLE Agreements but also breaches of constitutional and fiduciary duties and obligations, as well as obligations grounded in the honour of the Crown. PFN asserts that, properly interpreted, the Framework Agreement as “varied, modified, amended, supplemented or replaced” by PFN’s Settlement Agreement provides it with substantive rights in connection with selecting and acquiring lands like the Echo Lake parcels. PFN’s position is that Saskatchewan and the WSA were bound to act in accordance with those rights and to deal with the Echo Lake Lands in a manner consistent with the TLE Agreements, including in their response to PFN’s purchase offers.

The motions to strike and the issues raised
Saskatchewan brought a motion under Rules 208 and 221 of the Federal Courts Rules to strike the Claim, in whole or in part, without leave to amend. The WSA brought a parallel motion, also seeking to strike the Claim as against it on largely the same grounds. Both defendants argued that parts of the Claim were outside the jurisdiction of the Federal Court, that the Claim disclosed no reasonable cause of action, that it constituted an abuse of process in light of prior and parallel proceedings, and, in the case of the WSA, that the issues involving the Echo Lake Lands were now moot and should not be heard. Canada did not bring a motion and did not seek substantive relief, only requesting that costs not be awarded against it in relation to these motions. On a motion to strike, the Court was required to assume that the material facts pleaded in the Claim, to the extent capable of proof, were true. Against that backdrop, the Court had to determine whether any part of the Claim was “bereft of any possibility of success” under the stringent test for striking pleadings.

Jurisdiction over constitutional and fiduciary obligations
Early in the motion, jurisdictional issues narrowed the field of controversy. PFN conceded that the Federal Court lacks jurisdiction over claims of breach of constitutional, fiduciary and honour-of-the-Crown obligations owed by Saskatchewan and the WSA. This concession was consistent with prior authority, including Ochapowace v. Canada, where the Court had already held that such claims fall outside the Federal Court’s jurisdiction. In light of PFN’s admission and the existing case law, the Court ordered that all paragraphs in the Claim that alleged constitutional or fiduciary breaches—specifically paragraphs 1(c), 1(d), 1(e), 1(g), 29, 58, 61, 62, 63, 64 and 65—be struck. Leave to amend was granted but strictly limited to grammatical corrections. Substantive re-pleading of those jurisdictionally barred causes of action is not permitted.

Reasonable cause of action and the contractual TLE claims
The core dispute on the merits concerned whether the TLE-based contractual claims should be allowed to proceed. Both sides accepted the governing test from R. v. Imperial Tobacco: a claim will only be struck if it is plain and obvious, assuming the pleaded facts to be true, that it discloses no reasonable cause of action. The Supreme Court in Iris Technologies further characterized this as a high threshold—pleadings must be “bereft of any possibility of success,” and a motion to strike will be granted only in the “clearest of cases.” In this context, Saskatchewan and the WSA relied heavily on the Federal Court of Appeal’s decision in Saskatchewan (Attorney General) v. Witchekan Lake First Nation, which involved interpretation of the same 1992 Framework Agreement. They argued that, following Witchekan Lake, PFN’s contractual theory under the TLE Agreements could not succeed and should therefore be struck as a matter of law. The Court declined to accept that view. It emphasized that Witchekan Lake arose from a summary judgment motion, where the Court had a developed evidentiary record before it. By contrast, on a motion to strike, evidence is strictly limited and certain kinds of material—such as opinion evidence comparing settlement agreements among different bands—are inadmissible. The Court accordingly rejected portions of an affidavit from Saskatchewan that attempted to introduce such opinion evidence, finding that they ran afoul of Rule 221(2). The judge stressed that the Claim, read as a whole, invoked rights for PFN arising from the Framework Agreement as affected by PFN’s own band-specific Settlement Agreement, and that the interpretation of these intertwined contracts engages principles of contractual interpretation, implied terms and good faith performance. Canadian courts, including in Ochapowace and other authorities cited, have been reluctant to resolve such contract-interpretation disputes on a motion to strike because they typically require evidentiary context. Here, the Court held that Saskatchewan and the WSA had not satisfied the very high burden necessary to show PFN’s TLE-based contractual claims were doomed to fail. While not precluding the possibility of later summary judgment or trial, the Court refused to strike these portions of the Claim at the pleadings stage.

Allegations of abuse of process
The defendants also invoked abuse of process, pointing in particular to PFN’s decision to re-plead constitutional and fiduciary allegations despite prior rulings that such claims fall outside the Federal Court’s jurisdiction. The Court acknowledged that Saskatchewan and the WSA had succeeded in having those jurisdictionally barred allegations struck and noted that PFN only conceded the point after the motions were brought and after the moving parties had incurred the expense of preparing their applications. While the Court did not strike the entire action as an abuse of process, it found that this history was relevant to the issue of costs. The judge stated that the aspect of the motion dealing with jurisdiction “should not have been required” given existing decisions on the same issue involving PFN.

Mootness and the continuing live controversy with the WSA
A key focus of the WSA’s motion was mootness. The WSA argued that the questions regarding PFN’s offers to purchase the Echo Lake Lands, and the WSA’s past refusals, no longer served any practical purpose. It contended that any declaratory relief available under section 17(3) of the Federal Courts Act could not retroactively impugn the WSA’s past decisions or compel a sale, and that any declaration would be merely advisory, affecting only hypothetical future rights. PFN countered that the controversy remained concrete and adversarial. It emphasized that the Echo Lake Lands have not been sold to a third party and remain potentially available for selection; that the Settlement Agreement is still in effect and binding; and that the parties continue to disagree sharply on whether Saskatchewan and the WSA breached their obligations under the TLE Agreements by refusing to sell the lands to PFN. Applying the two-step test for mootness from Borowski—first, whether there is still a “live controversy,” and second, if not, whether the Court should nonetheless exercise its discretion to hear the matter—the judge found that the first step was not satisfied. There remains a live issue as to what obligations Saskatchewan and the WSA owe PFN under the TLE Agreements and whether those obligations were fulfilled or breached in relation to the Echo Lake Lands. Because a declaration on these points could still affect the parties’ rights, the claim against the WSA was not moot. Having found a live controversy, the Court did not need to consider the discretionary second step and dismissed the WSA’s mootness argument.

The Court’s order, outcome and costs
In the formal order, the Court struck the paragraphs of the Amended Statement of Claim that alleged constitutional and fiduciary breaches by Saskatchewan and the WSA, granting PFN only narrow leave to amend those paragraphs for grammatical corrections. It directed PFN to serve and file any Further Amended Statement of Claim complying with this ruling by a specified date (March 13, 2026). The motions to strike brought by the Government of Saskatchewan and the Water Security Agency were otherwise dismissed. This means PFN’s core contractual and TLE-based claims under the Framework Agreement and Settlement Agreement will proceed toward determination on their merits, subject to any future summary proceedings. On costs, the Court characterized the result as divided success but emphasized that the jurisdictional aspect of the motions ought not to have been necessary. As a consequence, it ordered that the costs of these motions be payable “in the cause” by Pasqua First Nation to the Government of Saskatchewan and the Water Security Agency. No monetary damages were awarded in this interlocutory decision, and the judgment does not specify an exact dollar amount for the costs; the total monetary consequence in favour of Saskatchewan and the WSA will depend on later costs assessment or final disposition of the main action, so the precise amount cannot presently be determined.