FILE NO.: SCT-5003-24

CITATION: 2025 SCTC 4

DATE: 20250724

SPECIFIC CLAIMS TRIBUNAL

TRIBUNAL DES REVENDICATIONS PARTICULIÈRES

REASONS ON APPLICATION

Honourable Victoria Chiappetta, Chairperson

Note: This document is a redacted version of the decision, prepared for the public record, as the original unredacted version—containing privileged and confidential information—was provided solely to legal counsel for the Parties to this Claim. This document is also subject to editorial revision before its reproduction in final form.

Cases Cited:

Aundeck Omni Kaning v Her Majesty the Queen in Right of Canada, 2014 SCTC 1; Quebec (AG) v Pekuakamiulnuatsh Takuhikan, 2024 SCC 39.

Statute Cited:

Specific Claims Tribunal Act, SC 2008, c 22, preamble, ss 14, 16, 17.

Author Cited:

Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Markham, Ont: Butterworths Canada, 2002).

 

TABLE OF CONTENTS

I. INTRODUCTION 4

II. BACKGROUND 5

A. Settlement Privilege 5

B. The Statute and the Jurisprudence 6

C. Crown-Indigenous Relations and Northern Affairs Canada 8

III. THE WITHOUT PREJUDICE COMMUNICATIONS 9

A. The Originating Process 9

B. The November 30, 2022, Letter 9

C. The Parties’ Efforts at Resolution 11

D. The Breakdown of Efforts of Resolution 13

E. The April 8, 2024, Letter from the Deputy Minister of CIRNAC 15

IV. POSITIONS OF THE PARTIES 16

V. ANALYSIS 16

VI. DISPOSITION 20

VII. A FINAL WORD 20

 

I. INTRODUCTION

[1] On July 24, 2024, the Claimant, the Pasqua First Nation (Pasqua), filed a Declaration of Claim (Claim) with the Specific Claims Tribunal (Tribunal). The Claim alleges that the Respondent, His Majesty the King in Right of Canada (Canada or the Crown,), breached its fiduciary obligations by failing to augment or increase the annuity payments of $5 per person pursuant to Treaty 4 in order to offset the impacts of inflation and maintain the purchasing power of the payments (Declaration of Claim at para 3). Pasqua argues further that over time, the relative value of the annuity payments has decreased due to inflation to the point of rendering the annuity payments meaningless in terms of purchasing power (para. 48).

[2] On February 24, 2025, the Respondent submitted an Application for Leave and Notice of Application to strike the Claimant’s Declaration of Claim (Application). Canada’s position is that none of the conditions precedent for filing the Declaration of Claim with the Tribunal set out in subsection 16(1) of the Specific Claims Tribunal Act, SC 2008, c 22 [SCTA], have been met. Canada states that the Minister of Crown-Indigenous Relations (the Minister) has until September 20, 2025, to advise Pasqua if the specific claim has been accepted for negotiation. Canada therefore submits that the Declaration of Claim should be struck pursuant to subsection 17(a) of the SCTA as “on its face” the Claim is not admissible under sections 14 to 16 of the SCTA.

[3] Prior to the enactment of the SCTA and the creation of the Tribunal, the Minister had broad discretion to accept, negotiate and resolve specific claims at the Specific Claims Branch (SCB), with no possibility of independent adjudication. The SCTA was passed in order to provide certainty and efficiency in resolving long standing specific claims. Subsection 16(1) of the SCTA sets out the timelines within which the Minister must decide whether the specific claim will be negotiated at the SCB and notify the First Nation accordingly, among other requirements. Where negotiations fail, or the Minister rejects the specific claim at the SCB, the First Nation may now file a Declaration of Claim with the Tribunal, which acts as an impartial adjudicator.

[4] The issue to be decided on this Application, therefore, is whether the Minister, pursuant to paragraph 16(1)(a) of the SCTA, notified Pasqua of its decision not to negotiate the specific claim, in whole or in part, before Pasqua filed its Declaration of Claim with the Tribunal. If this notification was provided, then the Tribunal has jurisdiction to hear the Claim. If not, then, pursuant to subsection 17(a) of the SCTA, the Tribunal does not have jurisdiction to hear the Claim.

II. BACKGROUND

[5] There are a number of complicated aspects to this Application, many of which intersect with the Tribunal’s mandate and jurisdiction, and some of which go to the heart of the Canadian justice system’s truth-seeking function.

A. Settlement Privilege

[6] Part of the Tribunal’s mandate includes the responsibility to “create conditions that are appropriate for resolving valid claims through negotiations” (preamble of the SCTA). Where negotiations occur with a view toward settling a legal dispute, the Canadian justice system has determined that these communications are confidential based on a concept called “settlement privilege.” The point of settlement privilege is to allow parties to compromise in ways they may be unwilling to in litigation, while preserving their ability to take a less-compromising position if negotiations break down and litigation proves necessary. Creating a zone of confidentiality around settlement discussions allows for frank and honest discussions without the need to consider the potential negative consequences of compromise on litigation. Settlement privilege is an especially important concept at the Tribunal, because negotiated resolutions are the Tribunal’s preferred form of resolution.

[7] At the same time, the open court principle is a constitutional principle in the Canadian justice system, and a cornerstone of any democracy. The open court principle dictates that court proceedings, including the evidence presented at them, are generally accessible to the public on the basis that transparency and accountability are important values in a democracy. The open court principle and the principle of settlement privilege can come into conflict if parties need to bring a dispute that arose during negotiations to a court or the Tribunal for resolution. In these instances, the court or Tribunal will need to consider and balance the two competing principles.

[8] This is one of those instances. To resolve the issue to be decided on this Application, it is necessary for the Tribunal to review, analyze and interpret the without prejudice communications between Canada and Pasqua, relied upon by Pasqua to submit that they are tantamount to a rejection to negotiate its specific claim and therefore meet the condition precedent set out in subsection 16(1) of the SCTA.

[9] At the hearing of the Application on April 16, 2025, the Tribunal, after hearing from both Parties on the matter, stated that it agreed that a confidentiality Order is necessary with respect to settlement privileged communications filed by both Canada and Pasqua in the current proceeding. The Tribunal considered that the public is not interested in the documents filed in this proceeding, but if these documents were to be made public, there would be a risk of a significant negative effect on the Parties if they were to negotiate.

[10] For context, the Parties provided a draft confidentiality Order, which the Tribunal issued on April 25, 2025. The Order states as follows:

[1] All privileged communications and records filed by the Parties in relation to the Respondent’s application to strike the Claimant’s Declaration of Claim shall be treated as confidential and shall not be accessible by the public or become public documents under subsection 38(1) of the Specific Claims Tribunal Act, SC 2008, c 22. This Order extends to all references to privileged communications and records in the materials filed by the Parties; and

[2] Redacted versions of the filed materials shall remain publicly accessible as public documents under subsection 38(1) of the Specific Claims Tribunal Act, SC 2008, c 22.

[11] Because of the confidentiality Order in place, parts of the public version of this decision have been redacted. A confidential version of the decision, without redactions, has been provided to the Parties.

B. The Statute and the Jurisprudence

[12] The Tribunal’s jurisdiction is derived from the SCTA. Subsection 16(1) of the SCTA sets out the conditions precedent for filing a Declaration of Claim with the Tribunal. The section provides in part:

16(1) A First Nation may file a claim with the Tribunal only if the claim has been previously filed with the Minister and

(a) the Minister has notified the First Nation in writing of his or her decision not to negotiate the claim, in whole or in part;

(b) three years have elapsed after the day on which the claim was filed with the Minister and the Minister has not notified the First Nation in writing of his or her decision on whether to negotiate the claim;…

[13] The issue on this Application is whether communications from Canada to Pasqua constitute a rejection of the claim for negotiation pursuant to paragraph 16(1)(a) of the SCTA. The Tribunal considered this issue in Aundeck Omni Kaning v Her Majesty the Queen in Right of Canada, 2014 SCTC 1 [Aundeck]. In Aundeck, Canada believed that the claim was a low value claim that could be settled for under three million dollars. Canada followed its policy for low value claims by writing to the First Nation to make an offer to settle that would expire after 90 days if not accepted. It appears that the First Nation did not accept the offer, but contacted Canada to find out if there was any flexibility in Canada’s offer. Canada followed up with two emails to the First Nation. The first said that Aundeck Omni Kaning had not presented Canada with argumentation or evidence that would warrant a re-examination or re-evaluation of the settlement offer. The second email said that the file was closed but that if Aundeck Omni Kaning wished to reconsider Canada’s offer of compensation, it could contact Canada.

[14] Shortly thereafter, Aundeck Omni Kaning filed its claim with the Tribunal.

[15] Canada brought an application to dismiss Aundeck Omni Kaning’s claim on the basis that the three-year period for negotiations noted in paragraph 16(1)(b) of the SCTA had not yet passed, and that the Minister had not notified the First Nation of its decision not to negotiate the claim pursuant to paragraph 16(1)(a).

[16] Justice Smith for the Tribunal held that the emails from Canada indicated that Canada did not intend to discuss its settlement offer with Aundeck Omni Kaning. Justice Smith found that Canada’s position regarding the claim as a small value claim was essentially a “take it or leave it” one time offer with a 90-day time limit for acceptance (Aundeck at para. 82). Canada’s approach “unilaterally foreclosed any consultation or discussion about any of the essential aspect of the claim ‘in whole or in part’ including its value or how it was to be calculated” (para. 81). Justice Smith stated further that it was not clear what evidence Aundeck Omni Kaning would have to provide in order to reopen the file, because there was no evidence that Canada had shared the information relied upon to arrive at its settlement offer.

[17] In Aundeck, the Tribunal reviewed the principles of statutory interpretation in the context of paragraph 16(1)(a) of the SCTA. The Tribunal cited, at paragraph 52, the basic propositions of the ordinary meaning rule in statutory interpretation from Sullivan and Driedger on the Construction of Statutes as follows:

(1) It is presumed that the ordinary meaning of the legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails;

(2) Even where the ordinary meaning of a legislative text appears to be clear, and the consequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning; and

(3) In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible; that is, it must be one the words are reasonably capable of bearing.

[Ruth Sullivan, Driedger on the Construction of Statutes, 3d ed (Toronto: Butterworths Canada, 1994), at p.7]

[18] Sullivan and Driedger define “ordinary meaning” as most often referring to “the reader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context—in the words of Gonthier J., ‘the natural meaning which appears when the provision is simply read through’” (Canadian Pacific Airlines v Canadian Air Line Pilots Assn., [1993] 3 SCR 724 at p. 735, cited in Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Markham, Ont: Butterworths Canada, 2002) at p. 21).

[19] The Tribunal stated further that, in addition to the ordinary meaning approach to statutory interpretation, it is also important to “look to the object or purpose of a statute to better understand and determine what was intended by Parliament” (Aundeck at para. 54). Ultimately, Justice Smith held that Canada’s communication was a failure to negotiate substantively, and “tantamount to a decision not to negotiate [the claim]”, within the meaning of paragraph 16(1)(a) of the SCTA (para. 85). Thus, the claim was properly before the Tribunal, and Canada’s application was dismissed.

C. Crown-Indigenous Relations and Northern Affairs Canada

[20] To resolve the issue to be decided on this Application, it is important to understand the relevant organizational structure and separate processes of the Ministry of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC). Pasqua sent its specific claim submission (Claim Submission) to the attention of the Director General of the SCB in accordance with the Specific Claims Policy (Policy). The SCB is a sector of CIRNAC. The SCB process is limited to addressing historical grievances and cannot resolve issues less than 15 years old and which are forward looking.

[21] Relevant to this Application is the Treaty and Aboriginal Governance sector (TAG), which is another sector of CIRNAC. The TAG process is broader than that of the SCB. TAG is responsible for negotiating treaties, self-government agreements and other constructive arrangements with First Nations. This includes comprehensive claims, specific claims and some out-of-court settlements.

[22] The process that TAG follows for negotiating and obtaining mandates to negotiate is separate from that of the SCB. TAG does not have authority to speak on behalf of the SCB, nor to accept or reject specific claims for negotiation at the SCB.

[23] Given the nature of Pasqua’s specific claim that Canada failed to augment or increase the annuity payments pursuant to Treaty 4, those portions of the specific claim relating to the future indexation of treaty annuities involving the adjustment of periodic economic benefits to reflect inflation, fall outside the Policy. For this reason, CIRNAC proposed the referral of the specific claim to TAG for exploratory discussions. Canada states that Pasqua’s specific claim also remained open and under assessment, however, with the SCB.

[24] It is within this context the without prejudice communications are properly considered.

III. THE WITHOUT PREJUDICE COMMUNICATIONS

A. The Originating Process

[25] On March 25, 2022, Pasqua sent its Claim Submission to the SCB (affidavit of former Chief Matthew Todd Peigan (Peigan Affidavit), Exhibit A).

[26] In a letter dated May 16, 2022, the Director General of the SCB xxxxxxxxxxxx xxx xxxxx xxxxxxxxxx xxx xxxxxxx xxxxxx xxxx xxx xxxxxxxx xxxxx xxxxx xxxxxxx xxxxx xxxxxxx xx xxxxxxxxx xx xx xxx xxx xxxxxxxx xxxxxxxx xxx xxxxxx xx xxx (Peigan Affidavit, Exhibit B).

B. The November 30, 2022, Letter

[27] By letter dated November 30, 2022, the Director General of the SCB advised former Chief Peigan of Pasqua that xxx xxxxxxxx xxxxx xxx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxx xx (Peigan Affidavit, Exhibit C). The letter stated in part:

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxx x x x x xxxxxxxx x x xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxscope x xxx x xxxx x xxxxxx x xxxx.

[28] The letter went on to state that x xxxxxx xxxxxxxxxxxx xxxxxxx xxxxxx xxx xx xxxxx xxxxxxx x xxxxxxxxxx.

[29] Canada submits that the November 30, 2022, letter xxxxxxx xxxxxxx xx xxxx xxx xxxxxxxxx xxxxxxxxx but, at the same time, Pasqua’s specific claim remained open and under assessment with the SCB (Canada’s Memorandum of Fact and Law at para. 9). The letter xxx xxx xxxxx xxxx xxxxxxxx xxxxx xxx xxx xxxx, xx xxxx xxxxx x xxxxxxx xxxxxx xxxx xx xxx x xxxxxxxx.

[30] In oral submissions, Pasqua submitted that, as a result of the letter, it understood xxxx xxx xxxxxxxx xxx x xxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxx xxxxxxx xxx xxxx xxxxxxxxxxxxxx xxxxxxx xxxx xx xxrxx x xxxx x x xxxx xxxx xxxxxxxx (see also Pasqua’s Memorandum of Fact and Law at paras. 66, 81).

[31] In my view, the letter fails to communicate specifically and in detail what the process will be going forward. In its Reply, Canada states:

Xxxxxx xxxx xxxx xx xxxxxxxxxxxxxx xxx xxxxxxx xxxx x x xxxx xxxxxx xx xxxxxxxxxxx xxxxxx xxxx xxxx xxxxxxxxxxxxxx xxxx xxxxxxxxx xxxx xxxxxxxxxxx xxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xxxxxxxxxxxxxxxxxx xxxx xxxx xxxxxxxxxxxxxxxxxxx xxxx xxxxxxx xxxxxxxxx xxxxxxxxx xxxxxx xxxxxxx xxxxxxxxxxxx xxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxx xxx x xxxxxxxxxx xxxxxx. [para. 23]

[32] Unlike the Reply, the letter does not xxxxxxxxxx xxxxxx xxx xxxxxx xxxx xxxxxxxxx xxxx xxxx xxxx xxx xxxx xxxxxxxx. It does not indicate whether xxx xxxxxx xxxxxx xxxx xxxx xxx xxxx xxx xx xxxxxxx xxxx xxxxxxxxxx; only that xxx xxxxxxx xxxxxxxx xxxxxxxxx xxx xxxxxe. Xxxxxx xxxxxxxxxxxxxxxxxxx xxxxxx xxxxxxxx x xx xxxxxxx xxxxxxx xxxx xxxxxxxx wxxxx xxxx xxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxx xxxx xxx xxxxxx xxxxxxxx xxx xx xxxx. The author of the letter may have felt such clarity unnecessary given the distinct processes of the SCB and TAG, but it cannot be assumed that those outside government understand the nuances of two sectors of CIRNAC, represented by the same Minister, even where the group, such as Pasqua, is a stakeholder of both sectors.

[33] The lack of clarity caused confusion but, in my view, it is not tantamount to a decision not to negotiate the specific claim within the meaning of paragraph 16(1)(a) of the SCTA. Pasqua believed it was engaged with CIRNAC to discuss the scope of the specific claim and path toward resolution, as that is what was communicated to the First Nation. Canada states that neither TAG nor the SCB had a mandate for negotiation. Yet, both parties governed themselves consistent with working together to find a resolution. The option of litigation was not raised by either party as an option. Pasqua did not file a claim with the Tribunal at this time. As the letter indicated, x xxxxxx xxxxxxxx xxxxxx xxxxxxxx xx xx x xxxxxx xxxx xxxxxx xxxxxxxxxxx x xxxxxx xxxxxxxxx xxxxxxxx xxx xxxxxxxxxx. It was reasonable for Pasqua to believe it was working with CIRNAC to facilitate a resolution. In accordance with the process of reconciliation, after the November 30, 2022, letter, the Parties engaged in good faith efforts to resolve Pasqua’s grievances.

C. The Parties’ Efforts at Resolution

[34] On July 5, 2023, Tammy Hannibal, Blake McLaughlin and Alexandra Fensome, representatives of TAG (CIRNAC’s team), attended a virtual meeting with former Chief Peigan and legal counsel for Pasqua (Pasqua’s Memorandum of Fact and Law at para. 9).

[35] Tammy Hannibal, in her affidavit sworn February 18, 2025, affirms that at the July 5, 2023, meeting, xxx x xxxx x xxx x x x xxxx xxxxxx xxxx xxxxxxxxxxxxxxxxxxxx xxxxxx xx xxxxxxxx x xx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx xxx xxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxx xxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxx xxxxxxxx xxxx (affidavit of Tammy Hannibal (Hannibal Affidavit) at para. 6; Canada’s Memorandum of Fact and Law at para. 11).

[36] At paragraph 11 of his affidavit sworn on March 13, 2025, former Chief Peigan affirmed that the stated purpose of this meeting was to xxxx x xx xxxxxxxxxxxxx x xxxxxxx xxxxxxx. He stated that xxxx x xxx xxxx xxxxxxx xxxx xxxxxxx:

• Xxxx xxxx xxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxx xxxxxxxxx

• xx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx x

• xxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxx xxxx xxxx xxxxxxx xxx xxxxxxx

[37] Former Chief Peigan stated further that xxxxxxx xxxxxxxxxxxxxxx:

… xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxx xxxx xxxxxxxxx xx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx xxxxxxxxxxxxxxxxxxxx xxx xxx xxxx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx xxxxxxxxxxxxxxxx xxxx, x xxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xxxxxx xxxxxxxxx xxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxx [Peigan Affidavit at para. 12]

[38] At this meeting, xxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxx xxxxxxxxxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xxxx xxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (Peigan Affidavit at para. 13). Also, Pasqua later xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxx (Peigan Affidavit at para. 19).

[39] On July 6, 2023, Pasqua emailed CIRNAC’s team, xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx xxxxxxxxxxxx xxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx (Peigan Affidavit, Exhibit D).

[40] In a letter dated November 15, 2023, xxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxx xxxxxxxx xxxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxx x xxxx x.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx xxxxxxxxx xxxxxxxxxxxxxx xxxxxxx. Xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxx xxxxxxx x xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxx xxxx xxx xxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxxx (Peigan Affidavit, Exhibit J). The letter went on to suggest that xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxx x xxxxxxx xx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxxxxxxx

[41] Canada submits that Pasqua’s Claim Submission filed with the SCB on March 25, 2022, was limited to seeking past compensation for Canada’s alleged breach of Treaty 4 and failure to index the treaty annuity payments in the past. However, Pasqua’s xxx xxxx xxx xxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxxxxxxxxxxxxx xxxxxx xxxx xxxxxxxxxx. In oral submissions, Canada submitted that even if the SCB had accepted the specific claim for negotiation, it could not deal with the claim for compensation over the previous 15 years or the future, and that Canada was trying to find Pasqua a “one stop shop.” TAG had the potential to obtain a mandate to deal with both the past and future aspects of the methodology and framework. In that case, said Canada, the file could then be transferred from the SCB to TAG.

[42] Pasqua submits that it prepared its Claim Submission xxxxx xxxxxxxxxxxxxxxxx xxxxxx xxxx xxxx xxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxx xxxxxxx xxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxxxxx (Pasqua’s Memorandum of Fact and Law at para. 11; Peigan Affidavit at paras. 16–21).

D. The Breakdown of Efforts of Resolution

[43] By email dated December 18, 2023, Tammy Hannibal xxxxxxxx xxxxxxxxxxxx xx xxxx xxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx x xxx x x xxxxxxxxxxxxxxxx. She advised further:

Xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x xxxx xxxxxxxxxxxxxx xxxx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x xxxxxxxxxxxxxxxxxx xxx xxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xxxxxx xxx xxxxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxx x xxxxxxxxxxxxxxxxxxxxx xxx xxxxxx xx xxxx xxx xxxx xxxx xxxx xxxx xxxxxxxxxxxxxxxxxxxxxxx xxxx xxxx xxx. [Hannibal Affidavit, Exhibit B]

[44] Former Chief Peigan states that:

Xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x xxxxxxxxxxxxxxxxxx x xxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x xxxxxxxxxxxxxx xxxx x xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x xxxxxxxxxxxxxxxxx xxx xxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xx xxxx xxxxxxxxxxxxxxxxxx x xxxxxxxxxxx xxxxxxxxxxxxxx. [Peigan Affidavit at para. 26]

[45] On December 20, 2023, Pasqua responded to Canada in relevant part as follows:

… xxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxx xxxxxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x xxxx xxxxxxxxx xxx xxx xxxx xxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx x x x xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxx xxxx xx xxxx xxxx xxxxxxxxxxxxxxxxx. [Peigan Affidavit, Exhibit K]

[46] Canada did not respond in writing to this email (Peigan Affidavit at para. 29).

[47] On January 8, 2024, Tammy Hannibal met with Chief Peigan and Pasqua’s legal counsel virtually and advised that xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxx xxxx xxx xxxx xxxxxx.

[48] Former Chief Peigan provided his brief point form notes from this meeting as an attachment to his affidavit (Exhibit L). The notes attributed the following statements to Tammy Hannibal:

• Xxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx xx

• Xxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxx

• oXxxxxxxxxxxxxxxxxxxxx xxxxxxxxx

• Xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx

• oXxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxx xxxxxxx

• oXxx xxxxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxxxxxxxxxxx xxxxx x xx xxxxxxxxxxxxx

• Xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxxxxx xxxx.

• oXxxx xxxxxxxxxxxxxx xxxxxxx

• oXxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxx

[49] On January 9, 2024, former Chief Peigan wrote to Valerie Gideon, who was the Associate Deputy Minister of Indigenous Services Canada at that time. He summarized xxxx xxxxxxx xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx xx xxxx xxxxxxxxxxxxxxxxxxxxxxx xx xx x xxx xxxxxxxxxxxxxxxxxxxxxxx x xxx xxxx xxxxxxx xxx xxx xxxxxxxxxxxxxxxxxx xxxxxxxxx xxxxxxxxx.

[50] On February 13, 2024, Tammy Hannibal met virtually with former Chief Peigan and Pasqua’s legal counsel (Canada’s Memorandum of Fact and Law at subpara. 12(d)). Former Chief Peigan, in his notes from this meeting, attributed to Tammy Hannibal the following statement:

• xxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxx xxxxxxxx [Peigan Affidavit, Exhibit O]

[51] Tammy Hannibal stated at the meeting xxxx xxxxxxxxxxxxxxxxxxxxx xxxx xxxxxxx xxx xxx xxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxx x xxxxxxxxxxxxxxxxxxxx xxxx xxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xxxxxxxxxxxxxxxxxxxx xxxxxxxx xxxxxxxx x xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx x xxxxxxxxxxxxxxxxxxxxxx xxxxxx xxxx x xx xxx xxxx xx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx.

[52] Pasqua submits that the February 13, 2024, meeting was a xxxxx xxxxx xxxx and that xxxxxxxxx xx xxxxxxxxx xxx xxxxx xxxx xxxx (Peigan Affidavit at para. 33). It does not seem as if Pasqua understood from this call that TAG did not have a mandate to negotiate.

E. The April 8, 2024, Letter from the Deputy Minister of CIRNAC

[53] On April 1, 2024, Pasqua followed up with Canada xxxxxxxxxx x xxxxxx xxxxxxxx xx xxxxxxxx xxxxxxxxxx xxx xxxxxxxxxxxx xxx x xxxxxxx xxxxxx xx xxxxxxxx xxxxxxxxxx xx xxxxxxx xxxx xxxxxx xxxxxxxxxx (Peigan Affidavit, Exhibit Q).

[54] Valerie Gideon, then the Deputy Minister of CIRNAC, responded to former Chief Peigan in a letter which the Parties agree was sent on April 8, 2024. In the letter, she xxxxxx xxxxxx xxxxx xxxxxxx xx xxx xxxxxx x xxxxxxxxxx xxxxx xxx xx xxx xxxxxx xx xxx xxxxxxxxx xxxxx xxxxxxxxx. Valerie Gideon’s letter went on to say:

xxxxxxxx xx xx xxxxxxxx xxxxxxxxxx xx xxxxxxx xxxxxx xxxxxxx xxxxxxxxxxx xxxxxx xxxx xxxxxxxxxx, xxxxxx xxxx xxx xxxx x xxxxxxx xx xxxxxxxxx xxx xxxxxxxxxx xx xxxxxxxxx xxxx xxxxxx xxxxx xxxxxx. xxxxxx xxx xx xxxxxxx xxx xxxx xxxxxx xxxxx xxxxxxxx xxxxxx xx xxxxxxxxx xxxx xxxxxx xxxx xxxxxx xxx xxxx xxxxxxxxxx xxx, xxxxxx xxxxxxx xxxxxx x xxxxxxx xx xxxxxxxxxx xxxxxx xxxx xxxxxxx xxxxxx xxxx xxxxxx xxxx xx xxxxx xx xxxxx xxxxxxxxxxxxxxxxxxx. [Peigan Affidavit, Exhibit R]

[55] A few months after Valerie Gideon’s letter, on July 14, 2024, Tammy Hannibal sent legal counsel for Pasqua an email that stated as follows:

xxxx xxxxxxxx xx xx x xxxxxx xx xx xxx xxxxxxxxxxxxx xxxxxxx xxxx xxxx xxx xxxxxxxxx xx xxx xxxx xx xxx x xxxxx xxxx. [Partial Reply to Undertakings on Behalf of the Respondent—in respect of the cross-examination of Tammy Hannibal on March 7, 2025—at p. 11]

[56] The evidentiary record does not include any response from Pasqua to this email.

IV. POSITIONS OF THE PARTIES

[57] Canada argues that the Claim is outside of the Tribunal’s jurisdiction and should be struck under subsection 17(a) of the SCTA as it has not met the conditions precedent set out in subsection 16(1) of the SCTA. Canada argues further that CIRNAC has not made a decision on whether to negotiate Pasqua’s specific claim, and the communications made by Canada to Pasqua regarding its specific claim were not a refusal to negotiate. Canada submits, therefore, that the three years have not elapsed since Pasqua’s specific claim was filed with the Minister, and that the Minister has until September 20, 2025, to determine whether it will accept the specific claim for negotiation. Pasqua is therefore precluded from filing the Claim with the Tribunal until after that date (Canada’s Memorandum of Fact and Law at para. 3).

[58] Pasqua relies on the language of the preamble to the SCTA and submits that the Tribunal process was set up in the interests of reconciliation. It was intended to establish clear rules for when a claim may be filed with the Tribunal. In oral submissions, Pasqua submitted further that the SCTA was intended to promote transparency, certainty and accountability, and that it is not in accordance with reconciliation for Canada to use paragraph 16(1)(a) as a mechanism by which Canada can delay making a decision until the 11^th hour “just because they can.”

[59] Pasqua argues specifically that both the November 30, 2022, letter signed by the Director General of the SCB and the April 8, 2024, letter signed by the Deputy Minister of CIRNAC, constitute a rejection of Pasqua’s specific claim for negotiation in the SCB process as set out in paragraph 16(1)(a) of the SCTA. Therefore, Pasqua had the right to file the Claim with the Tribunal for resolution.

V. ANALYSIS

[60] In my view, the issue to be resolved on this Application turns on the letter of April 8, 2024, interpreted in context with the without prejudice communications, the actions of the Parties, the interpretation of section 16 of the SCTA and the application of the Tribunal’s decision in Aundeck.

[61] Pasqua submits that this letter, in stating that Canada did not have a mandate to negotiate Pasqua’s specific claim, communicated the Minister’s decision not to negotiate the specific claim in whole or in part. Pasqua highlights that the letter identifies the two options for resolving the specific claim—negotiation or litigation. A reasonable person in the shoes of Pasqua, it is argued, would have understood this letter to be a rejection of their specific claim for negotiation. Pasqua understood that it should now litigate the specific claim by filing it with the Tribunal.

[62] Canada submits that this letter did not foreclose the possibility of the specific claim being negotiated, and that the Minister has until September 20, 2025, to decide whether to negotiate the specific claim. Canada submits further that the Deputy Minister of CIRNAC does not have the authority to accept or reject specific claims for negotiation, and that only the Assistant Deputy Minister responsible for the specific claims process is authorized by the Minister to exercise the authority given to the Minister of CIRNAC regarding the acceptance or non-acceptance of specific claims for negotiation.

[63] The SCTA is intended to promote reconciliation between First Nations and the Crown by resolving specific claims in a just and timely manner. Paragraph 16(1)(a) of the SCTA provides certainty to First Nations with respect to the timeline for a decision by the Minister on whether or not to accept a specific claim for negotiation at the SCB. Canada’s communications with respect to the SCB process for Pasqua’s specific claim, however, have neither been clear nor transparent. They have not provided Pasqua with the certainty regarding the process that Canada has recognized as a core principle of the SCTA.

[64] Prior to December 2023, former Chief Peigan was not provided with sufficient clarity to fully understand that the specific claim was still being assessed by the Minister pursuant to the Policy. Rather, Pasqua believed it was working with CIRNAC to find a unique path toward resolution. It devoted significant time and resources at Canada’s request to prepare a draft methodology designed to assist in resolving the specific claim. Having been advised that the specific claim was still being assessed at the SCB, Pasqua nonetheless continued to hope for a meaningful resolution. On April 1, 2024, Pasqua asked Canada to formally respond to Pasqua’s framework and methodology submitted at Canada’s request on November 15, 2023. Pasqua asked Canada directly for a formal update of Canada’s intention to resolve this matter with Pasqua extra-judicially.

[65] In response to that direct question, Pasqua is advised, in the letter of April 8, 2024, that Canada would prefer to resolve specific claims through negotiation rather than litigation, but it does not have a mandate to negotiate. The letter does go on to advise that Canada will give Pasqua an offer to enter negotiations should it obtain a mandate to negotiate but it does not say that Canada is working on obtaining a mandate, or provide any timeframe within which it would follow up to explain progress made on obtaining a mandate. The lack of clarity in the letter on these key issues is regrettable, given that the SCTA was intended to provide certainty for all parties, and that the Tribunal has a role in promoting the just, timely and cost effective resolution of claims. After almost 17 months of spending significant time and resources to resolve this matter, Pasqua is told there are two options to do so, negotiation or litigation, and that negotiation, Pasqua’s desire, is off the table.

[66] The April 8, 2024, letter says that Canada does not have a mandate to negotiate the indexation of annuities with Pasqua. In my view, it was reasonable for Pasqua to assume that this letter related not just to its specific claim for indexation of future annuities but also its specific claim for past compensation for two reasons. First the April 8, 2024, letter is in response to Pasqua's letter of January 9, 2024, in which it discussed both past and future compensation. Second, it is unreasonable to assume that Pasqua, as a party outside the federal bureaucracy, could distinguish between the different sectors of CIRNAC. It was reasonable to assume that Pasqua interpreted the April 8, 2024, letter from the Deputy Minister of both the SCB and TAG, constituted a rejection of its specific claim for both past and future compensation, including the portion of its specific claim for which the SCB had a mandate. The letter is from the Deputy Minister of CIRNAC. TAG and the SCB have the same Deputy Minister (affidavit of Kelsey Gabel, Exhibit A (transcript of Tammy Hannibal’s cross-examination on March 7, 2025) at p. 34, lines 23–25). Paragraph 16(1)(a) of the SCTA does not specify that the Assistant Deputy Minister of the SCB must sign the letter, only that the Minister must have notified the First Nation of a decision not to negotiate the claim, nor does it prescribe a certain form of notification be given to the First Nation. The SCB has adopted a prescribed form of the letter, but that prescribed form was not used here.

[67] The letter advises Pasqua that Canada does not have a mandate to negotiate. It does not refer to CIRNAC, the SCB or TAG. The evidentiary record fails to sufficiently demonstrate that the internal differences and authorities between the two sectors was ever clearly explained to Pasqua. It is reasonable to believe that the Deputy Minister had the power to convey the Minister’s decision. It is not reasonable for Canada to assume that Pasqua understood that this letter related only to the TAG process. There was no indication that the clock continued to run on the Minister’s review of the specific claim at the SCB. The detail of the informal email of December 18, 2023, referring to the specific claims process was not included. If Canada had wanted to convey this important detail to Pasqua, Canada should have made this clear, either with a face-to-face dialogue providing a space for questions, answers and clarity or in a more clearly written detailed letter, similar to the email of December 18, 2023.

[68] Canada invited the Tribunal to consider internal documents limiting the delegation of authority within CIRNAC (Partial Reply to Undertakings on Behalf of the Respondent—in respect of the cross-examination of Marie-Laurence Daigle on March 12, 2025—at p. 7). These documents were not available to Pasqua at the time it received the April 8, 2024, letter and are therefore not relevant to a consideration of whether it was reasonable for Pasqua to conclude that a letter signed by the Deputy Minister of CIRNAC had the authority to convey the Minister’s decision.

[69] Upon receipt of the April 8, 2024, letter, Pasqua’s next action was to file its Claim with the Tribunal, on July 24, 2024. This action supports Pasqua’s submission that it believed that the April 8, 2024, letter was a rejection of its specific claim for negotiation at the SCB. In my view, for reasons set out above, this conclusion was reasonable.

[70] Canada argues that the decision of the Tribunal in Aundeck is distinguishable. In this decision, it is argued, the Tribunal considered a letter sent to a First Nation offering to settle on a “take it or leave it” basis, with a 90-day time limit for acceptance and no further opportunity for negotiations. Canada says that in Aundeck, because the claim submission file was closed following the expiration date of the offer to settle, it was clear that Canada’s intention was to end negotiations. By contrast, Canada submits, in the instant case, Canada attempted in good faith to address Pasqua’s grievances in a broader engagement process with TAG, outside the scope of the SCB process. Although these attempts did not result in a negotiation mandate, Canada, by proposing the alternative process, did not communicate a refusal to negotiate the matter in the SCB process (Canada’s Memorandum of Fact and Law at paras. 32–34).

[71] I agree that Canada attempted in good faith to address Pasqua’s grievances in a broader engagement process with TAG, outside the scope of the SCB process. Unfortunately, however, it failed to communicate this to Pasqua with sufficient clarity. The problems began with the November 30, 2022, letter proposing a path toward resolving Pasqua’s grievances. As previously stated, the November 30, 2022, letter fails to distinguish between the two sectors of CIRNAC, xx xxxxxxx xxx xxxxxx xx xxxxx xxx xxxxxxxxx xxxxxxxx, or to explain how this would affect the specific claim before the SCB. At no time prior to December 18, 2023, did Pasqua understand that the specific claim was still being assessed at the SCB. Although this was clarified by an email on December 18, 2023, in response to a direct question as to whether the specific claim could be resolved extra-judicially, the April 8, 2024, letter again does nothing to distinguish between the SCB and TAG processes, advising only that Canada does not have a mandate to negotiate. A reasonable person receiving this letter, considering the without prejudice communications as a whole and the efforts made to resolve the specific claim over almost 17 months, would conclude that Canada could not offer negotiation as an option for resolution of the specific claim and that litigation was the only remaining option.

[72] In my view, therefore, as in Aundeck, the letter of April 8, 2024, was “tantamount to a decision not to negotiate [the claim]” for the purposes of paragraph 16(1)(a) of the SCTA. Accordingly, the condition precedent in paragraph 16(1)(a) has been met and Pasqua’s Claim is properly before the Tribunal.

VI. DISPOSITION

[73] For reasons set out above, Canada’s Application is dismissed. Canada shall have 30 days from the release date of this decision to file its Response to the Declaration of Claim with the Tribunal.

VII. A FINAL WORD

[74] This is a unique case. Contrary to the intent of subsection16(1) of the SCTA, Canada’s April 8, 2024, correspondence created confusion, not certainty with respect to its decision to accept Pasqua’s specific claim for negotiation. The letter reasonably suggests litigation as the only remaining option.

[75] Canada stated in oral submissions that by proposing the engagement process with TAG it was trying to be fair and efficient for all parties. As set out above, under the TAG process, Canada could potentially secure a broader negotiation mandate that could deal with Pasqua’s specific claim for future compensation xxxx xx xxx xxxxx x xxxxxxxxx xxxxx. Similarly, Pasqua stated in oral submissions that it had worked very hard, hand in hand with CIRNAC over many years to resolve specific claims, and that it viewed its strong relationship with Canada with pride.

[76] The Parties differ in their interpretations of the correspondence and communications and in their understanding of what transpired at meetings, but clearly both Parties were committed to trying to find a way to resolve Pasqua’s specific claim, including Pasqua’s broader claim regarding compensation for the previous 15 years and into the future based on the indexation of the annuities payable under Treaty 4.

[77] In Quebec (AG) v Pekuakamiulnuatsh Takuhikan, 2024 SCC 39 at para. 148, the Supreme Court of Canada recently held:

The underlying purpose of the principle of the honour of the Crown is to facilitate the reconciliation of the Crown’s interests and those of Indigenous peoples, including by promoting negotiation and the just settlement of Indigenous claims. This purpose transcends the corrective justice at the heart of private law to make room for repairing and maintaining the special relationship with the Indigenous peoples on whom European laws and customs were imposed. This is what I will call justice linked to reconciliation or reconciliatory justice. [citations omitted]

[78] In my view, both Parties were acting in good faith. More specifically, the evidence fails to establish that Canada was not acting in accordance with the honour of the Crown. I accept that Canada referred the matter to TAG sincerely hoping that the greater flexibility afforded to TAG would allow for a resolution of the portions of Pasqua’s specific claim that did not fit within the Policy. As more detailed above, its failure was in communicating the purpose, intent and result of some of the meetings to Pasqua with sufficient detail and clarity. What occurred was honest miscommunication between the Parties as to the purpose and intent of some of the meetings and written communications they shared.

[79] Honest miscommunications will happen from time to time as Canada and a First Nation, acting in good faith, work diligently to resolve complex issues, sometimes hundreds of years in the making. In Carry the Kettle v His Majesty the King in Right of Canada, Tribunal file number SCT 5001-13, the Tribunal successfully mediated the resolution of a disagreement between the SCB and a First Nation on the interpretation of paragraph 16(1)(a) of the SCTA. When such miscommunications occur, the parties are encouraged to work together to find a mutually acceptable compromise solution, outside of litigating the conflict. It is within these difficult yet diligent efforts that the process of reconciliation is best served.

SPECIFIC CLAIMS TRIBUNAL

TRIBUNAL DES REVENDICATIONS PARTICULIÈRES

Date: 20250724

File No.: SCT-5003-24

OTTAWA, ONTARIO July 24, 2025

PRESENT: Honourable Victoria Chiappetta, Chairperson

BETWEEN:

PASQUA FIRST NATION

Claimant (Respondent)

and

HIS MAJESTY THE KING IN RIGHT OF CANADA

As represented by the Minister of Crown-Indigenous Relations

Respondent (Applicant)

COUNSEL SHEET

TO:	Counsel for the Claimant (Respondent) PASQUA FIRST NATION As represented by Ryan Lake and Anjalika Rogers Maurice Law, Barristers & Solicitors
AND TO:	Counsel for the Respondent (Applicant) As represented by Gabriela Fuentealba and Evan Morrow Department of Justice