Carry the Kettle Nakoda Nation asks court to declare Sask. gov't failed duties in Crown land sales

Carry the Kettle Nakoda Nation filed an application for a judicial review against the provincial government for its alleged refusal to consult with the community about sales of Crown land.

Judicial review application claims about 13% of land available to exercise Treaty rights

Carry the Kettle Nakoda Nation filed an application for a judicial review against the Saskatchewan Ministry of Agriculture, claiming the government has a responsibility to consult with Carry the Kettle regarding Crown land sales, and has failed to do so properly. (Bryan Eneas/CBC )

Carry the Kettle Nakoda Nation is taking the Ministry of Agriculture to court, claiming the government has failed to consult with the community when selling off Crown lands.

The First Nation community, located about 80 kilometres east of Regina, is one of several that have recently accused the Saskatchewan government of treaty infringements and unauthorized sales of Crown lands in court.

"We are here and we are going to let Saskatchewan know, and all forms of government know, that things like this can't be carried forward," said Brady O'Watch, Carry the Kettle's Chief.

O'Watch said that reserve lands don't expand, and as population grows some community members are forced to leave. 

He said it's so difficult to buy lands and transfer them to reserve status that it feels like the province sets them up "to fail."

JFK Law Corporation filed an application for a judicial review on behalf of Carry the Kettle on March 15. 

It's seeking declarations that the Ministry of Agriculture has a duty to consult Carry the Kettle about Crown Lands and that it has failed to do so properly for about 40 parcels of land.

The application also asks the court to enforce an order prohibiting the ministry from selling more Crown lands in Carry the Kettle's traditional territory until it consults with Carry the Kettle about the adverse effects on its treaty rights, which the application claims the government has refused to do.

They're being squeezed out of their traditional territory.- Naomi Moses, associate at JFK Law

Carry the Kettle claims in its application that the province has authorized its traditional territory, which it relies on to support the Indigenous way of life and culture, to be used for mining, oil and gas development, agriculture and other activities "without due regard for Carry the Kettle's treaty rights."

It says only about 13 per cent of the traditional territory remains for First Nation people, including Carry the Kettle members, to practise their treaty rights.

"Before contact, all this area was ours; right from Medicine Hat right to almost where Brandon, Man., is," O'Watch said. "How can we practise our inherent rights if we have no land to do it?" 

He said the government should be notifying First Nation communities when land is becoming available, "because no First Nation is going to say no to land."

"Any land that comes forward is now auctioned off," O'Watch said.

O'Watch's claims haven't been proven in court.

Carry the Kettle Chief Brady O'Watch said he believes litigation is the only way to have the community's voice heard. (Submitted by Brady O'Watch)

Naomi Moses, an associate at JFK Law, said Carry the Kettle's available traditional territory land base has been "dramatically diminished" and that much of the remaining land is a patchwork that is "not suitable for the exercise of treaty rights."

Moses compared its situation with the Blueberry River First Nation, which claimed the B.C. government infringed on its Treaty rights

The Supreme Court of B.C. sided with the First Nation community, declaring there is an insufficient amount of land for the community to meaningfully exercise its rights.

Moses said the land available to Carry the Kettle is even smaller.

"They're being squeezed out of their traditional territory and their treaty rights are in serious danger of becoming meaningless," Moses said.

Moses said the application is claiming the Crown's consultation process is too narrow and Carry the Kettle isn't given meaningful opportunity to get land from the province.

A spokesperson for the Ministry of Agriculture confirmed the judicial review application was served to the Attorney General on Monday, but said "it would be inappropriate to say more as the matter is before the courts."

In 2017, Carry the Kettle filed a separate action against the governments of Canada and Saskatchewan claiming their sale of Crown lands infringed on treaty rights, but the claim hasn't been proven in court.