Introduction

The difficulties facing a legal challenge to the Government of Saskatchewan’s proposed sell off of public pastures are many. Most of the tactics involve holding the government to standards which it has set for itself. This is not a passive or defeatist stance, but it does require constant reliance and cooperation with the public and policy groups that are not necessarily part of the legal conversation. Indeed, it has been these groups that have gained a vital victory for the environment and public pastures in Saskatchewan. Due to letters, meetings, and participation in the online survey, the government has changed its mind and will lease public pastures instead of selling them. This development has brought the research into a legal challenge to an end, but the information gathered should be preserved in the event that Saskatchewanians have to defend their public pastures again.

This report identifies what has been learned. Beginning with an overview of the public pastures in question, the report then moves to a section largely revolving around The Wildlife Habitat Protection Act (the “WHPA”), the Crown Land Ecological Assessment Tool (the “CLEAT”), and The Conservation Easements Act (the “CEA”). The focus will then shift to what can be done now. This will describe efforts that can be taken by legal and non-legal persons who want to help public pastures and the environment in Saskatchewan. Finally, this report will discuss what lawyers and law students can do in the future if the government decides to break up or sell public pastures.

Overview

There are two categories of pastures that are of concern in this report: federal pastures in the Community Pasture Program (the “CPP”) and provincial pastures in the Saskatchewan Pastures Program (the “SPP”). The research was focussed on the Government of Saskatchewan’s proposed sale of the SPP lands, but much of what was learned can easily apply to both.

In 1935, the federal government enacted the Prairie Farm Rehabilitation Act (the “PFRA”) in order to deal with catastrophic levels of land erosion and abandonment brought on by drought. The CPP was created under the PFRA to manage and restore the pastures (the “PFRA pastures”).¹ In 2012, Ministry of Agriculture and Agri-Food Canada announced that the CPP would be wound down and the lands would revert to the provinces.² This began a six-year transition period; the last of the PFRA pastures in Saskatchewan reverted to the provincial government on March 31, 2018. The Saskatchewan Government decided to lease these lands to interested parties rather than sell them off.³ Current patrons will have the first opportunity to lease or purchase the pastures, and ecologically sensitive lands may be protected by the WHPA.

The SPP was established in 1922 and, at the time this article was authored, operated 50 pastures.⁴ These pastures supported about five percent of the province’s cattle and twelve percent of Saskatchewan’s cattle producers. The SPP lands disproportionately supported small scale ranchers, and the program allowed many ranchers to use pasture lands that they would not have been able to afford or look after on their own. However, the 2017 provincial budget announced that the SPP program was going to be closed over the next three years. Thanks to a stampede of public pressure, the government decided to lease the lands instead of selling them.⁵

These pastures are of incredible importance to ranchers, conservationists, and Indigenous peoples alike. They are a resource for small-scale ranchers, allowing them to work together and access pastures for their herds. For conservationists, these pastures represent a vast collection of wetlands, unbroken prairie, and wildlife habitats. For Indigenous peoples, public pastures represent territory that can be used to exercise Treaty and Aboriginal rights. It is wonderful that the SPP lands will remain publicly owned, and it remains prudent to prepare a defence for these pastures should the need arise.

Research

A legal opposition to the sale of public pastures in Saskatchewan faces numerous difficulties. The provincial government’s actions are really only bound by legislative conditions, conditions that they are largely able to change. There are also Aboriginal and Treaty rights to consider; these will be discussed later. While public pressure caused the government to refrain from selling off the SPP pastures, the strongest statutory protection lies in the WHPA.⁶

The Wildlife Habitat Protection Act

The WHPA does as its name suggests; it protects wildlife habitat. It is not perfect and indeed could be improved greatly. One such imperfection is that it does not often cover public pasture lands. These pastures, which represent thousands of acres of wetlands and unbroken prairie, would be ideal habitats to protect to ensure the well-being of wildlife in Saskatchewan. There is a lot of territory within public pastures which is not protected by the WHPA. Nevertheless, the overlap that does exist can provide the legal catalyst that is needed to protect these pasture.

Since the primary goal of this research was to keep the pastures publicly owned so that they could be used by ranchers and to preserve ecological integrity, the issue of non-saleability was critical. The Government of Saskatchewan recently evaluated all territory under the WHPA and determined what could or could not be sold. There is “high” value land that cannot be sold, “moderate” value land that can be sold with Crown Conservation Easements (“CCEs”), and “low” value land that may be sold without any easements or conditions. The way in which the WHPA lands are evaluated is by using the CLEAT, or so it would seem.

The Crown Land Ecological Assessment Tool

The CLEAT is a computer model for evaluating lands and has been highly touted in government publications, newspapers, and in Legislative committee meetings. It was developed by scientists, economists, and government agencies in order to evaluate factors including natural cover, unique ecological features, road density, species at risk reports, size of the parcel, proximity to other conservation lands, and activity on adjacent lands (for a more complete list of factors, see Appendix C).⁷ The parcels of land are put into two categories: “non-saleable” (high value) or “review” (moderate or low value). The funny thing is that is it rather difficult to find out how the CLEAT really works, and it is disheartening to find out what the CLEAT is really able to accomplish.

First of all, there is no requirement in the CLEAT process to physically go to the land that is being evaluated. In fact, in 2010 when the CLEAT was getting started, the government had only been to 272 of the 28,695 parcels it had evaluated – less than one percent!⁸ That means that the approximately 525,000 acres of WHPA-designated land classified as having low value may now be sold off without conditions and without much, if any, physical inspection of the land.⁹ Remember that these are lands that were previously considered valuable enough to be placed within the WHPA. To make matters worse, there is little to no transparency when it comes to this process.

Brant Kirychuk, the Executive Director for the Ministry of Environment, stated that the CLEAT “represents an intermediary process and does not result in a finalized value for each parcel. Accordingly, the scores are considered to be for internal use only.”¹⁰ The CLEAT, the method by which all environmental and economic data is gathered in order to determine the value of a parcel of land, is not what determines what lands are protected and what lands are sold. For example, the Dixon and Mankota SPP pastures both have parcels that are subject to a Species at Risk Act Emergency Protection order for the Greater Sage Grouse but are only placed in the “review” category.¹¹ This land, which the federal government has deemed so critical to an endangered species as to justify an infringement upon the division of powers, is not valuable enough to the Government of Saskatchewan to be categorized as high value. This process may sound similar to other such review methods, but it lacks a vital quality: transparency. Take the Committee on the Status of Endangered Wildlife in Canada (the “COSEWIC”) for example. The COSEWIC evaluates the status of species in Canada, provides its reports and recommendations to the federal government, and the government makes the decision regarding if and how species are labelled as “at-risk”. And even though the federal government may not act on the COSEWIC’s advice, the reports are always published. The CLEAT reports or scores, on the other hand, are not released to the public. The most dangerous part of this is that, since the CLEAT is a mystery to the public, there is no way for the public to hold the government accountable for how it evaluates WHPA-designated lands.

The Conservation Easements Act

Since the CLEAT cannot be relied upon to ensure that the government protects WHPA lands, we must work with what has been decided and hold the government accountable as far as we can. The high value non-saleable WHPA lands are fairly straight forward and help keep pastures publicly owned for reasons that will be discussed later. It gets interesting when working with WHPA lands under the “review” category.

These lands are eligible for CCEs, but such easements are not placed on the land until they are likely to be sold:

When a lessee of land in the “review” category expresses interest purchasing a parcel, a secondary review is triggered. This review consists of a visual evaluation of the parcel and its surrounding area using high definition aerial imagery. Factors considered during this review include the percentage of native vegetation present, the presence of rare species and the overall context of the parcel within the landscape. The result of this review will confirm whether a sale will be subject to a Crown Conservation Easement.¹².

Once again, there is no requirement for land to be physically inspected before it is given a low or a moderate value. For the parcels of moderate value, a CCE will be placed on that land. CCEs are a new kind of easement specifically tailored for WHPA lands, are defined by s. 11.21 of the CEA.¹³. The Crown is able to place these easements on any land that it possesses, and they have the purpose of preserving ecologically important factors associated with the land. They exist in perpetuity or until they are terminated by the Crown.¹⁴

The Government of Saskatchewan has not acted on its own when it comes to the creation and enforcement of CCEs, as:

several environmental non-government organizations have been engaged throughout the development of the model and review process, and continue to participate in the development of a monitoring, compliance and enforcement plan for lands protected through Crown Conservation Easements. These organizations include Ducks Unlimited Canada, Nature Saskatchewan, Saskatchewan Wildlife Federation and Nature Conservancy Canada.¹⁵

Ducks Unlimited Canada uses a similar method of divesting property interests when they sell land in Saskatchewan, and they believe that CCEs will protect the affected land indefinitely.¹⁶ There are, however, some concerns about the enforcement and longevity of CCEs.

First, the CEA states that the government may enforce CCE obligations.¹⁷ With the track record of environmental enforcement in Saskatchewan, that clause can be worrisome. Second, the easements may be terminated if the landowner applies to have the easement removed and if the Minister is satisfied that it is in the public interest.¹⁸ “Public interest” is not defined in the legislation. The Ministry of Environment has stated that the interest would have to be significant and that the Ministry “has previously used the example of a new bridge or a major public work as a public interest on the scale necessary to remove a Crown conservation easement.”¹⁹ While this explanation may seem compelling, there is no guarantee that the ecological integrity of the land will be taken into account when determining what is in the public interest. Furthermore, any decision made pursuant to this section is “final and conclusive and no proceedings by or before the minister may be restrained by injunction, prohibition or other proceedings or are removable by certiorari or otherwise by any court.”²⁰

What Can Be Done Now?

Unfortunately, there does not seem to be any legal tool to protect the pastures directly, so the WHPA and the CEA provide indirect ways to prevent the sale and ecological degradation of the pastures. There are many things that can be to help preserve public pastures. These actions are as much policy as they are legal, so they can apply regardless of one’s legal knowledge or training.

1. Campaign for more public pasture lands to be included in the WHPA

Since there is no guarantee that public pasture lands are within the WHPA, it could accomplish quite a lot if more lands were given that legal protection. Appendices E and F, to be included in the third segment, will detail how the SPP and former PFRA pastures, respectively, overlap with WHPA lands. The SPP pastures range from 1%-87% overlap with WHPA lands, and only a few have no overlap at all. The former PFRA pastures range from 2%-12% overlap, and a large majority of the pastures have no overlap at all. The more overlap a pasture has, the more legal protection it garners, and those without any overlap are at risk of being neglected altogether.

The government has indicated that vacant Crown land will be assessed and placed within the WHPA where appropriate.²¹ The Honourable Mr. Cheveldayoff, as the Minister for the Environment in 2014, stated that only land with high ecological value would be added in the WHPA.²² This seems to risk leaving out pastures in two ways. One, only vacant Crown land will be assessed. Two, land may be assessed to only have low or moderate value, such as Greater Sage Grouse habitat, and would never be added to the WHPA. Such land might not even receive a CCE. Nevertheless, this might be a good way to add WHPA protections to pastures.

As stated before, most of the PFRA pastures have no overlap with WHPA lands. These pastures have been in the process of reverting to provincial control for several years, and the last set was transferred in Spring 2018. There is a possibility that some of these pastures may be vacant for a season or two while the government and the ranchers reach lease agreements. All of the PFRA pastures are labelled as protected areas – Category VI – by the International Union for Conservation of Nature (the “IUCN”). This category is for protected areas with sustainable use of natural resources.²³ The IUCN is a respected international environmental organization, and their observations should bear weight as to how public pastures in Saskatchewan should be treated.

There needs to be public pressure to ensure that vacant public lands, especially vacant pastures, are assessed and placed within the WHPA. It might also be effective to campaign for pasture lands to be assessed and incorporated regardless of whether they are vacant or not.

2. Campaign for more species to be evaluated and labelled as “at risk”

Although the CLEAT is not determinative in whether a parcel of land is labelled as high, moderate, or low value, it is influential. The ecological and risk criteria (see Appendix C) are largely not subject to policy considerations. However, species at risk, as identified by the COSEWIC or The Wildlife Act, 1998, are a factor in the CLEAT evaluations.²⁴ Public pastures in Saskatchewan are a haven for wildlife, and the majority of the pastures are home to at risk species.²⁵ It may be a worthwhile cause to campaign for species that reside in public pastures in Saskatchewan to be labelled as “at risk”, as this could have the effect of increasing the land under the WHPA and increasing the probability that protected lands will be designated as high value.

3. Ensure the government is maintaining the quality of public pastures

There are going to be a lot of new leases created with former SPP pastures in the next few years. Former PFRA pastures are in the process of being leased or sold as well. This process will need to be scrutinized to ensure that the lands are used fairly and with adequate environmental considerations. We need to ensure that previous patrons have the ability to lease the pastures and maintain their herds. We also need to ensure that there are competent regulations and oversight so that disasters, like the loss of 200 cattle near Shamrock, Saskatchewan in early July 2017, do not happen on public pastures.²⁶

4. Hold the government to its own standards with Crown Conservation Easements

One way that to maintain the quality of public pastures and WHPA lands will be to ensure that CCEs are being properly created and followed when reviewable WHPA lands are being sold. While the majority of reviewable land sold will have a CCE, we must watch and make sure that the value designation is not arbitrary. Even if a decision to label a parcel as low value cannot be challenged legally, it could have the potential to be a political issue. Right now in Saskatchewan, the way in which government land is handled and sold can be very political.

Once a parcel of land has been labelled as moderate value and given a CCE, there should be vigilance in ensuring that the obligations of the easements are followed. The public can be involved in this by directly communicating with the Ministry of Environment or by being involved in an environmental non-governmental organization that is able to participate in the enforcement of CCEs. For those who want to find out what CCEs exist and where they are, s. 11.4 of the CEA requires that such easements be registered with the Land Titles Registry and that written notice be given to municipalities where land affected by the easements are located.²⁷

5. Campaign for more open and easily accessible information

One of the greatest obstacles to creating a strong defence of public pastures is availability of information. The opaqueness of the CLEAT and the government’s decisions in ranking WHPA lands is a serious problem, and it can be hard to tell the difference between good science and arbitrariness. It would make it a lot easier to research these issues, and it would create more public confidence, if these processes were more transparent to the public.

Beyond what information is made available, there is an issue with how the government’s data is currently made available. Information regarding the overlap of WHPA lands and public pastures seem only to be available on cumbersome mapping software. Campaigning for easily accessible information in this area could make it easier to respond to future threats to public pastures faster and more effectively.

6. Make sure that the government does not break up public pastures

This last recommendation is certainly the most important one because there could be dire consequences if pastures are broken up, and it is apparent that the government will listen to public pressure on this issue. First, it appears as though the Government of Saskatchewan has, or had, a desire to sub-divide public pastures. This was one of the questions in the recent survey regarding the future of SPP lands:

Some of the parcels of land are significant in size. Do you agree with the land being sub-divided into smaller parcels where feasible to make it more practical to manage, lease or sell?²⁸

Despite the positive language suggesting sub-division would be beneficial, 60.7% of the respondents said “No” while less than 30% agreed with the government’s proposition.²⁹

The danger surrounding breaking up the pastures is that this would certainly result in many of the new parcels being without any protection from the WHPA. Most of the pastures that have overlap with WHPA lands only have a small fraction of their land in this category. If these pastures were sub-divided, there could easily be small fragments that mostly overlap with WHPA lands and large parcels with no overlap. If the government decides to sell the pastures sometime down the road, those large parcels would be sold with no conditions and thousands of acres of native prairie and wetlands could be lost. To support the sub-division of public pastures would be to support ecological gerrymandering of much of southern Saskatchewan’s remaining natural habitat.

What might be done in the future?

In addition to six recommendations regarding what people can do now in defence of public pastures, there are also four areas of research that lawyers and law students might be interested in pursuing if the public ownership of these pastures becomes an issue in the future.

1. Find the evaluations of lands when they were originally put into the WHPA

This research may provide some insight into the quality of certain parcels of land, but it is a long shot. First, in order to determine when each individual piece of land was put into the WHPA, one would have to review decades of Orders in Council documents.³⁰ These documents are likely to only outline the lands protected and not the evaluations done to place them in the WHPA. I currently do not know where to find the evaluations of individual parcels, but the older parcels were selected using the Terrestrial Wildlife Habitat Inventory (the “TWHI”).³¹ The TWHI was conducted in the late 70s and early 80s, and the lands that were determined to be “Very Important” wildlife habitat formed the basis of WHPA lands.³² Something to note is that it was considered to be a minimum requirement for 50 percent of the land to be covered by native vegetation in order to be “Very Important”.³³ It might be worth looking into why parcels that were considered to be so important in the 1980s, with native prairie comprising over half of the land, are now labelled as having low or moderate ecological value and are potentially being sold off.

In 1984, the Government of Saskatchewan recognized the need to keep such lands public; a finding that is even more true today. We all know that if public pastures and WHPA lands are sold, the “land would inevitably be subject to the development pressures imposed by current agricultural economics.”³⁴

2. Ask for the detailed analyses of two similar pieces of land within one pasture

The purpose of asking for detailed records of the evaluative process, the CLEAT and the government’s decision, of two analogous plots of WHPA protected land in a pasture is to see if the decision making is arbitrary. These two quarter-sections would have to be designated as non-saleable and reviewable, and efforts should be taken to ensure that the characteristics of the parcels are very similar (size, water coverage, proximity to water, production state, etc.).

I would recommend looking at a SPP pasture that is set to have its last season in 2019, such as Arena, Grainland, Dixon, or Calder-Togo. This way, if there is the hint of arbitrariness, it will provide the researcher the most time to create a response or at least raise public awareness of the issue. The Ministry of Environment has been fairly adamant that the CLEAT and the rest of the review process are for internal use only, so it is very likely that a Freedom of Information application will have to be made.

This avenue, if successful, may not provide the grounds for a legal challenge, but could be an effective political argument that may pressure the government into acting in a more environmentally responsible manner.

3. Research into possible applications of the Public Trust Doctrine

The Public Trust Doctrine is a legal concept that holds that “there are certain public rights that are so important that the Crown holds them in trust for the public at large.”³⁵ In an environmental context, this argument is that there are certain natural resources that belong to all residents of a jurisdiction and cannot be privately owned or controlled because of the resources’ inherent importance to each individual and society as a whole.³⁶ Public pastures are natural resources that are incredibly valuable to ranchers, conservationists, and Indigenous peoples for reasons that have been previously discussed.

The big problem is that the Public Trust Doctrine has not yet been recognized as authoritative when it comes to environmental issues in Canada. There is a lot of pressure from the public and environmental groups to have the courts or elected governments incorporate this doctrine. There is a very real possibility that the Public Trust Doctrine could be recognized in Canada within the next few decades. One reason to argue for this is that the doctrine is a way in which the public pastures may be directly defended by legal means.

4. Work closely with Indigenous groups to ensure that their rights are protected

The only constitutional protection of the environment in Canada resides in section 35. The duty on the Crown to consult and accommodate could be a powerful tool in keeping public pastures publicly owned. Canadian jurisprudence has established that the Crown must act in such a way as to not make Treaty rights illusory.

Public pastures represent a large amount of land that can be used by Indigenous peoples to exercise their Treaty and Aboriginal rights. If these lands are sold, they will inevitably be developed and no longer be open to Indigenous peoples to exercise their rights. The loss of these pastures is a loss of the ability to access the lands to hunt, collect medicines, and carry out other culturally important activities.³⁷

The British Columbia Court of Appeal held that any geographic reduction on a Treaty right must be justified under the Sparrow test.³⁸ Also, the Government of Saskatchewan may not necessarily rely on the possibility of public land elsewhere to satisfy the Treaty requirements. In Mikisew Cree First Nation, the Supreme Court of Canada held that the Crown cannot effectively take up all lands within a First Nation’s traditional territory and expect them to go to another First Nation’s traditional territory to engage in their treaty rights.³⁹ These rights are not ascertained on a treaty-wide basis, but instead in relation to the traditional territory of the First Nation.⁴⁰ With grasslands and wetlands being lost at up to thirteen percent a year, the loss of Saskatchewan’s public pastures could reduce or eliminate the ability of some First Nations to exercise their Treaty and Aboriginal rights altogether.⁴¹

In addition, Indigenous peoples have an interest in keeping the pastures publicly owned because the sale and subsequent development of these pastures could lead to archeological sites and cultural history, such as burial sites, teepee rings, and buffalo jumps, being lost.⁴² Once these sites are lost, it will be impossible to truly restore them.

A few PFRA pastures have select parcels that have a “duty to consult prior to sale” provision. While usually only comprising of a few quarter-sections, these provisions have the potential to determine the outcome of entire pastures, assuming the pastures are not sub-divided.

Whatever action is taken in the future, an honourable relationship with Indigenous peoples should be a priority. This should involve discussions regarding how to move forward, ensuring that the Crown is meeting its duty to consult and accommodate, incorporating the principles in the United Nations Declaration on the Rights of Indigenous Peoples, and more.⁴³ Also, if any pastures are to be sold, efforts should be taken to ensure that the government is acting in accordance with the Saskatchewan Treaty Land Entitlement Framework Agreement.⁴⁴

Conclusion

The research completed here has elucidated one finding above all: the most effective results for public pastures will come when legal researchers, political activists, and concerned citizens work together. Each faction can help refine the work and expand the effects of the others. For myself, political activists and concerned citizens made me aware of the situation and directed my attention to issues that needed to be investigated. It is my hope that my research has revealed the ways in which the pastures are most vulnerable, and thus need more protection, as well as methods to which the government can be held to account.