On February 28, 2025, the Supreme Court of Canada ("SCC") rendered its judgment in Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4. This decision is broadly applicable as it provides guidance on the doctrine of abuse of process generally. In the Aboriginal law context, the decision provides helpful commentary on the difference between court proceedings which seek to validate claims for Aboriginal rights or title and those which allege the Crown's failure to meet their duty to consult, while reaffirming the importance of the duty to consult while a proven claim to Aboriginal rights or title is outstanding.
Background
Métis Nation – Saskatchewan ("MN-S") has been engaged in a series of legal proceedings with the province of Saskatchewan ("Saskatchewan") for over 20 years. The proceedings began in 1994, when MN-S commenced an action in the Court of Queen's Bench, as it then was, against Saskatchewan and the Government of Canada, seeking declarations of Aboriginal title and rights to land in northern Saskatchewan (the "1994 Action"). In 2005, the 1994 Action was stayed due to MN-S's failure to disclose documents relating to its claim for Aboriginal title and rights.
Later, in 2010, Saskatchewan adopted the First Nation and Métis Consultation Policy Framework (the "2010 Policy"), which states that Saskatchewan does not recognize Aboriginal title or commercial harvesting rights and would not consult with First Nations or Métis regarding these matters.
In 2020, MN-S commenced an action against Saskatchewan challenging the validity of the 2010 Policy (the "2020 Action"). MN-S sought several declarations through the 2020 Action, including that Saskatchewan's duty to consult includes Métis claims to Aboriginal title and commercial harvesting rights. An application for summary determination of this issue was argued before the Saskatchewan Court of King's Bench in October 2023, and a decision is pending.
In July of 2021, Saskatchewan issued three uranium exploration permits to NexGen Energy Ltd. ("NexGen") to conduct mineral exploration on lands over which MN-S asserts Aboriginal title and rights. Months later, MN-S brought an originating application seeking judicial review of Saskatchewan's decision to issue the exploration permits to NexGen (the "2021 Application").
In the 2021 Application, MN-S again challenged Saskatchewan's refusal to consult regarding Aboriginal title and commercial harvesting rights. It also challenged aspects of Saskatchewan's conduct during the consultation process. MN-S sought several declarations, including that Saskatchewan breached its duty to consult by failing or refusing to engage in good faith consultations.
Saskatchewan then brought an application to strike certain paragraphs in the 2021 Application that referred to claims regarding Aboriginal title and commercial harvesting rights. It argued that those specific paragraphs constituted an abuse of process considering, the 1994 Action and the 2020 Action. It is this application to strike that is being considered by the SCC in this case.
Judgments Below
The Court of Queen's Bench held that the 2021 Application raised the same issues as in the 1994 Action and the 2020 Action and, as such, it would be an abuse of process to allow MN-S to proceed with the 2021 Application. It granted the order to strike the relevant paragraphs from the 2021 Application.
On appeal, the Court of Appeal of Saskatchewan reinstated the paragraphs in question. The Court of Appeal stated that while the 1994 Action, the 2020 Action, and the 2021 Application "[s]uperficially" related to the same issue of the Métis claim of Aboriginal title and commercial harvesting rights, this did not mean the proceedings were identical. The Court of Appeal stated that the issues and remedies claimed in the 1994 Action, the 2020 Action, and the 2021 Application were different, and that a continuation of proceedings pursuant to the 2021 Application was not an abuse of process. Specifically, the Court of Appeal noted that the issue of whether the duty to consult existed and, if so, the scope of that duty in relation to the issuance of the exploration permits necessitated a different approach and legal test than the question of whether the underlying right to Aboriginal title exists.
Saskatchewan then appealed the Court of Appeal's decision to the SCC.
Abuse of Process
The only issue that was before the SCC was whether it was an abuse of process for MN-S to pursue the 2021 Application given the existence of the 1994 Action and the 2020 Action. The SCC did not consider or make any comment regarding the merits of any of the MN-S's substantive legal arguments regarding the validity of Saskatchewan's duty to consult policy or the existence of a valid Métis claim to Aboriginal title.
Abuse of process is a broad concept that applies in various contexts. The SCC emphasized that the doctrine of abuse of process is concerned with the administration of justice and fairness, and engages the inherent power of the court to prevent misuse of its proceedings in a way that would be unfair to a party or would bring the administration of justice into disrepute.
The SCC reviewed the doctrine of abuse of process in the context of a multiplicity of proceedings, which was the primary ground upon which Saskatchewan sought to have the paragraphs under consideration struck from the 2021 Application. It noted that a multiplicity of proceedings that engage the same issues can amount to an abuse of process.
However, the SCC described that the fact that there are two or more ongoing legal proceedings that involve the same or similar, parties or legal issues, is not, in itself, sufficient for an abuse of process.
The SCC acknowledged that there may be instances where parties have a valid reason for bringing separate, though related, proceedings. In those instances, a multiplicity of proceedings may enhance the administration of justice. The SCC specified that the abuse of process analysis needs to focus on whether allowing the litigation to proceed would violate the principles of judicial economy, consistency, finality, or the integrity of the administration of justice.
Misuse of the Doctrine of Abuse of Process
In determining whether MN-S's assertion of breach of the duty to consult in the 2021 Application amounts to an abuse of process, the SCC first laid out what each of the MN-S's proceedings was seeking:
- The 1994 Action was for a declaration of Aboriginal title and commercial harvesting rights over land in northwestern Saskatchewan;
- The 2020 Action is to delineate the scope of Saskatchewan's duty to consult in a general sense; and
- The 2021 Application is an application for judicial review of Saskatchewan's decision to grant exploration permits in territory that MN-S is seeking Aboriginal title and commercial harvesting rights over.
Saskatchewan argued before the SCC that it would be an abuse of process to allow MN-S to assert a breach of the duty to consult in the 2021 Application when they do not have an underlying claim to Aboriginal title or rights given the 1994 Action was stayed.
While the SCC noted that it would be necessary to determine whether Saskatchewan is obligated to consult the Métis regarding the impact of the exploration permits on their asserted rights to Aboriginal title and commercial harvesting rights to resolve the 2021 Application, it found that the status of the 1994 Action is not dispositive of this question.
The SCC provided an overview of some of the basic principles of the duty to consult. Specifically, the SCC noted that the duty to consult operates pending a final determination of rights and title claims. It is inconsistent with that principle to argue that the duty does not arise until after the rights and title claims are resolved.
Further, the SCC reminded that the duty arises "when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it". The Court noted that the 1994 Action is not MN-S's asserted claim – it is the legal vehicle used to vindicate the Métis' claim.
The SCC also considered whether the 2021 Application amounts to an abuse of process because of a duplication of issues with the 2020 Action. In considering this issue, the SCC recognized an overlap between the 2020 Action and the 2021 Application, as the 2021 Application concerns a specific instance of the general duty to consult question raised in the 2020 Action.
In the SCC's view, the overlap between the 2020 Action and the 2021 Application did not give rise to concerns respecting the integrity of the adjudicative process or another fundamental principle. The SCC specified that the 2021 Application is a proper mechanism for MN-S to challenge Saskatchewan's issuance of the NexGen permits and to pursue an interim remedy for the potential breach of its claimed Aboriginal title and commercial harvesting rights.
Ultimately, the SCC indicated that it would be a misuse of the doctrine of abuse of process to immunize from judicial review actions taken by Saskatchewan that might impact MN-S's claimed Aboriginal title and commercial harvesting rights. It found no abuse of process relating to the proceedings at issue.
Takeaways
The decision in Saskatchewan (Environment) v Métis Nation – Saskatchewan is mainly concerned with the doctrine of abuse of process, and is therefore relevant to all claims and not only claims in relation to Aboriginal rights and title or the duty to consult. While the SCC did note that a defence of abuse of process is possible in proceedings involving Indigenous litigants, it was also careful to point out that "the unique context of litigation to vindicate Aboriginal rights must always be borne in mind...Court procedures should facilitate, not impede, the just resolution of Aboriginal claims."
This decision is also a reminder that an Indigenous group may bring an application for judicial review challenging a Crown decision which might adversely affect an Aboriginal right or title, even where a court action for the determination of whether the right or title exists is pending.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
