Authors
Partner, Disputes, Calgary
Associate, Disputes, Toronto
Overview
On February 28, 2025, in Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, the Supreme Court of Canada (SCC) addressed the issue of abuse of process in the context of multiple legal proceedings involving Aboriginal claims. The case revolved around the Métis Nation – Saskatchewan’s (MNS) application for judicial review of uranium exploration permits issued by the Government of Saskatchewan (the Province), alleging breach of duty to consult by the Province. The Supreme Court upheld the Court of Appeal’s decision, allowing the MNS’s application to proceed.
The ruling is significant as it clarifies the application of the abuse of process doctrine in cases involving Indigenous litigants and the duty to consult. The decision clarifies that multiple proceedings related to Aboriginal claims do not necessarily constitute an abuse of process.
Background
For more than 20 years, the MNS has been engaged in a series of legal proceedings:
- In 1994, the MNS commenced an action seeking declarations of Aboriginal title and commercial harvesting rights over land in northwestern Saskatchewan (1994 Action); but, in 2005, this action was stayed due to the MNS’s failure to disclose documents.
- In 2020, the MNS commenced another action, seeking various declarations related to a consultation policy adopted by the Province, including a declaration that the Province has a duty to consult the MNS regarding its asserted title and commercial harvesting rights (2020 Action). This policy stated that the provincial government does not recognize Aboriginal title or commercial harvesting rights and, therefore, would not consult on these matters. A decision on a summary determination application under that action is currently pending.
- In 2021, the Province issued three uranium exploration permits to a company within the territory over which the MNS claims Aboriginal title and rights. The MNS applied for judicial review of the decision to issue the permits, alleging that the Province breached its duty to consult regarding Aboriginal title and commercial harvesting rights (2021 Application). The Province responded by seeking to strike portions of the 2021 Application, arguing that it constituted an abuse of process in light of the previous actions.
- In 2022, the chambers judge agreed with the Province, ruling that the application was an abuse of process because it raises the same issues as the 1994 Action and 2020 Action. The chambers judge struck the relevant paragraphs.
In 2023, the Court of Appeal reinstated the paragraphs, finding that the chambers judge erred in concluding that all three legal proceedings involved the same issue, and the 2021 Application was not an abuse of process.
The unanimous decision
In its unanimous decision, delivered by Rowe J., the SCC dismissed the Province’s appeal, affirming the Court of Appeal’s decision finding there was no abuse of process relating to the 2021 Application. The SCC emphasized that, while the potential for abuse of process exists in cases involving Indigenous litigants and overlapping legal proceedings, it is crucial to consider the unique context of Aboriginal rights litigation.
The doctrine of abuse of process concerns the administration of justice and fairness. It involves the court’s inherent power to prevent the misuse of its proceedings in a manner that would be unfair to a party or would bring the administration of justice into disrepute. This doctrine is broad and flexible, and is not constrained by specific requirements. A multiplicity of proceedings involving the same issues can constitute an abuse of process, but the mere existence of multiple ongoing legal proceedings involving the same or similar parties or issues, does not automatically constitute an abuse of process.
In this case, the SCC concluded that allowing the MNS to assert a breach of the duty to consult in the 2021 Application is not an abuse of process, even though the 1994 Action has been stayed. To resolve the 2021 Application, the court must determine whether the Province is obliged to consult the MNS regarding the impact of exploration permits on its asserted Aboriginal title and commercial harvesting rights. To answer this question, the court will need to determine whether the Crown has actual or constructive knowledge of the potential existence of Aboriginal right or title, and is contemplating conduct that might adversely affect it. The status of the 1994 Action does not determine whether the Province was properly notified of the MNS’s asserted claim, as the 1994 Action is merely the legal vehicle chosen by the MNS to vindicate its claim of rights and title. While inordinate delay can amount to an abuse of process in certain circumstances, the doctrine must focus on the integrity of the court’s adjudicative functions.
The SCC found overlap between the 2020 Action and the 2021 Application, as the latter is a specific instance of the general duty to consult raised in the former. However, the SCC found that this overlap does not raise concerns about the integrity of the adjudicative process or other fundamental principles, such as consistency, finality, or judicial economy. The SCC reasoned that the 2021 Application is a proper mechanism for the MNS to challenge the permits and seek an interim remedy for the potential breach of its claimed Aboriginal title and commercial harvesting rights. Therefore, the abuse of doctrine did not bar the 2021 Application. The court found that, while there is potential for inconsistent outcomes if the 2020 Action and the 2021 Application proceed in parallel, and yield different answers to the question of whether the Province has a duty to consult on Aboriginal title and commercial harvesting rights, that potential inconsistency might be better addressed through case management rather than striking pleadings. An example of this would be adjournment of the 2021 Application.
Takeaways
The decision confirms that Indigenous communities may seek judicial review of particular Crown decisions on the basis of the duty to consult while simultaneously litigating the existence of the asserted rights or title foundational to the Crown’s consultation obligations.
Further, the decision clarifies that multiple legal proceedings related to the same Aboriginal claims do not automatically infringe the doctrine of abuse of process.
However, the court acknowledges that inconsistency in decision-making remains a concern and that judicial processes, such as case management, should be used to further the principles of judicial economy, finality and the administration of justice in the case of potentially overlapping claims with risks of inconsistent judicial decision-making.
