Introduction
On February 28, 2025, the Supreme Court of Canada (SCC) dismissed an appeal by the Government of Saskatchewan in Saskatchewan (Environment) v. Métis Nation – Saskatchewan,[1] which sought to strike certain paragraphs of an application for judicial review by the Métis Nation – Saskatchewan (MNS) on grounds of abuse of process. The underlying application concerned Saskatchewan’s duty to consult and MNS’ claims of Aboriginal title and commercial harvesting rights. While the SCC did not address the merits of the application, it provided guidance as to how a court should approach motions and applications to strike pleadings involving the Crown’s duty to consult and claims of Aboriginal title and rights. Courts must bear in mind the unique context of litigation to vindicate Aboriginal rights and the objective of reconciliation.
Background
In 1994, MNS commenced an action against Saskatchewan seeking declarations of Aboriginal title and rights to land in Northern Saskatchewan (the 1994 Action). The 1994 Action was stayed in 2005 after MNS failed to comply with a court order requiring disclosure of documents related to the claim for Aboriginal title and rights.
In 2010, Saskatchewan adopted the First Nation and Métis Consultation Policy Framework, which provided that the provincial government did not recognize Aboriginal title or commercial harvesting rights and that it would not consult with First Nations or Métis on these matters. MNS subsequently commenced an action in 2020, seeking declarations that the policy was: invalid, reliance on the policy framework breached the honour of the Crown and Saskatchewan’s duty to consult included Métis claims to Aboriginal title and commercial harvesting rights (the 2020 Action).
In 2021, Saskatchewan issued three uranium exploration permits in the territory over which MNS asserted Aboriginal title. Although Saskatchewan consulted with MNS as to other Aboriginal rights, it refused to consult with respect to Aboriginal title and commercial harvesting rights. MNS brought an application for judicial review of Saskatchewan’s issuance of the permits and challenged Saskatchewan’s refusal to consult on these rights (the 2021 Originating Application).
In response, Saskatchewan moved to strike paragraphs in the 2021 Originating Application that referred to claims of Aboriginal title and commercial harvesting rights, arguing that the paragraphs constituted an abuse of process in light of the 1994 Action and 2020 Action.
Lower Court decisions
The Court of Queen’s Bench of Saskatchewan held that it was an abuse of process to allow MNS to proceed with the 2021 Originating Application with the challenged paragraphs, as they raised the same issues as in the 1994 Action and 2020 Action. The court granted Saskatchewan’s application and struck the paragraphs from the 2021 Originating Application.
The Court of Appeal of Saskatchewan unanimously allowed MNS’ appeal, concluding that while the 1994 Action, 2020 Action and 2021 Originating Application were related, they were not identical. The 2021 Originating Application primarily concerned the Crown’s duty to consult, rather than the existence of Aboriginal title or rights, which was at issue in the previous actions. Since the remedies sought in each proceeding were different, there was no risk of inconsistent outcomes.
Supreme Court of Canada decision
The SCC unanimously dismissed Saskatchewan’s appeal and concluded that it was not an abuse of process for MNS to bring the 2021 Originating Application.
Justice Rowe, writing for the court, explained that the doctrine of abuse of process is concerned with fairness and the administration of justice. It engages the court’s inherent power to prevent misuse of its proceedings in a way that would be manifestly unfair to a party or would bring the administration of justice into disrepute. Abuse of process is a broad concept that applies in various contexts, including re-litigation, inordinate delay that causes serious prejudice and (as in this case) multiplicity of proceedings.
The fact that multiple legal proceedings involve similar or identical issues does not, by itself, constitute an abuse of process. There may be valid reasons for pursuing separate but related proceedings that enhance the administration of justice. The focus of the analysis is whether “allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.”[2] Abuse of process can be found where duplicative proceedings waste resources, risk inconsistent outcomes or undermine the credibility of the judicial process.
To resolve the appeal, the SCC characterized the substance of each underlying action. The 1994 Action sought declarations of Aboriginal title and commercial harvesting rights over MNS territory. The 2020 Action sought to delineate the scope of Saskatchewan’s duty to consult and specifically sought declarations that Saskatchewan had a duty to consult the Métis regarding their asserted title and commercial harvesting rights. The 2021 Originating Application sought judicial review of Saskatchewan’s issuance of exploration permits and a declaration that Saskatchewan had a duty to consult regarding the impact of the permits on the Métis claims of Aboriginal title and commercial harvesting rights.
The SCC rejected Saskatchewan’s argument that it would be an abuse of process to allow MNS to assert a breach of the duty to consult in the 2021 Originating Application, given that the 1994 Action had been stayed. The status of the 1994 Action did not determine whether Saskatchewan was obliged to consult the Métis regarding the exploration permits. The duty to consult operates pending a final determination of claims and any argument that the duty to consult does not arise until after rights and title claims are resolved are inconsistent with the SCC’s jurisprudence. Further, the duty protects Aboriginal and treaty rights while land and resource claims are ongoing and furthers the goals of reconciliation. The 1994 Action was not MNS’ asserted claim but rather it was the legal vehicle which MNS selected to vindicate its claim. However, the substantive merits were not at issue before the SCC—those were properly the subject matter of the 2020 Action and the 2021 Originating Application. Since the integrity of the adjudicative function of the courts was not called into question, there was no abuse of process.
The SCC also rejected Saskatchewan’s argument that the 2020 Action and 2021 Originating Application addressed the same issue: whether Saskatchewan had a duty to consult with respect to Aboriginal title and commercial harvesting rights. While there was overlap, the 2020 Action dealt with the duty to consult in general, while the 2021 Originating Application addressed specific instances of the duty to consult in relation to the exploration permits. The SCC concluded that this did not constitute an abuse of process as it did not raise concerns regarding the integrity of the adjudicative process or the principles of consistency, finality or judicial economy. The 2021 Originating Application was a proper mechanism for MNS to challenge the permits and to seek interim remedies for the potential breach of its claimed Aboriginal title and commercial harvesting rights. While there was a potential for inconsistent outcomes between the 2020 Action and 2021 Originating Application, this could be addressed through case management, such as adjourning the 2021 Originating Application pending the outcome of the 2020 Action.
The SCC emphasized that striking pleadings for an abuse of process is a drastic remedy only warranted in the “clearest of cases” when the abuse falls at the high end of the spectrum.[3] The SCC took the opportunity to comment on abuse of process proceedings against Indigenous litigants. While an abuse of process could be possible in such cases, the “unique context of litigation to vindicate Aboriginal rights must always be borne in mind, both as to whether an abuse of process exists and if so, what follows from that.”[4] Court procedures should facilitate, not impede, the just resolution of Aboriginal claims. The SCC reaffirmed that “the fundamental objective of the modern law of Aboriginal and treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions.”[5]
Conclusion
The SCC’s decision in Saskatchewan (Environment) v. Métis Nations (Saskatchewan) reinforces that an abuse of process may arise where there are concerns regarding the principles of consistency, finality and judicial economy or the integrity of the administration of justice. The decision offers insight into how courts might address such cases in the future. The judgment affirms that Indigenous litigants can pursue interim remedies with respect to the duty to consult while claims for Aboriginal title and rights are ongoing. Finally, courts are instructed to consider the unique circumstances of litigation involving Aboriginal rights, and the broader goal of reconciliation must always be considered in abuse of process proceedings. The decision also provides useful guidance from the SCC on the first principles governing abuse of process and reinforces the principle of reconciliation in resolving issues related to Aboriginal and treaty rights.
For more information on this topic or any questions related to the legal implications of this decision on your business, please contact the authors, Brandon Barnes Trickett or Tom Nichini. Thank you to our articling student Janson Fu for his contribution to this blog.
[2] Ibid at para 40.
[3] Ibid at para 60.
[4] Ibid at para 62.
[5] Ibid.
