The Supreme Court of Canada recently released its decision on a dispute between the Saskatchewan Minister of the Environment (“Saskatchewan”) and the Metis Nation – Saskatchewan (“MNS”) about whether a series of related proceedings brought by MNS amounted to an abuse of process. As part of its analysis, the Supreme Court clarified the law on abuse of process and its application in Aboriginal litigation.Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4 (CanLII) [“MNS”].
The proceedings at issue, in brief, were as follows:
- In 1994, MNS brought a claim in the then Saskatchewan of Queen’s Bench seeking declarations of existing Aboriginal title and rights, including harvesting rights on a commercial scale, over a large area of Saskatchewan. In 2005, the court ordered a stay of the 1994 proceedings.
- In 2020, MNS brought an action challenging the legality of Saskatchewan’s consultation policy, issued in 2010, which explicitly excluded consultation on assertions of Aboriginal title or commercial use of resources. That action is extant at what is now the Court of King’s Bench.
- In 2021, MNS brought an application for judicial review of Saskatchewan’s decision to issue permits for uranium exploration work to NexGen Energy Ltd. on a property in northwestern Saskatchewan – within the area subject to MNS’s 1994 action – on the grounds that Saskatchewan failed adequately to consult MNS with respect to the permit, including by failing to consult with MNA concerning its asserted Aboriginal title and commercial harvesting rights.
Saskatchewan then moved to strike certain paragraphs of MNS’s 2021 judicial review application as an abuse of process, saying that MNS was making essentially the same claim in the 1994, the 2020 and the 2021 proceedings. [FN1]
The point for decision by the Supreme Court was a simple one: was the MNS judicial review proceeding an abuse of process given the MNS’s claims in the 1994 and 2000 claims?
Multiplicity of proceedings can be an indicium of abuse of process. However, Justice Rowe, writing for the Court, clarified that this in itself was neither necessary nor sufficient for a finding of abuse of process:
[40] Thus, the abuse of process analysis does not end when multiple or similar proceedings exist. Rather, the analysis needs to focus on whether allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, as discussed above. Where, for example, having duplicative proceedings would waste the resources of the parties, courts and witnesses, or risk inconsistent results and therefore undermine the credibility of the judicial process, this can amount to an abuse of process.
The Court found that MNS’s 2021 judicial review application was not an abuse of process. Justice Rowe acknowledged that there was overlap between the 2020 action and the 2021 judicial review, and that the 2021 proceeding was a specific instance of the broader issue raised in the 2020 action. However, he went on to say:
[59] Does this amount to an abuse of process? I would say no. As I explained earlier, an abuse of process requires more than some overlap of issue; it must threaten the integrity of the adjudicative process or another fundamental principle, such as consistency, finality, or judicial economy (Toronto (City), at para. 37). At present, the overlap between the 2020 Action and the 2021 Originating Application does not give rise to these concerns. The 2021 Originating Application is a proper mechanism for MNS to challenge Saskatchewan’s issuance of the NexGen permits and for MNS to pursue an interim remedy for the potential breach of its claimed Aboriginal title and commercial harvesting rights. It would be a misuse of the doctrine of abuse of process, in effect, to immunize from judicial review actions taken by Saskatchewan that might impact MNS’s claimed Aboriginal title and commercial harvesting rights. […] (Emphasis added)
While a court may find abuse of process in any proceeding that threatens the integrity of the administration of justice, the context of Aboriginal litigation is relevant for how a court will carry out its analysis. Justice Rowe wrote:
[62] Having concluded that there is no abuse of process relating to the proceedings at issue in this case, I would add that abuse of process is possible in proceedings involving Indigenous litigants, as it is for others. That said, 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 — i.e., what order would be appropriate. Court procedures should facilitate, not impede, the just resolution of Aboriginal claims. As this Court stated in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, “[t]he fundamental objective of the modern law of [A]boriginal and treaty rights is the reconciliation of [A]boriginal peoples and non-[A]boriginal peoples and their respective claims, interests and ambitions” (para. 1). (Emphasis added)
This is useful. The Crown often relies on procedural or non-substantive arguments to stop or at least pump the brakes on litigation of substantive issues in Indigenous rights and title claims. Examples abound. There are motions concerning parties, pleadings, discovery, evidence, experts, constitutional questions, limitation periods, lâches, res judicata – the list goes on. To focus the application of procedural rules on the objective of justly resolving Aboriginal claims is valuable.
The Court’s ruling in MNS may be particularly relevant in British Columbia, where many First Nations filed “protective writs” in the early 2000s to preserve rights, title and damages claims in the face of possible limitation periods. Few of these claims have proceeded to trial, largely because of the enormous time, expense and complexity of litigating Aboriginal rights and title claims.
It would be ironic if MNS were obligated to proceed by action proving its Aboriginal title and rights claim in a matter targeting the Crown’s duty to consult and accommodate. The genesis of the Haida duty lay in the court’s acknowledgement that it is unfair to allow the Crown to continue issuing permits to third parties “while land and resources claims are ongoing.” In this case, Saskatchewan clearly knew that the NexGen permits would be situated on lands subject to asserted Indigenous title and rights, and yet it refused to consult with respect of the full gamut of those rights.
The Supreme Court in no way gives Indigenous claimants a free pass on procedural rules, and there remains a good deal of fluidity in how a court will apply the abuse of process test in future Indigenous litigation matters. It is nonetheless useful to have a clear statement from the Supreme Court recognizing the unique hurdles involved in the litigation of Indigenous claims and the overarching importance of reconciliation in procedural as well as substantive matters.
Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4 (CanLII)
By Stephanie Lysyk