Supreme Court finds Saskatchewan Métis challenge not an abuse of process

In a unanimous decision, the Supreme Court of Canada has ruled that the Métis Nation—Saskatchewan’s [MN-S] 2021 challenge of uranium exploration permits issued for lands they claim title to without consultation did not amount to an abuse of process as the province claimed.

MN-S had engaged in a previous court challenge around the assertion of Aboriginal rights and title to land in northern Saskatchewan in 1994, but that action was stayed in 2005 after they declined to turn over certain documents to the court, and while they engaged in other processes with the federal government. In 2020, MN-S launched a separate suit in protest of Saskatchewan’s 2010 policy framework that stated that it did not accept any First Nations or Métis assertion of Aboriginal title in the province.

When the 2021 action was commenced over the exploration permits, Saskatchewan argued that MN-S was engaged in an abuse of process. The Saskatchewan Court of King’s Bench agreed and struck several paragraphs from their claim. The Saskatchewan Court of Appeal overturned that decision, which the Supreme Court of Canada has affirmed.

“The fact that there are two or more ongoing legal proceedings which involve the same, or similar, parties or legal issues, is in itself not sufficient for an abuse of process,” Justice Malcolm Rowe wrote for the Court.

“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.”

He added: “At all stages, both sides must be governed by the duty of mutual good faith,” and that when confronted by the overlap in cases, the 2021 originating application is a specific instance of the general question at issue in the 2020 action.

Further, this is not a case where the “drastic remedy” of abuse of process was necessary, but use case management to avoid potential inconsistency of decisions needs to be contemplated.

The decision allows the 2021 application for judicial review of those exploration permits to proceed at the Court of King’s Bench.

Bruce McIvor, partner at First Peoples Law in Vancouver, who was not involved in the case, says this is an important win for Indigenous people.

“It’s unfortunate that it had to come to this,” he says.

“This is the type of argument that should never have had to proceed to court. It’s an example of how Indigenous people are playing poker with someone with unlimited resources.”

McIvor says Saskatchewan is the “worst offender” for raising technical arguments to thwart reconciliation.

“The Court, in its own way, made it clear to Saskatchewan and other governments that the way forward is to act in good faith, not to raise technical arguments like this that are intended to sidestep the Crown’s obligations.”

Jason Madden, partner at Aird & Berlis LLP in Toronto, who represented the Métis Nation of Alberta Association and Métis Nation Ontario Secretariat as intervenors, says the decision offers helpful guidance for governments and Indigenous groups looking to advance their rights.

“It also provides clarity that sometimes, a multiplicity of proceedings might be necessary to get at the issue, and that automatically doesn’t equate to an abuse of process, even if the issues underlying are the same,” he says.

“It doubles down on the legal test for the duty to consult and accommodate.”

Madden adds: “Whether it’s in a judicial review or a civil action, form shouldn’t trump substance.”

McIvor says Justice Rowe’s language about the unique nature of Indigenous rights and title litigation and its seeking to “vindicate” its claims rather than assert them was also present in the 2021 Desautel decision and is worth noting.

“The Court is putting meat on the bones around the duty to negotiate in good faith,” he says.

“That’s an indicator that the law is moving in that direction. It’s not just a matter of duty to consult, and not just a matter necessary of the honour of the Crown, but there is a positive obligation on the Crown, provincial and federal, to engage in good faith.”

For the Métis in particular, Madden says they have often struggled with their issues not being recognized by governments, pointing to the fact provincial governments have brought these sorts of motion to strike applications.

“(The Court’s decision) clarifies that governments shouldn’t be using these types of procedures to kneecap Métis rights litigation, as well as Indigenous litigation in their entirety, through arguing abuse of process,” he says, adding that there is more general application on the abuse of process doctrine, which has been flexible and hasn’t had a lot of parameters around it.

The reconciliation of Indigenous peoples and Canadian sovereignty goes to the heart of Canada’s constitutional morality, which leads to why form cannot trump substance in preventing these issues from reaching the courts, Madden says.

The Alberta government has successfully used the abuse of process doctrine in the past to stop the claims of Métis litigants. This decision will ensure that doesn’t happen again and that Métis, First Nations, and Inuit litigants won’t be stopped from bringing these issues to the courts.

“Rowe’s comments are that courts should be very cautious about doing that in the Aboriginal rights-related sphere because, unlike other areas of the law, it is quite dynamic and evolving,” Madden says.

“It’s better to have these cases heard by the courts to resolve the issues if the parties choose to actually litigate on them as opposed to just heading them off at the pass. That’s important and helpful because these procedural techniques can often stop these issues from getting before the courts.”