‘Facilitating, Not Impeding, the Just Resolution of Aboriginal Claims’: The Doctrine of Abuse of Process in Aboriginal Rights Litigation

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This is a summary of the Supreme Court of Canada’s (the “Court”) decision in Saskatchewan (Environment) v. Métis Nation – Saskatchewan, SCC 4 (the “Decision”). This summary is not legal advice.

Key Takeaways

1. Special considerations apply to the abuse of process doctrine in Aboriginal rights litigation: While the Court acknowledged that an abuse of process is possible in litigation involving Indigenous litigants, the unique purpose of litigation to vindicate Aboriginal rights, claims and interests must be borne in mind. Court procedures must facilitate the just resolution of Aboriginal claims and reconciliation, not impede them.
2. Multiplicity of proceedings can enhance, rather than impeach, the integrity of the judicial system: Where a litigant has a valid reason for bringing separate, albeit related litigation, a multiplicity of proceedings can serve to enhance the administration of justice. This may be particularly applicable in Aboriginal rights litigation, which can often take decades to litigate and millions of dollars to resolve. During this period, Indigenous litigants must not be left without interim legal recourse against a potentially intransigent public government to protect their rights, claims and interests while the “distant goal of proof” is pursued.
3. Litigation based on the duty to consult is distinct from litigation seeking to prove rights, and these two types of proceedings can co-exist without being abusive: The Court reaffirmed that the Haida^[1] test for the duty to consult is grounded on asserted Aboriginal rights claims prior to proof. As such, there is a difference between litigation meant to prove (i.e., establish) rights and a claim based on a breach of the duty to consult in respect to a specific Crown action. While the rights at issue may be the same, both claims exist independently and can be advanced in separate proceedings without being an abuse of process.
4. The legal framework for the duty to consult applies equally to Métis claimants: Implicit in the Court’s judgment is the recognition that the duty to consult doctrine and the Haida test apply equally to Métis claimants with credible Aboriginal rights claims. While this equal application of the Haida test is arguably obvious and logical, this case is helpful confirmation that the duty to consult can be accessed by Métis claimants unmodified. This is helpful because all of the Court’s judgments dealing with the duty to consult over the last 20 years have only dealt with First Nations or Inuit claimants relying on the duty.

Background and Context

The Decision emerges out of three proceedings commenced by the Métis Nation–Saskatchewan (“MNS”), which “represents the Métis in Saskatchewan,”^[2] against Saskatchewan and Canada:

1. In 1994, the MNS brought an action against Saskatchewan seeking, among other things, declarations respecting Aboriginal title and rights in northwestern Saskatchewan (the “1994 Action”). The 1994 Action was stayed in 2005 because the MNS had not complied with an order to disclose certain documents. To date, the MNS has not taken any steps to lift the stay and move forward with the 1994 Action, while Saskatchewan has not taken any steps to have the 1994 Action dismissed as abandoned.
2. In 2010, Saskatchewan adopted an updated Crown consultation policy stating it does not recognize Aboriginal title or commercial harvesting rights anywhere in the province, and will not consult First Nations or Métis in respect of those rights (the “2010 Policy”). In 2020, the MNS commenced an action challenging the validity of the 2010 Policy, as well as seeking declarations that relying on the 2010 Policy breached the honour of the Crown, and Saskatchewan had a duty to consult in respect of Métis claims to Aboriginal title and commercial harvesting rights (the “2020 Action”). The 2020 Action remains ongoing.
3. In 2021, Saskatchewan granted three uranium exploration permits near Patterson Lake in northwestern Saskatchewan. Following the 2010 Policy, Saskatchewan refused to consult the MNS with respect to asserted Aboriginal title and commercial harvesting rights.^[3] Shortly after the permits were issued, the MNS brought an application for judicial review challenging the issuance of the permits on the basis that Saskatchewan breached its duty to consult to the MNS before issuing the permits (the “2021 Application”).

Saskatchewan brought an application to strike portions of the 2021 Application, arguing that they were duplicative of the 1994 Action and 2020 Action, and an abuse of process. The Saskatchewan Court of King’s Bench granted Saskatchewan’s application and struck those portions of the MNS claim. The Saskatchewan Court of Appeal overturned that decision. Saskatchewan appealed to the Supreme Court of Canada.

The Court’s Decision

The Doctrine of Abuse of Process

The Court began by noting that “abuse of process is concerned with the administration of justice and fairness” and is meant to “prevent misuse of proceedings in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute.”^[4] It is necessarily a flexible doctrine meant to adapt to the circumstances of particular cases.^[5]

While abuse of process can apply in several different contexts, one of its most common applications is where there is a multiplicity of proceedings, meaning where a party commences multiple lawsuits about the same issues.^[6] However, while multiple proceedings about the same issues can be an abuse of process, the Court noted that some overlap between different proceedings does not always constitute an abuse of process. There are cases where multiple proceedings are necessary and even beneficial for the integrity of the legal system.^[7] The overriding concern is “whether allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.”^[8]

A Proceeding to Prove Aboriginal Rights and a Duty to Consult Claim Are Distinct

The Court reaffirmed its existing jurisprudence with respect to the legal framework for the Crown’s duty to consult, which was first set out in Haida in 2004. A duty to consult claim is about addressing credibly asserted but yet unproven Aboriginal rights claims versus proving (i.e., establishing) Aboriginal rights through litigation or negotiations.

While the underlying Aboriginal rights may be the same rights, a duty to consult claim based on Haida is distinct from a claim or legal proceeding attempting to prove or establish Aboriginal title or a right based on the legal tests set out in Tsilhqot’in^[9] (Aboriginal title), Van der Peet^[10](First Nation or Inuit Aboriginal rights) or Powley^[11] (Métis Aboriginal rights). As such, a proof (i.e., “vindication”) claim and a duty to consult claim have overlap but are not inherently duplicative.

Application of the Court’s Existing Jurisprudence to the Facts in This Case

Before determining whether the 2021 Application constituted an abuse of process, Justice Rowe, writing for the Court, articulated the purpose behind each of the three proceedings at issue:

• The 1994 Action sought declarations of Aboriginal title and commercial harvesting rights over lands in northwestern Saskatchewan.^[12]
• The 2020 Action sought to “delineate the scope of Saskatchewan’s duty to consult in a general sense.”^[13]
• The 2021 Application sought judicial review of specific permits on the basis that Saskatchewan did not fulfil its duty to consult to the MNS with respect of those permits.^[14]

The Court rejected Saskatchewan’s argument that the 2021 Application was improper because the MNS had effectively abandoned the 1994 Action seeking to prove its rights in northwestern Saskatchewan. The Court emphasized that the duty to consult protects Aboriginal rights “while land and resource claims are ongoing” and “any arguments that the duty to consult does not arise until after rights and title claims are resolved are inconsistent with this Court’s jurisprudence.”^[15]

Although the 1994 Action sought to prove the rights that are asserted in the 2021 Application, the 1994 Action was not the MNS’s asserted claim under the duty to consult. Instead, “it is the legal vehicle which MNS selected in order to vindicate its claim.”^[16] As such, there was no abuse of process with respect to the claims being pursued at the same time in separate proceedings.

With respect to the 2020 Action, the Court held that there was overlap between it and the 2021 Application. However, that overlap in and of itself did not create any concerns respecting consistency, finality or judicial economy such that it amounts to an abuse of process.^[17] While there is potential for inconsistent outcomes, those could be addressed through case management that would prevent the simultaneous resolution of the common issues between the two proceedings.^[18]

The Court also noted that applying the doctrine of abuse of process in this case would effectively “immunize from judicial review actions taken by Saskatchewan that might impact MNS’s claimed Aboriginal title and commercial harvesting rights,” which would be a misuse of the doctrine.^[19]

Courts Procedures Must Facilitate, Not Impede, the Just Resolution of Aboriginal Claims

After concluding the MNS’s pursuit of its various judicial proceedings did not amount to an abuse of process, the Court went on to add some helpful comments about the pursuit of Aboriginal rights claims before the courts more generally.

While the Court confirmed the abuse of process doctrine can apply in proceedings involving Indigenous litigants (as it can in any other proceeding), it noted that lower courts must also be mindful of the unique context of Aboriginal rights litigation. The Court wrote that judicial procedures should “facilitate, not impede, the just resolution of Aboriginal claims.”^[20] In the judicial process, reconciliation is paramount, and the Court suggested that abuse of process and arguably other procedural manoeuvring should not be applied in a manner that would inhibit reconciliation.

Very often in Aboriginal rights litigation, Crown governments bring preliminary motions to strike novel claims or other preliminary motions that delay getting to the trial of a claim based on its merits. This direction from Canada’s apex court will hopefully be relied upon by lower courts to limit the use of these tactics against Indigenous claimants seeking to vindicate their rights.

This overarching direction from the Court has the potential to have significant practical implications on the ground through lower courts increasingly denying or limiting Crown governments from seeking to strike or delay having the merits of an Aboriginal rights claim addressed in a timely and cost-effective manner.

About Us

Jason Madden, Keith Brown and Matthew Patterson represented the interveners Métis Nation of Alberta and Métis Nation of Ontario in these proceedings before the Court.

Aird & Berlis LLP’s Indigenous Practice Group includes First Nations, Métis and non-Indigenous lawyers with extensive experience in Aboriginal law. We also support Indigenous Peoples, nations and communities in advancing their own jurisdiction, law and legal orders (i.e., Indigenous law).

[1] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (“Haida”). 

[2] Decision at para. 1.

[3] Decision at para. 16.

[4] Decision at para. 33.

[5] Decision at para. 34.

[6] Decision at para. 38.

[7] Decision at para. 39.

[8] Decision at para. 40.

[9] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

[10] R. v. Van der Peet, [1996] 2 S.C.R. 507.

[11] R. v. Powley, [2003] 2 S.C.R. 207.

[12] Decision at para. 44.

[13] Decision at para. 45.

[14] Decision at para. 46.

[15] Decision at para. 50.

[16] Decision at para. 53.

[17] Decision at para. 59.

[18] Decision at para. 60.

[19] Decision at para. 59.

[20] Decision at para. 62.