Lawyers say the lawsuit helped clarify the abuse of process doctrine
A legal proceeding that the Métis Nation–Saskatchewan launched against the province of Saskatchewan was not an abuse of process even though it was the MN-S’s third attempt to litigate similar Aboriginal title issues with the province, the Supreme Court of Canada ruled.
In a unanimous decision Friday, Justice Malcolm Rowe noted that “abuse of process is possible in proceedings involving Indigenous litigants, as it is for others.”
However, Rowe added that courts should consider the unique circumstances of litigating Aboriginal rights. “Court procedures should facilitate, not impede, the just resolution of Aboriginal claims,” the justice wrote. He cited a 2005 SCC decision that said reconciliation was “the fundamental objective of the modern law of [A]boriginal and treaty rights.”
In a statement to Canadian Lawyer on Monday, Hilary Peterson, senior general counsel and head legal officer for the Métis Nation–Saskatchewan, said the SCC’s decision was important for both MN-S and Northern Region 2.
“For three years, Saskatchewan has been trying to use legal tactics and the principle of the abuse of process doctrine to prevent the MN-S from challenging the province’s outright refusal to consult on impacts to Métis Aboriginal title claims and commercial harvesting rights,” Peterson said.
Peterson added that the high court’s decision will allow the MN-S to litigate all its concerns. “That is a significant and important step to ensuring that, to paraphrase the language of the SCC, Saskatchewan cannot immunize itself from judicial review actions,” she said.
A spokesperson for Saskatchewan’s Ministry of Justice and Attorney General said the provincial government respects the SCC’s decision. The spokesperson also noted that the high court “recognized Saskatchewan’s concerns about having to argue the same case twice.”
The dispute underlying the SCC case began in 2021 when Saskatchewan granted uranium exploration permits to an energy company on land over which MN-S had asserted Aboriginal title and rights. That same year, MN-S filed a court application to challenge the province’s conduct in the project. The nation sought a declaration that Saskatchewan had breached its duty to consult by refusing to confer with MN-S regarding Aboriginal title and commercial harvesting rights.
In response, Saskatchewan asked the court to strike paragraphs of the MN-S application referring to the Aboriginal title and commercial harvesting rights claims. The province argued that the paragraphs represented an abuse of process since MN-S had previously filed legal proceedings against Saskatchewan in 1994 and 2020 over similar issues.
The Court of King’s Bench sided with the province, ruling that because the issues in the three legal proceedings overlap, it would be an abuse of process to allow the 2021 application to proceed unchanged.
However, the Court of Appeal for Saskatchewan disagreed, finding that the three legal proceedings did not involve the same issue. The appellate court ruled that allowing the 2021 application to proceed in its original form would not be an abuse of process.
In its decision, the SCC said the fact that two or more ongoing legal proceedings involve the same or similar parties or issues “is in itself not sufficient for an abuse of process.”
To determine whether an abuse of process has occurred, courts need to analyze “whether allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice,” the high court said. For example, when duplicative proceedings “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 SCC said.
The high court said there is “clearly” overlap between the 2020 and 2021 cases but noted some distinctions. While the 2020 case “deals generally with the duty to consult,” the 2021 application addresses a specific instance of Saskatchewan’s duty to consult.
The court concluded that allowing the 2021 application to proceed would not be an abuse of process since it is “a proper mechanism” for MN-S to challenge Saskatchewan’s decision to issue uranium exploration permits.
“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,” the SCC said.
Jason Madden, a partner at Aird Berlis who represented intervenors Métis Nation of Alberta Association and Métis Nation Ontario Secretariat Inc., told Canadian Lawyer that Friday’s decision helped clarify the abuse of process doctrine.
Madden says that, unlike other legal principles like res judicata or issue estoppel, there hasn’t historically been much of a prescriptive test for determining whether conduct qualifies as abuse of process. “This case is helpful about setting out first principles about what abuse of process is.”
Bruce Slusar, who runs his firm and represented another intervenor, the Federation of Sovereign Indigenous Nations, noted that the SCC decision “emphasizes that the Crown’s conduct must be honourable and in good faith when matters pertaining to the Aboriginal and Treaty rights of our First Nations are involved.”
