Justice Malcolm Rowe’s civil procedure ruling Feb. 28, 2025 gives lawyers and judges general guidance on how to analyze and apply the doctrine of abuse of process in situations involving multiple related legal proceedings, but it also nuances the doctrine’s application in the context of inter-related Aboriginal title and Indigenous rights proceedings involving the same or similar parties or legal issues: Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4.
Justice Malcolm Rowe
However, “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,” he advised.
“Court procedures should facilitate, not impede, the just resolution of Aboriginal claims,” Justice Rowe emphasized. 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,” he added, quoting Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69.
The case before the court arose in the context of three separate lawsuits launched over more than 20 years by the Métis Nation–Saskatchewan (MNS) against the Saskatchewan government — all of which involve Métis Nation claims of Aboriginal title and commercial harvesting rights in respect of a large area in northwestern Saskatchewan.
In the lawsuit which triggered the Saskatchewan government’s unsuccessful appeal to the Supreme Court of Canada, MNS applied in 2021 for judicial review of the province’s issuance that year of three uranium exploration permits to NexGen Energy Ltd. The permits relate to territory over which MNS asserts Aboriginal title and rights.
MNS is challenging the Saskatchewan’s government’s refusal to consult regarding Aboriginal title and commercial harvesting rights, as well as various aspects of Saskatchewan’s conduct during the consultation process.
In Saskatchewan’s Court of Queen’s Bench (now King’s Bench), the province applied to strike portions of MNS’s 2021 originating application for judicial review. Saskatchewan argued that certain paragraphs with respect to MSN’s asserted Aboriginal title and commercial harvesting rights should be struck as vexatious or as an abuse of process, given that these paragraphs addressed matters that were already covered by separate actions MNS had launched against the province in 1994 and 2020. This breached the rule against a multiplicity of actions, contended the province.
(Saskatchewan acknowledged that a duty to consult was triggered in the matter with respect to the Métis' rights to hunt, trap and fish for food, but not for commercial purposes and not in relation to the claim that the Métis Nation-Saskatchewan has Aboriginal title over the Métis-claimed lands.)
MNS’s 1994 action in the Saskatchewan Court of Queen’s Bench sought declarations that the Métis have existing title and rights within the claimed land area, including for the commercial use of resources. However, the action was judicially stayed in 2005 due to MNS’s failure to disclose documents — a stay MNS has not applied to lift. And in the ongoing litigation MNS started in 2020 against Saskatchewan, the Métis Nation challenges a 2010 provincial government policy document which reiterates the position that claims to Aboriginal title and commercial rights would not be “accepted” by the provincial government, and would not be subject to the Crown’s duty to consult.
The chambers judge granted the province’s application to strike the impugned paragraphs in the 2021 judicial review application: Métis Nation-Saskatchewan v. Saskatchewan (Environment), 2022 SKQB 23.
However, the Saskatchewan Court of Appeal unanimously allowed the Métis’ appeal and reinstated the struck portions of their originating application: Métis Nation-Saskatchewan v Saskatchewan (Environment), 2023 SKCA 35.
For the Supreme Court of Canada, Justice Rowe dismissed the Saskatchewan government’s appeal, ruling that in the particular circumstances, “it is not an abuse of process to allow MNS to assert a breach of the duty to consult in the 2021 [judicial review] application even though the 1994 action has been stayed.”
Justice Rowe said that to resolve the 2021 application, a court must determine whether Saskatchewan is obliged to consult MNS regarding the impact of the exploration permits on the applicant's asserted Aboriginal title and commercial harvesting rights.
“The duty to consult arises when the Crown has knowledge of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it,” he said. “The status of the 1994 action is not dispositive of whether Saskatchewan was put on proper notice of MNS’s asserted claim: the 1994 action is not, in and of itself, MNS’s asserted claim, but is rather the legal vehicle which MNS selected in order to vindicate its claim.”
“It is clear,” Justice Rowe wrote, “that Saskatchewan has knowledge of MNS’s claim for Aboriginal rights and title; however, what duties follow from this is not before the court. As well, although inordinate delay can amount to an abuse of process in certain circumstances, the doctrine must focus on the integrity of the adjudicative functions of courts, which is not called into question in the instant case.”
As well, the 2021 application does not amount to an abuse of process because of a duplication of issues with the 2020 action, Justice Rowe held. “There is, clearly, overlap between the 2020 action and the 2021 application, as the 2021 application is a specific instance of the general question about the duty to consult raised in the 2020 action,” he wrote. “However, such overlap does not give rise to concerns about the integrity of the adjudicative process or another fundamental principle, such as consistency, finality, or judicial economy.”
Justice Rowe said the 2021 application is a proper mechanism for MNS to challenge the impugned 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 to immunize from judicial review actions taken by Saskatchewan that might impact MNS’s claims,” he wrote.
And although there is the potential that the 2020 action and 2021 judicial review application could produce different outcomes, and different answers to the question whether Saskatchewan has a duty to consult on Aboriginal title and commercial harvesting rights, “the option of case management to avoid a potential inconsistency makes clear that this is not a case where the drastic remedy of striking pleadings would be appropriate,” Justice Rowe concluded.
MNS’s senior general counsel and head legal officer, Hilary Peterson, told Law360 Canada Justice Rowe’s judgment is “important” for her client on a number of fronts.
Hilary Peterson, Métis Nation–Saskatchewan
“The Supreme Court’s decision is a rejection of this approach,” she averred.
Added Peterson, “the Supreme Court notes that there are three requirements for triggering the duty to consult: actual or constructive knowledge of the potential existence of a right; contemplated Crown conduct; and the potential to adversely affect the asserted rights. The Supreme Court of Canada makes no mention of any ‘credible’ requirement and found that Saskatchewan was clearly aware of the claimed rights.”
She said this is significant because Saskatchewan’s policies and positions “have put hard constraints on what Métis concerns are considered during the consultation process.”
“The Supreme Court decision creates a pathway for the MNS to bring its concerns to the courts and appears to reject a key argument that Saskatchewan previously advanced to justify its refusal to consult on specific asserted Aboriginal rights,” Peterson said.
In respect of MNS’ ongoing separate actions, Peterson said “for three years, Saskatchewan has been trying to use legal tactics, and the principle of the abuse of process doctrine, to prevent the MNS from challenging the province’s outright refusal to consult on impacts to Métis Aboriginal title claims and commercial harvesting rights.”
In MNS’ view, the Supreme Court’s ruling “provides a lot of support” for its 2020 challenge to Saskatchewan’s refusal “to consult regarding Aboriginal title and commercial harvesting rights — not only with the Métis, but also with any First Nations,” she said. “Currently, the MNS is awaiting a determination on a question of law before the court: whether the blanket refusal to consult in respect of Aboriginal title and commercial harvesting rights in Saskatchewan’s consultation policy are constitutional,” Peterson said. “The outcome of that decision will be incredibly important for First Nations and Métis across Saskatchewan.”
With respect to MNS’ separate 2021 litigation challenging the mineral permits Saskatchewan issued that year, “Saskatchewan had tried to prevent a full hearing on the consultation that led to the issuance of those permits,” Peterson said.
The top court’s decision opens the door for all MNS’ concerns to be raised and heard in court, she said. “That decision will be important for shedding light on how Saskatchewan engages, and refuses to engage, with the Métis. Even though the permits are expired, it will provide a unique opportunity for courts to assess Saskatchewan’s conduct and provide future guidance.”
For its part, the Saskatchewan government told Law360 Canada that while the Supreme Court dismissed the province’s appeal, it “also recognized Saskatchewan’s concerns about having to argue the same case twice.”
“The matter will now return to the Court of King’s Bench to determine next steps,” spokesperson Noel Busse said by email. “As there are related matters currently still before the courts, we will not be providing any further comment. . . at this time.”
Addressing the doctrine of abuse of process generally, Justice Rowe said 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 to amount to an abuse of process.
There may be instances where multiple proceedings will enhance, rather than impeach, the integrity of the judicial system, or where parties have a valid reason for bringing separate, but related, proceedings, he pointed out.
“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,” the judge wrote. “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.”
Counsel for the parties were not reached immediately for comment.
Photo of Supreme Court Justice Malcolm Rowe: Andrew Balfour Photography, SCC Collection
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