By: Teanna Winsor-Carruthers, University of Alberta Law Student
On February 28, 2025, the Supreme Court of Canada (SCC) in Saskatchewan (Environment) v. Métis Nation – Saskatchewan released a judgment that clarified ambiguous aspects of the abuse of process doctrine.[1] The particularities of this case are unique, as it involves a province bringing a motion to strike portions of an Indigenous group’s application on the grounds of abuse of process. Arguably, the case also exemplifies the unique barriers Indigenous peoples continue to face in seeking access to justice despite the recent developments of Indigenous Justice Strategies[2] and Directives on Civil Litigation Involving Indigenous Peoples.[3]
This case is the most recent decision in a series of litigation (re: Aboriginal title, rights, and duty to consult) between the Métis Nation of Saskatchewan (MN-S) and the Province of Saskatchewan (Province). In the 2020 preceding action, the MN-S sought “…various declarations in relation to [a consultation policy], including a declaration that Saskatchewan has a duty to consult the Métis regarding their asserted title and commercial harvesting rights.”[4] In 2021, the Saskatchewan government approved “uranium exploration permits… within territory over which MN-S asserts Aboriginal title and rights.”[5] In response, the MN-S filed an originating application seeking a declaration that the Province had breached its duty to consult. Subsequently, the Province sought to have parts of the application stricken based on abuse of process. The judgement rendered by the Court of King’s Bench held that the paragraphs in question constituted an abuse of process, as similar issues were raised in both the previous actions and the current application.[6] The Court of Appeal overturned the decision, and the Province appealed to the SCC.[7]
The SCC underlined the standard of review was correctness, as the matter to be decided was a question of law:[8] namely, whether specific paragraphs of the application at issue constituted an abuse of process in light of the previous actions. Conversely, the court clarified this did not include an assessment of the merits of the previous actions/current application.
In rendering its judgement, the Court underlined that an abuse of process analysis, in circumstances of multiple/similar proceedings, must consider “…whether allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice….”[9] The SCC went on to confirm that “…abuse of process is possible in proceedings involving Indigenous litigants, as it is for others.”[10] However, in the case at hand, the existence of similar/related lawsuits did not amount to an abuse of process. The court emphasized that such a finding would constitute “…a misuse of the doctrine of abuse of process, in effect, to immunize from judicial review actions taken by Saskatchewan that might impact MN-S’s claimed Aboriginal title and commercial harvesting rights.”[11]
Importantly, the SCC judgement engaged with broader access to justice considerations unique to Indigenous peoples, emphasizing the underlying goal of reconciliation.[12] The court confirmed that rules of procedure “… should facilitate, not impede, the just resolution of Aboriginal claims.”[13]
While the SCC’s judgement points to increasing judicial recognition of the unique barriers Indigenous peoples face in pursuing Aboriginal rights litigation, it also underlines ongoing provincial inconsistencies regarding crown Conduct and strategy.
In 2018, the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples (Federal Directive) was released. The Federal Directive includes core objectives and guidelines to direct the Crown’s conduct when engaging with Indigenous peoples through litigation. It outlines four core objectives: “(1) advancing reconciliation, (2) recognizing rights, (3) upholding the honour of the Crown, and (4) respecting and advancing Indigenous self-determination and self-governance.”[14] This renewed approach to Indigenous litigation was also replicated and expanded upon in the Province of British Columbia’s Directives on Civil Litigation involving Indigenous Peoples (Provincial Directive).[15] Number 8 of the Provincial Directive, states that “[a]ll communication and submissions must be regarded as an important tool for pursuing reconciliation.”[16] The aforementioned directives directly engage with the barriers Indigenous peoples and groups face when undertaking litigation. Moreover, they outline strategies aimed at ensuring Indigenous litigants can seek justice in a manner that is fair, accessible, and predictable; at both the federal and provincial level.
Admittedly, British Columbia is the only province, as to date, that has released an Indigenous Provincial Directive on Civil Procedure. However, other provinces have enacted similar initiatives that underline a need to address the unique access to justice issues faced by Indigenous peoples. For example, Alberta’s Indigenous Justice Strategy seeks to address, inter alia, “…the general lack of access Indigenous peoples have to the court system.”[17] It is clear, that for Indigenous peoples, access to justice includes recognition of the unique circumstances/history of Aboriginal rights litigation.
Yet an ongoing problem continues to be that, across the country and jurisdictionally, Indigenous peoples are subject to unequal access to justice. Saskatchewan, where the above case was initiated, does not have either an Indigenous justice initiative or a civil litigation directive. In a recent news article, Hilary Peterson, legal counsel for the MN-S, provided the following statement: “[f]or 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.”[18] The purported approach taken by the Province is contrary to the overarching objectives of reconciliation that have been underlined by the judiciary, and enacted by the Federal Department of Justice and other Provinces.
Further, in a statement made to Canadian Lawyer, a spokesperson for the province underlined that the SCC “recognized Saskatchewan’s concerns about having to argue the same case twice.”[19] Such a statement ultimately seeks to legitimize the approach taken by the Province, as opposed to meaningfully engaging with the purpose of Aboriginal rights litigation.
Ultimately, while the SCC’s decision underlines judicial recognition for the unique access to justice considerations of Indigenous peoples seeking to advance Aboriginal rights litigation, it also highlights the persistent difficulties of ensuring consistency for Indigenous peoples under the framework of federalism.
[1] Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4.
[2] Alberta Court of Justice, “Indigenous Justice Strategy” (Edmonton, 2022).
[3] Canada, Attorney General, “Directive on Civil Litigation Involving Indigenous Peoples” (Ottawa: Department of Justice, 2018) [Federal Directive]; British Columbia, Attorney General, “Directives on Civil Litigation involving Indigenous Peoples” (Vancouver: Ministry of Attorney General, 2022) [BC Directive].
[4] Supra note 1 at para 45.
[5] Ibid at para 2.
[6] Métis Nation – Saskatchewan and Métis Nation – Saskatchewan Secretariat Inc. v Saskatchewan (Environment), 2022 SKQB 23.
[7] Métis Nation – Saskatchewan v Saskatchewan (Environment), 2023 SKCA 35.
[8] Supra note 1 at para 31.
[9] Supra note 1 para 40.
[10] Ibid at para 62.
[11] Ibid at para 59.
[12] Ibid at para 62.
[13] Ibid.
[14] Federal Directive, supra note 3 at 6.
[15] BC Directive, supra note 3.
[16] Ibid at 11.
[17] Supra note 2 at 14.
[18] Mach, Jessica, “Métis Nation’s third lawsuit against Saskatchewan over title issues not abuse of process, SCC rules”, Canadian Lawyer (4 March 2025), online: <www.canadianlawyermag.com/news/general/metis-nations-third-lawsuit-against-saskatchewan-over-title-issues-not-abuse-of-process-scc-rules/391534>
[19] Ibid.