Case information

Aboriginal law — Aboriginal rights — Aboriginal title — Crown’s duty to consult — Civil procedure — Abuse of process — Aboriginal group bringing application for judicial review of provincial government decision to issue mining permits to resource company — Aboriginal group alleging failure to fulfill duty to consult — Provincial government moving to strike portions of originating application in light of two other ongoing actions involving same Aboriginal rights and title claims — Chambers judge striking portions of originating application, based on abuse of process doctrine — Court of Appeal setting aside chambers judge’s decision — Whether it is an abuse of process for a claimant to bring multiple actions against the Crown raising the same legal issue in relation to the duty to consult — Whether Haida Nation decision allows claimants to bring duty to consult claims against the Crown based on asserted rights without pursuing the proof of those rights — Queen’s Bench Rules (Saskatchewan), rr. 1-4, 7-9.<br>

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The respondents, Métis Nation – Saskatchewan, and Métis Nation – Saskatchewan Secretariate Inc. (collectively, “the Métis respondents” or “MNS”), have long claimed Aboriginal title and rights (including commercial rights) to large areas of the Province of Saskatchewan. The appellant, Government of Saskatchewan, has consistently opposed the existence or recognition of such rights.

In 1994, MNS (along with other plaintiffs) brought an action against Saskatchewan and Canada, seeking declarations that the Métis respondents have existing title and rights within the claimed land area, including use of resources for commercial purposes (the “1994 Action”). In 2005, Justice Koch stayed the 1994 Action, in response to a dispute between the parties with respect to the disclosure of certain documents, but granted permission to the MNS to apply for leave to lift the stay in future; to date, MNS has not applied to have the stay lifted.

In 2020, MNS commenced a second action against Saskatchewan, challenging a 2010 policy document issued by the Province which had reiterated 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 “2020 Action”). This action remains ongoing.

In March 2021, a resource company (NexGen Energy Ltd.) applied to the Government of Saskatchewan for permits to complete a field mineral exploration program on certain lands that fell within the MNS claim area. In May 2021 and during the early summer of 2021, Saskatchewan met with MNS to consult the Métis about the NexGen permit applications. In July 2021, the Government of Saskatchewan issued three uranium exploration permits to NexGen. In August 2021, MNS filed an originating application for judicial review of the decision of the Minister of Environment to grant the permits. In December 2021, Saskatchewan filed a notice of application for an order to strike portions of MNS’s originating application for judicial review, relying on Rules 1-4(3) and 7-9(2)(b) of The Queen’s Bench Rules, and arguing that certain paragraphs of the originating application should be struck as vexatious or an abuse of process, given that they addressed matters already covered by the 1994 Action and the 2020 Action. The chambers judge granted the application. The Court of Appeal unanimously allowed the Métis respondents’ appeal, reinstating the impugned paragraphs in MNS’s originating application.