The Supreme Court of Canada on Feb. 28 allowed [11] an application by the Métis Nation-Saskatchewan (MNS) for judicial review of the Saskatchewan government's approval of mining permits to proceed. The court ruled that the application, launched in 2021, was not an abuse of process because previous proceedings between the parties had not addressed the dispute in the present case. At issue are three uranium exploration permits within territory over which the MNS asserts Aboriginal title and rights.
This is the third court dispute between provincial government and the MNS [13], the self-governing body for Métis [14] in Saskachewan. All three disputes concern Aboriginal rights [15] and the duty to consult. The two parties' litigation history prompted the "abuse of process" allegation from the Saskatchewan government.
The Saskatchewan government argued that two prior ongoing proceedings from 1994 and 2020 dealt with the same legal issue—the duty to consult [16]. The government's position was that duplicative proceedings would "waste resources, risk inconsistent results, and bring the administration of justice into disrepute."
Justice Suzanne Rowe, writing for a unanimous court, rejected the government's arguments. He found that the 1994 action, which has been on hold, "is not dispositive" of the issue in the current case. He also determined that while the 2020 and 2021 proceedings do have clear overlap, they each raise different issues about the government's duty to consult and as such, were not duplicative.
Prior to this 2021 proceeding, the MNS asserted Aboriginal title and rights in 1994 and 2020 against the Saskatchewan government. The 1994 dispute was stayed in 2005 due to the MNS’s failure to produce court-ordered documents. The 2020 dispute is ongoing with a decision pending. All three deal with the Saskatchewan government's duty to consult with the MNS.
In Canada, the duty to consult is an obligation placed on federal and provincial governments. It requires [17] the Crown to consult with Indigenous groups when the Crown is contemplating conduct that may adversely affect the potential existing Aboriginal rights or titles that the government is aware of. In this case, the conduct in question is the approval of mining permits.
This duty is rooted in the honor of the Crown, elaborated in the landmark case, Haida Nation v British Columbia (Minister of Forests) [18] which reiterated that the government must act honorably in all its dealings with Indigenous peoples including good faith attempts at addressing Indigenous concerns through consultation.
Additionally, Canada ratified [19] the UN Declaration on the Rights of Indigenous Peoples [20] (UNDRIP) into Canadian law in 2021. This requires Canadian governments to "take all measures necessary to ensure the laws of Canada are consistent with UNDRIP." The ratifying legislation also affirmed the government's duty to consult with Indigenous peoples on questions affecting their territories.
From JURIST [21], Feb. 28. Used with permission.
