Métis Nation – Saskatchewan v. Métis Nation – Saskatchewan Secretariat Inc., 2023 SKCA 35

Court of Appeal for Saskatchewan Docket: CACV3984 Citation: Métis Nation – Saskatchewan v Saskatchewan (Environment) , 2023 SKCA 35 Date: 2023-03-20 Between: Métis Nation – Saskatchewan and Métis Nation – Saskatchewan Secretariat Inc. Appellants (Applicants) And Government of Saskatchewan-Minister of Environment and NexGen Energy Ltd. Respondents (Respondents) Before: Richards C.J.S., Leurer and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Tholl On appeal from: 2022 SKQB 23 , Regina Appeal heard: September 9, 2022 Counsel: Tamara Prince, Tom Isaac and Arend Hoekstra for the Appellants Mitch McAdam, K.C. and Jeffrey Crawford for the Respondents Leurer J.A. I. INTRODUCTION [ 1 ] For many years, the Métis people have asserted that they have Aboriginal title over lands in northwestern Saskatchewan and rights to hunt, fish and trap for commercial purposes.

Saskatchewan denies that these rights exist. [ 2 ] The issue in this appeal is whether Métis Nation – Saskatchewan and Métis Nation – Saskatchewan Secretariat Inc. [collectively MNS] can seek judicial review of the grant of three exploration permits by the Government of Saskatchewan (Minister of the Environment) [Saskatchewan], in alleged breach of the duty to consult the Métis people about the impact of the exploration activities on these claimed rights. [ 3 ] A Court of Queen’s Bench judge sitting in Chambers granted an order striking the parts of MNS’s originating application that seek to advance this claim: Métis Nation – Saskatchewan v Saskatchewan (Ministry of Environment) , 2022 SKQB 23 [ Chambers Decision ]. [ 4 ] In my respectful view, the Chambers judge erred in law in granting this relief.

I would allow MNS’s appeal and set aside the order made by the Chambers judge. My reasons follow. II. BACKGROUND A. The litigation between MNS and Saskatchewan [ 5 ] Section 35(1) of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 , reprinted in RSC 1985, App II, No 44, provides that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. In turn, s. 35(2) defines the term “aboriginal peoples of Canada” to include the Métis peoples of Canada. [ 6 ] For many years, MNS has asserted that among the Métis’ existing Aboriginal rights are title over parts of northwestern Saskatchewan [Métis Claimed Land] and the right to hunt, fish and trap for commercial purposes.

In addition to the originating application that is at issue in this appeal, MNS has initiated two other legal proceedings against Saskatchewan in which it has alleged the existence of such rights. [ 7 ] In 1994, MNS, together with others [1994 Plaintiffs], brought an action against Saskatchewan and Canada [1994 Action]. In their statement of claim, the 1994 Plaintiffs requested, along with other relief, a declaration that Saskatchewan Métis “have existing Aboriginal rights and title within the [Métis Claimed Land] … which rights and title include, inter alia : (

i) Aboriginal title and rights to the possession, occupation, use and benefit of those lands and resources in the [Métis Claimed Land] which they require to sustain them as a distinct Aboriginal people” . [ 8 ] Canada and Saskatchewan defended the 1994 Action. Saskatchewan’s statement of defence included a denial that “the Plaintiffs ever had or now have the Aboriginal rights and title claimed”. [ 9 ] In 2005, Koch J. ordered a stay of proceedings in the 1994 Action until otherwise ordered by the Court.

His order also provided that the 1994 Plaintiffs would not be “entitled to apply to lift the stay until they are in a position to assure the immediate and full disclosure of documents and electronic materials, as previously ordered by this Court”. Saskatchewan’s factum explains that the

documents in question were those that the plaintiffs “were relying upon to support their claims to Saskatchewan and Canada”. MNS does not contest the accuracy of this statement. It is common ground that MNS has never applied to lift the stay of proceedings imposed by Koch J.’s order. [ 10 ] In June 2010, Saskatchewan published a document, titled First Nation and Métis Consultation Policy Framework , online: Publications Centre (Saskatchewan) [2010 Policy].

In it, Saskatchewan stated that it “will consult with and accommodate, as appropriate, First Nations and rights-bearing Métis communities in advance of decisions or actions which may adversely impact Treaty and Aboriginal rights”. However, the 2010 Policy also makes clear that Saskatchewan contests MNS’s claim to Aboriginal title and commercial use of resources, stating in part as follows: Aboriginal Title The Government does not accept assertions by First Nations or Métis that Aboriginal title continues to exist with respect to either lands or resources in Saskatchewan.

Accordingly, decisions claimed to adversely affect Aboriginal title are not subject to this policy. … Commercial Use of Resources Commercial uses of resources by First Nations and Métis people, such as commercial trapping and fishing, are not subject to this policy. However, the importance of these pursuits is recognized by the Government and ministries will be guided by the Interest-Based Engagement

section (see

Section 5) when its decisions or actions have the potential to adversely impact commercial activities. [ 11 ] On September 16, 2020, MNS commenced a second action against Saskatchewan [2020 Action]. In the statement of claim starting it, MNS requests various forms of relief, including declarations that the “2010 Policy is invalid and may not be relied upon” by Saskatchewan.

It also asks for declarations that Saskatchewan’s “reliance on the 2010 Policy as a basis for not consulting on disposition of minerals under The Crown Minerals Act ” and “for not consulting on commercial uses of resources by Métis peoples” is “inconsistent with the Crown’s duty of honourable dealing towards Indigenous peoples and its obligations under

Section 35 ” of the Constitution Act, 1982 . [ 12 ] Saskatchewan has filed a statement of defence to the 2020 Action. In it, Saskatchewan “admits that it must consult First Nations and Métis peoples with respect to its decision or actions that have the potential to adversely impact the exercise of Treaty or Aboriginal rights”. It pleads that the 2010 Policy “reflects and is consistent with the Crown’s obligations under the duty to consult doctrine”.

It also says that no “credible claim to Métis Aboriginal title or commercial harvesting rights has been established in Saskatchewan (the onus being on the party claiming such rights) that could give rise to a duty to consult”. The 2020 Action remains ongoing. [ 13 ] In March of 2021, NexGen Energy Ltd. [NexGen] applied for permits to complete a field mineral exploration program on lands that fall within the area of the Métis Claimed Land.

Subsequently, Saskatchewan wrote to Métis groups to advise of its receipt of the NexGen application and to provide “official notification that the duty to consult has been triggered, as the proposed project has the potential to adversely impact the exercise of established or credibly claimed Treaty and Aboriginal rights, including the right to hunt, fish, trap for food, and carry out traditional uses (Rights and Traditional Uses) on unoccupied Crown land, or occupied Crown land, or public water bodies to which First Nations and Métis have a right-of-access”.

Saskatchewan candidly states in its factum that it “refused to consult with [MNS] about their asserted Aboriginal title and commercial rights claims because it is the Province’s position that those claims do not have sufficient credibility to trigger the Duty to Consult”. [ 14 ] On July 9, 2021, Saskatchewan issued three exploration permits to NexGen [collectively Permit]. MNS is dissatisfied with the extent of Saskatchewan’s consultations prior to their grant.

Its concerns go beyond the province’s refusal to consult about the asserted Aboriginal title and commercial harvesting rights. [ 15 ] On August 31, 2021, MNS issued its originating application. It seeks a declaration that Saskatchewan’s decision to grant the Permit “is ultra vires the Minister based upon the operation of s. 35 of the Constitution Act, 1982 ”. It also requests declarations pertaining to Saskatchewan’s alleged failure to engage in good faith consultations respecting the issuance of the Permit, as well as the associated claim that Saskatchewan has failed to uphold the honour of the Crown.

Because the details of the declarations that MNS is seeking are important to these reasons, I will reproduce them in full: 2. A declaration that the Minister has breached the Crown’s constitutional duty to consult the Applicant, Métis Nation – Saskatchewan (“MN-S”), by failing or refusing to engage in good faith consultations respecting the issuance of the Permit and the underlying Uranium Exploration Activities, including but not limited to the following breaches of the duty to consult: a. Failing or refusing to provide the Applicants with a reasonable consultation process; b.

Failing or refusing to provide the Applicants with sufficient or any resources to participate in any consultation process prior to the issuance of the Permit, including for conducting a technical review of the underlying Uranium Exploration Activities; c. Failing or refusing to disclose information to the Applicants about the Exploration Activities and the status of the Permit; d. Failing or refusing to consider submissions made by the Applicants; e. Refusing to consult with MN-S in respect of potential impacts to asserted Aboriginal title and commercial harvesting rights; f.

Failing or refusing to provide reasonable accommodation measures based on the submissions made by the Applicants; g. Failing to consider or provide responses to accommodation measures proposed by MN-S; h. Failing to consult with MN-S in respect of accommodation measures; and i. Issuing the Permit in advance of completing reasonable consultation, including consultation which had been scheduled to occur with

the Applicants; 3. A declaration that the Minister has failed to uphold the honour of the Crown while engaging with MN-S in respect of the Uranium Exploration Activities by: a. Failing to provide a reasonable process for consultation with MN-S; b. Imposing unreasonable timelines for response on MN-S; c. Failing to respond to questions and concerns raised by MN-S; d. Failing to fulfil commitments made to MN-S, including commitments to responses; e. Failing to respond to MN-S accommodation requests; and f.

Refusing to consider or consult in respect of potential impacts to asserted Aboriginal title and commercial harvesting rights[.] [ 16 ] Finally, as part of the “summary of material facts” contained in the originating application, MNS states at paragraphs 16(

b) and (

c) that “Saskatchewan Métis assert Aboriginal rights” include the right “to harvest animals, plants, and natural resources for commercial purposes” and “to lands, and their resources”. [ 17 ] In support of its originating application, MNS filed several affidavits. B. Saskatchewan’s application to strike parts of MNS’s originating application [ 18 ] To date, Saskatchewan has not filed evidence in reply to the originating application.

Instead, it responded to it by applying to strike the “portions of the Originating Application for Judicial Review which raise issues related to which entity possesses Métis Aboriginal rights in Northwestern Saskatchewan, commercial rights and Métis land claims”. Elsewhere, it identified the impugned parts of MNS’s originating application to include paragraphs 2(

e) and 3(f), which set out MNS’s request for declaratory relief that Saskatchewan had breached a duty to consult with MNS in respect to potential impacts to asserted Aboriginal title and commercial harvesting rights. The originating application also included MNS’s

summary of material facts that pertain to the assertion of these rights, as found in paragraphs 16(

b) and (

c) of the originating application. Saskatchewan did not object to the rest of the proceedings commenced by the originating application continuing to a hearing. All of this is consistent with its position that a duty to consult was triggered in this matter regarding 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 have Aboriginal title over the Métis Claimed Lands. [ 19 ] Saskatchewan’s application was grounded in Rules 7-9(2)(

b) and (

e) of The Queen’s Bench Rules . These two Rules allow for the striking of a pleading that “is scandalous, frivolous or vexatious” (Rule 7-9(2)(b)), or that “is otherwise an abuse of process of the Court” (Rule 7-9(2)(e)). It asserted that the inclusion of the impugned paragraphs is vexatious and an abuse of process because MNS is seeking to litigate matters, “when the issues are already before the Court in two existing actions”. It maintained that it “is also vexatious and an abuse of process … for [MNS] to attempt to litigate these issues in the context of a judicial review proceeding, which is, by its very nature, a

summary proceeding”. In the latter regard, it further stated that “these are not issues that are appropriate for determination in a

summary way in a judicial review proceeding”. C. The Chambers Decision [ 20 ] The Chambers judge found that no part of the originating application was vexatious. He reached this conclusion because he was “not satisfied on the evidence before [him] that the judicial review application is without merit or was brought for an ulterior or improper purpose” ( Chambers Decision at para 44).

No appeal is taken from this determination, and I need not consider it further. [ 21 ] While the Chambers judge refused to find that the originating application offended Rule 7-9(2)(b), he found that the inclusion of the challenged portions would be “an abuse of process because it raises the same issues as in the 1994 Action and 2020 Action”.

He added that, while “the status of the 1994 Action is open to question, the 2020 Action is current and viable” (at para 65). [ 22 ] Additionally, the Chambers judge determined that an originating application was not the appropriate procedure for the matter and ordered it to be struck on that basis. He concluded that “actions commenced by originating notice are intended for claims that are suitable for

summary determination” (at para 96). He also found that, given “the nature of the dispute over the asserted rights and that MNS has already filed application under Rule 3-53 to apply

Part 5 of The Queen’s Bench Rules to the judicial review action … the

summary determination contemplated for actions started by originating application is not appropriate for the disputed portions of the originating application”.

Finally, he allowed that, while “in the normal case, the court would consider converting the form of action … given the existence of the 2020 Action, the better course is to strike the offending portions” (at para 97). [ 23 ] As a bottom line, the net effect of the Chambers Decision is to allow MNS to proceed with its originating application, but to do so without the inclusion of any allegation that Saskatchewan has breached a duty to consult in relation to the potential impact of the Permit on its claim to Aboriginal title over the Métis Claimed Land and its claim that Métis peoples enjoy Aboriginal rights to hunt, fish and trap for commercial purposes.

III. ISSUES [ 24 ] MNS has appealed from the Chambers Decision . Its notice of appeal identified eight separate grounds of appeal, with many sub-grounds. These issues are only slightly distilled in its factum, to nine alleged errors that it says the Chambers judge committed. Saskatchewan also introduces an additional issue into this appeal, by submitting that this Court is without jurisdiction because the order

under appeal is interlocutory. Accordingly, says Saskatchewan, because MNS did not obtain leave to appeal, this Court has no jurisdiction to hear this appeal. [ 25 ] As I will explain, the outcome of MNS’s appeal is determined by the answer to three questions: (

a) Is the order interlocutory? (

b) Is the inclusion of the struck paragraphs an abuse of court processes? (

c) Is an originating application an appropriate commencement document for MNS’s claim? IV. ANALYSIS A. Is the order interlocutory? [ 26 ] Saskatchewan maintains that the order under appeal is interlocutory and therefore this Court is without jurisdiction to hear MNS’s appeal. Its argument is grounded in s. 8 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 .

That provision states that, subject to certain exceptions that have no application here, “no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court”. [ 27 ] The basic distinction between final and interlocutory orders is easy to state. As explained by Ottenbreit J.A. in Saskatchewan Medical Association v Anstead , 2016 SKCA 143 , it “has long been the law in this jurisdiction that orders which do not finally dispose of the ‘substantive issue’ in an action are not final but interlocutory”.

Conversely, “an order is final when, if allowed to stand, it finally disposes of the rights of the parties” (at para 56). More recently, Kalmakoff J.A. stated that, “[a]t a very general level, an interlocutory decision is one made during the progress of an action or other proceeding that relates to some intermediate matter at issue in the case, not to the ultimate matter in issue” ( Poffenroth Agri Ltd. v Brown , 2020 SKCA 68 at para 15 , [2021] 5 WWR 302, referring to The Honourable Stuart J.

Cameron, Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated , 1st ed (Regina: Law Society of Saskatchewan Library, 2015) at 118). Later, Kalmakoff J.A. also observed that the “determination of whether an order is final or interlocutory in nature turns on whether the order effectively disposes of the rights of the parties, in a final and binding way, with respect to a substantive issue ” (at para 18, emphasis added). If an order has this effect, it is final in nature. [ 28 ] I find no difficulty in concluding that the order made in this case is final.

The reason for this is that the bottom-line effect of the Chambers Decision is to preclude MNS from mounting a meaningful challenge to the issuance of the Permit based on its allegation that Saskatchewan breached its duty to consult with it over the potential impact of the Permit on its claimed Aboriginal title over the Métis Claimed Land and its claimed Aboriginal rights to hunt, fish and trap. [ 29 ] My explanation for this conclusion begins with some brief legal background.

As explained by McLachlin C.J.C. in Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 at para 16 , [2004] 3 SCR 511 [ Haida Nation ], the “honour of the Crown is always at stake in its dealings with Aboriginal peoples”. It is for this reason that, in “ all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably” (at para 17).

The “duty to consult is treated in the jurisprudence as a means (in appropriate circumstances) of upholding the honour of the Crown” ( Beckman v Little Salmon/Carmacks First Nation , 2010 SCC 53 at para 61 , [2010] 3 SCR 103 [ Beckman ] ). The “duty to consult ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s. 35 rights” ( Mikisew Cree First Nation v Canada (Governor General in Council) , 2018 SCC 40 at para 26 , [2018] 2 SCR 765 ). [ 30 ] The duty to consult has been recognized to arise in a variety of contexts.

One is when the Crown is contemplating taking actions that have the potential to affect asserted but unproven Aboriginal rights. At least in part, this is because it may take years to resolve, through negotiation or litigation, whether contested rights exist and, if they do, their scope. The recognition of a duty to consult in such context is a means of upholding the honour of the Crown in this interim period. [ 31 ] Reflecting the points I have just mentioned, the Crown’s knowledge “of a credible but unproven claim suffices to trigger a duty to consult and accommodate” ( Haida Nation at para 37 ).

This was the key point decided by Haida Nation . It is one that has been reaffirmed by the Supreme Court on many occasions since. By way of example only, McLachlin C.J.C. reiterated it in Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council , 2010 SCC 43 at para 33 , [2010] 11 WWR 577 [ Rio Tinto ], when she stated that the duty to consult “derives from the need to protect Aboriginal interests while land and resource claims are ongoing ” (emphasis added).

See also: Taku River Tlingit First Nation v British Columbia (Project Assessment Director) , 2004 SCC 74 at para 27 , [2004] 3 SCR 550 [ Taku River Tlingit First Nation ]; and Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resources Operations ), 2017 SCC 54 at para 78 , [2017] 2 SCR 386 . [ 32 ] Of course, there is much more to the duty to consult than this. There are volumes of case reports that speak to such questions as when the duty to consult arises in the context of an asserted but unproven claim, and what the duty requires when it does arise. However, one point is beyond controversy.

I would reiterate it: the existence of an asserted but unproven claim to Aboriginal rights may give rise to a duty on the part of a government to consult in relation to actions it proposes to undertake that have the potential to impact that asserted right. As explained by one commentator, the “modern duty to consult doctrine thus creates a proactive duty on governments in the face of uncertainty” (Dwight G. Newman, Revisiting the Duty to Consult Aboriginal Peoples (Saskatoon: Purich Publishing Limited, 2014) at 17). [ 33 ] There are two concomitants to all of this.

The first is that there is an important distinction, between, on the one hand, the existence of the right to be consulted about potential impacts of government actions on an asserted Aboriginal right, and, on the other, the existence of the underlying Aboriginal right itself. The second concomitant is that a right to be consulted about potential impacts of government actions on an asserted Aboriginal right may arise even in a situation where it is later determined that the asserted underlying Aboriginal right does not exist.

[ 34 ] All of this is important context for understanding the effect of the order made by the Chambers judge in this case. When the consequence of the order is properly understood, it is clear that it is final in nature. [ 35 ] In this case, the effect of the order made by the Chambers judge is to preclude MNS from advancing the claim that it has a right to be consulted in relation to the impact of the issuance of the Permit on its asserted Aboriginal title over the Métis Claimed Lands and the asserted rights to hunt, fish and trap for commercial purposes.

In other words, by striking the impugned paragraphs from the originating application, MNS’s claimed entitlement to be consulted about these specific impacts arising out of the issuance of the Permit without consultation is decided against it. This is an exemplar of a final order. [ 36 ] Saskatchewan offered various arguments as to why this Court should conclude otherwise.

None of them answer the fundamental fact that the order has the effect that I have described. [ 37 ] Saskatchewan says that “the order striking [the] pleadings did not eliminate a significant part of the application, nor did it fundamentally alter the course of the proceedings”. It also invites this Court to conclude that the order did not “decide the war” but “merely advance[d] the matter towards its final resolution”. However, the analogy is imperfect, and I cannot agree that the order had such a limited effect.

This is because the striking of the impugned paragraphs precludes MNS from seeking judicial review of the Permit based on the allegation of the breach of the disputed rights. [ 38 ] In a like vein, Saskatchewan asserts in its factum that MNS can pursue its claim “with all of the remaining issues between the parties” (emphasis added).

This is true, but one of the claims that MNS is not free to pursue if the order stands is that the Permit should be quashed because of the Government’s refusal to consult relating to the effect of the issuance of the Permit on all of MNS’s claimed Aboriginal rights. [ 39 ] For the same reason, Saskatchewan’s argument that the order does not deny MNS’s “ability to pursue their Aboriginal title and commercial rights arguments” but instead “simply directs them to a different forum to do so” is false.

MNS is not able to seek to establish a right to be consulted while other litigation, intended to determine if its claimed Aboriginal rights exist, is underway. The fact that the order struck out only a few paragraphs of the application is beside the point. Its effect is to finally dispose of this aspect of MNS’s claim to be consulted before the existence of the asserted rights is determined in another action. [ 40 ] Saskatchewan suggests that MNS can, through an amendment to the 2020 Action, pursue this part of its claim.

Requiring it to do so would be inconsistent with the direction, given by the Supreme Court in Haida Nation , that Aboriginal groups have a right to seek judicial review pending the resolution of their contested rights. Saskatchewan’s submission also ignores that the 2020 Action and the originating application have different purposes. While the 2020 Action calls into question the constitutionality of the 2010 Policy, it is not directed towards an individual government action as is the originating application.

Therefore, while there is overlap, the two proceedings have different aims. [ 41 ] Finally, Saskatchewan observes that judicial review proceedings are intended to be

summary in nature and appeals “should be allowed only in exceptional cases”.

This argument ignores that it is Saskatchewan’s misconceived motion to strike that has given rise to the need for this appeal. [ 42 ] As a bottom line, none of Saskatchewan’s arguments come to grips with the fact that the effect of the Chambers Decision is to preclude MNS from litigating the full scope of its allegation that Saskatchewan has a duty to consult about the potential effect of the grant of the Permit on its asserted rights. [ 43 ] For these reasons, I reject Saskatchewan’s argument that the Chambers judge’s order is interlocutory. It was final, and no leave to appeal from it is required. B.

Is the inclusion of the struck paragraphs an abuse of court processes? [ 44 ] As I have described, the paragraphs struck from the originating application advance MNS’s claim that Saskatchewan failed to uphold the honour of the Crown and the associated duty to consult with it over the potential impact of the Permit on the asserted Aboriginal title over the Métis Claimed Land and the asserted Aboriginal rights to hunt, fish and trap for commercial purposes. [ 45 ] The Chambers judge concluded that the originating application would be an abuse of process if it were to continue with the disputed paragraphs “because it raises the same issues as in the 1994 Action and 2020 Action” ( Chambers Decision at para 65).

This determination is based on a fundamental misunderstanding of both the nature of the originating application and the relief it seeks. In my explanation of this conclusion, I will briefly discuss the doctrine of abuse of process and then expand somewhat on the earlier analysis that led me to conclude that the order under appeal is final. [ 46 ] The doctrine of abuse of process is a flexible tool employed to prevent the administration of justice from being misused.

There is often no individual marker indicating when a proceeding will be an abuse of process, and it will typically be necessary to consider all the relevant context and background of a matter: Bear v Merck Frosst Canada & Co. , 2011 SKCA 152 at para 41 , [2012] 6 WWR 1; and Canadian Pacific Railway Company v Kelly Panteluk Construction Ltd. , 2020 SKCA 123 at para 58 , 17 CLR (5th) 138 [ Kelly Panteluk ].

However, one factor that tilts toward the conclusion that a proceeding is abusive is where a party is attempting to relitigate an issue that has already been decided, or is currently being decided, in another forum: Bear at para 38 ; and Toronto (City) v C.U.P.E., Local 79 , 2003 SCC 63 at para 51 , [2003] 3 SCR 77.

Such attempts waste the resources of the parties, courts and witnesses alike, while risking inconsistent results and undermining the credibility of the entire judicial process. [ 47 ] Superficially, the 1994 Action, the 2020 Action and the current application relate to the same underlying issue; namely, Métis claims of Aboriginal title and commercial harvesting rights in Saskatchewan. But the fact that this issue is engaged by each action does not mean that the proceedings are identical, or that of any one of them constitutes an abuse of process.

Indeed, as I have already explained, since the duty to consult “derives from the need to protect Aboriginal interests while land and resource claims are ongoing ” ( Rio Tinto at para 33 , emphasis added), frequently, an application for judicial review of Crown action will occur alongside simultaneously proceeding litigation, and the application does not become an abuse of process by that fact alone.

[ 48 ] In the context of a judicial review based on a claim that the Crown has not fulfilled its duty to consult, the task facing a judge is not to determine the ultimate validity of the underlying claims to Aboriginal rights or title but to determine whether those claims are credible and whether the Crown’s actions have impacted those rights. As Binnie J. stated in Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) , 2005 SCC 69 at para 34 , [2005] 3 SCR 388, this is a “low threshold” where “[t]he flexibility lies not in the trigger … but in the variable content of the duty once triggered”.

While the assessment of whether the required threshold has been passed will not, in many cases, be an easy or meaningless task for the reviewing judge, it will generally be a far cry from the kind of analysis necessary to establish proof of an Aboriginal claim: Taku River Tlingit First Nation at para 25 .

This is because the judge’s task is not to finally determine the existence of Aboriginal rights or title but only to review whether a constitutional duty has been fulfilled: Chartrand v British Columbia (Forests, Lands and Natural Resource Operations) , 2015 BCCA 345 at para 68 , [2016] 1 WWR 58, quoting Huu-Ay-Aht First Nation v British Columbia (Minister of Forests) , 2005 BCSC 697 at para 94 , 33 Admin LR (4th) 123. [ 49 ] Accordingly, the existence of Aboriginal title or rights is not the key issue being litigated in the action commenced by MNS’s originating application.

Instead, the central question is if the Crown has acted consistently with its duty in the face of the asserted Métis’ Aboriginal title and rights. In this sense, an application for judicial review – whether brought by originating application or statement of claim – is “more about the manner of the Crown’s dealings with an Aboriginal group than the substantive outcome of those dealings”, being the determination of the claimed right or title ( Buffalo River Dene Nation v Saskatchewan (Energy and Resources) , 2015 SKCA 31 at para 43 , [2015] 7 WWR 82, emphasis in original).

The alleged existence of that underlying claim is necessary factual background to the application but not duplicative of it, since the core issue in the former is the recognition of rights, while the core issue in the latter relates to the preservation of land and resources while the process of determining whether the rights exist is ongoing: Haida Nation at para 33 ; Rio Tinto at para 33 ; Labrador Métis Nation v Canada (Attorney General) , 2006 FCA 393 at para 22 , 277 DLR (4th) 60; and Hupacasath First Nation v Canada (Foreign Affairs) , 2015 FCA 4 at para 102 , 379 DLR (4th) 737. [ 50 ] Reflecting the fact that the issues in the action commenced by the originating application are different than in the other two actions, the remedies that are claimed in them are not the same.

As a result, there is no risk of inconsistent outcomes. This is most clearly the case as between the originating application and the 1994 Action. This is because, as I have already explained, it is possible that MNS could successfully obtain a declaration that Saskatchewan has breached its duty to consult in the current application, even if the 1994 Action were to be resuscitated and ultimately fail. Saskatchewan essentially conceded as much when it agreed that it would not have brought the abuse application if the 1994 Action stood on its own.

Likewise, MNS could be unsuccessful in its attempt in the 2020 Action to have Saskatchewan’s policy declared unconstitutional in toto with regards to consultation with the Métis, but nevertheless succeed in the current application if the Crown’s actions are found to have breached the duty to consult in this specific instance. [ 51 ] The Chambers judge remarked that, while “a distinction can be drawn between an assessment of whether the asserted rights are credible and a final decision on whether those rights exist, the analysis required is the same ” (at para 7, emphasis added). This is not the case at all.

As stated in Haida Nation , “ [k]nowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate” (at para 37). As for the content of the duty to consult and accommodate, it “varies with the circumstances” but, in general terms, “the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” (at para 39).

Much jurisprudential water has flowed since this general direction was given – but one point that has remained uncompromised is that the question as to the existence and scope of the duty to consult is tested very differently than whether the underlying asserted substantive right exists at all.

I will have more to say about this in the context of the third issue in this appeal. [ 52 ] Later in his reasons, the Chambers judge appears to have recognized this point, when he said that a judge hearing MNS’s originating application “would necessarily have to evaluate the merit of the claim, including MNS’s claim for title to and commercial harvesting on the land”. He said, with reference to Haida Nation , that this is “because the extent of the duty to consult varies depending on the nature and strength of the claim” (at para 48).

What the Chambers judge failed to come to grips with is that, by its very nature, the evidentiary foundation necessary to support a duty to consult can be less robust than what would be required at the trial to prove that the asserted Aboriginal title or right exists. [ 53 ] In short, there is overlap in some aspects of the 1994 Action, the 2020 Action and the originating application. However, the key issues are different, as are the remedies that are claimed in each.

Accordingly, the Chambers judge’s conclusion that the inclusion of the impugned portions of MNS’s originating application constitutes an abuse of process is based on a misapprehension of the three proceedings and an associated error in principle. [ 54 ] In conclusion, the continuation of proceedings pursuant to MNS’s originating application, in its original form, is not an abuse of process. C.

Is an originating application an appropriate commencement document for MNS’s claim? [ 55 ] The question under this head is whether an originating application is an appropriate commencement document for MNS’s claim that Saskatchewan breached its duty to consult with it over the potential impact of the Permit on its asserted Aboriginal title to the Métis Claimed Land and its asserted Aboriginal rights to hunt, fish and trap for commercial purposes. [ 56 ] As reviewed earlier, the Chambers judge determined that it was not appropriate to continue with a hearing of the action commenced by MNS’s originating application in its original form, because there were material facts in dispute, which would render a

summary determination process ineffectual. While recognizing that an order could have been made to apply

Part 5 of The Queen’s Bench Rules to the action to help resolve these factual concerns, he concluded that this would not be appropriate given the existence of the 2020 Action. Central to these rulings was his conclusion that “actions commenced by originating notice are intended for claims that are suitable for

summary determination” (at para 96). With respect, this statement evinces an error in law. [ 57 ] I would begin my explanation of this conclusion by pointing out that an originating application is a document commencing an action . In this regard, Rule 3-49(1) identifies the types of actions that can be started in this way:

Actions started by originating application 3-49

(1) An action may be started by originating application if the remedy claimed is: (

a) the opinion or direction of the Court on a question affecting the rights of a person with respect to the administration of the estate of a deceased person or the execution of a trust; (

b) an order directing executors, administrators or trustees to do or abstain from doing any particular act with respect to an estate or trust for which they are responsible; (

c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation; (

d) the determination of rights that depend solely on the

interpretation of: (

i) a deed, will, contract or other instrument; or (ii) an enactment, order in council or municipal bylaw or resolution; (

e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges; (

f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust; (

g) the judicial review of a decision, act or omission of a person or body; (

h) for a remedy pursuant to the Canadian Charter of Rights and Freedoms ; or (

i) with respect to any matter where it is unlikely that there will be any material facts in dispute. [ 58 ] It would seem that the Chambers judge determined that, because Rule 3-49(1)(

i) provides that an originating application may be utilized “where it is unlikely that there will be any material facts in dispute” ( Chambers Decision at para 85, emphasis omitted), the use of this initiating procedure was only appropriate when the litigation does not require the determination of disputed material facts. However, while very often actions seeking the relief referred to in the other parts of the Rule may not involve disputed facts, nothing in the Rule limits its scope in this way.

To the contrary, on its face, elsewhere in the Rule, the types of actions that may be started by originating application are identified only by the remedy that the claimant is seeking. One type of claim that may be commenced by originating application is where “the remedy claimed is … the judicial review of a decision, act or omission of a person or body” (Rule 3- 49(1)(g)).

Of course, MNS’s request for judicial review of the Minister’s decision to issue the Permit falls precisely within this category of claim. [ 59 ] In Kelly Panteluk , Ottenbreit J.A. described an argument that an originating application was an inappropriate commencement document for a dispute involving contentious facts as being “patently specious” (at para 169).

In doing so, he pointed out many examples of situations where issues involving contested facts are resolved in the context of an action commenced in this manner. [ 60 ] The Queen’s Bench Rules specifically contemplate that evidence may be submitted and considered in support of an application (see Rule 3-49(4)(d); see also, Kelly Panteluk at para 168 ).

It is because an action commenced by way of originating application may involve contested facts that, at any time in an action begun in this way, “the Court may, on application, direct that all or any rules applying to an action started by statement of claim apply to the action started by originating application” (Rule 3-53).

The remedy in such a situation is not to strike the action, but to direct that appropriate procedures apply to it. [ 61 ] The Chambers judge seemingly recognized this when he observed that in “the normal case [where facts are contested], the court would consider converting the form of action”. However, without making reference to any authority, he concluded that, “given the existence of the 2020 Action, the better course is to strike the offending portions” ( Chambers Decision at para 97).

In doing this, he acted on the same error in principle that underpinned his conclusion that the commencement of the originating application with the impugned paragraphs in it constituted an abuse of the court’s processes. [ 62 ] I would end my analysis of this issue by observing that one oft-relied-upon use for judicial review by originating application, and analogous procedures under other provincial regimes, is to assert a claim that the Crown has breached its duty to consult with Aboriginal peoples. Such

summary determination procedures have been both adequate and appropriate to adjudicate these issues, despite the sometimes contested evidentiary background of such matters. I will give two examples only of this. [ 63 ] In Haida Nation , the litigants proceeded by petition under British Columbia’s Judicial Review Procedure Act , RSBC 1996, c 241 , s 2. As I understand it, that province’s rules of court distinguish actions commenced by petition and statement of claim, much the same way that The Queen’s Bench Rules distinguish actions commenced by originating application and statement of claim.

Yet, in Haida Nation , despite the “voluminous” evidence involved (at para 69), McLachlin C.J.C. found that, “while challenging, [adjudication] is not impossible” (at para 38). “Difficulties associated with the absence of proof and definition of claims are addressed by assigning appropriate content to the duty, not by denying the existence of a duty” (at para 37).

Similarly, in Beckman , the case “proceeded by way of an ordinary application for judicial review”, yet “[s]uch a procedure was perfectly capable of taking into account the constitutional dimension of the rights asserted by the First Nation” (at para 47). [ 64 ] For these reasons, in my respectful view, the Chambers judge erred in striking the impugned paragraphs from MNS’s originating application because their adjudication involved the assessment of disputed facts. This is not to say that it might not be appropriate for procedural orders to be made to assist in the resolution of the action.

Whether this is the case may depend on the evidentiary record that Saskatchewan files in response to the case that MNS has so far presented. This is an issue for a judge of the Court of King’s Bench to sort out at a later date.

V. CONCLUSION [ 65 ] The Chambers judge’s order striking paragraphs from MNS’s originating application was a final one. Leave to appeal from it was not required. [ 66 ] The Chambers judge erred when he found that the disputed paragraphs of MNS’s originating application were an abuse of process because they duplicated the 1994 Action and 2020 Action. He further erred by finding that an originating application was an inappropriate means to adjudicate the application insofar as it involved the matters referred to in the disputed paragraphs.

As a result, it was an error to strike these paragraphs from the application. For these reasons, I would allow MNS’s appeal. [ 67 ] I would also set aside the award of costs made by the Chambers judge in favour of Saskatchewan. In it is place, I would substitute an award of costs in favour of MNS in relation to the proceedings in the Court of Queen’s Bench taxed on the basis of Column 3 of the Queen’s Bench Tariff of Costs. MNS is also entitled to its taxable costs in this Court. These costs shall be taxed on Column 4 of the Tariff of Costs in the Court of Appeal. [ 68 ] I would add one footnote to all of this.

My conclusion that MNS’s originating application may proceed in its original form does not mean that it has established that Saskatchewan owed a duty to consult with respect to the impact of the Permit and associated exploration activities on all the rights it asserts. Rather, I have simply decided that MNS may advance the claims that it has identified in that commencement document by way of its originating application. “Leurer J.A.” Leurer J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Tholl J.A.” Tholl J.A.