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Richard Wagner

SCC affirms First Nations can sue in Quebec for alleged harms to lands straddling N.L., Quebec

Friday, February 21, 2020 @ 4:42 PM | By Cristin Schmitz

Last Updated: Monday, February 24, 2020 @ 8:38 AM

In a groundbreaking private international law judgment concerning the adjudication of constitutionally protected s. 35 Aboriginal rights, the Supreme Court of Canada has affirmed that the Quebec Superior Court does have jurisdiction to decide all the claims brought against two Montreal-based mining companies for alleged harms committed in the traditional territories of two Innu First Nations — even though some of the Innu’s claims relate to land in Newfoundland and Labrador.

On Feb. 21, the top court split 5-4 to dismiss the appeal of the Newfoundland and Labrador Crown (which was supported by the intervener mining companies) from a 2017 decision of the Quebec Court of Appeal rejecting their preliminary motions to strike the First Nations’ claims related to property in Newfoundland and Labrador that the Innu say is part of their traditional territories straddling the border between Quebec and Newfoundland and Labrador: Newfoundland and Labrador (A.G.) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam) 2020 SCC 4.

The Supreme Court’s majority held, as did the Quebec courts below, that the Quebec Superior Court has jurisdiction over the Innu’s entire claims, including those related to lands in Newfoundland.

James O'Reilly, O'Reilly & Associés

James O’Reilly of Montreal’s O'Reilly & Associés, who with Jean-François Bertrand and Marie-Claude André-Grégoire represented the Innu of Uashat and of Mani-Utenam and some other Innu parties, said his clients are “very, very pleased” with the judgment which comes after “a long, long struggle.” Both the majority and minority provide helpful case law reviews on the nature and extent of Aboriginal title and Aboriginal rights, he said. “Perhaps most importantly this decision means that where traditional lands cross provincial boundaries, the Aboriginal peoples don’t have to institute two different actions — one in one province, and the other in another province.”

The majority judgment also “states pretty clearly that you have to take into account the history, and the very particular nature, of Aboriginal title and Aboriginal rights when you’re dealing with matters which are outside of the law of property — in this case private international law,” O’Reilly explained. “And, in essence, [the majority] says that even though the provinces are sovereign in their territories, and the courts of the provinces basically have the jurisdiction to deal with matters within their province, when it comes to Aboriginal title or Aboriginal rights with historical foundations prior to the founding of the country and the constitution of provinces, then the question becomes whether provincial sovereignty trumps Aboriginal title or Aboriginal rights and in this particular case, when it comes to access to the courts of the province the [majority] said…‘No,’ ” he said. “ ‘Aboriginal title, or Aboriginal rights, trumps the issue of provincial sovereignty and jurisdiction of courts.’ So that’s extremely important in terms of federalism,” O’Reilly said. “In my view, it means that federalism very much has to take into account the unique constitutional status of Aboriginal peoples and their rights.”

O’Reilly told The Lawyer’s Daily the judgment helps the Innu, not only in their ongoing discussions with the defendant mining companies about a possible benefit-sharing agreement, but also opens the door to litigating in Quebec against Hydro Quebec for a share of revenue from the Churchill Falls hydro-development project built on traditional Innu territory in Newfoundland and Labrador.

In a statement released after the ruling, the Government of Newfoundland and Labrador noted that it was continuing to review the lengthy decision which “is not a determination of the merits of the Quebec Innu claim in Labrador, and the Supreme Court made no comments respecting the strength of such claims. This is a dispute between the Quebec Innu and a mining company. The Innu have admitted that the decision they seek from the Quebec courts will not bind the Newfoundland and Labrador Crown.”

Chief Justice Richard Wagner

The top court ruled that the Innu’s suit is properly characterized as a “non-classical mixed action” that involves a request for court recognition of a sui generis right (a declaration of Aboriginal title) and a personal aspect — the performance of various obligations related to failures to respect that right (damages in delict and neighbourhood disturbances).

The majority held that s. 35 Aboriginal and treaty rights are neither real rights nor personal rights, as defined in the civil law — nor are they a combination of the two. Rather they are legally distinct unique rights.

Article 3148 of the Civil Code of Quebec (CCQ) grants Quebec authorities jurisdiction over personal actions of a patrimonial nature where the defendant is domiciled in Quebec. With respect to the aspects of the Innu’s claim that relate to the recognition of a sui generis right, such as a s. 35 right, the CCQ does not include any special provision to establish the jurisdiction of Quebec authorities in such circumstances. Therefore, art. 3134, which states that in “the absence of any special provision, Québec authorities have jurisdiction when the defendant is domiciled in Québec”, applies, the majority reasoned.

Justice Rosalie Silberman Abella

The majority concluded that since both mining companies are headquartered in Montreal, Quebec’s courts have jurisdiction over the personal and the sui generis aspects of the Innu’s claims, pursuant to art. 3148 and art. 3134.

The majority said that this outcome is consistent with the principle of access to justice, and with upholding the honour of the Crown, a principle which underlies the rights recognized and affirmed by s. 35 of the Constitution Act, 1982.

“This appeal raises questions of fundamental importance to the way civil proceedings involving Aboriginal rights are carried out in this country,” Chief Justice Richard Wagner and Justices Rosalie Silberman Abella and Andromache Karakatsanis wrote, on behalf also of Justices Clément Gascon and Sheilah Martin.

“It has implications for access to justice and the ability of Indigenous peoples to meaningfully assert their constitutional rights in the justice system,” they observed. “A balance must be struck between the different principles at play, keeping in mind the unique history and nature of Aboriginal rights in Canada.”

Justice Andromache Karakatsanis

The majority went on to reason that “in the context of s. 35 claims that straddle multiple provinces, access to justice requires that jurisdictional rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their constitutional rights, including their traditional rights to land. Moreover, the honour of the Crown requires increased attention to minimizing costs and complexity when litigating s. 35 matters,” the majority remarked. “Where a claim of Aboriginal rights or title straddles multiple provinces, requiring the claimant to litigate the same issues in separate courts multiple times would erect gratuitous barriers to potentially valid claims. This would be particularly unjust when the rights claimed pre‑date the imposition of provincial borders on Indigenous peoples. The later establishment of provincial boundaries should not be permitted to deprive or impede the right of Aboriginal peoples to effective remedies for alleged violations of these pre‑existing rights.”

The majority pointed out that although provinces have no legislative jurisdiction over s. 35 rights, their courts certainly adjudicate them. “Adjudicative jurisdiction over property outside of the province can be conferred in the s. 35 context because it concerns sui generis rights, not real rights, and it operates uniformly across Canada,” the majority said. “The determination of whether a claimed Aboriginal or treaty right enjoys constitutional protection under s. 35 is a matter of constitutional law.”

Justice Russell Brown

In a 123-paragraph dissent co-written by Justices Russell Brown and Malcolm Rowe, backed by Justices Michael Moldaver and Suzanne Côté, the minority held that the Newfoundland attorney general’s motion to strike allegations should be allowed in part. They said it should be ordered that the conclusions of the Innu’s motion to institute proceedings that are declaratory or injunctive in nature, and that relate to the Innu’s traditional territory or to the megaproject, be amended so that they apply only to acts, activities or rights within Quebec’s territory.

The minority held that Aboriginal or treaty rights are real rights for the purposes of private international law (a real action is an action through which a person seeks the recognition or protection of a real right). “Because Aboriginal title and other Aboriginal or treaty rights are real rights for the purposes of private international law, it necessarily follows that, in this case, the aspect of the Innu’s action whose purpose is to have such rights recognized and protected constitutes a real action or, at best, a mixed action falling under Division III of Chapter II of Title Three of Book Ten of the CCQ,” Justices Brown and Rowe wrote. “According to well‑established jurisprudence, Quebec authorities lack jurisdiction to hear a real action if the property in dispute is situated outside Quebec.”

Justice Malcolm Rowe

The minority noted it was aware of the practical difficulties faced by Indigenous peoples of Canada who seek to claim Aboriginal rights in a single traditional territory that straddles provincial borders.

“However, Aboriginal rights exist within the limits of Canada’s legal system, which means that Aboriginal rights claims before the courts must not go beyond what is permitted by Canada’s legal and constitutional structure.”

The minority contended that “finding that the Quebec Superior Court has jurisdiction to issue a declaration recognizing Aboriginal rights in the part of the traditional territory that is situated in Newfoundland and Labrador would have serious consequences for Canadian federalism. Far from promoting access to justice or reconciliation with Indigenous peoples, it would lead to increased litigation and delays, as well as confusion and loss of confidence in our justice system.”

For its part, the majority commented, in an unusual statement, that “there are several aspects of the content of the dissent with which we disagree, but it is not the general practice in this Court for the majority to engage in a point by point refutation of dissenting reasons. Consequently, the fact that we do not mention any particular point raised in the dissent should not be taken as our agreeing with it.”

According to the Supreme Court’s judgment, the Innu went to Quebec Superior Court in 2013 to sue Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company Inc. — Montreal-based companies which in the early 1950s undertook the first phase of what has come to be known as the “IOC megaproject.” That project, which is still expanding, includes multiple open-pit mines formerly operated near Schefferville, Que.; nine open-pit mines and related facilities near Labrador City, N.L.; port, railway and industrial facilities in Sept-Îles, Que.; and more than 600 kilometres of railway winding through both provinces.

The Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John , along with chiefs and councillors representing their families, bands and nations, say the project was developed without their required consent and are claiming: $900 million in damages; a permanent injunction ordering the two companies to stop all work related to the IOC megaproject; and a declaration that the IOC megaproject violates their Aboriginal title and other constitutionally guaranteed s. 35 Aboriginal rights, including their rights to hunt, fish and trap on what the plaintiffs claim is their traditional territory, Nitassinan, which the Innu have occupied since time immemorial.

Arguing private international law principles, the mining companies and the attorney general of Newfoundland and Labrador urged below in their failed motions to strike that as the Innu’s claims are based on Aboriginal title — which they said is a real right — the parts of the Innu claims concerning real rights over property situated in Newfoundland and Labrador fell under the exclusive jurisdiction of the courts of that province.

Photo of Chief Justice Richard Wagner by Supreme Court of Canada Collection
Photo of Justice Rosalie Silberman Abella by Phillipe Landreville
Photo of Justice Andromache Karakatsanis by David Balfour Photography
Photo of Justices Russell Brown and Malcolm Rowe by Andrew Balfour Photography

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