When Aboriginal Rights Cross Provincial Borders: Examining Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam)

Ainslie Pierrynowski, 2L, Volume 79 Articles Editor

Source: Iron Ore Company of Canada

When an Aboriginal title claim extends across provincial borders, where do claimants litigate? This question arose in the February 2020 Supreme Court of Canada case Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 (CanLII) (Uashaunnuat). The Supreme Court’s decision, which saw a divided 5:4 bench, has significant implications for the courts’ understanding of federalism, access to justice, and the nature of Aboriginal title. 

Background

The Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John are First Nations. Their traditional territories straddle the Quebec-Newfoundland and Labrador border. The Innu assert a right to exclusive use and occupation of these lands. In the early 1950’s, two companies initiated a vast mining project spanning lands subject to the Innu claims in both provinces. The project continues to expand today (Uashaunnuat at paras 2-4).

Procedural History

In 2013, the Innu filed suit against the mining companies in the Superior Court of Quebec. The Innu claimed that the companies began the mining project without the Innu’s consent. Moreover, they alleged that the mining project harmed the environment and prevented the Innu from moving freely through the territory. The Innu sought a permanent injunction, $900 million in damages, and a declaration that the mining project infringed Aboriginal title and other Aboriginal rights (Uashaunnuat at paras 5-7) [1].

The mining companies filed a motion to strike the portions of the Innu’s claim regarding lands in Newfoundland and Labrador, arguing that Quebec courts did not have jurisdiction to adjudicate these claims. The Attorney-General of Newfoundland and Labrador filed a declaration of voluntary intervention and its own motion to strike (Uashaunnuat at para 9; see also Iron Ore Company of Canada at para 8).

Nonetheless, the lower courts found that Quebec courts had jurisdiction to decide all the claims (Iron Ore Company of Canada; see also Procureur général de Terre-Neuve-et-Labrador c Uashaunnuat (Innus de Uashat et de Mani-Utenam), 2017 QCCA 1791 (CanLII). The Attorney-General of Newfoundland and Labrador appealed this decision to the Supreme Court of Canada. 

The Supreme Court of Canada Decision

The Supreme Court decision hinged on the nature of Aboriginal rights and their relationship to Canadian law. The Civil Code of Quebec provides that, in general, Quebec courts have jurisdiction over a matter if the defendant is domiciled in Quebec. However, Quebec courts only have jurisdiction over real actions if the property in dispute is in Quebec (a real action refers to a legal action founded on a real right, meaning a right relating to real property). Therefore, the Supreme Court needed to determine whether Aboriginal title constituted a real right (Uashaunnuat at para 18).  

The majority held that Aboriginal title was not a real right. Accordingly, Quebec courts had jurisdiction to decide all the Innu’s claims. In particular, the majority found that Aboriginal title is distinct from both civil law and common law notions of property. Aboriginal title is collective and exists for the benefit of present as well as future generations, which limits the alienability and potential uses of the land. Moreover, disputes involving Aboriginal title must take into account Indigenous perspectives.

Conversely, the dissent determined that Aboriginal title is a real right. The dissent wrote that Aboriginal title confers the right to use, occupy, possess, and otherwise set the agenda for the land. Additionally, Aboriginal title is enforceable against the state and other private parties. For these reasons, the dissent concluded that the dispute was a real action and therefore Quebec courts only had jurisdiction over some of the claims. 

Analysis

The split between the majority and the dissent seemingly stems from two intersecting concepts: federalism and access to justice.

The majority noted that litigating the Innu’s claims in multiple jurisdictions could entail prohibitive costs for the Innu and might produce inconsistent judgements. The majority connected these concerns to the Honour of the Crown. The Honour of the Crown is a legal concept arising from the Crown’s assertion of sovereignty over Indigenous peoples’ traditional territories. It requires the Crown to act honourably in its interactions with Indigenous people (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 (CanLII) at paras 17, 25). When litigating disputes regarding Aboriginal rights, the majority wrote, “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…[and] the honour of the Crown requires increased attention to minimizing costs and complexity” (Uashaunnuat at para 50).

The dissent placed significant weight on provincial sovereignty and federalism. According to the dissent, allowing a single superior court to adjudicate a transborder Aboriginal rights claim implies that the provinces are “(at best) administrative units or (at worst) inconvenient technicalities,” contrary to the principles of Canadian federalism (Uashaunnuat at para 241). Further, allowing Quebec courts to hear claims relating to territories in another province could produce an unclear outcome, rather than promoting access to justice, since such a declaration’s “reach is unclear and…validity is questionable, thus sowing confusion and uncertainty” (Uashaunnuat at para 273). Instead, the dissent recommended adjudicating the Innu’s claim in a single joint hearing where superior court judges from the affected provinces sit together. While acknowledging the unique nature of Aboriginal rights, the dissent stated that these rights must sit within Canada’s existing constitutional framework. 

Indeed, the 5 to 4 split in this case reflects the bench’s conflicting perspectives as to how Canada’s Constitutional structure ought to accommodate Aboriginal rights claims. This disagreement recalls the divided bench two years earlier in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 (CanLII), where the Court was split as to whether legislative decisions might give rise to a duty to consult Indigenous communities. 

Looking Ahead

This case has meaningful implications for several actors. First, the decision shows that when it comes to determining transboundary Aboriginal rights claims or transboundary class actions, in general, more accessible mechanisms are needed so that rights claimants do not need to initiate proceedings in multiple jurisdictions. Indeed, the need to address concerns of access to justice with respect to transboundary proceedings has recently been on legislative agendas. See, for example, Ontario’s 2020 amendments to the Class Proceedings Act (schedule 4 of Bill 161, Smarter and Stronger Justice Act, 2020, see especially ss. 2, 3, 6 and 8). The Act was, inter alia, amended to take into account multi-jurisdictional class proceedings. Legislative assembly debates (February 19, 2020; June 12, 2020; June 24, 2020) suggest that these changes aim to avoid unnecessary and costly duplicative proceedings – the same concerns raised by both the majority and the dissent in Uashaunnuat (see paras 52 and 216).   

Second, the Uashaunnuat decision could have important implications not only for Aboriginal rights claims crossing provincial borders, but also for those crossing national borders. Recently, in R v Desautel, 2019 BCCA 151 (CanLII) (Desautel), the British Columbia Court of Appeal held that the Sinixt, whose traditional territory straddles the United States-Canada border, have the Aboriginal right to hunt in an area of southern British Columbia. The Court found that this right extends to Sinixt who are not Canadian citizens and on October 24, 2019, the Crown was granted leave to appeal to the Supreme Court of Canada. When read together with Uashaunnuat, this case raises interesting questions about how transboundary Aboriginal rights in an international setting should be treated. If Aboriginal rights may extend to non-Canadian members of Indigenous communities, where should disputes involving Aboriginal rights which straddle international borders be litigated? Should Aboriginal rights claimants, in the interest of access to justice, be able to litigate disputes entirely in an American court even though the rights at issue cross Canada’s borders? Or is the minority’s suggestion of multijurisdictional joint hearings a better alternative? It will be interesting to see how the Supreme Court applies the Uashaunnuat decision in future transnational contexts and to see just how far concerns about access to justice and the need to avoid duplicative proceedings will go.

Notes

[1] See also the facts as outlined in lower decisions: Uashaunnuat (Innus de Uashat et de Mani-Utenam) c Compagnie minière IOC inc (Iron Ore Company of Canada), 2016 QCCS 1958 (CanLII) at paras 8-18; Uashaunnuat (Innus de Uashat et de Mani-Utenam) c Compagnie minière IOC inc (Iron Ore Company of Canada), 2016 QCCS 5133 (CanLII) at paras 3-5 (Iron Ore Company of Canada)).