The Supreme Court of Canada has opened the door to multi-jurisdictional aboriginal rights and title claims: Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani Utenam)*

In 2013, two Innu First Nations and several elected individuals (the “Innu”), filed suit in the Superior Court of Quebec against two mining companies responsible for a megaproject consisting of multiple open‑pit mines near Schefferville, Quebec and Labrador City, Newfoundland and Labrador, as well as port, railway and industrial facilities in Quebec and railway in both provinces.

In their originating application, the Innu assert a right to the exclusive use and occupation of the lands affected by the megaproject. They claim to have occupied, since time immemorial, a traditional territory that straddles the border between the provinces of Quebec and Newfoundland and Labrador. They allege that the megaproject was built without their consent, and invoke a host of environmental harms which have impeded their activities, depriving them of the enjoyment of their territory. The Innu seek a permanent injunction against the mining companies ordering them to cease all work related to the megaproject, $900 million in damages, and a declaration that the megaproject constitutes a violation of Aboriginal title and other Aboriginal rights recognized and affirmed by s. 35  of the Constitution Act, 1982 .

The mining companies and the Attorney General of Newfoundland and Labrador each filed a motion to strike from the Innu’s pleading portions of the claim over property situated in Newfoundland and Labrador and, therefore, fall under the jurisdiction of the courts of that province.  The Superior Court of Quebec dismissed the motions and the Quebec Court of Appeal affirmed the Superior Court’s judgment.

The Supreme Court of Canada held that the Superior Court of Quebec has jurisdiction over the entire claim. Fundamentally, the appeal goes to the heart of how civil proceedings involving aboriginal rights are carried out in this country. The ruling has implications for access to justice and the ability of Indigenous peoples to meaningfully assert their constitutional rights in the justice system.

Due to the complex nature of multi-jurisdictional claims, and the tension such claims present to our constitutional system in which Provinces have jurisdiction over lands, the court spent some time emphasizing that aboriginal rights, which include title, are sui generis in nature. The sui generis nature of section 35 rights provides a basis for considering claims beyond a province’s borders, because section 35 applies uniformly across the country. The Court confirmed that section 35 rights are neither real rights nor personal rights as defined in the civil law, nor a combination of the two, but legally distinct sui generis rights.

Although the provinces have no legislative jurisdiction over s. 35 rights, provincial courts adjudicate such rights frequently.   Therefore, the court also considered how reconciliation and the honour of the Crown can inform the determination of which court has jurisdiction over a s. 35  claim that straddles multiple provinces, and set out some guiding principles.

Access to Justice: in order to accommodate s. 35 claims that straddle multiple provinces, the majority found that 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.

Honour of the Crown: the honour of the Crown requires increased attention to minimizing costs and complexity when litigating s. 35  matters and courts should approach proceedings involving the Crown practically and pragmatically in order to effectively resolve these disputes.

Proportionality: 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 dissenting judgment would have allowed the appeal, and although the minority disagreed with the majority on a number of key issues, the minority also believed there existed access to justice barriers for aboriginal claimants.  As such, the dissenting opinion advocated for timely and cost‑effective resolution of transboundary Aboriginal rights claims within the structure of the Canadian legal system as a whole. Principles of federalism and provincial sovereignty do not preclude development by superior courts, in the exercise of their inherent jurisdiction, of innovative yet constitutionally sound solutions that promote access to justice. Superior court judges from different provinces can draw on their statutory jurisdiction — or, where necessary, their inherent jurisdiction — to sit together and hold a joint hearing on applications that have been brought in the superior courts of more than one province because they seek the recognition and protection of Aboriginal rights in different parts of a single traditional territory that straddles provincial borders. The minority believed that transboundary Aboriginal rights claim would stand a better chance of being resolved in an efficient, timely and cost‑effective manner if the superior court judges sit together for a single joint hearing arising from the joinder of the applications brought in each of the superior courts concerned.

 

*Woodward and Company represented the intervenors Kitigan Zibi Anishinabeg and Algonquin Anishinabeg Nation Tribal Council.