Abstract
This article analyses the tightly split decision of the Supreme Court of Canada in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), in which the Court was tasked with determining whether the Superior Court of Quebec had jurisdiction to hear a claim of Aboriginal title and rights extending to lands situated in the province of Newfoundland and Labrador. It argues that behind the Supreme Court’s divergences regarding the interpretation and application of the Civil Code of Quebec’s rules pertaining to the jurisdiction of Quebec authorities, reside competing conceptions of the place of Indigenous peoples’ rights in relation to the Canadian constitutional order, including with respect to federalism. Part 2 maps out the different sets of constitutional principles that guided the majority and dissenting judges in the adjudication of the jurisdictional issues at stake. Part 3 then shows how the majority and minority judges’ chosen constitutional lens infused their respective approaches to the characterization of Aboriginal title and rights under the civil law categories of rights and legal actions. Finally, Part 4 concludes that the Uashaunnuat decision does not offer a comprehensive, predictable, and constitutionally sound solution for the adjudication of Indigenous peoples’ transboundary land claims. Looking forward, and building on potential solutions advanced by the dissenting judges and Indigenous interveners, the article proposes that there is room in the Canadian constitutional framework to provide for accessible and effıcient remedies for the adjudication of Indigenous transboundary claims while also respecting the Canadian federal structure and the principle of comity between provincial courts.
Citation Information
Thériault, Sophie.
"Indigenous Peoples’ Transboundary Claims, Access to Justice, and the Canadian Constitutional Structure: The Uashaunnuat Case."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
104.
(2022).
DOI: https://doi.org/10.60082/2563-8505.1424
https://digitalcommons.osgoode.yorku.ca/sclr/vol104/iss1/2
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
References
1 Richard T. Ford, "Law's Territory (A History of Jurisdiction)" (1999) 97:4 Mich. L. Rev. 843. https://doi.org/10.2307/1290376
2 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), [2020] S.C.J. No. 4, 2020 SCC 4 (S.C.C.) [hereinafter "Uashaunnuat"].
3 In this article, the term "transboundary" is used to designate Indigenous land claims straddling provincial borders, rather than Indigenous land claims overlapping an international border. For a recent case involving an Aboriginal right claim across the Canada-United States border, see R. v. Desautel, [2021] S.C.J. No. 17, 2021 SCC 17 (S.C.C.). See also Mitchell v. Canada (Minister of National Revenue -M.N.R.), [2001] S.C.J. No. 33, [2001] 1 S.C.R. 911 (S.C.C.).
4 John A. Klain & Mario Levesque, "Revisiting the Labrador Boundary Decision to Include Indigenous Interpretations of the Regions" (2019) 53:1 Journal of Canadian Studies 123. https://doi.org/10.3138/jcs.2018-0007
5 Sébastien Boutet, "The Revival of Québec's Iron Ore Industry: Perspectives on Mining, Development, and History" in Arn Keeling & John Sandlos, ed., Mining and Communities in Northern Canada. History, Politics and Memory (Calgary: University of Calgary Press, 2015) 169, at 173. https://doi.org/10.1515/9781552388068-009
6 Uashaunnuat, at para. 4.
7 As specified by the Innu in their original pleadings, only the portions of Nitassinan affected by the IOC's megaproject are subject to this legal action: Uashaunnuat, at para. 8.
8 Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Companie minière IOC inc. (Iron Ore Company of Canada), [2016] J.Q. No. 14492, 2016 QCCS 5133 (Que. S.C.).
9 Procureur général de Terre-Neuve-et-Labrador v. Uashaunnuat (Innus de Uashat et de Mani-Utenam), [2017] J.Q. No. 15881, 2017 QCCA 1791 (Que. C.A.).
10 The majority opinion was signed by Wagner C.J.C. and Abella, Karakatsanis, Gascon and Martin JJ.
11 Civil Code of Quebec, CCQ-1991 [hereinafter "CCQ"].
12 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
13 Based on art. 1457 and on art. 976 CCQ.
14 Art. 3134 CCQ provides a residual rule for actions that cannot be classified as "real", "personal" or "mixed" (real and personal). The article reads as follow: "In the absence of any special provision, Québec authorities have jurisdiction when the defendant is domiciled in Québec." Art. 3148(1) CCQ provides that Quebec authorities have jurisdiction over "personal actions of a patrimonial nature" where "[t]he defendant has his domicile or his residence in Quebec."
15 The dissent was signed by Moldaver, Côté, Brown and Rowe JJ.
16 Uashaunnuat, at para. 153.
17 Art. 3152 CCQ reads as follow: "Quebec authorities have jurisdiction to hear a real action if the property in dispute is situated in Quebec." A contrario, and in light of the legislative history of this provision, Quebec authorities do not have jurisdiction to hear a real action if the property in dispute is situated in another province.
18 Joshua Nichols & Robert Hamilton, "In Search of Honourable Crowns and Legitimate Constitutions: Mikisew Cree First Nation v Canada" (2020) 70 U.T.L.J. 341; Mikisew Cree First Nation v. Canada (Governor General in Council), [2018] S.C.J. No. 40, [2018] 2 S.C.R. 765 (S.C.C.) [hereinafter "Mikisew Cree First Nation"]. See also Ainslie Pierrynowski, "When Aboriginal Rights Cross Provincial Borders: Examining Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani-Utenam)", Blogpost, U.T. Fac. L. Rev., online: https://www.utflr.ca/forum/uashaunnuat. https://doi.org/10.3138/utlj.2019-0115
19 In particular the factum filed by the Kitigan Zibi Anishinabeg and the Algonquin Anishinabeg Nation Tribal Council: Factum of the interveners, Kitigan Zibi Anishinabeg and Algonquin Anishinabeg Nation Tribal Council, SCC Court File No. 37912, at para. 19 [hereinafter "Factum Anishinabeg"].
20 Joshua Nichols & Robert Hamilton, "In Search of Honourable Crowns and Legitimate Constitutions: Mikisew Cree First Nation v Canada" (2020) 70 U.T.L.J. 341, at 343. https://doi.org/10.3138/utlj.2019-0115
21 The deep division within the Supreme Court regarding the different aspects of this case led the majority to make the following statement at the outset of its reasons: "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." (Uashaunnuat, at para. 15).
22 Uashaunnuat, at para. 1.
23 Uashaunnuat, at para. 17.
24 The majority described these rights as "a central part of the Canadian constitutional order": Uashaunnuat, at para. 21.
25 Constitution Act, 1867, (U.K), 30 & 31 Vict., c. 3 [reprinted in R.C.S. 1985, App. II, No. 5] [hereinafter "Constitution Act, 1867"]; Uashaunnuat, at para. 17.
26 Uashaunnuat, at paras. 22-23.
27 Haida Nation v. British Columbia (Minister of Forests), [2004] S.C.J. No. 70, at para. 32, [2004] 3 S.C.R. 511 (S.C.C.) [hereinafter "Haida Nation"]. See also Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] S.C.J. No. 14, at para. 66, [2013] 1 S.C.R. 623 (S.C.C.) [hereinafter "Manitoba Metis Federation"].
28 Manitoba Metis Federation, at paras. 74-76; Haida Nation, at para. 39. In Manitoba Metis Federation, McLachlin C.J.C. and Karakatsanis J., for the majority, affirmed that "[i]n the constitutional context, this Court has recognized that the honour of the Crown demands that s. 35(1) be interpreted in a generous manner, consistent with its intended purpose." (at para. 76).
29 Uashaunnuat, at para. 50.
30 Uashaunnuat, at para. 51. The Supreme Court has insisted several times on the imperative for the courts and litigants to approach proceedings concerning Indigenous peoples' rights pragmatically, and with flexibility: see Tsilhqot'in Nation v. British Columbia, [2014] S.C.J. No. 44, at paras. 19-23, [2014] 2 S.C.R. 257 (S.C.C.) [hereinafter "Tsilhqot'in"]; Haida Nation, at paras. 12-15.
31 Regarding this principle in the context of the interpretation of the private international law rules set out in Book Ten of the CCQ, see Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] S.C.J. No. 51, at para. 23, [2002] 4 S.C.R. 205 (S.C.C.) [hereinafter "Spar Aerospace"].
32 Uashaunnuat, at para. 16.
33 Uashaunnuat, at para. 16.
34 R. v. Côté, [1996] S.C.J. No. 93, [1996] 3 S.C.R. 139 (S.C.C.). https://doi.org/10.1177/003463739609300111
35 Uashaunnuat, at para. 64.
36 Brian Slattery, "The Constitutional Dimensions of Aboriginal Title" (2015) 71 Sup. Ct. L. Rev. (2d) 45. https://doi.org/10.60082/2563-8505.1305
37 Uashaunnuat, at para. 65.
38 Uashaunnuat, at para. 49; Tsilhqot'in, at para. 69; Delgamuukw v. British Columbia, [1997] S.C.J. No. 108, at para. 114, [1997] 3 S.C.R. 1010 (S.C.C.) [hereinafter "Delgamuukw"].
39 Tsilhqot'in, at para. 89; Haida Nation, at para. 25. This position is consistent with the reasoning from recent lower courts decisions according to which Indigenous peoples are not required to obtain a formal recognition of their pre-existing Aboriginal title and rights prior to making a claim against third parties whose activities are infringing upon these rights. In the Uashaunnuat case, for instance, the IOC and QNS&L filed a previous motion to strikearguing that the Innu's action should be rejected since their Aboriginal title and rights have yet to be formally recognized by state law. The motion was dismissed: Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), [2014] J.Q. no 10221, 2014 QCCS 4403 (Que. S.C.), leave to appeal refused [2015] J.Q. no 5, 2015 QCCA 2 (Que. C.A.), leave to appeal refused [2015] S.C.C.A. No. 80 (S.C.C.). See also Saik'uz First Nation v. Rio Tinto Alcan Inc., [2015] B.C.J. No. 694, 2015 BCCA 154 (B.C.C.A.), leave to appeal refused [2015] S.C.C.A. No. 235 (S.C.C.).
40 Uashaunnuat, at para. 49.
41 Uashaunnuat, at para. 49.
42 Uashaunnuat, at para. 214.
43 Uashaunnuat, at paras. 77, 213.
44 Uashaunnuat, at paras. 115, 210. See Club Resorts Ltd. v. Van Breda, [2012] S.C.J. No. 17, at para. 21, [2012] 1 S.C.R. 572 (S.C.C.) [hereinafter "Van Breda"]. On the principle of federalism as "a fundamental and organizing principle of the Constitution", see R. v. Comeau, [2018] S.C.J. No. 15, at para. 78, [2018] 1 S.C.R. 342 (S.C.C.); Caron v. Alberta, [2015] S.C.J. No. 56, at para. 5, [2015] 3 S.C.R. 511 (S.C.C.); Reference re Secession of Quebec, [1998] S.C.J. No. 61, at para. 32, [1998] 2 S.C.R. 217 (S.C.C.).
45 Uashaunnuat, at para. 246.
46 This idea is loosely inspired by Margarida Garcia, "Le concept de 'droit de la personne' et son observation théorique et empirique" (2015) 89:1 Dr. et Soc. 171. https://doi.org/10.3917/drs.089.0171
47 Uashaunnuat, at para. 45.
48 Uashaunnuat, at para. 62. To the argument that the adjudicative jurisdiction of the provincial courts over property cannot exceed Quebec's legislative jurisdiction on property within the province, as provided by s. 92(13) of the Constitution Act 1867, the majority responds that "[t]his argument cannot prevail in the s. 35 context because the latter concerns sui generis rights, not real rights as conceived in the civilian imagination." (at para. 63).
49 Mikisew Cree First Nation, at paras. 70, 88 (Wagner C.J.C. and Abella and Martin JJ.). See also Tsilhqot'in, at para. 141.
50 Joshua Nichols & Robert Hamilton, "In Search of Honourable Crowns and Legitimate Constitutions: Mikisew Cree First Nation v Canada" (2020) 70 U.T.L.J. 341, at 347-348, referring to Robert Hamilton & Joshua Nichols, "The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult" (2019) 56:3 Alta. L. Rev. 729. https://doi.org/10.3138/utlj.2019-0115
51 Uashaunnuat, at para. 16 (Wagner C.J.C. and Abella and Martin JJ.) and para. 75 (Brown and Rowe JJ.). See also Van Breda, at para. 15. While the majority does not specifically justify the application of these rules, which were applied in the lower courts' judgments, and recognized as the rules applicable to the dispute by the Innu, the dissenting judges, in reaction to the Attorney General of Canada's argument that the appeal should be decided on the basis of superior courts' inherent jurisdiction over actions for the recognition and protection of constitutional rights, justified at length the applicability of private international law rules by emphasizing the distinction between the inherent subject-matter jurisdiction of superior courts (jurisdiction rationae materiae) from their territorial jurisdiction (jurisdiction rationae personae vel loci), the latter being necessarily limited to a province's territory (see Uashaunnuat, at paras. 98-113). An analysis of the respective value of the inherent jurisdiction approach proposed by the Attorney General of Canada and the private international law approach applied by the Supreme Court in Uashaunnuat is beyond the scope of this short article.
52 Art. 3134-3154 CCQ.
53 Art. 3141-3151 CCQ set out specific rules pertaining to the jurisdiction of Quebec authorities in relation to "Personal actions of an extrapatrimonial and family nature" and "Personal actions of a patrimonial nature", whereas art. 3152-3154 CCQ apply to "Real and mixed actions". In civil law, a "personal action" is an "[a]ction for the purpose of acknowledging the existence or the protection of a personal right (a claim), whatever its source or origin (a contract, a quasi-contract, a delict, a quasi-delict) [. . .]", while a "real action" is an "[a]ction, remedy, to have a real right, in rem, acknowledged or protected (right of ownership, servitude, usufruct, mortgage). [. . .]". A "mixed action" is an "[a]ction both to have a real right acknowledged and to have an obligation performed. [. . .]". See Uashaunnuat, at para. 58 (Abella and Karakatsanis JJ.), citing Gérard Cornu, ed., Vocabulaire juridique, 12th ed. (Paris: PUF, 2018), at 26-28.
54 Art. 3134 CCQ.
55 Uashaunnuat, at para. 19. See also Kirsten Anker, "Translating Sui Generis Aboriginal Rights in the Civilian Imagination" in Alexandra Popovici, Lionel Smith & Régine Tremblay, eds., Les intraduisibles en droit civil (Montreal: Thémis, 2014), at 4.
56 Uashaunnuat, at para. 20 (Wagner C.J.C. and Abella and Martin JJ.) and at para. 126 (Brown and Rowe JJ.).
57 Uashaunnuat, at para. 29.
58 Uashaunnuat, at paras. 29-31.
59 Uashaunnuat, at para. 30.
60 Uashaunnuat, at para. 30. See also Tsilhqot'in, at para. 72; Delgamuukw, at paras. 112-115.
61 Uashaunnuat, at para. 35. See also Tsilhqot'in, at para. 72: "It is this relationship that makes Aboriginal title sui generis or unique. Aboriginal title is what it is - the unique product of the historic relationship between the Crown and the Aboriginal group in question."
62 Uashaunnuat, at para. 35.
63 See Uashaunnuat, at para. 36. The majority analysis regarding the sui generis nature of Aboriginal rights and title relies significantly on Kirsten Anker, "Translating Sui Generis Aboriginal Rights in the Civilian Imagination" in Alexandra Popovici, Lionel Smith & Régine Tremblay, eds., Les intraduisibles en droit civil (Montreal: Thémis, 2014). For another perspective, see Sylvio Normand, "La qualification du titre ancestral des peuples autochtones au regard du droit civil" (2019) 53:2 R.J.T.U.M. 221, which analogizes Aboriginal title to the institution of "innomate property rights" in civil law.
64 Uashaunnuat, at paras. 59-61. It is worth noting that while favourable to the Innu in this case, the majority's refusal to characterize Aboriginal title and rights as "real rights" under the CCQ could have significant implications for Indigenous peoples in future litigation, by depriving them of potential private law remedies for the violation of their land rights by private parties: See Ghislain Otis, "La revendication d'un titre ancestral sur le domaine privé au Québec" (2021) 62:1 Les Cahiers de Droit 277, at 300. The author argues, however, that art. 6 of the Quebec Charter of Human Rights and Freedoms, CQLR, c. C-12, which provides that "Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law", in conjunction with art. 49(1) remedies, could offer a protection to Indigenous peoples' land rights.
65 Uashaunnuat, at para. 133.
66 Uashaunnuat, at para. 134.
67 Uashaunnuat, at para. 136.
68 Uashaunnuat, at para. 136, citing and translating Henri Battifol & Paul Lagarde, Droit international privé, 7th ed., vol. 1 (Paris: LGDJ, 1981), at No. 297.
69 Uashaunnuat, at para. 140. In particular, the minority insisted that Aboriginal title - a "site-specific right" - is "a beneficial interest in the land", including "the right to use it, enjoy it and profit from its economic development". The minority also refers to the passages in Tsilhqot'in, at paras. 73-75, where the Court compares the incidents of Aboriginal title to the ownership rights associated with fee simple.
70 Uashaunnuat, at para. 203.
71 Uashaunnuat, at para. 139. In previous decisions, the Supreme Court, in the context of litigation brought against a province rather than private parties, suggested that a declaratory judgement recognizing Aboriginal title, considering the "proprietary nature" of this right, would be enforceable against both the government and third parties seeking to use the land: see Tsilhqot'in, at paras. 76, 97; Delgamuukw, at para. 185.
72 Uashaunnuat, at paras. 274-280. Regarding the question of Crown immunity, the majority held that "While the Attorney General of Newfoundland and Labrador has raised a potentially live issue in this regard, we agree [with the Quebec Court of Appeal] that it does not need to be resolved at this stage of the proceedings." (at para. 71). For his part, the motions judge held that the doctrine of Crown immunity was ill-fitting in the context of a s. 35 transboundary claim (Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), [2016] J.Q. No. 14492, at para. 125, 2016 QCCS 5133 (Que. S.C.). The question of the applicability of the Crown immunity principle in the context of this case lies beyond the scope of this article.
73 See online: https://www.riotinto.com/news/releases/2020/Uashat-mak-Mani-utenamand-Matimekush-Lac-John-communities-sign-reconciliation-and-collaboration-agreementwith-IOC.
74 Uashaunnuat, at para. 59. In this case, it was determined that the Quebec Superior Court had jurisdiction to hear the case since the defendant mining companies are headquartered in Montreal, Quebec (art. 3134 CCQ). In its reasons, the majority stressed that the Innu "seek no relief against the Crown of Newfoundland and Labrador" and "admit that any conclusions in respect of their s. 35 rights will not bind" the province: Uashaunnuat, at para. 72. The outcome of the dispute would also have differed if the defendant mining companies were headquartered in different provinces.
75 Tsilhqot'in, at paras. 7, 12; Haida Nation, at para. 14.
76 Uashaunnuat, at paras. 66-67. In Quebec, the doctrine of forum non conveniens is governed under art. 3135 CCQ, which reads as follow: "Even though a Québec authority has jurisdiction to hear a dispute, it may, exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another State are in a better position to decide the dispute." It is worth noting that the motion judge, in the Uashaunnuat case, refused to decline its jurisdiction on the basis of this doctrine: Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), [2016] J.Q. No. 14492, at paras. 104-110, 2016 QCCS 5133 (Que. S.C.). This conclusion was not challenged in appeal.
77 Uashaunnuat, at para. 69. These considerations are based on the list of factors set out in Spar Aerospace, at para. 71.
78 United Nations on the Rights of Indigenous Peoples, A/RES/61/295, art. 40. See also art. 32.
79 On June 21, 2021, Bill C-15, An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples, received royal assent. According to art. 5 of the Act, "The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration."
80 Restoule v. Canada (Attorney General), [2018] O.J. No. 6879, at para. 603, 2018 ONSC 7701 (Ont. S.C.J.) [hereinafter "Restoule"].
81 Kwakiutl Nation v. Canada (Attorney General), [2006] B.C.J. No. 2106, at para. 26, 2006 BCSC 1368 (B.C.S.C.).
82 Endean v. British Columbia, [2016] S.C.J. No. 42, [2016] 2 S.C.R. 162 (S.C.C.) [hereinafter "Endean"].
83 Endean, at paras. 5-10.
84 Endean, at paras. 24, 59-62.
85 Factum Anishinabeg, at 10.
86 Factum Anishinabeg, at 10. The interveners also suggest specific guidance on "a consolidated disclosure process", in addition to "hearings in one or more jurisdictions by one judge". We would add that where an Indigenous group, like the Innu, has French as a colonial language, guidance regarding the language of the proceedings as well as translation costs would also be warranted. Regarding the ethical obligations of government lawyers in the context of s. 35 proceedings, see Andrew Flavelle Martin & Candice Telfer, "The Impact of the Honour of the Crown on the Ethical Obligations of Government Lawyers: A Duty of Honourable Dealing" (2018) 41:2 Dal. L.J. 443.
87 Factum Anishinabeg, at 10. For precedents in that regard, see Restoule, at paras. 7-9; Tsilhqot'in Nation v. British Columbia, [2007] B.C.J. No. 2465, at para. 11, 2007 BCSC 1700 (B.C.S.C.).
88 See Tsilhqot'in, at paras. 10-18, 25, 69; Delgamuukw, at para. 144; R. v. Sparrow, [1990] S.C.J. No. 49, [1990] 1 S.C.R. 1075, at 1103 (S.C.C.). See also John Borrows, Freedom & Indigenous Constitutionalism (Toronto: U of T Press, 2016), at 14-142; Shiri Pasternak, "Jurisdiction and Settler Colonialism: Where Do Laws Meet?" (2014) 29:2 C.J.L.S. 145.
