Case Brief: Newfoundland and Labrador (Attorney General) v. Uashaunnuat et al., SCC 37912
John Gailus and Scott Constantine
Summary
The Supreme Court of Canada has decided that members of a group of Innu First Nations with Aboriginal rights and title claims straddling the border between Quebec and Newfoundland and Labrador may bring their claim solely in the courts of Quebec, without bringing a separate action in the courts of Newfoundland and Labrador.
The court also clarified the law of Aboriginal rights and title, emphasizing its sui generis (entirely unique) nature that cannot be equated with similar concepts of real property under either the Civil Code of Quebec or Canadian common law jurisprudence.
What This Case Is About
At the heart of this claim are two distinct First Nations: the Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John (the “Innu”). The Innu claim that priot to and after European contact, they have occupied a traditional territory called the Nitassinan that straddles the border between the provinces of Quebec and Newfoundland and Labrador.[1]
In the early 1950s, the Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company Inc. (the “mining companies”) began the first phase of a large-scale “megaproject” in the region, involving numerous open-pit mines and hundreds of kilometres of railway.[2] The project continues to expand.[3]
In 2013, the Innu filed suit against the mining companies in the Superior Court of Quebec.[4] They asserted a right to the exclusive use and occupation of the lands affected by the megaproject, including the rights to hunt, fish, and trap.[5] They allege that the megaproject was built without their consent, that there were environmental harms that deprived them of the enjoyment of their territory, and that the mining companies implemented discriminatory policies and prevented the Innu from circulating freely throughout their territory.
What the Court Found
The case focussed on the distinction in the common law and Quebec civil law between “real” (or “in rem”) and “personal” (or “in personum” actions. “Real” actions are brought to enforce rights with respect to property, whereas “personal” actions are brought to enforce rights and obligations against the owners or occupants of property. A “mixed” action melds these together, with related obligations and rights pertaining to both property and its owner or occupants.
The Superior Court of Quebec held that although some aspects of Aboriginal title resemble real rights because they attach to specific territories or sites, they are not real rights.[6] Rather, to succeed, the Innu would need to prove the violation of personal or mixed obligations under articles 976 and 1457 of the Civil Code of Quebec.[7] The Quebec Court of Appeal affirmed the decision of the Superior Court of Quebec, finding that the judge had not erred in characterizing the action as mixed.[8] The distinction is important as, if the court characterized the rights claimed as “real”, the Quebec courts would have no jurisdiction over those aspects of the claim that related to lands in Newfoundland.
At the Supreme Court of Canada
Interpreting the Civil Code of Quebec
The Supreme Court of Canada affirmed the lower courts’ characterization of the action as “mixed”, stating that the result reached, with due caution and an appropriate analysis of the Civil Code of Quebec, was justified.[9] However, it is not an ordinary “mixed” action because of the sui generis nature of Aboriginal title.
Section 35 of the Constitution Act, 1982
Section 35 provides the constitutional framework for aboriginal peoples’ reconciliation with Canadian sovereignty.[10] In this case, the Supreme Court of Canada stated that the objective of reconciliation engages the “honour of the Crown”, which places a set of duties upon the Crown in all situations pertaining to the assertion of sovereignty or the resolution of rights or title claims.[11] Further, the honour of the Crown requires a “generous and purposive interpretation” of S. 35(1) in furtherance of the objective of reconciliation.[12] S. 35(1) recognizes and affirms “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.[13]
The Supreme Court of Canada, citing its prior decision in Van der Peet, went to great lengths to stress that S. 35 rights are sui generis, meaning that they do not fit into any recognized category of rights.[14] The Court expressly stated that “Aboriginal title pre-dates all other interests in land in Canada”, and for this reason, Aboriginal title should not be conflated with traditional civil or common law property concepts.[15]
The Court goes on to state that s. 35 rights are “not simply an amalgam of real and personal rights connected to Aboriginal people”, but that it is sui generis and so cannot fit in any recognized category.[16] In this case, the “mixed” action was not a mix of “real” and “person” actions, but rather, a mix of sui generis and “personal” actions.[17]
Access to Justice – Jurisdictional Issues
The court held that a bifurcation of the claim between the courts of Quebec and those of Newfoundland and Labrador would be unjust and contrary to the honour of the Crown.[18] The court agreed with the arguments of DGW, on behalf of the intervener, Tsawout First Nation, that to bifurcate the claim would be particularly unjust because rights claimed pre-date the imposition of provincial borders.[19]
Perhaps most importantly, the Court states that in the specific 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”.[20]
Why This Case Matters
This case matters because it:
1. Opens the door for Aboriginal groups with traditional territory straddling provincial borders to file suit in their home province.
2. Affirms that Aboriginal rights and title pre-date the assertion of Crown sovereignty and operate above the level of provincial borders, and arguably international borders.
3. Affirms that Aboriginal rights and title are sui generis, with no equal in Canadian civil and common law.
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- The holdings in this case provide support for Aboriginal claimants with territory stretching across provincial borders, ideally allowing them more efficient and cost-effective access to justice.
[1] Para. 2
[2] Para. 4
[3] Ibid
[4] Para. 5
[5] Para. 6
[6] Para. 12
[7] Ibid
[8] Para. 14
[9] Para. 20
[10] Para. 21
[11] Para. 24, citing Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69
[12] Para. 24
[13] Ibid
[14] Para. 25
[15] Para. 29
[16] Para. 36
[17] Para. 56
[18] Para. 48
[19] Para. 49
[20] Para. 50