Since the 1950s, the Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company ("Mining Companies") operate a number of open-pit mines as well as an extensive system of related industrial, port and railway facilities in Québec and Newfoundland and Labrador ("IOC megaproject").
In 2013, the Innu of Uashat and of Mani-Utenam near Sept-Îles and the Innu of Matimekush-Lac John near Schefferville ("Innu") brought an action against the Mining Companies before the Superior Court of Québec. They assert that they have occupied, possessed and managed their ancestral territory, the Nitassinan, which spans Québec and Newfoundland and Labrador, since time immemorial. In particular, they assert a right to the exclusive use and occupation of the lands affected by the IOC megaproject, including hunting, fishing and trapping rights, and also maintain that this project was undertaken without their consent. In their claim, they seek a permanent injunction against the Mining Companies ordering them to cease their operations, $900 million in damages and a declaration that the IOC megaproject constitutes a violation of their Aboriginal title and other Aboriginal rights.
The Mining Companies as well as the Attorney General of Newfoundland and Labrador, an intervenor, applied to strike allegations from the Innu's pleading concerning rights relating to land located outside of Québec over which the Québec courts do not have jurisdiction.
Decisions of Québec's Superior Court and Court of Appeal
The Québec Superior Court dismissed the motions to strike1 and the Québec Court of Appeal affirmed the lower court's decision.2 According to these courts, the Québec courts have jurisdiction to hear the matter. Specifically, they declined to characterize the action as a "real action" and recognized the sui generis nature of the rights guaranteed under section 35 of the Constitution Act, 1982 to ground the jurisdiction of the Québec courts in accordance with the rules governing private international law in Québec.
Decision of the Supreme Court of Canada
This appeal gave the highest court of the country the opportunity to determine whether Québec courts have jurisdiction to decide claims under section 35 of the Constitution Act, 1982 that straddle multiple provinces. In a five-to-four decision, the Supreme Court of Canada found that the Superior Court of Québec had jurisdiction to hear the Innu claims, even those related to land in Newfoundland and Labrador, and, therefore, dismissed the appeal.
The majority judges stated at the outset that, like any other law, the provisions of the Civil Code of Quebec3 ("Civil Code") regarding private international law must be interpreted in accordance with the Constitution.4 Before interpreting these provisions, they first examined the characterization of the action. Given the sui generis nature of rights protected under section 35 of the Constitution Act, 1982, which are neither personal rights or real rights, nor a combination of the two,5 such rights are legally distinct.
The majority then pointed out two fundamental underlying principles of the Canadian legal system:
Access to justice
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 [...].6
Honour of the Crown
Moreover, 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.7
In light of the foregoing, the majority examined the application of private international law under the Civil Code. In this case, given the unique nature of the claim, the Québec court must, therefore, have jurisdiction over both the personal and sui generis aspects of the claim. What does this mean?
- First, the jurisdiction over the personal aspect is easily recognized because under article 3148 of the Civil Code, the Québec courts clearly have jurisdiction over personal actions of a patrimonial nature when the defendant is domiciled in Québec.
- Second, despite the silence of the Civil Code concerning the jurisdiction of the Québec authorities with respect to the aspects of the claim that relate to the recognition of a sui generis right, the majority nevertheless confirmed the jurisdiction of the Québec courts in this regard based on article 3134 of the Civil Code, namely the general rule of jurisdiction being dependent on where the defendant is domiciled.
- Since both Mining Companies are headquartered in Montréal, the Québec courts, therefore, have jurisdiction with regard to both aspects of this non-classical "mixed" action under articles 3134 and 3148 of the Civil Code.
In summary, and although they do not give their opinion as to the merits of the case, the majority of the judges agreed with the lower courts that the Superior Court of Québec has the jurisdiction to hear the Innu claim and, therefore, dismissed the appeal.
Although conscious of the practical difficulties faced by Indigenous peoples of Canada, the dissenting judges were of the opinion that "Aboriginal rights exist within the limits of Canada's legal system", and that "Aboriginal rights claims before the courts must not go beyond what is permitted by Canada's legal and constitutional structure."8
According to the minority, "it is inherent in the nature of private international law to be confronted with institutions that are unknown to it."9 As such, rather than trying to find a new legal remedy, the courts should instead try to determine which domestic civil law institution the section 35 rights resemble or are analogous to. In the case at hand, and although they recognized the sui generis nature of such rights, the dissenting judges considered that rights in property enforceable erga omnes (against the whole world) were closer to a real right, over which Newfoundland and Labrador had jurisdiction.
The key difference between the majority and dissenting opinions
rests in the legal characterization of Aboriginal rights. The
majority relied on the sui generis nature of the rights,
whereas the minority found they resemble "real rights"
for the purposes of private international law and therefore found
that any claim relating to the portion of land located outside of
Québec was beyond the jurisdiction of the Québec
1 Uashaunnuat (Innu of Uashat and of Mani-Utenam) v. Iron Ore Company of Canada (Compagnie minière IOC inc), 2016 QCCS 5133.
2 Attorney General of Newfoundland and Labrador v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2017 QCCA 1791.
3 Civil Code of Québec, CQLR c CCQ-1991.
4 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at para 17.
5 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at para 34.
6 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at para 50.
7 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innus of Uashat and of Mani‑Utenam), 2020 SCC 4 at para 51.
8 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at para 77.
9 Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at para 138.
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