Aboriginal Law in Multi-Jurisdictional Disputes
The judiciary often hears aboriginal law cases in the context of a dispute with the Crown. Yet consider what would happen if the dispute was multi-jurisdictional: Could one province’s judiciary make binding orders and decisions on another province’s jurisdiction? Would the answer shift depending on access to justice and proportionality concerns? The Supreme Court of Canada (“SCC”) will attempt to answer these questions on 24 April 2019 in the case of the Attorney General of Newfoundland and Labrador v Uashaunnuat (Innu of Uashat and of Mani-Utenam), et al.
The Original Application
The case at hand did not initially involve the Attorney General of Newfoundland and Labrador (“AG of NL”). The originating application was filed by a group of Innu claiming to hold Aboriginal rights to their ancestral territory, the Nitassinan, which overlaps Quebec and Labrador. The Innu claimed that the Iron Ore Company of Canada (“IOC”) and the Quebec North Shore and Labrador Railway Company (“QNS&LR”) are civilly liable for the extraction of iron ore in the Nitassinan. The Innu allege that the mining has impacted the practice of their traditional activities in the Nitassinan by “depriving them of access to land; by destroying or altering the environment…by affecting the quality of the natural resources; and by causing social, cultural, spiritual and economic damage to members of their communities” (Procureur général de Terre-Neuve-et-Labrador c Uashaunnuat, 2017 QCCA 1791 [Uashaunnuat], quoting Judgement Under Appeal para 26). The Innu decided to bring their application to the Superior Court of Quebec (“SCQ”) instead of the Supreme Court of Newfoundland and Labrador (“SCNL”) because the IOC and QNS&LR are headquartered in Montreal.
While at the SCQ, the AG of NL filed an application to remove any references to Labrador from the Innu’s claim. They argued that the SCQ lacked jurisdiction over the aspects of the dispute that concerned Labrador. The SCQ disagreed. According to the Civil Code of Quebec, CCQ-1991 [Civil Code], the courts of Quebec do have jurisdiction over the dispute because the IOC and the QNS&LR have their head offices in Quebec and because the injury was suffered partly in Quebec (arts 3134 and 3148). Although the Innu’s claim involves real property in Labrador, the Court of Appeal of Quebec (“QCCA”) viewed the application as a mixed action over which the courts of Quebec have jurisdiction.
Is the action barred by interprovincial jurisdictional immunity?
The doctrine of interprovincial jurisdictional immunity recognizes the exclusive powers of the provinces. These powers do not overextend provincial boundaries, meaning that one province cannot decide on the jurisdiction of another province. The SCQ and the QCCA both held that interprovincial jurisdictional immunity was not an obstacle to the jurisdiction of the Quebec courts in this dispute. This is because a decision from the SCQ regarding NL “would not and could not have the effect of ousting the jurisdiction of the courts of that province to make pronouncements…relating to those same lands” (Uashaunnuat, para 102). Moreover, the Innu have admitted that any SCQ declaration with respect to Aboriginal rights over the Nitassinan will not bind the government of NL. Although it is civil liability, rather than Aboriginal rights, that form the subject of the dispute, this example demonstrates that the AG of NL “suffers no prejudice” from the SCQ hearing and deciding on this matter (Uashaunnuat, para 108).
Is the action supported by access to justice and proportionality concerns?
The SCQ and QCCA both concentrated on the fundamental issues of access to justice and proportionality when determining whether the AG of NL’s application to strike allegations should proceed. The Nitassinan overlaps two provinces but, according to the Innu’s history, the Innu have freely moved across the Nitassinan without regard for borders. Additionally, the principles of Aboriginal law apply across all of Canada, again without regard for borders. As there is no distinction in the evidence between the mining project that occurs in Quebec from that in NL, the QCCA held that it would “not be in the interests of justice to prematurely sever from the Innu’s action any references to Labrador” (Uashaunnuat, para 117). This is because it would be too onerous and disproportionate for the Innu to bring forward the same claims in two different fora. The QCCA thus denied the appeal and determined that the Innu should be able to present their application against the IOC and the QNS&LR “in full” to the SCQ (Uashaunnuat, para 118).
Leave Granted to the SCC
On 15 November 2018, the SCC granted the AG of NL leave to appeal to the Court. In advance of the hearing date on 24 April 2019, the AG of NL provided the SCC with a Memorandum of Argument on Application for Leave to Appeal [Memorandum of Argument]. The main issue identified by the AG of NL is:
Whether the Superior Court of Quebec has the necessary jurisdiction, as a matter of Constitutional law and under the Civil Code of Quebec, to make determinations as to Aboriginal rights and title in the province of Newfoundland and Labrador asserted by Indigenous groups whose claims straddle Quebec and Newfoundland and Labrador. (Memorandum of Argument, para 36).
The AG of NL’s Memorandum of Argument does not challenge the Innu’s ability to pursue land claims situated within the province of Quebec at the SCQ. Nor does the Applicant deny the Innu’s rights to pursue land claims situated within the province of NL at the SCNL. The AG of NL simply asserts that the Innu must bring a claim in the superior court of the corresponding province, and in the case of the Nitassinan territory which overlaps two provinces, this must necessarily result in two separate applications.
The Magnifying Glass Is Out
The SCC will likely question the interplay between two fundamental aspects of the Constitution Act, 1867 and the Constitution Act, 1982: first, the territorial limits on the powers of provincial superior courts as per confederation; and second, inherent Aboriginal and treaty rights that may be asserted across provincial boundaries. If the SCC takes a path dependence position they will depend on the trajectory of prior decisions. Precedent may be utilized to establish that a provincial superior court can make determinations that affect another province. In this vein, the SCC may opine that the decision by the SCQ does not prevent the SCNL from considering the same legal issue in another proceeding and reaching a conflicting determination.
However, if the SCC takes a federalist position, it is likely to hold that the SCQ does not have the constitutional jurisdiction to make determinations in regard to land and natural resources outside Quebec. This conclusion flows from Canada’s constitutional regime, which includes territorial limits for the jurisdiction of provincial courts (Club Resorts Ltd v Van Breda,  1 SCR 572, para 21). The SCC may also cite Crown immunity to support this determination. Crown immunity precludes the courts of one province from making determinations on Aboriginal rights and title in another province. This argument has been made in the Court of Appeal of Alberta before, but it is unclear whether the SCC will find Crown immunity persuasive (See Athabasca Chipewyan First Nation v Canada, 2001 ABCA 112).
Ultimately, the SCC may choose to disregard the path dependence and federalist positions and base their judgement solely on access to justice and proportionality arguments. The proportionality principle means that the best forum for resolving a dispute is not always that with the most precise jurisdiction. In the case at hand, it would be too burdensome for both the Innu and the judiciary to hear the same legal issue at the SCQ and the SCNL. This would be in direct opposition to the Department of Justice’s commitment to access to justice. For the Innu, access to justice does not mean access to the legal system, but rather, access to a judicial decision that can enforce their Aboriginal rights across provincial boundaries.
A mixed action is one in which the plaintiff simultaneously seeks recognition of a real right and the execution of an obligation. In the case at hand, the Innu assert their Aboriginal right and request an injunction to prevent mining in the Nitassinan.