Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam)

Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam)
Collection
Supreme Court Judgments
Date
2020-02-21
Neutral citation
2020 SCC 4
Report
[2020] 1 SCR 15
Case number
37912
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Quebec
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15
Appeal Heard: April 24, 2019 Judgment Rendered: February 21, 2020 Docket: 37912
Between:
Attorney General of Newfoundland and Labrador
Appellant
and
Uashaunnuat (Innu of Uashat and of Mani-Utenam), Innu of Matimekush-Lac John, Chief Georges-Ernest Grégoire, Chief Réal McKenzie, Innu Takuaikan Uashat Mak Mani-Utenam Band, Innu Nation Matimekush-Lac John, Mike McKenzie, Yves Rock, Jonathan McKenzie, Ronald Fontaine, Marie-Marthe Fontaine, Marcelle St-Onge, Évelyne St-Onge, William Fontaine, Adélard Joseph, Caroline Gabriel, Marie-Marthe McKenzie, Marie-Line Ambroise, Paco Vachon, Albert Vollant, Raoul Vollant, Gilbert Michel, Agnès McKenzie, Philippe McKenzie and Auguste Jean-Pierre
Respondents
- and -
Attorney General of Canada, Attorney General of Quebec, Attorney General of British Columbia, Iron Ore Company of Canada, Quebec North Shore and Labrador Railway Company Inc., Kitigan Zibi Anishinabeg, Algonquin Anishinabeg Nation Tribal Council, Amnesty International Canada and Tsawout First Nation
Interveners
Official English Translation: Reasons of Brown and Rowe JJ.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Joint Reasons for Judgment: (paras. 1 to 73)
Joint Dissenting Reasons: (paras. 74 to 297)
Wagner C.J. and Abella and Karakatsanis JJ. (Gascon and Martin JJ. concurring)
Brown and Rowe JJ. (Moldaver and Côté JJ. concurring)
Attorney General of Newfoundland and Labrador Appellant
v.
Uashaunnuat (Innu of Uashat and of Mani‑Utenam),
Innu of Matimekush‑Lac John,
Chief Georges‑Ernest Grégoire, Chief Réal McKenzie,
Innu Takuaikan Uashat Mak Mani‑Utenam Band,
Innu Nation Matimekush‑Lac John, Mike McKenzie, Yves Rock,
Jonathan McKenzie, Ronald Fontaine, Marie‑Marthe Fontaine,
Marcelle St‑Onge, Évelyne St‑Onge, William Fontaine, Adélard Joseph,
Caroline Gabriel, Marie‑Marthe McKenzie, Marie‑Line Ambroise,
Paco Vachon, Albert Vollant, Raoul Vollant, Gilbert Michel,
Agnès McKenzie, Philippe McKenzie and Auguste Jean‑Pierre Respondents
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of British Columbia,
Iron Ore Company of Canada,
Quebec North Shore and Labrador Railway Company Inc.,
Kitigan Zibi Anishinabeg,
Algonquin Anishinabeg Nation Tribal Council,
Amnesty International Canada and
Tsawout First Nation Interveners
Indexed as: Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam)
2020 SCC 4
File No.: 37912.
2019: April 24; 2020: February 21.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for quebec
Private international law — Jurisdiction of Quebec court — Innu claimants filing suit in Quebec Superior Court against mining companies operating project in parts of both Quebec and Newfoundland and Labrador — Claimants seeking permanent injunction, damages and declaration that mining companies’ project violates Aboriginal title and other Aboriginal rights — Mining companies and Newfoundland and Labrador Crown seeking to strike portions of claim concerning property situated in that province — Whether Quebec courts have jurisdiction over entire claim — Civil Code of Québec, arts. 3134, 3148.
In 2013, two Innu First Nations, as well as a number of chiefs and councillors (“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 Sept‑Îles, Quebec and railway winding through 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. As remedies against these alleged wrongs, the Innu seek, among other things, 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 which, in their view, concern real rights 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 to strike. As it declined to characterize the action as a real action, it held that the Quebec courts had jurisdiction to hear the matter. The Quebec Court of Appeal dismissed Newfoundland and Labrador’s appeal.
Held (Moldaver, Côté, Brown and Rowe JJ. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ.: The Superior Court of Quebec has jurisdiction over the entire claim. The action is properly characterized as a non-classical mixed action that involves the recognition of sui generis rights and the performance of obligations. Since both mining companies are headquartered in Montréal, Quebec courts have jurisdiction over the personal and the sui generis aspects of the claim pursuant to art. 3148 and art. 3134 C.C.Q.
Book Ten of the C.C.Q. sets out the rules governing private international law in the province. In the spirit of comity, these rules limit the jurisdiction of Quebec authorities to matters closely linked to the province. The C.C.Q. is silent with respect to the proper analysis for characterizing an action for the purposes of Chapter II, which establishes specific rules of jurisdiction based on the nature of the action in question. In the absence of legislative direction, when characterizing an action, it is the nature of the rights at stake and the conclusions sought that must be considered. The rules of Book Ten must be interpreted in light of the imperatives of our constitutional order and in a manner consistent with the Constitution. Where s. 35 rights are at stake, Book Ten must be interpreted in a manner that respects constitutionally recognized and affirmed Aboriginal rights and treaty rights, and that takes into account access to justice considerations.
Aboriginal rights, including the sub‑category of Aboriginal title, are sui generis in nature. A sui generis right is a unique one, which it is impossible to fit into any recognized category. Aboriginal title is not to be conflated with traditional civil or common law property concepts, or described using the classical language of property law, as it has unique characteristics that distinguish it from civil law and common law conceptions of property, including features that are incompatible with property as it is understood in the civil law and common law. For example, Aboriginal title is inherently collective and it restricts both the alienability of land and the uses to which land can be put. Aboriginal title is also firmly grounded in the relationships formed by the confluence of prior occupation and the assertion of sovereignty by the Crown, which give rise to obligations flowing from the honour of the Crown that are clearly more akin to personal rights. Disputes involving Aboriginal title must also be understood with reference to Aboriginal perspectives. 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.
In the 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. Moreover, the honour of the Crown requires increased attention to minimizing costs and complexity when litigating s. 35 matters. 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. Though the provinces have no legislative jurisdiction over s. 35 rights, their courts certainly adjudicate them. Adjudicative jurisdiction over property outside of the province can be conferred in the s. 35 context because it concerns sui generis rights, not real rights, and it operates uniformly across Canada. The determination of whether a claimed Aboriginal or treaty right enjoys constitutional protection under s. 35 is a matter of constitutional law. Neither s. 35 nor constitutional law is foreign to Quebec or its courts.
The claim in the instant case falls into the mixed action category. In order for a Quebec court to have jurisdiction over a classical mixed action, it must have jurisdiction over both the personal and real aspects of the matter. However, this claim is a not a classical mixed action. It is rather a mixed action that involves seeking the recognition of a sui generis right (a declaration of Aboriginal title) and the performance of various obligations related to failures to respect that right (damages in delict and neighbourhood disturbances), that is, a personal aspect. In the context of such a non-classical mixed action, a Quebec court has jurisdiction over both the personal and the sui generis aspects of the claim. Actions in delict and neighbourhood disturbances are generally characterized as personal actions and art. 3148 C.C.Q. grants Quebec authorities jurisdiction over personal actions of a patrimonial nature where the defendant is domiciled in Quebec. With respect to the aspects of the claim that relate to the recognition of a sui generis right, such as a s. 35 right, the C.C.Q. does not include any special provision to establish the jurisdiction of Quebec authorities in such circumstances. Therefore, art. 3134, which states that “[i]n the absence of any special provision, Québec authorities have jurisdiction when the defendant is domiciled in Québec”, applies. Given that the mining companies are both headquartered in Montréal, Quebec authorities have jurisdiction over both aspects of this non‑classical mixed action pursuant to arts. 3134 and 3148 C.C.Q., which are sufficient to ground the jurisdiction of Quebec authorities.
Per Moldaver, Côté, Brown and Rowe JJ. (dissenting): The appeal should be allowed, the judgments of the Superior Court and the Court of Appeal should be set aside, the motion to strike allegations of the Attorney General of Newfoundland and Labrador should be allowed in part, and it should be ordered that the conclusions of the Innu’s motion to institute proceedings that are declaratory or injunctive in nature and that relate to their traditional territory or to the megaproject be amended so that they apply only to acts, activities or rights within Quebec’s territory. Aboriginal rights exist within the limits of Canada’s legal system, and Aboriginal rights claims before the courts must not go beyond what is permitted by Canada’s legal and constitutional structure. Finding that the Quebec Superior Court has jurisdiction to issue a declaration recognizing Aboriginal rights in the part of the traditional territory that is situated in Newfoundland and Labrador would have serious consequences for Canadian federalism. Far from promoting access to justice or reconciliation with Indigenous peoples, it would lead to increased litigation and delays, as well as confusion and loss of confidence in our justice system.
The jurisdiction of provincial superior courts is governed first and foremost by the rules of private international law, which in Quebec are set out in the C.C.Q. It is these rules that sometimes authorize provincial superior courts to exercise their powers with respect to persons or property not situated within the province’s territory. It is therefore not possible to disregard these rules and rely solely on an inherent jurisdiction that is, in principle, exercisable only within the province. The rules of private international law are of a different, legislative nature and confer authority. Only these rules can authorize the extraterritorial exercise of a power that otherwise is limited to a single territory.
However, the rules of private international law must themselves be consistent with the territorial limits created by the Constitution, which means that they may also be subject to constitutional scrutiny in light of those limits. Canada’s constitutional framework limits the external reach of provincial laws and of a province’s courts. As the Court has already recognized, the Constitution assigns powers to the provinces but limits the exercise of those powers to each province’s territory. These territorial restrictions created by the Constitution are inherent in the Canadian federation.
The general criterion for jurisdiction in private international law is the defendant’s domicile, as stated in art. 3134 C.C.Q. However, as that provision expressly indicates, the general rule it states is subsidiary in nature: the rule applies only “[i]n the absence of any special provision”. The special provisions in the C.C.Q. that displace this subsidiary rule govern the international jurisdiction of Quebec authorities over personal actions of an extrapatrimonial and family nature (arts. 3141 to 3147 C.C.Q.), personal actions of a patrimonial nature (arts. 3148 to 3151 C.C.Q.) and real or mixed actions (arts. 3152 to 3154 C.C.Q.).
It is therefore necessary to characterize the action in question in order to determine the international jurisdiction of Quebec authorities over a case. Private international law must be interpreted on the basis of the lex fori, because it is necessary to favour, as a matter of principle, the application of domestic civil law characterizations in private international law. The personal action, real action and mixed action concepts referred to in the special provisions of Title Three of Book Ten of the C.C.Q. should therefore be defined on the basis of Quebec law. Because it is inherent in the nature of private international law to be confronted with institutions that are unknown to it, the rules of private international law must be approached with some flexibility so as to include institutions that, although legally distinct, are analogous to the categories recognized by the civil law.
Aboriginal title and other Aboriginal or treaty rights must clearly be considered “real rights” for the purposes of private international law. More specifically, they resemble or are at least analogous to the domestic institution of real rights because they are rights in property, namely the land subject to Aboriginal title, and they are rights enforceable erga omnes, that is, against governments and others seeking to use the land. Aboriginal title confers the right to decide how the land will be used, the right of enjoyment and occupancy of the land, the right to possess the land, the right to the economic benefits of the land, and the right to proactively use and manage the land. The fact that Aboriginal title and Aboriginal or treaty rights are sui generis in nature does not preclude them from being found to be real rights for the purposes of private international law — their sui generis nature relates to their source, content and characteristics, which simply cannot be completely explained by reference to the common law or civil law rules of property law.
A real action is an action through which a person seeks the recognition or protection of a real right. Because Aboriginal title and other Aboriginal or treaty rights are real rights for the purposes of private international law, it necessarily follows that, in this case, the aspect of the Innu’s action whose purpose is to have such rights recognized and protected constitutes a real action or, at best, a mixed action falling under Division III of Chapter II of Title Three of Book Ten of the C.C.Q.
According to well‑established jurisprudence, Quebec authorities lack jurisdiction to hear a real action if the property in dispute is situated outside Quebec. Article 3152 C.C.Q. must be read in accordance with the modern approach to statutory interpretation, which applies when interpreting an article of the C.C.Q. It must be read in light of the principles of comity, order and fairness, which inspire the interpretation of the various private international law rules. This article affirms a well‑established principle, which is that Quebec authorities lack jurisdiction over an immovable real action where the subject matter of the dispute is situated outside Quebec. It also extends this principle to movable real actions — in real actions, whether immovable or movable, Quebec authorities lack jurisdiction where the subject matter of the dispute is not situated in Quebec. In particular, the defendant’s domicile does not give them jurisdiction over a real action, regardless of whether the subject matter of the dispute is immovable property or movable property, because art. 3134 C.C.Q. expressly states that this rule applies only in the absence of any special provision. Moreover, art. 3152 provides for the jurisdiction of Quebec authorities where the property in dispute is situated in Quebec, not where all or part of it is situated in Quebec. A different interpretation would amount to rewriting this provision by adding the words “all or part of”. Finally, for Quebec authorities to have jurisdiction over a mixed action, the property in dispute must be situated entirely in Quebec, since otherwise they will have no jurisdiction over the real aspect of the dispute. Jurisdiction over the personal aspect of the dispute based, for example, on the defendant’s domicile is therefore not sufficient in the case of a mixed action — the property in dispute must also be situated in Quebec, as required by art. 3152.
There is disagreement with the majority in this case as regards the characterization of the Innu’s action as a “non‑classical” mixed action with a personal aspect and a sui generis aspect and as regards the majority’s conclusion that art. 3134 C.C.Q. applies in the absence of any provisions relating specifically to sui generis rights. According to that conclusion, Quebec authorities have jurisdiction over both the personal aspect and the sui generis aspect of the action because the companies being sued are domiciled in Montréal. The rights protected by s. 35 of the Constitution Act, 1982 , and in particular Aboriginal title conferring the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, are a burden first and foremost on the Crown’s underlying title. The characteristics of Aboriginal title flow from the special relationship between the Crown and the Indigenous group in question. It is this relationship that makes Aboriginal title sui generis or unique. The Crown is the main defendant in an action for the recognition of Aboriginal title. The majority’s conclusion that the private companies, rather than the Crown, are the defendants in the action for the recognition of Aboriginal rights is therefore highly problematic and distorts the sui generis nature of these rights.
There is a principle in Quebec private international law to the effect that the jurisdiction of the Quebec court is determined on a case‑by‑case basis. It is therefore necessary in this case to determine whether the Innu’s action in fact involves claims that are real or mixed in nature because their purpose is to obtain the recognition or protection of Aboriginal title or other Aboriginal or treaty rights, which are real rights for the purposes of private international law; if the action does involve such claims, Quebec authorities lack jurisdiction to grant the claims if they relate to the part of the traditional territory that is situated in Newfoundland and Labrador.
The purpose of the claims for declaratory remedies in the Innu’s motion to institute proceedings is clearly to obtain the recognition of Aboriginal title and other Aboriginal or treaty rights, which are real rights for the purposes of private international law. A declaration is the primary means by which Aboriginal title can be established. However, under art. 3152 C.C.Q., a court may not grant an application for a declaratory judgment with respect to proprietary or possessory rights in immovable property situated abroad because by doing so it would purport to deal directly with title. In this case, even if the declarations sought by the Innu were binding only on the mining companies, the fact remains that the declarations would relate to the title the Innu claim to hold to the traditional territory, including the parts of that territory that are situated outside Quebec. Because of art. 3152, Quebec authorities lack jurisdiction in this regard. If Quebec authorities were to rule directly on the title that the Innu believe they hold to the parts of the traditional territory that are situated outside Quebec, the declarations would be binding on no one, not even on the mining companies, precisely because Quebec authorities lack jurisdiction in this regard.
The Innu’s claims for a permanent injunction to put a stop to the mining companies’ operations, facilities and activities are also real in nature, because their purpose is clearly to protect Aboriginal title and other Aboriginal or treaty rights, which are real rights for the purposes of private international law. In Quebec law, an injunction is the appropriate procedural vehicle for enforcing one’s right. Therefore, under art. 3152 C.C.Q., a court cannot grant a claim for a permanent injunction relating to immovable property situated outside the province.
The claim for damages against the mining companies — to the extent that it is based on the alleged infringement of the Aboriginal title and other Aboriginal or treaty rights the Innu claim to hold in the traditional territory — can be granted only if the Innu are able to obtain the recognition of that Aboriginal title and those other Aboriginal or treaty rights in that territory. However, Quebec authorities do not in fact have the jurisdiction required to hear an action for the recognition of Aboriginal title or other Aboriginal or treaty rights in land not situated in Quebec. It necessarily follows that, as matters stand at present, Quebec authorities must at least stay the proceedings on this point until a competent authority has recognized the existence of those rights in the parts of the traditional territory that are situated in Newfoundland and Labrador.
The remedy under art. 976 C.C.Q. remains first and foremost a claim that a person has, which makes it a personal action. Because the defendants are domiciled in Quebec and injury has been suffered in Quebec (art. 3148 para. 1(1) and (3) C.C.Q.), Quebec authorities have jurisdiction over this claim.
Lastly, the Innu are claiming various fiduciary remedies or remedies based on administration of the property of others (art. 1299 C.C.Q.) with respect to the mining companies’ works and facilities. These claims are real in nature and, having regard to art. 3152 C.C.Q., Quebec authorities cannot grant them if they relate to works or facilities of the mining companies that are situated in Newfoundland and Labrador.
Given that, as a result of art. 3152 C.C.Q., Quebec authorities lack jurisdiction over the claim for declaratory remedies to recognize Aboriginal title and other Aboriginal or treaty rights in land situated in Newfoundland and Labrador, over the claim for a permanent injunction to put a stop to the mining companies’ operations, facilities and activities on land situated in Newfoundland and Labrador, and over the fiduciary claim or the claim based on administration of the property of others with respect to the mining companies’ works and facilities situated in Newfoundland and Labrador, it should be ordered that the conclusions of the Innu’s motion to institute proceedings, and specifically those that are declaratory or injunctive in nature and that relate to the traditional territory or to the megaproject, be amended so that they apply only to acts, activities or rights within Quebec’s territory. However, it should not be ordered that the allegations in the motion to institute proceedings be struck, because the allegations concerning the traditional territory as a whole, including the parts of that territory that are situated in Newfoundland and Labrador, as well as the evidence relating thereto, could prove to be relevant during the trial on the merits in order to determine the existence of Aboriginal title and other Aboriginal or treaty rights in Quebec.
While Aboriginal rights are sui generis, they exist within the general legal system of Canada, and Aboriginal rights claims before the courts must not go beyond what is permitted by the Canadian legal and constitutional structure. The goal of reconciliation between Indigenous peoples’ prior occupation of Canadian territory and Crown sovereignty over that same territory cannot be achieved by recognizing prior occupation by Indigenous peoples on the one hand while disregarding the constitutional principle of federalism and of the sovereignty of the provincial Crown on the other, thereby contravening the well‑established principle that one part of the Constitution cannot abrogate another part of the Constitution. The goal of reconciliation must therefore be achieved by accounting not only for the Indigenous perspective — and thus the prior, borderless occupation of Canadian territory by Indigenous peoples — but also for the constitutional framework that accompanied Crown sovereignty and within which Canadian courts must operate.
Holding that superior courts have jurisdiction to decide the s. 35 rights of an Indigenous party as they affect another province implicitly treats the provinces as if they were (at best) administrative units or (at worst) inconvenient technicalities. This is profoundly disrespectful of the constitutional order under which provinces are sovereign within their own jurisdiction. Provincial boundaries are an essential feature of the system of provincial superior courts just as they are an essential feature of provincial legislative power. In particular, the system of provincial superior courts ensures that claims to a province’s land or challenges to a province’s laws must be heard before a judge of that province. Thus, the claims that cut deepest at the heart of a province’s sovereignty will be resolved by a judge connected to the province’s realities. This enhances public confidence in the courts and protects courts’ functioning and legitimacy, particularly if the outcome of the litigation is unfavourable to the province. Section 35 calls on courts to do justice to Aboriginal rights claims that cut across provincial boundaries, but it does not provide a warrant to disregard the provincial boundaries themselves.
The declarations sought in this case are contrary to the Canadian federal structure. Before a court can grant a declaration, it must have jurisdiction to hear the issue. It is unclear how the scope of a declaration of Aboriginal title over land in Labrador could be appropriately limited in a way consistent with the imperatives of Canadian federalism. The Crown is a necessary party in Aboriginal title claims — and is necessarily implicated when a declaration of Aboriginal title is made. Furthermore, this approach leads to a strong possibility of conflicting judgments and confusion and would allow a superior court in one province to pronounce on Aboriginal title in relation to land located in another province incidentally to an in personam claim. This principle cannot be confined to this case and the provinces implicated in this litigation.
Moreover, this approach is incompatible with the principle of Crown immunity. Any claim that asserts Aboriginal title necessarily involves the Crown. Unlike ordinary property disputes which pit private parties against each other within a framework of private law, an Aboriginal title claim cuts to the very root of the Crown’s sovereignty and triggers obligations on the part of the Crown. Not only is the Crown’s presence necessary in principle, it also helps ensure that issues are fairly heard. Private parties cannot be assumed to have any knowledge about the facts of occupation at the time the Crown asserted sovereignty.
Finally, this approach also impedes access to justice. If the impact of the order actually received is uncertain, confusing, or narrower than expected, this is a failure of access to justice. Moreover, access to justice is a precondition to the rule of law. Without procedural adaptations, requiring Indigenous people to bring applications, and to have them heard, in several different forums in order to obtain the recognition and protection of Aboriginal rights in different parts of a single traditional territory that straddles provincial borders creates barriers to access to justice and undermines the efficient and timely adjudication of such claims. However, delivery of efficient, timely and cost‑effective resolution of transboundary Aboriginal rights claims must occur 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. Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, authorizes superior court judges from different provinces to 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. A transboundary Aboriginal rights claim will 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. In this case, however, the fact that the Innu have not brought applications in each of the superior courts concerned still remains a barrier to the constitutional capacity of the superior courts to appropriately adjudicate their transboundary Aboriginal rights claim.
Cases Cited
By Wagner C.J. and Abella and Karakatsanis JJ.
Considered: St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392; referred to: Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; CGAO v. Groupe Anderson inc., 2017 QCCA 923; Bern v. Bern, [1995] R.D.J. 510; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Sparrow, [1990] 1 S.C.R. 1075; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Uashaunnuat (Innus de Uashat et de Mani‑Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 4403, leave to appeal refused, 2015 QCCA 2, leave to appeal refused, [2015] 3 S.C.R. vi; Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313; Guerin v. The Queen, [1984] 2 S.C.R. 335; Roberts v. Canada, [1989] 1 S.C.R. 322; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; St. Catherine’s Milling and Lumber Company v. The Queen (1888), 14 App. Cas. 46; Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; St. Mary’s Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; Comité paritaire de l’entretien d’édifices publics de la région de Québec v. Hôtel Forestel Val‑d’Or inc., 2017 QCCA 250; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R 1077; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; R. v. Côté, [1996] 3 S.C.R. 139; Innu of Uashat and Mani‑Utenam v. Iron Ore Company of Canada, 2016 QCCS 1958, [2017] 4 C.N.L.R. 73; Oppenheim forfait GMBH v. Lexus maritime inc, 1998 CanLII 13001.
By Brown and Rowe JJ. (dissenting)
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