Litigating Cross-Border Aboriginal Title Claims in Canada: The Possibility (and Necessity) of a Federal Legislative Response to Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam).

• Author: Cossette-Lefebvre, Etienne

Introduction I. The Federal Court II. Subject Matter Jurisdiction A. Statutory Grant of Jurisdiction B. Existing Body of Federal Law 1. The Law of Aboriginal Title 2. Quebec's Law of Delict C. Constitutional Validity of Federal Law D. Conclusion on Subject Matter Jurisdiction III. In Personam Jurisdiction A. Crown Immunity 1. The Law Relating to the Substantive Liabilities of the Crown 2. The Law Relating to the Remedies against the Crown B. Federal Issues: Statutory Interpretation 1. Can the Crown in Right of One Province Be Sued in the Courts of Another Province? 2. Can the Crown in Right of a Province Be Sued in the Federal Court? C. Federal Issues: Constitutional Law D. Conclusion on In Personam Jurisdiction Conclusion Introduction

Before the presence of Europeans in Canada, Indigenous peoples had long been possessing North America in structured societies with legal, political, and social institutions of their own. (1) This occupation and use of land by Indigenous peoples obviously predates the establishment of borders in the modern era. (2) It is thus only natural that many of the Indigenous peoples in Canada have come to occupy and use traditional territories that, today, sometimes straddle provincial borders. (3) Traditional territory of the Blackfoot Confederacy, for instance, includes parts of Alberta and Saskatchewan (as well as Montana). (4) Traditional Denesuline (also known as Chipewyan) territory covers portions of Alberta, Saskatchewan, Manitoba, the Northwest Territories, and Nunavut. (5) Traditional Algonquin territory centres on the Ottawa River and tributaries, including parts of western Quebec and Ontario. (6) And so on.

The decision of the Supreme Court of Canada in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam) ("Uashaunnuat") illustrates "the practical difficulties faced by the Indigenous peoples of Canada who seek to claim Aboriginal rights in a single traditional territory that straddles provincial borders." (7) In Uashaunnuat, the Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John (collectively the "Innu") claimed to hold Aboriginal title and other Aboriginal or treaty rights in all of "Nitassinan," a traditional territory they have occupied for centuries. (8) This traditional territory spans over the border between the provinces of Quebec and Newfoundland and Labrador. (9) Even though they had not yet obtained a judicial declaration of their title or rights against the Crown, (10) the Innu filed suit in the Superior Court of Quebec against two mining companies, Iron Ore Company of Canada ("IOC") and Quebec North Shore and Labrador Railway Company Inc. ("QNS&L"), alleging that the infringement by IOC and QNS&L of their Aboriginal title and other Aboriginal or treaty rights in Nitassinan constituted a fault within the meaning of article 1457 of the Civil Code of Quebec ("CCQ"). (11) By way of remedy, the Innu sought (1) a declaration of Aboriginal title (12) and associated injunctive relief, (13) and (2) an award of damages. (14)

The two defendants, IOC and QNS&L, moved to have allegations struck from the Innu's pleadings. (15) They argued "that Aboriginal title is a real right and that, pursuant to art. 3152 of the Civil Code of Quebec, ... the Innu's action was beyond the jurisdiction of Quebec courts insofar as it concerned property located in Newfoundland and Labrador." (16) The Attorney General of Newfoundland and Labrador ("AGNL") eventually filed a motion to intervene as well as its own motion to have allegations struck from the Innu's pleadings, essentially supporting the arguments of the two defendants, IOC and QNS&L, but also raising the issue of Crown immunity. (17) The Innu argued in response that their action was a personal or a mixed action, and that the Quebec courts had jurisdiction by virtue of their authority to grant an injunction and damages against private parties domiciled in Quebec, pursuant to articles 3134 and 3148, para 1(1) of the CCQ. (18)

The Superior Court of Quebec dismissed the motions to strike. (19) The AGNL appealed from this judgment, but the Court of Appeal of Quebec affirmed the judgment of the Superior Court, (20) and a majority of the Supreme Court of Canada affirmed the judgment of the Court of Appeal. For the majority, the Innu's action fell "into the 'mixed' category, insofar as the Innu [sought] the recognition of a sui generis right (a declaration of Aboriginal title [and associated injunctive relief]) and the performance of various [personal] obligations related to failures to respect that right [namely, an award of damages]." (21) In the case of a mixed action, a Quebec court must "have jurisdiction over both the personal and the sui generis aspects of the claim." (22) The majority concluded that the Quebec courts did have jurisdiction over both aspects of the Innu's action. As regards the personal aspects of their claim, article 3148, para 1(1) of the CCQ grants jurisdiction to the Quebec courts "where the defendant is domiciled in Quebec." (23) Moreover, with respect to the sui generis aspects of the Innu's claim, the CCQ does not contain "any special provision to establish the jurisdiction of Quebec authorities in such circumstances"; consequently, the majority applied the general subsidiary rule of article 3134 of the CCQ, according to which the Quebec courts are competent "when the defendant is domiciled in Quebec." (24)

However, the majority did not dispute the Innu's admission that a declaration of Aboriginal title by a Quebec court would not be binding on the Crown in right of Newfoundland and Labrador. (25) This is potentially problematic for the Indigenous peoples in Canada: "Aboriginal title is a burden on the Crown's underlying title," and an "incident of this underlying title is a fiduciary duty owed [by the Crown] to Indigenous peoples when dealing with the lands and a right to encroach on the title if the justification test under s. 35(1) [of the Constitution Act, 1982 (26)] is satisfied." (27) In the absence of a declaration of Aboriginal title that is binding on the Crown, Indigenous peoples cannot benefit from the full development of "the fiduciary-like relationship" that judicial recognition of Aboriginal title normally entails. (28) The Innu further recognized that, if they wished to obtain a declaration of Aboriginal title that would be binding on the Crown in right of Newfoundland and Labrador, they would need to file a second suit against the Crown in right of Newfoundland and Labrador, in the courts of that province, and in the context of a "comprehensive land claim." (29)

The necessity of multiple proceedings in cases of cross-border Aboriginal title claims results from the fact that, under existing law, the Crown in right of one province can only be sued in the courts of that province. (30) As a result, Indigenous peoples who wish to obtain a declaration of Aboriginal title that is binding on all the provincial Crowns concerned over a single traditional territory that straddles provincial borders have no choice but to bring proceedings in the courts of all the provinces concerned. This seems particularly unfair, especially since "[provincial boundaries were imposed on Indigenous peoples without regard for their pre-existing social organization." (31) As noted by the intervener Tsawout First Nation, forcing Indigenous peoples who wish to litigate cross-border Aboriginal title claims in Canada to bring multiple claims in multiple jurisdictions is a threat to access to justice. (32) And access to justice is "a precondition to the rule of law"; as such, it is "fundamental to our constitutional arrangements." (33)

In this article, I argue that Parliament has the constitutional authority to provide the Indigenous peoples in Canada who wish to litigate cross-border Aboriginal title claims with a forum in which all the parties necessary to resolve the issues fairly, including all the provincial Crowns concerned, could be summoned as defendants, and in which a declaration of Aboriginal title, binding on all such defendants, could be sought. (34) In my view, Parliament should (35) exercise its constitutional authority by amending the Federal Courts Act ("FCA") (36) in the way I suggest. Pursuant to my recommendations, the jurisdiction of the Federal Court of Canada over Aboriginal title claims in general would be concurrent with the jurisdiction of the local courts of the provinces. However, in cases of cross-border Aboriginal title claims, the Federal Court would de facto become the sole forum in which two or more provincial Crowns could be summoned as defendants. (37)

This article addresses two issues. First, as a matter of constitutional law, can Parliament confer upon the Federal Court the jurisdiction to try a private suit of the type commenced by the Innu against IOC and QNS&L in Uashaunnuat? Secondly, as a matter of constitutional law, can Parliament compel submission of the provincial Crowns to the jurisdiction of the Federal Court for the purpose of allowing litigation of Aboriginal title claims? I address the first issue in Part II of my analysis, in which I examine the subject matter jurisdiction of the Federal Court. I address the second issue in Part III, in which I examine the in personam jurisdiction of the Federal Court. I start this article with a brief overview of the current jurisdiction of the Federal Court in Part I.

1. The Federal Court

   Parliament created the Federal Court (38) in 1971. (39) This Court absorbed (40) the Exchequer Court of Canada established in 1875. (41) If, originally, the Exchequer Court enjoyed only "a very limited jurisdiction over cases involving the revenue and the Crown in right of Canada," (42) its jurisdiction was progressively expanded (43) so as to include admiralty, intellectual property, tax, citizenship, and "several very technical fields of federal law." (44) In addition to inheriting...