NEWFOUNDLAND AND LABRADOR (ATTORNEY GENERAL) v. UASHAUNNUAT (INNU OF UASHAT AND OF MANI UTENAM) 2020 SCC 4

The Supreme Court of Canada has given permit to proceed with multi-jurisdiction aboriginal rights.

The Innu are the first nations who have lived during British rule that existed even in Canada. The area they were living is now declared as Quebec and Newfoundland and Labrador in Canada. Around 1950, a dynamic mining project started in which gross mining operations were carried out. Innu said without their permission, no venture can be carried out as this takes away their right of life which is enshrined in Constitution. They complained that due to open pits the project has created, fumes from factories, pollutants, railway winding that has adversely affected their right to life. Additionally, project abandoned them of enjoying and moving around their territory. Alleging infringement of their right to life, Innu asked companied to stop the project work and are seeking damages worth $900 million for restoration from them. Also, Innu are pleading court to declare that megaproject violates the aboriginal title and right which is governed by United Nations Declaration Of Indigenous People, an International Treaty of which Canada is a signatory party.

Innu first sued in Quebec court to declare the project as illegal and seek damages. The main issue raised therein was whether Quebec has jurisdiction since area under dispute is stretched to territories of Quebec, Newfoundland and Labrador as Quebec court can’t make decision that would inherently affect other provinces as well. However, the lower court ruled that the court has required jurisdiction to resolve all the issues involved in the matter.

When this case reached the Supreme Court, the majority judges consented to lower court’s ruling that Quebec can make decision over the borders since both property under dispute and Innu falls in same ambit of province. The bench noted that Aboriginal title had grave significance which governs the relationship between Crown and Indigenous groups, thus creating obligation over the Crown to act honorably and thus, such title cannot be sold simply, rather it is made for future generations. Moreover, section 35 of the Constitution Act, 1982 which specifically deals with aboriginal rights and treaty rights as rights sui generis, even before Crown sovereignty existed. Hence, it is an obligation to protect the ingenious groups from being exploited to battle for same legal grounds in different provinces. The Court also mentioned that reconciliation, the basic objective of modern law of Aboriginal Rights, occupies the honor of the crown as ruled in Mikisew Cree First Nation v. Canada, 2005 SCC 69. The nature as Sui Generis should be taken into consideration that rightly flows from cultural and historical origins as well as their status as constitutional rights. In order to accommodate section 35, proportionality principle is of utmost important which focus primarily on deprivation of the rights of Aboriginal people to effective verdicts for alleged infringement of their pre-existing rights.

However, the Supreme Court has not accepted all the requests made by Innu. They only declared that Quebec has authority to govern this issue. Indeed, as the focus on the jurisdiction mark, SCC concluded that Quebec do have the jurisdiction although Quebec may reject the jurisdiction pertaining to Article 3135 Commission de la construction du Quebec (C.C.Q.) in case the authorities of another jurisdiction are in a superior position to decide the dispute. Hence, the doctrine of forum non conveniens as codified in Article 3135 is ruled to give a weigh over the Article 3148 CCQ which is traditionally focused on factors like- location of the material evidence, place of contract. If Quebec permits, aboriginal rights could be protected by asking for declaration and putting injunction to mining activities. However, it doesn’t force Newfoundland to do anything special, Innu has to still negotiate with other provinces’ government.