Attorney General of Newfoundland v. Labrador, 2020 SCC 4

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 titlenecessarily involves the Crown. Unlike ordinary property disputes which pit private parties against each other within a framework ofprivate 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 beassumed 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, ornarrower than expected, this is a failure of access to justice. Moreover, access to justice is a precondition to the rule of law.

Withoutprocedural adaptations, requiring Indigenous people to bring applications, and to have them heard, in several different forums in order toobtain the recognition and protection of Aboriginal rights in different parts of a single traditional territory that straddles provincialborders creates barriers to access to justice and undermines the efficient and timely adjudication of such claims. However, delivery ofefficient, timely and cost-effective resolution of transboundary Aboriginal rights claims must occur within the structure of the Canadianlegal system as a whole.

Principles of federalism and provincial sovereignty do not preclude development by superior courts, in theexercise of their inherent jurisdiction, of innovative yet constitutionally sound solutions that promote access to justice. Endean v.

BritishColumbia, 2016 SCC 42, [2016] 2 S.C.R. 162, authorizes superior court judges from different provinces to draw on their statutoryjurisdiction — or, where necessary, their inherent jurisdiction — to sit together and hold a joint hearing on applications that have beenbrought in the superior courts of more than one province because they seek the recognition and protection of Aboriginal rights indifferent parts of a single traditional territory that straddles provincial borders.

A transboundary Aboriginal rights claim will stand abetter chance of being resolved in an efficient, timely and cost-effective manner if the superior court judges sit together for a single jointhearing arising from the joinder of the applications brought in each of the superior courts concerned. In this case, however, the fact thatthe Innu have not brought applications in each of the superior courts concerned still remains a barrier to the constitutional capacity of thesuperior 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, (SCC), [1998] 2S.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, (QC CA), [1995] R.D.J. 510; R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507; R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075; Mikisew Cree First Nationv. 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, (SCC), [1973] S.C.R. 313; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; Roberts v. Canada, (SCC), [1989] 1 S.C.R. 322; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010; Tsilhqot’inNation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; St. Catherine’s Milling and Lumber Company v. The Queen (1888), 14App. Cas. 46; Canadian Pacific Ltd. v.

Paul, (SCC), [1988] 2 S.C.R. 654; Blueberry River Indian Band v. Canada(Department of Indian Affairs and Northern Development), (SCC), [1995] 4 S.C.R. 344; St. Mary’s Indian Band v.Cranbrook (City), (SCC), [1997] 2 S.C.R. 657; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; R. v. Sappier, 2006SCC 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; MorguardInvestments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R 1077; Hunt v.

T&N plc, (SCC), [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 (AttorneyGeneral), (SCC), [1988] 2 S.C.R. 214; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; R. v. Côté, (SCC), [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, . By Brown and Rowe JJ. (dissenting) Procureur général de Terre-Neuve-Labrador v. Uashaunnuat (Innus de Uashat et de Mani-Utenam), 2017 QCCA 14;Transax Technologies inc. v. Red Baron Corp.

Ltd, 2016 QCCA 1432; Uashaunnuat (Innus de Uashat et de Mani-Utenam) v.Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 2051; Innu of Uashat and Mani-Utenam v. Iron OreCompany of Canada, 2016 QCCS 1958, [2017] 4 C.N.L.R. 73; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572;Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 4403;Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R. 1077; Barer v. Knight Brothers LLC, 2019 SCC 13,[2019] 1 S.C.R. 573; Hunt v.

T&N plc, (SCC), [1993] 4 S.C.R. 289; Ontario (Attorney General) v. Pembina ExplorationCanada Ltd., (SCC), [1989] 1 S.C.R. 206; Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51,[2001] 2 S.C.R. 743; Three Rivers Boatman Ltd. v. Conseil canadien des relations ouvrières, (CSC), [1969] S.C.R.607; MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4 S.C.R. 725; Abela v. Baadarani, [2013] UKSC 44, [2013] 4All E.R. 119; The Scottish Metropolitan Assurance Company Limited v. Graves, [1955] C.S. 88; Dupont v. Taronga Holdings Ltd.(1986), (QC CS), 49 D.L.R. (4th) 335; British Columbia v.

Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2S.C.R. 473; Tolofson v. Jensen, (SCC), [1994] 3 S.C.R. 1022; McGuire v. McGuire, (ON CA), [1953]O.R. 328; Re Vantel Broadcasting Co. Ltd. and Canada Labour Relations Board (1962), (BC CA), 35 D.L.R. (2d) 620;Calder v. Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313; Roberts v. Canada, (SCC),[1989] 1 S.C.R. 322; R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507; Prud’homme v. Prud’homme, 2002 SCC 85,[2002] 4 S.C.R. 663; Doré v. Verdun (City), (SCC), [1997] 2 S.C.R. 862; Tsilhqot’in Nation v.

British Columbia, 2014SCC 44, [2014] 2 S.C.R. 257; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; St. Catherine’s Milling and Lumber Company v. The Queen (1888), 14 App. Cas. 46;Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Renvoi relatif à la réglementation

pancanadienne des valeurs mobilières, 2017 QCCA 756; Gauthier v. Bergeron, [1973] C.A. 77; Bern v. Bern, (QCCA), [1995] R.D.J. 510; Domaine de l’Isle aux Oyes Inc. v. D’Aragon, (QC CA), [1984] R.D.J. 171; R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; Première nation de Betsiamites v.Canada (Procureur général), 2006 QCCS 2111; Première Nation de Pessamit v. Québec (Procureur général), 2007 QCCS 794; XeniGwet’in First Nations v. Riverside Forest Products Ltd., 2002 BCSC 1199, 4 B.C.L.R. (4th) 379; Ahousaht Indian Band v.

AttorneyGeneral of Canada, 2006 BCSC 646; West Moberley First Nations v. British Columbia, 2007 BCSC 1324, 78 B.C.L.R. (4th) 83;Cowichan Tribes v. Canada (Attorney General), 2017 BCSC 1575, 1 B.C.L.R. (6th) 214; Council of the Haida Nation v. BritishColumbia, 2017 BCSC 1665, 3 B.C.L.R. (6th) 346; Calder v. Attorney-General of British Columbia (1969), (BC SC),8 D.L.R. (3d) 59; Calder v. Attorney-General of British Columbia (1970), (BC CA), 13 D.L.R. (3d) 64; R. v. Sundown, (SCC), [1999] 1 S.C.R. 393; R. v. Côté, (SCC), [1996] 3 S.C.R. 139; R. v. Sappier, 2006 SCC 54,[2006] 2 S.C.R. 686; Mitchell v.

M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Badger, (SCC), [1996] 1 S.C.R. 771;Matamajaw Salmon Club v. Duchaine, [1921] 2 A.C. 426; Procureur général du Québec v. Club Appalaches inc., (QC CA), [1999] R.J.Q. 2260; Anglo Pacific Group PLC v. Ernst & Young Inc., 2013 QCCA 1323; Bolton v. Forest Pest ManagementInstitute (1985), (BC CA), 66 B.C.L.R. 126; Mazur v. Sugarman & Vir (1938), 42 Q.P.R. 150; Senauer v. Porter(1862), 7 L.C. Jur. 42; Equity Accounts Buyers Limited v. Jacob, [1972] C.S. 676; Union Acceptance Corporation Ltd. v. Guay, [1960]B.R. 827; Montréal (Ville) v.

Lonardi, 2018 SCC 29, [2018] 2 S.C.R. 103; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46,[2005] 2 S.C.R. 401; Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205; Trower and Sons, Ld.v. Ripstein, (UK JCPC), [1944] A.C. 254; Alimport (Empresa Cubana Importadora de Alimentos) v. Victoria TransportLtd., (SCC), [1977] 2 S.C.R. 858; CGAO v. Groupe Anderson inc., 2017 QCCA 923; Babineau v. Railway Centre ParkCompany Limited (1914), 47 C.S. 161; Lamothe v. Hébert (1916), 24 R.L. 182; Khan Resources Inc. v.

W M Mining Co., LLC (2006), (ON CA), 79 O.R. (3d) 411; War Eagle Mining Co. v. Robo Management Co. (1995), (BC SC),13 B.C.L.R. (3d) 362; Medicine Hat (City) v. Wilson, 2000 ABCA 247, 271 A.R. 96; Oerlikon Aerospatiale inc. v. Ouellette, (QC CA), [1989] R.J.Q. 2680; Crawford v. Fitch, [1980] C.A. 583; Société minière Louvem inc. v. Aur Resources Inc., (QC CS), [1990] R.J.Q. 772; Plouffe v. Dufour, [1992] R.J.Q. 47; 2848-2883 Québec inc. v. Tomiuk, (QC CA), [1993] R.D.J. 400; Laflamme v. Groupe Norplex inc., 2017 QCCA 1459; Montagne Laramee Developments Inc. v.

CreitProperties Inc. (2000), (ON SC), 47 O.R. (3d) 729; Design Recovery Inc. v. Schneider, 2003 SKCA 94, 238 Sask. R.212; St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392; R. v. Adams, (SCC), [1996] 3 S.C.R.101; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R.511; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; 1068754 Alberta Ltd. v. Québec (Agence du revenu), 2019 SCC 37, [2019] 2S.C.R. 993; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63; New BrunswickBroadcasting Co. v.

Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; Trial LawyersAssociation of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; B.C.G.E.U. v. BritishColumbia (Attorney General), (SCC), [1988] 2 S.C.R. 214; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Endeanv. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism andCulture), 2002 SCC 31, [2002] 2 S.C.R. 146; Hereditary Chiefs Tony Hunt v. Attorney General of Canada, 2006 BCSC 1368; BritishColumbia (Attorney General) v.

Christie, 2007 SCC 21, [2007] 1 S.C.R. 873; Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433; Ewert v. Canada, 2018SCC 30, [2018] 2 S.C.R. 165; S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99; Meeches v. Meeches, 2013 FCA114, 444 N.R. 285; William v. British Columbia, 2002 BCSC 1904; Thomas v. RioTinto Alcan Inc., 2016 BCSC 1474, 92 C.P.C. (7th)122; Re Labrador Boundary, (UK JCPC), [1927] 2 D.L.R. 401; Angle v. Minister of National Revenue, (SCC), [1975] 2 S.C.R. 248; Penner v.

Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125; Mikisew CreeFirst Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Canada (Attorney General) v. Thouin, 2017SCC 46, [2017] 2 S.C.R. 184; Athabasca Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern Development),2001 ABCA 112, 199 D.L.R. (4th) 452; Sauve v. Quebec (Attorney General), 2011 ONCA 369; Medvid v. Saskatchewan (Minister ofHealth), 2012 SKCA 49, 349 D.L.R. (4th) 72; Constructions Beauce-Atlas inc. v. Pomerleau inc., 2013 QCCS 4077; Lax Kw’alaamsIndian Band v.

Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R.949; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Chippewas of SarniaBand v. Canada (Attorney General) (2000), (ON CA), 51 O.R. (3d) 641. Statutes and Regulations Cited Adjacent Territories Order in R.S.C. 1985, App. II, No. 14. Alberta Act, S.C. 1905, c. 3 (reprinted in R.S.C. 1985, App. II, No. 20).

An Act to add the reformed law of evidence and of prescription and the reformed private international law to the Civil Code of Québec,Draft Bill, 2nd Sess., 33rd Leg., Quebec, 1988, art. 3514. British North America Act, 1871 (U.K.), 34 & 35 Vict., c. 28 (reprinted as Constitution Act, 1871 in R.S.C. 1985, App. II, No. 11). British North America Act, 1949 (U.K.), 12, 13 & 14 Geo. 6, c. 22 (reprinted as Newfoundland Act in R.S.C. 1985, App. II, No. 32), Sch.,ss. 2, 37. Canadian Charter of Rights and Freedoms. Charter of Human Rights and Freedoms, CQLR, c. C-12.

Civil Code of Québec, Bill 125, 1st Sess., 34th Leg., Quebec, 1990, art. 3130. Civil Code of Québec, Book Four, arts. 947, 976, 1119, 1120, 1299, 1457, Book Ten, 3076 to 3168, 3078, 3081, 3097, Title Three,Chapter I, 3134, 3135,

Chapter II, Division I, 3141 to 3147, Division II, 3148 to 3151, Division III, 3152, 3153, 3154. Code of Civil Procedure, CQLR, c. C-25, arts. 31, 73, 95.

Code of Civil Procedure , CQLR, c. C-25.01 , arts. 25, Title III,

Chapter I, 33, 41 para. 1, 42(3), 49. Common Law Procedure Act , 1852 (U.K.), 15 & 16 Vict., c. 76. Constitution Act, 1867 , ss. 92(13) , (14) , 96 , 97 , 98 , 109 . Constitution Act, 1982 ,

Part II, ss. 35, 41( e ), 43( a ), 52(1), (2)( b ), Sch., ss. 12, 13, 21. Manitoba Boundaries Extension Act, 1912 , S.C. 1912, c. 32. Ontario Boundaries Extension Act , S.C. 1912, c. 40. Proceedings Against the Crown Act , R.S.N.L. 1990, c. P-6, ss. 4 , 7 . Quebec Boundaries Extension Act, 1912 , S.C. 1912, c. 45. Rupert’s Land and North-Western Territory Order in R.S.C. 1985, App. II, No. 9. Saskatchewan Act , S.C. 1905, c. 42 (reprinted in R.S.C. 1985, App. II, No. 21). Treaties and Other International Instruments United Nations Declaration on the Rights of Indigenous Peoples , G.A.

Res., UNGAOR, 61st Sess., Supp. No. 49, UN Doc A/RES/61/295 (2007). Authors Cited Anker, Kirsten. “Translating Sui Generis Aboriginal Rights in the Civilian Imagination”, dans Alexandra Popovici, Lionel Smith et Régine Tremblay, dir., Les intraduisibles en droit civil . Montréal: Thémis, 2014, 1. Barreau du Québec. Mémoire du Barreau du Québec sur l’avant-projet de loi portant réforme au Code civil du Québec du droit international privé , présenté à la Commission des institutions. Montréal: Barreau du Québec, 1989. Batiffol, Henri, et Paul Lagarde. Droit international privé , t. I, 7 e éd.

Paris: Librairie générale de droit et de jurisprudence, 1981. Belleau, Charles, et autres. Précis de procédure civile du Québec , vol. 2, 4 e éd. par Denis Ferland et Benoît Emery, dir. Cowansville, Que.: Yvon Blais, 2003. Bisson , Alain-François. “La Disposition préliminaire du Code civil du Québec ” (1999), 44 McGill L.J. 539. Borrows, John. “Aboriginal Title and Private Property” (2015), 71 S.C.L.R. (2d) 91 . Briggs, Adrian. The Conflict of Laws , 3rd ed. Oxford: Oxford University Press, 2013.

Brisson, Jean-Maurice. “ Le Code civil , droit commun? ”, dans Le nouveau Code civil: interprétation et application — Les journées Maximilien-Caron 1992 . Montréal: Thémis, 1993, 292. Canada. Crown-Indigenous Relations and Northern Affairs Canada. Labrador Innu Land Claims Agreement-in-Principle , last updated March 13, 2012 (online: https://www.rcaanc-cirnac.gc.ca/DAM/DAM-CIRNAC-RCAANC/DAM-TAG/STAGING/texte- text/ccl_farim_nl_labinnu_caip_1331749872252_eng.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC- CSC4_1_eng.pdf ).

Canada. “Report of the Ottawa Delegation: Proposed Arrangements for the Entry of Newfoundland into Confederation”, in James K. Hiller and Michael F. Harrington, eds., The Newfoundland National Convention 1946-1948: Reports and Papers , vol. 2. Montréal: McGill-Queen’s University Press, 1995. Cantin Cumyn, Madeleine. “De l’existence et du régime juridique des droits réels de jouissance innommés: Essai sur l’énumération limitative des droits réels” (1986), 46 R. du B. 3. Castel , Jean-Gabriel. Droit international privé québécois . Toronto: Butterworths, 1980. Cornu, Gérard, ed. Dictionary of the Civil Code .

Paris: LexisNexis, 2014, “ action personnelle ”, “ action réel le ”. Cornu , Gérard, dir. Vocabulaire juridique , 12 e éd. Paris: Presses universitaires de France, 2018, “ action mixte ”, “ action personnelle ”, “ action réel le ”, “ droit réel ”. Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada , 4th ed. Toronto: Carswell, 2011. Cromwell, T. A. “Aspects of Constitutional Judicial Review in Canada” (1995), 46 S.C. L. Rev . 1027. Debruche, Anne-Françoise. Équité du juge et territoires du droit privé . Bruxelles: Bruylant, 2008. Dross, William. Droit des biens , 4 e éd. Issy-les-Moulineaux, France: LGDJ, 2019.

Dukelow, Daphne A. The Dictionary of Canadian Law , 4th ed. Toronto: Carswell, 2011, “ sui generis ”. Edinger, Elizabeth. “Territorial Limitations on Provincial Powers” (1982), 14 Ottawa L. Rev. 57. Emanuelli, Claude. Droit international privé québécois , 3 e éd. Montréal: Wilson & Lafleur, 2011. Emerich, Yaëll. Droit commun des biens: perspective transsystémique . Montréal: Yvons Blais, 2017. Gendreau, Paul-Arthur, et autres. L’injonction . Cowansville, Que.: Yvon Blais, 1998. Glenn, H.

Patrick. “Droit international privé”, dans La réforme du Code civil , t. 3, Priorités et hypothèques, preuve et prescription, publicité des droits, droit international privé, dispositions transitoires . Textes réunis par le Barreau du Québec et la Chambre des notaires du Québec. Sainte-Foy, Que.: Presses de l’Université Laval, 1993, 669. Goldstein , Gérald . Droit international privé , vol. 2, Compétence internationale des autorités québécoises et effets des décisions étrangères (Art. 3134 à 3168 C.c.Q.) , dans Commentaires sur le Code civil du Québec ( DCQ ). Cowansville, Que.: Yvon Blais, 2012.

Goldstein, Gérald. “La qualification en droit international privé selon la perspective de l’

article 3078 C.c.Q. ”, dans Sylvette Guillemard, dir., Mélanges en l’honneur du professeur Alain Prujiner: Études de droit international privé et de droit du commerce international. Cowansville, Que.: Yvon Blais, 2011, 195. Goldstein, Gérald, et Ethel Groffier. Droit international privé , t. I, Théorie générale , par Paul-A. Crépeau, dir. Cowansville, Que.: Yvon Blais, 1998. Goldstein, Gérald, et Ethel Groffier. Droit international privé , t. II, Règles spécifiques , par Paul-A. Crépeau, dir. Cowansville, Que.: Yvon Blais, 2003. Grenier, Danielle, et Marie Paré.

La requête en jugement déclaratoire en droit public québécois , 2 e éd. Cowansville, Que.: Yvon Blais, 1999. Groffier, Ethel. La réforme du droit international privé québécois: Supplément au Précis de droit international privé québécois . Cowansville, Que.: Yvon Blais, 1993. Groffier, Ethel. Précis de droit international privé québécois , 4 e éd. Cowansville, Que.: Yvon Blais, 1990. Hamilton, Robert. “Private Property and Aboriginal Title: What is the Role of Equity in Mediating Conflicting Claims?” (2018), 51 U.B.C. L. Rev. 347. Hogg , Peter W. Constitutional Law of Canada , vol. 1, 5th ed. Supp.

Scarborough, Ont.: Thomson/Carswell, 2007 (loose-leaf updated 2018, release 1). Iacobucci, Frank. “What Is Access to Justice in the Context of Class Actions?”, in Jasminka Kalajdzic, ed., Accessing Justice: Appraising Class Actions Ten Years After Dutton, Hollick & Rumley . Markham, Ont.: LexisNexis, 2011, 17. Isaac, Thomas. Aboriginal Law , 5th ed. Toronto: Thomson Reuters, 2016. Jacob, I. H. “ The Inherent Jurisdiction of the Court ” (1970), 23 Curr. Legal Probs. 23. Johnson, Walter S. Conflict of Laws , 2nd ed. Montréal: Wilson & Lafleur, 1962. Lafond, Pierre-Claude. Précis de droit des biens , 2 e éd.

Montréal: Thémis, 2007. Lamontagne, Denys-Claude. Biens et propriété , 8 e éd. Cowansville, Que.: Yvon Blais, 2018. Lange, Donald J. The Doctrine of Res Judicata in Canada , 4th ed. Markham, Ont.: LexisNexis, 2015. Lemieux, Denis. “L’impact du Code civil du Québec en droit administratif” (1994), 15 Admin. L.R. (2d) 275 . Macdonald, Roderick A. “Access to Justice in Canada Today: Scope, Scale and Ambitions”, in Julia Bass, W. A. Bogart and Frederick H. Zemans, eds., Access to Justice for a New Century — The Way Forward . Toronto: Law Society of Upper Canada, 2005, 19.

McNeil, Kent. “Aboriginal Title and the Provinces after Tsilhqot’in Nation ” (2015), 71 S.C.L.R. (2d) 67 . McNeil, Kent. “Aboriginal Title as a Constitutionally Protected Property Right”, in Owen Lippert, ed., Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision . Vancouver: Fraser Institute, 2000, 55. McNeil, Kent. “Co-Existence of Indigenous Rights and Other Interests in Land in Australia and Canada” (1997), 3 C.N.L.R. 1 . McNeil, Kent. “Reconciliation and Third-Party Interests: Tsilhqot’in Nation v. British Columbia ” (2010), 8 Indigenous L.J. 7. McNeil, Kent.

The Post-Delgamuukw Nature and Content of Aboriginal Title , May 2000 (online: https://www.autochthonapn.com/uploads/1/1/0/7/110765783/content__1_.pdf; archived version: https://www.scc- csc.ca/cso-dce/2020SCC-CSC4_2_eng.pdf ).

Montpetit, André, et Gaston Taillefer. Traité de droit civil du Québec , t. 3, Les biens, la propriété, l’usufruit, l’usage, l’habitation, les servitudes réelles, l’emphytéose . Montréal: Wilson & Lafleur, 1945. Morin, Michel. “La coexistence des systèmes de droit autochtones, de droit civil et de common law au Canada”, in Louis Perret and Alain-François Bisson, eds., The Evolution of Legal Systems, Bijuralism and International Trade . Montréal: Wilson & Lafleur, 2003, 159.

Newman, Warren J. “The Rule of Law, the Separation of Powers and Judicial Independence in Canada”, in Peter Oliver, Patrick Macklem and Nathalie Des Rosiers, eds., The Oxford Handbook of the Canadian Constitution . New York: Oxford University Press, 2017, 1031. Normand, Sylvio. Introduction au droit des biens , 2 e éd. Montréal: Wilson & Lafleur, 2014. NunatuKavut Community Council.

Memorandum of Understanding on Advancing Reconciliation , September 5, 2019 (online: https://nunatukavut.ca/site/uploads/2019/09/Memorandum-of-Understanding-on-Advancing-Reconciliation-NCC-Canada- SIGNED.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC4_3_eng.pdf ). NunatuKavut Community Council. Traditional Territory Map , last updated November 15, 2019 (online: https://nunatukavut.ca/about/rights-recognition/; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC4_4_eng.pdf ). Paré, Marie. La requête en jugement déclaratoire . Cowansville, Que.: Yvon Blais, 2001. Pitel, Stephen G.

A., and Nicholas S. Rafferty. Conflict of Laws , 2nd ed. Toronto: Irwin Law, 2016. Private Law Dictionary and Bilingual Lexicons , 2nd ed. Cowansville, Que.: Yvon Blais, 1991, “mixed action”, “personal action”, “real action”. Private Law Dictionary and Bilingual Lexicons: Obligations . Cowansville, Que.: Yvon Blais, 2003, “personal right”, “real right”. Private Law Dictionary and Bilingual Lexicons: Property . Cowansville, Que.: Yvon Blais, 2012, “real right”, “aboriginal title”. Quebec. Assemblée nationale.

Sous-commission des institutions. “Étude détaillée du projet de loi 125 — Code civil du Québec ”, Journal des débats , n o 28, 1 re sess., 34 e lég., 3 décembre 1991, p. SCI-1124 et SCI-1129. Quebec. Civil Code Revision Office. Report on the Québec Civil Code , vol. I, Draft Civil Code . Québec: Éditeur officiel, 1978. Quebec. Civil Code Revision Office. Report on the Québec Civil Code , vol. II, t. 2, Commentaries . Québec: Éditeur officiel, 1978. Quebec. Ministère de la Justice. Commentaires du ministre de la Justice , t. II, Le Code civil du Québec — Un mouvement de société .

Québec: Publications du Québec, 1993. Quebec. Ministère de la Justice. Projet de loi 125: Code civil du Québec , Commentaires détaillés sur les dispositions du projet , Livre X: Du droit international privé et disposition finale (Art. 3053 à 3144) . Québec: Le Ministère, 1991. Reid, Hubert, avec la collaboration de Simon Reid. Dictionnaire de droit québécois et canadien , 5 e éd. Montréal: Wilson & Lafleur, 2015, “ action mixte ”, “ action personnelle ”, “ action réelle ”, “ droit réel ”, “ sui generis ”. Roach, Kent. Constitutional Remedies in Canada , 2nd ed.

Toronto: Thomson Reuters, 2019 (loose-leaf updated October 2019, release 34). Rochon, André, avec la collaboration de Frédérique Le Colleter. Guide des requêtes devant le juge unique de la Cour d’appel: Procédure et pratique . Cowansville, Que.: Yvon Blais, 2013. Sarna, Lazar. The Law of Declaratory Judgments , 4th ed. Toronto: Thomson Reuters, 2016. Saumier , Geneviève. “The Recognition of Foreign Judgments in Quebec — The Mirror Crack’d?” (2002), 81 Can. Bar Rev. 677. Savoie, Réginald, et Louis-Philippe Taschereau. Procédure civile , t.

I, Introduction, Théorie générale, Organisation judiciaire, Action en justice . Montréal: Guérin, 1973. Slattery, Brian. “The Constitutional Dimensions of Aboriginal Title” (2015), 71 S.C.L.R. (2d) 45 . Slattery, Brian. “The Metamorphosis of Aboriginal Title” (2006), 85 Can. Bar Rev. 255. Slattery, Brian. “The Nature of Aboriginal Title”, in Owen Lippert, ed., Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision . Vancouver: Fraser Institute, 2000, 11. Sullivan, R. E. “Interpreting the Territorial Limitations on the Provinces” (1985), 7 S.C.L.R. 511 .

Swan, John. “The Canadian Constitution, Federalism and the Conflict of Laws” (1985), 63 Can. Bar Rev. 271. Thivierge, Jean-Claude. “La requête en jugement déclaratoire en droit immobilier”, dans Service de la formation permanente — Barreau du Québec, vol. 103, Développements récents en droit immobilier . Cowansville, Que.: Yvon Blais, 1998, 37. Walker, Janet. Castel & Walker: Canadian Conflict of Laws , vol. 1, 6th ed. Toronto: LexisNexis, 2005 (loose-leaf updated 2019, release

77). Walters, Mark. “British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia ” (1992), 17 Queen’s L.J. 350. Wass, Jack. “The Court’s In Personam Jurisdiction in Cases Involving Foreign Land” (2014), 63 I.C.L.Q. 103. Watson, Garry D., and Frank Au. “Constitutional Limits on Service Ex Juris : Unanswered Questions from Morguard ” (2000), 23 Adv. Q. 167. Wilkins, Kerry. Essentials of Canadian Aboriginal Law . Toronto: Thomson Reuters, 2018. Ziff, Bruce. Principles of Property Law , 7th ed. Toronto: Thomson Reuters, 2018.

APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Healy and Ruel JJ.A.), 2017 QCCA 1791 , [2018] 4 C.N.L.R. 167, [2017] Q.J. n o 15881 (QL), 2017 CarswellQue 11332 (WL Can.), affirming a decision of Davis J., 2016 QCCS 5133 , [2017] 4 C.N.L.R. 89, [2016] J.Q. n o 14492 (QL), 2016 CarswellQue 10096 (WL Can.). Appeal dismissed, Moldaver, Côté, Brown and Rowe JJ. dissenting. Maxime Faille , Guy Régimbald and Justin Mellor , for the appellant. Jean-François Bertrand , James A . O’Reilly , François Lévesque , Sophia Ladovrechis and Marie-Claude André-Grégoire , for the respondents.

Ian Demers , for the intervener the Attorney General of Canada. No one appeared for the intervener the Attorney General of Quebec. Jeff Echols and Chris Robb , for the intervener the Attorney General of British Columbia. François Fontaine and Andres Garin , for the interveners the Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company Inc. Eamon Murphy and Peter W. Jones , for the interveners Kitigan Zibi Anishinabeg and the Algonquin Anishinabeg Nation Tribal Council. Perri Ravon , Ryan Beaton and Audrey Mayrand , for the intervener Amnesty International Canada. John W.

Gailus and Christopher Devlin , for the intervener the Tsawout First Nation. The judgment of Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ. was delivered by [ 1 ] The Chief Justice and Abella and Karakatsanis JJ. — This appeal raises questions of fundamental importance to the way civil proceedings involving Aboriginal rights are carried out in this country. It has implications for access to justice and the ability of Indigenous peoples to meaningfully assert their constitutional rights in the justice system.

A balance must be struck between the different principles at play, keeping in mind the unique history and nature of Aboriginal rights in Canada. I. Background A. The Parties [ 2 ] The Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John are two distinct First Nations who claim to have occupied a traditional territory they call the Nitassinan since time immemorial. This territory straddles the border between the provinces of Quebec and Newfoundland and Labrador. [ 3 ] Much of this territory was included as part of Lower Canada in 1791 which, in turn, would become Quebec in 1867.

In 1927, the Privy Council clarified the border between Labrador — then part of the British colony of Newfoundland — and Quebec. Newfoundland (which included Labrador) joined Canada as a province in 1949 and changed its name to Newfoundland and Labrador in 2001. [ 4 ] In the early 1950s, the interveners Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company Inc. (“mining companies”) undertook the first phase of what came to be known as the “IOC megaproject”.

Today, the IOC megaproject includes multiple open-pit mines that were formerly operated near the small town of Schefferville, Quebec; nine open-pit mines and related facilities near Labrador City, Newfoundland and Labrador; port, railway and industrial facilities in Sept-Îles, Quebec; and more than 600 km of railway winding through both provinces. It continues to expand. B.

The Claim [ 5 ] In 2013, the Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John as well as a number of chiefs and councillors representing their respective families, bands and nations filed suit against the mining companies in the Superior Court of Quebec in Montréal. [ 6 ] In their originating application, the Innu respondents in this case (“Innu”) claim to have occupied, possessed and managed the Nitassinan according to their customs, traditions and practices since time immemorial.

They assert a right to the exclusive use and occupation of the lands affected by the IOC megaproject, including rights to hunt, fish and trap. They also claim the right to use

and enjoy all the natural resources found on the land. The Innu allege that the IOC 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.

They advance that the mining companies have implemented discriminatory policies and prevented them from circulating freely throughout the Nitassinan. [ 7 ] 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 IOC megaproject; - $900 million in damages; and - a declaration that the IOC megaproject constitutes a violation of Aboriginal title and other Aboriginal rights. [ 8 ] Although the pleading refers to the Nitassinan at large, it also makes clear that it is only the territory affected by the IOC megaproject that is relevant for the purposes of this action.

C. The Motions to Strike [ 9 ] The mining companies eventually filed a motion to strike allegations from the Innu’s pleading. In their view, portions of the claim concern real rights over property situated in Newfoundland and Labrador and, therefore, fall under the jurisdiction of the courts of that province. On the heels of this motion, the Attorney General of Newfoundland and Labrador filed a declaration of voluntary intervention along with its own motion to strike, essentially supporting the mining companies’ arguments. D. The Judgments Below

(1) Superior Court of Quebec, 2016 QCCS 5133 , [2017] 4 C.N.L.R. 89 (Davis J.) [ 10 ] Davis J. dismissed the motions to strike. The mining companies pleaded that Aboriginal title is a real right and that, pursuant to art. 3152 of the Civil Code of Qué bec (“ C.C.Q. ”), the Innu’s action was beyond the jurisdiction of Quebec courts insofar as it concerned property located in Newfoundland and Labrador. The Attorney General for Newfoundland and Labrador supported these arguments and also raised the defense of Crown immunity.

The Innu, for their part, advanced that the action was personal or mixed and proposed to ground jurisdiction in the authority of Quebec courts to order pecuniary and injunctive relief against the mining companies, under arts. 3134 and 3148, para. 1(1) C.C.Q. [ 11 ] For Davis J., the solution to the jurisdictional puzzle lay in properly characterizing the action within the C.C.Q . framework.

He emphasized the importance of considering the Aboriginal point of view in this exercise, concluding that this required recognizing that the occupation of land by Aboriginal peoples predates the establishment of any provincial borders. Davis J. acknowledged that provinces enjoy reciprocal immunities, but found it awkward to apply those immunities when determining rights which predate both provincial borders and, thus, the justification for those immunities.

While admitting that the court seized with the merits of the case would be obliged to draw conclusions regarding the rights of the provinces, he noted that the Innu sought no relief against the Crown of Newfoundland and Labrador. [ 12 ] Davis J. agreed that some aspects of Aboriginal title and rights resemble real rights because they attach to specific territories or sites. Nevertheless, he gave several reasons for declining to characterize the action as a real action. First, he noted that rights recognized and affirmed by s. 35 of the Constitution Act, 1982 , are sui generis in nature.

Moreover, he wrote, recognition of these rights in the case at bar was ancillary to the two principal remedies sought: injunctive and compensatory relief. To succeed in their action against the defendant mining companies, the Innu would have to prove the violation of personal or mixed obligations under arts. 976 and 1457 C.C.Q. By virtue of arts. 3134 and 3148, para. 1(1) C.C.Q. , the Quebec courts thus had jurisdiction to hear the case. [ 13 ] Only Newfoundland and Labrador appealed from this judgment.

(2) Quebec Court of Appeal, 2017 QCCA 1791 , [2018] 4 C.N.L.R. 167 (Morissette, Healy and Ruel JJ.A.) [ 14 ] Ruel J.A., writing for the Court of Appeal, affirmed the judgment of the Superior Court. Ruel J.A. agreed that recognition of the Aboriginal rights claimed was ancillary to the Innu’s primary claim concerning the mining companies’ civil liability. He found the motions judge had not erred in characterizing the action as mixed.

For Ruel J.A., the action could not be characterized as a territorial claim against the state and did not concern property located in Newfoundland and Labrador for at least three reasons. First, the Innu had historically stewarded the Nitassinan without regard to the provincial borders that exist today. Second, the rights invoked by the Innu fell at various points along a spectrum of attachment to the territory and could not be characterized as property rights as these are understood in the civilian tradition.

Finally, fundamental concerns of proportionality and access to justice militated against splitting the claims along provincial lines and inhibiting the Innu’s ability to set out their arguments in full. II. Analysis [ 15 ] There are several aspects of the content of the dissent with which we disagree, but it is not the general practice in this Court for the majority to engage in a point by point refutation of dissenting reasons. Consequently, the fact that we do not mention any particular point raised in the dissent should not be taken as our agreeing with it. A.

Interpreting Book Ten of the C.C.Q. [ 16 ] 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: Quebec, National Assembly, Sous- commission des institutions, “Étude détaillée du projet de loi 125 — Code Civil du Québec ”, Journal des débats , No. 28, 1st Sess., 34th Leg., December 3, 1991, at p. SCI-1124. In considering the connection between a given matter and the province, it is important not to

conflate the adjudicative competence of provincial superior courts with the legislative competence of the province: G. D. Watson and F.Au, “Constitutional Limits on Service Ex Juris: Unanswered Questions from Morguard” (2000), 23 Adv. Q. 167, at pp. 176 and 178; E.Edinger, “Territorial Limitations on Provincial Powers” (1982), 14 Ottawa L. Rev. 57, at p. 63. [17] In order to interpret the rules of Book Ten, we must begin by examining the provisions set out in the C.C.Q., and theninquire into whether a proposed

interpretation is consistent with the underlying principles of comity, order and fairness: Spar AerospaceLtd. v. American Mobile Satellite Corp., 2002 SCC 78, [2002] 4 S.C.R. 205, at para. 23. The second step requires interpreting the rulesof Book Ten in light of the imperatives of our constitutional order: para. 51; J. Walker, Castel & Walker: Canadian Conflict of Laws (6thed. (loose-leaf)), vol. 1, at p. 1-5. As with any statute, the provisions of the C.C.Q. in respect of private international law should beinterpreted in a manner consistent with the Constitution: R. v.

Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 33; Solski (Tutor of) v.Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, at para. 36. Where s. 35 rights are at stake, Book Ten must beinterpreted in a manner that respects constitutionally recognized and affirmed Aboriginal rights and treaty rights, and that takes intoaccount access to justice considerations, which are protected by s. 96 courts: Constitution Act, 1982, s. 35; Constitution Act, 1867, s. 96;Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at para. 82; Trial Lawyers Association of BritishColumbia v.

British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at paras. 36-39. [18] Title Three of Book Ten governs the international jurisdiction of Quebec authorities. It begins by setting out generalrules.

Article 3134, the first provision of

Chapter I, establishes a residual jurisdictional rule, namely that “[i]n the absence of any specialprovision, Québec authorities have jurisdiction when the defendant is domiciled in Québec.” The special provisions referred to in art.3134 are set out in

Chapter II, which establishes specific rules of jurisdiction based on the nature of the action in question. Divisions Iand II address personal and family actions. Division III governs real and mixed actions. Division III contains only three provisions —one of which sets out the general rule that Quebec authorities have jurisdiction to hear a real action if the property in dispute is situated inQuebec (art. 3152), and two exceptions concerning jurisdiction over successions (art. 3153) and matrimonial regimes (art. 3154).

In thecase of a mixed action, Quebec authorities must have jurisdiction over both the personal and real aspects of the matter: CGAO v. GroupeAnderson inc., 2017 QCCA 923, at para. 10 ; Civil Code Revision Office, Report on the Québec Civil Code, vol. II, t. 2,Commentaries (1978), at p. 989. This properly prevents Quebec courts from arrogating jurisdiction over a matter which would otherwisebe beyond their reach merely because the parties have amalgamated multiple claims. [19] The C.C.Q. is silent with respect to the proper analysis for characterizing an action for the purposes of

Chapter II.According to the legislative debates, each provision was intended to generally correspond with the law applicable to a given subjectmatter: Journal des débats, at p. SCI-1129. However, the parallels between the rules governing conflicts of law and conflicts ofjurisdiction are imperfect and conflicts of law rules should not be directly transposed onto the rules governing jurisdiction: C. Emanuelli,Droit international privé québécois (3rd ed. 2011), at Nos. 150 and 380; G. Goldstein, “La qualification en droit international privé selonla perspective de l’article 3078 C.c.Q.”, in S.

Guillemard, ed., Mélanges en l’honneur du professeur Alain Prujiner: Études de droitinternational privé et de droit du commerce international (2011), 195, at pp. 195-96, fn. 1. Where, as here, the dispute involves rightsneither defined in nor directly governed by the C.C.Q., particular caution in transposing those rules is warranted. [20] In the absence of legislative direction, when characterizing an action, it is the nature of the rights at stake and theconclusions sought that must be considered: see, e.g., Bern v. Bern, (QC CA), [1995] R.D.J. 510 (C.A.).

The courts inthis case characterized the action as “mixed”. They properly appreciated the unique nature of s. 35 rights and, with due caution,considered those rights and the conclusions sought through the appropriate C.C.Q. analysis. In our view, the result they reached isjustified. B. Characterizing

Section 35 Rights [21] Enshrined in

Part II of the Constitution Act, 1982, s. 35 rights are a central part of the Canadian constitutional order.Section 35 provides the constitutional framework for both acknowledging the historical fact that Aboriginal peoples lived on the land indistinctive societies prior to European settlement and reconciling that fact with Canadian sovereignty: R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, at para. 31.

This Court has described s. 35 as a commitment that must be given meaningful content,recognizing both the ancient occupation of land by Aboriginal peoples and the contribution of those peoples to the building of Canada: R.v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, at p. 1108; Reference re Secession of Quebec, at para. 82. [22] Reconciliation, the fundamental objective of the modern law of Aboriginal rights, engages the honour of the Crown:Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at paras. 1 and 4.

The dutiesthat flow from the honour of the Crown may vary according to the circumstances in which they arise but, whether we are dealing withthe assertion of sovereignty or the resolution of rights or title claims, the honour of the Crown is always at stake: Haida Nation v. BritishColumbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 16; Manitoba Metis Federation Inc. v. Canada (AttorneyGeneral), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 74.

Indeed, in some circumstances, this doctrine requires the Crown to respectcertain obligations even before s. 35 rights have been conclusively established: Haida Nation, at para. 27. [23] To date, reconciliation and the honour of the Crown have most often been relied upon in the context of Aboriginal andtreaty rights infringements.

This appeal is an opportunity to consider how these doctrines inform the determination of which court hasjurisdiction over a s. 35 claim that straddles multiple provinces. [24] Although s. 35(1) recognizes and affirms “the existing aboriginal and treaty rights of the aboriginal peoples ofCanada”, defining those rights is a task that has fallen largely to the courts.

The honour of the Crown requires a generous and purposiveinterpretation of this provision in furtherance of the objective of reconciliation: Manitoba Metis Federation Inc., at paras. 76-77. [25] As well, this Court has continually stressed the sui generis nature of s. 35 rights, namely the fact that a sui generisright is a unique one [translation] “which it is impossible to fit into any recognized category”: H. Reid, with S. Reid, Dictionnaire dedroit québécois et canadien (5th ed. 2015), at p. 607; see also D.

Dukelow, The Dictionary of Canadian Law (4th ed. 2011), at p. 1256.The unique nature of s. 35 rights flows from both their historical and cultural origins as well as their status as constitutional rights.

[26] In Van der Peet — one of the first cases to consider the nature of s. 35 rights in depth — Chief Justice Lamer went togreat lengths to stress the unique nature of s. 35 rights: Aboriginal rights cannot, however, be defined on the basis of the philosophical precepts of the liberal enlightenment. Although equal inimportance and significance to the rights enshrined in the Charter, aboriginal rights must be viewed differently from Charter rightsbecause they are rights held only by aboriginal members of Canadian society. They arise from the fact that aboriginal people areaboriginal.

As academic commentators have noted, aboriginal rights “inhere in the very meaning of aboriginality”, Michael Asch andPatrick Macklem, “Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow” (1991), 29 Alta. L. Rev. 498, at p. 502;they are the rights held by “Indians qua Indians”, Brian Slattery, “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727, at p.776.

The task of this Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights but which does sowithout losing sight of the fact that they are rights held by aboriginal people because they are aboriginal. The Court must neither losesight of the generalized constitutional status of what s. 35(1) protects, nor can it ignore the necessary specificity which comes fromgranting special constitutional protection to one part of Canadian society.

The Court must define the scope of s. 35(1) in a way whichcaptures both the aboriginal and the rights in aboriginal rights. [Emphasis in original; paras. 19-20] [27] The rights protected by s. 35 range from title to tobacco use and touch all aspects of life from the adoption of childrento honouring burial sites of community ancestors: K. Wilkins, Essentials of Canadian Aboriginal Law (2018), at p. 195.

While many ofthese rights concern the connection between Aboriginal peoples and the land, this Court has cautioned against “focus[ing] so entirely onthe relationship of aboriginal peoples with the land that they lose sight of the other factors relevant to the identification and definition ofaboriginal rights”: Van der Peet, at para. 74. Instead, it has encouraged viewing s. 35 rights as existing along a spectrum with more orless intimate connections to the land.

When both historic occupation and distinctive cultures are acknowledged as sources of Aboriginalrights, courts better accommodate the diverse histories and realities of Aboriginal societies: see, e.g., B. Slattery, “The Metamorphosis ofAboriginal Title” (2006), 85 Can. Bar Rev. 255, at p. 270.

Aboriginal title is thus a sub-category of Aboriginal rights: Van der Peet, atpara. 74. [28] In the context of this case, the Superior Court previously stated that the recognition of Aboriginal rights is notnecessarily a prerequisite to the liability of the mining companies: see Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Compagnieminière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 4403, at paras. 33 and 45-46, leave to appeal refused, 2015 QCCA 2,leave to appeal refused, [2015] 3 S.C.R. vi.

Indeed, the Innu can make a claim under arts. 976 and 1457 C.C.Q. even in the absence of adeclaration of Aboriginal rights, just as any other person could. However, given the arguments raised by the Newfoundland andLabrador Crown, the nature of Aboriginal title merits particular attention. [29] Aboriginal title pre-dates all other interests in land in Canada, arising from the historic occupation of territory bydistinct cultures: Calder v. Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313, at p. 328; Guerin v. TheQueen, (SCC), [1984] 2 S.C.R. 335, at pp. 376-78; Roberts v.

Canada, (SCC), [1989] 1 S.C.R. 322, atp. 340; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010, at para. 114. Like Aboriginal rights moregenerally, Aboriginal title is sui generis. Even before Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para.72, this Court frequently warned against conflating Aboriginal title with traditional civil or common law property concepts, or evendescribing title using the classical language of property law: St. Catherine’s Milling and Lumber Company v.

The Queen (1888), 14 App.Cas. 46 (P.C.), at p. 54; Guerin, at p. 382; Canadian Pacific Ltd. v. Paul, (SCC), [1988] 2 S.C.R. 654, at pp. 677-78;Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), (SCC), [1995] 4S.C.R. 344, at paras. 6-7; Van der Peet, at para. 115 (dissenting reasons of L’Heureux-Dubé J.); St. Mary’s Indian Band v. Cranbrook(City), (SCC), [1997] 2 S.C.R. 657, at paras. 14 et seq.; Delgamuukw, at paras. 111 et seq.; R. v. Marshall, 2005 SCC43, [2005] 2 S.C.R. 220, at para. 129 (concurring reasons of LeBel J.); R. v.

Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 21. [30] Owing to its origins in the special relationship between Indigenous peoples and the Crown, Aboriginal title has uniquecharacteristics that distinguish it from civil law and common law concep

[…]