r v. UASHAUNNUAT, 2017 QCCA 1791

Procureur général de Terre-Neuve-et-Labrador c. Uashaunnuat (Innus de Uashat et de Mani-Utenam) 2017 QCCA 1791 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-026462-168 (500-17-076401-135) DATE: November 13, 2017 CORAM : THE HONOURABLE YVES-MARIE MORISSETTE, J.A. PATRICK HEALY, J.A. SIMON RUEL, J.A. ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR APPELLANT – Intervener 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 and ADÉLARD JOSEPH CAROLINE GABRIEL, MARIE-MARTHE MCKENZIE, MARIE-LINE AMBROISE and PACO VACHON ALBERT VOLLANT, RAOUL VOLLANT, GILBERT MICHEL, AGNÈS MCKENZIE, PHILIPPE MCKENZIE and AUGUSTE JEAN-PIERRE RESPONDENTS – Plaintiffs and IRON ORE COMPANY OF CANADA (Compagnie minière IOC inc.) QUEBEC NORTH SHORE AND LABRADOR RAILWAY COMPANY INC. (Compagnie de chemin de fer du littoral nord de Québec et du Labrador inc.) IMPLEADED PARTIES – Defendants and Attorney General of Quebec IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The appellant appeals from a judgment rendered October 19, 2016 by the Superior Court, District of Montreal (the Honourable Thomas M.

Davis), dismissing the appellant’s and the impleaded parties’ motions to strike allegations. [ 2 ] For the reasons of Ruel J.A., with which Morissette and Healy J.A. agree, THE COURT: [ 3 ] DISMISSES the appeal; [ 4 ] With legal costs payable by the appellant and impleaded parties in favour of the respondents.

YVES-MARIE MORISSETTE, J.A. PATRICK HEALY, J.A. SIMON RUEL, J.A. Mtre Maxime Faille Mtre Guy Régimbald Gowling WLG (Canada) For the appellant Mtre James O’Reilly, Ad. E. Mtre Marie-Claude André-Grégoire O’Reilly & Associés Mtre Jean-François Bertrand Mtre Isabelle Boisvert-Chastenay Jean-François Bertrand Avocats inc.

For the Uashaunnuat (Innu of Uashat and of Mani-Utenam), Chief Georges-Ernest Grégoire, the Innu Takuaikan Uashat Mak Mani-Utenam Band, Mike McKenzie, Yves Rock, Jonathan McKenzie, Ronald Fontaine, Marie-Marthe Fontaine, Marcelle St-Onge, Évelyne St-Onge, William Fontaine, Adélard Joseph, Albert Vollant, Raoul Vollant, Gilbert Michel, Agnès McKenzie, Philippe McKenzie and Auguste Jean-Pierre Mtre François Lévesque For the Innu of Matimekush-Lac John, the Innu Matimekush-Lac John Nation, Caroline Gabriel, Marie-Marthe McKenzie, Marie-Line Ambroise and Paco Vachon Mtre François Fontaine, Ad. E.

Mtre Andres Garin Norton Rose Fulbright Canada For the Iron Ore Company of Canada (Compagnie Minière IOC inc.), Quebec North Shore and Labrador Railway Company Inc. (Compagnie de chemin de fer du littoral Nord du Québec et du Labrador inc.) Mtre Florence Lavigne-Lebuis Mtre Daniel Benghozi Direction générale des affaires juridiques et législatives Bernard-Roy (Justice-Québec) For the Attorney General of Quebec Date of Hearing: October 20, 2017 REASONS OF RUEL, J.A.

Overview [ 5 ] The appellant, the Attorney General of Newfoundland and Labrador, appeals from a judgment rendered in the course of a proceeding dismissing its application to strike allegations. [ 6 ] This application concerned certain paragraphs of an originating application filed by the Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John (“Innu of UM and of MLJ”). [ 7 ] The Innu invoke the civil liability of the Iron Ore Company of Canada (“IOC”) and of the Quebec North Shore and Labrador Railway Company (“QNS&LR”, a corporation held by the IOC) in connection with the IOC’s industrial development of iron ore extraction in the Labrador Trough beginning in the 1950s. [ 8 ] The Innu claim to hold Aboriginal rights in their ancestral territory, the “Nitassinan”, which overlaps Quebec and Labrador.

Among other things, they invoke, as civil faults, the IOC and QNS&LR’s violation of their Aboriginal rights. [ 9 ] The allegations the appellant seeks to strike are those relating to Labrador. In the appellant’s view, the Innu are attempting to obtain recognition of Aboriginal title and rights in Labrador. These are, they say, real rights over which the courts of Quebec have no jurisdiction. [ 10 ] The trial judge held that, in light of the particular nature of Aboriginal rights, the proceeding cannot be characterized as a real action. The action is, moreover, against private companies and not against the Crown.

The claim also sets out neighbourhood disturbances.

The judge thus characterized the action as mixed, such that the aspects of the claim concerning Labrador may be dealt with in Quebec. [ 11 ] As for the immunity of the provincial Crown, invoked by the appellant, the judge held that it was inapplicable since the Innu seek recognition of existing rights which predate even the founding of the State and its borders. [ 12 ] The appellant’s appeal must fail. [ 13 ] The appellant seeks to classify the Innu’s action as being a strictly real action, although it is not possible to describe Aboriginal rights in terms of traditional property law concepts.

These are sui generis rights. [ 14 ] In any case, the recognition of Aboriginal rights is accessory to the Innu’s claim; they seek to establish the civil liability of private companies and invoke neighbourhood disturbances and Charter violations as well. [ 15 ] If an analogy with property law must be drawn, the action would be primarily personal.

The courts of Quebec have jurisdiction because the IOC and the QNS&LR have their head offices in Quebec. [ 16 ] Moreover, as the judge held, there is a real and substantial connection with Quebec and it is not appropriate to decline jurisdiction in favour of the courts of Newfoundland.

The appellant does not challenge this aspect of the case. [ 17 ] Interprovincial jurisdictional immunity, for its part, cannot be a bar to the jurisdiction of the courts of Quebec over the matter at this stage. [ 18 ] Finally, viewed through the lens of access to justice and proportionality, it would not be in the interests of justice to prematurely sever from the Innu’s action any reference to Labrador, to rights the Innu may claim in this territory, and to the activities of the IOC and the QNS&LR in Labrador. [ 19 ] The Innu should be allowed to outline their arguments in full before the court of competent jurisdiction, that is, the Superior Court of Quebec.

Background [ 20 ] Before the Superior Court of Quebec, the Innu of UM and of MLJ have filed an originating application seeking an injunction and 900 million dollars in damages against the impleaded parties, the IOC and the QNS&LR, companies that operate in the mining sector. [ 21 ] The head offices of the IOC and the QNS&LR are located in Montreal. [ 22 ] The action brought by the Innu targets the IOC’s industrial development of iron ore extraction in the Labrador Trough beginning in the 1950s (the “IOC megaproject”).

The IOC megaproject overlaps territory in the provinces of both Quebec and Newfoundland and Labrador. [ 23 ] The Innu of UM and of MLJ are two distinct First Nations of the Innu people.

They claim historical occupation since time immemorial, and thus before European contact, of a vast traditional territory – the “Nitassinan” – situated on the Quebec-Labrador Peninsula, including territory that currently belongs to Quebec and Labrador. [ 24 ] They allege that they have occupied, possessed, used, controlled and managed the Nitassinan in accordance with the culture, traditions and practices of the Innu people as, among other things, a site for living, burial, spiritual practices, hunting, trapping, fishing, harvesting and transport, notably by waterway.

They assert that their practice of these traditional activities in the Nitassinan has continued until today. [ 25 ] According to the allegations in the application, all mining and other related activities under the auspices of the IOC megaproject is taking place on the Innu of UM’s and of MLJ’s Nitassinan territory.

[ 26 ] The Innu allege that the IOC megaproject has had considerable impact on the practice of their traditional activities in the Nitassinan, notably by depriving them of access to land; by destroying or altering the environment, the landscape, the habitat, the flora and the fauna; by diminishing or affecting the quality of the natural resources; and by causing social, cultural, spiritual and economic damage to members of their communities. [ 27 ] The Innu’s claim is primarily founded upon the civil liability of the IOC and the QNS&LR, who allegedly infringed their Aboriginal rights within the territory of Nitassinan. [ 28 ] They also invoke violations, by the IOC and the QNS&LR, of their Charter rights - notably the rights to security, dignity, and equality – as well as neighbourhood disturbances. [ 29 ] The IOC and the QNS&LR are the only subjects of the application.

The governments of Canada, Quebec and Newfoundland and Labrador are not called as defendants. [ 30 ] The application includes declaratory conclusions according to which the Innu of UM and of MLJ would enjoy Aboriginal title and rights over the Nitassinan, and that the activities undertaken under the auspices of the IOC megaproject violate their rights. They therefore seek injunctive relief and damages from the IOC and the QNS&LR. [ 31 ] The action, complex both procedurally and in law, is still at the early stages before the Superior Court.

Many incidental applications have delayed the unfolding of the proceedings. [ 32 ] In September 2014, the Superior Court dismissed an application for dismissal of the Innu’s applications, filed by the IOC and the QNS&LR, which essentially submitted that the Aboriginal rights claimed, but not yet judicially recognized, may not serve as a basis for an action in civil liability against a private party. [1] [ 33 ] On this question, the judge noted that a person’s civil liability does not necessarily result from the presence of an existing duty.

Fault may also be found in actions that constitute a marked departure from those of a reasonable person in a similar situation, which may include the acts of third parties with respect to Aboriginal people. [ 34 ] Moreover, according to the judge, the Innu’s action also rests upon liability for neighbourhood disturbances.

Consequently, it is not possible at this stage to assert that it is plain and obvious that the action undertaken against the IOC and the QNS&LR lacks a basis in law. [ 35 ] In April 2014, being of the view that the application filed by the Innu of UM and of MLJ engages the constitutional rights of Canada, the province of Quebec and the province of Newfoundland and Labrador, the Superior Court ordered the respondents to serve notices of constitutional questions to the attorneys general. [2] Only the Attorney General of Quebec appeared in the file. [ 36 ] The appellant, the Attorney General for Newfoundland and Labrador, obtained leave to intervene before the Superior Court in order to demonstrate that the courts of Quebec do not have jurisdiction over the aspects of the dispute concerning Newfoundland and Labrador. [3] The Innu had opposed this intervention, raising the private nature of their dispute with the IOC and the QNS&LR. [ 37 ] The appellant then filed an application to strike numerous allegations in the Innu’s application concerning facts or conclusions related to the territory of Labrador, arguing these fall outside the jurisdiction of the courts of Quebec. [ 38 ] According to the appellant, [ translation ] “the courts of Quebec do not have jurisdiction over either the defendants’ activities or the rights claimed by the plaintiffs over territories beyond the territorial limits of Quebec.” [4] Subsidiarily, the appellant asks that the allegations and conclusions be amended to include only facts, activities and rights concerning Quebec. [ 39 ] IOC and the QNS&LR filed a similar application, alleging that the Superior Court of Quebec may not adjudicate the existence of real rights outside the province of Quebec or rights that would exist with respect to the Crown in right of another province. [ 40 ] In the judgment under appeal, rendered October 19, 2016, the Superior Court dismissed both applications to strike allegations. [5] [ 41 ] The judge held that the Innu’s action was mixed in nature, which could be decided in Quebec, and not a real action which would need to be submitted to the courts of Newfoundland and Labrador. [ 42 ] Moreover, the judge was of the view that the action had a real and substantial connection with Quebec and that it was not appropriate to decline jurisdiction in favour of the courts of Newfoundland and Labrador. [ 43 ] Finally, the judge believed that interprovincial jurisdictional immunity was not applicable in the case at hand since the Innu did not seek to have new rights recognized that could affect the government of Newfoundland and Labrador’s autonomy to act within its legislative competence.

Rather, this was a matter of recognizing pre-existing rights. [ 44 ] Only the Attorney General for Newfoundland and Labrador appeals from the first instance judgment. It raises two grounds of appeal. [ 45 ] First, the Innu’s action relates to real rights, specifically to land located in Labrador and, consequently, the courts of Quebec have no jurisdiction over the dispute. [ 46 ] Second, the action engages interprovincial jurisdictional immunity insofar as the Superior Court of Quebec cannot have jurisdiction over the interests of the Newfoundland and Labrador Crown. Analysis

The true nature of the appellant’s application [ 47 ] The appellant essentially seeks to strike allegations from a complex Aboriginal law application with the aim of removing any references to Labrador. [ 48 ] The appellant explains that at the time the application was filed, the new Code of Civil Procedure was not yet in force and it was not possible to seek partial dismissal of the application. [6] This is why it is presenting an application to strike allegations, raising the Quebec court’s lack of jurisdiction over the aspects of the dispute that concern Labrador. [ 49 ] As the judge of this Court who granted leave to appeal from the first instance judgment emphasized [ translation ] “in the guise of a motion to strike allegations, the applicant presented a ground for declining jurisdiction by asking the court to remove the paragraphs of the pleading that concern the territory of Newfoundland and Labrador.” [7] [ 50 ] Despite the characterization of the pleading (to strike allegations), the first instance judge was aware that it was, in essence, an application for partial dismissal on the basis of the Superior Court’s lack of jurisdiction. [8] [ 51 ] Thus, it is through this lens that I will examine the first instance judgment. [9] Is this a real action? [ 52 ] Applying the Civil Code of Québec ’s rules of private international law, in principle the courts of Quebec have jurisdiction over the dispute since the IOC and the QNS&LR have their head offices in Quebec and because the Innu allege an injury suffered in Quebec. [10] [ 53 ] The appellant argues that, interpreted a contrario ,

article 3152 of the Civil Code of Québec means that the judicial authorities of Quebec do not have jurisdiction in a real action if the property in dispute is not located in Quebec. [ 54 ] It was in this context that the first instance judge considered the true nature of the action undertaken by the Innu. [ 55 ] He highlighted that the action was against the IOC and the QNS&LR, [11] and not against the governments.

Even if the Innu invoke the violation of their Aboriginal rights, it is the faulty actions of the IOC and of the QNS&LR that are challenged: [ translation ] “in the event that the allegations are proven, the IOC and the QNS&LR seem to be liable for the damages if, in the circumstances, they committed a fault.” [12] [ 56 ] The judge observed that some components of Aboriginal title, and other Aboriginal rights, are of the nature of real rights. [13] This does not mean, however, that this is a real action. [14] [ 57 ] According to the judge, even if the Innu must prove their Aboriginal rights over the portions of the Nitassinan affected by the IOC megaproject in order to succeed, [ translation ] “this aspect of the action is ancillary to their claim for damages [against the IOC and the QNS&LR]”. [15] [ 58 ] As the judge wrote, [ translation ] “[c]an the Innu demonstrate that the IOC and the QNS&LR failed to respect their duty of diligence or that they acted in a way that informed them that they held the land for their own ends?

At this stage, the Court does not know, but these questions illustrate how the Innu’s action goes beyond a simple real action.” [16] [ 59 ] The judge also noted that, in addition to extra-contractual civil liability, the Innu invoke no-fault liability for neighbourhood disturbances. [17] [ 60 ] The judge was therefore of the view that the action undertaken by the Innu is a mixed action, over which the courts of Quebec have jurisdiction. [18] [ 61 ] In my view, the judge did not err with respect to this issue. [ 62 ] Real rights concern [ translation ] “an immediate and direct relationship between a thing [moveable or immoveable] and the person who has more or less complete power over the thing” and which are [ translation ] “opposable not only against a given person, but with respect to and against all.” [19] [ 63 ] A real action therefore aims to achieve judicial recognition or protection of a real right (for example: the rights of ownership, servitude, usufruct, hypothec) which may attach to moveable or immoveable property. [20] [ 64 ] Personal rights are related to [ translation ] “a link of obligation existing between two given individuals [and] are only opposable against the person owing the obligation and those bound by the former’s undertakings.” [21] The creditor of a personal right may exercise the right against the debtor only, that is to say the obliged person. [22] [ 65 ] A personal action therefore seeks judicial recognition of an obligation, whether it be contractual or extra-contractual. [23] [ 66 ] Mixed actions, these are [ translation ] “actions by which the plaintiff simultaneously seeks recognition of a real right and the execution of an obligation.” [24] An example of a mixed action would be an action seeking to compel the transfer of title to an immoveable (the real aspect) following a sale or a gift (the personal aspect). [25] [ 67 ] The appellant seeks to characterize the Innu’s action as being a strictly real action, from a civilian property law perspective.

More specifically, it seeks to qualify Aboriginal rights as a sort of dismemberment of the right of ownership. [ 68 ] These arguments raise conceptual obstacles when applied to Aboriginal rights. Indeed, it is not possible to describe Aboriginal title, or Aboriginal rights more generally, in terms of traditional property law concepts. [26]

[ 69 ] Aboriginal rights, be they to Aboriginal title or other rights, are linked to both categories of rights (real rights, personal rights). They are, however, different, unique and unclassifiable.

They are sui generis rights. [27] [ 70 ] Aboriginal rights are collective, [28] not individual, which in itself poses classification challenges within the realm of property law. [ 71 ] Aboriginal rights “fall along a spectrum with respect to their degree of connection with the land.” [29] At one end of the spectrum, certain rights attach to customs or traditions that form part of the distinctive culture of the group in question. Others attach to cultural or spiritual activities. Aboriginal rights at the center of the spectrum attach to the pursuit of traditional activities on a given territory.

Finally, at the other end of the spectrum, is Aboriginal title. [30] [ 72 ] In the present case, the Innu invoke violations across the spectrum of Aboriginal rights by the IOC and the QNS&LR. [ 73 ] The Innu advance that the IOC and the QNS&LR have violated their Aboriginal title.

Aboriginal title allows the Aboriginal community to pursue certain activities on the land, [31] although these activities are limited in nature and scope insofar as they may not be irreconcilable with the nature of the community’s attachment to the land in question. [32] [ 74 ] Aboriginal title does not confer ownership rights in the land at issue, in either the civilian or the common law sense; the Crown retains title burdened with the Aboriginal rights pre-dating the Crown’s assertion of sovereignty. [33] [ 75 ] Contrary to a traditional right of ownership, in the common law or civilian sense, Aboriginal title is inalienable and may not be transferred, surrendered or sold to anyone but the Crown. [34] [ 76 ] Even though it has some of the qualities of a real right in that it attaches to land, [35] Aboriginal title has other elements that may be characterized as “personal” between the Aboriginal community in question and the Crown. [ 77 ] Indeed, the Crown owes a fiduciary duty to Aboriginal people with respect to their ancestral territory and may not encroach upon Aboriginal title unless the encroachment is justified in reconciling the interests of Aboriginal peoples and the broader public interest. [36] [ 78 ] The Innu also argue that the IOC and the QNS&LR have violated their other Aboriginal rights.

Aboriginal rights attach to traditional activities that are part of “ a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” [37] This includes, notably, rights to harvest, hunt, fish and trap. [ 79 ] Where the ancestral and continuous pursuit of an activity is demonstrated on a territory, the group has proved that it holds an Aboriginal right to pursue the activity “even if they have not shown that their occupation and use of the land was sufficient to support a claim of [Aboriginal] title to the land”. [38] [ 80 ] While Aboriginal rights may be linked to a given territory, they are not akin to traditional property rights: “[t]hey are rights held by a collective and are in keeping with the culture and existence of that group.

Courts must be careful, then, to avoid the application of traditional common law concepts of property”. [39] [ 81 ] Once again, the Crown owes a fiduciary obligation of a personal nature to a community that holds Aboriginal rights, in that it must act so as to protect the best interests of the community in making any decision that may affect its rights. [40] [ 82 ] Moreover, based on the fiduciary obligations of the Crown towards Aboriginal peoples, there is also a duty to consult and to accommodate Aboriginal communities, which is personal in nature, prior to making decisions likely to have an adverse effect on their claims to Aboriginal rights or title. [41] [ 83 ] These obligations of consultation and accommodation are “part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty [by the Crown] and continues beyond formal claims resolution.” [42] Indeed, “[w]ith this assertion arose an obligation to treat aboriginal [sic] peoples fairly and honourably, and to protect them from exploitation”. [43] [ 84 ] Finally, the Innu plead that the IOC and the QNS&LR have infringed upon their right to pursue traditional social, cultural and spiritual activities.

According to the allegations, these are customs and traditions integral to the distinctive culture of the Innu.

These rights are found at the other end of the spectrum of Aboriginal rights because they are more loosely tied to the land. [ 85 ] In sum, from a conceptual point of view, it is not possible to classify the Aboriginal rights claimed here as real rights, as the appellant would argue. [ 86 ] In any case, the eventual recognition of the Aboriginal rights alleged is accessory to the Innu’s claim which seeks to establish the civil liability of the IOC and the QNS&LR in pursuit of orders for injunctive relief and damages against these private companies. [ 87 ] Following Haida Nation v.

British Columbia (Minister of Forests) , the duty to consult Aboriginal nations rests with the Crown.

This does not, however, eliminate the eventual liability of mining companies that obtain rights to extract natural resources on a given territory. [ 88 ] Indeed, “[i]f they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they [third parties] may be held legally liable.” [44] [ 89 ] This is the foundation upon which the Innu have built their action against the IOC and the QNS&LR. [ 90 ] To prevail in this case, the Innu must establish their Aboriginal rights on the parts of the Nitassinan occupied by the IOC megaproject, that the IOC and the QNS&LR were or should have been aware of these rights, [45] and that the IOC and the QNS&LR acted negligently towards them.

[ 91 ] This strategy is not without its drawbacks for the Innu because, as their counsel admitted, a favourable holding against the IOC and the QNS&LR in this case would not lead to a recognition of Aboriginal rights over the Nitassinan opposable to governments. [ 92 ] Indeed, the action is not a global territorial claim to the Nitassinan territory by the Innu of UM and of MLJ against the State.

It is a civil liability action brought against private companies. [ 93 ] In addition to the civil liability of the IOC and the QNS&LR based on the violation of Aboriginal rights, the Innu also invoke violations of their guaranteed Charter rights as well as neighbourhood disturbances. [ 94 ] It is not possible, therefore, to assert that the courts of Quebec do not have jurisdiction because the “property in dispute” [46] is located in Labrador. [ 95 ] If an analogy with property law must be drawn, the Innu’s action is primarily a personal action in extra-contractual liability. [ 96 ] In any case, as the first instance judge highlighted, the nature of this action in Aboriginal law calls for prudence so as not to strip the Superior Court of jurisdiction with undue haste. [47] Is the action barred by interprovincial jurisdictional immunity? [ 97 ] The judge held that the interprovincial jurisdictional immunity of the Crown in right of Newfoundland and Labrador was not applicable.

Indeed, the Innu do not seek a condemnation against the Crown, but rather, and for limited means, the recognition of existing rights that predate even the founding of the State. [ 98 ] In this context, Aboriginal rights limit the exercise of both federal and provincial jurisdiction. [ 99 ] Moreover, according to the judge, [ translation ] “the theory of Crown immunity is ill-fitting where a First Nation claims Aboriginal rights that overlap two provinces.” [48] [ 100 ] Without deciding the question, I am of the view that interprovincial jurisdictional immunity cannot, at this stage, be an obstacle to the jurisdiction of the Quebec courts over this dispute. [ 101 ] In this case, it has been established that the courts of Quebec have international jurisdiction over the dispute. [ 102 ] The appellant indicates in its brief that “a ruling in the Québec Superior Court in relation to land within the borders of NFLD&L clearly would not and could not have the effect of ousting the jurisdiction of the courts of that province to make pronouncements in regard to Aboriginal rights relating to those same lands.” [ 103 ] The Innu admit that the declarations the Superior Court may make with respect to Aboriginal rights over the Nitassinan will not bind the governments of Canada, Quebec and Newfoundland and Labrador. [ 104 ] If the Innu wish to have their broad Aboriginal claims to Labrador recognized, they will have to negotiate with the government of Newfoundland and Labrador or seize the courts of that province in the context of a global claim. [ 105 ] However, as discussed above, such is not the objective of this dispute. [ 106 ] If it so wishes, the appellant may participate in the proceedings before the Superior Court in the action brought by the Innu against private companies in order to assert its rights and interests. [ 107 ] It may invoke, if it deems appropriate, interprovincial jurisdictional immunity, present any evidence or raise any other ground to deny, oppose or modulate the Innu’s claims over the territory of Labrador. [49] It may make observations concerning the wording of the court’s orders so that these do not encroach upon the rights and interests of the province of Newfoundland and Labrador. [ 108 ] In sum, the appellant suffers no prejudice from the continuation of the action in its current form before the Superior Court of Quebec.

Concerns relating to access to justice and proportionality [ 109 ] Regardless of the answers to the two specific questions raised by the appellant, the application to strike allegations raises fundamental questions of access to justice and proportionality in relation to an action concerning Aboriginal rights in an interprovincial context. [ 110 ] Indeed, the Nitassinan, over which the Innu of UM and of MLJ claim to have rights, overlaps the two provinces.

According to the allegations in the application, the Innu historically pursued their activities across the territory of Nitassinan freely and without regard for borders. [ 111 ] The first instance judge noted that the principles of law which govern Aboriginal rights apply across all of Canada, again without regard to borders. [50] [ 112 ] In this context, [ translation ] “[c]an it be said that it is in the interests of justice for essentially the same debate to take place before two jurisdictions both bound to apply the same law, especially when the two courts that will hear the cases are both federally appointed?” [51] [ 113 ] Without adopting the reasons of the first instance judge on this point, I share his concerns regarding access to justice and the proportionality of proceedings.

[114] The appellant wishes to sever and compartmentalize, at an early stage, aspects of the Innu’s application that would concern, onone hand, the province of Quebec, and on the other, Labrador. [115] The judge posed the following question: [translation] “is it only accounts of the situation in Quebec that will be allowed […] in acontext where the Innu have historically ignored the border?”[52] [116] He answered this question in the negative, indicating that it is [translation] “doubtful that the recounting of evidence andtraditional customs by the elders will draw a distinction between what occurs in Newfoundland and Labrador or Quebec.”[53] [117] In my view, it would not be in the interests of justice to prematurely sever from the Innu’s action any references to Labrador, tothe rights the Innu may claim over this territory, or to the activities of the IOC and the QNS&LR. [118] The Innu should be able to set out their arguments, not piecemeal but in full, before the court that has jurisdiction over the actionundertaken against the IOC and the QNS&LR, that is the Superior Court of Quebec. [119] In conclusion, I express the wish that this action initiated in 2013 may now proceed promptly so that judgment may be renderedby the Superior Court of Quebec within a reasonable period of time. [120] For these reasons, I propose to dismiss the appeal, with legal costs payable by the appellant and the impleaded parties in favourof the respondents.

SIMON RUEL, J.A. [3] Uashaunnuat (Innus de Uashat et de Mani-Utenam) c.Compagnie minière IOC inc. (Iron Ore Company of Canada),2016 QCCS 1958. [7] Procureur général de Terre-Neuve-Labrador c. Uashaunnuat(Innus de Uashat et de Mani-Utenam), 2017 QCCA 14, para. 14. [11] Judgment Under Appeal, para. 68. [26] Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010, para. 190; Tsilhqot’in Nation v. BritishColumbia, 2014 SCC 44 , [2014] 2 S.C.R. 256, para. 72. [33] St. Catherine’s Milling & Lumber Company v. The Queen (1888), 14 App. Cas. 46, p. 55; Tsilhqot’in Nation v.

British Columbia,supra, note 26, para. 69-73; Claire L’Heureux-Dubé and Ghislain Otis, “L’héritage de Calder et la Cour suprême du Canada”, inGhislain Otis, Droit, territoire et gouvernance des peuples autochtones (Quebec, Les presses de l’Université Laval, 2004) 1, p. 3. [45] Tsilhqot’in Nation v. British Columbia, supra, note 26, para. 38.