Section 35 rights are neither real rights nor personal rights

Criminal Law – Aboriginal and Indigenous Law – Constitutional issues – Constitution Act, 1982

Section 35 claims. Two distinct First Nations brought motion seeking compensatory and injunctive relief against mining companies for violations of s. 35 rights enshrined in Part II of Constitution Act, 1982. Attorney General of Newfoundland and Labrador brought motion to strike in order to have allegations and conclusions set out in First Nations’ motion struck insofar as they related to parts of First Nations’ territory located in Newfoundland and Labrador. Motions judge held that Quebec authorities had jurisdiction over such “mixed action” under articles 3134 and 3148 of Civil Code of Québec. He further noted that mining companies were domiciled in Quebec, so Quebec authorities had prima facie jurisdiction. Furthermore, he refused to decline jurisdiction because it was not in interests of justice. Consequently, he dismissed Attorney General of Newfoundland and Labrador’s motion to strike. Attorney General of Newfoundland and Labrador appealed. Court of Appeal dismissed appeal, holding that First Nations’ action was primarily personal, and that Quebec authorities had jurisdiction. Mining companies had their head offices in Quebec and First Nations were alleging an injury suffered in Quebec. It was not in interests of justice to prematurely sever from First Nations’ action any references to Labrador, to rights First Nations may claim over this territory, or to activities of mining companies. Attorney General of Newfoundland and Labrador appealed further. Appeal dismissed. Section 35 rights are neither real rights nor personal rights, but sui generis rights. Access to justice requires that jurisdictional rules applicable to s. 35 claims that straddle multiple provinces be interpreted flexibly. Article 3134 of Code states that “[i]n the absence of any special provision, Québec authorities have jurisdiction when the defendant is domiciled in Québec”. Given that mining companies were headquartered in Montréal, there was no dispute that Quebec authorities would normally have jurisdiction over proceedings against mining companies.

Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam) (2020), 2020 CarswellQue 640, 2020 CarswellQue 641, 2020 SCC 4, 2020 CSC 4, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2017), 2017 CarswellQue 10118, 2017 CarswellQue 11332, 2017 QCCA 1791, Healy J.C.A., Ruel J.C.A., and Morissette J.C.A. (C.A. Que.).

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