Indigenous title lawsuits don’t conform to provincial boundaries, Supreme Court rules

A recent Supreme Court of Canada decision has confirmed the right of Indigenous communities to sue companies for aboriginal title claims that span provinces without needing to file multiple lawsuits.

The ruling on Feb. 21 is the latest development in a years-long attempt by two Quebec Innu groups to sue Rio Tinto (NYSE: RTP; LSE: RIO) and its subsidiary, the Iron Ore Company of Canada (IOC), for a violation of their aboriginal title rights. The communities claim the company’s operations were built without their consent. The case is clear to proceed in Quebec Superior Court after multiple attempts by Rio Tinto and the government of Newfoundland and Labrador to dismiss or significantly amend it.

The Innu of Uashat mak Mani-Utenam and Matimekush-Lac John are seeking $900 million in damages and a permanent injunction against the companies’ operations in Quebec and Labrador, which include multiple open-pit mines near Schefferville, Que. and Labrador City, a railway that cuts through northeastern Quebec and Labrador, and port and industrial facilities in Sept-Îlles, Quebec.

In a 5-4 decision, the Supreme Court dismissed an appeal from the province of Newfoundland and Labrador. The province had sought to reverse a 2017 Quebec Court of Appeal decision that agreed Quebec has the authority to rule on the case, even though it involves jurisdiction outside of the province.

The highest court agreed with the Quebec judgment, finding that aboriginal rights and title are sui generis — rights that defy any recognized category such as civil or common law concepts of property.

In the decision, Chief Justice Richard Wagner wrote that jurisdictional rules should be interpreted more flexibly in aboriginal title claims that involve multiple provinces, to ensure Indigenous peoples are not prevented from asserting their constitutional rights. The “honour of the Crown,” Wagner wrote, requires reducing the costs and complexity of aboriginal rights and title litigation.

“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,” Wagner wrote. “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.”

As well, the court noted, Quebec courts have jurisdiction over defendants domiciled in the province, and both Rio Tinto and the IOC have their head offices in Montreal.

Mining operations at Wabush 3 pit, part of Rio Tinto’s majority-owned Iron Ore Company of Canada operations in the Labrador trough. Credit: Rio Tinto.

Jean-François Bertrand, one of the lawyers representing the Innu of Uashat mak Mani-Utenam, called the ruling a “historic decision” for Indigenous peoples’ ability to access justice.

“It’s going to have implications for all First Nations in Canada where their traditional territory [covers multiple] provinces,” he told The Northern Miner in an interview. “Before the Supreme Court judgment, if you’re a First Nation and your traditional territory was in two provinces, you had to sue in every province.”

For his clients, who speak French, that would have been particularly complicated, Bertrand noted — not only would they have needed to shoulder the cost of lawyers’ and experts’ fees twice and bring witnesses to a second province to testify, but they would have also needed to use translators in a Newfoundland court.

The ruling will have implications for companies with cross-provincial operations whose works interact with Indigenous traditional territory, he added. Going forward, his clients plan to sue Hydro Quebec for the utility’s operations on their traditional territories, which, like Rio Tinto and the IOC’s, span two provinces.

In an emailed statement to The Northern Miner, Rio Tinto — which was an intervener in the case — said the courts’ jurisdictional authority was an issue for governments and Indigenous groups.

“The resolution of these jurisdictional issues is principally a matter between the federal and provincial governments and the Indigenous communities,” the company said. “We are committed to building and maintaining strong relationships with Indigenous peoples in the communities where we operate.”

Notably, in the dissenting opinion, Justice Michael Moldaver wrote that the Quebec decisions should be overturned and the portions of the lawsuit pertaining to operations in Newfoundland should be struck from the lawsuit. “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,” he wrote, saying the decision would have “serious consequences for Canadian federalism.”

While the lawsuit is only now set to go forward in Quebec Superior Court, the case has already set significant legal precedent when it came before the Supreme Court the first time. In 2015, the court rejected Rio Tinto’s attempt to dismiss the Innus’ lawsuit and a similar British Columbia legal action by the Saik’uz and Stellat’en First Nations over a dam built by the company’s predecessor, Alcan. The company argued that Indigenous peoples must sue the government first to prove their aboriginal title before they could pursue companies for allegedly violating it.

The Supreme Court didn’t rule on the challenges, but it did uphold appellate court rulings from Quebec and B.C. that allowed the groups to proceed with their respective lawsuits, allowing Indigenous peoples to sue resource companies without first having to demonstrating their aboriginal title. TNM

— Kelsey Rolfe is a freelance journalist based in Toronto. She has written about the mining sector for more than five years and was previously a section editor at CIM Magazine in Montreal.