Feb. 26, 2020

Professor cited in SCC decision

Professor Robert Hamilton was cited in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam).

In 2013, two Innu First Nations, as well as a number of chiefs and councillors, 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.

Robert's article “Private Property and Aboriginal Title: What is the Role of Equity in Mediating Conflicting Claims?” (2018), 51 U.B.C. L. Rev. 347, argues that the most significant treatment of the issue, the Chippewas of Sarnia Band v. Canada (Attorney General) decision, in which the Ontario Court of Appeal relied on equitable doctrines to bar an Aboriginal title claim which would have impacted private property, should not be taken as persuasive authority.

Read the full decision