James A. O’Reilly

Two Innu First Nations filed suit in the Quebec Superior Court against mining companies operating a megaproject straddling Quebec and Newfoundland and Labrador, seeking a permanent injunction, $900 million in damages, and declarations recognizing Aboriginal title and other Aboriginal rights over a traditional territory called Nitassinan.

The Attorney General of Newfoundland and Labrador moved to strike allegations relating to land situated in that province, arguing Quebec courts lacked jurisdiction.

The majority held that the claim was a non-classical mixed action involving sui generis Aboriginal rights (not real rights in the civil law sense) and personal obligations, and that Quebec courts had jurisdiction over both aspects under arts. 3134 and 3148 C.C.Q. because the defendant mining companies were domiciled in Montreal.

The dissent would have allowed the appeal, finding that Aboriginal title and other Aboriginal rights are real rights for private international law purposes, that art. 3152 C.C.Q. deprived Quebec courts of jurisdiction over claims relating to land outside Quebec, and that allowing such jurisdiction would seriously undermine Canadian federalism and ultimately impede access to justice for Indigenous claimants.

This endorsement addresses two motions to intervene in a land claim action brought by the Cree Nation of Eeyou Istchee against the Crown.

The Moose Cree First Nation sought to intervene as a necessary party, claiming exclusive Aboriginal title to a portion of the disputed lands.

The Nishnawbe Aski Nation (NAN), a political territorial organization representing 49 First Nations, sought to intervene as an added party, asserting a general interest in the interpretation and application of Treaty #9.

The court granted the Moose Cree First Nation status as a necessary party without conditions under Rule 5.03, acknowledging its direct territorial claim.

The Nishnawbe Aski Nation was granted status as a friend of the court under Rule 13.02, with specific limitations on its participation, as it lacked a direct or immediate interest in the substance of the claim independent of its members.

The court emphasized the complexity of multi-lateral disputes between First Nations in the context of reconciliation.

Two Indian bands appealed dismissal of claims alleging that the Crown, as fiduciary, was obliged to invest oil and gas royalties held in the Consolidated Revenue Fund and had breached its obligations by paying interest under a long-term government bond formula.

The Court held that while the Crown owed fiduciary duties arising from the surrenders and trust-like relationship, the Indian Act, Financial Administration Act, and Indian Oil and Gas Act did not authorize the Crown to invest the royalties and instead required the funds to remain in the CRF subject to statutory payment mechanisms.

The Court further held that the chosen interest methodology was not imprudent, that the Crown was neither unjustly enriched nor unlawfully conflicted by the statutory arrangement, and that the money management provisions of the Indian Act did not violate s. 15(1) of the Charter.

The appeals were dismissed with costs.