Supreme Court of Canada **Attorney General of Newfoundland and Labrador v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam)** **2020 SCC 4** --- ## Parties **Appeal Heard:** April 24, 2019

Judgment Rendered: February 21, 2020 Docket: 37912 Between: Attorney General of Newfoundland and Labrador Appellant and 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, Adélard Joseph, Caroline Gabriel, Marie-Marthe McKenzie, Marie-Line Ambroise, Paco Vachon, Albert Vollant, Raoul Vollant, Gilbert Michel, Agnès McKenzie, Philippe McKenzie and Auguste Jean-Pierre Respondents — and — Attorney General of Canada, Attorney General of Quebec, Attorney General of British Columbia, Iron Ore Company of Canada, Quebec North Shore and Labrador Railway Company Inc., Kitigan Zibi Anishinabeg, Algonquin Anishinabeg Nation Tribal Council, Amnesty International Canada and Tsawout First Nation Interveners Official English Translation: Reasons of Brown and Rowe JJ. Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. Joint Reasons for Judgment: (paras. 1 to 73) Joint Dissenting Reasons: (paras. 74 to 297) Wagner C.J. and Abella and Karakatsanis JJ. (Gascon and Martin JJ. concurring) Brown and Rowe JJ. (Moldaver and Côté JJ. concurring) --- ## Indexed As Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam) 2020 SCC 4 File No.: 37912. 2019: April 24; 2020: February 21. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for quebec --- ## Headnotes Private international law — Jurisdiction of Quebec court — Innu claimants filing suit in Quebec Superior Court against mining companies operating project in parts of both Quebec and Newfoundland and Labrador — Claimants seeking permanent injunction, damages and declaration that mining companies' project violates Aboriginal title and other Aboriginal rights — Mining companies and Newfoundland and Labrador Crown seeking to strike portions of claim concerning property situated in that province — Whether Quebec courts have jurisdiction over entire claim — Civil Code of Québec, arts. 3134, 3148. In 2013, two Innu First Nations, as well as a number of chiefs and councillors ("Innu"), 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. Held (Moldaver, Côté, Brown and Rowe JJ. dissenting): The appeal should be dismissed. Per Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ.: The Superior Court of Quebec has jurisdiction over the entire claim. The action is properly characterized as a non-classical mixed action that involves the recognition of sui generis rights and the performance of obligations. Since both mining companies are headquartered in Montréal, Quebec courts have jurisdiction over the personal and the sui generis aspects of the claim pursuant to art. 3148 and art. 3134 C.C.Q. Book Ten of the C.C.Q. sets out the rules governing private international law in the province. In the spirit of comity, these rules limit the jurisdiction of Quebec authorities to matters closely linked to the province. The C.C.Q. is silent with respect to the proper analysis for characterizing an action for the purposes of Chapter II, which establishes specific rules of jurisdiction based on the nature of the action in question. In the absence of legislative direction, when characterizing an action, it is the nature of the rights at stake and the conclusions sought that must be considered. The rules of Book Ten must be interpreted in light of the imperatives of our constitutional order and in a manner consistent with the Constitution. Where s. 35 rights are at stake, Book Ten must be interpreted in a manner that respects constitutionally recognized and affirmed Aboriginal rights and treaty rights, and that takes into account access to justice considerations. Aboriginal rights, including the sub‑category of Aboriginal title, are sui generis in nature. A sui generis right is a unique one, which it is impossible to fit into any recognized category. Aboriginal title is not to be conflated with traditional civil or common law property concepts, or described using the classical language of property law, as it has unique characteristics that distinguish it from civil law and common law conceptions of property, including features that are incompatible with property as it is understood in the civil law and common law. For example, Aboriginal title is inherently collective and it restricts both the alienability of land and the uses to which land can be put. Aboriginal title is also firmly grounded in the relationships formed by the confluence of prior occupation and the assertion of sovereignty by the Crown, which give rise to obligations flowing from the honour of the Crown that are clearly more akin to personal rights. Disputes involving Aboriginal title must also be understood with reference to Aboriginal perspectives. Section 35 rights are neither real rights nor personal rights as defined in the civil law, nor a combination of the two, but legally distinct sui generis rights. In the context of s. 35 claims that straddle multiple provinces, access to justice requires that jurisdictional rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their constitutional rights, including their traditional rights to land. Moreover, the honour of the Crown requires increased attention to minimizing costs and complexity when litigating s. 35 matters. 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. 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. Though the provinces have no legislative jurisdiction over s. 35 rights, their courts certainly adjudicate them. Adjudicative jurisdiction over property outside of the province can be conferred in the s. 35 context because it concerns sui generis rights, not real rights, and it operates uniformly across Canada. The determination of whether a claimed Aboriginal or treaty right enjoys constitutional protection under s. 35 is a matter of constitutional law. Neither s. 35 nor constitutional law is foreign to Quebec or its courts. The claim in the instant case falls into the mixed action category. In order for a Quebec court to have jurisdiction over a classical mixed action, it must have jurisdiction over both the personal and real aspects of the matter. However, this claim is a not a classical mixed action. It is rather a mixed action that involves seeking the recognition of a sui generis right (a declaration of Aboriginal title) and the performance of various obligations related to failures to respect that right (damages in delict and neighbourhood disturbances), that is, a personal aspect. In the context of such a non-classical mixed action, a Quebec court has jurisdiction over both the personal and the sui generis aspects of the claim. Actions in delict and neighbourhood disturbances are generally characterized as personal actions and art. 3148 C.C.Q. grants Quebec authorities jurisdiction over personal actions of a patrimonial nature where the defendant is domiciled in Quebec. With respect to the aspects of the claim that relate to the recognition of a sui generis right, such as a s. 35 right, the C.C.Q. does not include any special provision to establish the jurisdiction of Quebec authorities in such circumstances. Therefore, art. 3134, which states that "[i]n the absence of any special provision, Québec authorities have jurisdiction when the defendant is domiciled in Québec", applies. Given that the mining companies are both headquartered in Montréal, Quebec authorities have jurisdiction over both aspects of this non‑classical mixed action pursuant to arts. 3134 and 3148 C.C.Q., which are sufficient to ground the jurisdiction of Quebec authorities. Per Moldaver, Côté, Brown and Rowe JJ. (dissenting): The appeal should be allowed, the judgments of the Superior Court and the Court of Appeal should be set aside, the motion to strike allegations of the Attorney General of Newfoundland and Labrador should be allowed in part, and it should be ordered that the conclusions of the Innu's motion to institute proceedings that are declaratory or injunctive in nature and that relate to their traditional territory or to the megaproject be amended so that they apply only to acts, activities or rights within Quebec's territory. 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. Finding that the Quebec Superior Court has jurisdiction to issue a declaration recognizing Aboriginal rights in the part of the traditional territory that is situated in Newfoundland and Labrador would have serious consequences for Canadian federalism. Far from promoting access to justice or reconciliation with Indigenous peoples, it would lead to increased litigation and delays, as well as confusion and loss of confidence in our justice system. The jurisdiction of provincial superior courts is governed first and foremost by the rules of private international law, which in Quebec are set out in the C.C.Q. It is these rules that sometimes authorize provincial superior courts to exercise their powers with respect to persons or property not situated within the province's territory. It is therefore not possible to disregard these rules and rely solely on an inherent jurisdiction that is, in principle, exercisable only within the province. The rules of private international law are of a different, legislative nature and confer authority. Only these rules can authorize the extraterritorial exercise of a power that otherwise is limited to a single territory. However, the rules of private international law must themselves be consistent with the territorial limits created by the Constitution, which means that they may also be subject to constitutional scrutiny in light of those limits. Canada's constitutional framework limits the external reach of provincial laws and of a province's courts. As the Court has already recognized, the Constitution assigns powers to the provinces but limits the exercise of those powers to each province's territory. These territorial restrictions created by the Constitution are inherent in the Canadian federation. The general criterion for jurisdiction in private international law is the defendant's domicile, as stated in art. 3134 C.C.Q. However, as that provision expressly indicates, the general rule it states is subsidiary in nature: the rule applies only "[i]n the absence of any special provision". The special provisions in the C.C.Q. that displace this subsidiary rule govern the international jurisdiction of Quebec authorities over personal actions of an extrapatrimonial and family nature (arts. 3141 to 3147 C.C.Q.), personal actions of a patrimonial nature (arts. 3148 to 3151 C.C.Q.) and real or mixed actions (arts. 3152 to 3154 C.C.Q.). It is therefore necessary to characterize the action in question in order to determine the international jurisdiction of Quebec authorities over a case. Private international law must be interpreted on the basis of the lex fori, because it is necessary to favour, as a matter of principle, the application of domestic civil law characterizations in private international law. The personal action, real action and mixed action concepts referred to in the special provisions of Title Three of Book Ten of the C.C.Q. should therefore be defined on the basis of Quebec law. Because it is inherent in the nature of private international law to be confronted with institutions that are unknown to it, the rules of private international law must be approached with some flexibility so as to include institutions that, although legally distinct, are analogous to the categories recognized by the civil law. Aboriginal title and other Aboriginal or treaty rights must clearly be considered "real rights" for the purposes of private international law. More specifically, they resemble or are at least analogous to the domestic institution of real rights because they are rights in property, namely the land subject to Aboriginal title, and they are rights enforceable erga omnes, that is, against governments and others seeking to use the land. Aboriginal title confers the right to decide how the land will be used, the right of enjoyment and occupancy of the land, the right to possess the land, the right to the economic benefits of the land, and the right to proactively use and manage the land. The fact that Aboriginal title and Aboriginal or treaty rights are sui generis in nature does not preclude them from being found to be real rights for the purposes of private international law — their sui generis nature relates to their source, content and characteristics, which simply cannot be completely explained by reference to the common law or civil law rules of property law. A real action is an action through which a person seeks the recognition or protection of a real right. Because Aboriginal title and other Aboriginal or treaty rights are real rights for the purposes of private international law, it necessarily follows that, in this case, the aspect of the Innu's action whose purpose is to have such rights recognized and protected constitutes a real action or, at best, a mixed action falling under Division III of Chapter II of Title Three of Book Ten of the C.C.Q. According to well‑established jurisprudence, Quebec authorities lack jurisdiction to hear a real action if the property in dispute is situated outside Quebec. Article 3152 C.C.Q. must be read in accordance with the modern approach to statutory interpretation, which applies when interpreting an article of the C.C.Q. It must be read in light of the principles of comity, order and fairness, which inspire the interpretation of the various private international law rules. This article affirms a well‑established principle, which is that Quebec authorities lack jurisdiction over an immovable real action where the subject matter of the dispute is situated outside Quebec. It also extends this principle to movable real actions — in real actions, whether immovable or movable, Quebec authorities lack jurisdiction where the subject matter of the dispute is not situated in Quebec. In particular, the defendant's domicile does not give them jurisdiction over a real action, regardless of whether the subject matter of the dispute is immovable property or movable property, because art. 3134 C.C.Q. expressly states that this rule applies only in the absence of any special provision. Moreover, art. 3152 provides for the jurisdiction of Quebec authorities where the property in dispute is situated in Quebec, not where all or part of it is situated in Quebec. A different interpretation would amount to rewriting this provision by adding the words "all or part of". Finally, for Quebec authorities to have jurisdiction over a mixed action, the property in dispute must be situated entirely in Quebec, since otherwise they will have no jurisdiction over the real aspect of the dispute. Jurisdiction over the personal aspect of the dispute based, for example, on the defendant's domicile is therefore not sufficient in the case of a mixed action — the property in dispute must also be situated in Quebec, as required by art. 3152. There is disagreement with the majority in this case as regards the characterization of the Innu's action as a "non‑classical" mixed action with a personal aspect and a sui generis aspect and as regards the majority's conclusion that art. 3134 C.C.Q. applies in the absence of any provisions relating specifically to sui generis rights. According to that conclusion, Quebec authorities have jurisdiction over both the personal aspect and the sui generis aspect of the action because the companies being sued are domiciled in Montréal. The rights protected by s. 35 of the Constitution Act, 1982, and in particular Aboriginal title conferring the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, are a burden first and foremost on the Crown's underlying title. The characteristics of Aboriginal title flow from the special relationship between the Crown and the Indigenous group in question. It is this relationship that makes Aboriginal title sui generis or unique. The Crown is the main defendant in an action for the recognition of Aboriginal title. The majority's conclusion that the private companies, rather than the Crown, are the defendants in the action for the recognition of Aboriginal rights is therefore highly problematic and distorts the sui generis nature of these rights. There is a principle in Quebec private international law to the effect that the jurisdiction of the Quebec court is determined on a case‑by‑case basis. It is therefore necessary in this case to determine whether the Innu's action in fact involves claims that are real or mixed in nature because their purpose is to obtain the recognition or protection of Aboriginal title or other Aboriginal or treaty rights, which are real rights for the purposes of private international law; if the action does involve such claims, Quebec authorities lack jurisdiction to grant the claims if they relate to the part of the traditional territory that is situated in Newfoundland and Labrador. The purpose of the claims for declaratory remedies in the Innu's motion to institute proceedings is clearly to obtain the recognition of Aboriginal title and other Aboriginal or treaty rights, which are real rights for the purposes of private international law. A declaration is the primary means by which Aboriginal title can be established. However, under art. 3152 C.C.Q., a court may not grant an application for a declaratory judgment with respect to proprietary or possessory rights in immovable property situated abroad because by doing so it would purport to deal directly with title. In this case, even if the declarations sought by the Innu were binding only on the mining companies, the fact remains that the declarations would relate to the title the Innu claim to hold to the traditional territory, including the parts of that territory that are situated outside Quebec. Because of art. 3152, Quebec authorities lack jurisdiction in this regard. If Quebec authorities were to rule directly on the title that the Innu believe they hold to the parts of the traditional territory that are situated outside Quebec, the declarations would be binding on no one, not even on the mining companies, precisely because Quebec authorities lack jurisdiction in this regard. The Innu's claims for a permanent injunction to put a stop to the mining companies' operations, facilities and activities are also real in nature, because their purpose is clearly to protect Aboriginal title and other Aboriginal or treaty rights, which are real rights for the purposes of private international law. In Quebec law, an injunction is the appropriate procedural vehicle for enforcing one's right. Therefore, under art. 3152 C.C.Q., a court cannot grant a claim for a permanent injunction relating to immovable property situated outside the province. The claim for damages against the mining companies — to the extent that it is based on the alleged infringement of the Aboriginal title and other Aboriginal or treaty rights the Innu claim to hold in the traditional territory — can be granted only if the Innu are able to obtain the recognition of that Aboriginal title and those other Aboriginal or treaty rights in that territory. However, Quebec authorities do not in fact have the jurisdiction required to hear an action for the recognition of Aboriginal title or other Aboriginal or treaty rights in land not situated in Quebec. It necessarily follows that, as matters stand at present, Quebec authorities must at least stay the proceedings on this point until a competent authority has recognized the existence of those rights in the parts of the traditional territory that are situated in Newfoundland and Labrador. The remedy under art. 976 C.C.Q. remains first and foremost a claim that a person has, which makes it a personal action. Because the defendants are domiciled in Quebec and injury has been suffered in Quebec (art. 3148 para. 1(1) and (3) C.C.Q.), Quebec authorities have jurisdiction over this claim. Lastly, the Innu are claiming various fiduciary remedies or remedies based on administration of the property of others (art. 1299 C.C.Q.) with respect to the mining companies' works and facilities. These claims are real in nature and, having regard to art. 3152 C.C.Q., Quebec authorities cannot grant them if they relate to works or facilities of the mining companies that are situated in Newfoundland and Labrador. Given that, as a result of art. 3152 C.C.Q., Quebec authorities lack jurisdiction over the claim for declaratory remedies to recognize Aboriginal title and other Aboriginal or treaty rights in land situated in Newfoundland and Labrador, over the claim for a permanent injunction to put a stop to the mining companies' operations, facilities and activities on land situated in Newfoundland and Labrador, and over the fiduciary claim or the claim based on administration of the property of others with respect to the mining companies' works and facilities situated in Newfoundland and Labrador, it should be ordered that the conclusions of the Innu's motion to institute proceedings, and specifically those that are declaratory or injunctive in nature and that relate to the traditional territory or to the megaproject, be amended so that they apply only to acts, activities or rights within Quebec's territory. However, it should not be ordered that the allegations in the motion to institute proceedings be struck, because the allegations concerning the traditional territory as a whole, including the parts of that territory that are situated in Newfoundland and Labrador, as well as the evidence relating thereto, could prove to be relevant during the trial on the merits in order to determine the existence of Aboriginal title and other Aboriginal or treaty rights in Quebec. While Aboriginal rights are sui generis, they exist within the general legal system of Canada, and Aboriginal rights claims before the courts must not go beyond what is permitted by the Canadian legal and constitutional structure. The goal of reconciliation between Indigenous peoples' prior occupation of Canadian territory and Crown sovereignty over that same territory cannot be achieved by recognizing prior occupation by Indigenous peoples on the one hand while disregarding the constitutional principle of federalism and of the sovereignty of the provincial Crown on the other, thereby contravening the well‑established principle that one part of the Constitution cannot abrogate another part of the Constitution. The goal of reconciliation must therefore be achieved by accounting not only for the Indigenous perspective — and thus the prior, borderless occupation of Canadian territory by Indigenous peoples — but also for the constitutional framework that accompanied Crown sovereignty and within which Canadian courts must operate. Holding that superior courts have jurisdiction to decide the s. 35 rights of an Indigenous party as they affect another province implicitly treats the provinces as if they were (at best) administrative units or (at worst) inconvenient technicalities. This is profoundly disrespectful of the constitutional order under which provinces are sovereign within their own jurisdiction. Provincial boundaries are an essential feature of the system of provincial superior courts just as they are an essential feature of provincial legislative power. In particular, the system of provincial superior courts ensures that claims to a province's land or challenges to a province's laws must be heard before a judge of that province. Thus, the claims that cut deepest at the heart of a province's sovereignty will be resolved by a judge connected to the province's realities. This enhances public confidence in the courts and protects courts' functioning and legitimacy, particularly if the outcome of the litigation is unfavourable to the province. Section 35 calls on courts to do justice to Aboriginal rights claims that cut across provincial boundaries, but it does not provide a warrant to disregard the provincial boundaries themselves. The declarations sought in this case are contrary to the Canadian federal structure. Before a court can grant a declaration, it must have jurisdiction to hear the issue. It is unclear how the scope of a declaration of Aboriginal title over land in Labrador could be appropriately limited in a way consistent with the imperatives of Canadian federalism. The Crown is a necessary party in Aboriginal title claims — and is necessarily implicated when a declaration of Aboriginal title is made. Furthermore, this approach leads to a strong possibility of conflicting judgments and confusion and would allow a superior court in one province to pronounce on Aboriginal title in relation to land located in another province incidentally to an in personam claim. This principle cannot be confined to this case and the provinces implicated in this litigation. Moreover, this approach is incompatible with the principle of Crown immunity. Any claim that asserts Aboriginal title necessarily involves the Crown. Unlike ordinary property disputes which pit private parties against each other within a framework of private law, an Aboriginal title claim cuts to the very root of the Crown's sovereignty and triggers obligations on the part of the Crown. Not only is the Crown's presence necessary in principle, it also helps ensure that issues are fairly heard. Private parties cannot be assumed to have any knowledge about the facts of occupation at the time the Crown asserted sovereignty. Finally, this approach also impedes access to justice. If the impact of the order actually received is uncertain, confusing, or narrower than expected, this is a failure of access to justice. Moreover, access to justice is a precondition to the rule of law. Without procedural adaptations, requiring Indigenous people to bring applications, and to have them heard, in several different forums in order to obtain the recognition and protection of Aboriginal rights in different parts of a single traditional territory that straddles provincial borders creates barriers to access to justice and undermines the efficient and timely adjudication of such claims. However, delivery of efficient, timely and cost‑effective resolution of transboundary Aboriginal rights claims must occur within the structure of the Canadian legal system as a whole. Principles of federalism and provincial sovereignty do not preclude development by superior courts, in the exercise of their inherent jurisdiction, of innovative yet constitutionally sound solutions that promote access to justice. *Endean v. British Columbia*, 2016 SCC 42 authorizes superior court judges from different provinces to draw on their statutory jurisdiction — or, where necessary, their inherent jurisdiction — to sit together and hold a joint hearing on applications that have been brought in the superior courts of more than one province because they seek the recognition and protection of Aboriginal rights in different parts of a single traditional territory that straddles provincial borders. A transboundary Aboriginal rights claim will stand a better chance of being resolved in an efficient, timely and cost‑effective manner if the superior court judges sit together for a single joint hearing arising from the joinder of the applications brought in each of the superior courts concerned. In this case, however, the fact that the Innu have not brought applications in each of the superior courts concerned still remains a barrier to the constitutional capacity of the superior courts to appropriately adjudicate their transboundary Aboriginal rights claim. --- ## Cases Cited ### By Wagner C.J. and Abella and Karakatsanis JJ. Considered: *St. Lawrence Cement Inc. v. Barrette*, 2008 SCC 64, [2008] 3 S.C.R. 392; referred to: *Spar Aerospace Ltd. v. American Mobile Satellite Corp.*, 2002 SCC 78, [2002] 4 S.C.R. 205; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; *Reference re Secession of Quebec*, 1998 793 (SCC), [1998] 2 S.C.R. 217; *Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)*, 2014 SCC 59, [2014] 3 S.C.R. 31; Bern v. Bern, 1995 4635 (QC CA), [1995] R.D.J. 510; *R. v. Van der Peet*, 1996 216 (SCC), [1996] 2 S.C.R. 507; *R. v. Sparrow*, 1990 104 (SCC), [1990] 1 S.C.R. 1075; *Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)*, 2005 SCC 69, [2005] 3 S.C.R. 388; *Haida Nation v. British Columbia (Minister of Forests)*, 2004 SCC 73, [2004] 3 S.C.R. 511; *Manitoba Metis Federation Inc. v. Canada (Attorney General)*, 2013 SCC 14, [2013] 1 S.C.R. 623; *Calder v. Attorney‑General of British Columbia*, 1973 4 (SCC), [1973] S.C.R. 313; *Guerin v. The Queen*, 1984 25 (SCC), [1984] 2 S.C.R. 335; Roberts v. Canada, 1989 122 (SCC), [1989] 1 S.C.R. 322; *Delgamuukw v. British Columbia*, 1997 302 (SCC), [1997] 3 S.C.R. 1010; *Tsilhqot'in Nation v. British Columbia*, 2014 SCC 44, [2014] 2 S.C.R. 257; St. Catherine's Milling and Lumber Company v. The Queen (1888), 1888 209 (UK JCPC), 14 App. Cas. 46; Canadian Pacific Ltd. v. Paul, 1988 104 (SCC), [1988] 2 S.C.R. 654; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), 1995 50 (SCC), [1995] 4 S.C.R. 344; St. Mary's Indian Band v. Cranbrook (City), 1997 364 (SCC), [1997] 2 S.C.R. 657; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; *R. v. Sappier*, 2006 SCC 54, [2006] 2 S.C.R. 686; Comité paritaire de l'entretien d'édifices publics de la région de Québec v. Hôtel Forestel Val‑d'Or inc., 2017 QCCA 250; *Daniels v. Canada (Indian Affairs and Northern Development)*, 2016 SCC 12, [2016] 1 S.C.R. 99; *Morguard Investments Ltd. v. De Savoye*, 1990 29 (SCC), [1990] 3 S.C.R 1077; *Hunt v. T&N plc*, 1993 43 (SCC), [1993] 4 S.C.R. 289; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; *B.C.G.E.U. v. British Columbia (Attorney General)*, 1988 3 (SCC), [1988] 2 S.C.R. 214; *Hryniak v. Mauldin*, 2014 SCC 7, [2014] 1 S.C.R. 87; *R. v. Côté*, 1996 170 (SCC), [1996] 3 S.C.R. 139; Innu of Uashat and Mani‑Utenam v. Iron Ore Company of Canada, 2016 QCCS 1958, [2017] 4 C.N.L.R. 73; *Oppenheim forfait GMBH v. Lexus maritime inc*, 1998 13001. ### By Brown and Rowe JJ. (dissenting) Procureur général de Terre‑Neuve‑Labrador v. Uashaunnuat (Innus de Uashat et de Mani‑Utenam), 2017 QCCA 14; Transax Technologies inc. v. Red Baron Corp. Ltd, 2016 QCCA 1432; Uashaunnuat (Innus de Uashat et de Mani‑Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 2051; Innu of Uashat and Mani‑Utenam v. Iron Ore Company of Canada, 2016 QCCS 1958, [2017] 4 C.N.L.R. 73; *Club Resorts Ltd. v. Van Breda*, 2012 SCC 17, [2012] 1 S.C.R. 572; Uashaunnuat (Innus de Uashat et de Mani‑Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 4403; *Morguard Investments Ltd. v. De Savoye*, 1990 29 (SCC), [1990] 3 S.C.R. 1077; *Barer v. Knight Brothers LLC*, 2019 SCC 13, [2019] 1 S.C.R. 573; *Hunt v. T&N plc*, 1993 43 (SCC), [1993] 4 S.C.R. 289; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., 1989 112 (SCC), [1989] 1 S.C.R. 206; Lac d'Amiante du Québec Ltée v. 2858‑0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; MacMillan Bloedel Ltd. v. Simpson, 1995 57 (SCC), [1995] 4 S.C.R. 725; *Calder v. Attorney‑General of British Columbia*, 1973 4 (SCC), [1973] S.C.R. 313; Roberts v. Canada, 1989 122 (SCC), [1989] 1 S.C.R. 322; *R. v. Van der Peet*, 1996 216 (SCC), [1996] 2 S.C.R. 507; Prud'homme v. Prud'homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Doré v. Verdun (City), 1997 315 (SCC), [1997] 2 S.C.R. 862; *Tsilhqot'in Nation v. British Columbia*, 2014 SCC 44, [2014] 2 S.C.R. 257; *Delgamuukw v. British Columbia*, 1997 302 (SCC), [1997] 3 S.C.R. 1010; *Guerin v. The Queen*, 1984 25 (SCC), [1984] 2 S.C.R. 335; *Haida Nation v. British Columbia (Minister of Forests)*, 2004 SCC 73, [2004] 3 S.C.R. 511; Bern v. Bern, 1995 4635 (QC CA), [1995] R.D.J. 510; *R. v. Sparrow*, 1990 104 (SCC), [1990] 1 S.C.R. 1075; *Montréal (Ville) v. Lonardi*, 2018 SCC 29, [2018] 2 S.C.R. 103; *GreCon Dimter inc. v. J.R. Normand inc.*, 2005 SCC 46, [2005] 2 S.C.R. 401; *R. v. Sundown*, 1999 673 (SCC), [1999] 1 S.C.R. 393; *R. v. Côté*, 1996 170 (SCC), [1996] 3 S.C.R. 139; *R. v. Sappier*, 2006 SCC 54, [2006] 2 S.C.R. 686; *Mitchell v. M.N.R.*, 2001 SCC 33, [2001] 1 S.C.R. 911; *R. v. Badger*, 1996 236 (SCC), [1996] 1 S.C.R. 771; Matamajaw Salmon Club v. Duchaine, [1921] 2 A.C. 426 (P.C.); *Procureur général du Québec v. Club Appalaches inc.*, 1999 13282 (QC CA), [1999] R.J.Q. 2260; *Anglo Pacific Group PLC v. Ernst & Young inc.*, 2013 QCCA 1323; *Bolton v. Forest Pest Management Institute* (1985), 1985 579 (BC CA), 66 B.C.L.R. 126; *Khan Resources Inc. v. W M Mining Co., LLC* (2006), 2006 6570 (ON CA), 79 O.R. (3d) 411; War Eagle Mining Co. v. Robo Management Co. (1995), 1995 16145 (BC SC), 13 B.C.L.R. (3d) 362; *Medicine Hat (City) v. Wilson*, 2000 ABCA 247, 271 A.R. 96; *CGAO v. Groupe Anderson inc.*, 2017 QCCA 923; *Ewert v. Canada*, 2018 SCC 30, [2018] 2 S.C.R. 165; *S.A. v. Metro Vancouver Housing Corp.*, 2019 SCC 4, [2019] 1 S.C.R. 99; *Assiniboine v. Meeches*, 2013 FCA 114, 444 N.R. 285; William v. British Columbia, 2002 BCSC 1904; Thomas v. RioTinto Alcan Inc., 2016 BCSC 1474, 92 C.P.C. (7th) 122; *Re Labrador Boundary*, 1927 338 (UK JCPC), [1927] 2 D.L.R. 401; *Angle v. Minister of National Revenue*, 1974 168 (SCC), [1975] 2 S.C.R. 248; *Penner v. Niagara (Regional Police Services Board)*, 2013 SCC 19, [2013] 2 S.C.R. 125; *Mikisew Cree First Nation v. Canada (Governor General in Council)*, 2018 SCC 40, [2018] 2 S.C.R. 765; *Canada (Attorney General) v. Thouin*, 2017 SCC 46, [2017] 2 S.C.R. 184; *Athabasca Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern Development)*, 2001 ABCA 112, 199 D.L.R. (4th) 452; *Lax Kw'alaams Indian Band v. Canada (Attorney General)*, 2011 SCC 56, [2011] 3 S.C.R. 535; *AIC Limited v. Fischer*, 2013 SCC 69, [2013] 3 S.C.R. 949; *Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)*, 2005 SCC 69, [2005] 3 S.C.R. 388; *Chippewas of Sarnia Band v. Canada (Attorney General)* (2000), 2000 16991 (ON CA), 51 O.R. (3d) 641; *Endean v. British Columbia*, 2016 SCC 42, [2016] 2 S.C.R. 162; *Hryniak v. Mauldin*, 2014 SCC 7, [2014] 1 S.C.R. 87; *Tolofson v. Jensen*, 1994 44 (SCC), [1994] 3 S.C.R. 1022; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319; *B.C.G.E.U. v. British Columbia (Attorney General)*, 1988 3 (SCC), [1988] 2 S.C.R. 214; *Sauve v. Quebec (Attorney General)*, 2011 ONCA 369; Medvid v. Saskatchewan (Minister of Health), 2012 SKCA 49, 349 D.L.R. (4th) 72; *Constructions Beauce-Atlas inc. v. Pomerleau inc.*, 2013 QCCS 4077; *Reference re Secession of Quebec*, 1998 793 (SCC), [1998] 2 S.C.R. 217. --- ## Statutes and Regulations Cited Adjacent Territories Order in R.S.C. 1985, App. II, No. 14. Alberta Act, S.C. 1905, c. 3 (reprinted in R.S.C. 1985, App. II, No. 20). An Act to add the reformed law of evidence and of prescription and the reformed private international law to the Civil Code of Québec, Draft Bill, 2nd Sess., 33rd Leg., Quebec, 1988, art. 3514. British North America Act, 1871 (U.K.), 34 & 35 Vict., c. 28 (reprinted as Constitution Act, 1871 in R.S.C. 1985, App. II, No. 11). British North America Act, 1949 (U.K.), 12, 13 & 14 Geo. 6, c. 22 (reprinted as Newfoundland Act in R.S.C. 1985, App. II, No. 32), Sch., ss. 2, 37. Canadian Charter of Rights and Freedoms. Charter of Human Rights and Freedoms, CQLR, c. C‑12. Civil Code of Québec, Bill 125, 1st Sess., 34th Leg., Quebec, 1990, art. 3130. Civil Code of Québec, Book Four, arts. 947, 976, 1119, 1120, 1299, 1457, Book Ten, 3076 to 3168, 3078, 3081, 3097, Title Three, Chapter I, 3134, 3135, Chapter II, Division I, 3141 to 3147, Division II, 3148 to 3151, Division III, 3152, 3153, 3154. Code of Civil Procedure, CQLR, c. C‑25, arts. 31, 73, 95. Code of Civil Procedure, CQLR, c. C‑25.01, arts. 25, Title III, Chapter I, 33, 41 para. 1, 42(3), 49. Common Law Procedure Act, 1852 (U.K.), 15 & 16 Vict., c. 76. Constitution Act, 1867, ss. 92(13), (14), 96, 97, 98, 109. Constitution Act, 1982, Part II, ss. 35, 41(e), 43(a), 52(1), (2)(b), Sch., ss. 12, 13, 21. Manitoba Boundaries Extension Act, 1912, S.C. 1912, c. 32. Ontario Boundaries Extension Act, S.C. 1912, c. 40. Proceedings Against the Crown Act, R.S.N.L. 1990, c. P‑6, ss. 4, 7. Quebec Boundaries Extension Act, 1912, S.C. 1912, c. 45. Rupert's Land and North‑Western Territory Order in R.S.C. 1985, App. II, No. 9. Saskatchewan Act, S.C. 1905, c. 42 (reprinted in R.S.C. 1985, App. II, No. 21). --- ## Treaties and Other International Instruments United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res., UNGAOR, 61st Sess., Supp. No. 49, UN Doc A/RES/61/295 (2007). --- ## Counsel For the appellant: Maxime Faille, Guy Régimbald and Justin Mellor. For the respondents: Jean‑François Bertrand, James A. O'Reilly, François Lévesque, Sophia Ladovrechis and Marie‑Claude André‑Grégoire. For the intervener the Attorney General of Canada: Ian Demers. No one appeared for the intervener the Attorney General of Quebec. For the intervener the Attorney General of British Columbia: Jeff Echols and Chris Robb. For the interveners the Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company Inc.: François Fontaine and Andres Garin. For the interveners Kitigan Zibi Anishinabeg and the Algonquin Anishinabeg Nation Tribal Council: Eamon Murphy and Peter W. Jones. For the intervener Amnesty International Canada: Perri Ravon, Ryan Beaton and Audrey Mayrand. For the intervener the Tsawout First Nation: John W. Gailus and Christopher Devlin. APPEAL from a judgment of the Quebec Court of Appeal (Morissette, Healy and Ruel JJ.A.), 2017 QCCA 1791, [2018] 4 C.N.L.R. 167, affirming a decision of Davis J., 2016 QCCS 5133, [2017] 4 C.N.L.R. 89. Appeal dismissed, Moldaver, Côté, Brown and Rowe JJ. dissenting. --- ## Majority Reasons The judgment of Wagner C.J. and Abella, Karakatsanis, Gascon and Martin JJ. was delivered by The Chief Justice and Abella and Karakatsanis JJ. — [ 1 ] This appeal raises questions of fundamental importance to the way civil proceedings involving Aboriginal rights are carried out in this country. It has implications for access to justice and the ability of Indigenous peoples to meaningfully assert their constitutional rights in the justice system. A balance must be struck between the different principles at play, keeping in mind the unique history and nature of Aboriginal rights in Canada. ### I. Background #### A. The Parties [ 2 ] The Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John are two distinct First Nations who claim to have occupied a traditional territory they call the Nitassinan since time immemorial. This territory straddles the border between the provinces of Quebec and Newfoundland and Labrador. [ 3 ] Much of this territory was included as part of Lower Canada in 1791 which, in turn, would become Quebec in 1867. In 1927, the Privy Council clarified the border between Labrador — then part of the British colony of Newfoundland — and Quebec. Newfoundland (which included Labrador) joined Canada as a province in 1949 and changed its name to Newfoundland and Labrador in 2001. [ 4 ] In the early 1950s, the interveners Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company Inc. ("mining companies") undertook the first phase of what came to be known as the "IOC megaproject". Today, the IOC megaproject includes multiple open-pit mines that were formerly operated near the small town of Schefferville, Quebec; nine open-pit mines and related facilities near Labrador City, Newfoundland and Labrador; port, railway and industrial facilities in Sept‑Îles, Quebec; and more than 600 km of railway winding through both provinces. It continues to expand. #### B. The Claim [ 5 ] In 2013, the Innu filed a motion to institute proceedings against the mining companies in the Quebec Superior Court, seeking a permanent injunction, compensatory and punitive damages, and various declaratory remedies. The mining companies are both headquartered in Montréal, Quebec. [ 6 ] The Innu claim to have Aboriginal title over the parts of Nitassinan that are affected by the megaproject. They also assert existing Aboriginal and treaty rights in all of Nitassinan. In their motion to institute proceedings, the Innu seek to establish the extracontractual civil liability of the mining companies under art. 1457 of the Civil Code of Québec ("C.C.Q.") for violation of their Aboriginal title and rights. They also seek a remedy based on no-fault liability for neighbourhood disturbances under art. 976 C.C.Q. [ 7 ] As remedies, they seek, among other things: (1) Declaratory remedies, including a declaration that the defendants' industrial, port and railway facilities "belong to the Innu of UM‑MLJ or, at the very least, are subject to [Aboriginal] title and [other] Aboriginal [rights]" and a declaration that the IOC megaproject "infringe[s] [Aboriginal] title, [other] Aboriginal rights and treaty rights"; (2) A permanent injunction to put a stop to the defendants' operations; (3) An award for payment of $900 million in damages; (4) Various fiduciary remedies or remedies based on administration of the property of others (art. 1299 C.C.Q.) with respect to the defendants' income, works, facilities and activities. [ 8 ] The Innu's Aboriginal rights claims are grounded in s. 35 of the Constitution Act, 1982. They allege that the megaproject, built without their consent, infringes their constitutionally protected rights, causing harm to their way of life and their relationship to their land. They seek both compensation for these wrongs and an injunction compelling cessation of the mining activities. #### C. Procedural History [ 9 ] The Attorney General of Newfoundland and Labrador ("AGNL") and the mining companies both brought motions to strike portions of the Innu's claim relating to land in Newfoundland and Labrador. The AGNL argued that Quebec courts lacked jurisdiction over those portions, asserting that they were real actions over land located outside the province. [ 10 ] The Superior Court of Quebec dismissed the motions. Davis J. rejected the characterization of the claim as a real action: in his opinion, the real aspect of the action — seeking the recognition of Aboriginal title and rights — was "ancillary" to the personal aspect, namely the civil liability claim for damages. He accordingly characterized the claim as a mixed action and held that Quebec had jurisdiction under arts. 3134 and 3148 C.C.Q. [ 11 ] The Quebec Court of Appeal upheld this decision, finding the claim to be primarily personal and therefore within Quebec's jurisdiction. ### II. Issues [ 12 ] The issues to be decided on this appeal are as follows: (1) How should the Innu's action be characterized for the purposes of private international law? (2) Do Quebec courts have jurisdiction over the entire claim? (3) Does the doctrine of Crown immunity affect the jurisdiction of Quebec courts? ### III. Analysis #### A. The Applicable Legal Framework [ 13 ] Book Ten of the C.C.Q. sets out the rules governing private international law in the province. These rules limit the jurisdiction of Quebec authorities, in the spirit of comity, to matters closely linked to the province. [ 14 ] The C.C.Q. is silent with respect to the proper analytical framework for characterizing an action for the purposes of Chapter II, which establishes specific rules of jurisdiction based on the nature of the action. In the absence of legislative direction, when characterizing an action, it is the nature of the rights at stake and the conclusions sought that must be considered. [ 15 ] The rules of Book Ten must be interpreted in light of the imperatives of our constitutional order: Reference re Secession of Quebec, [1998] 2 S.C.R. 217. Where s. 35 rights are at stake, the rules of Book Ten must be interpreted in a manner that respects constitutionally recognized and affirmed Aboriginal rights and treaty rights. [ 16 ] The C.C.Q. establishes different heads of jurisdiction depending on the nature of the action. For personal actions of a patrimonial nature, jurisdiction is granted to Quebec authorities where the defendant is domiciled in Quebec (art. 3148 C.C.Q.). In the absence of any special provision, Quebec authorities have jurisdiction when the defendant is domiciled in Quebec (art. 3134 C.C.Q.). For real actions or mixed actions, jurisdiction is granted where the property in dispute is situated in Quebec (art. 3152 C.C.Q.). #### B. Characterization of the Innu's Action [ 17 ] The AGNL submits that the Innu's action must be characterized as a real action or a mixed action because it seeks the recognition of Aboriginal title and other Aboriginal rights that are real rights for the purposes of private international law. [ 18 ] We disagree. The sui generis nature of s. 35 rights must be given effect both in substantive law and in the realm of private international law. [ 19 ] Aboriginal rights, including Aboriginal title, are sui generis. A sui generis right is a unique right that cannot be subsumed within any recognized category of the civil or common law: *R. v. Van der Peet*, [1996] 2 S.C.R. 507, at para. 19. It would be inappropriate to treat Aboriginal title as simply a species of a civil law category such as a "real right". [ 20 ] This Court has consistently recognized that the sui generis nature of Aboriginal title sets it apart from the ordinary concepts of property law. Aboriginal title is inherently collective, it cannot be alienated except to the Crown, and it has an inherent limit: *Delgamuukw v. British Columbia*, [1997] 3 S.C.R. 1010, at paras. 112‑15, 125‑32; *Tsilhqot'in Nation v. British Columbia*, 2014 SCC 44, [2014] 2 S.C.R. 257, at paras. 70‑75. These features are incompatible with the civil law concept of a real right, which is an enforceable right over a specific thing that can generally be alienated and is not subject to collective ownership. [ 21 ] Moreover, Aboriginal title is firmly grounded in the relationships formed by the confluence of prior occupation and the assertion of sovereignty by the Crown: Tsilhqot'in Nation, at para. 72. This gives rise to obligations flowing from the honour of the Crown that are more akin to personal rights than real rights. Disputes involving Aboriginal title must also be understood with reference to Aboriginal perspectives, which further distinguish it from civil law concepts of property. [ 22 ] Section 35 rights are neither real rights nor personal rights as defined in the civil law, nor a combination of the two, but legally distinct sui generis rights. As this Court stated in *Guerin v. The Queen*, [1984] 2 S.C.R. 335, at p. 382, Aboriginal title is a legal right derived from the Indians' historic occupation and possession of their tribal lands. [ 23 ] The AGNL further argues that, for the purposes of private international law, the Innu's action must be characterized under domestic Quebec concepts of private law, not under the constitutional law concept of s. 35 rights. We do not accept this argument. The C.C.Q. must be interpreted consistently with the Constitution: *Trial Lawyers Association of British Columbia v. British Columbia (Attorney General)*, 2014 SCC 59, [2014] 3 S.C.R. 31; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. Section 52(1) of the Constitution Act, 1982 provides that the Constitution is the supreme law of Canada. Any law of Canada that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect. [ 24 ] Where s. 35 rights are at stake, the C.C.Q. must be interpreted in a manner that respects the constitutional recognition and affirmation of Aboriginal and treaty rights. In the context of s. 35 claims that straddle multiple provinces, access to justice requires that jurisdictional rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their constitutional rights. #### C. The Non-Classical Mixed Action [ 25 ] The Innu's claim falls into neither the purely personal nor the purely real action category. It is a mixed action — but it is not a classical mixed action within the meaning of the C.C.Q. [ 26 ] The claim involves: (a) The recognition of a sui generis right: a declaration of Aboriginal title and other Aboriginal rights (not a real right as defined in the civil law); and (b) The performance of various obligations related to failures to respect that right: damages in delict and neighbourhood disturbances (a personal aspect). [ 27 ] This Court has recognized that the rules of private international law must be approached with flexibility in order to accommodate institutions that are legally distinct from, but analogous to, the recognized categories of the civil law: *Spar Aerospace Ltd. v. American Mobile Satellite Corp.*, 2002 SCC 78, [2002] 4 S.C.R. 205, at paras. 48‑50. [ 28 ] In the context of such a non-classical mixed action, the question is whether Quebec authorities have jurisdiction over both the personal aspect and the sui generis aspect of the claim. We conclude that they do. #### D. Jurisdiction Over the Personal Aspects [ 29 ] Actions in delict and neighbourhood disturbances are generally characterized as personal actions. Article 3148 C.C.Q. grants Quebec authorities jurisdiction over personal actions of a patrimonial nature where the defendant is domiciled in Quebec. As the mining companies are both headquartered in Montréal, Quebec authorities have jurisdiction over the personal aspects of this claim under art. 3148 C.C.Q. #### E. Jurisdiction Over the Sui Generis Aspects [ 30 ] With respect to the aspects of the claim that relate to the recognition of a sui generis right, such as a s. 35 right, the C.C.Q. does not include any special provision to establish the jurisdiction of Quebec authorities. This is understandable: the C.C.Q. was enacted before Aboriginal rights had been fully developed in this Court's jurisprudence. [ 31 ] In the absence of any special provision relating to the recognition of sui generis rights, art. 3134 C.C.Q. applies: "[i]n the absence of any special provision, Québec authorities have jurisdiction when the defendant is domiciled in Québec." Since both mining companies are domiciled in Quebec, Quebec authorities have jurisdiction over this aspect of the claim under art. 3134 C.C.Q. [ 32 ] This is consistent with the constitutional imperative that jurisdictional rules be interpreted flexibly in the context of s. 35 claims that straddle multiple provinces. As this Court has stated, Aboriginal rights claims must be adjudicated in a manner that is consistent with the honour of the Crown and the principle of reconciliation. [ 33 ] This interpretation also advances access to justice. 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. 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. [ 34 ] Adjudicative jurisdiction over property outside of the province can be conferred in the s. 35 context because it concerns sui generis rights, not real rights, and it operates uniformly across Canada. The determination of whether a claimed Aboriginal or treaty right enjoys constitutional protection under s. 35 is a matter of constitutional law. Neither s. 35 nor constitutional law is foreign to Quebec or its courts. #### F. Forum Non Conveniens [ 35 ] A court may, on an application by a party, decline jurisdiction if it considers that the authorities of another country or province are in a better position to decide the dispute: art. 3135 C.C.Q. The AGNL did not appeal the motions judge's conclusion on forum non conveniens to the Court of Appeal or this Court. There is therefore no basis to disturb this holding. [ 36 ] We note, however, that in the unique circumstances of s. 35 claims that straddle multiple provinces, forum non conveniens analysis may need particular attention. Factors that courts may consider at this stage include whether the claimed Aboriginal rights are site-specific, the scope of any Aboriginal title claims, and the interest of the Crown of another province in participating in the proceedings. [ 37 ] The relevant factors for the purposes of forum non conveniens analysis include: 1) the parties' residence, that of witnesses and experts; 2) the location of the material evidence; 3) the place where the contract was negotiated and executed; 4) the existence of proceedings pending between the parties in another jurisdiction; 5) the location of defendant's assets; 6) the applicable law; 7) advantages conferred upon plaintiff by its choice of forum, if any; 8) the interest of justice; 9) the interest of the parties;

10. the need to have the judgment recognized in another jurisdiction. (See also *Oppenheim forfait GMBH v. Lexus maritime inc*, 1998 13001 (Que. C.A.), at para. 71.) [ 38 ] In the unique circumstances of s. 35 claims that straddle multiple provinces, factors 6 to 10 may require heightened attention. As the Attorney General of Canada pointed out in its intervention, considerations that may be relevant at this stage could include, for instance, whether or not the claimed Aboriginal rights are site-specific, and, if so, whether the bulk of the site is within the province's territorial boundaries; the scope of any Aboriginal title claims; and the interest of the Crown of another province in participating in litigation in order to present evidence and argument as to the scope of s. 35 rights. We would also note that courts in both provinces would likely apply the same law, namely constitutional law, to determine whether the Innu have made out their claim of Aboriginal title and rights. [ 39 ] In this case, the motions judge considered a number of these factors, noting that, overall, the application of these factors did not favour declining jurisdiction and that the doctrine of forum non conveniens should not be applied: paras. 104‑10. But as indicated above, this conclusion was not appealed to the Court of Appeal or to this Court. As a result, there is no basis upon which to disturb this holding. ### F. Crown Immunity [ 40 ] As in the courts below, the Attorney General of Newfoundland and Labrador raised Crown immunity as a further reason that the action should not be allowed to proceed to the extent that it affects Newfoundland and Labrador. In the Superior Court, the motions judge concluded that the doctrine of Crown immunity was ill-fitting in the context of proceedings involving a s. 35 claim straddling provincial boundaries: para. 115. The Court of Appeal did not resolve this issue, but instead concluded that "interprovincial jurisdictional immunity cannot, at this stage, be an obstacle to the jurisdiction of the Quebec courts over this dispute": para. 100. While the Attorney General of Newfoundland and Labrador has raised a potentially live issue in this regard, we agree that it does not need to be resolved at this stage of the proceedings. [ 41 ] As explained above, Quebec courts have jurisdiction in this case to resolve the dispute between the Innu and the mining companies. The Innu seek no relief against the Crown of Newfoundland and Labrador, and they admit that any conclusions in respect of their s. 35 rights will not bind the Crown of Newfoundland and Labrador. In fact, they recognize that they would need to either "negotiate with the government of Newfoundland and Labrador or seize the courts of that province in the context of a [comprehensive] claim": C.A. reasons, at para. 104. It is therefore unnecessary to address this issue at this stage. This should not be read, however, as precluding the participation of the Crown of Newfoundland and Labrador in the proceedings, if it wishes, in order to assert its interests, invoke its rights and make submissions about the appropriate scope of any declaratory relief (see paras. 106‑7). ### III. Conclusion [ 42 ] For these reasons, we find that the Superior Court of Quebec has jurisdiction over the claim and we would dismiss the appeal with costs throughout. --- ## Dissenting Reasons English version of the reasons of Moldaver, Côté, Brown and Rowe JJ. delivered by Brown and Rowe JJ. (dissenting) — ### TABLE OF CONTENTS | | Paragraph | |---|---| | I. Overview | 74 | | II. Background | 79 | | III. Judicial History | 88 | |    A. Quebec Superior Court, 2016 QCCS 5133, [2017] 4 C.N.L.R. 89 (Davis J.) | 88 | |    B. Quebec Court of Appeal, 2017 QCCA 1791, [2018] 4 C.N.L.R. 167 (Morissette, Healy and Ruel JJ.A.) | 92 | | IV. Issue | 96 | | V. Analysis | 97 | |    A. General Comments on the Applicable Analytical Framework | 98 | |       (1) Necessary Application of the Rules of Private International Law | 101 | |       (2) Constitutional Territorial Limits | 114 | |       (3) Conclusion on General Comments | 117 | |    B. Jurisdiction of Quebec Authorities | 126 | |       (1) Characterization of the Innu's Action | 127 | |       (2) Article 3152 C.C.Q. | 163 | |       (3) Consideration of Jurisdiction on a Case by Case Basis | 184 | |       (4) Conclusion Regarding the Jurisdiction of Quebec Authorities | 203 | |    C. Some Potential Solutions | 207 | |       (1) Transboundary Nature of Aboriginal Rights | 207 | |       (2) Access to Justice | 214 | |       (3) Inherent Jurisdiction | 218 | |    D. Approach Proposed by the Attorney General of Canada | 236 | |       (1) The Effects on Canada's Constitutional Structure | 236 | |       (2) The AGC's Approach Leads to a Strong Possibility of Conflicting Judgments and Confusion | 267 | |       (3) Incompatibility With the Principle of Crown Immunity | 274 | |       (4) The AGC's Approach Ultimately Impedes Access to Justice | 281 | |       (5) This Case Exemplifies the Serious Problems That Can Arise Under the AGC's Approach | 291 | | VI. Conclusion | 297 | ### I. Overview [ 74 ] This appeal raises questions that lie at the boundary between private international law and constitutional law. At issue is whether the superior court of a province (the Quebec Superior Court) has jurisdiction to recognize Aboriginal title and other Aboriginal or treaty rights in land that is situated in part in another province (Newfoundland and Labrador) and to hear claims against private parties that cannot succeed absent such recognition. Also at issue is the source of the legal principles governing the jurisdiction of the provincial superior courts in such a context. [ 75 ] We conclude that the jurisdiction of provincial superior courts is governed first and foremost by the rules of private international law, which in Quebec are set out in the Civil Code of Québec ("C.C.Q." or "Civil Code"). In some cases, those rules may also be subject to constitutional scrutiny in light of the territorial limits created by the Constitution. [ 76 ] There is no need in this case to decide whether a provincial legislature would have the constitutional authority to confer on the province's superior court the jurisdiction to recognize Aboriginal title and other Aboriginal or treaty rights in land situated outside the province, as the Quebec National Assembly has not conferred such jurisdiction on the Quebec Superior Court. Suffice it to say that the Quebec Superior Court's lack of jurisdiction clearly does not violate the Constitution, since it reflects the requirements of interprovincial comity or mutual respect that are an integral part of Canada's federal structure. [ 77 ] We are aware of the practical difficulties faced by Indigenous peoples of Canada who seek to claim Aboriginal rights in a single traditional territory that straddles provincial borders. However, Aboriginal rights exist within the limits of Canada's legal system, which means that Aboriginal rights claims before the courts must not go beyond what is permitted by Canada's legal and constitutional structure. [ 78 ] Finding that the Quebec Superior Court has jurisdiction to issue a declaration recognizing Aboriginal rights in the part of Nitassinan that is situated in Newfoundland and Labrador would have serious consequences for Canadian federalism. Far from promoting access to justice or reconciliation with Indigenous peoples, it would lead to increased litigation and delays, as well as confusion and loss of confidence in our justice system. In these reasons, we will explore some procedural avenues that would allow Aboriginal title claims to be made effectively in territories straddling provincial borders and that would be compatible with our constitutional order. We believe that our solution favours proportionality and access to justice better than the solutions advanced by our colleagues and the Attorney General of Canada ("AGC"). ### II. Background [ 79 ] The appellant, the Attorney General of Newfoundland and Labrador ("AGNL"), appeals the decision of the Quebec Court of Appeal affirming a judgment of the Quebec Superior Court, which dismissed his motion to strike allegations dated April 23, 2014: A.R., vol. II, at pp. 90‑93. Through his motion, the AGNL sought to strike certain allegations and conclusions set out in a motion to institute proceedings for a permanent injunction, for declaratory conclusions and for damages (A.R., vol. II, at pp. 1‑40) dated March 18, 2013, which the respondents the Innu of Uashat and of Mani‑Utenam and the Innu of Matimekush‑Lac John (collectively "Innu of UM and MLJ" or simply "Innu") had filed in the Quebec Superior Court. [ 80 ] The Innu of UM and MLJ are two distinct First Nations. For centuries leading to the mid‑20th century, they occupied a vast traditional territory, Nitassinan, which encompasses part of the Quebec‑Labrador Peninsula: pp. 3 and 5. The traditional activities that make up the way of life of the Innu of UM and MLJ in Nitassinan include hunting, fishing, trapping and gathering: p. 9. [ 81 ] In their motion to institute proceedings, the Innu of UM and MLJ essentially seek to establish extracontractual civil liability on the part of the defendants, the Iron Ore Company of Canada ("IOC") and the Quebec North Shore and Labrador Railway Company Inc. ("QNS&L"), the latter being a corporation owned by IOC. [ 82 ] The defendants, IOC and QNS&L, are domiciled in Montréal, Quebec: pp. 6‑7. In the mid‑20th century, they built a [translation] "mining megaproject" in Nitassinan without the consent of the Innu of UM and MLJ: p. 3. The megaproject included the development and operation of iron mines and associated works near Schefferville and Labrador City, a 578 km railroad between Sept‑Îles and Schefferville, port facilities in Sept‑Îles, and hydroelectric complexes: pp. 3 and 6‑7. [ 83 ] The Innu of UM and MLJ claim to hold Aboriginal title and other Aboriginal or treaty [^1] rights in all of Nitassinan (pp. 10‑11 and 30‑31), but in particular in the parts of that territory, in Quebec and in Labrador, that are affected by the IOC megaproject (pp. 5, 10‑11 and 30‑31). They allege that this title and these rights [translation] "include ownership and exclusive use" of these parts of Nitassinan and of the natural resources found there: Notice of Constitutional Questions, A.R., vol. II, at p. 113. In their submission, the operations, facilities and activities of the defendants, IOC and QNS&L, in Nitassinan infringe their Aboriginal title and other Aboriginal or treaty rights, and this constitutes a civil fault under art. 1457 C.C.Q.: Motion to Institute Proceedings, A.R., vol. II, at pp. 24‑28. [^2] The Innu also raise an argument based on no‑fault liability under art. 976 C.C.Q. in respect of neighbourhood disturbances: pp. 28‑29. [ 84 ] By way of remedy, the Innu of UM and MLJ seek the following: (1) [translation] "declaratory . . . remedies against the defendants, including declarations that the defendants' industrial, port and railway facilities belong to the Innu of UM‑MLJ or, at the very least, are subject to [Aboriginal] title and [other] Aboriginal [rights]", and "a declaration that the IOC megaproject, and in particular the defendants' operations, facilities and activities, infringe [Aboriginal] title, [other] Aboriginal rights and treaty rights" (p. 30); (2) a permanent injunction to put a stop to the defendants' operations, facilities and activities (pp. 28‑30); (3) an award against the defendants, solidarily, for the payment of $900 million in damages (p. 28); (4) "an accounting for all profits generated by the defendants' use of Nitassinan" (p. 28) as well as various fiduciary remedies ("constructive trust""[c]ommon law trust" and "[f]iduciary trust") or remedies based on administration of the property of others (art. 1299 C.C.Q.) with respect to the defendants' income, works, facilities and activities (p. 30). [ 85 ] On April 23, 2014, after filing a motion to intervene in the Quebec Superior Court, the AGNL filed a motion to strike allegations in order to have the allegations and conclusions of the Innu's motion to institute proceedings struck insofar as they related to the parts of Nitassinan situated in Newfoundland and Labrador. The AGNL contended that the land situated in Newfoundland and Labrador to which the Innu's action applied belonged to the Crown of Newfoundland and Labrador: Motion to Strike Allegations, A.R., vol. II, at p. 92; A.F., at paras. 48 and 61; transcript, at pp. 24‑25. The AGNL's motion to strike allegations is, in reality, a declinatory exception whose basis is that Quebec authorities lack jurisdiction over the [translation] "paragraphs of the pleading that concern the territory of Newfoundland and Labrador": Procureur général de Terre‑Neuve‑Labrador v. Uashaunnuat (Innus de Uashat et de Mani‑Utenam), 2017 QCCA 14, at para. 14. Such a declinatory exception must be disposed of on a preliminary basis. [ 86 ] On April 29, 2014, Blanchard J. ordered the Innu to send a notice of constitutional questions in accordance with art. 95 of the former Code of Civil Procedure, CQLR, c. C‑25 ("f. C.C.P."), to the attorneys general of Quebec, Canada and Newfoundland and Labrador on the basis that [translation] "[t]here is . . . no doubt that . . . the allegations and conclusions [of the Innu's motion to institute proceedings] engage the constitutional rights of Canada, the province of Quebec and the province of Newfoundland and Labrador": Uashaunnuat (Innus de Uashat et de Mani‑Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 2051, at para. 5 ("Sup. Ct. Judgment Ordering Service of a Notice of Constitutional Questions"). [ 87 ] On April 26, 2016, Davis J. authorized the intervention of the AGNL in the Quebec Superior Court: Innu of Uashat and Mani‑Utenam v. Iron Ore Company of Canada, 2016 QCCS 1958, [2017] 4 C.N.L.R. 73 ("Sup. Ct. Judgment Authorizing the Intervention of the AGNL"). ### III. Judicial History #### A. Quebec Superior Court, 2016 QCCS 5133, [2017] 4 C.N.L.R. 89 (Davis J.) [ 88 ] The Superior Court judge ruled on the AGNL's motion to strike allegations. In his opinion, a decision on the motion [translation] "require[d] identifying the nature of the action instituted by the Innu": para. 48. In this respect, the judge noted that "the Innu argue that the Aboriginal title that they may have over Nitassinan is equivalent to a real right": para. 61. The judge also held that "Aboriginal title involves a number of elements of a real right": para. 62. In his view, the "same conclusion applies" with respect to "Aboriginal rights[, which] resemble usufruct": paras. 63‑64. [ 89 ] However, the judge stated that he could not agree with the AGNL's position that [translation] "the Innu's claim is a real action": para. 66. The aspect of the Innu's action concerning the recognition of their Aboriginal title and their other Aboriginal or treaty rights "is ancillary to their claim for damages" against IOC and QNS&L: paras. 67‑68. The Innu's action "is much more than a simple real action", given their allegation that IOC and QNS&L had breached a duty of care: para. 77. In addition to the extracontractual civil liability action based on art. 1457 C.C.Q., the Innu were seeking an award against the defendants on the basis of no‑fault liability for neighbourhood disturbances under art. 976 C.C.Q.: para. 78. In the judge's opinion, a "mixed action" was therefore a "much better" characterization of the Innu's action than a "real action": para. 79. Quebec authorities have jurisdiction over such a "mixed action" under arts. 3134 and 3148 para. 1(1) C.C.Q.: para. 82. [ 90 ] Regarding the allegations in the Innu's action with respect to the facilities of the defendants, IOC and QNS&L, situated in Newfoundland and Labrador, the judge found them to be relevant, including for the purpose of [translation] "establishing their rights and title in Quebec": para. 90. He added that he would be of the same opinion "even if IOC, QNS&L and Newfoundland and Labrador were correct in their claim that the Court does not have jurisdiction to issue orders affecting the defendants' facilities in Newfoundland and Labrador or recognizing the Aboriginal title or rights of the Innu in Newfoundland and Labrador": para. 91. Regarding the conclusions sought in the Innu's action, the judge held that, even though it seemed possible "[a]t the procedural level" to order that a conclusion be struck, there was no reason to do so here given that Quebec authorities "ha[ve] the jurisdiction to render a judgment including the conclusions that are requested": para. 92. [ 91 ] With respect to the doctrine of forum non conveniens, the judge noted that, on balance, the factors applicable under art. 3135 C.C.Q. did not favour declining jurisdiction: paras. 104‑10. [ 92 ] Lastly, the judge held that the doctrine of Crown immunity under the Proceedings Against the Crown Act, R.S.N.L. 1990, c. P‑6, was ill-fitting in the context of proceedings involving a s. 35 claim straddling provincial boundaries: paras. 115‑18. #### B. Quebec Court of Appeal, 2017 QCCA 1791, [2018] 4 C.N.L.R. 167 (Morissette, Healy and Ruel JJ.A.) [ 93 ] The Court of Appeal upheld the Superior Court's decision to dismiss the AGNL's motion to strike allegations. It held that the action instituted by the Innu was primarily a personal action, not a real action. Because the defendants, IOC and QNS&L, had their head offices in Quebec, Quebec courts had jurisdiction by virtue of arts. 3134 and 3148 para. 1(1) and (3) C.C.Q.: paras. 15, 52 and 95. [ 94 ] The Court of Appeal acknowledged that Aboriginal title involved an element of a real right but held that this did not change the personal nature of the Innu's overall action. The Court of Appeal concluded that Aboriginal title was "sui generis" in nature and that, because the action was primarily personal, Quebec courts had jurisdiction: paras. 52‑53, 68. [ 95 ] The Court of Appeal further concluded that the doctrine of forum non conveniens did not apply: paras. 97‑100. It held that the doctrine of Crown immunity, specifically that of Newfoundland and Labrador, could not, at this stage, be an obstacle to the jurisdiction of the Quebec courts over this dispute: para. 100. ### IV. Issue [ 96 ] The central issue in this appeal is whether the Quebec Superior Court has jurisdiction under Quebec's rules of private international law — specifically those set out in the C.C.Q. — over the aspects of the Innu's action that concern their Aboriginal title and other Aboriginal or treaty rights in the parts of Nitassinan situated in Newfoundland and Labrador. ### V. Analysis #### A. General Comments on the Applicable Analytical Framework [ 97 ] Before turning to the specific analysis, we set out our general view of the analytical framework that must be applied in this case. ##### (1) Necessary Application of the Rules of Private International Law [ 98 ] The starting point is that the jurisdiction of provincial superior courts is governed first and foremost by the rules of private international law. In Quebec, these rules are set out in the C.C.Q. [ 99 ] It is these rules that sometimes authorize provincial superior courts to exercise their powers with respect to persons or property not situated within the province's territory. As a result, it is not possible to disregard these rules and rely solely on an inherent jurisdiction that is, in principle, exercisable only within the province. [ 100 ] The rules of private international law are of a different, legislative nature and confer authority — it is only these rules that can authorize the extraterritorial exercise of a power that otherwise is limited to a single territory. [ 101 ] The C.C.Q. is silent with respect to the proper analysis for characterizing an action for the purposes of Chapter II of Title Three of Book Ten of the C.C.Q., which establishes specific rules of jurisdiction based on the nature of the action. In the absence of legislative direction, when characterizing an action, the nature of the rights at stake and the conclusions sought must be considered. [ 102 ] Private international law must be interpreted on the basis of the lex fori, because it is necessary to favour, as a matter of principle, the application of domestic civil law characterizations in private international law. The personal action, real action and mixed action concepts referred to in the special provisions of Title Three of Book Ten of the C.C.Q. should therefore be defined on the basis of Quebec law. [ 103 ] Because it is inherent in the nature of private international law to be confronted with institutions that are unknown to it, the rules of private international law must be approached with some flexibility so as to include institutions that, although legally distinct, are analogous to the categories recognized by the civil law: *Barer v. Knight Brothers LLC*, 2019 SCC 13, [2019] 1 S.C.R. 573, at para. 108; *GreCon Dimter inc. v. J.R. Normand inc.*, 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 19. [ 104 ] The general criterion for jurisdiction in private international law is the defendant's domicile, as stated in art. 3134 C.C.Q. However, as that provision expressly indicates, the general rule it states is subsidiary in nature: the rule applies only "[i]n the absence of any special provision". The special provisions in the C.C.Q. that displace this subsidiary rule govern the international jurisdiction of Quebec authorities over personal actions of an extrapatrimonial and family nature (arts. 3141 to 3147 C.C.Q.), personal actions of a patrimonial nature (arts. 3148 to 3151 C.C.Q.) and real or mixed actions (arts. 3152 to 3154 C.C.Q.). [ 105 ] It is therefore necessary to characterize the action in question in order to determine the international jurisdiction of Quebec authorities over a case. This means that the special provisions of Title Three of Book Ten must be applied, and that the general provision in art. 3134 will be applicable only in the absence of a special provision. [ 106 ] The rules of private international law must themselves be consistent with the territorial limits created by the Constitution. This means that they may also be subject to constitutional scrutiny in light of those limits. [ 107 ] Canada's constitutional framework limits the external reach of provincial laws and of a province's courts. As the Court has already recognized, the Constitution assigns powers to the provinces but limits the exercise of those powers to each province's territory. These territorial restrictions created by the Constitution are inherent in the Canadian federation. [ 108 ] In the context of s. 35 claims that straddle multiple provinces, however, the constitutional principles of reconciliation and access to justice require that jurisdictional rules be interpreted flexibly so as not to prevent Aboriginal peoples from asserting their constitutional rights. This is the tension that lies at the heart of this case. [ 109 ] To resolve this tension, it is necessary first to characterize the Innu's action properly. The approach taken by our colleagues and the AGC — treating the action as sui generis and applying art. 3134 by default — has the merit of simplicity, but it has serious constitutional and practical consequences that are far more problematic than those of our approach. ##### (2) Constitutional Territorial Limits [ 110 ] We also disagree with our colleagues' conclusion that the C.C.Q. must be interpreted in a manner consistent with s. 35 such that it confers jurisdiction on Quebec courts over all aspects of a s. 35 claim, regardless of whether such jurisdiction would otherwise be available. [ 111 ] Section 35(1) of the Constitution Act, 1982 recognizes and affirms "the existing aboriginal and treaty rights of the aboriginal peoples of Canada". But s. 35 does not itself confer jurisdiction on any court. The jurisdiction of provincial courts is a matter of provincial law, subject to constitutional constraints. [ 112 ] The rules of private international law that must be applied in this case — including the territorial limitations in art. 3152 C.C.Q. — are consistent with the Constitution. They reflect the requirements of interprovincial comity that are a constitutionally recognized feature of Canada's federal structure. [ 113 ] Section 35 requires that Aboriginal rights be recognized and affirmed. But this does not mean that any provincial court must have jurisdiction over Aboriginal rights claims in all of Canada. Section 35 operates uniformly across Canada, but the courts that adjudicate s. 35 claims must still comply with the jurisdictional rules of the province in which they sit. ##### (3) Conclusion on General Comments [ 114 ] In our view, the rules of private international law set out in the C.C.Q. must be applied to determine whether the Quebec Superior Court has jurisdiction over the various aspects of the Innu's action. The constitutional principle of reconciliation requires that these rules be interpreted flexibly, but that flexibility has limits. The rules cannot be interpreted in a way that would effectively strip other provinces of jurisdiction over matters relating to their own territory. [ 115 ] We now turn to the specific characterization of the Innu's action and the application of the C.C.Q. to that action. #### B. Jurisdiction of Quebec Authorities ##### (1) Characterization of the Innu's Action [ 116 ] The first step is to characterize the Innu's action. As we have explained, this must be done on the basis of Quebec law, with some flexibility to accommodate institutions that are unknown to or different from those recognized in domestic law. ###### (a) Aboriginal Title and Other Aboriginal Rights as Real Rights [ 117 ] Aboriginal title and other Aboriginal or treaty rights must clearly be considered "real rights" for the purposes of private international law. More specifically, they resemble or are at least analogous to the domestic institution of real rights because they are rights in rem — rights in property, namely the land subject to Aboriginal title — and they are rights enforceable erga omnes, that is, against governments and others seeking to use the land. [ 118 ] Aboriginal title confers "the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land, to the exclusion of all others; the right to the economic benefits of the land; and the right to proactively use and manage the land": *Tsilhqot'in Nation*, at para. 73. [ 119 ] These rights bear a strong resemblance to the definition of a real right in Quebec civil law. A real right (droit réel) is a right in property that is enforceable against everyone. A personal right (droit personnel), by contrast, is a right that one person has against another. [ 120 ] We acknowledge that Aboriginal title is described as sui generis in nature. But, as we explain below, this does not prevent it from being characterized as a real right for the purposes of private international law. [ 121 ] The C.C.Q. establishes a framework for private international law that is based on the characterization of the rights at stake. In keeping with this framework, the nature of the Innu's claims must be assessed with reference to the nature of the rights at stake. [ 122 ] A real right (droit réel) is generally understood to be a right in property. Under Quebec civil law"[o]wnership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so prescribed by law": art. 947 C.C.Q. Article 1119 C.C.Q. specifies that "[u]sufruct, use, servitude and emphyteusis are dismemberments [démembrements] of the right of ownership and are real rights". [ 123 ] A personal right (droit personnel), in contrast, is one that a person has as against another person. It is a right to performance of an obligation. Such rights are governed by the law of obligations. [ 124 ] A real action (action réelle) is one in which a person asserts a real right. It is an action to protect or recognize a real right. A personal action (action personnelle) is one in which a person asserts a personal right — typically a claim for performance of an obligation or damages for breach of an obligation. [ 125 ] A mixed action (action mixte) is one that has elements of both a real action and a personal action. [ 126 ] In our view, the aspects of the Innu's action that seek the recognition of their Aboriginal title and other Aboriginal or treaty rights in Nitassinan are real in nature. The purpose of these claims is to obtain the recognition of rights in property — specifically, rights in and over the land of Nitassinan — and to protect those rights against alleged violations by the mining companies. ###### (b) The Sui Generis Nature of Aboriginal Rights [ 127 ] It is true, as our colleagues note, that Aboriginal title and other Aboriginal rights are sui generis in nature. This Court has repeatedly recognized this. In *Delgamuukw*, Lamer C.J. stated that "aboriginal title cannot be described with reference to traditional property law concepts": para. 112. The Court has also recognized that Aboriginal rights are "distinct from any other kind of property right": *R. v. Van der Peet*, [1996] 2 S.C.R. 507. [ 128 ] We are also aware that Aboriginal title has features that distinguish it from civil law and common law conceptions of property. For example: - Aboriginal title is inherently collective: it is held by the Aboriginal group collectively, not by individual members.

• Aboriginal title cannot be alienated, except to the Crown: it cannot be sold or transferred to third parties.
• Aboriginal title has an inherent limit: the land subject to it cannot be developed or misused in a way that would substantially deprive future generations of the benefit of the land. [ 129 ] We acknowledge that these features make Aboriginal title quite different from the civil law concept of ownership. However, this does not mean that Aboriginal title cannot be characterized as a real right for the purposes of private international law. [ 130 ] Private international law is frequently confronted with legal institutions that are different from or unknown to domestic law. When this happens, the applicable rules of private international law must be applied flexibly, so as to encompass institutions that are legally distinct but analogous to the recognized domestic categories. [ 131 ] Aboriginal title, for the purposes of private international law, is analogous to a real right. It confers rights in and over specific land, and it is enforceable against everyone. The fact that it has sui generis features — such as collective ownership and inalienability — does not change the fundamental nature of Aboriginal title as a right in property. [ 132 ] The sui generis nature of Aboriginal title relates to its source — the prior occupation of Canada by Indigenous peoples — as well as to its content and some of its characteristics. But these sui generis features do not change the fundamental character of Aboriginal title as a right in property. As this Court recognized in *Tsilhqot'in Nation*, Aboriginal title "is a beneficial interest in the land": para. 70. [ 133 ] Our colleagues rely on the sui generis nature of Aboriginal title to place it outside any recognized category of rights for the purposes of private international law, which they say means that art. 3134 applies by default. But we do not accept this analysis. The fact that a legal institution is sui generis does not mean that it cannot be assigned to a category for the purposes of private international law. The purpose of the characterization exercise in private international law is to determine which special provision applies. If there is no special provision that applies, then art. 3134 applies by default. But the absence of a special provision should not be the automatic result whenever a legal institution is described as sui generis. [ 134 ] In our view, Aboriginal title and other Aboriginal or treaty rights are analogous to real rights for the purposes of private international law. They therefore fall within the scope of art. 3152 C.C.Q., which is the special provision governing real actions and mixed actions. ###### (i) Aboriginal Title [ 135 ] We begin with Aboriginal title. This Court has consistently described Aboriginal title in terms that emphasize its proprietary character. In *Delgamuukw*, Lamer C.J. held that Aboriginal title "is a right to the land itself": para. 138. Aboriginal title "encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures": para. 117. [ 136 ] Aboriginal title thus confers a broad range of rights in and over specific land. The holders of Aboriginal title have the right to use the land for any purpose, not merely for traditional purposes: *Tsilhqot'in Nation*, at para. 52. [ 137 ] This is consistent with the characteristics of a real right in Quebec civil law. A real right is a right that is directly exercisable in respect of a thing and that is enforceable against all: Cornu, ed., Dictionary of the Civil Code (2014), at "action réelle"; G. Cornu, dir., Vocabulaire juridique, 12th ed. (2018), at "droit réel". [ 138 ] Aboriginal title bears a strong resemblance to the civil law concept of a "real right of enjoyment" (droit réel de jouissance). In Quebec civil law, real rights of enjoyment include usufruct, use, servitude and emphyteusis: art. 1119 C.C.Q. But Quebec courts and authors have also recognized the existence of innominate real rights of enjoyment — real rights of enjoyment that are not expressly provided for by statute. [ 139 ] The fact that Aboriginal title is not a recognized category of real right in Quebec civil law does not prevent it from being characterized as a real right for the purposes of private international law. The sui generis nature of Aboriginal title means that it cannot be completely described using the terminology of the civil law. But, for the purposes of private international law, Aboriginal title is analogous to a real right of enjoyment: it confers rights in and over specific land, it is exercisable directly in respect of the land, and it is enforceable against all. [ 140 ] We acknowledge that Aboriginal title is different from the civil law concept of ownership or of a dismemberment of ownership. But the category of "real rights" in private international law is broad enough to encompass institutions that are analogous to recognized real rights, even if they cannot be perfectly matched to one of the recognized categories: see Barer, at para. 108; GreCon, at para. 19. [ 141 ] We note in this regard that Aboriginal title is not merely a right that one person has against another person. It is a right that is exercisable directly in respect of specific land, and it is enforceable against all — against governments and others seeking to use the land. This is precisely the characteristic that distinguishes real rights from personal rights. [ 142 ] We also note that this Court described Aboriginal title in *St. Catherine's Milling and Lumber Company v. The Queen* (1888), 14 App. Cas. 46 (P.C.), as a "personal and usufructuary right, dependent upon the good will of the Sovereign": p. 54. While the sui generis nature of Aboriginal title is now well established, the reference to a "usufructuary right" confirms that Aboriginal title has long been understood as bearing a resemblance to a real right of enjoyment. [ 143 ] For all these reasons, we conclude that Aboriginal title is analogous to a real right for the purposes of private international law. [ 144 ] Our colleagues' view that Aboriginal title is a sui generis right that cannot be fitted into any recognized category of private international law leads to the conclusion that art. 3134 applies by default — that is, that Quebec courts have jurisdiction simply because the defendants are domiciled in Quebec. But this cannot be right. The purpose of characterizing an action in private international law is to determine which special provision applies. The fact that Aboriginal title does not fit perfectly into any recognized category does not mean that it cannot be characterized for this purpose. [ 145 ] If there is a special provision that is analogous to the legal institution at issue — even if the analogy is not perfect — that provision should be applied. In this case, art. 3152 C.C.Q. — which applies to real actions — is the provision that is most analogous to the Innu's claims regarding the recognition of their Aboriginal title. [ 146 ] Moreover, our colleagues' approach, which effectively applies art. 3134 by default to all sui generis rights, leads to results that are difficult to justify. Under their approach, Quebec courts would have jurisdiction over all s. 35 claims, including claims involving Aboriginal title to land in every province of Canada, simply because the defendant is domiciled in Quebec. This would be inconsistent with the territorial limits on the jurisdiction of provincial courts and with the principles of Canadian federalism. [ 147 ] We therefore conclude that Aboriginal title is a real right for the purposes of private international law, and that claims whose purpose is to obtain the recognition or protection of Aboriginal title are real actions (or mixed actions) under art. 3152 C.C.Q. [ 148 ] We now turn briefly to the specific arguments made by our colleagues in support of their characterization of Aboriginal title as a sui generis right that is neither a real right nor a personal right. [ 149 ] First, our colleagues emphasize that Aboriginal title is collective in nature, unlike civil law property rights, which are generally individual. But this difference does not prevent Aboriginal title from being characterized as a real right for the purposes of private international law. Collective rights in property are known in Quebec civil law — for example, through the regime of co-ownership (copropriété): arts. 1010 to 1015 C.C.Q. The collective nature of Aboriginal title does not make it incompatible with the category of real rights. [ 150 ] Second, our colleagues note that Aboriginal title cannot be alienated, except to the Crown. But the inalienability of Aboriginal title is a characteristic of the right that relates to its content, not to its nature. A right can be inalienable and still be a real right — for example, some real rights, such as the right of use (droit d'usage), are personal in the sense of being inalienable: art. 1172 C.C.Q. [ 151 ] Third, our colleagues emphasize that Aboriginal title is grounded in the relationships formed by the confluence of prior occupation and the assertion of sovereignty by the Crown, and that this gives rise to obligations flowing from the honour of the Crown that are more akin to personal rights. But the source of a right is different from its nature. Aboriginal title may arise from a distinctive historical relationship between Indigenous peoples and the Crown, but that does not change the nature of the right itself, which is a right in and over specific land. [ 152 ] Fourth, our colleagues note that disputes involving Aboriginal title must be understood with reference to Aboriginal perspectives. We agree. But this consideration does not determine the characterization of Aboriginal title for the purposes of private international law. Private international law necessarily uses categories drawn from domestic law to characterize legal institutions from other legal systems. The use of domestic categories does not deny the sui generis nature of Aboriginal title; it simply places it within a legal framework for the purpose of determining jurisdiction. [ 153 ] For all these reasons, we respectfully disagree with our colleagues' characterization of Aboriginal title as a sui generis right that is neither a real right nor a personal right for the purposes of private international law. [ 154 ] Contrary to what the Court of Appeal suggested in the case at bar, at paras. 13, 67‑69, 74‑77, 81‑82 and 85 of its reasons, the fact that Aboriginal title is sui generis in nature does not preclude it from being found to be a proprietary interest (or, more specifically, a real right) for the purposes of private international law. The Court of Appeal concluded that the Innu's action was a [translation] "primarily personal" action over which Quebec authorities "have jurisdiction because the IOC and the QNS&LR have their head offices in Quebec" and because the Innu were alleging an injury suffered in Quebec: paras. 15, 52 and 95, with reference to arts. 3134 and 3148 para. 1(1) and (3) C.C.Q. However, this Court made it abundantly clear in Delgamuukw that "aboriginal title is only 'personal' [because of its inalienability], and does not mean that aboriginal title is a non‑proprietary interest": para. 113. [ 155 ] Indeed, at the risk of repeating ourselves, the fact that Aboriginal title is sui generis in nature does not mean that it cannot be a proprietary interest or a real right strictly for the purposes of private international law; its sui generis nature relates to its source — the prior occupation of Canada by Indigenous peoples — as well as its content and some of its characteristics. Aboriginal title is collective; it cannot be surrendered, except to the Crown; and it has an inherent limit, because the land subject to it cannot be developed or misused in a way that would substantially deprive future generations of the benefit of the land: *Delgamuukw*, at paras. 112‑15, 117 and 125‑32; *Tsilhqot'in Nation*, at paras. 15, 72‑75 and 121. The source, content and characteristics of Aboriginal title simply cannot be completely explained by reference to the common law or civil law rules of property law. This, and nothing more, is what is meant when it is said that Aboriginal title is "sui generis": on this point, see McNeil"Aboriginal Title as a Constitutionally Protected Property Right", at p. 61. Therefore, the fact that Aboriginal title is sui generis in nature does not prevent it from being given a civil law characterization for the purposes of private international law. ###### (ii) Other Aboriginal or Treaty Rights [ 156 ] What we have just explained about the sui generis nature of Aboriginal title applies mutatis mutandis to other Aboriginal or treaty rights, which this Court has also described as sui generis: *Sparrow*, at p. 1112; *R. v. Sundown*, 1999 673 (SCC), [1999] 1 S.C.R. 393, at para. 35. As Lamer C.J. noted in Delgamuukw, Aboriginal rights "fall along a spectrum with respect to their degree of connection with the land": para. 138. [ 157 ] This Court also stated in Delgamuukw that "[b]ecause aboriginal rights can vary with respect to their degree of connection with the land, some aboriginal groups may be unable to make out a claim to title, but will nevertheless possess aboriginal rights that are recognized and affirmed by s. 35(1), including site‑specific rights to engage in particular activities": para. 139. While it is possible — as the AGNL in fact acknowledges in his factum (at para. 79) — that some Indigenous practices, customs or traditions will be connected to no specific territory or location, this Court has nonetheless pointed out that "[a]n aboriginal practice, custom or tradition entitled to protection as an aboriginal right will frequently be limited to a specific territory or location"; as such"an aboriginal right will often be defined in site‑specific terms, with the result that it can only be exercised upon a specific tract of land" (*R. v. Côté*, 1996 170 (SCC), [1996] 3 S.C.R. 139, at para. 39 (emphasis added); see also *R. v. Sappier*, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 50; *Mitchell v. M.N.R.*, 2001 SCC 33, [2001] 1 S.C.R. 911, at paras. 55‑56). In our view, this is the case here because — based on the Innu's own allegations in their action and on their admission to this effect in the notice of constitutional questions — the Aboriginal or treaty rights they are claiming are connected to Nitassinan; for example: [translation] Well before contact with the Europeans and up to the present time, the plaintiffs the Innu of UM-MLJ and their ancestors have used and frequented Nitassinan in Quebec and in Labrador while pursuing their unique way of life, which includes hunting, fishing, trapping and gathering. Prior to contact with the Europeans and since that time, the plaintiffs the Innu of UM‑MLJ and their ancestors have, in Nitassinan, carried on practices, customs and traditions that are central to the distinctive culture of their Indigenous Innu society. The plaintiffs the Innu of UM‑MLJ and their ancestors have continuously, in their Nitassinan: (a) lived in Nitassinan, given birth and raised their children, watched over their dead and taken care of their burial, in accordance with their specific way of life; (b) hunted, trapped, fished and gathered; (c) exploited, used and enjoyed natural resources and made use of its fruits and products; (d) obtained their means of sustenance from and lived off the natural resources found there; (e) benefitted economically from their land; The carrying on of these practices, customs and traditions and this way of life based on hunting, fishing, trapping and gathering continued well after contact with the Europeans and has continued up to the present time without extinction or voluntary surrender. The activities, acts and relationships described in paragraphs 44 to 47 are practices, customs and traditions that are integral to the plaintiffs' distinctive culture, have a close connection with the land and were and are at the core of their identity as Innu. RIGHTS ASSERTED BY THE INNU OF UM-MLJ The Indian title, existing Aboriginal rights and treaty rights of the plaintiffs the Innu of UM‑MLJ in and to the part of their Nitassinan that is affected by the IOC megaproject include the right to the exclusive use and occupation of the land in this part of their Nitassinan, the right to hunt, fish and trap in this part of their Nitassinan and the right to enjoy and use all of the natural resources in this part of their Nitassinan. Before IOC came to Nitassinan, and even before the Europeans arrived in the Schefferville area, the Innu of UM‑MLJ, including their ancestors, frequented and used this traditional territory, in the manner of owners, on a regular basis. They engaged there in their traditional activities, including hunting, trapping, fishing and gathering, in accordance with the Innu way of life, and particularly for sustenance purposes. Among other things, the IOC megaproject, and in particular the defendants' operations, facilities and activities, have infringed and are infringing the plaintiffs' constitutional rights and rights under the general law, that is, their Indian title and their Aboriginal and treaty rights. [Emphasis added.] (Motion to Institute Proceedings, A.R., vol. II, at pp. 9‑11, 19‑20 and 24) [ 158 ] In our view, the right to hunt, trap, fish and gather, the right to enjoy all natural resources (including iron ore) and the right to use the watercourses of Nitassinan amount to real rights for the purposes of private international law. More specifically, they resemble or are at least analogous to innominate real rights of enjoyment: see Anker, at pp. 20‑22. An Aboriginal right to hunt, trap, fish or gather is certainly a burden on the land and, under certain conditions, could even be exercised on private property: see, for example, *R. v. Badger*, 1996 236 (SCC), [1996] 1 S.C.R. 771; see also, on this point, K. McNeil"Co‑Existence of Indigenous Rights and Other Interests in Land in Australia and Canada" (1997), 3 C.N.L.R. 1. [ 159 ] Indeed, Quebec judges and authors now generally acknowledge the existence of innominate real rights of enjoyment, that is, dismemberments of ownership that are not expressly provided for by statute: Emerich, at p. 306; Lafond, at p. 758; M. Cantin Cumyn"De l'existence et du régime juridique des droits réels de jouissance innommés: Essai sur l'énumération limitative des droits réels" (1986), 46 R. du B. 3; Matamajaw Salmon Club v. Duchaine, [1921] 2 A.C. 426 (P.C.); *Procureur général du Québec v. Club Appalaches inc.*, 1999 13282 (QC CA), [1999] R.J.Q. 2260 (C.A.); *Anglo Pacific Group PLC v. Ernst & Young inc.*, 2013 QCCA 1323, [2013] R.J.Q. 1264. Article 1119 C.C.Q. states that "[u]sufruct, use, servitude and emphyteusis are dismemberments [« des démembrements » in French] of the right of ownership and are real rights". The choice of words in the French version seems to suggest that the legislature did not intend to enact an exhaustive, closed list of real rights in Quebec law. As Professor Emerich explains, at p. 307: [translation] A number of innominate real rights have been recognized in Quebec civil law, including the right to cut wood and the rights to hunt and fish. Rights to extract minerals or plant materials from the ground, to use the water power of a river or to operate a sugar bush may also be found. [Emphasis added; footnotes omitted.] [ 160 ] Professor B. Ziff notes in this regard that some Aboriginal rights are analogous to profits à prendre: Principles of Property Law (7th ed. 2018), at p. 443; see, to the same effect, *Bolton v. Forest Pest Management Institute* (1985), 1985 579 (BC CA), 66 B.C.L.R. 126 (C.A.). Profits à prendre in the common law are similar to innominate real rights of enjoyment in the civil law: Emerich, at p. 304. [ 161 ] The intervener Tsawout First Nation argues in its factum that Aboriginal rights short of Aboriginal title do not constitute proprietary interests or real rights because they are not exclusive: para. 27. It notes that an Indigenous group with an Aboriginal right to fish or hunt in a specific territory may have to exercise this right in common with other Indigenous or non‑Indigenous groups: para. 28. This characteristic of Aboriginal rights does not preclude a finding that they amount to proprietary interests or real rights for the purposes of private international law. In French law, for instance, Professor W. Dross states that the utility conferred on the holder of a dismembered real right is not necessarily withdrawn from the owner of the thing, [translation] "who may continue to exercise it, but now concurrently with another". Thus, for example, an owner who grants a neighbour a servitude of right of way on his or her property does not abstain from using the right of way: the situation simply becomes one of "plural appropriation" of the utility in question or, in other words, indivision (Droit des biens (4th ed. 2019), at p. 108; see also Emerich, at pp. 278‑79). ###### (c) Conclusion Regarding the Characterization of the Innu's Action [ 162 ] As indicated above, a real action can be defined as an action through which a person seeks the recognition or protection of a real right. Because Aboriginal title and other Aboriginal or treaty rights are real rights for the purposes of private international law, it necessarily follows that the aspect of the Innu's action whose purpose, according to the AGNL, is to have such rights recognized and protected constitutes a real action or, at best, a mixed action falling under Division III of Chapter II of Title Three of Book Ten of the C.C.Q. Below we will consider in detail whether there is in fact an aspect of the Innu's action whose purpose is to obtain the recognition or protection of Aboriginal title or other Aboriginal or treaty rights. ##### (2) Article 3152 C.C.Q. [ 163 ] Article 3152 C.C.Q. is the first provision in Division III, which is entitled "Real and Mixed Actions". It reads as follows: 3152. Québec authorities have jurisdiction to hear a real action if the property in dispute is situated in Québec. According to well‑established jurisprudence, Quebec authorities lack jurisdiction to hear a real action if the property in dispute is situated outside Quebec: Glenn, at pp. 757‑58; Bern, at p. 516; Mazur v. Sugarman & Vir (1938), 42 R.P.Q. 150 (Sup. Ct.); Senauer v. Porter (1862), 7 L.C. Jur. 42 (Sup. Ct.); Equity Accounts Buyers Limited v. Jacob, [1972] C.S. 676; Union Acceptance Corporation Ltd. v. Guay, [1960] B.R. 827; Goldstein and Groffier (1998), at No. 151; E. Groffier, Précis de droit international privé québécois (4th ed. 1990), at p. 276. The courts have treated this as an imperative rule of territorial jurisdiction that amounts to a rule of subject‑matter jurisdiction, the violation of which [translation] "results in an absolute lack of jurisdiction that may be raised at any point in the proceedings": Castel, at p. 689. [ 164 ] Article 3152 C.C.Q. must be read in accordance with the "modern approach" to statutory interpretation, which applies when interpreting an article of the C.C.Q.: *Montréal (Ville) v. Lonardi*, 2018 SCC 29, [2018] 2 S.C.R. 103, at para. 22. Private international law is codified in Quebec. As a result"'the general principles of interpretation of the Civil Code apply to the determination of the scope of the relevant provisions', and '[t]he courts must therefore interpret the rules as a coherent whole'" in light of the principles of comity, order and fairness, which inspire the interpretation of the various private international law rules: *Barer*, at para. 108, per Brown J., citing *GreCon Dimter inc. v. J.R. Normand inc.*, 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 19; *Spar Aerospace Ltd. v. American Mobile Satellite Corp.*, 2002 SCC 78, [2002] 4 S.C.R. 205, at para. 23. In the case at bar, the legislative history of art. 3152 C.C.Q. warrants particular attention. [ 165 ] Article 3152 C.C.Q. replaced, for private international law, art. 73 f. C.C.P. (now arts. 41 para. 1 and 42(3) C.C.P.): see, in this regard, Goldstein and Groffier (2003), at No. 311. Article 73 f. C.C.P. read as follows: 73. A real action or a mixed action may be taken either before the court of the domicile of the defendant or before the court of the district where the property in dispute is situated in whole or in part. [ 166 ] Before the C.C.Q. came into force in 1994, the international jurisdiction of Quebec authorities was in fact governed by the f. C.C.P.: see, on this point, Castel, at pp. 21 and 665; Trower and Sons, Ld. v. Ripstein, 1944 384 (UK JCPC), [1944] A.C. 254 (P.C.); Alimport (Empresa Cubana Importadora de Alimentos) v. Victoria Transport Ltd., 1976 206 (SCC), [1977] 2 S.C.R. 858, at p. 868. Article 73 f. C.C.P. was therefore applied to international situations, even though such an interpretation of the article [translation] "was questionable because it refers to a district": Goldstein and Groffier (1998), at No. 151; see also Castel, at pp. 690‑91. [ 167 ] Despite the wording of art. 73 f. C.C.P., which gave Quebec authorities jurisdiction where the defendant was domiciled in Quebec, these authorities did not consider themselves to have jurisdiction over a real action where the subject matter of the dispute was immovable property situated outside Quebec: [translation] Quebec courts have exclusive jurisdiction to decide matters involving immovable property situated in the province. They never have jurisdiction to render a decision concerning immovable property situated abroad, whether the dispute concerns inter vivos transactions or successions of immovable property. This jurisprudence seems to run counter to articles 73 and 74 of the Code of Civil Procedure, which recognize the jurisdiction of courts other than those of the place where the property in dispute is situated. This is why reference is made to international subject‑matter jurisdiction. It would be preferable to acknowledge that the rules of domestic territorial jurisdiction set out in articles 73 and 74 C.C.P. have been adapted to the international nature of the situation . . . . [Emphasis added; footnote omitted.] (Castel, at p. 691) Quebec courts will not adjudicate as to foreign lands: Our courts have no jurisdiction to adjudicate upon the title or the right to the possession of any immoveable not situate in Quebec. [Emphasis in original.] (W. S. Johnson, Conflict of Laws (2nd ed. 1962), at p. 485) [ 168 ] In our view, Professor Emanuelli provides a good summary of the state of the law before the Civil Code was reformed: [translation] Prior to the reform of the Civil Code, the courts determined the jurisdiction of Quebec authorities over real and mixed actions by applying articles 73 and 74 C.C.P., as they had adapted the rules in those articles to international disputes by reference to the distinction between movable property and immovable property. The courts had thus extended the lex rae sitae rule of jurisdiction to conflicts of jurisdiction. As a result, in real actions relating to immovable property, Quebec courts had jurisdiction only if the property was situated in Quebec. On the other hand, they had jurisdiction over a real action relating to movable property if the defendant was domiciled in Quebec or if the property in question was situated in Quebec. Because different rules applied depending on whether the action concerned movable property or immovable property, it was necessary to characterize the property to which the action related. Under the former article 6 para. 2 C.C.L.C., the property at issue in a real action was characterized on the basis of Quebec law, even if it was situated abroad. [Emphasis added; footnotes omitted; No. 205.] [ 169 ] We note that in 1977, the Civil Code Revision Office ("CCRO") proposed the enactment of the following article: 50. In matters involving real rights, the courts of Québec have general jurisdiction if all or part of the property in dispute is situated in Québec. [Emphasis added.] (Civil Code Revision Office, Report on the Québec Civil Code, vol. I, Draft Civil Code (1978), at p. 604) This article is consistent with Québec practice. It is based in part on Article 73 of the Code of Civil Procedure. It was not considered necessary to adopt any special rule with respect to mixed actions, since it was felt that no such action could be instituted in Québec unless the courts had jurisdiction over both the personal and the real nature of the dispute. [Emphasis added.] (Civil Code Revision Office, Report on the Québec Civil Code, vol. II, t. 2, Commentaries (1978), at p. 989) [ 170 ] A 1988 draft bill entitled An Act to add the reformed law of evidence and of prescription and the reformed private international law to the Civil Code of Québec, 2nd Sess., 33rd Leg., contained a general provision, art. 3514, that read as follows: 3514. A Québec court has jurisdiction over a real action if the property in dispute is situated in Québec; it also has jurisdiction where the action concerns movable property and the defendant is domiciled in Québec. [ 171 ] As noted by Groffier, at p. 276, [translation] "[t]his wording prevents any hesitation as regards the Quebec court's lack of jurisdiction where the immovable property is not situated in Quebec". Nevertheless, the draft bill gave a court jurisdiction "where the action concern[ed] movable property and the defendant is domiciled in Québec": art. 3514. In the brief it submitted to the Committee on Institutions in March 1989, the Barreau du Québec suggested, however, that this last portion of the sentence be removed: [translation] The second part of this article is problematic, particularly where the property is situated abroad; the seizure of such property is then beyond the control of the Quebec court. The focus must be first and foremost on the property, not on the defendant. [Emphasis added.] (Mémoire du Barreau du Québec sur l'avant-projet de loi portant réforme au Code civil du Québec du droit international privé, at p. 49; see also, in this regard, Goldstein and Groffier (2003), at No. 311; E. Groffier, La réforme du droit international privé québécois: Supplément au Précis de droit international privé québécois (1993), at p. 144; Emanuelli, at No. 163.) The Barreau's suggestion clearly bore fruit, because in the end, art. 3130 of the Civil Code of Québec, Bill 125, 1st Sess., 34th Leg., 1990, had the same wording in French as the current art. 3152 C.C.Q. and read as follows in English: 3130. A Québec judicial or administrative authority has jurisdiction over a real action if the property in dispute is situated in Québec. This was also what was indicated in the detailed comments in Projet de loi 125: Code civil du Québec, Commentaires détaillés sur les dispositions du projet, Livre X: Du droit international privé et disposition finale (Art. 3053 à 3144) (1991), at p. 110: [translation] The article, which is new law, adopts the C.C.R.O.'s proposal. In the case of real actions, it confers jurisdiction on the Quebec authorities in the place where the property is situated, thereby aligning the applicable law (art. 3073) and adjudicative jurisdiction. Unlike article 73 C.C.P., which deals with the jurisdiction of Quebec courts over real and mixed actions, the proposed article does not base jurisdiction on the defendant's domicile. This criterion is more relevant to mixed actions than it is to real actions. [Emphasis added.] [ 172 ] For its part, the commentary of the Minister of Justice on art. 3152 C.C.Q. was as follows: [translation] This article, which is new law, confers jurisdiction over real actions on the Quebec authorities in the place where the property is situated, thereby aligning the applicable law (art. 3097) and adjudicative jurisdiction. Unlike article 73 C.C.P., which deals with the jurisdiction of Quebec courts over real and mixed actions, article 3152 does not base jurisdiction on the defendant's domicile. This criterion is more relevant to mixed actions than it is to real actions. (Ministère de la Justice, Commentaires du ministre de la Justice, vol. II, Le Code civil du Québec — Un mouvement de société (1993), at p. 2012) [ 173 ] In short, [translation] "[t]he position of movable property is in line with that of immovable property" and "[i]t is the court of the place where the property is situated that has jurisdiction over a real action, regardless of the nature of the property to which the action relates": Goldstein and Groffier (1998), at No. 151; see also Emanuelli, at No. 206. [ 174 ] The legislative history of art. 3152 C.C.Q. leads to three conclusions, all of which are of great importance in the case at bar. First, art. 3152 C.C.Q. affirms a well‑established principle, which is that Quebec authorities lack jurisdiction over an immovable real action where the subject matter of the dispute is situated outside Quebec. In fact, art. 3152 C.C.Q. not only affirms this principle but also extends it to movable real actions. In real actions, whether immovable or movable, Quebec authorities now lack jurisdiction where the subject matter of the dispute is not situated in Quebec. In particular, the defendant's domicile does not give them jurisdiction over a real action, regardless of whether the subject matter of the dispute is immovable property or movable property, because art. 3134 C.C.Q. expressly states that this rule applies only in the absence of any special provision: Goldstein, at pp. 271 and 275. [ 175 ] This principle is important in the instant case, because the defendants, IOC and QNS&L, are domiciled in Quebec and because the courts below assumed jurisdiction over the entire dispute on the basis of this head of jurisdiction: Sup. Ct. reasons, at paras. 82 and 93‑102; C.A. reasons, at paras. 15, 52 and 95. [ 176 ] Second, and contrary to the wording of art. 73 f. C.C.P. (now art. 42(3) C.C.P.), which used to apply in private international law in the case of real and mixed actions, and to the wording of art. 50 of the CCRO's Report on the Québec Civil Code, vol. I, art. 3152 C.C.Q. does not provide for the jurisdiction of Quebec authorities where the property in dispute is situated "in whole or in part" in Quebec or where "all or part" of it is situated in Quebec. Here, part of Nitassinan is certainly situated in Quebec, but the fact that Quebec authorities have jurisdiction over that part of the territory cannot give them jurisdiction over the part not situated in Quebec. A different interpretation would amount to rewriting art. 3152 C.C.Q. by adding the words "all or part of", which, as we have seen, were deliberately removed from the wording of this article by the legislature. Moreover, our interpretation of art. 3152 C.C.Q. on this point is consistent with the presumption against extraterritoriality, whereby "[t]he legislature is presumed to intend the territorial limits of its jurisdiction to coincide with that of the statute's operation", and "[u]nless implicitly or explicitly provided otherwise, the legislature is presumed to enact for persons, property, juridical acts and events within the territorial boundaries of its jurisdiction": P.‑A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 212. [ 177 ] Third, it is quite clear from the CCRO's Report on the Québec Civil Code, the Commentaires détaillés sur les dispositions du projet discussing art. 3130 of Bill 125 and the Commentaires du ministre de la Justice concerning art. 3152 C.C.Q. that a mixed action may not be instituted in Quebec unless Quebec authorities have jurisdiction over both the personal aspect and the real aspect of the dispute. In other words, for Quebec authorities to have jurisdiction over a mixed action, the property in dispute must be situated entirely in Quebec, since otherwise they will have no jurisdiction over the real aspect of the dispute. Jurisdiction over the personal aspect of the dispute based, for example, on the defendant's domicile is therefore not sufficient in the case of a mixed action. The Quebec Court of Appeal recently adopted this same interpretation of art. 3152 C.C.Q.: *CGAO v. Groupe Anderson inc.*, 2017 QCCA 923, at paras. 10‑11. We also note that this interpretation of art. 3152 C.C.Q. is not disputed by the Innu, the AGC or our colleagues. [ 178 ] One conclusion must be reached in this regard: the C.C.Q. departs from the law as it existed before the C.C.Q. came into force. Article 73 f. C.C.P. provided that a mixed action could be taken "either before the court of the domicile of the defendant or before the court of the district where the property in dispute [was] situated in whole or in part". Judges and authors also recognized the jurisdiction of Quebec authorities over a dispute where the action could be characterized as personal or mixed and where a head of jurisdiction other than the property being situated in Quebec (for example, the defendant's domicile) was established: Glenn, at pp. 757‑58; Babineau v. Railway Centre Park Company Limited (1914), 47 C.S. 161; Lamothe v. Hébert (1916), 24 R.L. 182 (Sup. Ct.). Contemporary authors — who in this respect continue to rely on cases decided before the C.C.Q. came into force — have not always identified this change made to the law when the C.C.Q. came into force: see, for example, Goldstein and Groffier (2003), at No. 311. [ 179 ] In the present case, the Superior Court judge expressly recognized — in accordance with the admission made before him by the Innu (at para. 61) — that Aboriginal title and other Aboriginal or treaty rights [translation] "involv[e] a number of elements of a real right" (paras. 62‑64). He nevertheless rejected the characterization of the Innu's action as a "real action" and preferred to characterize it as a "mixed action" because, in his view, the real aspect of the action, whose purpose is to obtain the recognition and protection of Aboriginal title and other Aboriginal or treaty rights, is "ancillary" to the personal aspect of the action, whose purpose is to obtain an award of damages against the defendants, IOC and QNS&L: paras. 66‑68 and 77‑79. Because the defendants are domiciled in Quebec, the judge concluded that Quebec authorities have jurisdiction over such a "mixed action": paras. 82 and 93‑102. [ 180 ] However, it is in the case of a personal action — not a mixed action — that Quebec authorities have jurisdiction where the defendant is domiciled in Quebec: art. 3148 para. 1(1) C.C.Q. In a mixed action, the defendant's domicile is not enough; the property in dispute must also be situated in Quebec, as required by art. 3152 C.C.Q. [ 181 ] Our colleagues are of the view that the Innu's action is a "non‑classical" mixed action with a personal aspect and a sui generis aspect: para. 56. Relying on the absence of any provisions relating specifically to sui generis rights, they conclude that art. 3134 C.C.Q. is applicable and that, because the companies being sued are domiciled in Montréal, Quebec authorities have jurisdiction over both the personal aspect and the sui generis aspect of the action. [ 182 ] The rights protected by s. 35 of the Constitution Act, 1982, and in particular Aboriginal title conferring "the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes" (*Delgamuukw*, at para. 117), are a burden first and foremost on the Crown's underlying title (*Tsilhqot'in Nation*, at para. 69). As this Court noted"[t]he characteristics of Aboriginal title flow from the special relationship between the Crown and the Aboriginal group in question. It is this relationship that makes Aboriginal title sui generis or unique": Tsilhqot'in Nation, at para. 72 (emphasis added). The Crown is the main defendant in an action for the recognition of Aboriginal title, as we will show below. [ 183 ] Our colleagues' conclusion (at para. 58) that the private companies, rather than the Crown, are the defendants in the action for the recognition of Aboriginal rights is therefore highly problematic. We want to emphasize that, even under our colleagues' interpretation of Quebec private international law, their conclusion that a third party, rather than the Crown, is the defendant in the action for the recognition of title is one that distorts the sui generis nature of Aboriginal rights. ##### (3) Consideration of Jurisdiction on a Case‑by‑Case Basis [ 184 ] There is a principle in Quebec private international law to the effect that "the jurisdiction of the Quebec court is determined on a case‑by‑case basis": GreCon, at para. 29. This is the exercise we will now undertake in order to ascertain whether, as the AGNL argues, the Innu's action in fact involves claims that are real or mixed in nature because their purpose is to obtain the recognition or protection of Aboriginal title or other Aboriginal or treaty rights, which are real rights for the purposes of private international law. If the action does involve such claims, Quebec authorities lack jurisdiction to grant the claims if they relate to the part of Nitassinan that is situated in Newfoundland and Labrador. ###### (a) Claim for "Declaratory Remedies" [ 185 ] In their motion to institute proceedings, the Innu seek a number of [translation] "declaratory remedies": A.R., vol. II, at p. 30. The relevant conclusions of that motion read as follows: [translation] TO DECLARE that the plaintiffs the Innu of UM‑MLJ have unextinguished Indian title to the parts of Nitassinan that are affected by the IOC megaproject (including each of its components), and in particular by the facilities, operations and activities of IOC and QNS&L, which are described herein, especially their industrial and port facilities and activities; TO DECLARE that the plaintiffs the Innu of UM‑MLJ have existing Aboriginal and treaty rights in all of Nitassinan, including rights: (a) in and with respect to all natural resources, including iron ore, in Nitassinan, and in particular in the area where the defendants have their mining, railway and port facilities; (b) to hunt, trap, fish and gather for food, social, ceremonial and commercial purposes; (c) to exercise jurisdiction over Nitassinan; (d) to use the watercourses and bodies of water, including the seas, rivers, lakes and ponds; (e) to erect and use camps, lodges, caches and dwellings; (f) to control and manage the above-described Nitassinan, including its fauna, flora, environment and resources; (g) to practise or conduct spiritual and cultural traditions and ceremonies; (h) to exploit forest resources; (i) to use their distinctive language and culture and to pass them down from generation to generation; (j) to use Nitassinan for religious and spiritual purposes, including for burial and for specific rites and traditions connected with death; (k) to exploit and enjoy the natural resources of Nitassinan and to use its fruits, products and resources; and (l) to move freely in their Nitassinan. TO DECLARE that the said Indian title and Aboriginal and treaty rights of the plaintiffs the Innu of UM‑MLJ are protected by the Canadian Constitution and that they take precedence over and constitute a condition attached to and a burden on any right held by the defendants in, to, over and under Nitassinan, including the natural resources found there; TO DECLARE that the IOC megaproject and the defendants' operations, facilities and activities were and are subject to the consent of the plaintiffs the Innu of UM‑MLJ; TO DECLARE that the IOC megaproject, and in particular the defendants' operations, facilities and activities and all work associated therewith, including the so‑called preliminary work, and the performance of that work, are unlawful and constitute an infringement of the plaintiffs' Indian title and Aboriginal and treaty rights; [pp. 31‑32] [ 186 ] Because their purpose is clearly to obtain the recognition of Aboriginal title and other Aboriginal or treaty rights, which are real rights for the purposes of private international law, these claims are real in nature. In fact, a declaration is the primary means by which Aboriginal title can be established: *Tsilhqot'in Nation*, at paras. 89‑90. A declaratory judgment is also, generally speaking, one of the preferred procedural vehicles in property law: L. Sarna, The Law of Declaratory Judgments (4th ed. 2016), at p. 249. It is true that "[t]he court of one geographic jurisdiction, in limited circumstances, may issue a declaration applicable to a party located in another jurisdiction if it is of use and whether or not it is enforceable" (Sarna, at p. 91 (emphasis added)), but under art. 3152 C.C.Q., a court may not grant an application for a declaratory judgment with respect to proprietary or possessory rights in immovable property situated abroad because by doing so it would purport to deal directly with title: see, for example, *Khan Resources Inc. v. W M Mining Co., LLC* (2006), 2006 6570 (ON CA), 79 O.R. (3d) 411 (Ont. C.A.), at paras. 19 and 24; War Eagle Mining Co. v. Robo Management Co. (1995), 1995 16145 (BC SC), 13 B.C.L.R. (3d) 362 (S.C.), at para. 27. [ 187 ] The Innu argue that the declarations they seek would be binding only on the defendants, IOC and QNS&L, and not on the Crown of Newfoundland and Labrador. The Court of Appeal accepted this argument (at para. 91), which is more relevant to the AGNL's second ground of appeal, that is, to the issue of whether the Innu's action is in substance against the Crown of Newfoundland and Labrador, in which case, the AGNL submits, the doctrine of interprovincial jurisdictional immunity would be engaged. [ 188 ] Even if the Innu were correct in arguing that the declarations they seek would be binding only on the defendants, IOC and QNS&L, the fact remains that the declarations would relate to the title the Innu claim to hold to Nitassinan, including the parts of that territory that are situated outside Quebec. Because of art. 3152 C.C.Q., Quebec authorities lack jurisdiction in this regard. [ 189 ] To be clear, we are of the view that if Quebec authorities were to rule directly on the title that the Innu believe they hold to the parts of Nitassinan that are situated outside Quebec, the declarations would be binding on no one, not even on the defendants, IOC and QNS&L, precisely because Quebec authorities lack jurisdiction in this regard: *Medicine Hat (City) v. Wilson*, 2000 ABCA 247, 271 A.R. 96, at para. 96, citing G. Spencer Bower, A. Kingcome Turner and K. R. Handley, The Doctrine of Res Judicata (3rd ed. 1996), at para. 235. [ 190 ] In principle"findings [that are] essentially of a factual nature . . . are not binding on the courts of other provinces": Hunt, at p. 310; on this point, see transcript, at p. 9. A fortiori, the findings of law or of mixed fact and law that would hypothetically be made by the Quebec Superior Court — which lacks jurisdiction to do so — concerning the existence of Aboriginal title or other Aboriginal or treaty rights in land situated outside Quebec would not be binding on the courts of other provinces, regardless of whether such declarations were set out in the reasons or in the formal judgment: see also, in this regard, transcript, at pp. 10‑11 and 46. [ 191 ] We would note here that the strategy chosen by the Innu does not necessarily favour the proportionality of proceedings. The fact is that they are seeking authorization to engage, in Quebec, in long and costly proceedings that would, by their own admission, result in declarations that would have no value against the Crown of Newfoundland and Labrador. If they wished to embark on a "comprehensive land claim", they would then, by their own logic, have to recommence the same proceedings before the competent authorities in Newfoundland and Labrador: transcript, at p. 88. This emerges clearly from the exchanges between this Court and counsel for the Innu during the hearing: [translation] [Mr. Bertrand:] In fact, this is why the Court of Appeal invited them [the AGNL] to come and participate in the proceedings. And it was the same thing at trial. But they chose to appear only to challenge jurisdiction, that's all. But yes, in answer to your question, it . . . Mr. Justice Gascon: But if they participate . . . Excuse me, but this is what I don't understand. If they participate . . . if the Court of Appeal invites them to participate in the proceedings, what would the reason be? Because you're telling me that they will participate in the proceedings, yes, but it won't be binding on them. Would you like to tell me what they'll be doing? Mr. Bertrand: Well, they may be called in warranty too. They may be called in warranty too. They may choose to come to . . . Mr. Justice Gascon: Yes, but the Court of Appeal's invitation to participate was extended in its judgment. It was not based on a call in warranty or . . . Mr. Bertrand: Yes. Mr. Justice Gascon: . . . forced impleading. And you say: "Even if we continue — and this is what the Court of Appeal is inviting them to do — they can come and participate in the proceedings." But why then . . . Mr. Bertrand: Well, but when . . . Mr. Justice Gascon: . . . if this ultimately . . . if this ultimately doesn't make it binding and . . . which suggests to me that even in your scenario, other proceedings will be required, no doubt somewhere in Newfoundland, if only to ensure that these rights have an impact . . . Mr. Bertrand: Yes. Mr. Justice Gascon: . . . on that province. Mr. Bertrand: Yes, but we can choose, as you know . . . Of course, even the court encouraged us in this regard. We can opt for discussions or negotiations, just as we can opt for court proceedings. But in the context of a comprehensive land claim, which is obviously very different from this case, which is really an action for damages . . . But listen, Newfoundland may also not come and participate in the proceedings if it doesn't want to participate in them. Mr. Justice Gascon: If I . . . just so I understand. Mr. O'Reilly, Ad. E.: Yes. ### D. Approach Proposed by the Attorney General of Canada #### (1) The Effects on Canada's Constitutional Structure ##### (a) The Declarations Sought Are Contrary to Our Federal Structure [ 246 ] Canada's federal structure was designed to address the political and social realities of the confederated colonies rather than of Indigenous peoples. Provincial boundaries were imposed on Indigenous peoples without regard for their pre‑existing social organization. Land that, from an Indigenous perspective, represents a single unified territory is divided, from the non‑Indigenous perspective, between two separate sovereign legislatures with separate laws and institutions. The courts can respond to this historical reality only within the constitutional framework from which they derive their authority. Near the heart of that constitutional framework are the provincial boundaries that demarcate the jurisdiction of the separate provincial superior courts and which reflect the constitutional principle of federalism. Section 35 calls on courts to do justice to Aboriginal rights claims that cut across provincial boundaries, but it does not provide a warrant to disregard the provincial boundaries themselves. Neither of these considerations can be subordinated to the other; rather; they must be reconciled. ##### (b) The Declarations Sought Are Contrary to Our Federal Structure [ 247 ] It has been argued before us that any declarations of Aboriginal title obtained in this case would not be enforceable against the Crown but would rather be used only to establish civil liability of private entities. We are not persuaded that declarations of Aboriginal title can function in this way, nor do we consider this to be a desirable result. [ 248 ] A declaratory judgment is a "judicial statement confirming or denying a legal right of the applicant": Sarna, at p. 1. Importantly, before a court can grant a declaration, it must have jurisdiction to hear the issue: *Ewert v. Canada*, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81; *S.A. v. Metro Vancouver Housing Corp.*, 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60. Although a declaration is technically non‑coercive, it is a powerful tool in litigation involving governments, as it is assumed that they will comply with both the letter and the spirit of the declaration: K. Roach, Constitutional Remedies in Canada (2nd ed. (loose‑leaf)), at pp. 15‑63 to 15‑64; *Assiniboine v. Meeches*, 2013 FCA 114, 444 N.R. 285, at paras. 13‑15. Indeed, as the Court in Meeches stated: . . . the proposition that public bodies and their officials must obey the law is a fundamental aspect of the principle of the rule of law, which is enshrined in the Constitution of Canada by the preamble to the Canadian Charter of Rights and Freedoms. Thus, a public body or public official subject to a declaratory order is bound by that order and has a duty to comply with it. [Emphasis added; para. 14.] [ 249 ] For this reason, judicial declarations of existing Aboriginal rights have become the primary remedy for securing those rights: Roach, at p. 15‑63. Section 35(1) establishes that "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." A judicial declaration is the means by which Indigenous peoples can establish that these rights, including Aboriginal title, exist. [ 250 ] We are sceptical of the position urged upon us to the effect that the resulting declaration of Aboriginal title could be issued without binding the Crown of Newfoundland and Labrador for the parts of Nitassinan located in that province. Courts do not make declarations in vain; such a declaration should be considered only if it will bind the Crown, as the declaration confirms that the s. 35 right exists, which in turn trigger important responsibilities by the Crown. [ 251 ] Aboriginal title is a burden on the Crown's underlying title; this burden arose when the Crown declared sovereignty: *Delgamuukw*, at para. 145. An incident of this underlying title is a fiduciary duty owed to Indigenous peoples when dealing with the lands and a right to encroach on the title if the justification test under s. 35(1) is satisfied: *Tsilhqot'in Nation*, at para. 71. [ 252 ] All litigation respecting Aboriginal title affects the Crown: William v. British Columbia, 2002 BCSC 1904, at para. 30. The Crown is a necessary party even if an explicit declaration of title is not sought: Thomas v. RioTinto Alcan Inc., 2016 BCSC 1474, 92 C.P.C. (7th) 122, at paras. 21 and 25. Even asserting a claim of Aboriginal title has a fundamental effect on the Crown's interests: Haida Nation, at paras. 26‑51. The recognition of Aboriginal title further develops the fiduciary‑like relationship: Guerin, at p. 349. Once Aboriginal title is established, governments and others seeking to use the land must obtain the title holders' consent: *Tsilhqot'in Nation*, at para. 76. [ 253 ] We are also sceptical of the following proposition in our colleagues' reasons: This should not be read, however, as precluding the participation of the Crown of Newfoundland and Labrador in the proceedings, if it wishes, in order to assert its interests, invoke its rights and make submissions about the appropriate scope of any declaratory relief. [Citation omitted; para. 72.] We do not understand how the scope of a declaration of Aboriginal title over land in Labrador could be appropriately limited. The AGNL's objection here is that Quebec courts cannot make such a declaration to begin with. We question how, when our colleagues have held that Quebec courts do have such jurisdiction, the scope of any such declaration could be limited in a way consistent with the imperatives of Canadian federalism. Moreover, the AGNL's participation in proceedings before the Quebec Superior Court could be seen as tacitly endorsing that court's jurisdiction, despite its objections to that court having jurisdiction to begin with. [ 254 ] The courts below were well aware of the impact on Newfoundland and Labrador in this case. In an initial motion to strike, Blanchard J. recognized that the courts would be required [translation] "to rule on the constitutional rights that may exist in relation to the Crown, both in right of Canada and in right of Quebec and of Newfoundland and Labrador": Sup. Ct. Judgment Dismissing IOC and QNS&L's Motion to Dismiss, at para. 19 (emphasis added). Similarly, in the decision granting Newfoundland and Labrador intervener status, Davis J. explained that although Aboriginal rights pre‑existed s. 35, [translation] "this does not mean that when a First Nation seeks recognition of its aboriginal rights, the Crown of a province has no interest in the issue", given the fiduciary obligations and limitations on use of the land that would result: Sup. Ct. Judgment Authorizing the Intervention of the AGNL, at para. 63. Even the Court of Appeal in the decision under review recognized that [translation] "[i]f the Innu wish to have their [comprehensive] 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 [comprehensive] claim": C.A. reasons, at para. 104. [ 255 ] Another reason the Crown is a necessary party to any Aboriginal title claims is found in one of the key features of Aboriginal title: in order to ensure future generations benefit from the land, it may be alienated only to the Crown (*Delgamuukw*, at para. 129; *Tsilhqot'in Nation*, at paras. 15 and 74). If Indigenous peoples can settle the extent of their rights in private litigation against third parties, they can effectively alienate their land without dealing with the Crown. This undermines the nature of Aboriginal title. [ 256 ] It is therefore clear that the Crown is a necessary party in Aboriginal title claims — and is necessarily implicated when a declaration of Aboriginal title is made. It follows that a declaration of Aboriginal title cannot be sought "only" against a third party. It also follows that a declaration over land in another province implicates the Crown in right of that province. Yet, it is also clear that the Crown of Newfoundland and Labrador would not be bound by a declaration that purported only to apply against a third party: as Sarna notes"[t]here is no power to grant a declaration determining the rights of parties not present in the proceeding or not ascertained in the circumstances, although such power has been treated as a matter of discretion rather than jurisdiction" (p. 87). [ 257 ] Not only would the Crown of Newfoundland and Labrador not be bound by such a declaration, but as we have also explained, a declaration purporting to apply to land located in another province is beyond the jurisdiction of the issuing court. The result of the approach advocated by the AGC is therefore that the Innu could spend years trying to obtain a declaration as part of their relief that would not in fact confer what it seems to. [ 258 ] Our colleagues note that the courts below did not consider whether the declaratory relief will or ought to be granted. In their view, this Court should not do so either, as these are discretionary decisions to be made by the court seized with the merits of the case. They further state that the issue here "concerns only the jurisdiction of the Quebec courts to embark on that inquiry": para. 43 (emphasis added). With respect, this position grossly minimizes the issue at stake. Again, the AGNL's very objection is that Quebec courts cannot pronounce on rights to land situated in Newfoundland and Labrador. Moreover, our colleagues' decision to leave the question of whether a declaration can be granted to another day is, while well‑motivated, also gravely ill‑advised. If a court cannot give the Innu the remedy they seek, then access to justice requires identifying the appropriate forum at the earliest possible opportunity. ##### (c) The AGC's Use of "Inherent Jurisdiction" [ 259 ] The AGC's inherent jurisdiction approach is also of dubious legality due to its broad reach. If a superior court can adjudicate Aboriginal rights in a neighbouring (or, for that matter, remote) jurisdiction based on the inherent jurisdiction of superior courts, that principle cannot be confined to this case. Clearly, if the Quebec courts are found to have inherent jurisdiction to adjudicate matters relating to land in Newfoundland and Labrador, then courts in Newfoundland and Labrador also have the inherent jurisdiction to declare rights in land in Quebec. Ontario courts have jurisdiction over disputes in Manitoba, and Alberta courts over disputes in British Columbia. Further, by raising this approach as an intervener at the final court of appeal for the first time, the AGC has deprived the provinces of the opportunity to meaningfully respond to it. ##### (d) Effects on Provincial Boundaries [ 260 ] The Innu's claims raise the location of the Labrador boundary. In their statement of claim, they refer to the border between Quebec and Labrador as the [translation] "unofficial Quebec‑Labrador boundary": A.R., vol. II, at pp. 188‑89. In subsequent proceedings, the Innu have explicitly indicated that they intend to argue that the decision in *Re Labrador Boundary*, 1927 338 (UK JCPC), [1927] 2 D.L.R. 401 (P.C.) — the decision that settled the boundary between Quebec and Labrador — was per incuriam: Sup. Ct. Judgment Authorizing the Intervention of the AGNL, at para. 35. [ 261 ] We would note, as well, that the Innu seek declarations of Aboriginal title to and the right to benefit from the natural resources of the Churchill Falls Power Station and many of its associated reservoirs and transmission lines: A.R., vol. II, at pp. 188‑89. [ 262 ] The boundary between Quebec and Labrador became a contentious issue in the late 19th century. In 1927, the Privy Council settled the border in Re Labrador Boundary. Twenty years later, when Newfoundland and Canada first negotiated a draft terms of union in anticipation of a Confederation referendum, s. 2 specifically recognized this boundary: "Report of the Ottawa Delegation: Proposed Arrangement for the Entry of Newfoundland into Confederation", in J. K. Hiller and M. F. Harrington, eds., The Newfoundland National Convention, 1946‑1948: Reports and Papers, vol. 2 (1995), 510. After the referendum narrowly passed, this provision was carried forward into the 1949 Newfoundland Act, Sch., s. 2: the Labrador boundary would be "as delimited in the report delivered by the Judicial Committee of His Majesty's Privy Council on the first day of March, 1927". This provision is part of our Constitution: Constitution Act, 1982, Sch., s. 21. Continued recognition of the boundary was an essential component of Newfoundland's Confederation bargain. [ 263 ] The Constitution Act, 1982 recognizes that the Newfoundland Act, including the 1927 border, forms part of the Constitution: s. 52(2)(b); Sch., s. 21. It also notes that "any alteration to boundaries between provinces" requires the authorization of "the legislative assembly of each province to which the amendment applies": s. 43(a). Modifying this amending formula would require unanimous consent of the provinces, the House of Commons and the Senate: s. 41(e). The AGC does not appear to have reckoned with the implications of the Quebec courts hearing a challenge to the Labrador boundary itself. [ 264 ] The AGC's position that claims such as this may be entertained may also have implications for future challenges to other provincial borders. [ 265 ] Most of Canada's current territory was transferred to it by two Imperial Orders‑in‑Council: Rupert's Land and North‑Western Territory Order in R.S.C. 1985, App. II, No. 9, transferring the Hudson's Bay Company lands, and Adjacent Territories Order in R.S.C. 1985, App. II, No. 14, transferring the Arctic Archipelago. Together, these orders transferred all of modern Alberta, Saskatchewan, Yukon, Northwest Territories and Nunavut, together with most of modern Manitoba, Ontario and Quebec. [ 266 ] When the provinces of Alberta and Saskatchewan were formed out of this transferred territory, their borders were set by the Alberta Act, S.C. 1905, c. 3 (reprinted in R.S.C. 1985, App. II, No. 20), and the Saskatchewan Act, S.C. 1905, c. 42 (reprinted in R.S.C. 1985, App. II, No. 21), which also form part of Canada's constitution: Constitution Act, 1982, s. 52(2)(b); Sch., ss. 12 and 13. Further, the boundaries of Quebec, Manitoba and Ontario were expanded by federal statutes under The British North America Act, 1871 (U.K.), 34 & 35 Vict., c. 28 (reprinted as Constitution Act, 1871 in R.S.C. 1985, App. II, No. 11), notably The Quebec Boundaries Extension Act, 1912, S.C. 1912, c. 45; The Manitoba Boundaries Extension Act, 1912, S.C. 1912, c. 32; and The Ontario Boundaries Extension Act, S.C. 1912, c. 40. (While these latter statutes do not have constitutional force and are not immune to constitutional challenge, they cannot otherwise be amended without the affected province's consent.) The stability of all these arrangements, whether constitutional or merely statutory, is now cast into uncertainty by necessary implication of our colleagues' reasons. #### (2) The AGC's Approach Leads to a Strong Possibility of Conflicting Judgments and Confusion [ 267 ] The AGC's approach, if accepted, would allow a superior court in one province to pronounce on Aboriginal title in relation to land located in another province incidentally to an in personam claim. Such a consequence is deeply pernicious to the orderly and expeditious resolution of s. 35 claims, because it creates a strong possibility of conflicting judgments and repeated litigation. [ 268 ] As we have explained, such a declaration would be invalid and would not bind the Crown of the relevant province. Yet, this would likely not be obvious to anyone lacking specific legal training. This would sow confusion for everyone involved and would undermine the efficacy of adjudication by the courts. From the standpoint of members of the Indigenous claimant community in particular, a declaration that appears to grant them title but in fact does not is especially harmful and would, justifiably, undermine their trust in the courts. [ 269 ] Even were such a declaration valid, the AGC's proposed approach creates the risk of patchwork recognition of Indigenous interests in land that can be asserted against some parties but not others. Recognizing Aboriginal title for the purpose only of in personam litigation means that only the named defendants would be bound by that declaration. The effect of any declaration over land in Labrador will be defined by the doctrine of res judicata. However, res judicata applies only between the parties to the original dispute or their privies: D. J. Lange, The Doctrine of Res Judicata in Canada (4th ed. 2015), at p. 1; *Angle v. Minister of National Revenue*, 1974 168 (SCC), [1975] 2 S.C.R. 248, at p. 254; *Penner v. Niagara (Regional Police Services Board)*, 2013 SCC 19, [2013] 2 S.C.R. 125, at paras. 36 and 92. As a result, if another alleged violation of the Innu's land were to arise in a subsequent case with different parties, the Innu would not be able to invoke res judicata and would instead have to litigate the matter anew and obtain yet another narrow in personam declaration. A declaration is meant to provide certainty about parties' rights; making findings of Aboriginal title on a piecemeal basis against one defendant or another provides no certainty as to who has rights over a given piece of land at any given time. [ 270 ] Even more significantly, a declaration from a Quebec court would not preclude a Newfoundland and Labrador court from finding that no Aboriginal title had been established over the very same land in Labrador. Such a result would certainly — and rightly — leave Indigenous claimants with the impression that the courts cannot give them the remedies they seek. [ 271 ] This approach is also not desirable from a practical perspective. Aboriginal title requires significant time and evidence to prove. As aptly noted by Lamer C.J. in Delgamuukw, establishing Aboriginal title is not an easy feat; it can be "long and expensive, not only in economic but in human terms as well": para. 186. Indeed, in that case, the trial had involved 318 days of testimony and resulted in a judgment of over 400 pages: para. 89. Although the Aboriginal title sought in this case is framed as a means to an end, the claimants will still have to establish such title in order to obtain the declaration being used to ground the civil liability claim. The result is that the Innu could spend years attempting to establish title for the purposes of this litigation only to end up with a declaration that purports to declare that they have Aboriginal title but in reality rings hollow. This is not access to justice. It is, rather, a significant burden to place on an Indigenous group, all the more so when it does not actually confer what it purports to. [ 272 ] Finally, this in personam approach would also hinder any prospect of ongoing negotiations with the governments of Quebec and Newfoundland and Labrador over the Innu's claimed title. As this Court has noted"[w]hile Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests": Haida Nation, at para. 14; see also *Mikisew Cree First Nation v. Canada (Governor General in Council)*, 2018 SCC 40, [2018] 2 S.C.R. 765, at paras. 22 and 26. Any such negotiations would await the lengthy process of establishing a "limited" declaration of Aboriginal title. This process would create strong expectations without addressing any of the real issues at play. [ 273 ] The Superior Court judge asked, [translation] "Can we say that it is in the interest of justice that essentially the same debate should take place in two jurisdictions that must both apply the same law, when the courts that will hear the cases are both federally appointed?" Sup. Ct. reasons, at para. 107. We, in turn, ask: Can it be said that it is in the interests of justice to permit a court to issue a declaration of Aboriginal title whose reach is unclear and whose validity is questionable, thus sowing confusion and uncertainty for all involved? The answer is unequivocally no. We do not share the Superior Court judge's unitary conception of the Canadian federation. #### (3) Incompatibility With the Principle of Crown Immunity [ 274 ] The constitutional principle of Crown immunity means that the Crown can be sued only with its permission. This principle is "deeply entrenched in our law" and can only be modified by "clear and unequivocal legislative language": *Canada (Attorney General) v. Thouin*, 2017 SCC 46, [2017] 2 S.C.R. 184, at para. 1. All provincial legislatures have introduced legislation allowing the Crown to be sued, but only in their own courts: see, for example, Proceedings Against the Crown Act, R.S.N.L. 1990, c. P‑26, ss. 4 and 7. [ 275 ] It is this simple. The Crown of one province cannot be sued in another province's court: *Athabasca Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern Development)*, 2001 ABCA 112, 199 D.L.R. (4th) 452, at paras. 23‑43; *Sauve v. Quebec (Attorney General)*, 2011 ONCA 369, at para. 3; Medvid v. Saskatchewan (Minister of Health), 2012 SKCA 49, 349 D.L.R. (4th) 72, at paras. 26‑31; *Constructions Beauce‑Atlas inc. v. Pomerleau inc.*, 2013 QCCS 4077, at paras. 16‑32. In addition to being an incident of the constitutional principle of federalism, this is a statutory rule (Proceedings Against the Crown Act, s. 7) that can only be set aside if constitutionally challenged. [ 276 ] Our colleagues say that the Crown immunity issue need not be dealt with (at paras. 71‑72) because the Crown is not named in the Innu's suit. But, as noted, any claim that asserts Aboriginal title necessarily involves the Crown. Unlike ordinary property disputes which pit private parties against each other within a framework of private law, an Aboriginal title claim cuts to the very root of the Crown's sovereignty and triggers obligations on the part of the Crown. [ 277 ] Not only is the Crown's presence necessary in principle, it also helps ensure that issues are fairly heard. Private parties cannot be assumed to have any knowledge about the facts of occupation at the time the Crown asserted sovereignty: Thomas, at para. 23. Moreover, they may not have the resources to respond to a complex Aboriginal title proceeding effectively. As Binnie J. said in *Lax Kw'alaams Indian Band v. Canada (Attorney General)*, 2011 SCC 56, [2011] 3 S.C.R. 535: . . . Aboriginal rights litigation is of great importance to non‑Aboriginal communities as well as to Aboriginal communities, and to the economic well‑being of both. The existence and scope of Aboriginal rights protected as they are under s. 35(1) of the Constitution Act, 1982, must be determined after a full hearing that is fair to all the stakeholders. [para. 12] [ 278 ] The AGC's approach completely disregards this important role. It also fails to account for the interests of other Indigenous groups with overlapping claims to a territory, a difficulty which, as we discuss below, arises in this case. This reinforces the necessity of joining the Crown as a party, given its role as a fiduciary to those other Indigenous stakeholders. [ 279 ] The Superior Court judge held that the doctrine of Crown immunity should be modified so as not to apply to multijurisdictional s. 35 claims: Sup. Ct. reasons, at paras. 115‑18. This argument is rooted in the concept that one province's courts can hear a case as fairly as another's. He did not explain on what basis s. 7 of the Proceedings Against the Crown Act was constitutionally inapplicable, particularly in the absence of a notice of constitutional question. [ 280 ] As Hunt J.A. of the Alberta Court of Appeal held in Athabasca"[i]t is contrary to our basic notion of federalism that the decision of one provincial Crown about the extent to and the manner in which it waives its immunity could be declared constitutionally inapplicable by courts established by the Crown in another province": para. 39. But even were that question properly before the Superior Court judge in this case, and with great respect to the AGC, the reason for confining litigation against the Crown to the province's own superior court is not because other provinces' judges are unable to hear cases fairly or competently; rather, it reflects the elementary principle of federalism and the importance of resolving fundamental questions about a province's sovereignty within the province's own legal system. #### (4) The AGC's Approach Ultimately Impedes Access to Justice [ 281 ] Access to justice requires access to a court that can lawfully and finally adjudicate claims. As Karakatsanis J. explained in Hryniak"[e]nsuring access to justice is the greatest challenge to the rule of law in Canada today . . . . Without an effective and accessible means of enforcing rights, the rule of law is threatened": para. 1 (emphasis added). We agree with our colleagues that there are significant access‑to‑justice concerns at play in this case. We emphasize, however, that access to justice requires effective means of enforcing rights. In our view, the AGC's approach fails to offer an effective solution. [ 282 ] As this Court has explained, access to justice has two interconnected dimensions: One focuses on process and is concerned with whether the claimants have access to a fair process to resolve their claims. The other focuses on substance — the results to be obtained — and is concerned with whether the claimants will receive a just and effective remedy for their claims if established. (*AIC Limited v. Fischer*, 2013 SCC 69, [2013] 3 S.C.R. 949, at para. 24) [ 283 ] Similarly, the Honourable Frank Iacobucci, writing extra‑judicially, has described these two dimensions as requiring, first, that claimants have an opportunity to pursue their claims in court, and second, that they are able to obtain "an appropriate restorative result": F. Iacobucci"What Is Access to Justice in the Context of Class Actions?", in J. Kalajdzic, ed., Accessing Justice: Appraising Class Actions Ten Years After Dutton, Hollick & Rumley (2011), 17, at p. 20. [ 284 ] This focus on the substantive part of access to justice — the remedy — is critical here. As Professor Macdonald has explained, access to justice encompasses a number of features: "(1) just results, (2) fair treatment, (3) reasonable cost, (4) reasonable speed, (5) understandable to users, (6) responsive to needs, (7) certain, and (8) effective, adequately resourced and well organized": R. A. Macdonald"Access to Justice in Canada Today: Scope, Scale and Ambitions", in J. Bass, W. A. Bogart and F. H. Zemans, eds., Access to Justice for a New Century ⸺ The Way Forward (2005), 19, at pp. 23‑24. The final four features in that list are particularly relevant: if the impact of the order actually received is uncertain, confusing, or narrower than expected, this is not the triumph that the AGC and our colleagues proclaim, but a failure of access to justice. [ 285 ] This uncertainty and lack of clarity is particularly concerning where Indigenous peoples are involved, given the "shadow of a long history of grievances and misunderstanding" that characterizes the reconciliation process: *Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)*, 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 1. As we have explained, if a court issues a declaration of Aboriginal title that proves not to have the effect that was hoped for or appeared to have been conferred, this undermines the legitimacy and efficacy of the courts and leaves Indigenous claimants with the impression that they cannot trust the courts to resolve their s. 35 claims. [ 286 ] We share our colleagues' concerns about '"piecemeal' advocacy" (at para. 45) and the potential for inconsistent holdings. But with respect, this will be the very result of their approach, given that any "limited declaration" of Aboriginal title — even if such a thing were possible — would have no impact beyond this litigation, in particular against the Crown of Newfoundland and Labrador, nor any binding direction to a court in Newfoundland and Labrador. The result is uncertainty all‑round and great potential for inconsistent judgments. This is contrary to the guidance from this Court that a "culture shift" is necessary towards "proportional procedures": Hryniak, at para. 2. The AGC's approach may appear simple and efficient, but the necessary consequences of it show that it will ultimately generate confusion and more litigation. Our approach avoids these concerns by addressing the crucial question of courts' jurisdiction up‑front. [ 287 ] We add that it would not necessarily be an "inconsistent" result for a court in Newfoundland and Labrador to come to a different conclusion on Aboriginal title than a Quebec court, so long as their respective conclusions are each confined to territory within their own provinces. For example, a Newfoundland and Labrador court could find that title has been established over the portion of Nitassinan in Labrador, while a Quebec court might find the Innu have not established title over the portion of land in Quebec. As noted by the AGNL, Aboriginal title is tied to particular territory and requires proof, inter alia, of continuous occupation of a site: Delgamuukw, at para. 143; Tsilhqot'in Nation, at para. 25. It is therefore possible that there would be differing (but not inconsistent) findings relating to different parts of Nitassinan depending on the evidence. This is not a denial of access to justice but rather a reality of proving Aboriginal title. [ 288 ] While different results in Quebec and Labrador are not necessarily inconsistent, individual in personam suits against private landowners would likely create results irreconcilable with any conception of historic land use. Each plot of land could have a different result, with some houses in a neighbourhood subject to one group's Aboriginal title, other houses to another group's, and others subject to no Aboriginal title at all. The resulting patchwork could leave Indigenous groups without a contiguous territory. Rather than being shaped by an understanding of the evidence of prior occupation, the boundaries of Indigenous territory would be defined by which plots of land happened to be occupied by the third‑party defendants in each suit, and by the technicalities of res judicata. It is difficult to see how this result is desirable either from an Indigenous or a non‑Indigenous perspective. [ 289 ] Moreover, and howsoever worthy our colleagues' goal of simplifying procedures, it does not follow that courts can or should dispense with federalism or provincial boundaries. It bears repeating that reconciliation must reconcile both prior Indigenous occupation and Crown sovereignty. [ 290 ] As a final note on access to justice, we observe that our colleagues have not addressed our proposed solution of joint hearings, except perhaps obliquely when they state that the Innu should not be made to "bifurcate" their claim: para. 52. We acknowledge that our solution requires commencing a claim in Newfoundland and Labrador. However, as we make clear in our reasons, using an Endean‑style approach means that the bulk of the hearings could be conducted together and in a way that minimizes inconvenience and cost as much as possible. With respect, it is not "bifurcating" a claim to require that it be brought in a way that respects our constitutional structure while making every effort to consolidate proceedings. Indeed, the term "bifurcate" better describes our colleagues' approach, which results in declarations of questionable meaning and reach, and very likely more litigation in the future. #### (5) This Case Exemplifies the Serious Problems That Can Arise Under the AGC's Approach [ 291 ] The serious problems created by the AGC's proposed approach are not theoretical or faraway. In fact, they plainly arise on the facts of this case. ##### (a) Third‑party Claims to the Land [ 292 ] The plaintiffs seek declarations of Aboriginal title and Aboriginal rights over a large portion of Labrador: A.R., vol. II, at pp. 188‑89. Much of that land is occupied by non‑Indigenous third parties, including residents and businesses of the communities of Labrador City, Wabush, and Churchill Falls; the Churchill Falls (Labrador) Corporation Limited; Nalcor Energy; and the operators of the Wabush Mines. [ 293 ] The interaction between Aboriginal title claims and third parties' property rights remains unsettled: see, for example, Council of the Haida Nation; *Chippewas of Sarnia Band v. Canada (Attorney General)* (2000), 2000 16991 (ON CA), 51 O.R. (3d) 641 (C.A.); K. McNeil"Reconciliation and Third‑Party Interests: Tsilhqot'in Nation v. British Columbia" (2010), 8 Indigenous L.J. 7; R. Hamilton"Private Property and Aboriginal Title: What is the Role of Equity in Mediating Conflicting Claims?" (2018), 51 U.B.C. L. Rev. 347; J. Borrows"Aboriginal Title and Private Property" (2015), 71 S.C.L.R. (2d) 91. It is clear that none of the non‑Indigenous third parties are parties in this litigation and, one must therefore assume, none will be bound by the relief sought here, forcing the Innu to face the very challenges discussed above. ##### (b) Other Aboriginal Title Claims [ 294 ] In addition to the existence of substantial non‑Indigenous claims, some of the land over which the plaintiffs are seeking declarations is subject to Aboriginal rights claims by at least two other groups. The Labrador Innu have negotiated and approved an Agreement in Principle that includes an Economic Major Development Impact and Benefit Agreement Area overlapping much of the territory over which the plaintiffs seek a declaration. [^4] Moreover, the NunatuKavut Community Council has signed a memorandum of understanding with Canada to discuss its claim to Aboriginal rights. [^5] This claim overlaps with all the territory in Labrador claimed by the Innu. [^6] [ 295 ] This Court has, in the past, said that it is not desirable to make findings of Aboriginal rights when other affected Indigenous groups are not involved. In Delgamuukw, Lamer C.J. noted that many other Indigenous groups with territorial claims overlapping with those of the appellants did not intervene in the appeal or at trial. This was "unfortunate, because [the] determinations of aboriginal title [for the appellants] will undoubtedly affect their claims as well. This is particularly so because aboriginal title encompasses an exclusive right to the use and occupation of land, i.e., to the exclusion of both non‑aboriginals and members of other aboriginal nations": Delgamuukw, at para. 185 (emphasis in original). This logic extends not only to the declarations the plaintiffs seek, but also to the damages claim, which could affect the economic value of other Indigenous groups' rights. [ 296 ] Overlapping land claims raise real procedural and substantive challenges that have yet to be resolved by this Court. In the meantime, courts should not stretch procedural rules to enable decisions that will appear to affect the rights of Indigenous groups that are neither present nor (presumably) bound by the result. ### VI. Conclusion [ 297 ] We would allow the appeal with costs, set aside the judgments of the Quebec Superior Court and the Quebec Court of Appeal, allow in part the AGNL's motion to strike allegations and order that the conclusions of the Innu's motion to institute proceedings that are declaratory or injunctive in nature and that relate to Nitassinan or to the IOC megaproject be amended so that they apply only to acts, activities or rights within Quebec's territory. --- Appeal dismissed with costs throughout, Moldaver, Côté, Brown and Rowe JJ. dissenting. Solicitors for the appellant: Gowling WLG (Canada), Ottawa; Department of Justice and Public Safety, St‑John's. Solicitors for the respondents: Jean‑François Bertrand Avocats inc., Québec; O'Reilly & Associés, Montréal; François Lévesque, Québec. Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Montréal. Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria. Solicitors for the interveners the Iron Ore Company of Canada and the Quebec North Shore and Labrador Railway Company Inc.: Norton Rose Fulbright Canada, Montréal. Solicitors for the interveners Kitigan Zibi Anishinabeg and the Algonquin Anishinabeg Nation Tribal Council: Woodward & Co., Victoria. Solicitors for the intervener Amnesty International Canada: Juristes Power, Ottawa. Solicitors for the intervener the Tsawout First Nation: Devlin Gailus Watson Law Corporation, Victoria. --- [^1]: The treaties, instruments and other documents in question, which are listed in para. 30 of the motion to institute proceedings (A.R., vol. II, at p. 7) (as completed by para. 30(c)(iii) of the particulars dated October 31, 2013 that were provided further to an application by the respondents (A.R., vol. II, at p. 48)), include the 1603 Treaty of Alliance, the 1645 Trois‑Rivières Peace Treaty and the 1760 Treaty between the Montagnais and the British Crown. [^2]: They allege that it also violates various provisions of the Charter of human rights and freedoms, CQLR, c. C‑12, the Canadian Charter of Rights and Freedoms and the United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res., UNGAOR, 61st Sess., Supp. No 49, UN Doc A/RES/61/295 (2007): para. 155. [^3]: Unlike the AGC, the Innu do not dispute that [translation] "[t]he rules of private international law set out in the C.C.Q. apply in this case": R.F., at para. 4; see also para. 47. [^4]: Compare Map 5‑E‑1: Western Labrador Economic Major Development Impact and Benefit Agreement Area (Crown-Indigenous Relations and Northern Affairs Canada, Labrador Innu Land Claims Agreement‑in‑Principle, last updated March 13, 2012 (online), at para. 91) with the map of Nitassinan of the Innu of Uashat Mak Mani‑Utenam and of Matimekush‑Lac John and the map of the Saguenay Beaver Reserve (Sept‑Îles division) (A.R., vol. II, at pp. 188‑89). [^5]: NunatuKavut Community Council, Memorandum of Understanding on Advancing Reconciliation, September 5, 2019 (online). [^6]: Compare NunatuKavut Community Council's traditional territory map (NunatuKavut Community Council, Traditional Territory Map, last updated November 15, 2019 (online)) with the map of Nitassinan of the Innu of Uashat Mak Mani‑Utenam and of Matimekush‑Lac John and the map of the Saguenay Beaver Reserve (Sept‑Îles division) (A.R., vol. II, at pp. 188‑89).