Date: 20090603
Docket: A-365-08
Citation: 2009 FCA 185
CORAM: DÉCARY
J.A.
NOËL
J.A.
BLAIS
J.A.
BETWEEN:
EDOUARD VOLLANT, AGNÈS MCKENZIE,
JEAN-YVES PINETTE,
MICHEL PINETTE, JACQUES MCKENZIE,
ALPHONSE AMBROISE,
JEAN-GUY PINETTE, ÉRIC ROCK, GEORGE MCKENZIE, PHILOMÈNE
MCKENZIE, GEORGES-ERNEST GRÉGOIRE, RONALD FONTAINE, RAYMOND JOURDAIN, DANIEL
ST-ONGE, ANDRÉ JÉRÔME, FRANÇOIS FONTAINE, LÉO GRÉGOIRE, ANTOINE JOURDAIN,
SYLVIO JOURDAIN, ISRAEL ST-ONGE, MARC ST-ONGE, ANGÉLINE JOURDAIN AMBROISE
Appellants
and
HER MAJESTY
THE QUEEN
Respondent
and
THE ATTORNEY GENERAL OF QUEBEC
Respondent
and
THE ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
The
appellants filed in Federal Court a claim for relief against the federal Crown. It
is undisputed that, under subsection 17(1) of the Federal Courts Act,
the Federal Court has concurrent jurisdiction in such matters.
[2]
The
claim for relief seeks a series of declarations which essentially focus on
alleged Aboriginal rights, treaty rights and Aboriginal title rights, which the
plaintiffs allegedly hold in Labrador. I reproduce below the twenty-five (25) declarations the plaintiffs
are seeking:
[translation]
1.
A
declaration that the plaintiffs have Aboriginal rights and treaty rights existing
everywhere in Labrador.
2.
A
declaration that the plaintiffs’ aboriginal and treaty rights extend to natural
resources and include the right to exercise their way of life, their customs,
their traditions and their traditional practices, which are an integral part of
the distinctive Innu culture, everywhere in Labrador, individually as members
of the Innu families and as members of their Innu community.
3.
A
declaration that the plaintiffs’ Aboriginal rights and treaty rights include (a)
the right to hunt, fish and trap (right to harvest) anywhere in Labrador and to
carry out activities incidental to that right; (b) the right to sufficient
wildlife habitat to be able to enjoy the right to harvest; (c) the right to move
freely anywhere in Labrador in order to carry out traditional activities; and (d)
the right to access Labrador’s natural resources and to use them for
subsistence purposes.
4.
A
declaration that the plaintiffs’ Aboriginal rights are independent of the plaintiffs’
Aboriginal title in Labrador.
5.
A
declaration that in addition to the Aboriginal and treaty rights described
above, the plaintiffs Édouard Vollant, Agnès McKenzie, Jean-Yves Pinette,
Michel Pinette, Jacques McKenzie, Alphonse Ambroise, Jean-Guy Pinette and Éric
Rock and the members of their respective families whom they represent (“Innu
families”) have an Aboriginal title and specific Aboriginal and treaty rights
on all land of said Innu families (hereinafter “Innu family lands”), namely the
land located in Labrador and elsewhere between approximately the 52nd and 56th
parallels of north latitude and the 64th and 68th meridians of west longitude,
being the tracts described at paragraph 29 and commonly designated as tracts
258, 211, 247, 239, 220, 220A, 221, 235, 238 and 271, including
13 178 square kilometres over which the plaintiffs have complete control
and jurisdiction.
6.
A
declaration that the Aboriginal title related to the Innu family lands and the
treaty rights of these plaintiffs include the right to use the natural
resources situated on and below the Innu family lands.
7.
A
declaration that the Aboriginal rights and treaty rights of all plaintiffs and
the Aboriginal title claimed by the plaintiffs named at paragraph 5 are
protected by the Canadian constitution.
8.
A
special declaration that the rights of the members of the Innu families take
precedence over any other right, authority or jurisdiction relating to the Innu
family lands.
9.
A
declaration that for the Innu family lands, the plaintiffs’ existing Aboriginal
and treaty rights, and in particular the Aboriginal title, include (a) the
right to the exclusive use and occupation of the Innu family lands; (b) the
right to hunt, fish and trap and to carry out incidental activities (right to
harvest) on these lands, without interference; (c) the right to use and
exclusively benefit from all the natural resources in, on, above and below the Innu
family lands, including water resources regardless of their natures; (d) the
right to control, manage and exploit these lands and their natural resources
according to Innu laws and customs; and (e) the right to build constructions of
any kind on those lands.
10.
A
declaration that the Innu family lands are subject to Innu laws, customs and
traditions as practiced and respected by the Innu families.
11.
A
declaration that the Royal Proclamation of 1763 applies to Labrador and
ensures that the Innu Nation should not be molested or disturbed in its
possession of Labrador as its hunting grounds.
12.
A
declaration that all of Labrador and, more particularly, the Innu family lands
are lands reserved for the Indians within the meaning of subsection 91(24) of
the Constitution Act, 1867, and section 3 of the Terms of Union of
Newfoundland with Canada, confirmed by the Newfoundland Act, and,
subject to the plaintiffs’ constitutional rights, are of federal jurisdiction.
13.
Alternatively,
a declaration that if the Province of Newfoundland and Labrador has rights in
respect of lands, mines, minerals and royalties belonging to Labrador, the plaintiffs’
rights shall be subject to a trust and are an interest other than that of the
Province in these lands, mines, minerals and royalties within the meaning of
section 37 of the Terms of Union of Newfoundland with Canada and the Newfoundland
Act.
14.
A
declaration that any legislation of the Province of Newfoundland and Labrador
dealing with the lands or natural resources within the Innu family lands is
unlawful, unconstitutional and of no force and effect with respect to the plaintiffs
and the Innu family lands.
15.
A
declaration that any development project, including mining, forestry,
hydroelectric, railway, tourism and outfitting projects, and all related work
affecting the Innu family lands are subject to the consent of the Innu families
of these Innu family lands.
16.
A
declaration that, without that consent, any development project affecting the Innu
family lands is unconstitutional, unlawful, void and ultra vires and a
breach of the Aboriginal rights and treaty rights of the Innu families in these
Innu family lands and exceeds the rights of the Crown and the authority of the
Parliament of Canada and the Legislature of Newfoundland and Labrador.
17.
A
declaration that, under the common law, treaties between the French Crown and
the British Crown, on the one hand, and the Innu Nation, on the other, and various
constitutional instruments, including the Royal Proclamation of 1763,
the Terms of Union of Newfoundland with Canada and the Newfoundland
Act, the defendant, Her Majesty, has, among Her constitutional and
fiduciary obligations, the duty to recognize, protect, respect, preserve and
promote the plaintiffs’ freedom and right to exercise without interference
their Aboriginal and treaty rights in Labrador and, particularly, on the Innu
family lands.
18.
A
declaration that Her Majesty has violated the constitutional and fiduciary
obligations described at paragraph 17.
19.
A
declaration that Her Majesty has, inter alia, breached Her
constitutional and fiduciary obligations to protect the plaintiffs from
breaches of their rights and damage to the Innu family lands resulting from
development projects in Labrador.
20.
A
declaration that, subject to the plaintiffs’ rights, all development projects
in Labrador and particularly those that affect the Innu family lands are under
federal jurisdiction.
21.
A
declaration that moreover, and in any event, Her Majesty has breached Her constitutional
and fiduciary obligations to consult the plaintiffs about development projects
in Labrador, particularly
those that have affected the Innu family lands.
22.
A
declaration that Her Majesty has breached Her obligations to apply federal
legislation concerning the environment, social impacts, navigable waters and
fisheries to development projects in the Innu family lands.
23.
A
declaration that, with regard to any development project on the Innu family
lands, the developers must obtain various permits, licences and authorizations
under federal legislation, including the Fisheries Act, the Navigable
Waters Protection Act, the Canadian Environmental Protection Act and
the Canadian Environmental Assessment Act.
24.
A
permanent injunction against the defendant, Her Majesty, ordering the
defendant, her officers, directors, servants, employees and agents and those in
active concert and participation with Her to take the necessary measures to
prevent or to stop all development projects on the Innu family lands, unless
the Innu families concerned have consented to it; to respect, protect and
preserve the plaintiffs’ Aboriginal and treaty rights, including their way of
life; and to fulfill Her Majesty’s constitutional and fiduciary obligations
relating to the plaintiffs in accordance with the Honour of the Crown and Her
Majesty’s constitutional jurisdiction under subsection 91(24) of the Constitution
Act, 1982.
25.
An
order against the defendant to pay damages or expenses in the total amount of
$525 million for breaches of their Aboriginal and treaty rights and damage to
the Innu family lands and for Her Majesty’s breaches of Her constitutional and
fiduciary obligations towards the plaintiffs.
[3]
The
Attorney General of Newfoundland and Labrador (the Attorney General), who
has been impleaded in the proceeding, has filed a motion to strike under
rule 221(a) of the Federal Courts Rules. The
Attorney General submits that the lands described in the statement of claim are
located in the province of Newfoundland and Labrador, that the notice of
constitutional questions challenges the validity of some twenty-seven (27)
provincial acts and regulations identified by name and any other Newfoundland
legislation concerning natural resources; that the said notice alleges that [translation] “all of Labrador and, more particularly, the Innu family
lands are lands reserved for the Indians within the meaning of subsection
91(24) of the Constitution Act, 1867” and that all Newfoundland
legislation and [translation] “any
development project affecting the Innu family lands” was void. In short, the Attorney General pleads as follows:
10. The Federal
Court has no jurisdiction to grant relief as claimed in the Amended Statement
of Claim in particular in respect of the plaintiffs claimed aboriginal and
treaty rights in relation to lands and resources with the province and the
validity of provincial legislation.
11. The relief which is
claimed in the Amended Statement of Claim in substance constitutes relief
against the Province of Newfoundland and Labrador and is not
within the jurisdiction of the Federal Court. The claim in its entirety should
be struck out.
[4]
Justice
Hugessen allowed the motion and struck out the amended statement of claim in
its entirety without leave to amend (T-568-07).
[5]
The
Federal Court has jurisdiction, of course, to hear statements of claims for
declarations made against the federal Crown. The Court has no jurisdiction—this
too is clear—to make declarations against a provincial Crown, meaning that a provincial
Crown cannot be summoned as a defendant in the Federal Court.
[6]
It
is clear in this case, as Justice Hugessen said, that the province of Newfoundland
and Labrador is an essential
party to the dispute.
If one excludes the declarations sought that focus on
or concern the province of Newfoundland and Labrador, virtually
nothing remains to justify the continuation of a proceeding in the Federal Court.
This is why, I believe, the judge struck out the entire statement of claim
without leave to amend.
Counsel for the appellants have made no effort, in
their memorandum or at the hearing, to convince us that they would be able,
without amending the cause of action, to file a new amended statement of claim
in which the province of Newfoundland and Labrador would, for all intents and
purposes, no longer be an essential party.
[7]
The
striking out of an entire statement of claim is nonetheless an extreme remedy
in a case in which the Court’s concurrent jurisdiction over some aspects of the
dispute has been established.
In the case at bar, the appropriate remedy would be
that contemplated by this Court in Fédération Franco-ténoise v. Canada
(C.A.), 2001 FCA 220, namely to stay the proceedings and to allow the dispute
to be pleaded before the Supreme Court of Newfoundland and Labrador. The following remarks, at paragraphs 81 and 82 of that
decision, apply to this case, mutatis mutandis:
[81] It
is clear, from a reading of paragraphs 50(1)(a) and 50(1)(b) [of the Federal
Courts Act], taken together, that the Court may order the stay of a proceeding
even though no other proceeding is pending before another court. As we know, in
the case at bar no action has so far been brought in the Supreme Court of the
Territories.
[82] I
would have no hesitation in ordering the stay of the action if I had to
determine the question. There is in the Territories a superior court that would
have jurisdiction in relation to all of the defendants and in relation to all
of the remedies that are sought. No problem of jurisdiction, standing,
procedural vehicle or choice of remedy would be posed in the Supreme Court of
the Territories. The action could be carried to completion without the
interlocutory proceedings that have already delayed the progress of the
proceedings in the Federal Court and that apparently are still not exhausted.
[8]
I
would therefore allow the appeal, set aside the judgment by the Federal Court,
and, rendering the judgment which ought to have been rendered, dismiss the
motion to strike and order a stay of proceedings in docket T-568-07. I
would grant costs to the Attorney General of Newfoundland and Labrador before
the Federal Court.
I would not award any costs on appeal.
“Robert
Décary
“I
agree.
Marc Noël J.A.”
“I
agree.
Pierre Blais J.A.”
Certified
true translation
Johanna
Kratz
Email this Content