Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), C.A. Montreal, no 500-09-024768-145, January 6, 2015, j. Marcotte
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Uashaunnuat (Innus de Uashat et de Mani-Utenam) v. Compagnie minière IOC inc. (Iron Ore Company of Canada), 2014 QCCS 4403 (CanLII), C.S. Montréal, no 500-17-076401-135, September, 19, 2014, j. Blanchard

The Court of Appeal of Québec rejected an application for leave to appeal presented by the Iron Ore Company of Canada (”IOC”) and the Québec North Shore and Labrador Railway Corporation (“QNS&L”) (jointly the “Defendants”). This motion was presented following a recent landmark decision rendered by the Honourable Marc-André Blanchard of Superior Court of Québec which rejected the motion for dismissal presented by the Defendants.

The Québec Superior Court had recently rejected an application by the Defendants to dismiss a claim in damages against them brought by two Québec Innu communities for alleged violations of their Aboriginal title and Aboriginal rights. The Court did not accept the argument that a successful action against the Crown establishing Aboriginal title and rights was a necessary pre-requisite to the Plaintiffs’ action against third parties.

The Innu of Uashat and Mani-Utenam (“ITUM”), are an Aboriginal community whose population of approximately 3500 occupy two reserves near the Québec North Shore city of Sept-Îles. The Innu of Matimekush-Lac John (“MLJ”), are an Aboriginal community whose population of approximately 750 people live in the vicinity of Schefferville, on the Québec Labrador border 578 km. by rail north of Sept-Îles. The two communities assert Aboriginal title to in an area that they defined as Nitassinan encompassing more than 70,000 sq. km of the Québec-Labrador Peninsula.

The IOC has operated a number of iron ore mines near Schefferville and Labrador City since 1954. In connection with its mining operations it constructed a railway from Schefferville to Sept-Îles, operated by its subsidiary QNS&L, port facilities in Sept-Isles, and hydro-electric dams and generating stations in Labrador. IOC had ceased operations near Schefferville in 1982, but had continued operations in Labrador near Labrador City, since that date, and is planning new operations in that area.

On 18 March, 2013, the ITUM and the MLJ Innu initiated an action against the IOC and QNS&L seeking a declaration of unextinguished Aboriginal title to the areas of Nitassinan affected by the Defendants’ operations, declarations of Aboriginal and treaty rights, including rights to all natural resources, including iron ore, in Nitassinan, hunting, trapping, fishing, and gathering rights, water rights, rights to exploit forestry resources, rights to exercise jurisdiction and to control and manage the environment and resources of Nitassinan, as well as spiritual and cultural rights. In addition, the Plaintiffs sought a permanent injunction pursuant to the Code of Civil Procedure and the Environmental Quality Act to halt all mining by IOC and related railway operations by QNS&L, and $900,000,000 in damages for the defendants’ past mining and ore-transportation activities.

The Innu asserted that the operations of IOC were in violation of their Aboriginal and Treaty rights, the provisions of the Québec Charter and the Canadian Charter of Rights and Freedoms relating to equality rights and security of the person, and the United Nations Declaration on the Rights of Indigenous Peoples.

On 29 April 2014, the Court ordered the Plaintiffs to serve Notices of Constitutional Questions on the Attorneys General of Québec and of Newfoundland. The ITUM’s Notice was made without prejudice to its inherent and full sovereignty, and its position that of the Canadian Constitution did not apply to it or to central Nitassinan, and contested the validity, effect, and enforceability of all laws incompatible with its Indian title, Aboriginal rights and treaty rights of the applicants in respect of the part of Nitassinan affected by IOC’s operations and in particular a number of federal, Québec, and Newfoundland statutes. As of the date of this judgment, only the Attorney General of Québec had responded to the Notice of Constitutional Questions, by filing an appearance on the record.

On this application, IOC and QNS & L argued that Aboriginal rights claimed, but not yet established, cannot be the basis for an action for damages against private parties. The claim against them was thus bound to fail because the recognition of a right protected by section 35 of the Constitution Act, 1982 must involve the Crown as a defendant; because private parties have no obligations with respect to claimed but unproven Aboriginal rights; and because the Plaintiffs’ claims would impair rather than promote reconciliation. The Defendants also asserted that the Innu’s action was inconsistent with the principle of proportionality in the Québec Code of Civil Procedure.

The Court rejected IOC’s first argument summarily. It pointed out that in appearing in response to a Notice of Constitutional Question, the Attorney General of Québec had become a full party to the litigation. It was thus unnecessary to consider IOC’s principal argument further. The only remaining question was whether the Plaintiffs' action lacked any prospect of success.

The ITUM argued that Aboriginal rights, including Aboriginal title, did not depend on recognition by European authorities, because they were pre-existing and independent rights that are now part of federal common law, and protected by section 35 of the Constitution Act, 1982. They alleged that it was the Defendants, not the Plaintiffs, who were attempting to make new law—new law that would discriminate against Aboriginal people by denying them equal rights to sue violators of their rights.

MLJ argued that the right to compensation exists as a corollary of the harm suffered by Aboriginal people when they were dispossessed of their Aboriginal title or of other aboriginal rights with an economic dimension. They denied that the remedies which they sought were obstacles to the process of reconciliation.

The Court reminded the parties that a motion to dismiss had to be decided as a purely legal question, taking as true the facts alleged. The fact that a claim was complex and novel was not a ground for dismissing an action, but neither was the complexity of the legal issues a reason for the court to shirk its duty to determine whether the claim was fatally flawed. A single flaw could lead to dismissal, if truly fatal, but any doubt had to be resolved in favour of allowing the claim to proceed.

Blanchard J. also observed that the Plaintiffs were asking the Court to rule on their constitutional rights as against the Crown in Right of Canada, Québec and Newfoundland.

The Court did not accept the Plaintiffs’ reliance upon international and American law as justifying the validity of their claims. There was no need to cite United Nations declarations or American Supreme Court decisions in order to establish that Indian Bands had a right of access to the Courts. That principle was recognized by Parliament in the Indian Act and by the Supreme Court of Canada in the case of R. v. Guerin, [1984] 2 S.C.R. 335.

The principle that there is a remedy to correspond to every remedy was also an accepted part of Canadian law, and did not require recourse to American jurisprudence in order to establish it.

The Court also rejected the argument that by requiring Aboriginal title claimants to prove their claims in an action against the Crown, the law was discriminating against them. The law was not treating them differently or discriminatorily when it required them to conform to the established legal framework in order to enforce their legal claims. The ITUM’s claim that to require them to prove their Aboriginal title claim against the Crown was a flagrant denial of justice and a violation of the Canadian Charter of Rights and Freedoms was more rhetoric than reality.

The Defendants contended that only private law duties governed their liability to First Nations, relying on Haida v. British Columbia (Minister of Forests) [2004] S.C.R. 511 at paragraph 56, where the Supreme Court of Canada held that the duty to consult and accommodate was solely a Crown duty, but had also stated that private parties could be liable if they negligently failed to fulfill a duty of care to Aboriginal people, if they breached contracts with Aboriginal communities, or treated them in a dishonest fashion.

The Defendants did not assert that no Aboriginal or Treaty rights existed in the absence of government recognition, but relying upon Thomas v. Rio Tinto Alcan Inc. 2013 BCSC 2303 and Tolko Industries Ltd. v. Okanagan Indian Band 2010 BCSC 24 they argued that until Aboriginal or treaty rights are established, the duties of third parties arising out of the claimed rights could not be known, and unless those duties were established, then third parties could not be held liable for any breach of them.

The Court pointed out that in Tolko the British Columbia Supreme Court had found that although the Okanagan Indian Band’s claim for damages against Tolko was novel, it still raised “a fair question to be tried”, and thus seemed to support the Innu Plaintiffs’, rather than the IOC’s, position.

The Court also distinguished Thomas by pointing out that in the British Columbia case, the Crown had not been a party, whereas it was a party in the case at bar. Following a review of the British Columbia Court’s reasoning in Thomas, Mr. Justice Blanchard was persuaded that the absence of the Crown as a party had been the key determining factor in that Courts dismissal of the Plaintiffs’ claims.

Blanchard J. also suggested that in its invocation of legal duties in the abstract, IOC was ignoring the realities of how litigation actually proceeds in practice. He noted that the burden of a plaintiff is to prove fault, damage, and a causal link between the two. The plaintiff does not always proceed by proving the existence of a duty owed by the defendant as the starting point of his case.  Often he will begin by attempting to demonstrate that the defendant’s conduct in a particular context conducted himself in a manner which departed markedly from that which might have been expected of a reasonable person, relying upon that factual context to create the duty. At that stage of the analysis, the Court considers whether there is a possibility that the plaintiff can show wrongful conduct, not possible defences, which might be formidable. In this case, the Court could not say with certainty that the Innu would be unable to demonstrate wrongful conduct on the part of the Defendants.

Furthermore, the Innu’s claim was not based exclusively upon their allegations of breaches of Aboriginal rights.  They were also seeking a permanent injunction based upon article 976 of the Québec Civil Code which deals with strict liability for nuisance. At this stage of the litigation and on the present state of the record, the Court could not conclude that there was a clear and manifest lack of legal basis for their claims to an injunction and related relief pursuant to Article 976.

The Court thus concluded that the Defendants’ motion to strike the Plaintiffs’ pleadings should be dismissed.

The Court added that the process of reconciliation of Aboriginal rights with the rights of the Crown and of others did not preclude a judicial process that had a chance of success, however slight. The Court did not wish to comment on how great or small that chance was, other than to say that it existed. The fact that issues are complex or sensitive did not mean that the Court should deny the right of a party to seek a judicial determination, even if alternative, and perhaps preferable, means of resolution existed.

With respect to the principle of proportionality, the Court observed that it would have been possible to first hold a trial involving only the Innu and the Crown, in which the question of the existence of the Aboriginal rights of the Innu could be determined, to be followed by a second proceeding in which the actions of the IOC and the QNS & L would be analyzed to determine if they had breached those rights, but it was also possible to determine all of those things in one proceeding. The magnitude of both approaches would be large, but the Court believed that the second option was preferable.

The Defendants’ application was accordingly dismissed with costs.

The Defendants sought permission to appeal in response to the rejection of their motion for dismissal. The Honourable Geneviève Marcotte of Québec’s Court of Appel rejected the motion for permission to appeal with cost on January 6th. In her brief judgement, Judge Marcotte underscores that the Defendants were unable to provide evidence that they would suffer irreparable harm if the issues were not examined in a hearing.

Mark Phillips, Nadir André, Marie-Christine Gagnon, and Shana Chaffai-Parent of BLG’s Montréal office represented the Innu of Matimekush-Lac John on this application.

http://www.canlii.org/fr/qc/qccs/doc/2014/2014qccs4403/2014qccs4403.html

Other Author

Kenneth J. Tyler
Shana Chaffai-Parent

Expertise

Indigenous Law