Indigenous Peoples’ Transboundary Claims, Access to Justice, and the Canadian Constitutional Structure: The Uashaunnuat Case

• Published in: The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
• Main Author: Thériault, Sophie
• Format: Text
• Language: unknown
• Published: Osgoode Digital Commons 2022
• Subjects: Law; Newfoundland; Canada
• Online Access: https://digitalcommons.osgoode.yorku.ca/sclr/vol104/iss1/2; https://doi.org/10.60082/2563-8505.1424; https://digitalcommons.osgoode.yorku.ca/context/sclr/article/1424/viewcontent/uc.pdf

This article analyses the tightly split decision of the Supreme Court of Canada in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), in which the Court was tasked with determining whether the Superior Court of Quebec had jurisdiction to hear a claim of Aboriginal title and rights extending to lands situated in the province of Newfoundland and Labrador. It argues that behind the Supreme Court’s divergences regarding the interpretation and application of the Civil Code of Quebec’s rules pertaining to the jurisdiction of Quebec authorities, reside competing conceptions of the place of Indigenous peoples’ rights in relation to the Canadian constitutional order, including with respect to federalism. Part 2 maps out the different sets of constitutional principles that guided the majority and dissenting judges in the adjudication of the jurisdictional issues at stake. Part 3 then shows how the majority and minority judges’ chosen constitutional lens infused their respective approaches to the characterization of Aboriginal title and rights under the civil law categories of rights and legal actions. Finally, Part 4 concludes that the Uashaunnuat decision does not offer a comprehensive, predictable, and constitutionally sound solution for the adjudication of Indigenous peoples’ transboundary land claims. Looking forward, and building on potential solutions advanced by the dissenting judges and Indigenous interveners, the article proposes that there is room in the Canadian constitutional framework to provide for accessible and effıcient remedies for the adjudication of Indigenous transboundary claims while also respecting the Canadian federal structure and the principle of comity between provincial courts.