Corps de l’article

Introduction

Before the presence of Europeans in Canada, Indigenous peoples had long been possessing North America in structured societies with legal, political, and social institutions of their own.[1] This occupation and use of land by Indigenous peoples obviously predates the establishment of borders in the modern era.[2] It is thus only natural that many of the Indigenous peoples in Canada have come to occupy and use traditional territories that, today, sometimes straddle provincial borders.[3] Traditional territory of the Blackfoot Confederacy, for instance, includes parts of Alberta and Saskatchewan (as well as Montana).[4] Traditional Denesuline (also known as Chipewyan) territory covers portions of Alberta, Saskatchewan, Manitoba, the Northwest Territories, and Nunavut.[5] Traditional Algonquin territory centres on the Ottawa River and tributaries, including parts of western Quebec and Ontario.[6] And so on.

The decision of the Supreme Court of Canada in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam) (“Uashaunnuat”) illustrates “the practical difficulties faced by the Indigenous peoples of Canada who seek to claim Aboriginal rights in a single traditional territory that straddles provincial borders.”[7] In Uashaunnuat, the Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John (collectively the “Innu”) claimed to hold Aboriginal title and other Aboriginal or treaty rights in all of “Nitassinan,” a traditional territory they have occupied for centuries.[8] This traditional territory spans over the border between the provinces of Quebec and Newfoundland and Labrador.[9] Even though they had not yet obtained a judicial declaration of their title or rights against the Crown,[10] the Innu filed suit in the Superior Court of Quebec against two mining companies, Iron Ore Company of Canada (“IOC”) and Quebec North Shore and Labrador Railway Company Inc. (“QNS&L”), alleging that the infringement by IOC and QNS&L of their Aboriginal title and other Aboriginal or treaty rights in Nitassinan constituted a fault within the meaning of article 1457 of the Civil Code of Québec (“CCQ”).[11] By way of remedy, the Innu sought (1) a declaration of Aboriginal title[12] and associated injunctive relief,[13] and (2) an award of damages.[14]

The two defendants, IOC and QNS&L, moved to have allegations struck from the Innu’s pleadings.[15] They argued “that Aboriginal title is a real right and that, pursuant to art. 3152 of the Civil Code of Québec, ... the Innu’s action was beyond the jurisdiction of Quebec courts insofar as it concerned property located in Newfoundland and Labrador.”[16] The Attorney General of Newfoundland and Labrador (“AGNL”) eventually filed a motion to intervene as well as its own motion to have allegations struck from the Innu’s pleadings, essentially supporting the arguments of the two defendants, IOC and QNS&L, but also raising the issue of Crown immunity.[17] The Innu argued in response that their action was a personal or a mixed action, and that the Quebec courts had jurisdiction by virtue of their authority to grant an injunction and damages against private parties domiciled in Quebec, pursuant to articles 3134 and 3148, para 1(1) of the CCQ.[18]

The Superior Court of Quebec dismissed the motions to strike.[19] The AGNL appealed from this judgment, but the Court of Appeal of Quebec affirmed the judgment of the Superior Court,[20] and a majority of the Supreme Court of Canada affirmed the judgment of the Court of Appeal. For the majority, the Innu’s action fell “into the ‘mixed’ category, insofar as the Innu [sought] the recognition of a sui generis right (a declaration of Aboriginal title [and associated injunctive relief]) and the performance of various [personal] obligations related to failures to respect that right [namely, an award of damages].”[21] In the case of a mixed action, a Quebec court must “have jurisdiction over both the personal and the sui generis aspects of the claim.”[22] The majority concluded that the Quebec courts did have jurisdiction over both aspects of the Innu’s action. As regards the personal aspects of their claim, article 3148, para 1(1) of the CCQ grants jurisdiction to the Quebec courts “where the defendant is domiciled in Quebec.”[23] Moreover, with respect to the sui generis aspects of the Innu’s claim, the CCQ does not contain “any special provision to establish the jurisdiction of Quebec authorities in such circumstances”; consequently, the majority applied the general subsidiary rule of article 3134 of the CCQ, according to which the Quebec courts are competent “when the defendant is domiciled in Quebec.”[24]

However, the majority did not dispute the Innu’s admission that a declaration of Aboriginal title by a Quebec court would not be binding on the Crown in right of Newfoundland and Labrador.[25] This is potentially problematic for the Indigenous peoples in Canada: “Aboriginal title is a burden on the Crown’s underlying title,” and an “incident of this underlying title is a fiduciary duty owed [by the Crown] to Indigenous peoples when dealing with the lands and a right to encroach on the title if the justification test under s. 35(1) [of the Constitution Act, 1982[26]] is satisfied.”[27] In the absence of a declaration of Aboriginal title that is binding on the Crown, Indigenous peoples cannot benefit from the full development of “the fiduciary-like relationship” that judicial recognition of Aboriginal title normally entails.[28] The Innu further recognized that, if they wished to obtain a declaration of Aboriginal title that would be binding on the Crown in right of Newfoundland and Labrador, they would need to file a second suit against the Crown in right of Newfoundland and Labrador, in the courts of that province, and in the context of a “comprehensive land claim.”[29]

The necessity of multiple proceedings in cases of cross-border Aboriginal title claims results from the fact that, under existing law, the Crown in right of one province can only be sued in the courts of that province.[30] As a result, Indigenous peoples who wish to obtain a declaration of Aboriginal title that is binding on all the provincial Crowns concerned over a single traditional territory that straddles provincial borders have no choice but to bring proceedings in the courts of all the provinces concerned. This seems particularly unfair, especially since “[p]rovincial boundaries were imposed on Indigenous peoples without regard for their pre-existing social organization.”[31] As noted by the intervener Tsawout First Nation, forcing Indigenous peoples who wish to litigate cross-border Aboriginal title claims in Canada to bring multiple claims in multiple jurisdictions is a threat to access to justice.[32] And access to justice is “a precondition to the rule of law”; as such, it is “fundamental to our constitutional arrangements.”[33]

In this article, I argue that Parliament has the constitutional authority to provide the Indigenous peoples in Canada who wish to litigate cross-border Aboriginal title claims with a forum in which all the parties necessary to resolve the issues fairly, including all the provincial Crowns concerned, could be summoned as defendants, and in which a declaration of Aboriginal title, binding on all such defendants, could be sought.[34] In my view, Parliament should[35] exercise its constitutional authority by amending the Federal Courts Act (“FCA”)[36] in the way I suggest. Pursuant to my recommendations, the jurisdiction of the Federal Court of Canada over Aboriginal title claims in general would be concurrent with the jurisdiction of the local courts of the provinces. However, in cases of cross-border Aboriginal title claims, the Federal Court would de facto become the sole forum in which two or more provincial Crowns could be summoned as defendants.[37]

This article addresses two issues. First, as a matter of constitutional law, can Parliament confer upon the Federal Court the jurisdiction to try a private suit of the type commenced by the Innu against IOC and QNS&L in Uashaunnuat? Secondly, as a matter of constitutional law, can Parliament compel submission of the provincial Crowns to the jurisdiction of the Federal Court for the purpose of allowing litigation of Aboriginal title claims? I address the first issue in Part II of my analysis, in which I examine the subject matter jurisdiction of the Federal Court. I address the second issue in Part III, in which I examine the in personam jurisdiction of the Federal Court. I start this article with a brief overview of the current jurisdiction of the Federal Court in Part I.

I. The Federal Court

Parliament created the Federal Court[38] in 1971.[39] This Court absorbed[40] the Exchequer Court of Canada established in 1875.[41] If, originally, the Exchequer Court enjoyed only “a very limited jurisdiction over cases involving the revenue and the Crown in right of Canada,”[42] its jurisdiction was progressively expanded[43] so as to include admiralty, intellectual property, tax, citizenship, and “several very technical fields of federal law.”[44] In addition to inheriting this jurisdiction, the Federal Court received some new powers, such as “the power to review the decisions of federal agencies and officials” and “the power to entertain claims for relief in respect of aeronautics, interprovincial undertakings and certain kinds of commercial paper.”[45]

The FCA states that the Federal Court is a “superior court,”[46] but this statement is interpreted as meaning “that its jurisdiction is ‘supervisory.’”[47] For the Supreme Court, “[t]he Federal Court is not a superior court in the true sense of possessing inherent jurisdiction.”[48] On this view, the Federal Court is not a “true” superior court due to the nature of the statutory and constitutional constraints on its jurisdiction.[49] First, the Federal Court “is a statutory court”: The only jurisdiction it has is the jurisdiction that statute has conferred upon it.[50] Secondly, as a matter of constitutional law, federal law must govern the cause of action.[51] Indeed, section 101 of the Constitution Act, 1867[52] limits Parliament’s power to grant jurisdiction to a federal court: The creation of federal courts is authorized for a specific purpose, namely “the better Administration of the Laws of Canada.”[53] The Supreme Court interpreted the phrase “Laws of Canada” to mean federal laws only, and not to include laws in force in Canada through provincial enactments.[54] Finally, in addition to jurisdiction over the cause of action, or subject matter jurisdiction, the Federal Court must as well possess jurisdiction over the parties, or jurisdiction in personam, for a suit to proceed before it.[55]

II. Subject Matter Jurisdiction

In ITO—International Terminal Operators Ltd v. Miida Electronics Inc (“ITO”),[56] the Supreme Court, drawing upon its prior judgments in Quebec North Shore Paper v. CP Ltd (“Quebec North Shore”)[57] and McNamara Construction (Western) Ltd v. The Queen (“McNamara Construction”),[58] identified three required elements to make a finding of jurisdiction in the Federal Court:

  1. There must be a statutory grant of jurisdiction by Parliament.

  2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

  3. The law on which the case is based must be “a law of Canada” as the phrase is used in section 101 of the Constitution Act, 1867.[59]

According to the Supreme Court, the first required element of the test concerns the statutory constraints on the Federal Court’s jurisdiction.[60] This first required element is satisfied if a federal statute confers upon the Federal Court jurisdiction “over the subject matter of the litigation.”[61] The second and third required elements of the test concern the constitutional constraints on the Federal Court’s jurisdiction.[62] Both of these required elements “are directed toward determining whether federal law plays a sufficiently important role in the case for it to fall within the jurisdiction of the Federal Court.”[63] Consequently, it is inevitable that the second and third required elements of the test present “a certain degree of overlap.”[64] The second required element is satisfied if “a general body of federal law cover[s] the area of the dispute,” while the third required element is satisfied if “the specific law which will be resolutive of the dispute [is] ‘a law of Canada’ within the meaning of s. 101.”[65] In other words, the third required element of the test is satisfied if the federal law in question is “constitutionally valid,” which means that it must be capable of being assigned to one or more heads of federal legislative power.[66] In the following parts of this article, I apply the three-part ITO test to the claims of the Innu in Uashaunnuat for the purpose of assessing the jurisdiction, or potential jurisdiction, of the Federal Court over such claims.

A. Statutory Grant of Jurisdiction

The first issue addressed in this article is whether Parliament can, as a matter of constitutional law, confer upon the Federal Court jurisdiction to try a private suit of the type commenced by the Innu against IOC and QNS&L in Uashaunnuat. The FCA currently does not grant such a jurisdiction to the Federal Court. First, the Federal Court has (concurrent)[67] original jurisdiction in all cases where relief is claimed against the federal Crown (sections 2(1) and 17(1) of the FCA); consequently, section 17(1) of the FCA does not authorize a claim against a private party,[68] unless such a claim is in respect of an obligation of the federal Crown (section 17(4) of the FCA).[69]

Secondly, the subject matter provisions of the FCA (sections 20, 22, and 23) do grant jurisdiction to the Federal Court to try private suits in some areas of federal legislative competence. But, such a jurisdiction is unrelated to the claims of the Innu against IOC and QNS&L in Uashaunnuat: intellectual property (section 20), “Canadian maritime law,” as defined in the FCA (section 2(1)),[70] “navigation and shipping” (section 22), and bills of exchange, promissory notes, aeronautics, and interprovincial works and undertakings (section 23).[71]

B. Existing Body of Federal Law

Even if Parliament were to grant, by statute, jurisdiction to the Federal Court to try a private suit of the type commenced by the Innu against IOC and QNS&L in Uashaunnuat, such a statutory grant of jurisdiction would be “constitutionally ineffective” in the absence of an existing body of federal law that governs the cause of action.[72] As explained by the Supreme Court in Windsor (City) v. Canadian Transit Co (“Windsor”), “a statutory grant of jurisdiction is necessary, but not alone sufficient, for the Federal Court to have jurisdiction in a given case.”[73] In addition, “[t]he second part of the ITO test requires that federal law be ‘essential to the disposition of the case’ such that it ‘nourishes the statutory grant of jurisdiction.’”[74]

In Uashaunnuat, the claims of the Innu against IOC and QNS&L were based upon the law of Aboriginal title, insofar as the Innu sought a declaration of Aboriginal title and associated injunctive relief (section II.B.1).[75] These claims were also based upon Quebec’s law of delict, insofar as the Innu sought an award of damages on the basis that the infringement by IOC and QNS&L of their Aboriginal title constituted a fault within the meaning of article 1457 of the CCQ (section II.B.2).[76] I examine in turn these two aspects of the Innu’s action against IOC and QNS&L.

1. The Law of Aboriginal Title

It is well established that “Aboriginal title is ... a sub-category of Aboriginal rights.”[77] Aboriginal rights are constitutionally “recognized and affirmed” by section 35(1) of the Constitution Act, 1982.[78] It is important to note at the outset that the doctrine of Aboriginal rights is not a creation of section 35(1): it is a common law doctrine that predates the Constitution Act, 1982.[79] However, at common law, Parliament could extinguish Aboriginal rights at will.[80] In 1982, the amendment of Canada’s Constitution changed this situation.[81] Nowadays, Parliament cannot extinguish Aboriginal rights, and it, or the provincial legislatures, can only regulate, or infringe, Aboriginal rights to the extent that the justificatory test of R v. Sparrow is satisfied.[82]

Aboriginal title “is the highest form of Aboriginal right.”[83] It is defined as a right of exclusive use of land; as a result, it confers upon the Indigenous owners a freedom to use the land in a variety of ways.[84] Aboriginal title is held by Indigenous communities who can prove exclusive use of specific land at the time at which the Crown asserted sovereignty over the land.[85] However, Aboriginal title “is not the same as, or equivalent to, a fee simple interest in land.”[86] Nonetheless, it is a right of ownership “similar to [a] fee simple.”[87]

The Royal Proclamation of 1763 (“Proclamation”)[88] “recognized the right of Indians to unceded lands in their possession, protected the Indians’ interest in those lands, and provided that [their] rights in the land [could] be ceded only to the Crown.”[89] Importantly, the Proclamation is not the source of Aboriginal title: it merely confirms its existence.[90] As explained by Thomas Isaac, “Aboriginal title exists independently of the Proclamation and arises ... from the historical use and occupation of Canada by Aboriginal peoples.”[91] The Proclamation is simply evidence of the respect that the British tended to show in their policies toward the rights of Indigenous peoples to occupy and use their traditional territories.[92]

The 1888 decision in St Catherine’s Milling and Lumber Company v. The Queen (Ontario) (“St Catherine’s Milling”)[93] is “[t]he starting point of the Canadian jurisprudence on [A]boriginal title.”[94] In this decision, the Privy Council recognized that Aboriginal title exists at Canadian law. It described Aboriginal title as a burden on the Crown’s underlying title to the land[95] and as a “personal and usufructuary right.”[96] However, “[t]he Privy Council did not address common law recognition of Aboriginal rights and instead focused its decision on Aboriginal title flowing exclusively from the Proclamation.”[97]

In its 1973 decision in Calder v. British Columbia (Attorney General) (“Calder”),[98] the Supreme Court rejected this idea that the source of Aboriginal title is the Proclamation.[99] Justices Judson and Hall held that Aboriginal title exists at common law independently of the Proclamation.[100] The Calder decision thus “recognized [A]boriginal title as a legal right derived from the Indians’ historic occupation and possession of their tribal lands,”[101] and as “not solely dependent upon legislative enactments, executive orders, or treaties for their existence.”[102] The Supreme Court reiterated its position that Aboriginal title exists at common law independently of the Proclamation[103] in its 1984 decision in Guerin v. The Queen (“Guerin”),[104] and in its 1997 decision in Delgamuukw v. British Columbia.[105]

The common law doctrine of Aboriginal rights results from the rules of British imperial constitutional law and “the doctrine of continuity, which governed the absorption of [A]boriginal laws and customs into the new legal regime upon the assertion of Crown sovereignty over the region.”[106] As explained by the Supreme Court in Mitchell v. MNR, “English law ... accepted that the [A]boriginal peoples possessed pre-existing laws and interests, and recognized their continuance in the absence of extinguishment, by cession, conquest, or legislation.”[107] In this respect, the Supreme Court endorses the view that the doctrine of discovery and terra nullius has never been a part of Canadian law.[108]

However, the Supreme Court endorses at the same time the view that, by asserting “sovereignty over the land,” the Crown acquired “its underlying title.”[109] The rights of Indigenous peoples to occupy and use their traditional territories are said to have “continued as a ‘burden on the radical or final title of the Sovereign.’”[110] The reason for this is “[t]he principle that a change in sovereignty over a particular territory does not in general affect the presumptive title of the inhabitants.”[111] The doctrine of continuity confirms the Supreme Court’s position that Aboriginal title exists at common law independently of the Proclamation.[112] There is accordingly a presumption that Aboriginal rights “survive[d] the assertion of sovereignty, and were absorbed into the common law ... unless (1) they were [unconscionable or] incompatible with the Crown’s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them.”[113]

In sum, the common law doctrine of Aboriginal rights “arose from the very process whereby the Crown assumed sovereignty over Canada.”[114] It is “a necessary incident of British sovereignty,”[115] a doctrine of colonial law.[116] Being a “part of a body of fundamental constitutional law,”[117] the common law doctrine of Aboriginal rights “took force uniformly throughout the various colonial territories that now make up Canada.”[118] As explained by John Evans and Brian Slattery, “[u]pon Confederation, this body of common law passed into the federal sphere of authority by virtue of section 91(24) of the Constitution Act, 1867,”[119] which vests in the federal order of government the power to make laws in relation to “Indians, and Lands reserved for the Indians.”[120] As a result, “the common law of [A]boriginal title ... became federal common law,” namely “a body of basic public law operating uniformly across the country within the federal sphere of competence.”[121] In Roberts v. Canada (“Roberts”),[122] the Supreme Court affirmed that the common law doctrine of Aboriginal title “is part of the federal common law.”[123] The aspect of the Innu’s action that sought a declaration of Aboriginal title and associated injunctive relief was thus governed by an existing body of federal law. The second part of the ITO test is therefore satisfied.

2. Quebec’s Law of Delict

As mentioned earlier, the Supreme Court interpreted the phrase “Laws of Canada” in section 101 of the Constitution Act, 1867 to mean federal laws only.[124] Thus, as a principle, the Federal Court cannot determine “questions of provincial law.”[125] The Supreme Court established this “restrictive rule”[126] in its 1976 decision in Quebec North Shore.[127] Furthermore, this case also established that, even in areas of unexercised federal legislative competence, the common law or the civil law in Quebec is not, for this purpose, federal law.[128] Consequently, as a matter of constitutional law, “applicable and existing federal law” must govern the cause of action for the Federal Court to have jurisdiction.[129] The Supreme Court reiterated this requirement in its 1977 decision in McNamara Construction.[130]

However, the jurisprudence of the Supreme Court does not forthrightly deny the possibility that “a federal common law” might exist.[131] In fact, “some parts of the common law” were actually held to “qualify as federal law.”[132] Furthermore, the principle that the Federal Court cannot determine questions of provincial law is also not absolute.[133] In at least two cases,[134] the Supreme Court recognized the jurisdiction of the Federal Court over “a single cause of action” that was “governed partly by federal law and partly by common law.”[135] As stated by the Supreme Court in ITO, “[w]here a case is in ‘pith and substance’ within the court’s statutory jurisdiction, the Federal Court may apply provincial law incidentally necessary to resolve the issues presented by the parties.”[136] In this passage, the Supreme Court seemed to adopt the United States “doctrine of pendent jurisdiction,” under which a federal court—if properly seized of a particular case—can “determine all of the issues that are derived from the ‘common nucleus of operative fact’, including ‘state’ issues.”[137] However, in Roberts,[138] the Supreme Court later rejected the doctrine of pendent jurisdiction.[139] It results from these somewhat conflicting decisions “that there is no clear rule to deal with a cause of action governed by both federal and provincial law.”[140]

The Innu’s claim for damages against IOC and QNS&L was such a cause of action. Quebec’s law of delict, upon which the Innu’s claim for damages was based is, of course, provincial law. But the Innu’s claim for damages could succeed “only if” they obtained judicial recognition of their Aboriginal title.[141] Indeed, the Innu alleged that the infringement by IOC and QNS&L of their Aboriginal title constituted a fault within the meaning of article 1457 of the CCQ.[142] The law of Aboriginal title, which is federal common law,[143] was thus a necessary component of the Innu’s claim for damages against IOC and QNS&L. Whether this is sufficient to satisfy the second part of the ITO test is unclear: In Roberts, the Supreme Court “disapproved of a dictum that it is sufficient ‘if the rights and obligations of the parties are to be determined to some material extent by federal law.’”[144]

In Windsor, the Supreme Court similarly disapproved of a number of the Federal Court of Appeal’s articulations of the second part of the ITO test. For the Supreme Court, the second part of the ITO test is not satisfied by the mere fact that there is “sufficient federal law,”[145] or by the mere fact that federal law “has an important part to play”[146] in determining the outcome:

These articulations of the test should not be understood to lower in any way the high threshold articulated in ITO itself. The fact that the Federal Court may have to consider federal law as a necessary component is not alone sufficient; federal law must be “essential to the disposition of the case”. It must “nourish” the grant of jurisdiction.[147]

To ensure the constitutional effectiveness of a statutory grant of jurisdiction to the Federal Court to try a private suit of the type commenced by the Innu against IOC and QNS&L in Uashaunnuat, Parliament could simply incorporate into federal law any provincial law applicable to a claim for damages for the infringement of Aboriginal title, for example by directing the application of the law of the province where the cause of action arose.[148] According to Colin McNairn, it is at least arguable that such “a federal choice of law rule” is sufficient to satisfy section 101 of the Constitution Act, 1867.[149] I agree. Liability in torts of the federal Crown, for instance, is governed by a similar federal choice of law rule, which directs the application of the law of the province where the cause of action arose, and there is no doubt that liability in torts of the federal Crown is federal law.[150] In my view, it would be within Parliament’s legislative competence to incorporate into federal law any provincial law applicable[151] to a claim for damages for the infringement of Aboriginal title. This is the point I shall now explore in more detail.

C. Constitutional Validity of Federal Law

Section 91(24) of the Constitution Act, 1867 confers exclusive legislative authority upon Parliament in relation to “Indians, and Lands reserved for the Indians.”[152] This section “assigns jurisdiction to Parliament over two distinct subject matters, Indians and Lands reserved for the Indians, not Indians on Lands reserved for the Indians.”[153] Parliament’s exclusive legislative authority in relation to “Indians” is thus “the same whether Indians are on a reserve or off a reserve.”[154] It is reasonable to conclude that “[b]y parity of reasoning, federal legislative authority over lands reserved for the Indians is the same regardless of whether Indians are the ones located there.”[155] Accordingly, Parliament’s legislative authority over “Lands reserved for the Indians” includes “the power to regulate non-Indian use of such lands,”[156] as well as, in my view, the power to regulate civil liability for the infringement of Aboriginal title. There is indeed no doubt that the words “Lands reserved for the Indians” include, “in addition to lands that qualify as ‘reserves’ under the Indian Act[157] and ‘First Nation land’ as defined under the First Nations Land Management Act,[158] lands reserved or set aside pursuant to the Royal Proclamation of 1763 and lands held by Indians pursuant to [A]boriginal title.”[159]

Federal legislative power over “Lands reserved for the Indians” does not, however, entail that the property of these lands is vested in the federal order of government.[160] In St Catherine’s Milling,[161] the Privy Council specifically held that the Constitution Act, 1867 does not transfer to the federal order of government the property of the “Lands reserved for the Indians,” and that the underlying title to the lands that are subject to the rights of Indigenous peoples to occupy and use their traditional territories remains in the provincial Crowns.[162] As explained by Kerry Wilkins, it is not inconsistent to assign legislative power over “Lands reserved for the Indians” to the federal order of government, and the underlying title to these lands to the provincial Crowns.[163] This underlying title belongs to the provincial Crowns by virtue of the fact that, first, the Crown acquired it when “it asserted sovereignty over the land.”[164] Secondly, at the time of Confederation, section 109 of the Constitution Act, 1867 “vest[ed] this underlying title in the provincial Crowns[[165]] and qualifie[d] provincial ownership by making it subject to ‘any Interest other than that of the Province.’”[166] There is no doubt that “Aboriginal title is one such interest.”[167] The underlying title of the provincial Crowns is “what is left when Aboriginal title is subtracted from it.”[168] It consists of “a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982.”[169]

As a result, the province takes absolute title to the land on surrender of Aboriginal title, even if “jurisdiction to accept surrenders lies with the federal government.”[170] In other words, “ownership of lands held pursuant to [A]boriginal title” is separate “from jurisdiction over those lands.”[171] And where, “by virtue of a cession or absolute surrender of the Indigenous interest [in land],” such land is freed from the overlying Aboriginal title, it “come[s] under full provincial administration and control” pursuant to sections 109, 92(5), 92(13), and 92A of the Constitution Act, 1867.[172] The federal order of government is thereby deprived of all constitutional authority “to appropriate such lan[d] unilaterally for Indian purposes” or to otherwise “dispose of the land.”[173] As explained by the Privy Council in its 1903 decision in Ontario Mining Co v. Seybold, section 91(24) of the Constitution Act, 1867 does not vest in the federal order of government “any power by legislation to appropriate ... the free public lands of the province ... in infringement of the proprietary rights of the province.”[174]

For the purposes of this article, this raises an additional constitutional question: If Parliament granted jurisdiction to the Federal Court to issue a declaration of Aboriginal title and associated injunctive relief with respect to lands that would otherwise qualify as “the free public lands of [a] province,” could one argue that such a grant of jurisdiction is tantamount to a unilateral appropriation by Parliament of “the free public lands of the province” in infringement of the proprietary rights of the province?[175] Is it not true, after all, that “the onus of proving Aboriginal title is on the [Indigenous] claimants” and that, “[a]s a result, lands that are subject to unproven Aboriginal title claims are presumed to be [provincial] Crown lands” (i.e., “the free public lands of the province”[176])?[177] Is it not also true that “Parliament cannot do indirectly through the Federal Court what it cannot do directly under the constitutional division of powers”?[178] Nonetheless, Aboriginal title “is a pre-existing legal right not created by Royal Proclamation ... or by any other executive or legislative provision”;[179] it “is an independent legal interest.”[180] Consequently, a declaration of Aboriginal title by the Federal Court, or any other court, is clearly distinct from an appropriation, by executive or legislative authority, of “the free public lands of the province.”[181] The provinces took their interest in land subject to “any Interest other than that of the Province in the same” (section 109 of the Constitution Act, 1867);[182] Aboriginal title is one such interest. By declaring the existence of Aboriginal title, the Federal Court, or Parliament through a grant of jurisdiction to the Federal Court, is thus not depriving a province of powers it would otherwise enjoy.[183]

D. Conclusion on Subject Matter Jurisdiction

The current FCA does not grant to the Federal Court the jurisdiction to try a private suit of the type commenced by the Innu against IOC and QNS&L in Uashaunnuat. However, as a matter of constitutional law, Parliament could confer such a jurisdiction upon the Federal Court. First, the aspect of the Innu’s action that sought a declaration of Aboriginal title and associated injunctive relief was governed by an existing body of federal law, namely the common law doctrine of Aboriginal title, which is part of the federal common law. Secondly, the Innu’s claim for damages for the infringement of their Aboriginal title would undoubtedly have been governed by federal law if Parliament had simply incorporated into federal law, by a federal choice of law rule, any provincial law applicable to such a claim. Thirdly, the law of Aboriginal title and the regulation of civil liability for the infringement of Aboriginal title come within the federal sphere of authority by virtue of section 91(24) of the Constitution Act, 1867. In this section, the words “Lands reserved for the Indians” include lands held pursuant to Aboriginal title, and Parliament’s authority over “Lands reserved for the Indians” includes the power to regulate non-Indian use of such lands.[184]

Having established that Parliament has the constitutional authority to confer upon the Federal Court subject matter jurisdiction over Aboriginal title claims, I must now demonstrate that Parliament has the constitutional authority to confer upon the Federal Court in personam jurisdiction over all the parties necessary to resolve such claims fairly.

III. In Personam Jurisdiction

Parliament’s constitutional authority to confer upon the Federal Court in personam jurisdiction over private parties is not seriously in doubt. In fact, the FCA does grant jurisdiction to the Federal Court to try a private suit in some matters.[185] What I must explore in more detail is thus the constitutional authority of Parliament to confer upon the Federal Court in personam jurisdiction over the provinces.

In a series of cases, courts have held that the provincial Crown is a necessary party to any claim of Aboriginal title,[186] since “Aboriginal title is a burden on the [provincial] Crown’s underlying title.”[187] In Uashaunnuat, the Innu were seeking no direct relief against the Crown in right of Newfoundland and Labrador.[188] However, they were seeking a declaration of Aboriginal title. The majority of the Supreme Court nonetheless held, perhaps surprisingly, that the Crown in right of Newfoundland and Labrador was not a necessary party to the proceedings and, as a result, that there was no need for the Court to resolve “at this stage of the proceedings” the issue of the jurisdiction of the Quebec courts to grant a remedy against the Crown in right of Newfoundland and Labrador.[189] In particular, the majority did not dispute the Innu’s admission that a declaration of Aboriginal title by a Quebec court would not be binding on the Crown in right of Newfoundland and Labrador.[190] The Innu further recognized that, if they wished to obtain a declaration of Aboriginal title that would be binding on the Crown in right of Newfoundland and Labrador, they would need to file a second suit against the Crown in right of Newfoundland and Labrador, in the courts of that province, and in the context of a “comprehensive land claim.”[191] In this respect, the dissent stressed “that the strategy chosen by the Innu”[192] was seemingly at odds with the principle of the proportionality of the proceedings:

The fact is that they [the Innu] 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 in right 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.[193]

In my view, the approach supposedly chosen by the Innu was actually compelled by the simple fact that, under existing law, there is, in Canada, no forum whatsoever in which two or more provincial Crowns can be sued by a private party in the course of a single proceeding. The principle of “interprovincial jurisdictional immunity” prevents the Crown in right of one province from being sued in the courts of another province,[194] and the Federal Court lacks jurisdiction under the current FCA to grant a remedy against a province.[195] This situation may present difficulties for the Indigenous peoples in Canada who wish to litigate cross-border Aboriginal title claims. In such claims, two or more provincial Crowns may have to be summoned as defendants.

This is why the second issue addressed in this article is whether Parliament can, as a matter of constitutional law, compel submission of the provincial Crowns to the jurisdiction of the Federal Court for the purpose of allowing litigation of Aboriginal title claims. The focus of this article is on Parliament’s power under section 101 of the Constitution Act, 1867 to establish “any additional Courts for the better Administration of the Laws of Canada” because there is a strong basis for suggesting that, as a matter of constitutional law, “[n]o Province can compel another to submit to a particular forum.”[196] By contrast, the issue of whether Parliament can, as a matter of constitutional law, “make a Province answerable in a court as a defendant without its consent” is not “altogether clear.”[197] To elucidate this issue, I examine the common law of Crown immunity in section III.A and the federal issues that arise as a matter of statutory interpretation and as a matter of constitutional law in, respectively, section III.B and section III.C.

A. Crown Immunity

In our system of government, the Crown enjoys certain “exemptions from the general law of the land.”[198] While “[s]ome of these [immunities and privileges] are necessary to the effective exercise of state powers,” “[o]thers are the product of traditional notions of sovereignty.”[199] Crown immunity originated in the common law and is “deeply entrenched in our law.”[200] It “came to the colonies as received or imposed English law,” and it was “absorbed into the Canadian federation” through sections 64, 65, and 129 of the Constitution Act, 1867.[201]

In the colonies, the Crown was not subject to liability in torts and, even though it was subject to liability in contracts and in proprietary claims, it could be sued only with its permission (a procedure known as “the petition of right,” under which the Crown in right of each colony “enjoyed the privilege of granting or denying the ‘royal fiat’ when faced with a lawsuit”).[202] In addition, “[n]o statute could affect the Crown unless it expressly stated or necessarily implied so.”[203] Finally, “no ‘foreign sovereign’ or ‘state’ could be impleaded in a colonial court against its will”; however, “it was not clear whether the Crown in the right of Great Britain or of another colony fell into the category of a ‘foreign sovereign.’”[204]

To understand Crown immunity, Mundell distinguishes, on the one hand, “the substantive law on liabilities of Her Majesty” from, on the other hand, “the law relating to remedies.”[205] In my view, this is a useful distinction, and I shall thus expose, very briefly, “the substantive law on liabilities” of the Crown in section III.A.1, and “the law relating to remedies” against the Crown in section III.A.2.

1. The Law Relating to the Substantive Liabilities of the Crown

The Crown is, at common law, subject to liability in contracts and in proprietary claims, but is immune from tort liability.[206] The Crown is also, at common law, immune from statutes and, consequently, from the imposition by statute of substantive liabilities. “The immunity of the Crown from statutes” means “that general language in a statute, such as ‘person’ or ‘owner’ or ‘landlord’, [is] interpreted as not including the Crown.”[207] Of course, the common law, including the Crown’s common law immunity from statutes, can itself be changed by statute.[208] However, there is a presumption that the common law remains unchanged “beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute.”[209] Because of this presumption, the Crown’s common law immunity from statutes, which is a prerogative of the Crown,[210] is often expressed as a common law rule of statutory interpretation according to which there is “a ‘presumption’ that the Crown is not bound by statute—a presumption that is rebuttable by express words or necessary implication.”[211] If a “statute expressly states that it applies to the Crown (express words), or [if] the context of the statute makes it clear beyond doubt that the Crown must be bound (necessary implication),” then the legislature is understood as having lifted the Crown’s common law immunity from statutes.[212] In this manner, liability in torts was eventually imposed on the Crown by statute in the United Kingdom and in all Canadian jurisdictions.[213] The rule that the Crown is not bound by statute except by express words or necessary implication is confirmed by the Interpretation Act of Canada[214] and of all Canadian provinces (except British Columbia and Prince Edward Island).[215]

2. The Law Relating to the Remedies against the Crown

The most important of the Crown’s immunities and privileges, for the purposes of this article, is the common law rule according to which “the Crown cannot be sued in any court.”[216] Historically, the Crown’s common law immunity from suits was overcome in contracts and in proprietary claims by the procedure of the petition of right. The reason for this is that the petition of right proceeded “only with the consent of the Crown (the royal fiat).”[217] In the United Kingdom, the petition of right as the procedure to sue the Crown and the requirement of the fiat were abolished by the Crown Proceedings Act, 1947,[218] which, essentially, “permitted the Crown to be sued in the same fashion as a private person.”[219] That same Act also abolished the Crown’s common law immunity from tort liability.[220]

In Canada, the petition of right as the procedure to sue the Crown and the requirement of the fiat were gradually replaced by procedures that are, generally, the same as those employed against private defendants.[221] Drawing on the United Kingdom’s Crown Proceedings Act, 1947, Parliament abolished the requirement of the fiat in 1951[222] and, in 1953, imposed wider liability in torts on the federal Crown.[223] However, Parliament retained the petition of right as the procedure to sue the federal Crown until 1971 when, finally, it was abolished, too.[224] The current state of the law in Canada is governed by the various Crown proceedings statutes enacted by Parliament and the provincial legislatures.[225]

Despite these statutes, the Crown’s common law immunity from suits “retains its relevance,” in a federation such as Canada, “as a bar to proceedings against the Crown in a court other than the one stipulated in the applicable Crown proceedings statute.”[226] I add that the Crown’s common law immunity from suits also retains its relevance as a bar to proceedings in a court against a Crown other than the one stipulated in the applicable Crown proceedings statute. The reason for this is that “the federal government (the Crown in right of Canada) is a separate legal entity from each of the provinces (the Crown in right of the province), and each of the provinces is a separate legal entity from the other provinces.”[227] As a result, the federal Crown and the provincial Crowns all enjoy the powers, privileges, and immunities of the Crown.[228] This situation inevitably raises the issue of which courts have jurisdiction over suits against the various Crowns. Can the Crown in right of one province be sued in the courts of another province? Can the Crown in right of a province be sued in the Federal Court? These are the questions that I shall now examine as a matter of statutory interpretation in section III.B, and as a matter of constitutional law in section III.C.

B. Federal Issues: Statutory Interpretation

1. Can the Crown in Right of One Province Be Sued in the Courts of Another Province?

The Crown’s common law immunity from suits “survives” if the Crown in right of one province is sued in the courts of another province.[229] The reason for this is that the legislation of all provinces, except Ontario, Quebec, and Alberta, authorizes proceedings against the Crown in the local courts of the enacting province only.[230] The legislations, by authorizing proceedings against the Crown in these courts, implicitly reject proceedings in the courts of other provinces.[231] This results “from the expressio unius principle of statutory interpretation” and from the Crown’s common law immunity from suits.[232]

It is true that the Ontario Crown Liability and Proceedings Act and the Quebec Code of Civil Procedure contain only general provisions for procedure, which seem “to render the Crown in right of Ontario and the Government of Quebec, respectively, subject to the general law governing court jurisdiction.”[233] Similarly, the Alberta Proceedings Against the Crown Act generally provides for proceedings against the Crown in right of Alberta in “any court.”[234] Because of the Crown’s common law immunity from suits, which can be changed only by express words or necessary implication, the Ontario Crown Liability and Proceedings Act, the Quebec Code of Civil Procedure and the Alberta Proceedings Against the Crown Act are nonetheless interpreted as granting jurisdiction only to the local courts of the enacting province. As explained by Janet Walker, “jurisdiction over the Crown is entirely a creature of statute and only a statute explicitly granting jurisdiction to the courts of other provinces could render a provincial Crown amenable to suit in other provinces.”[235] In short, “the Crown in right of one province cannot be sued in the courts of another province.”[236]

Walker claims that the restriction of proceedings against the Crown in right of one province to the courts of only that province, in the Crown proceedings statute of each province, is unconstitutional. The Constitution, she argues, implicitly insists that proceedings against a province be amenable to the superior court of any province that has a real and substantial connection to the cause of action. In her view, a province lacks the constitutional authority to prohibit proceedings against it in another province that has a real and substantial connection to the cause of action.[237] It is important to note that current law does not endorse Walker’s claim. In Athabasca Chipewyan First Nation v. British Columbia, for instance, the Alberta Court of Appeal unequivocally rejected Walker’s reasoning.[238] According to Justice Hunt, the fact that “a provincial Crown partially has waived its procedural immunity” in its own province does not expose the Crown in right of that province to suit in the courts of another province.[239] Moreover, the extent to and the manner in which the Crown in right of a province can be sued is an element of provincial autonomy that can only be determined by the legislature of that province: “It 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.”[240] Justice Hunt also stressed the “dangers in the possibility of courts altering rules about Crown immunity.”[241] As explained by Peter Hogg, Patrick Monahan, and Wade Wright, “Canadian courts have drawn back from the radical reformation of Crown proceedings law.”[242] The reason for this is that any reformulation of Crown immunity by the judiciary raises “delicate constitutional issues” regarding “the relationship between the courts and government.”[243]

In addition, “the Crown proceedings statute of [each] province [does not] purport to confer jurisdiction on the province’s courts over the Crown in right of any province other than the enacting province.”[244] In a federation such as Canada, it is arguable that “an intention to bind the Crown in right of another jurisdiction should be clearly indicated.”[245] No such intention is indicated in the Crown proceedings statute of each province. To the contrary, the Crown proceedings statute of each province allows proceedings against “the Crown,” and expressly defines “the Crown” as meaning the Crown in right of the enacting province.[246] Similarly, the general rules of private international law that govern the ways in which the courts of each province may assume jurisdiction[247] over out-of-province defendants cannot justify an assumption of jurisdiction over the Crown in right of another jurisdiction. In the province of Quebec, those rules are found in Book Ten of the CCQ[248] and, in the common law provinces, “in the procedural rules for service ex juris, in the real and substantial connection test,[249] ... and in the statutes of those provinces.”[250] I engage briefly with all three sources of private international law rules in the next paragraph.

First, the procedural rules for service ex juris[251] were, initially, “more than just procedural rules”: They were jurisdictional rules, in the sense that “the court assumed jurisdiction in any dispute in which the defendant could be validly served under the rules.”[252] However, this is not true anymore.[253] Nowadays, those procedural rules do not determine the issue of jurisdiction.[254] In any event, it is far from clear that, as a matter of statutory interpretation, those rules confer on the courts of the enacting province the jurisdiction to order service ex juris against the Crown in right of another jurisdiction.[255] Secondly, as a common law principle,[256] the real and substantial connection test does not displace the Crown’s common law immunity from suits.[257] As a prerogative of the Crown,[258] this immunity is also a part of the common law,[259] and its purpose is precisely to “mak[e] a small part of the common law different for the Crown than it is for a subject.”[260] Accordingly, “Canadian courts have consistently recognized and confirmed the principle of provincial Crown immunity to conclude that ‘provincial Crowns can only be sued in the courts of the Crown’s own province.’”[261] Thirdly, the model Court Jurisdiction and Proceedings Transfer Act (“model CJPTA”)[262] does not expressly state that it is binding on the Crown.[263] Nevertheless, Vaughan Black, Stephen Pitel, and Michael Sobkin conclude that “it seems likely,” particularly in light of the model CJPTA’s definitions of “person” and “state,”[264] that “the [model CJPTA] is binding on the Crown.”[265] But even assuming that the model CJPTA is binding on “the Crown,” there remains the issue of whether, as a matter of statutory interpretation, it is binding on the Crown in right of another province.[266] A further issue is also whether, as a matter of constitutional law, it is permissible for one province to grant jurisdiction to the courts of that province over the Crown in right of another province. There is indeed a strong basis for suggesting that, as a matter of constitutional law, a grant of jurisdiction by one province to the courts of that province over the Crown in right of another province would, in any event, be unconstitutional.[267]

2. Can the Crown in Right of a Province Be Sued in the Federal Court?

Because the Crown proceedings statute of each province implicitly excludes the jurisdiction of—or at least does not expressly grant jurisdiction to—courts other than the local courts of the enacting province, the Crown’s common law immunity from suits retains its relevance where a suit is brought in the Federal Court against a provincial Crown. In addition, the FCA does not purport to confer jurisdiction upon the Federal Court over a provincial Crown.[268] In order to bind the Crown in right of a province, Parliament’s intention to do so “should be clearly indicated,”[269] and no such intention is indicated in the current FCA. Subsections 17(1) and (2) of the FCA provide for suits against the “Crown” in the Federal Court, but section 2 of the FCA defines the “Crown” as meaning “Her Majesty in right of Canada.”[270] In light of this, it was held, in a series of cases, that, due to the Crown’s common law immunity from suits, the Crown in right of a province cannot be sued in the Federal Court.[271]

Historically, the Federal Court similarly “refused to exercise jurisdiction over the provinces under the subject matter provisions of the FCA” (sections 20, 22, and 23).[272] For instance, the Federal Court of Appeal decided in Canada v. Toney that section 22 of the FCA, which provides for jurisdiction over disputes “between subject and subject as well as otherwise” in relation to navigation and shipping, does not confer jurisdiction upon the Federal Court over the provinces. In particular, the phrase “as well as otherwise” does not, according to the Federal Court of Appeal, indicate a clear intention to bind the provinces.[273] The Court recognized “that the phrase ... ‘between subject and subject as well as otherwise’ ... is broad enough to refer to an action against a public authority.”[274] However, the Court stressed that the definition of the “Crown” as meaning “Her Majesty in right of Canada” in section 2 of the FCA was “contraindicative of a clear intention to bind the provinces.”[275] In the end, the words “as well as otherwise” are not “sufficiently express to convey Parliament’s clear intention to bind the provinces.”[276]

C. Federal Issues: Constitutional Law

The Constitution Act, 1867 does not contain any provision for jurisdiction over controversies between the federal Crown and a province or as between provinces.[277] This “conspicuous gap in the definition of judicial power under the Canadian Constitution” is all the more surprising given that “this is covered in the earlier American Constitution and in the later Australian one.”[278] Section 19 of the FCA provides for consensual jurisdiction, meaning that, for this purpose, a complementary provincial statute must supplement section 19 of the FCA.[279] Section 19 of the FCA reads as follows:

If the legislature of a province has passed an Act agreeing that the Federal Court, the Federal Court of Canada or the Exchequer Court of Canada has jurisdiction in cases of controversies between Canada and that province, or between that province and any other province or provinces that have passed a like Act, the Federal Court has jurisdiction to determine the controversies.[280]

The successive versions of the statutes governing the jurisdiction of the Exchequer Court, which is the predecessor of the Federal Court, have included this unique provision, or a similar one, since 1875.[281]

Section 19 of the FCA “is an example of cooperative federalism.”[282] As noted by Hogg, Monahan, and Wright, “[n]ine of the ten provinces have passed the Act contemplated by s. 19 (or its predecessor in the Exchequer Court Act), granting jurisdiction to the Federal Court to determine controversies between Canada and that province or between that province and the other agreeing provinces.”[283] However, “[n]either s. 19 nor the provincial Acts authorize a private person to bring proceedings against a provincial Crown in the Federal Court.”[284] In this respect, the jurisprudence is unanimous: Section 19 of the FCA can only be relied upon by the federal Crown or by a province and it cannot be relied upon by a private party.[285] In other words, under the current FCA, the jurisdiction of the Federal Court over a province is consensual,[286] and it cannot be relied upon by a private party. This raises the issue of whether Parliament has the constitutional authority to implead a provincial Crown in the Federal Court without its consent and to the advantage of a private party. In my view, it does or, at least, it does in some circumstances.

To begin with, the fact that existing legislation provides for consensual jurisdiction does not mean that the consent of a province to the jurisdiction of a court established by Parliament for the better administration of the laws of Canada under section 101 of the Constitution Act, 1867 is a constitutional imperative. Consensual jurisdiction is possibly provided for under section 19 of the FCA—not to overcome Parliament’s lack of constitutional authority to compel submission of a province to the jurisdiction of the Federal Court—but to overcome the “laws-of-Canada” restriction on the jurisdiction of the Federal Court under section 101, and to allow the Federal Court to exercise jurisdiction over a controversy between the federal Crown and a province, or as between provinces, even if such a controversy is not governed by federal law. As explained by the Federal Court of Appeal in Alberta v. Canada, section 19 of the FCA is not solely grounded on Parliament’s power to establish a court for the better administration of the laws of Canada under section 101: “It is also nourished by the power of provincial legislatures ... to confer to a statutory court jurisdiction over controversies ... in respect of subject matters that could fall within section 92 of the Constitution.”[287] In such circumstances, the constitutional constraints on the Federal Court’s jurisdiction are overcome as their purpose is merely “to ensure that the federal Parliament does not use its power provided in section 101 to expand unilaterally the Federal Court’s jurisdiction.”[288] In other words, when section 19 of the FCA is supplemented by a complementary provincial statute conferring jurisdiction upon the Federal Court, “the Court’s restriction to federal law is overcome.”[289] Because of their unique character, section 19 of the FCA and any complementary provincial statute “satisfy the issue of jurisdiction completely”[290] and there is no “need for a substratum of federal law to nourish the Federal Court’s grant of jurisdiction.”[291] Conversely, when there is “a substratum of federal law to nourish the Federal Court’s grant of jurisdiction,”[292] there is possibly no need for a complementary provincial statute conferring jurisdiction upon the Federal Court.

However, it is, of course, true that “the Crown’s position as a litigant ... is federal law in relation to the Crown in right of Canada, just as it is provincial law in relation to the Crown in right of a Province, and is subject to modification in each case by the competent Parliament or Legislature.”[293] Parliament has exclusive authority to define the rights, liabilities, immunities and privileges of the federal Crown by virtue of sections 91(1A) (“The Public Debt and Property”) and 91(8) (“The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada”) of the Constitution Act, 1867, or by virtue of Parliament’s residual power under the opening words of section 91 of the Constitution Act, 1867 to make laws “for the Peace, Order, and good Government of Canada” in relation to matters not specifically provided for.[294] Similarly, the legislature of a province has[295] exclusive authority to define the rights, liabilities, immunities, and privileges of the Crown in right of the province by virtue of sections 92(4) (“The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers”) and 92(5) (“The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon”) of the Constitution Act, 1867, or by virtue of sections 92(13) (“Property and Civil Rights in the Province”), 92(14) (“The Administration of Justice in the Province, including ... Procedure in Civil Matters”), and 92(16) (“Generally all Matters of a merely local or private Nature in the Province”).[296] Even if legislation on the rights, liabilities, immunities, and privileges of the provincial Crowns is—in “pith and substance”—legislation in relation to one or more heads of legislative power allocated to the provinces under the Constitution Act, 1867, the validity of a federal measure lifting a provincial Crown’s common law immunity from suits for the purpose of allowing Aboriginal title claims in the Federal Court could be saved by the ancillary powers doctrine.[297]

In short, “the ancillary powers doctrine concerns legislation that, in pith and substance, falls outside the jurisdiction of its enacting body,” and “accepts the validity of” such legislation if it “constitute[s] an integral part of a legislative scheme that comes within [the jurisdiction of the enacting body].”[298] There is, in my view, no doubt that a legislative scheme conferring jurisdiction upon the Federal Court over claims of Aboriginal title comes within the jurisdiction of Parliament. Parliament has jurisdiction over “Indians, and Lands reserved for the Indians” (section 91(24) of the Constitution Act, 1867). This includes jurisdiction over lands held pursuant to Aboriginal title and jurisdiction over non-Indian use of such lands. The law of Aboriginal title is part of the federal common law, and any law applicable to a claim for damages for the infringement of Aboriginal title, especially if incorporated into federal law by a federal choice of law rule, is federal law. Parliament also has jurisdiction to establish “any additional Courts for the better Administration of [federal law]” (section 101 of the Constitution Act, 1867). In my view, there is no more doubt that a federal measure lifting a provincial Crown’s common law immunity from suits for the purpose of allowing litigation of Aboriginal title claims in the Federal Court would constitute “an integral part” of a legislative scheme conferring jurisdiction upon the Federal Court over claims of Aboriginal title. I am of the view that such a federal measure would, in fact, satisfy even a strict necessity test.[299] As mentioned earlier, it was held, in a series of cases, that the provincial Crown is a necessary party to any claim of Aboriginal title. It is true that the majority judgment in Uashaunnuat casts doubt upon the validity of the latter proposition. But it does not dispute the proposition that the provincial Crown is a necessary party to a claim of Aboriginal title if the Indigenous claimants wish to obtain a declaration of Aboriginal title that is binding on the provincial Crown.

There remains the issue of whether a federal measure lifting a provincial Crown’s common law immunity from suits for the purpose of allowing litigation of Aboriginal title claims in the Federal Court “trenches on the protected ‘core’ of a [provincial] competence”[300] and, in the affirmative, the further issue of whether such a federal measure significantly “trammels” or “impairs” the manner in which the provincial power can be exercised so as to justify the application of the doctrine of interjurisdictional immunity.[301] In my view, it does not.[302] The doctrine of interjurisdictional immunity is subject today to a “restrained approach”[303] and is generally “reserved for situations already covered by precedent.”[304] There is no precedent establishing that a provincial Crown’s common law immunity from suits, as opposed to a provincial Crown’s common law immunity from the imposition by statute of substantive liabilities,[305] lies at the protected core of exclusive provincial authority. To the contrary, the jurisprudence of the Federal Court and of the Federal Court of Appeal seems to assume, or “accept,”[306] that Parliament could implead a provincial Crown in the Federal Court without its consent if such a parliamentary intention was clearly indicated.[307] Insofar as a provincial Crown’s common law immunity from statutes is concerned, the Supreme Court has rejected a theory of “constitutional inter-governmental immunity.”[308] In this respect, “the weight of authority is against” the recognition of a form of “constitutional inter-governmental immunity” from federal laws even for what might be thought of as “the essential functions of” a provincial Crown.[309] It is indeed well established that “where Parliament has the authority to legislate in an area, a provincial Crown [is] bound if Parliament so chooses.”[310] Where it chooses to bind a provincial Crown by statute, Parliament effectively lifts the provincial Crown’s common law immunity from statutes. I see no reason why Parliament could not similarly lift a provincial Crown’s common law immunity from suits. In any event, there is strong support for the proposition that “federal legislation, competently enacted of course, may embrace the Crown in right of a Province ... and may also deal with its privileges and immunities in so far as they may relate to matters that fall within federal legislative power.”[311]

Lastly, it is, of course, also true that the Crown proceedings statute of each province implicitly excludes the jurisdiction of––or at least does not expressly grant jurisdiction to––courts other than the local courts of the enacting province. But a valid federal measure lifting a provincial Crown’s common law immunity from suits for the purpose of allowing litigation of Aboriginal title claims in the Federal Court would necessarily prevail over conflicting provincial legislation by virtue of the doctrine of federal paramountcy.[312]

D. Conclusion on In Personam Jurisdiction

Because of the Crown’s common law immunity from suits, a provincial Crown cannot be sued in the Federal Court under the current FCA. However, as a matter of constitutional law, Parliament could compel submission of the provincial Crowns to the jurisdiction of the Federal Court for the purpose of allowing litigation of Aboriginal title claims. In my view, Parliament can compel submission of a provincial Crown to the jurisdiction of the Federal Court, at least if the following conditions are satisfied: The Federal Court’s subject matter jurisdiction is grounded on a substratum of valid federal law, and the presence of the provincial Crown is necessary if the claimant is to obtain an effective remedy. These conditions are satisfied in cases of Aboriginal title claims where the Indigenous claimants seek a declaration of Aboriginal title that is binding on the provincial Crown. However, Parliament’s intention to compel submission of the provincial Crown would have to be clearly indicated, in which case such a parliamentary intention would then prevail over conflicting provincial legislation by virtue of the doctrine of federal paramountcy.

The result of my analysis in Parts II and III is that Parliament has the constitutional authority to provide the Indigenous peoples in Canada who wish to litigate cross-border Aboriginal title claims with a forum in which all the parties necessary to resolve the issues fairly, including all the provincial Crowns concerned, could be summoned as defendants, and in which a declaration of Aboriginal title, binding on all such defendants, could be sought.

Conclusion

I would summarize my recommendations as follows.

First, Parliament could, and should,[313] exercise its constitutional authority to confer upon the Federal Court the jurisdiction to try a private suit of the type commenced by the Innu against IOC and QNS&L in Uashaunnuat. It could do so simply by adding to the existing subject matter provisions of the FCA (sections 20, 22, and 23), stating that “the Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of the law of Aboriginal title.” The word “relief” is already defined by section 2 of the FCA as including “every species of relief, whether by way of damages, payment of money, injunction, declaration, restitution of an incorporeal right, return of land or chattels or otherwise.”[314] Consequently, “a claim for relief ... made or a remedy ... sought under or by virtue of the law of Aboriginal title” would include a declaration of Aboriginal title and associated injunctive relief. It would probably also include a claim for damages for the infringement of Aboriginal title. Nevertheless, for greater certainty, I would suggest that Parliament adopt a federal choice of law rule stating that a claim for damages for the infringement of Aboriginal title is governed by the law of torts of the province in which the cause of action arose.

Secondly, Parliament could, and should, exercise its constitutional authority to compel submission of the provincial Crowns to the jurisdiction of the Federal Court for the purpose of allowing litigation of Aboriginal title claims. Parliament’s intention to bind a provincial Crown must be clearly indicated. Parliament could do so simply by stating that the phrase “between subject and subject as well as otherwise” includes, for the purposes of this provision, “Her Majesty in right of a province.”

Quite simple.