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]<\/a> This occupation and use of land by Indigenous peoples obviously predates the establishment of borders in the modern era.[2]<\/a> 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]<\/a> Traditional territory of the Blackfoot Confederacy, for instance, includes parts of Alberta and Saskatchewan (as well as Montana).[4]<\/a> Traditional Denesuline (also known as Chipewyan) territory covers portions of Alberta, Saskatchewan, Manitoba, the Northwest Territories, and Nunavut.[5]<\/a> Traditional Algonquin territory centres on the Ottawa River and tributaries, including parts of western Quebec and Ontario.[6]<\/a> And so on.<\/p>\n The decision of the Supreme Court of Canada in Newfoundland and Labrador (Attorney General) v<\/em>. Uashaunnuat (Innu of Uashat and of Mani-Utenam)<\/em> (\u201cUashaunnuat<\/em>\u201d) illustrates \u201cthe practical difficulties faced by the Indigenous peoples of Canada who seek to claim Aboriginal rights in a single traditional territory that straddles provincial borders.\u201d[7]<\/a> In Uashaunnuat<\/em>, the Innu of Uashat and of Mani-Utenam and the Innu of Matimekush-Lac John (collectively the \u201cInnu\u201d) claimed to hold Aboriginal title and other Aboriginal or treaty rights in all of \u201cNitassinan,\u201d a traditional territory they have occupied for centuries.[8]<\/a> This traditional territory spans over the border between the provinces of Quebec and Newfoundland and Labrador.[9]<\/a> Even though they had not yet obtained a judicial declaration of their title or rights against the Crown,[10]<\/a> the Innu filed suit in the Superior Court of Quebec against two mining companies, Iron Ore Company of Canada (\u201cIOC\u201d) and Quebec North Shore and Labrador Railway Company Inc. (\u201cQNS&L\u201d), 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 Qu\u00e9bec<\/em> (\u201cCCQ\u201d).[11]<\/a> By way of remedy, the Innu sought (1) a declaration of Aboriginal title[12]<\/a> and associated injunctive relief,[13]<\/a> and (2) an award of damages.[14]<\/a><\/p>\n The two defendants, IOC and QNS&L, moved to have allegations struck from the Innu\u2019s pleadings.[15]<\/a> They argued \u201cthat Aboriginal title is a real right and that, pursuant to art. 3152 of the Civil Code of Qu\u00e9bec<\/em>, … the Innu\u2019s action was beyond the jurisdiction of Quebec courts insofar as it concerned property located in Newfoundland and Labrador.\u201d[16]<\/a> The Attorney General of Newfoundland and Labrador (\u201cAGNL\u201d) eventually filed a motion to intervene as well as its own motion to have allegations struck from the Innu\u2019s pleadings, essentially supporting the arguments of the two defendants, IOC and QNS&L, but also raising the issue of Crown immunity.[17]<\/a> 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]<\/a><\/p>\n The Superior Court of Quebec dismissed the motions to strike.[19]<\/a> The AGNL appealed from this judgment, but the Court of Appeal of Quebec affirmed the judgment of the Superior Court,[20]<\/a> and a majority of the Supreme Court of Canada affirmed the judgment of the Court of Appeal. For the majority, the Innu\u2019s action fell \u201cinto the \u2018mixed\u2019 category, insofar as the Innu [sought] the recognition of a sui generis<\/em> 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].\u201d[21]<\/a> In the case of a mixed action, a Quebec court must \u201chave jurisdiction over both<\/em> the personal and the sui generis<\/em> aspects of the claim.\u201d[22]<\/a> The majority concluded that the Quebec courts did have jurisdiction over both aspects of the Innu\u2019s action. As regards the personal aspects of their claim, article 3148, para 1(1) of the CCQ grants jurisdiction to the Quebec courts \u201cwhere the defendant is domiciled in Quebec.\u201d[23]<\/a> Moreover, with respect to the sui generis<\/em> aspects of the Innu\u2019s claim, the CCQ does not contain \u201cany special provision to establish the jurisdiction of Quebec authorities in such circumstances\u201d; consequently, the majority applied the general subsidiary rule of article 3134 of the CCQ, according to which the Quebec courts are competent \u201cwhen the defendant is domiciled in Quebec.\u201d[24]<\/a><\/p>\n However, the majority did not dispute the Innu\u2019s 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]<\/a> This is potentially problematic for the Indigenous peoples in Canada: \u201cAboriginal title is a burden on the Crown\u2019s underlying title,\u201d and an \u201cincident of this underlying title is a fiduciary duty owed [by the Crown<\/em>] 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<\/em>[26]<\/a>] is satisfied.\u201d[27]<\/a> In the absence of a declaration of Aboriginal title that is binding on the Crown<\/em>, Indigenous peoples cannot benefit from the full development of \u201cthe fiduciary-like relationship\u201d that judicial recognition of Aboriginal title normally entails.[28]<\/a> 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 \u201ccomprehensive land claim.\u201d[29]<\/a><\/p>\n 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]<\/a> 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 \u201c[p]rovincial boundaries were imposed on Indigenous peoples without regard for their pre-existing social organization.\u201d[31]<\/a> 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]<\/a> And access to justice is \u201ca precondition to the rule of law\u201d; as such, it is \u201cfundamental to our constitutional arrangements.\u201d[33]<\/a><\/p>\n In this article, I argue that Parliament has<\/em> 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]<\/a> In my view, Parliament should<\/em>[35]<\/a> exercise its constitutional authority by amending the Federal Courts Act<\/em> (\u201cFCA<\/em>\u201d)[36]<\/a> in the way I suggest. Pursuant to my recommendations, the jurisdiction of the Federal Court of Canada over Aboriginal title claims in general<\/em> would be concurrent<\/em> with the jurisdiction of the local courts of the provinces. However, in cases of cross-border<\/em> Aboriginal title claims, the Federal Court would de facto<\/em> become the sole<\/em> forum in which two or more provincial Crowns could be summoned as defendants.[37]<\/a><\/p>\n 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<\/em>? 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<\/em> jurisdiction of the Federal Court. I start this article with a brief overview of the current jurisdiction of the Federal Court in Part I.<\/p>\n Parliament created the Federal Court[38]<\/a> in 1971.[39]<\/a> This Court absorbed[40]<\/a> the Exchequer Court of Canada established in 1875.[41]<\/a> If, originally, the Exchequer Court enjoyed only \u201ca very limited jurisdiction over cases involving the revenue and the Crown in right of Canada,\u201d[42]<\/a> its jurisdiction was progressively expanded[43]<\/a> so as to include admiralty, intellectual property, tax, citizenship, and \u201cseveral very technical fields of federal law.\u201d[44]<\/a> In addition to inheriting this jurisdiction, the Federal Court received some new powers, such as \u201cthe power to review the decisions of federal agencies and officials\u201d and \u201cthe power to entertain claims for relief in respect of aeronautics, interprovincial undertakings and certain kinds of commercial paper.\u201d[45]<\/a><\/p>\n The FCA<\/em> states that the Federal Court is a \u201csuperior court,\u201d[46]<\/a> but this statement is interpreted as meaning \u201cthat its jurisdiction is \u2018supervisory.\u2019\u201d[47]<\/a> For the Supreme Court, \u201c[t]he Federal Court is not a superior court in the true sense of possessing inherent jurisdiction.\u201d[48]<\/a> On this view, the Federal Court is not a \u201ctrue\u201d superior court due to the nature of the statutory and constitutional constraints on its jurisdiction.[49]<\/a> First, the Federal Court \u201cis a statutory court\u201d: The only jurisdiction it has is the jurisdiction that statute has conferred upon it.[50]<\/a> Secondly, as a matter of constitutional law, federal law must govern the cause of action.[51]<\/a> Indeed, section 101 of the Constitution Act, 1867<\/em>[52]<\/a> limits Parliament\u2019s power to grant jurisdiction to a federal court: The creation of federal courts is authorized for a specific purpose, namely \u201cthe better Administration of the Laws of Canada.\u201d[53]<\/a> The Supreme Court interpreted the phrase \u201cLaws of Canada\u201d to mean federal laws only, and not to include laws in force in Canada through provincial enactments.[54]<\/a> 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<\/em>, for a suit to proceed before it.[55]<\/a><\/p>\n In ITO\u2014International Terminal Operators Ltd v. Miida Electronics Inc<\/em> (\u201cITO<\/em>\u201d),[56]<\/a> the Supreme Court, drawing upon its prior judgments in Quebec North Shore Paper v. CP Ltd<\/em> (\u201cQuebec North Shore<\/em>\u201d)[57]<\/a> and McNamara Construction (Western) Ltd v. The Queen<\/em> (\u201cMcNamara Construction<\/em>\u201d),[58]<\/a> identified three required elements to make a finding of jurisdiction in the Federal Court:<\/p>\n According to the Supreme Court, the first required element of the test concerns the statutory constraints on the Federal Court\u2019s jurisdiction.[60]<\/a> This first required element is satisfied if a federal statute confers upon the Federal Court jurisdiction \u201cover the subject matter of the litigation.\u201d[61]<\/a> The second and third required elements of the test concern the constitutional constraints on the Federal Court\u2019s jurisdiction.[62]<\/a> Both of these required elements \u201care 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.\u201d[63]<\/a> Consequently, it is inevitable that the second and third required elements of the test present \u201ca certain degree of overlap.\u201d[64]<\/a> The second required element is satisfied if \u201ca general body of federal law cover[s] the area of the dispute,\u201d while the third required element is satisfied if \u201cthe specific law which will be resolutive of the dispute [is] \u2018a law of Canada\u2019 within the meaning of s. 101.\u201d[65]<\/a> In other words, the third required element of the test is satisfied if the federal law in question is \u201cconstitutionally valid,\u201d which means that it must be capable of being assigned to one or more heads of federal legislative power.[66]<\/a> In the following parts of this article, I apply the three-part ITO<\/em> test to the claims of the Innu in Uashaunnuat<\/em> for the purpose of assessing the jurisdiction, or potential jurisdiction, of the Federal Court over such claims.<\/p>\n 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<\/em>. The FCA<\/em> currently does not grant such a jurisdiction to the Federal Court. First, the Federal Court has (concurrent)[67]<\/a> original jurisdiction in all cases where relief is claimed against the federal Crown<\/em> (sections 2(1) and 17(1) of the FCA<\/em>); consequently, section 17(1) of the FCA<\/em> does not authorize a claim against a private party<\/em>,[68]<\/a> unless such a claim is in respect of an obligation of the federal Crown (section 17(4) of the FCA<\/em>).[69]<\/a><\/p>\n Secondly, the subject matter provisions of the FCA<\/em> (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<\/em>: intellectual property (section 20), \u201cCanadian maritime law,\u201d as defined in the FCA<\/em> (section 2(1)),[70]<\/a> \u201cnavigation and shipping\u201d (section 22), and bills of exchange, promissory notes, aeronautics, and interprovincial works and undertakings (section 23).[71]<\/a><\/p>\n 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<\/em>, such a statutory grant of jurisdiction would be \u201cconstitutionally ineffective\u201d in the absence of an existing body of federal law that governs the cause of action.[72]<\/a> As explained by the Supreme Court in Windsor (City) v<\/em>. Canadian Transit Co <\/em>(\u201cWindsor<\/em>\u201d), \u201ca statutory grant of jurisdiction is necessary, but not alone sufficient, for the Federal Court to have jurisdiction in a given case.\u201d[73]<\/a> In addition, \u201c[t]he second part of the ITO<\/em> test requires that federal law be \u2018essential to the disposition of the case\u2019 such that it \u2018nourishes the statutory grant of jurisdiction.\u2019\u201d[74]<\/a><\/p>\n In Uashaunnuat<\/em>, 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]<\/a> These claims were also based upon Quebec\u2019s 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]<\/a> I examine in turn these two aspects of the Innu\u2019s action against IOC and QNS&L.<\/p>\n It is well established that \u201cAboriginal title is … a sub-category of Aboriginal rights.\u201d[77]<\/a> Aboriginal rights are constitutionally \u201crecognized and affirmed\u201d by section 35(1) of the Constitution Act, 1982<\/em>.[78]<\/a> 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<\/em>.[79]<\/a> However, at common law, Parliament could extinguish Aboriginal rights at will.[80]<\/a> In 1982, the amendment of Canada\u2019s Constitution changed this situation.[81]<\/a> Nowadays, Parliament cannot extinguish <\/em>Aboriginal rights, and it, or the provincial legislatures, can only regulate<\/em>, or infringe<\/em>, Aboriginal rights to the extent that the justificatory test of R v. Sparrow<\/em> is satisfied.[82]<\/a><\/p>\n Aboriginal title \u201cis the highest form of Aboriginal right.\u201d[83]<\/a> 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]<\/a> 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]<\/a> However, Aboriginal title \u201cis not the same as, or equivalent to, a fee simple interest in land.\u201d[86]<\/a> Nonetheless, it is a right of ownership \u201csimilar to [a] fee simple.\u201d[87]<\/a><\/p>\n The Royal Proclamation of 1763<\/em> (\u201cProclamation<\/em>\u201d)[88]<\/a> \u201crecognized the right of Indians to unceded lands in their possession, protected the Indians\u2019 interest in those lands, and provided that [their] rights in the land [could] be ceded only to the Crown.\u201d[89]<\/a> Importantly, the Proclamation <\/em>is not the source of Aboriginal title: it merely confirms its existence.[90]<\/a> As explained by Thomas Isaac, \u201cAboriginal title exists independently of the Proclamation<\/em> and arises … from the historical use and occupation of Canada by Aboriginal peoples.\u201d[91]<\/a> The Proclamation<\/em> 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]<\/a><\/p>\n The 1888 decision in St Catherine\u2019s Milling and Lumber Company v<\/em>. The Queen (Ontario) <\/em>(\u201cSt Catherine\u2019s Milling<\/em>\u201d)[93]<\/a> is \u201c[t]he starting point of the Canadian jurisprudence on [A]boriginal title.\u201d[94]<\/a> In this decision, the Privy Council recognized that Aboriginal title exists at Canadian law. It described Aboriginal title as a burden on the Crown\u2019s underlying title to the land[95]<\/a> and as a \u201cpersonal and usufructuary right.\u201d[96]<\/a> However, \u201c[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.<\/em>\u201d[97]<\/a><\/p>\n In its 1973 decision in Calder v<\/em>. British Columbia (Attorney General)<\/em> (\u201cCalder<\/em>\u201d),[98]<\/a> the Supreme Court rejected this idea that the source of Aboriginal title is the Proclamation<\/em>.[99]<\/a> Justices Judson and Hall held that Aboriginal title exists at common law independently of the Proclamation<\/em>.[100]<\/a> The Calder <\/em>decision thus \u201crecognized [A]boriginal title as a legal right derived from the Indians\u2019 historic occupation and possession of their tribal lands,\u201d[101]<\/a> and as \u201cnot solely dependent upon legislative enactments, executive orders, or treaties for their existence.\u201d[102]<\/a> The Supreme Court reiterated its position that Aboriginal title exists at common law independently of the Proclamation<\/em>[103]<\/a> in its 1984 decision in Guerin v<\/em>. The Queen <\/em>(\u201cGuerin<\/em>\u201d),[104]<\/a> and in its 1997 decision in Delgamuukw v<\/em>. British Columbia<\/em>.[105]<\/a><\/p>\n The common law doctrine of Aboriginal rights results from the rules of British imperial constitutional law and \u201cthe 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.\u201d[106]<\/a> As explained by the Supreme Court in Mitchell v<\/em>. MNR<\/em>, \u201cEnglish 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.\u201d[107]<\/a> In this respect, the Supreme Court endorses the view that the doctrine of discovery and terra nullius<\/em> has never been a part of Canadian law.[108]<\/a><\/p>\n However, the Supreme Court endorses at the same time the view that, by asserting \u201csovereignty over the land,\u201d the Crown acquired \u201cits underlying title.\u201d[109]<\/a> The rights of Indigenous peoples to occupy and use their traditional territories are said to have \u201ccontinued as a \u2018burden on the radical or final title of the Sovereign.\u2019\u201d[110]<\/a> The reason for this is \u201c[t]he principle that a change in sovereignty over a particular territory does not in general affect the presumptive title of the inhabitants.\u201d[111]<\/a> The doctrine of continuity confirms the Supreme Court\u2019s position that Aboriginal title exists at common law independently of the Proclamation<\/em>.[112]<\/a> There is accordingly a presumption that Aboriginal rights \u201csurvive[d] the assertion of sovereignty, and were absorbed into the common law … unless (1) they were [unconscionable or] incompatible with the Crown\u2019s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them.\u201d[113]<\/a><\/p>\n In sum, the common law doctrine of Aboriginal rights \u201carose from the very process whereby the Crown assumed sovereignty over Canada.\u201d[114]<\/a> It is \u201ca necessary incident of British sovereignty,\u201d[115]<\/a> a doctrine of colonial law.[116]<\/a> Being a \u201cpart of a body of fundamental constitutional law,\u201d[117]<\/a> the common law doctrine of Aboriginal rights \u201ctook force uniformly throughout the various colonial territories that now make up Canada.\u201d[118]<\/a> As explained by John Evans and Brian Slattery, \u201c[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<\/em>,\u201d[119]<\/a> which vests in the federal order of government the power to make laws in relation to \u201cIndians, and Lands reserved for the Indians.\u201d[120]<\/a> As a result, \u201cthe common law of [A]boriginal title … became federal common law,\u201d namely \u201ca body of basic public <\/em>law operating uniformly across the country within the federal sphere of competence.\u201d[121]<\/a> In Roberts v<\/em>. Canada <\/em>(\u201cRoberts<\/em>\u201d),[122]<\/a> the Supreme Court affirmed that the common law doctrine of Aboriginal title \u201cis part of the federal common law.\u201d[123]<\/a> The aspect of the Innu\u2019s 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<\/em> test is therefore satisfied.<\/p>\n As mentioned earlier, the Supreme Court interpreted the phrase \u201cLaws of Canada\u201d in section 101 of the Constitution Act, 1867<\/em> to mean federal laws only.[124]<\/a> Thus, as a principle, the Federal Court cannot determine \u201cquestions of provincial law.\u201d[125]<\/a> The Supreme Court established this \u201crestrictive rule\u201d[126]<\/a> in its 1976 decision in Quebec North Shore<\/em>.[127]<\/a> 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]<\/a> Consequently, as a matter of constitutional law, \u201capplicable and existing<\/em> federal law\u201d must govern the cause of action for the Federal Court to have jurisdiction.[129]<\/a> The Supreme Court reiterated this requirement in its 1977 decision in McNamara Construction<\/em>.[130]<\/a><\/p>\n However, the jurisprudence of the Supreme Court does not forthrightly deny the possibility that \u201ca federal common law\u201d might exist.[131]<\/a> In fact, \u201csome parts of the common law\u201d were actually held to \u201cqualify as federal law.\u201d[132]<\/a> Furthermore, the principle that the Federal Court cannot determine questions of provincial law is also not absolute.[133]<\/a> In at least two cases,[134]<\/a> the Supreme Court recognized the jurisdiction of the Federal Court over \u201ca single cause of action\u201d that was \u201cgoverned partly by federal law and partly by common law.\u201d[135]<\/a> As stated by the Supreme Court in ITO<\/em>, \u201c[w]here a case is in \u2018pith and substance\u2019 within the court\u2019s statutory jurisdiction, the Federal Court may apply provincial law incidentally necessary to resolve the issues presented by the parties.\u201d[136]<\/a> In this passage, the Supreme Court seemed to adopt the United States \u201cdoctrine of pendent jurisdiction,\u201d under which a federal court\u2014if properly seized of a particular case\u2014can \u201cdetermine all of the issues that are derived from the \u2018common nucleus of operative fact\u2019, including \u2018state\u2019 issues.\u201d[137]<\/a> However, in Roberts<\/em>,[138]<\/a> the Supreme Court later rejected the doctrine of pendent jurisdiction.[139]<\/a> It results from these somewhat conflicting decisions \u201cthat there is no clear rule to deal with a cause of action governed by both federal and provincial law.\u201d[140]<\/a><\/p>\n The Innu\u2019s claim for damages against IOC and QNS&L was such a cause of action. Quebec\u2019s law of delict, upon which the Innu\u2019s claim for damages was based is, of course, provincial law. But the Innu\u2019s claim for damages could succeed \u201conly if<\/em>\u201d they obtained judicial recognition of their Aboriginal title<\/em>.[141]<\/a> Indeed, the Innu alleged that the infringement by IOC and QNS&L of their Aboriginal title<\/em> constituted a fault within the meaning of article 1457 of the CCQ.[142]<\/a> The law of Aboriginal title, which is federal common law,[143]<\/a> was thus a necessary component of the Innu\u2019s claim for damages against IOC and QNS&L. Whether this is sufficient to satisfy the second part of the ITO<\/em> test is unclear: In Roberts<\/em>, the Supreme Court \u201cdisapproved of a dictum that it is sufficient \u2018if the rights and obligations of the parties are to be determined to some material extent by federal law.\u2019\u201d[144]<\/a><\/p>\n In Windsor<\/em>, the Supreme Court similarly disapproved of a number of the Federal Court of Appeal\u2019s articulations of the second part of the ITO<\/em> test. For the Supreme Court, the second part of the ITO <\/em>test is not satisfied by the mere fact that there is \u201csufficient federal law,\u201d[145]<\/a> or by the mere fact that federal law \u201chas an important part to play\u201d[146]<\/a> in determining the outcome:<\/p>\n These articulations of the test should not be understood to lower in any way the high threshold articulated in ITO<\/em> itself. The fact that the Federal Court may have to consider federal law as a necessary component is not alone sufficient<\/u>; federal law must be \u201cessential to the disposition of the case\u201d. It must \u201cnourish\u201d the grant of jurisdiction.[147]<\/a><\/p>\n 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<\/em>, 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]<\/a> According to Colin McNairn, it is at least arguable that such \u201ca federal choice of law rule\u201d is sufficient to satisfy section 101 of the Constitution Act, 1867<\/em>.[149]<\/a> 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]<\/a> In my view, it would be within Parliament\u2019s legislative competence to incorporate into federal law any provincial law applicable[151]<\/a> to a claim for damages for the infringement of Aboriginal title. This is the point I shall now explore in more detail.<\/p>\n Section 91(24) of the Constitution Act, 1867<\/em> confers exclusive legislative authority upon Parliament in relation to \u201cIndians, and Lands reserved for the Indians.\u201d[152]<\/a> This section \u201cassigns jurisdiction to Parliament over two distinct subject matters, Indians and<\/em> Lands reserved for the Indians, not Indians on<\/em> Lands reserved for the Indians.\u201d[153]<\/a> Parliament\u2019s exclusive legislative authority in relation to \u201cIndians\u201d is thus \u201cthe same whether Indians are on a reserve or off a reserve.\u201d[154]<\/a> It is reasonable to conclude that \u201c[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.\u201d[155]<\/a> Accordingly, Parliament\u2019s legislative authority over \u201cLands reserved for the Indians\u201d includes \u201cthe power to regulate non-Indian use of such lands,\u201d[156]<\/a> 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 \u201cLands reserved for the Indians\u201d include, \u201cin addition to lands that qualify as \u2018reserves\u2019 under the Indian Act<\/em>[<\/sup>[157]<\/a>] and \u2018First Nation land\u2019 as defined under the First Nations Land Management Act<\/em>,[<\/sup>[158]<\/a>] lands reserved or set aside pursuant to the Royal Proclamation of 1763 and lands held by Indians pursuant to [A]boriginal title.\u201d[159]<\/a><\/p>\n Federal legislative power over \u201cLands reserved for the Indians\u201d does not, however, entail that the property of these lands is vested in the federal order of government.[160]<\/a> In St Catherine\u2019s Milling<\/em>,[161]<\/a> the Privy Council specifically held that the Constitution Act, 1867 <\/em>does not transfer to the federal order of government the property of the \u201cLands reserved for the Indians,\u201d 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]<\/a> As explained by Kerry Wilkins, it is not inconsistent to assign legislative power over \u201cLands reserved for the Indians\u201d to the federal order of government, and the underlying title to these lands to the provincial Crowns.[163]<\/a> This underlying title belongs to the provincial Crowns by virtue of the fact that, first, the Crown acquired it when \u201cit asserted sovereignty over the land.\u201d[164]<\/a> Secondly, at the time of Confederation, section 109 of the Constitution Act, 1867<\/em> \u201cvest[ed] this underlying title in the provincial Crowns[<\/sup>[165]<\/a>] and qualifie[d] provincial ownership by making it subject to \u2018any Interest other than that of the Province.\u2019\u201d[166]<\/a> There is no doubt that \u201cAboriginal title is one such interest.\u201d[167]<\/a> The underlying title of the provincial Crowns is \u201cwhat is left when Aboriginal title is subtracted from it.\u201d[168]<\/a> It consists of \u201ca 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.<\/em>\u201d[169]<\/a><\/p>\n As a result, the province takes absolute title to the land on surrender of Aboriginal title, even if \u201cjurisdiction to accept surrenders lies with the federal government.<\/em>\u201d[170]<\/a> In other words, \u201cownership of lands held pursuant to [A]boriginal title\u201d is separate \u201cfrom jurisdiction over those lands.\u201d[171]<\/a> And where, \u201cby virtue of a cession or absolute surrender of the Indigenous interest [in land],\u201d such land is freed from the overlying Aboriginal title, it \u201ccome[s] under full provincial administration and control\u201d pursuant to sections 109, 92(5), 92(13), and 92A of the Constitution Act, 1867<\/em>.[172]<\/a> The federal order of government is thereby deprived of all constitutional authority \u201cto appropriate such lan[d] unilaterally for Indian purposes\u201d or to otherwise \u201cdispose of the land.\u201d[173]<\/a> As explained by the Privy Council in its 1903 decision in Ontario Mining Co v<\/em>. Seybold<\/em>, section 91(24) of the Constitution Act, 1867<\/em> does not vest in the federal order of government \u201cany power by legislation to appropriate … the free public lands of the province … in infringement of the proprietary rights of the province.\u201d[174]<\/a><\/p>\n 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 \u201cthe free public lands of [a] province,\u201d could one argue that such a grant of jurisdiction is tantamount to a unilateral appropriation by Parliament of \u201cthe free public lands of the province\u201d in infringement of the proprietary rights of the province?[175]<\/a> Is it not true, after all, that \u201cthe onus of proving Aboriginal title is on the [Indigenous] claimants\u201d and that, \u201c[a]s a result, lands that are subject to unproven Aboriginal title claims are presumed to be [provincial] Crown lands\u201d (i.e., \u201cthe free public lands of the province\u201d[176]<\/a>)?[177]<\/a> Is it not also true that \u201cParliament cannot do indirectly through the Federal Court what it cannot do directly under the constitutional division of powers\u201d?[178]<\/a> Nonetheless, Aboriginal title \u201cis a pre-existing legal right not created by Royal Proclamation … or by any other executive or legislative provision\u201d;[179]<\/a> it \u201cis an independent legal interest.\u201d[180]<\/a> 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 \u201cthe free public lands of the province.\u201d[181]<\/a> The provinces took their interest in land subject to \u201cany Interest other than that of the Province in the same\u201d (section 109 of the Constitution Act, 1867<\/em>);[182]<\/a> Aboriginal title is one such interest. By declaring<\/em> the existence of Aboriginal title, the Federal Court, or Parliament through a grant of jurisdiction to the Federal Court, is thus not depriving <\/em>a province of powers it would otherwise enjoy.[183]<\/a><\/p>\nI. \u00a0 The Federal Court<\/h1>\n
II. Subject Matter Jurisdiction<\/h1>\n
\n
A. Statutory Grant of Jurisdiction<\/h2>\n
B. Existing Body of Federal Law<\/h2>\n
1. \u00a0\u00a0 The Law of Aboriginal Title<\/h3>\n
\u00a0\u00a0\u00a0\u00a0\u00a0 2. \u00a0\u00a0 Quebec\u2019s Law of Delict<\/h3>\n
C. Constitutional Validity of Federal Law<\/h2>\n