An Innu First Nations group in Quebec has won a battle in the Quebec Court of Appeal over the right to proceed with a $900-million lawsuit against a subsidiary of mining giant Rio Tinto.
The Innu First Nations of Uashat Mak Mani-Utenam and Matimekush-Lac John, whose traditional territory (Nitassinan) covers a large part of Northeastern Quebec and Labrador, scored a victory in their lawsuit targeting the Iron Ore Co. of Canada, which is majority owned as well as operated by Rio Tinto.
Rio Tinto/IOC was seeking to have the case dismissed before trial by arguing the Innu should have sued the government rather than the company. On Sept. 19, 2014, the IOC motion to dismiss the lawsuit was rejected first by the Quebec Superior Court. On Jan. 6, the Court of Appeal refused to hear an appeal.
“This isn’t a short cut, but the IOC’s pretension was that we absolutely had to sue the Quebec and Canadian government before suing them. They were telling the first judge ‘they just have to go to court and obtain a judgment about title and their ancestral rights and then come back.’ We wanted to avoid that given how long it takes. It’s a big victory in that sense,” says Jean-Francois Bertrand, one of the lawyers acting for the Innu, along with James O’Reilly.
Bertrand says it’s the constitutional duty of government to negotiate with aboriginal groups.
“Up to now the government in this case hadn’t negotiated enough to permit the Innu to obtain a settlement, so it obliged the Uashat Mak Mani-Utenam and Matimekush-Lac John to sue all the companies on their territory,” Bertrand adds.
“Rio Tinto and its subsidiary IOC continue to try to ignore us, just as they always have. IOC’s president even refuses to meet with us personally. But after this judgement, Rio Tinto (IOC) will no longer be able to hide. The highest Court in Quebec has made clear that Rio Tinto’s subsidiary IOC will have to answer in court for its violations of our constitutionally protected rights, which violations date back to the 1950s,” declared Mike McKenzie, chief of Uashat Mak Mani-Utenam.
David Nahwegahbow, of law firm Nahwegahbow Corbiere Genoodmagejig in Rama, Ont., says it is a procedural victory because the Quebec Court of Appeal said it’s not appropriate to dismiss the lawsuit because the aboriginal title hasn’t yet been recognized.
It’s essentially what the Supreme Court did in Haida Nation v. British Columbia (Minister of Forests), says Nahwegahbow.
“In Haida, the province said there is no real fiduciary duty because title hasn’t been recognized or determined by the court. But the court said there was still the honour of the Crown,” he says.
“I think the courts are now finally starting to realize that they’ve got to do something with s. 35. Aboriginal treaty rights have been constitutionally recognized for over 30 years now and thus far the Supreme Court of Canada hasn’t really put any sort of force behind it and it’s starting to become an issue of credibility,” says Nahwegahbow.
“They keep telling governments they should negotiate and they refuse to live up to obligations in good faith and so the companies are getting squeezed.”
Nahwegahbow says it’s “a matter of time” before these damage claims against companies start to become more common.
“If there is constitutional recognition to aboriginal and treaty rights how come companies can get away with violating those in the face of the Crown refusing to live up to its duties?”
There are already hints from the SCC in cases like Tsilhqot’in Nation v. British Columbia where “the courts said it was probably better for companies and government to obtain consent even where the title hasn’t been established,” he notes.
On June 26, 2014, the SCC’s unanimous Tsilhqot’in decision made a declaration of Aboriginal title over certain lands within the Tsilhqot’in Nation’s traditional territory, marking the first time a court had declared aboriginal title to land.
“Aboriginal title” conveys significant rights including the right to exclusive use and occupation of the lands at issue.
Nahwegahbow says the Quebec courts haven’t been overly friendly to aboriginal cases and it’s another reason why this case presents an interesting turn of events.
“For Aboriginal People it’s a good message,” he says. “I think the courts are getting a little fed up and starting to realize indigenous peoples are losing faith and fed up with the justice system.”