The Downside of the Tsilhqot’in Decision

The Supreme Court’s 2014 Tsilhqot’in decision was a watershed moment. As I wrote shortly after the decision was released, it marked the beginning of the “Age of Recognition.” Largely lost in the deserved excitement was the downside of the Tsilhqot’in decision.

There were two main issues in Tsilhqot’in: can Aboriginal title exist on a territorial basis and, if Aboriginal title exists, can the provinces seek to justify its infringement? The first issue, as we all know, was decided in favour of Indigenous Peoples. The second was decided in favour of the provinces.

After Tsilhqot’in was argued at the Supreme Court, but before the decision was released, the question of the provinces’ power to infringe section 35 constitutional rights was again argued at the Supreme Court in the context of Treaty rights as part of the Grassy Narrows appeal.

My colleague, Kate Gunn, and I had the honour to make arguments on this issue on behalf of Wabauskang First Nation, one of the appellants in Grassy Narrows. The Supreme Court in Grassy Narrows ultimately followed its decision in Tsilhqot’in and opened the door to provinces infringing Treaty rights.

Last fall I received an invitation from the editors at the University of New Brunswick Law Journal to revisit the issue of provincial power to infringe Aboriginal Title, Rights and Treaty rights. Like a dog with a bone, I couldn’t resist the opportunity.

The result is an article by Kate and I entitled “Stepping into Canada’s Shoes: Tsilhqot’in, Grassy Narrows and the Division of Powers,” published this month in volume 67 of the University of New Brunswick Law Journal. Thanks very much to the editors for an opportunity to get on the record in what I see as an unsupportable and misguided about-turn in Aboriginal law.

Below is a summary of our article. The article itself can be downloaded here:

“Stepping into Canada’s Shoes: Tsilhqot’in, Grassy Narrows and the Division of Powers”

Overview

In Tsilhqot’in and Grassy Narrows the Supreme Court disregarded existing law and dramatically reduced the federal government’s role when a province proposes to undertake activity that could negatively affect Aboriginal and Treaty rights.

The decisions reduce constitutional protections formerly guaranteed to Indigenous Peoples and significantly expand provincial jurisdiction to make decisions which limit the exercise of Aboriginal and Treaty rights.

Division of Powers prior to Tsilhqot’in and Grassy Narrows

Prior to Tsilhqot’in and Grassy Narrows the law was settled—Canada bore exclusive constitutional responsibility for regulating Aboriginal and Treaty rights and the doctrine of interjurisdictional immunity operated to protect the federal government’s exclusive role from provincial interference.

As a result, until 2014 Indigenous Peoples were entitled to rely on established law to prevent provinces from acting outside of their constitutional sphere and attempting to justify infringements of Aboriginal and Treaty rights.

Tsilhqot’in and Grassy Narrows

In Tsilhqot’in the Supreme Court made the first declaration of Aboriginal title in Canadian history. However, the Court also reduced Indigenous Peoples’ ability to rely on the federal government’s exclusive legislative authority when provinces seek to enact legislation affecting Aboriginal title and rights. According to the Court, provinces are now entitled to attempt to justify infringements of Aboriginal title and rights.

The Grassy Narrows appeal centred on the issue of what limits exist on provinces that seek to “take up” land for forestry and other purposes pursuant to the numbered treaties. Based on its interpretation of Treaty 3 and the constitutional division of powers, the Court held that the numbered treaties were with the Crown, not the federal government, and that provinces could “stand in Canada’s shoes” with respect to the fulfilment and infringement of Treaty rights.

Implications

Tsilhqot’in and Grassy Narrows are likely to significantly impact the nature and scope of protections Indigenous Peoples can expect for their constitutionally-guaranteed rights.

Increased Provincial Power

The decisions increase provincial authority to legislate in ways that could infringe the rights of Indigenous Peoples. Early decisions since Tsilhqot’in and Grassy Narrows suggest that courts are relying on the decisions as basis to affirm the expansion of provincial jurisdiction over Aboriginal and Treaty rights, and by extension, land and resource development.

The decisions are contrary to many Indigenous Peoples’ understanding that their relationship is with the Crown in right of Canada and they are entitled to look to Canada to fulfil the Crown’s obligations.

Increased Provincial Obligations

Importantly, the provinces might ultimately rue the day the Court changed the law and increased provincial authority over Aboriginal and Treaty rights.

The corollary of broadened provincial legislative jurisdiction is greater constitutional responsibility. As the Court explained in Tsilhqot’in, justifying an infringement of a section 35 right is no easy task. Except for instances where lands are being taken up, i.e. put to a visibly incompatible use, it is now arguable that the provinces must also obtain First Nation consent or justify infringements of Treaty rights.

The provinces have clear responsibility for fulfilling outstanding Treaty promises and cannot simply hide behind the federal government’s inaction. For example, there is no principled reason for the provinces to refuse to negotiate with First Nations for loss of use compensation based on outstanding Treaty land entitlements. At a minimum, the cost of enjoying the use and benefit of Crown lands should include responsibility for ensuring Treaty obligations are promptly fulfilled.

Looking Forward

In Tsilhqot’in and Grassy Narrows, the Court ignored the historical and continuing importance of Canada’s constitutional responsibilities and the promises it made to Indigenous Peoples.

For Indigenous Peoples, the decisions mean they must now deal with the prospect of provincial governments attempting to justify decisions that infringe Aboriginal and Treaty rights. For the provinces, it means fulfilling the onerous obligations imposed by the Supreme Court for decisions affecting the rights of Indigenous Peoples.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.