Aboriginal Title, Self-Government, and Indigenous Jurisdiction in Canadian Law.

• Author: Beaton, Ryan

0. Introduction

   This article considers inherent Indigenous jurisdiction in the Canadian constitution in light of recent developments in Aboriginal law. Particular attention is paid to the doctrine of Aboriginal title and the relationship between title and Indigenous self-government or jurisdiction. From Calder (1973) (1) through Guerin (1984), (2) Delgamuukw (1997), (3) Haida Nation (2004), (4) and Tsilhqot'in (2014), (5) the Supreme Court of Canada has steadily built a foundation for recognizing Indigenous sovereignty and jurisdiction as a component of Canadian federalism. However, the Court has yet to clear up confusion surrounding the legal effect of the doctrine of discovery in Canadian law, to state unambiguously that Indigenous jurisdiction is a feature of Aboriginal title, to comment substantively on the right of self-government as a section 35 right, or to offer a clear constitutional vision of the place of Indigenous jurisdiction within Canadian federalism. Drawing on recent trends in the case law, including the Quebec Court of Appeal's recent recognition of an inherent right of self-government, (6) this article explains how Canadian law can develop a clearer framework for the relationship between Indigenous and state legal authority through post-Tsilhqot'in doctrines of self-government and Aboriginal title.

   The doctrine of Aboriginal title, and its relationship to the right of self-government, is central to the development of Canadian Aboriginal law. It will determine, to an extent, whether that law can meaningfully respond to Indigenous claims to jurisdiction and facilitate the development of a constitutional order that enjoys broad legitimacy. Since the Pamajewon (7) decision, Indigenous peoples have rarely asserted rights of self-government in the courts. The reason is plain enough: the test established in Pamajewon for establishing a right of self-government is so restrictive that it cannot be met. (8) As a result, what are in effect jurisdictional claims that is, claims to authority to control the use and allocation of lands and resources have been dealt with through a limited rights-framework that provides for use of resources but not meaningful decision-making authority in relation to them. This, as discussed in section two, has exposed several fault lines and limitations in the doctrine. It has also given rise to an untenable discrepancy in which Canadian governments recognize the inherent right of self-government (such recognition has been federal policy since 1995), while judicial doctrine effectively precludes recognition of such a right in specific instances. (9) The Quebec Court of Appeal's recent decision in Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Metis children, youth and families (10) is a notable development that may introduce an era in which the doctrine can more ably meditate Crown-Indigenous conflicts. The QCCA recognized that section 35 protects an inherent right of self-government in relation to the provision and regulation of child and family services. (11) In doing so, the QCCA stepped around Pamajewon, eschewing its restrictive test and emphasizing "cultural continuity and survival." (12) The reasoning, should it be upheld by the Supreme Court, could make similar self-government claims possible.

   But the limits of the decision show why a jurisdictional conception of Aboriginal title-or recognition of Indigenous territorial jurisdiction-remains central to the development of a section 35 doctrine that seeks to meaningfully "recognize the prior occupation of Canada by Aboriginal societies." (13) The QCCA decision applies only to the regulation of child and family services. The Court understood such regulation as central to Indigenous cultural continuity and survival. We can imagine this analysis being extended on a case-by-case basis to other issues that trigger this key cultural component such as language, education, and health. Divorced from a broader base of territorial jurisdiction, however, two issues arise. First, governance over some of these subject matters may be dependent on access to lands and resources. Language, for example, can be tied to specific locations and resources. Spiritual practices, in particular, may be associated with specific places. (14) Perhaps more importantly, "cultural" issues are, in relative terms, easy and uncontroversial to deal with. Most Crown-Indigenous litigation is about control of lands and resources. Thus, while the QCCA decision is meaningful, even if upheld there remains a need to articulate a coherent account of territorial jurisdiction under section 35 and how such jurisdiction impacts the constitutional framework. A jurisdictional conception of Aboriginal title can help develop the doctrine along these lines.

   Section one explores the issue of Indigenous jurisdiction in light of the ambiguity that has developed at the heart of Canadian Aboriginal law and that rose clearly to the surface in Tsilhqot'in: the Court's explicit rejection of the doctrine of terra nullius yet simultaneous affirmation of the Crown's acquisition of sovereignty and underlying title to Canadian territory through the simple assertion of sovereignty. (15) As we discuss, this ambiguity-what we call the Marshall ambiguity-can be traced to the common law's earliest considerations of Aboriginal rights. The Marshall ambiguity produces a related tension in Tsilhqot'in: the Court's uncertain recognition of Indigenous jurisdiction as a component of Aboriginal title (what the Court labels the Aboriginal title-holders' "right to pro-actively use and manage the land" (16)) alongside the Court's worry that "legislative vacuums" might arise if provincial laws do not apply to Aboriginal title land. (17) This worry, in part, led the Court to recognize provincial power to infringe section 35 rights and minimize the role of the doctrine of interjurisdictional immunity where Aboriginal title is concerned. The rules of federalism, in other words, were adapted in light of jurisdictional concerns, though without explicit consideration of Indigenous jurisdiction or the coordination of that jurisdiction with that of the federal and provincial governments. The reticence to engage these issues explicitly relates to the court's interpretation of Crown sovereignty and their own role in relation to Crown power.

   Section two argues that the Marshall ambiguity, though it takes a particular form in the Aboriginal title context, ripples across all major issues of Aboriginal law. In essence, the ambiguity springs from a disconnect between the boldness of the Court in stating broad principles and its caution or indecision in drawing doctrinal conclusions in line with those principles. The Court has spoken, for instance, of the need "to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty" (18)--a task that cries out for a doctrinal framework to structure the negotiated coordination of Indigenous, federal, and provincial jurisdictions. Yet the Court has said almost nothing about Indigenous jurisdiction and its relation to federal and provincial jurisdictions. Again, this stems in part from judicial deference to Crown sovereign claims and an unwillingness to discuss s.35 rights in jurisdictional language. As exemplified in Tsilhqot 'in, however, the Court's reticence has contributed to a vacuum of (or confusion about the source of) legal authority. The absence of any doctrinal framework for assessing the interrelation of Indigenous with federal and provincial jurisdictions is thus one cause of the extensive litigation surrounding many economic development projects, e.g. pipeline expansion projects like Enbridge's Northern Gateway and TransMountain. Similarly, treaty rights have been interpreted as devoid of jurisdictional content (aside from internal allocation) and the meaning of the "Indigenous perspective" in treaty interpretation has only begun to be imagined as having legal content. Developments in each of these areas are considered in section two as examples of the importance of judicial consideration of the jurisdictional character of Indigenous claims.

   Section three considers paths forward, returning our focus to Aboriginal title while also highlighting the broader relevance of addressing the core ambiguity of Canadian Aboriginal law. We underscore the value of clearly recognizing Indigenous jurisdiction and acknowledging that the Crown assertion of sovereignty is, on its own, an insufficient legal basis for entirely subsuming pre-existing Indigenous jurisdiction under federal and provincial jurisdictions. Such acknowledgment does not require Canadian courts to reject Crown assertions of sovereignty; rather, it requires them to treat assertions of Crown sovereignty over Indigenous territory as raising questions of coordinating jurisdictions. In addressing questions of coordination, the courts will have to evaluate the scope and source of the Crown's assertions, whether made on the basis of treaty relationships, sovereign incompatibility, or some other ground raised by the Crown. Such an approach would, we argue, provide a much-needed shifting of burdens of proof and justification in Aboriginal title cases. Doing so would also align Aboriginal title doctrine with the QCCA's reference decision on self-government, acknowledging title as a generic right with jurisdictional aspects that are central to particular Indigenous peoples' social, cultural, and political integrity and, indeed, their existence and survival as a people. This section identifies five specific clarifications of Aboriginal title doctrine that could facilitate this process. In closing section three, we provide a concrete example of how courts might navigate Aboriginal title issues where Indigenous jurisdiction is explicitly recognized and argue that Canada's commitment to implementing UNDRIP (19) also supports the proposals...