Interjurisdictional Immunity and Métis Aboriginal Rights: A Provincial Perspective

• Author: P. Mitch McAdam
• Pages: 259-288

259

  

Interju risd icti onal Immunit y an d Mé tis

Aboriginal Rights: A Provincial Perspective

.  

A. INTRODUCTIO N

In R. v. Powley, the Supreme Court recogniz ed for t he rst time that

contemporary Métis communities can possess Aboriginal hunting and

shing rig hts that fall within the protection of section () of the Con-

stitution Act, . In a companion case, R. v. Blais, the Court held that

Métis pe ople are not “Indians” for t he pur pose of exercising the hunt-

ing, shing , and trapping rights set out in the Natural Re sources Trans-

fer Agreements (NRTAs) applicable in the pra irie provinces, which were

conrmed by t he Constitution Act, . Although the reasoni ng of the

Court in Blais suggests that Métis people are not “Indians” for the pur-

pose of section () of the Constitution Act, , that issue was not dir-

ectly add ressed — it remains high ly contentious. It will undoubtedly be

addressed in other cases , one of which will ma ke its way to the Supreme

 e arguments set out i n this paper with respec t to interjurisdictiona l immunity

and Métis rights reect the position taken by the attorney general of Saskatchewan

in Paul v. British Columbia (Fores t Appeals Commission), []  S.C.R.  [Paul]

and in R. v. Morris, []  S.C.R .  [Morris].

 []  S.C.R.  [Powley].

 Schedule B to the Canada Act  (U.K.), , c. .

 []  S.C.R.  [Blais].

 - Ge o. V, c.  (U.K.).

 Above note  at para. . Con stitution Act,  (U.K.),  &  Vict., c. , reprinted

in R.S.C. , App. II, No. .

260 .  

Court. In this paper, I do not intend to address the broader issue concern-

ing whether Métis people are Indians for the purpose of section () of

the C onstitution Act , . Rather, I will assume that Métis people are,

constitutionally, “Indians” and will then examine the implications of the

constitutional doctrine known as interjurisd ictional immunity for on-

going provincial regulation of the exercise of Métis Aboriginal hunting

and shing rights, referring to recent developments in the jurisprudence.

It must, however, be kept in mind that the juri sprudence w ith respect

to the recognition of Métis Aboriginal rights remains in a n embryonic

state and the jurisprudence with respect to interjurisdic tional immunity

as it applies to Aboriginals is complicated. e convergence of these two

issues results in a complex constitutional conundrum.

B. WHAT IS INTERJURISDICTIO NAL IMMUNITY?

e doctr ine of interjurisdictiona l immunity is one of the most poorly

understood concepts in Ca nadian constitutional law. e basic idea can

be stated quite simply: each of the various heads of federal jur isdiction

set out in s ection  of the Constitution Act, , carries with it a basic,

minimum, and unassailable core that is o limits or immune from the

application of provincial laws that aect the federal subject-matter. e

Supreme Court recently cla ried that for the doctrine to be applicable,

the provincial law must “impair” the federal matter. e application of

the doctrine is not dependent upon the existence of a contradictory fed-

eral law.

In his textbook, Constitutional Law of Canada, Prof. Peter Hogg indi-

cates t hat the general rule is that provincia l laws apply to Indians and

lands reser ved for Indians, subject to ve important exceptions, one of

which is interjurisd ictional immunit y. He describes the doc trine in this

context as follows:

e second exception to the general r ule that provincial laws apply to

Indians and lands reser ved for the Indians is “Indiannes s”. A provincial

law that aects “an integral pa rt of primary federal jurisdiction over In-

dians and lands reserved for the Indians” wil l be inapplicable to Indians

 Canadian Wester n Bank v. Alberta,  SCC  at para.   [Canadian Western

Bank].