Métis Interjurisdictional Immunity: A Third Way to Protect Métis Constitutional Rights?

• Author: Dale Gibson
• Pages: 207-230

207

  

Métis Int erjurisdi ctional Immu nity : A Third

Way to Protect Métis Constitutional Rights?1

 

A. INTRODUCTIO N

In , Métis constitutional rights were the subject of both a monumen-

tal victory and a serious disappointment, both at the hands of the Su-

preme Court of Canada. In R. v. Powley, the Court upheld the existence

of Métis Aboriginal rights under section  of the Constitution Act, .

In R. v. Blais, on the other hand, which was argued and decided at the

same time as Powley, the Court rejected a second asserted constitutional

basis for Métis rights by holding that Métis are not entitled to the rights

guaranteed to “Indians” by the Natural Resources Transfer Agreements.

e task of this essay is to examine a third possible way in which Mé-

tis r ights might be protected: by t he somewhat obscure, but importa nt

constitutional principle known as interjurisdic tional immunity.

 is paper is a revi sed version of a presentation to the Law Commiss ion of Canada

and Métis National C ouncil National Symposium, “Crown–Mé tis Relations and

Section () of the Constitut ion Act, ,” held in Winnipeg, Man itoba, – Feb-

ruary  . Subsequent to the original presentat ion, the Supreme Court released

its decision in Canad ian Western Bank v. Alberta,  SCC  [Canadian Wester n

Bank], which aects some of the com ments I originally made about t he doctrine

of interjurisd ictional immunity. I have inser ted references to that case where

relevant.

 (),  D.L.R. (th)  (S.C.C.) [Powley].

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

 (),  D.L.R. (th)  (S.C.C.) [Blais].

208  

B. GE NERAL PRINCIPLES

Interjurisdictiona l immunity is an invisible constitutional cloa k worn by

those who fall w ithin the constitutional jurisdiction of the Pa rliament of

Canada. e cloak shields federally regulated persons, entities, and activ-

ities from provincial or loca l laws that would otherwise apply to them i f

such laws would crucially aect the aspect of their identity or activity that

is subject to federal control. To put it another way, federally regulated

persons, entities, and enterprises are said to have, to that extent, a “consti-

tutional exemption” from the provincial and local laws in question.

Earlier jurisprudence determ ined that airports, for ex ample, are im-

mune from municipal or provincial zoni ng laws that would otherw ise

aect their location or design, because t he location a nd design of air-

ports is part of the ess ence of aviation, a matter under the constitutional

jurisdiction of the federal order of government.

It is important to understand that this immunity exists in the absence

of relevant federal legislation. If Parliament has spoken on t he subject,

the applicable constitutional principle is federal paramountcy, and the

only question to be determined is whether t he provincial law is incon-

sistent w ith the federal law. Interjurisdictional immunity, by contrast,

operates even when no federal legislation has been enacted. e mere

potential law-making power of Parliament is sucient to create a consti-

tutional exemption.

 See D. Gibson, “Inter jurisdictional Im munity in Canadia n Federalism” () 

Can. Bar Rev. ; P. W. Hogg, Constitutional Law of C anada, looseleaf (Scarbor-

ough, ON: Carswell,  –) at - and -; J. Woodward, Native Law, looseleaf

(Toronto: Carswell, –) at  . In Canadian Western Bank , above note ,

Binnie and LeBe l JJ., writing for eight members of the C ourt, indicated that t he

threshold for application of t he doctrine should be “impa irment.”

  e principle is not re ciprocal. Provincial ly regulated persons, entit ies, and enter-e principle is not reciprocal . Provincially regu lated persons, entities, and enter-

prises have no equiva lent immunity from valid fede ral legislation that ae cts their

core components because the pr inciple of federal paramountcy, which d ictates

that statutes of t he Parliament of Canada tru mp inconsistent provincial stat utes,

would apply, with even greater force, i n the absence of applicable provincial le gis-

lation.

 Johannesson v. West St. Paul, []  S.C.R. .

 “e abstinence of t he Dominion Parliament from leg islating to the ful l limit of

its powers could not have the eec t of transferring to any provi ncial legislature the

legislative power which h ad been assigned to the Domin ion by s.  of the Act of