Stepping into Canada's shoes: Tsilhqot'in, Grassy Narrows and the division of powers.

• Author: McIvor, Bruce

1. INTRODUCTION

   The Tsilhqot'in and Grassy Narrows decisions represent an about-face in the Supreme Court's approach to the constitutional division of powers. (1) Prior to 2014, the Court consistently confirmed the continuing relevance and importance of the doctrine of interjurisdictional immunity in regards to section 91(24) of the Constitution Act, 1867 and the federal Crown's responsibilities with respect to Aboriginal and treaty rights. (2) In Tsilhqot'in and Grassy Narrows the 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 Court held that it is now open to provinces to consult and attempt to justify infringements of those rights pursuant to the Sparrow/Badger analysis. The potential ramifications of the Court's departure from established case law are considerable. The decisions call into question the Court's approach to the division of powers by reducing an established aspect of constitutional protection formerly guaranteed to Indigenous Peoples. As a result, provinces now have significantly expanded jurisdiction to make decisions which impact Aboriginal and treaty rights.

   This paper provides an analysis of the current state of the law on the division of powers as it relates to the protection of Aboriginal and treaty rights. Part One outlines the law in respect of section 91(24) and the operation of the doctrine of interjurisdictional immunity prior to 2014. Part Two provides an overview of Tsilhqot'in and Grassy Narrows, with a focus on the division of powers in relation to federal authority pursuant to section 91(24). Part Three analyzes the implications of the province's significantly expanded jurisdiction since Tsilhqot'in and Grassy Narrows to infringe Aboriginal and treaty rights.

2. DIVISION OF POWERS PRIOR TO TSILHQOT'lN AND GRASSY NARROWS

   Prior to the Supreme Court's 2014 decisions in Tsilhqot'in and Grassy Narrows a well-established body of case law confirmed the Court's long-standing approach to the constitutional division of powers and in particular federal responsibility for the protection of Aboriginal and treaty rights. The law was relatively settled--Canada bore exclusive responsibility for regulating Aboriginal and treaty rights pursuant to section 91(24) and the doctrine of interjurisdictional immunity operated to protect the federal government's exclusive role from provincial interference.

   1. Exclusive Federal Jurisdiction pursuant to Section 91(24)

      The federal government's exclusive role pursuant to section 91(24) to protect and regulate Aboriginal and treaty rights has deep roots in Canada's constitutional history and the federal Crown's unique relationship with Indigenous Peoples which predates confederation. Since the fall of New France, the British preferred to employ a single, uniform 'national' policy on issues related to Indigenous Peoples. The British had long believed that local non-Aboriginal legislative assemblies were adverse to Indigenous Peoples' interests and that 'settler majorities' in provincial legislatures would be tempted to run roughshod over Aboriginal rights and encroach on established reserves/ In its 1837 Report of the Select Committee on Aborigines (British Settlements) the English House of Commons reiterated the potential problem:

      The protection of the Aborigines should be considered a duty particularly belonging and appropriate to the executive government, as administered either in this country or by the governors of the respective colonies. This is not a trust which could conveniently be confided to the local legislatures. In proportion as those bodies are qualified for the right discharge of their proper functions, they will be unfit for the performance of this office. For a local legislature, if properly constituted, should partake largely in the interests, and represent the feelings or the settled opinions of the great mass of the people for whom they act. But the settlers in almost every colony, having either disputes to adjust with the native tribes, or claims to urge against them, the representative body is virtually a party, and therefore ought not to be the judge in such controversies.... Whatever may be the legislative system in any colony, we therefore advise that, as far as possible, the Aborigines be withdrawn from its control. (4) These concerns became central to the underlying structure of Canada's Constitution. As Peter Hogg explains, one of the driving rationales for Parliament's constitutional responsibility for Indigenous Peoples was "concern for the protection of the [A]boriginal peoples against local settlers." (5) By virtue of section 91(24), "the federal government was placed between First Nations and future settlers" (6) to ensure the protection of Indigenous interests from encroaching local populations. At the time of the enactment of the Constitution Act, 1867, the "distinct constitutional status" of Indigenous Peoples was recognized through section 91(24), which provided the federal government with exclusive jurisdiction in respect of "Indians, and lands reserved for the Indians." (7) The newly-formed Constitution guaranteed "political spaces to the founding cultural groups" of the Canadian state, including Indigenous Peoples, and in so doing "sought to respect to the right to culture difference" between those respective groups." (8)

      More recently, the Supreme Court in Reference re Secession of Quebec emphasized the connection between section 91(24) and the relationship between Indigenous Peoples and the federal Crown. The Court noted that a constitution should "ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority." (9) The federal government's responsibility to protect the rights of Indigenous Peoples, including the "special commitments made to them by successive governments" was therefore reflective of "an important underlying constitutional value" in Canadian society. (10)

      Up until Tsilhqot'in and Grassy Narrows in 2014, the Supreme Court continued to confirm that in the modern context federal exclusivity pursuant to section 91(24) was justified because of the "special position of [A]boriginal peoples in Canadian society". (11) For example, the Court in Derrickson held that provisions of the British Columbia Family Relations Act on the division of family property were inapplicable to reserve lands because "[t]he right to possession of lands on an Indian reserve is manifestly of the very essence of the federal exclusive legislative power under s. 91(24)".12 Similarly, in Paul the Supreme Court held that provincial family law could not govern the disposition of matrimonial homes on reserve. (13) In each case, the Court concluded that matters which were "absolutely indispensable and essential" to the cultural survival of Indigenous Peoples fell within the federal government's exclusive jurisdiction pursuant to the division of powers. (14)

      The federal Crown's responsibilities pursuant to section 91(24) are far from a vestige from an earlier time in Canada's colonial history. Rather, prior to 2014, courts and scholars alike recognized exclusive federal jurisdiction to regulate Aboriginal and treaty rights as a central tenet of Canada's constitutional obligations based on the federal Crown's unique history and continued relationship with Indigenous Peoples. In Tsilhqot'in and Grassy Narrows the Court abruptly abandoned this understanding and in so doing disregarded the historical and current importance of the federal Crown's constitutional responsibilities pursuant to section 91(24).

      Notably, post-2014, the Supreme Court has emphasized a different underlying purpose to section 91(24). In 2016, the Court in Daniels described section 91(24) as central to colonization and the control of Indigenous Peoples. (15) As the Court explained, assigning the Crown's law-making authority to the federal government facilitated Canada's westward expansion, including the development of policies intended to prevent Indigenous Peoples from resisting settlement of their lands. (16) The Court's emphasis on section 91 (24)'s role in facilitating westward expansion and federal authority over Indigenous Peoples is a departure from the Court's previous focus on the importance of section 91(24) in respect of protecting vulnerable minorities from the pressures of settler society.

   2. Ongoing Relevance of Interjurisdictional Immunity

      Up to 2014, the federal government's exclusive responsibility with respect to Aboriginal and treaty rights pursuant to section 91(24) was protected through the constitutional doctrine of interjurisdictional immunity, along with other constitutional doctrines such as paramountcy. Part of the division of powers, the doctrine of interjurisdictional immunity holds that there exists a "basic, minimum and unassailable content" for classes of subjects or heads of power under sections 91 and 92 that is immune from the application of the other level of government's legislation because they constitute an integral and vital part of either level of government's legislative authority. (17) As such, if the incidental effects of valid legislation of one level of government result in an unacceptable interference with the core competence of an area within the exclusive jurisdiction of the other level of government, based on the doctrine of interjurisdictional immunity, the legislation is inapplicable to the extent of the interference. (18)

      While the doctrine of interjurisdictional immunity has been the subject of criticism, in recent years the Supreme Court repeatedly recognized it as a necessary tool to preserve the intention of the framers of the Constitution that as between the federal government and the provinces, certain legislative powers are exclusive...