The Métis and the Doctrine of Interjurisdictional Immunity: A Commentary
| Author | Kent McNeil |
| Pages | 289-322 |
289
The Méti s an d th e Doct rine of
Interjurisdictional Immunity: A Commentary
Dale Gibson, Mitch McAdam, and Albert Peeling correctly conclude that
the issue of the application of the doctrine of interjurisdictional immun-
ity to the Métis a rises only if the Métis are under exclusive federal jur is-
diction a s “Indians” w ithin the meaning of that term i n section ()
of the Constitution Act, . I th ink the Métis are so i ncluded for the
reasons that A lbert Peeling and others have al ready explai ned, a nd so I
will proceed on that assumption.
(U.K.), & Vict., c. . Section () gives the Pa rliament of Canada exclusive
jurisdict ion over “Indians, and Lands res erved for the Indians.”
In R. v. Blais, [] S.C.R. [Blais], the Supreme Court explicitly le t he s.
() issue open when it decided that the Mét is are not “Indians” for the purp oses
of the Natural Resources Transfer Agre ements, Schedules – of the Constitution
Act, (U.K.), & Geo. V, c. (for recent commentary on these Agree -
ments, see the ar ticles in () Rev. Const. Stud.). However, the provisions
in those Agreement s relating to “Indians” were speci cally intended to protect
rights set out in t he Indian treaties that were t hought to cover the whole of the
prairie provinc es. As the Métis were generally not i ncluded in the treaties, it is not
surprising t hat their rights were not included in t he Agreements. See also Love lace
v. Ontario, [] S.C.R. at paras. – [Lovelace]. ere, the Cour t ad-
dressed an ar gument that a casino revenue-sha ring arrangement between Fi rst
Nations and Ontario v iolated s. () because it “undermined the ‘Ind ianness’ or
aborigina lity of non-status and Métis abor iginal communities” (pa ra. ). Justice
Iacobucci, for the Cour t, held that “there is nothing i n the casino program ae ct-
ing the core of the s. () federal ju risdiction” because the “provi nce has done
nothing to impai r the status or capacity of t he appellants as aborigina l peoples.
290
e application of the doctrine of interjurisdictional immunity to the
Métis is a mat ter of great i mportance. As pointed out by Gibson, Mc-
Adam, and Peeling, provincial laws are not made applicable to the Métis
by sec tion of the Indian Act because they do not come w ithin that
statute’s denition of “Indi an.” To the ex tent, therefore, t hat t he inter-
jurisdictional immunity doct rine encompasses them, the Métis should
receive more protection from it than status Indians who have been sub-
jected by section to provincial laws that would not otherw ise apply to
them.
erefore, I d isagree with Dale Gibson on the signicance of inter-
jurisdictional immun ity for the Métis. He states that, even if he is wrong
about the Métis being within sect ion (), it may not make much dif-
ference “in practical terms” because “Métis Aborig inal rights under s.
of the Constitution Act, provide a cloak of constitutional immunity
where Aboriginal rig hts are involved that is as eective as that provided
by interjurisdictional immunity.” While Gibson is correct that section
provides protection against federal as well as provincial legislation and
so is more comprehensive than interjurisdictional immunity in that re-
gard, section may provide signicantly less protection aga inst provin-
cial inf ringement of Mét is rights than section (). e rea son is that
the Supreme Court has said, in a number of cas es, that section rights
can be infringed for a wide range of legislative objectives by both the fed-
eral and provincial governments. In contrast to this, in situations where
Furthermore, i n Pamajewon, [R. v. Pamaj ewon, [] S.C.R. ], this Cour t
found that gamblin g, or the regulation of gambli ng activities, is not an ab original
right. Consequent ly, this casino program ca nnot have the eect of violating t he
rights ar med by s. () of the Constitut ion Act, , and does not approach the
core of aborigina lity” (para. ). e Court d id not address the issue of whether
the Métis come wit hin s. ().
R.S.C. , c. I-, ss. and –.
See R. v. Dick, [] S.C.R. [Dick], where the Supreme Court held that those
provincial laws of general application that would not apply to status Indians of
their own force becaus e they aect “Indian ness” are referentially incor porated into
federal law by s. . For discussion, see Kerry Wilkins, “‘Still Crazy aer All ese
Years’: Section of the Indian Act at Fiy” () Alta. L. Rev. ; Kent McNeil,
“Aboriginal Title and Sec tion of the Indian Act” () U.B.C. L. Rev. .
Schedu le B to the Canada Act (U.K.), , c. .
See R. v. Sparrow, [] S.C.R. [Sparrow]; R. v. Gladstone, [] S.C.R.
[Gladstone]; R. v. Côté, [] S.C.R. [Côté]; Delgamuukw v. British Columbia,
291
the doctrine of inter-jurisdictional immunity applies, the protection it
provides against provincial laws appears to be absolute: that protection
arises from the constitutional division of powers, rather than from the
constitutional recognition and armation of Aborig inal rights. As Al-
bert Peeling concludes, “[p]rovincial laws that interfere with the exercise
by Métis people of these rights must be either inval id or inapplicable to
Métis people [due to s. ()] and are in that sense unconstitutional and
may not be justied under section of the Constitution Act, .”
But I am getting ahead of myself. Let me go back and consider t he
doctrine of interjuris dictional immunity, and then return to its applica-
tion to Aboriginal peoples, including the Métis.
A. THE DOCTRINE OF INTER JURISDICTIONAL IMMUNITY
e three presenters whose work I am commenting on correctly explai n
the doctrine and its general application. ere is no need for me to repeat
what they say. However, while Gibson and Peeling regard the doctrine as
providing t he core of federal heads of power w ith complete protection
against provincial laws, McAdam advocates for a more uid application
of the doctrine. Taking an explicitly provincial perspective that would
extend provincial authority, he argues against applying interjurisdic-
tional i mmunity in an a ll-or-nothing way so that “[a]nythi ng that fal ls
on the federal side of the fence is o limits to the application of provincial
laws, without exception.” He writes:
According to this char acterization of the doctrine, there is no consider-
ation of t he eect of t he provincial law. In my opinion, the doctrine is
too stark. It precludes an exami nation of the purpose of the provincial
law, its real or pr actical eect on the federal matter, and how t he two
legislative schemes p otentially t together. is is at odds with modern
[] S.C.R. [Delgamuukw]. Provincial power to infringe s . rights will be
questioned later: see tex t following note , below in this chapter.
e Supreme Court ha s held that those rights are not absolute, a s they have to
be reconciled wit h Crown sovereignty: see R. v. Van der Peet, [] S.C.R.
[Van der Peet] and the cases cited in the prev ious note. For conrmation that t he
division of powers provides g reater protection to Aborigina l peoples than s. of
the Constitutio n Act, , see R. v. Morris, [] S.C.R. at para. [Morr is].
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