AuthorMcneil, Kent

    In one sense, judicial decisions are always retroactive because they apply law to factual circumstances that arose in the past. (1) In situations where common law judges need to articulate new law in relation to past circumstances, they still use this law to decide the case. They do not say, "because our courts haven't faced this legal issue before, it would be unfair to apply it retroactively to the facts of this case, but this will be the law from now on". On this approach, many just claims would simply be dismissed because judges would lack the legal tools necessary to decide them. Instead, judges declare what the law is and then apply it retroactively to the facts. (2) A classic example is the famous case of Donoghue v Stevenson, (3) in which the House of Lords extended the law of negligence and imposed tort liability on a manufacturer of ginger beer after a consumer got sick from the presence of a snail in a bottle of the beverage.

    Unlike in most court cases, when Indigenous parties go to court the factual basis for their claims often precedes the litigation by decades, if not centuries. This is partly due to the tests the courts have created for proof of Aboriginal rights. In R v Van der Peet, (4) the Supreme Court of Canada decided that the Aboriginal rights (apart from Aboriginal title) of First Nations depend on proof of practices, customs, and traditions integral to distinctive Indigenous cultures prior to contact with Europeans. (5) As this was the first time the Court provided a test for Aboriginal rights, this was newly-articulated law, and yet the Court has not hesitated to apply it retroactively to cases that, in Eastern Canada, depend on proof of Indigenous practices, customs, and traditions up to 400 years in the past. (6) Once adequate evidence of this factual basis for these rights has been presented, the Court has used the law first articulated in Van der Peet in 1996 and found that the claimed rights existed prior to enactment of section 35 of the Canadian Charter of Rights and Freedoms Constitution Act, 1982. (7) Given that the evidence and hence the basis for these rights has to relate to the period prior to first contact with Europeans, they must have existed in some form and become cognizable by the common law at the time of British acquisition of sovereignty.

    Where Aboriginal title is concerned in Canada, Indigenous claimants have to prove that they were in exclusive occupation of land--a factual matter (8)--at the time of the British Crown's assertion of sovereignty, which varies across the country. In British Columbia, the Supreme Court accepted 1846 for this purpose. (9) And yet the Court first articulated this test for Aboriginal title in 1997 in Delgamuukw v British Columbia. (10) In 2014, the Court applied this test retroactively to 1846 in Tsilhqot'in Nation v British Columbia. (11) Similarly, Native title in Australia depends on proof of Indigenous occupation of land in accordance with Indigenous law at the time the British Crown acquired sovereignty, which in the eastern half of the continent was in 1788, and yet this test for title was only established and applied in 1992 in Mabo v Queensland [No 2]. (12)

    In this article, it will be argued that, while newly articulated law usually applies retroactively, as in the Indigenous rights cases just discussed, this is not always the case. In particular, while the application of Aboriginal title law in Tsilhqofin Nation is retroactive, the Supreme Court's obiter comments on the non-application of the doctrine of interjurisdictional immunity to Aboriginal rights are not. (13) Support for this argument will rely on distinguishing three classes of cases: (1) cases of first instance in which a legal issue arises for the first time; (2) cases in which a lower court decided a legal issue, which an appeal court later characterizes in a different case as bad law; and (3) cases in which a final court of appeal decided a legal issue and then changes its mind in a later case, overruling its own precedent, as happened regarding interjurisdictional immunity in Tsilhqot'in Nation.


    Aboriginal title litigation in Canada provides an example of a legal issue coming before the judiciary for the first time. The first Aboriginal title case was Calder v British Columbia (Attorney General), (14) decided by the Supreme Court in 1973. In a much earlier case, St. Catherine's Milling and Lumber Company v The Queen, (15) the Privy Council had dealt with the issue of Aboriginal title tangentially That case involved a disagreement between Canada and the province of Ontario over which government was entitled to the benefit of lands in northwestern Ontario that were surrendered to the Crown in 1873 by Treaty 3. Lord Watson decided in favour of the province on the basis of his interpretation of the Royal Proclamation of 1763 and the British North America Act, 1867 (now the Constitution Act, 1867). (16) The Anishinaabe people who entered into the treaty were not party to the action, nor was any evidence presented of their occupation and use of the lands or of their laws. (17) The Privy Council's comments on Aboriginal title were therefore made in a factual vacuum and were not regarded as very helpful in Calder (18) in which the issue of whether Aboriginal title exists in British Columbia was finally addressed.

    In Calder, six of the seven judges who heard the appeal decided, for the first time in Canada, that Aboriginal title exists as a common law legal right. However, no declaration of the title of the Nisga'a Nation, on whose behalf the action was brought, was issued because a majority of the Court dismissed the case on a procedural technicality, namely Crown immunity from suit in the absence of permission. (19) Because Nisga'a possession of land was admitted by the Crown, the Court did not need to elaborate on what is required to prove Aboriginal title. And given the majority's dismissal of the case, the issue of the nature and content of Aboriginal title did not have to be addressed either. (20) These issues were therefore left for another day, finally to be dealt with 24 years later in the Delgamuukw case.

    In Delgamuukw, the Gitxsan and Wet'suwef en Nations claimed Aboriginal title and governance authority over their traditional territories in west-central British Columbia. The self-government claim was not dealt with by the Court, as Chief Justice of Canada Lamer said it had been advanced in overly broad terms and involved complex issues that had not been sufficiently argued before the Court (21) Nor did the Court decide the Aboriginal title issue, as there were defects in the pleadings and the trial judge had not paid sufficient respect or given adequate weight to the plaintiffs' oral histories. The case was sent back to trial, but has never been retried.

    In spite of avoiding any decision on the merits, Chief Justice Lamer chose to provide guidance for trial courts on a number of vital issues, including what is required to prove Aboriginal title, the nature and content of the title once established, the constitutional protection it enjoys, and how it can be infringed and by what legislative authority, federal or provincial.

    The Court affirmed the decision in Calder that Aboriginal title is a legal right enforceable in Canadian courts. On proof, as mentioned earlier it held that title can be established by proof that the Indigenous claimants were in exclusive occupation of land at the time of Crown assertion of sovereignty in British Columbia in 1846. If that burden of proof is met, Aboriginal title would have "crystallized" (which I take to mean, vested at common law) at that time. (22) For this conclusion to have the force of law, the Court's articulation of the requirement for proof of Aboriginal title has to be retroactive to the time of Crown assertion of sovereignty; otherwise, Indigenous claimants would never be able to establish their Aboriginal title in a Canadian court. Likewise, the Court's description of Aboriginal title as a property right that "encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures", (23) has to be retroactive to the time when the title crystalized as a legally enforceable Aboriginal right. Given the historical basis for Aboriginal title, the Court's articulation of the law regarding its proof and content would be simply unworkable if that law were not retroactive.

    Seventeen years later in Tsilhqot'in Nation, the Supreme Court applied the law laid down in Delgamuukw in relation to the proof and content of Aboriginal title and issued a declaration of title in favour of the Tsilhqot'in Nation in British Columbia. The declaration must relate back to 1846 because that is when the title would have "crystallized" and become a burden on the Crown's underlying title. (24)

    Another example can be given. In Guerin v The Queen (25) the Supreme Court decided that the Crown owes fiduciary obligations to First Nations (the Musqueam Nation in the Lower Mainland of British Columbia in this case) in the context of surrender of their reserve lands. This case broke new ground by applying fiduciary law in circumstances where it had never been applied before. (26) The events giving rise to the Crown's liability took place in the 1950s, several years before the case went to trial, but as in Donoghue v Stevenson (27) the law articulated by the Court was applied retroactively. For that to happen, the Crown's action had to be legally wrong in the 1950s, even though the government officials who were involved may not have known this. This is how the common law works. (28)

    In Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development), (29) the Supreme Court applied the...

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