Keewatin and Inter-Jurisdictional Immunity

by reconciliationproject

I never wrote anything about the two landmark decisions from the Supreme Court of Canada last year – despite the fact I wrote several posts about each, as they were working their way up on appeal. And while I have a lot to say about each of them, I figured I’d just drop a quick note about the Keewatin, aka Grassy Narrows opinion (http://www.canlii.org/en/ca/scc/doc/2014/2014scc48/2014scc48.html?autocompleteStr=grassy%20nar&autocompletePos=1).

At the outset, I have a much rosier view of this case than most people. Right out of the gate, the decision is a clear loss for the First Nation and it completely overturned the Court’s existing caselaw on treaty rights and interjurisdictional immunity (IJI). I also should say I more or less agreed with the trial judge and thought the Ontario Court of Appeal decision was horrible. It was. Notwithstanding my views on the merits, I hoped and fully expected that the SCC would do ‘something’ about IJI in these cases.

First and foremost, and I really can’t stress this enough, the case comes in at a thin 55 paragraphs. Compare that to Delgamuukw (209 paras), Van der Peet (322 paras) or even Tsilhqotin (153 paras, but pretty brief compared to an appellate decision of 346 paras and a trial decision consisting of a whopping 1382 paras). I’m a big fan of brevity because it seems to reduce the ambiguity in what the court is holding, and more important, why.

What is IJI (besides something which vexes law students)?

It’s about jurisdiction. Under the Constitution, there are some matters which are allocated to the provinces and some to the federal government. Those matters are mostly listed in sections 91 and 92 of the Constitution Act, 1867. IJI simply means that one level of government may not legislate on a topic allocated to the other level. Of course, all these areas are inter-related – so what you learn in law school is how to figure out when a level of government is meddling in another government’s jurisdiction.

As luck would have it, “Indians, and lands reserved for the Indians” is allocated to the federal legislature. What does that mean? It means if anyone can exercise legislative power over “Indians, and Lands reserved for the Indians”, it’s the federal Parliament – and only the federal Parliament. Any exercise of provincial legislative power which is held to be about “Indians, and Lands reserved for the Indians” is an illegal exercise of legislative power.

Think of IJI like an extremely blunt instrument because that’s exactly what it is. It’s like using a steamroller to crack open walnuts. There is no room in an IJI analysis for ‘cooperative federalism’ and no give and take – laws are simply valid or invalid. Most lawyers probably thought IJI was dead, or at least on its way out, in the wake of the Lafarge banking case (http://canlii.ca/t/1rmqz). That’s because they were reading quotes like this, “ For the reasons we gave in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 SCC 22 (CanLII), released concurrently, we agree with the approach outlined by the late Chief Justice Dickson in OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC), [1987] 2 S.C.R. 2, at p. 18, in which he characterized the arguments for interjurisdictional immunity as not particularly compelling, and concluded that they ran contrary to the “dominant tide” of Canadian constitutional jurisprudence.”

Neither of these cases mentioned a treaty rights case from just a year before, called R v. Morris (http://canlii.ca/t/1q64k). That case involved the successful application of IJI to a treaty hunting case, ousting provincial legislation which interfered with that treaty right.

At the time, I was completely confused by the 2007 banking cases. They seemed to suggest that IJI was all but dead, except in treaty rights cases, maybe. Morris wasn’t overruled in those cases, in fact it wasn’t even mentioned. This bothered me for quite some time, as its difficult to see why IJI should be preserved in the context of 91(24), and not anywhere else. To be really technical about it, even the distinctions where IJI is forcefully applied – or not applied at all – within 91(24) jurisprudence was already fairly unprincipled…and confusing.

There are those who would say that 91(24) offers First Nations rights ‘protection’. Remember that 91(24) is about jurisdiction: it’s not about whether the Crown can infringe on aboriginal rights, its about ‘which Crown’ (after this case, maybe ‘which government’) can infringe such rights. Section 35 and arguably some parts of the Charter are the constitutional provisions which offer protection for aboriginal and treaty rights. While I recognize there is a pretty steep conflict of interest for a province to be responsible for exploiting the same natural resources protected by treaty (of course, there’s also pretty strong incentives to be in treaty, as well), I’m not sure why that conflict shouldn’t be managed through the protections of s. 35, rather than the jurisdictional provision of 91(24).

And indeed, that’s exactly where the SCC went in both Tsilhqot’in and in Grassy Narrows. I’m well aware its an unpopular position to take, but I really don’t have much of a problem with that. In fact, I think the SCC really did First Nations, legislatures and the Crown a major favour by going in this direction. That’s despite my own caveats about First Nations jurisdiction (still invisible, and a major problem that it is).

Whether you like them or not (and I suspect on Grassy Narrows many fall into the ‘not’ group), the Court’s decisions in Tsilhqot’in and Grassy Narrows dramatically reshape the doctrine of interjurisdictional immunity. The Court noted that the Trial Judge in Tsilhqot’in relied on the Morris case, a case which came out before the Court’s decision in the banking cases. What they left out was it came out, like, months before those cases.

At this point, I might’ve been reading someone really just raging on the Court’s…erratic findings on IJI and section 35 rights. For example, at paragraph 138, the Court pointed out, “The ambiguous state of the jurisprudence has created unpredictability. It is clear that where valid federal law interferes with an Aboriginal or treaty right, the s. 35 Sparrow framework governs the law’s applicability. It is less clear, however, that it is so where valid provincial law interferes with an Aboriginal or treaty right. The jurisprudence leaves the following questions unanswered. Does interjurisdictional immunity prevent provincial governments from ever limiting Aboriginal rights even if a particular infringement would be justified under the Sparrow framework? Is provincial interference with Aboriginal rights treated differently than treaty rights? And, are commercial Aboriginal rights treated differently than non-commercial Aboriginal rights?“ The only thing missing was the once obligatory reference to s.88 of the Indian Act (don’t get me started).

It’s pretty gutsy and its pretty extreme for the Court to reflect on its own jurisprudence in this manner. It’s also pretty welcome, for my part, because it had been becoming increasingly difficult to make sense of IJI jurisprudence.

Even more interesting, the court picked up on the point that IJI is not about whether one may infringe a right, but rather about whom may infringe. Analogizing to Charter rights, the court noted section 35 rights “are held against government — they operate to prohibit certain types of regulation which governments could otherwise impose.

These limits have nothing to do with whether something lies at the core of the federal government’s powers.” (at para 142 of the Tsilhqot’in case). I have my own minor issue about this passage, basically wondering whether section 35 also requires certain types of Crown conduct. It clearly already does, in a range of circumstances.

The Court clarified the law around s.35 and IJI in pretty dramatic fashion. The court simply held “that the doctrine of interjurisdictional immunity should not be applied in cases where lands are held under Aboriginal title.”

Instead of worrying about whether the appropriate level of government is violating the rights of aboriginal peoples, the Court seems more interested in whether those rights are actually being violated. This eliminates a pretty powerful argument which First Nations have used to successfully strike down provincial laws, but it also means provinces have a much more central role to play in fulfilling the Crown’s treaty promises. I`ll expand on that in my next post.