The Supreme Court decisions
- Paul Chartrand | September 17, 2014
The
reference in the title is to the two recent and much-discussed cases decided by
the Supreme Court of Canada(SCC): Roger
William (Tsilhqot’in Nation) released on 26 June, and Grassy Narrows First Nation, released on 11 July.
Tsilhqot’in was a dispute about the rights held in Canadian law by a
First Nation to its ancient homelands that now lie within the political
boundaries of the province of British Columbia. For the first time in history
the courts of Canada have recognized aboriginal title. Canada had been
subjected to United Nations criticism for its failure in this regard. That is
indeed a victory worthy of some celebration. One important point decided
concerned the degree of occupation required to prove Aboriginal title. The
court held that Title is not limited to settlement sites but extends to tracts
of land that were used regularly and over which the First Nation had effective
control at the time of assertion of British sovereignty.
It
had been argued recently in a ‘Metis’ case called Hirsekorn that Aboriginal Title could be founded on regular hunting
of bison in southern Alberta. That case was lost simply because it was not
supported by the facts of history. An attempt to argue for Metis Aboriginal
title as a result of Tsilhqot’in would
expose some of the serious challenges that flow from case law on Aboriginal
rights. I have argued that there should be only one date for proof of
Aboriginal rights including Title: the date at which allegiance to the Crown
was exchanged for protection by the Crown’s courts, the date at which the
fiduciary relationship was created. But the SCC decided in the ‘Metis’ case of Powley in 2003 that there must be two
different dates for proof of aboriginal rights, and a third date for Aboriginal
Title. The two dates are one for First Nations and one for the Metis. As a
result of this indefensible approach it would be discovered that the Metis are
able to prove Aboriginal Title at a more recent date than a First Nation in the
same region.
There
is much that needs to be rationally developed in the law relating to Aboriginal
people in Canada. The failure of the SCC to follow the traditional analytical
approach of the English common-law courts with rigour leaves ambiguity and
uncertainty in the law, and erodes the rule of law. The SCC leaves itself open
to accusations that it is acting as a policy second-guesser rather than a
court.
The
Grassy Narrows First Nation case
concerned a question about Treaty Three signed in 1873 in a region that now
covers parts of Ontario and Manitoba. In the Treaty the Ojibwe had the right to
continue to make a living on the Treaty Territory lands outside the reserves
until the lands were ‘taken up’ for public purposes by the government. Ontario
issued a licence for clear-cutting forest on Ojibwe Treaty Territory to a large
company. The question was whether according to the Treaty and the law of the
Constitution of Canada Ontario was entitled to issue the licence or whether the
approval of the federal government of Canada was also required.
The
SCC held that Ontario could issue the licence without the approval of the
federal government.
Grassy Narrows contributes to a demystification of the
idea of ‘the Crown’ in Canada. The ‘Crown’ is the symbolic term for the state
of Canada, that is, all forms of government power in Canada. We have a federal
system with a central government and provincial governments. They are all part
of ‘the Crown’ which is theoretically indivisible. Accordingly the provinces,
as Grassy Narrows points out, have authority to regulate Treaty rights subject
to the important condition that the province perform its duty to consult and
where there is an infringement of a Treaty right the provincial government must
also justify the infringement in accordance with legal tests that were
previously established by the SCC.
Much
more could be written about these cases but it is hard to do so in this space
and without the use of legal jargon. There is reason to consider these cases as
victories for Aboriginal people. There are also many reasons to be very
cautious about decisions of the courts, which are after all but one branch of
the government (‘the Crown’) that imposes Canadian law and subjugates First
Nations law. The Tsilhqot’in case
started in 1983 along with some attempts at negotiations. It cost a lot of
money. Political action including negotiations is always an alternative to be
seriously considered.