In a previous blog post, we sought to give our readers an overview of the relationship between provincial laws of general application and the federal jurisdiction over “Indians and lands reserved for Indians” set out in section 91(24) of the Constitution Act, 1867. This relationship presents important and unique challenges for Indigenous Canadians, who are often subject to a particularly complicated form of jurisdictional overlap.
This post will look at a much more controversial issue: the role of provincial laws of general application in relation to the Aboriginal and Treaty Rights recognized under section 35 of the Constitution Act, 1982.
Federalism versus Aboriginal and Treaty Rights
This particular controversy stems from the Supreme Court of Canada’s landmark 2014 decision in Tsilhqot’in Nation v British Columbia, in which the Court recognized the existence of full-fledged Aboriginal title. The Court made a number of comments in reaching this conclusion, which suggest that federalism concerns, and particularly the doctrine of “interjurisdictional immunity” in favour of Canada’s exclusive jurisdiction over “Indians and lands reserved for Indians”, have no place at all in assessing the infringement of section 35 rights by provincial laws of general application.
This reading appears to have been endorsed by the Saskatchewan Court of Appeal in its 2016 decision Peter Ballantyne Cree Nation v Canada (Attorney General), a case in which federal “interjurisdictional immunity” was raised in an attempt to defeat the application of provincial limitation periods. The Court concluded that “the Supreme Court clearly and decisively dealt with the application of interjurisdictional immunity to Aboriginal rights, finding that there was no room for interjurisdictional immunity in this area”.
However, the Supreme Court’s reasoning in Tsilhqot’in may not be as straightforward as the Saskatchewan Court of Appeal appears to have believed.
Two ways forward?
A more recent decision from the British Columbia Court of Appeal takes pains to insist that federalism continues to limit the application of provincial enactments to “lands reserved for Indians”, even if this may not necessarily be the case for rights protected by section 35. In that case, McCaleb v Rose, the appellant argued that provincial enactments could no longer be excluded on the basis of federal jurisdiction over “lands reserved for Indians” following Tsilhqot’in.
The British Columbia Court of Appeal ultimately rejected the appellant’s argument, concluding that the principles applicable to “lands reserved for Indians” and section 35 rights are not the same. The Court also indicated that the Supreme Court of Canada decision in Tsilhqot’in had not intended to do away with the protection against provincial laws of general application that had typically been attached to subsection 91(24) of the Constitution Act, 1867. In its view, that decision instead consecrated two distinct ways in which provincial laws of general application are to be assessed, depending on whether the right being claimed properly belongs to the federal parliament or to an Indigenous group.
It is likely that the British Columbia Court of Appeal has not provided the last word on this tricky issue. Nonetheless, the conclusion it has presented, and the interpretation it provides on Tsilhqot’in in particular, point to two distinct paths forward for Federalism and Aboriginal and Treaty Rights jurisprudence. In many ways, it also appears to consecrate the latter set of rights as a basis for something like a third level of government, with its own distinct relationship with both federal enactments and provincial laws of general application.
For more information about federal and provincial laws and their effect on Indigenous Canadians, contact our Indigenous Law Group.