Is Indigenous governance constitutional law?

Kitwanga, ca. 1899, Canadian Museum of History

Before the CoVID19 pandemic seized control of our daily diet of news, Canada was wrestling with blockades of railroads, pipeline projects and ports. These blockades were fueled by a debate over Indigenous sovereignty and questions abounded about who needed to be consulted – the traditional chiefs or the elected band chiefs. With CoVID19, these issues seem to have vanished from our consciousness. But the underlying issue has not gone away.

Indeed, during the pandemic, Indigenous sovereignty and governance is being exercised in often very direct ways. For instance, due to the threat from the coronavirus, the governments of the Haida, the Heiltsuk Nation, and Ahousaht First Nation have issued orders that forbid travel from others into their territories. Interestingly, most people are respecting these orders, including the Province of British Columbia.

This flexing of Indigenous jurisdictional muscle, whether it be in relation to mega-projects being built over their lands or in respect of orders issued against non-member travel during the pandemic, begs constitutional questions. But how do Indigenous jurisdiction and Indigenous governance fit into the Canadian constitutional puzzle?

Canadian constitutional law has many components. These components include:

  • a division of powers between the federal and provincial orders of government dating from Constitution Act, 1867 (previously the British North America Act) ;
  • the “unwritten” constitution inherited from the United Kingdom that regulates Canada’s system of parliamentary democracy;
  • a Charter of Rights and Freedoms enacted as part of the Constitution Act, 1982 and which placed constitutional limits to the bounds of State power when intruding into areas of certain areas of human autonomy and dignity; and
  • a constitutional amending formula, also adopted in 1982.

Missing from this list is the matter of Indigenous governance and jurisdiction. Under s. 91(24) of the Constitution Act, 1867, “Indians and Lands reserved for the Indians” was one of the matters exclusively reserved for the federal government and Parliament. But that did not really deal with the matter of Indigenous sovereignty and thus, Indigenous governance and jurisdiction. For that, we need to turn to section 35 of the Constitution Act, 1982. The first paragraph of section 35 simply states:

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Notwithstanding its simplicity and brevity, section 35(1) has become one of the most important constitutional provisions for Indigenous rights. It has been used in relation to hunting and fishing rights, in relation to rights to take and exploit timber, and importantly to protect claims of aboriginal ownership to lands. But now, it may well be a key constitutional component for the protection and recognition of Indigenous governance and Indigenous law-making jurisdiction.

Indigenous nations have always asserted that, at no time, did they cede their right to govern themselves and their lands. And indeed, a number of judicial decisions seem to have recognized that this right to govern themselves existed and that it existed long before any constitutional amendment in 1982. But the federation of Canada has acted for over a century and a half as if the only constitutional actors that counted were the federal parliament and government and the provincial and territorial legislatures and governments.

If an aboriginal right extends to an Indigenous people to hold aboriginal title to their ancestral lands and that aboriginal right is protected by section 35, then it is logical that their ancestral right to administer those lands and themselves as an aboriginal people is also protected by section 35. Indigenous nations are now using this logic and turning to section 35 to give constitutional teeth to a right that they have long exercised and maintained: a right to govern themselves and their lands.

But the constitutional inquiry into Indigenous governance does not stop there. The existence of an aboriginal right of governance, constitutionally protected and recognized by section 35, begs the next question, namely, how to “fit” Indigenous jurisdiction and governance into the Canada constitutional framework. In essence, section 35 recognized and affirmed a third order of government within or juxtaposed to the Canadian federation. Not only are there provincial and federal governments and legislatures but there are also indigenous governments and law-making institutions and, it is submitted that these have been implicitly “recognized and affirmed” by section 35 of the Constitution Act, 1982.

Thus, Indigenous governance truly is a branch of constitutional law. How Indigenous peoples “constitute” themselves, how they govern themselves, their institutions and their lands and those within their lands is a matter of constitutional law. How Indigenous governments, institutions and laws interact or fit within or adjacent to federal and provincial governments, legislatures and laws may be one of the most significant, unsettled constitutional law issues facing Canada today.

While section 35 does not provide explicit answers to questions as to how this all fits together, it does provide the express constitutional link from the Canadian federation and its Constitution to the self-governing Indigenous nations within Canada. And it is incumbent on all actors within Canada to be conscious of these questions and to seek constructive responses within the concept of reconciliation.

For more information about these important constitutional issues, please contact Arthur Grant at agrant@gkn.ca.

I remain

Constitutionally yours,

Arthur Grant

Coronavirus – as viewed by Constitutionally Canadian

pins-4970293_1280

Image by Thanasis Papazacharias from Pixabay

The coronavirus crisis in Canada

Like so many other countries around the world, Canada has been rocked by the coronavirus or more specifically CoVID19 virus. Only a short time ago, Canadians thought that this virus was a problem that affected other countries, not ours. That perception is long gone.

We are now under a state of emergency. By and large, we work from home – if we can work at all. We practise “social distancing”, a phrase that most of us had never heard back in February of this year. The provinces and territories have issued public health orders, restricting our movement, our social interactions, our businesses, our way of life. The federal government has limited the ability of people to enter and leave the country. Massive spending programs, the likes of which we have not seen since the last World War, are being unleashed. Unemployment greater than anything experienced since the Great Depression is expected.

All of these changes have occurred in weeks, sometimes days, and huge pressures have been exerted on our federation, on our democracy, on our governance. Our constitutional framework is being tested and we have only just begun. Here are some of the constitutional issues that I think are coming to the fore as a result of the coronavirus outbreak:

Charter of Rights issues

The orders of the different orders of governments clearly are having an effect on the mobility rights of Canadians and the permanent residents of Canada. Prior to the coronavirus outbreak, the ability to enter or leave Canada was the unquestioned right of a Canadian citizen, protected by s. 6 of the Charter. Now that right is subjected to significant restrictions, of a level and nature not normally seen in peacetime.

Not only is the right to enter and leave the country being affected, but so too is the right to travel between provinces. While the restrictions on this right (also protected by s. 6) are less dramatic or pronounced, they do exist and some provinces, including my own, British Columbia, are actively advocating that residents of other provinces do not come across our provincial borders.

Intra-provincial mobility is being restricted in different provinces. This right to move freely that descended from the rights of freemen to move without restrictions from the nobility is being clamped down now in an attempt to limit the spread of the contagion. Constitutional protection of this right is now found in s. 7 of the Charter. 

Mobility rights are not the only rights being affected. Many of the fundamental freedoms are directly impacted by the measures. Today is Passover, a sacred Jewish holiday. This weekend is Easter, one of the most celebrated Christian holidays. Earlier last month was Nowruz, a Persian religious holiday. All of these religious holidays are normally celebrated collectively. Under the public health orders, such collective gatherings are banned. Accordingly, the fundamental freedoms of religion, association and peaceful assembly are affected.

In all of these instances, the question must be posed whether the measures adopted to combat the coronavirus outbreak are proportionate and justifiable given the limits they impose on such constitutional rights and freedoms.

Canadian federalism

Just a few months ago, the Canadian federation was being rocked by protests, with railways and ports being shut down. The provinces were blaming each other and the federal government. Indigenous nations were seeking a meaningful voice.  The coronavirus has changed the focus.

Today, we are witnessing huge investments in time, money and human resources in fighting the coronavirus, limiting its spread, “flattening the curve”, understanding it, and developing a vaccine or treatment for it. As well, gigantic plans are being created for supporting the Canadian population when so many are out of work and for bringing our economy back to life after the virus is brought under control.

Although these are early days, the provinces and the federal government appear to be working together. Things are just being done. Legal frameworks are being erected quickly. The normal care regarding constitutional jurisdiction is, most likely, not being exerted. As we progress through what will likely be months of battle against this virus, the question will be whether jurisdictional limits have been exceeded. It will also be whether this apparent exercise in cooperative federalism will continue and whether it may serve to shape future constitutional debates.

Another issue that will have to be resurrected will be whether the Indigenous Nations of Canada have been overlooked. That whole issue of Indigenous jurisdiction and Indigenous law which was at the forefront of our political and constitutional debate back in January has not gone away. But it would seem that the niceties of that debate have been pushed to the side as the federal, provincial and territorial governments deal with the immediacy of the crisis. So, how will we return to deal with that issue in the aftermath of CoVID19?

Parliamentary democracy

Just this Monday, Prime Minister Trudeau announced that the government was actively looking at whether Parliament could sit virtually.  If a virtual Parliament came to fruition, that could be a fundamental constitutional development and one that might survive the coronavirus outbreak.

There are already critics of such a proposal.  Adam Wherry wrote an op-ed today in which he suggested that Parliament requires that the members get to know each other, work together and interact with each other. He has good points. That being said, a virtual Parliament may make it easier for parliamentarians of the more remote or distant parts of the country to maintain better contact with their constituents and yet still participate in the parliamentary debates and committees.

I suspect that there would need to be a number of small “c” constitutional amendments in order to make this virtual Parliament a true and lasting reality. But it should be explored and not just for this crisis.

I hope to revisit these and other constitutional issues being raised by the coronavirus over the next few weeks. I invite you to reach out to me by commenting on this post, to suggest topics for discussion, and to provide alternate perspectives.

I remain

Constitutionally yours

Arthur Grant

Post script

It has been almost two years since I did my last blog post. I had just been recovering from significant surgery (bilateral hip replacement) and I was focused on that. As well, my work levels exploded, a happy situation I suppose.

I can report that, not only did I recover from my hip surgery but I exceeded everyone’s expectations, including my own. I returned to my passion, rowing, and competed both in 2018 and 2019. If the coronavirus permits, I will be rowing and competing again this year and for as long into the future as my health and circumstances permit.

Work is still busy but I think that I have found ways to tame it.  I have some great people working with me and they make it all possible.

So the long and short of it all is that I hope to be doing a lot more of Constitutionally Canadian. You will probably find that I will be making more of an emphasis on the issue of Indigenous jurisdiction, Indigenous governance and Indigenous laws. I think that these present some of the biggest constitutional issues that our country will face and I aspire to make a contribution towards an understanding of them and, with luck, towards a resolution and lasting reconciliation.

AG

The Supremes keep the lid on the keg – the beer still does not flow freely in Canada – R. v. Comeau, 2018 SCC 15

 

drink-beer.jpgOn April 19, 2018, in R. v. Comeau, 2018 SCC 15,  the Supreme Court of Canada ruled that New Brunswick was within its rights to control the flow of beer across its provincial borders: unrestrained interprovincial free trade in Canada (at least for beer) is still a pipedream. But imbedded in the Court’s judgment were seeds that, properly fertilized and irrigated, may well grow into a more robust protection of economic union.

Mr. Comeau had decided that he wanted to bring some cheaper Quebec beer and other alcohol across the Québec/New Brunswick border. The police in New Brunswick were lying in wait for him and charged him with a violation of the New Brunswick Liquor Control Act. At trial, he challenged the constitutionality of s. 134(b) of the Liquor Control Act, arguing that it contravened s. 121 of the Constitution Act, 1867.

Continue reading

Alberta retaliates against BC: this ain’t how to act in a federation….

The Fraser River

Two NDP premiers and two NDP governments. Two provinces side by side in the Canadian west, one – the Far West, Lotusland British Columbia. The other – just “the West”, rough and tumble oil baron Alberta. Alberta is landlocked. It needs to get its oil…. sorry, let’s be accurate here, its bitumen to markets other than the United States (currently, the world’s biggest producer of petroleum). In particular, Alberta wants access to markets where they will pay more money for its bitumen, extracted from its oil sands. British Columbia is a land of milk and honey – okay, let’s be accurate, it’s a land of mountains, rivers and fjords. British Columbians are highly protective of their environment, the ruggedness of which is only surpassed by the fragility of the eco-systems that populate it. Enter the Trans Mountain Pipeline Expansion (“TMX”).

The feds approved a massive expansion of the existing Trans Mountain pipeline that takes diluted bitumen from Alberta through British Columbia to a terminal located in Burrard Inlet that is part of Metro-Vancouver. Once built, this will mean a huge increase in freighter traffic in and out of Vancouver’s ports. The TMX will result in increased risk of bitumen spills in the port, in the Salish Sea, in the Fraser River and its estuary and all along the route of the pipeline. In short, it will dramatically boost Alberta’s access to world markets for its bitumen but it will equally raise the risk to likely do incalculable damage to British Columbia’s rivers, lands and coastlines.

Continue reading

BC’s threat to limit increased flow of bitumen and Alberta’s threat to see BC in court: a constitutional showdown

pexels-photo-785324.jpeg

Last year, the federal government announced that it was approving the twinning of the TransMountain pipeline which, once constructed and initialized, would increase multifold the volume of Alberta’s oil sand bitumen that could be shipped out of Vancouver’s Burrard Inlet. The new NDP government in British Columbia announced on January 30, 2018 that it was considering regulations to limit any increase in diluted bitumen that could be shipped through British Columbia. This announcement was met almost immediately by a warning from a stern Alberta Premier Rachel Notley that BC was acting unconstitutionally and that it was purporting to exercise powers it did not have. The constitutional battle lines are being quickly drawn. (See the news report from CBC News from that date for a quick review of what was said by the various parties).

Continue reading

In Ontario, patients’ rights trump physicians’ rights when dealing with medical assistance in dying

doctor-medical-medicine-health-42273.jpeg
Another chapter in the continuing saga of medical assistance in dying (“MAID”) was completed on January 31, 2018 when the Divisional Court of the Ontario Superior Court of Justice ruled on the constitutionality of the “Effective Referral Provisions” of the Human Rights Policy and MAID Policy of the College of Physicians and Surgeons of Ontario (“CPSO”). (In this blog post, I am focussed on the MAID Policy but the judgment refers to the Policies.) The Effective Referral Provisions require physicians who are unwilling to provide, amongst other matters, MAID to their patients, on moral or religious grounds to provide an effective referral to another health care provider. The Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians’ Societies, and Canadian Physicians for Life, along with a number of individual “objecting” physicians had challenged the Effective Referral Policy on the basis that the Policy violated their freedom of religion and conscience protected by s. 2(a) of the Charter and their right to equality protected by s. 15. Justice Wilton-Siegel, (Justices Lococo and Matheson concurring) disagreed and dismissed the challenges:  The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579.

Continue reading

A new appointment to the Supreme Court of Canada: congratulations (and some unintended consequences)

Image result for sheilah martin

Sheilah Martin named by Prime Minister Trudeau to the SCC

Today, the Prime Minister announced that his pick for the next justice of the Supreme Court of Canada is Sheilah Martin, currently a member of the Alberta Court of Appeal. If approved, Justice Martin will replace retiring Chief Justice Beverly McLachlin. It is hard to argue with Justice Martin’s credentials. Fluently bilingual. Schooled in both the common law and civil law traditions. Over twenty-two years of being a judge. A former dean of the University of Calgary Law School. Her appointment will ensure that the Court’s female judges remain four of the nine justices. She is eminently qualified to serve on the Court and we should all join in congratulating Justice Martin on having been selected by the Prime Minister for this most significant role.

Continue reading

The third branch bends a knee to the Charter: Vancouver Aquarium v. Charbonneau, 2017 BCCA 395

Beluga

Photo of beluga from CTV News

Last week, the Court of Appeal for British Columbia overturned an injunctive order of the Supreme Court that had required a film-maker to remove certain segments of his film because they had been filmed in the Vancouver Aquarium subject to certain restrictive conditions and then used in the film without the Aquarium’s consent. The film sought to advance the case that cetaceans ought not to be kept in captivity, a thesis that ran counter to the Aquarium’s business objectives. In reversing the Supreme Court, the appellate court called upon the Charter and its protection of freedom of expression to justify its decision. To me, what was interesting about this decision (Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395) was the fact that the Court used the Charter to limit the scope of discretionary power that the judge of first instance could exercise  in issuing such an injunction.

Continue reading

Medical Assistance in Dying – Part 3, 4?? Lamb v. Canada (Attorney General), 2017 BCSC 1802

HospiceGuidelines_banner

A recent decision of Chief Justice Hinkson of the British Columbia Supreme Court in Lamb v. Canada (Attorney General), 2017 BCSC 1802 has underscored the fact that Canada is not done with the medical assistance in dying portfolio. As we know, in 2016, the Liberal government pushed through Bill C-14 over the objections of many who asserted that the Bill did not comply with the Supreme Court of Canada’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5. Indeed, in a previous post, I predicted that if the legislation passed “as is”, we would see “yet another challenge (and more people suffering unnecessarily) in the not too distant future”. Unfortunately, this prediction has come to pass.
Continue reading

The Minister and the Grizzly Bear Spirit: Another Indigenous People Loses to “Reasonable Consultation”

everystockphoto-nasa-space-246798-o[1]

BC’s Selkirk Mountains as seen from space: NASA

On November 3, 2017, the Supreme Court of Canada confirmed that, yet another part of a First Nation’s claimed traditional territory could be subject to permanent development because the government had conducted “reasonable consultation”. In Ktunaxa Nation v. British Columbia (Minister of Forests, Lands and Resources), 2017 SCC 54, the Court delivered a double blow to the Indigenous Nation. Not only did the Court hold that the Indigenous Nation’s freedom of religion was not infringed by the government’s decision to approve a year-round ski resort development on their claimed sacred grounds but the Court also found that the Minister had reasonably consulted the Indigenous Nation and that, therefore, the governmental approval was upheld. There are a number of perspectives to this case so this blog post will actually be considering:

1. Freedom of religion;
2. Reasonable consultation and accommodation; and
3. Supreme Court of Canada appointments.

Continue reading