Looking Under the Hood of the Constitutional Mechanics of Aboriginal Law

By Christina Gray

On the morning of April 2nd, 2019, I sat down for a video call with Assistant Professor and constitutional law expert, Joshua Nichols (University of Alberta, Faculty of Law). We had a candid discussion about some of the major underlying issues concerning Aboriginal law and the constitution frameworks of section 35. Professor Nichols provided insightful glimpses into the inner-workings of the Canadian constitutional machine and the ‘mechanics’ of s. 35 Aboriginal and treaty rights. Keep reading to find out more:

CG: How do you think Indigenous people — including Indigenous people’s legal principles or laws or rights — fit within a liberal democracy?

JN: Instead of bigger questions of ought or should, it is more helpful to look at how they are currently to get a clearer picture of what’s the case now. For example, Indigenous peoples are seen as a minority within a larger population. That then leads the courts to address Indigenous peoples with the tool box of Charter rights.

CG: Can you give us a specific example?

JN: It’s best to start with R v. Sparrow because that’s where this move is made within the Canadian constitutional framework. It is the first case to interpret s. 35 and give meaning to it. It is too easy as lawyers to be familiar with the mechanics of s. 35 that grow out of Sparrow and then forget the background assumptions it relies on. We don’t see the case with fresh eyes; we see the case that has been around for nearly 30-years. There is a natural forgetting happening about what the Court held in Sparrow.

Instead we tend to look at recent authorities and go forward. The court does this too. Here is a current statement from the B.C. Supreme Court in Ahousaht (https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc633/2018bcsc633.html). When talking about s. 35, Justice Humphries, at para 59:

This section is not contained within the Charter of Rights and Freedoms and not subject to the Charter, s 1. Thus the courts have created another way to deal with the interaction and reconciliation of government objectives and sovereignty with aboriginal rights.

That is well and good but begs the question of how the courts came up with this? And what are the premises that they are operating on to legitimize this interpretation of the constitution? It jumps over that entirely. It is only describing what they’ve done. I’m not convinced that the court has a clear eye on the mechanics of what they’ve done and what it has to assume legally in order to make sense. So, the doctrine is very muddy.

If we go back to Sparrow, it says the same thing. The Court there explicitly says that they recognize s. 35 on its face within the scheme of the document is not part of the Charter. It is outside of the realm of the Charter. And so, s. 1 doesn’t apply and neither does s. 33, the notwithstanding clause. If we were to just read the document as lawyers, we would quickly see that whatever s. 35 is, it’s not an infringeable Charter right. It’s more along the lines of a jurisdictional line, similar in kind to ss. 91 and 92 of the British North America Act of 1867. The problem looking at it in the eyes of a lawyer or judge is that it contains no enumerated heads of power, all it says is, “existing Aboriginal rights and treaty rights are recognized and affirmed.” As a lawyer, one understands that on the first reading this suggests that all legislation from any other branch of government that relates to Aboriginal and treaty rights is going to be null and void — ultra vires — because this is constitutional law — the highest law — and there is no reasonable basis within that document to empower the Courts to infringe that right. What you’re looking at from the eyes of the common law is a potential legal vacuum. A kind of seizure within the constitutional machinery that would prevent that machinery from being able to operate and apply law. I think that is the situation the court in Sparrow felt itself to be in. They went into unwritten principles, much like the Court did later in the Seccession Reference, but with very different principles. They claimed that “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown” and they based this on the doctrine of discovery via their citation of Johnson v. M'Intosh (1823), 8 Wheaton 543 (U.S.S.C.). This is the actual basis of their reading of s. 91(24) as “federal power” over Indians and lands reserved for Indians.

CG: What principles do you think they are talking about?

JN: This is the first time they use ‘reconcile’ within Canadian law. When we are talking about ‘reconciliation’ we should get rid of the normal everyday sense of the word, coming together after a conflict and reaching an understanding, which is a basic understanding of the word. Understand that the judges in that case were ‘reconciling’ two documents together. That is more like reconciling economic books. It’s a solo exercise.

CG: Like an accountant?

JN: Like an accountant. Like a legal accountant.

What the Court in Sparrow reconciles is the federal power under s. 91(24) — which, again, is predicated on the thin air of the doctrine of discovery — with federal duty, what they now colour s. 35. In the colouring of duty, they painted in a particular way that foreshadows what is going to happen in this balancing exercise. This is because the character of the power that they’ve characterized under s. 91(24) is absolute; it is power over “Indians and lands reserved for Indians.” Necessarily that begs the question, where did this power come from? It is a strange thing because we can see that there is an enumerated head of power in the BNA Act, but the immediate reading of this phrasing and subheading says “power in relation to,” which does not give us the proper character of what this power is. It could be a minimal federal right to make agreements with ‘Indians’ and a kind of plenary responsibility in relation to ‘Indian lands.’ By plenary responsibility, I mean the relationship would be between Indigenous nations and the Federal government, with provinces not having a direct legal role in the relationship. The Penner Report made a very similar recommendation when they suggested that the Federal government should “occupy and vacate” s. 91(24). This move preserves the federal arrangement that was set out in the Royal Proclamation of 1763 and that many Indigenous nations agreed to in the Treaty of Niagara in 1764.  

But there are other available interpretations. Indigenous groups could, for example, be exercising self-rule on their territories that have a relationship with the federal government and creating legislation by negotiation and agreement. There is not a natural immediate interpretation of the plain text of s. 91(24), but you must conduct a contextual reading of a constitutional document to get its colour. We know that we need to read constitutional text within the scheme of the act; this is the modern principle. The Sparrow court jumps over all that and gives it absolute power over land and land reserved for Indians. The question is: where did they get that power? The pre-existing relationship of the historical treaties do not delineate anything resembling that, and the only way we apply sovereignty and prove it is through treaty, negotiated agreements, and conquest. We specified technical definitions of these things. We have no evidence of conquest, but we have lots of evidence of treaties. The Sparrow Court does not provide us with a clear view of how they get that power, but tell us that there was never any doubt that the Crown is sovereign, has legislative power, and underlying title.

As lawyers, we are often trained that courts are bound to acknowledge Crown sovereignty. They have to — it’s part of judicial notice and it’s considered non-justiciable. If the courts question the sovereignty of the Crown then they run into contradiction because they question their own jurisdiction, as that is where their own jurisdiction flows from. But courts have a responsibility to determine the legal qualities that flow from their recognition of Crown sovereignty. It is not a one size fits all concept. They can and must presume a degree of sovereignty. For example, they can say that the Crown is sovereign within Canada and its territorial bounds, but complicate the inner-structure of that sovereignty. What are the federal arrangements of legislative power? Who are the stake holders of underlying title? Is it co-underlying in some instances? These aren’t presumptions that naturally flow from the concept of sovereignty; Rather, these presumptions are — within a federal system — the very subjects of negotiation as to how the federation functions. If one party has sovereignty, legislative power, and underlying title, then you’ve already presumed the structure of federalism and you’ve done it through judicial notice. Judicial notice has common law limits. Whatever a judge notices must respect the division of powers and must preserve their judicial neutrality. In this instance, we have a recognition of Crown sovereignty that accepts the Crown’s picture of what it has on bare assertion alone and ignores Indigenous peoples’ view of what they have. The Crown has pushed it way too close to the executive. It has lost the appearance of judicial neutrality.

CG: You mean the Court?

JN: Yes, the court. This thick version of Crown sovereignty closes off space for Indigenous peoples within the federation, since legislative power has been completely assigned to the Crown. The only space left is devolved powers, like that of municipalities and Charter rights. We have to remember that the presumption in Charter rights is that we are dealing with the rights of subjects to a sovereign.

CG: That’s interesting because I’m a member of Lax Kw’alaams and our chief changed his title to mayor.

JN: I would see that as a symptom of the problem.

CG: How do you interpret Tsilhqot'in v. British Columbia decision — and its granting of Aboriginal title — in light of your observations about Sparrow?

JN: In Tsilhqot'in, Aboriginal title is proven for the first time, it moves from being a theory to a reality. However, I take issue with many parts of the doctrine of discovery and terra nullius in that case.

The s. 35 framework that started with the conflict in Sparrow similarly plays out in this decision. The problem is that the framework that gets set up is predicated on the assumption that the Crown has all the levers of power within the order. The only area available is a quasi-municipal form of governance within some constitutional plating, which must be proven within litigation and recognized within the courts. Indigenous peoples have for the last 250 years — but especially the last 150 years when the relation is fundamentally changed unilaterally — continually advocated not for Charter rights in relation to their sovereign, but argued for jurisdiction as founding partners of Confederation. This is a disconnect in the vocabulary of the courts from Sparrow and Indigenous peoples, who keep asking for jurisdiction, and they respond that you can have rights that are infringeable — unilaterally — subject to their justification tests. This contradiction between perspectives has played itself out again and again in how the court ends up in these strange grounds asking what exactly is Aboriginal title? It is so sui generis that it is difficult to fit within a common law frame. Similarly, what is a commercial scale right under s. 35? They should be possible according to the test of R v. Vanderpeet, but the problem is that judges can re-characterize the right. For example, the legal test — “integral to the distinctive” — Indigenous peoples can litigate this for a decade and they’ll hit it, but then when they do all of a sudden, the targets move, which has been so clearly illustrated with the most recent Ahousaht decision.

Aboriginal and treaty rights offer complex constitutional narratives. For more on this, read Professor Nichols illuminating work. He has published a recent article in the Alberta Law Review on the duty to consult and accommodate. Further, he has a forthcoming book being published with the University of Toronto Press, and a forthcoming article in the Osgoode Hall Law Journal about treaty interpretations in Canada and their underlying presumptions.


Christina Gray is Ts’msyen and Dene-Metis-- a lawyer and LLM Candidate at the University of Victoria, with a juris doctor and bachelor of arts degree from the University of British Columbia. She is a recipient of the Law Foundation of British Columbia’s Graduate Fellowship.