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Constitution - Indigenous. Shot Both Sides v. Canada
In Shot Both Sides v. Canada (SCC, 2024) the Supreme Court of Canada considered an indigenous lawsuit where the plaintiff's claimed that they had been historically granted inadequate land in a treaty.
Here the court considers the (non-)effect of the s.35 ['Recognition of existing aboriginal and treaty rights'] 1982 Constitution indigenous provisions on the commencement of limitation provisions:V. Analysis
[31] To resolve the parties’ dispute, this Court must consider the impact of s. 35(1) of the Constitution Act, 1982 on breach of treaty claims and whether these claims were actionable prior to the section coming into force. If a breach of the TLE was enforceable and actionable prior to the coming into force of s. 35(1), the Blood Tribe concedes that its claim is statute-barred as it does not otherwise contest the discoverability of its claim.
[32] As explained below, s. 35(1) of the Constitution Act, 1982 did not create a cause of action for breach of treaty rights. The Federal Court of Appeal appropriately recognized that “[t]reaty rights flow from the treaty, not the Constitution” (para. 205). Treaty rights were enforceable prior to 1982 and relief was available to the parties. The coming into force of s. 35(1) did not alter the commencement of the limitation period applicable to the Blood Tribe’s TLE Claim. As concluded by the Federal Court of Appeal, the Blood Tribe’s claim is thus statute-barred pursuant to s. 5(1)(g) of Alberta’s Limitation of Actions Act and s. 39(1) of the Federal Courts Act. However, I find that declaratory relief is warranted given the Crown’s dishonourable conduct towards the Blood Tribe.
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(2) The Impact of Section 35(1) of the Constitution Act, 1982
[52] The enforceability of Treaty No. 7 at common law is the heart of this appeal. Having established the Treaty’s enforceability at common law above, it is necessary to consider whether the coming into force of s. 35(1) of the Constitution Act, 1982 impacted this enforceability. The enactment of the Constitution Act, 1982 profoundly shaped and solidified the protection of Aboriginal and treaty rights in Canada. Section 35(1) is instrumental in this respect and provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Section 35(1) limits the doctrine of parliamentary sovereignty in its application to Aboriginal and treaty rights in Canada and prevents Parliament from extinguishing these rights (Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 11; R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at pp. 1108-10; P. J. Monahan, B. Shaw and P. Ryan, Constitutional Law (5th ed. 2017), at p. 489).
[53] Section 35(1) of the Constitution Act, 1982 accords constitutional status to existing Aboriginal and treaty rights and prevents them from abrogation by federal, provincial, or territorial law (Desautel, at para. 34; J. Woodward, Aboriginal Law in Canada (loose-leaf), at § 5:2). The coming into force of s. 35(1) constitutionally “entrenched” the Crown’s obligation to respect existing treaty rights (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 4; R. v. Marshall, 1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533 (“Marshall (No. 2)”), at para. 6). As a result, s. 35(1) constitutionalizes existing rights so that they can no longer be abrogated by legislation. This was recognized in Mitchell, at para. 11:The enactment of s. 35(1) elevated existing common law aboriginal rights to constitutional status (although, it is important to note, the protection offered by s. 35(1) also extends beyond the aboriginal rights recognized at common law: Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 136). Henceforward, aboriginal rights falling within the constitutional protection of s. 35(1) could not be unilaterally abrogated by the government. However, the government retained the jurisdiction to limit aboriginal rights for justifiable reasons, in the pursuit of substantial and compelling public objectives: see R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723, and Delgamuukw, supra. [54] Section 35(1) did not create treaty rights. Although treaty rights are protected by the Constitution Act, 1982, their existence and scope are determined by the terms of the treaty interpreted with the principles set out in R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456 (“Marshall (No. 1)”). The terms and limits of treaty rights do not stem from the language or purpose of s. 35(1), which recognizes and affirms existing rights (Badger, at para. 76; P. W. Hogg, “The Constitutional Basis of Aboriginal Rights”, in P. Noreau and L. Rolland, eds., Mélanges Andrée Lajoie: Le droit, une variable dépendante (2008), 177, at p. 182; J. T. S. McCabe, The Honour of the Crown and its Fiduciary Duties to Aboriginal Peoples (2008), at p. 39).
[55] This Court has recognized that s. 35(1) was intended to “provide constitutional protection” to pre-existing Aboriginal and treaty rights (Badger, at para. 12; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 84). Furthermore, as stated clearly in Marshall (No. 1), at para. 48, the core impact of s. 35(1) was to prevent abrogation by legislation:Until enactment of the Constitution Act, 1982, the treaty rights of aboriginal peoples could be overridden by competent legislation as easily as could the rights and liberties of other inhabitants. The hedge offered no special protection, as the aboriginal people learned in earlier hunting cases such as Sikyea v. The Queen, 1964 CanLII 62 (SCC), [1964] S.C.R. 642, and R. v. George, 1966 CanLII 2 (SCC), [1966] S.C.R. 267. On April 17, 1982, however, this particular type of “hedge” was converted by s. 35(1) into sterner stuff that could only be broken down when justified according to the test laid down in R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at pp. 1112 et seq., as adapted to apply to treaties in Badger, supra, per Cory J., at paras. 75 et seq. [56] The Federal Court of Appeal correctly set out the effect of s. 35(1) and acknowledged that the section is “not the source of treaty rights” (paras. 204-5). This conclusion aligns with the approach to Aboriginal rights under Canadian law: “. . . section 35 did not create the legal doctrine of Aboriginal rights — Aboriginal rights existed and were recognized at common law” (para. 205). Remedies were available to the Blood Tribe prior to the coming into force of the Constitution Act, 1982 and were sought through its 1980 breach of contract action.
[57] The Blood Tribe’s reliance on Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181, overlooks the differences between the coming into force of s. 15 of the Canadian Charter of Rights and Freedoms and s. 35(1). This Court in Ravndahl held that the cause of action for the discrimination claim at issue arose through the coming into force of s. 15. Prior to the coming into force of s. 15, the Ravndahl plaintiff had “no cognizable legal right upon which to base her claim” (para. 18). By contrast, there is a basis in common law for the Blood Tribe’s breach of treaty claim because the enforceable and actionable nature of treaties prior to 1982 is well established. The coming into force of s. 35(1) did not create a cognizable legal right to ground the Blood Tribe’s breach of treaty claim. The right has existed at common law since the execution of Treaty No. 7 in 1877. The coming into force of s. 35(1) of the Constitution Act, 1982 did not alter the commencement of the limitation period applicable to the Blood Tribe’s claim. . Johnson v. Canada
In Johnson v. Canada (Fed CA, 2023) the Federal Court of Appeal considered (and held that) the procedural rules that apply when "a claim is based on constitutional rights and treaty rights of Indigenous peoples" are the normal rules:[27] The claim that Mr. Johnson is attempting to bring before the Tax Court is a private, personal claim as he is seeking a return of the amounts that he has paid as excise tax, duty and GST on his importation of cigarettes in 2005. This Court, in Horseman v. Canada, 2018 FCA 119, confirmed that procedural and jurisdictional provisions applicable to the ETA will apply even if a claim is based on constitutional rights and treaty rights of Indigenous peoples:[4] ... In private, personal claims such as this, procedural and jurisdictional provisions apply and must be obeyed even where the constitutional rights and treaty rights of Indigenous peoples are asserted … [28] Therefore, the procedural and jurisdictional provisions applicable to bringing an appeal to the Tax Court under the ETA must be considered and applied. . Whiteduck v. Ontario
In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considers the Constitution Act, 1982 [s.35] ['Rights of the Aboriginal Peoples of Canada'] aboriginal provisions:[15] I first set out the governing principles for Aboriginal claims under s. 35 of the Constitution Act, 1982, and then apply them to the issues. Nothing in these reasons is intended to determine the merits of the case.
(a) The Governing Principles
(1) Reconciliation is the purpose of Aboriginal law
[16] The “grand purpose”[2] and the “first principle”[3] of Aboriginal law is the reconciliation of Aboriginal and non-Aboriginal Canadians. This “fundamental objective”[4] flows from “the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples”[5] and the need to reconcile “respective claims, interests and ambitions.”[6] The commitment to reconciliation forms the backdrop to any lawsuit that engages Indigenous rights.
[17] Once a Métis community meets the test in Powley for the recognition of Métis rights, these are given effect as Aboriginal rights under s. 35.[7] How those rights are to be reconciled with other competing Aboriginal rights is yet an open question, respecting which we are in open water. In my view, the imperative of reconciliation also applies to competing Indigenous rights.
(2) Every right must have a remedy
[18] It is almost axiomatic that where there is a right, there must be a remedy to protect that right.[8] In the context of the Canadian Charter of Rights and Freedoms, the Supreme Court has held that “courts must craft responsive remedies” and “courts must craft effective remedies”.[9] Like Charter rights, Aboriginal rights are afforded constitutional protection and Aboriginal claimants must be afforded a meaningful forum for redress where they can effectively establish that their rights have been violated.
[19] In that light, the court must be cautious not to foreclose avenues of relief plausibly open to Aboriginal parties whose interests are engaged, particularly in the context of a pleadings motion that engages constitutional issues.
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(5) The Crown is the steward of Aboriginal resources
[23] The concept of the Crown as steward of Aboriginal resources is implied in Crown sovereignty, but is subject to the exercise of Aboriginal rights. This flows from the previous principle – the Crown’s duty to consult and accommodate is fundamental – and from McLachlin C.J.’s comments in Tsilhqot’in Nation, at para. 91: “once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.” This principle has more general application to Aboriginal rights beyond issues of title.
[24] The Crown is responsible for addressing Indigenous rights under s. 35, but what the Crown does is subject to the court’s review for constitutionality under the principles set out in this part of the reasons.
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