The rule of law vs. the rule of judicial discretion: the Tsilhqot’in Nation case

By the year 1897 constitutional law was settled in Canada based upon the interpretation in the Judicial Committee of the Privy Council of section 109 of the Constitution Act, 1867. It was held in the case In re Indian Claims that the constitutionally binding Royal Proclamation of 1763 confirmed the previously established case law, all of which recognized that North America is reserved under the sovereignty of the indigenous race for its occupation, until such time as the particular group claiming control should, by nation to nation treaty, transfer its sovereignty over its land to the British crown or its successor Canada, or by the same token to the United States, from whence most of the case law derives.

The constitutional law, then, is that North America is under indigenous sovereignty pending treaty of relinquishment. The fact that Canada and the United States ostensibly are constitutional democracies signifies that “the rule of law” means indigenous territorial sovereignty continues to bind all courts of those countries unless and until the constitutions have been amended by the people, by constitutional legislation, pursuant to the amendment formulas made express and explicit in each constitution.

The supreme courts of both Canada and the USA ignore the rule of law and the corresponding sovereignty of the people by means of adopting “the rule of judicial discretion” as an alternative to legislated constitutional amendment. Correspondingly the constitutional law of Indigenous territorial sovereignty is ignored by the North American judiciary, as recently illustrated by the decision of the Supreme Court of Canada in the case of Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. The Court held that section 35 of the Constitution Act, 1982, and its own recent decisions discussing that section, has vested in the non-native courts the jurisdiction to expropriate indigenous sovereignty in the public interest, as an alternative to a constitutional amendment.

The Court held:

[2] Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group;
[17] The governing ethos is not one of competing interests but of reconciliation.
[18] Governments can infringe Aboriginal rights conferred by Aboriginal title but only where they can justify the infringements on the basis of a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group.
[23] What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society.
[50] The claimant group bears the onus of establishing Aboriginal title.
[71] What remains, then, of the Crown’s radical or underlying title to lands held under Aboriginal title?  The authorities suggest two related elements — a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35  of the Constitution Act, 1982. The Court in Delgamuukw referred to this as a process of reconciling Aboriginal interests with the broader public interests under s. 35  of the Constitution Act, 1982 .
[76] The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.  If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.
[83] What interests are potentially capable of justifying an incursion on Aboriginal title?  In Delgamuukw, this Court, per Lamer C.J., offered this:
In the wake of Gladstone, the range of legislative objectives that can justify the infringement of [A]boriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by [A]boriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive [A]boriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis. [Emphasis added; emphasis in original deleted; para 165] [127] Granting rights to third parties to harvest timber on Tsilhqot’in land is a serious infringement that will not lightly be justified.  Should the government wish to grant such harvesting rights in the future, it will be required to establish that a compelling and substantial objective is furthered by such harvesting, something that was not present in this case.

Section 35 of the Constitution Act, 1982, does not, as held by the Court, give to the courts the jurisdiction to expropriate indigenous sovereignty in contravention of the previously settled constitutional law. The section states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Instead of constitutionally modifying the previously settled constitutional law the section simply confirms it, and neither adds nor takes away from it. Most importantly it does not create, as the Court in the Tsilhqot’in Nation case pretends, a judicial discretion to expropriate the indigenous constitutional interest.
What the Court has done is invent “the rule of judicial discretion” in place and stead of “the rule of law.” How is it, then, that the judges whose burden is to uphold the constitution under the rule of law have instead made a profoundly political, as opposed to judicial, decision?

In the first sentence of the book How Judges Think (Harvard University Press, 2008) by Justice Richard A. Posner of the United States Court of Appeals His Honor says:
Traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a “government of laws not men,” the “rule of law” as celebrated in the loftiest Law Day rhetoric, and so forth) does not exist everything is permitted to judges—so watch out! Legalism does exist, and so not everything is permitted. But its kingdom has shrunk to the point where today it is largely limited to routine cases, and so a great deal is permitted to the judges. Just how much is permitted and how they use their freedom are the principle concerns of this book.
He concludes (p. 369), “So judging is political.”

Bruce Clark, Ph.D. in jurisprudence, is an Indigenous rights activist and author of Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self Government in Canada and Justice in Paradise. This article first appeared on the website http://dissidentvoice.org

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