Kirsten Matoy Carlson has posted her paper, “Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights,” just published in the American Review of Canadian Studies, on SSRN.
Here is the abstract:
What role do courts play in public policymaking? Fifty years ago, Robert Dahl found that courts largely defer to the political process in public policymaking. Accepted by the majority of scholars today, Dahl’s view suggests skepticism that courts play a significant role in the policymaking process. The few scholars, who concede that courts play a role in policymaking, often see that role as less direct or as in response to public opinion. Using the development of Aboriginal and treaty rights policy in Canada as a case study, I find that the Supreme Court of Canada succeeded in revitalizing the making of Aboriginal and treaty rights policy in the 1990s even without the support of politicians or the public. In 1990, the Court irrevocably altered Aboriginal and treaty rights policy by establishing Aboriginal and treaty rights in section 35(1) of the Constitution and curtailing Parliament’s ability to extinguish these rights. Most notably, the Court reinvigorated the policymaking process by encouraging politicians to revisit Aboriginal and treaty rights policies. When they failed, the Court re-entered the policymaking arena by recognizing and protecting a wide range of Aboriginal and treaty rights from governmental incursion over the next six years. The Court’s emergence as a significant and influential policymaker was the product of historical and institutional forces. While legal mobilization, growing public support, and the judicialization of politics contributed to the development of the Court’s role, I use interviews with political and legal players as well as the Court’s own language to show how the failure of the political process influenced the Court to reinvigorate Aboriginal and treaty rights policymaking. My emphasis on political failure illuminates a more complex relationship between courts, the political process, and policymaking. It also highlights how courts can play an influential role in public policy making.
Held: The appeal should be allowed and a declaration of Aboriginal title over the area requested should be granted. A declaration that British Columbia breached its duty to consult owed to the Tsilhqot’in Nation should also be granted.
In finding that Aboriginal title had been established in this case, the trial judge identified the correct legal test and applied it appropriately to the evidence. While the population was small, he found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation. The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supports an inference of continuous occupation. And from the evidence that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, he concluded that the Tsilhqot’in treated the land as exclusively theirs. The Province’s criticisms of the trial judge’s findings on the facts are primarily rooted in the erroneous thesis that only specific, intensively occupied areas can support Aboriginal title. Moreover, it was the trial judge’s task to sort out conflicting evidence and make findings of fact. The presence of conflicting evidence does not demonstrate palpable and overriding error. The Province has not established that the conclusions of the trial judge are unsupported by the evidence or otherwise in error. Nor has it established his conclusions were arbitrary or insufficiently precise. Absent demonstrated error, his findings should not be disturbed.
APTN story here.
Here are the updated stats for the Supreme Court of Canada’s rulings in Aboriginal law cases since the patriation of the Constitution in 1982. There have been some big changes since the last update a few years ago – Justices Binnie (14/33 – 42.4% in favor of Aboriginal interests), Charron (6/19 – 31.5%), and Deschamps (7/23 – 30.4) have left and Justices Moldaver (0/2 – 0%), Karakatsanis (0/2 – 0%) and Wagner (0/1 – 0%) are not off to a very auspicious start since coming on board.
Overall, as the court sits today, the Justices have collectively found in favor of Aboriginal interests only 30.7% of the time. Here’s the breakdown by individual Justice – McLachlin: 35.1% (19/54); LeBel: 23% (6/26); Fish: 36.3% (8/22); Abella: 35% (7/20); Rothstein: 25% (4/16); Cromwell: 30% (3/10); Moldaver: 0% (0/2); Karakatsanis: 0% (0/2); and Wagner: 0% (0/1).
The Supreme Court of Canada hearings in Xeni Gwet’in First Nations Government and Tsilhqot’in Nation v. Province of British Columbia have been made available on the CPAC website and can be found here.
In 1997, the landmark Supreme Court Decision in Delgamuukw finally clarified that even under Canadian law, Aboriginal title to most of the land within British Columbia’s provincial borders had never been extinguished. This ruling had immediate implications for other areas of the country where no treaties ceding land ownership were ever signed. One day, Canadians woke up to a legal reality in which millions of acres of land were recognized as never having been acquired by the Crown, and that elephant has been occupying our national room ever since.
Unfortunately, this glaring issue did not seem to percolate into the wider Canadian consciousness, and many people remain unaware of it. In 1999, the Supreme Court passed down another judgement confirming that the Peace and Friendship Treaties of 1760-1761 did not cede land or resources. This cannot be emphasized strongly enough: the Mi’kmaq never gave up legal rights to their land or resources. Canada does not own the land that the people of Elsipogtog are defending.
This is not conspiracy theory, or indigenous interpretation. This is Canadian law, interpreted by the Supreme Court of Canada, applying Canadian constitutional principles. Yet somehow, this most important fact is left out of most reports on Elsipogtog as though it is barely relevant.
Click here for a great article from Martin Lukacs. “Images of burning cars and narratives about Canadian natives breaking the law obscure the real story about the Mi’kmaq people’s opposition to shale gas exploration.”