The reference in the title is to the two recent and much-discussed cases decided by the Supreme Court of Canada(SCC): Roger William (Tsilhqot’in Nation) released on 26 June, and Grassy Narrows First Nation, released on 11 July.

Tsilhqot’in was a dispute about the rights held in Canadian law by a First Nation to its ancient homelands that now lie within the political boundaries of the province of British Columbia. For the first time in history the courts of Canada have recognized aboriginal title. Canada had been subjected to United Nations criticism for its failure in this regard. That is indeed a victory worthy of some celebration. One important point decided concerned the degree of occupation required to prove Aboriginal title. The court held that Title is not limited to settlement sites but extends to tracts of land that were used regularly and over which the First Nation had effective control at the time of assertion of British sovereignty.

It had been argued recently in a ‘Metis’ case called Hirsekorn that Aboriginal Title could be founded on regular hunting of bison in southern Alberta. That case was lost simply because it was not supported by the facts of history. An attempt to argue for Metis Aboriginal title as a result of Tsilhqot’in would expose some of the serious challenges that flow from case law on Aboriginal rights. I have argued that there should be only one date for proof of Aboriginal rights including Title: the date at which allegiance to the Crown was exchanged for protection by the Crown’s courts, the date at which the fiduciary relationship was created. But the SCC decided in the ‘Metis’ case of Powley in 2003 that there must be two different dates for proof of aboriginal rights, and a third date for Aboriginal Title. The two dates are one for First Nations and one for the Metis. As a result of this indefensible approach it would be discovered that the Metis are able to prove Aboriginal Title at a more recent date than a First Nation in the same region.

There is much that needs to be rationally developed in the law relating to Aboriginal people in Canada. The failure of the SCC to follow the traditional analytical approach of the English common-law courts with rigour leaves ambiguity and uncertainty in the law, and erodes the rule of law. The SCC leaves itself open to accusations that it is acting as a policy second-guesser rather than a court.

The Grassy Narrows First Nation case concerned a question about Treaty Three signed in 1873 in a region that now covers parts of Ontario and Manitoba. In the Treaty the Ojibwe had the right to continue to make a living on the Treaty Territory lands outside the reserves until the lands were ‘taken up’ for public purposes by the government. Ontario issued a licence for clear-cutting forest on Ojibwe Treaty Territory to a large company. The question was whether according to the Treaty and the law of the Constitution of Canada Ontario was entitled to issue the licence or whether the approval of the federal government of Canada was also required.

The SCC held that Ontario could issue the licence without the approval of the federal government.

Grassy Narrows contributes to a demystification of the idea of ‘the Crown’ in Canada. The ‘Crown’ is the symbolic term for the state of Canada, that is, all forms of government power in Canada. We have a federal system with a central government and provincial governments. They are all part of ‘the Crown’ which is theoretically indivisible. Accordingly the provinces, as Grassy Narrows points out, have authority to regulate Treaty rights subject to the important condition that the province perform its duty to consult and where there is an infringement of a Treaty right the provincial government must also justify the infringement in accordance with legal tests that were previously established by the SCC.

Much more could be written about these cases but it is hard to do so in this space and without the use of legal jargon. There is reason to consider these cases as victories for Aboriginal people. There are also many reasons to be very cautious about decisions of the courts, which are after all but one branch of the government (‘the Crown’) that imposes Canadian law and subjugates First Nations law. The Tsilhqot’in case started in 1983 along with some attempts at negotiations. It cost a lot of money. Political action including negotiations is always an alternative to be seriously considered.

Pchartrand43@yahoo.ca