Eliminating Indigenous Jurisdictions: Federalism, the Supreme Court of Canada, and Territorial Rationalities of Power

Abstract

This paper examines judicial reasoning in the area of Aboriginal title, paying particular attention to the Supreme Court of Canada's Tsilhqot'in Nation (2014) decision. While the decision has been heralded as a ‘game-changer’ within media circles and legal commentaries for its recognition of a claim to title under section 35(1) of the Constitution Act, 1982, the authors argue that the decision does not depart substantially from prior judicial logics predicated upon the production of Crown sovereignty and the denial of Indigenous legal orders. In fact, the authors argue that the decision displays a clear judicial orientation towards the present jurisdictional divisions of Canadian federalism which not only serves to eliminate Indigenous legal orders and territorial responsibilities, but also provides federal and provincial governments with enhanced powers of ‘incursion’ into Aboriginal title lands.

Throughput Legitimacy and the Duty to Consult: The Limits of the Law to Produce Quality Interactions in British Columbia's EA Process

“…Indigenous peoples experience a deep distrust of state institutions and processes as a result of Canada's state-sanctioned assimilatory efforts. Moreover, within the duty to consult case law, the Court does not radically challenge Crown sovereignty (for example, Christie 2006; Hamilton and Nichols, 2019), and the SCC is generally reticent about recognizing Indigenous nations’ legal authority (for example, Alfred, 2005; Asch, 2004; Borrows, 2010; Coulthard, 2014; MacCrossan and Ladner, 2016). The refusal of state institutions to acknowledge Indigenous jurisdictional authority is a significant obstacle to the advancement of reconciliation from the perspective of Indigenous peoples.…”

The Numbered Treaties and the Politics of Incoherency

“…That is, the subordinate nature of Indigenous peoples’ legal and political status is upheld at least in part through a reliance on Western frames surrounding the nature of treaties and in part as a result of a broader failure to take seriously Indigenous legal and political principles in contemplating the nature of the Indigenous-state relationship. Consider McCrossan and Ladner's argument that despite the declaration of title in Tsilhqot'in , the judicial reasoning employed in this case is, in fact, geared toward the elimination of Indigenous laws, jurisdictions and territorial relationships, as it privileges the current configurations of provincial and federal power, which “conceptually exclude and undercut Indigenous legal orders and territorial responsibilities” (2016: 412). They note that this represents a contemporary manifestation of settler colonial logics of elimination: even when Indigenous peoples’ self-determining status is acknowledged, such gestures are restricted by the court's deference to federal and provincial laws and its concomitant failure to engage with Indigenous laws.…”

Wahkohtowin in Action

“…McCrossan and Ladner argue that the Tsilquot'in Nation judgement is a continuing settler-colonial commitment to eliminate alternate legal orders and spaces of Indigenous jurisdiction. 36 Entrenching exclusivity within the Aboriginal title test cuts across Indigenous legal orders where it was "not terri-torial exclusivity that was privileged, but rather responsibility as it is the absence of rights and the presence of an underlying philosophy of responsibilities that remains central within Indigenous traditions. " 37 Daniel Voth has also shown how Aboriginal title litigation in southern Manitoba funneled the Manitoba Metis Federation and Treaty 1 peoples into "divisive, exclusionary, zero-sum political relationships between Indigenous peoples. "…”