Stepping Into Canadas Shoes: Tsilhqotin, Grassy Narrows and the Division of Powers

The Tsilhqotin and Grassy Narrows decisions represent an about-face in the Supreme Courts approach to the constitutional division of powers. Prior to 2014, the Court consistently confirmed the continuing relevance and importance of the doctrine of interjurisdictional immunity in regards to section 91(24) of the Constitution Act, 1867 and the federal Crowns responsibilities with respect to Aboriginal and treaty rights. In Tsilhqotin and Grassy Narrows the Court disregarded existing law and dramatically reduced the federal governments role when a province proposes to undertake activity that could negatively affect Aboriginal and treaty rights. The Court held that it is now open to provinces to consult and attempt to justify infringements of those rights pursuant to the Sparrow/Badger analysis. The potential ramifications of the Courts departure from established case law are considerable. The decisions call into question the Court?s approach to the division of powers by reducing an established aspect of constitutional protection formerly guaranteed to Indigenous Peoples. As a result, provinces now have significantly expanded jurisdiction to make decisions which impact Aboriginal and treaty rights.