198 THE ADVOCATE
VOL. 76 PART 2 MARCH 2018
R. v. Sparrow6) should be applied instead. The court gave four reasons for
1. Aboriginal rights do not raise a division of powers issue. Rather,
they raise an issue of the tension between the s. 35 right (which
acts as a limit on both federal and provincial powers) and the
province which seeks to regulate the right.
2. The application of interjurisdictional immunity would result in
“dueling tests” for assessing the constitutionality of the legislation.
On the one hand would exist the Sparrow test, which demands a
justification analysis, and on the other would exist interjurisdictional
immunity, which immediately declares impairment of the
right unconstitutional without undertaking a justification inquiry.
3. Restricting provincial regulation through application of the doctrine
could lead to uneven regulation and legislative vacuums.
4. The law must facilitate cooperative federalism, whereby jurisdictional
cooperation involving interlocking federal and provincial
schemes is encouraged.7
This was a sudden change in the law from an established line of authority.
Although the Supreme Court of Canada has been continually signalling
its displeasure with interjurisdictional immunity for some time as an
impediment to the goal of cooperative federalism,8 it has declined to do
away with the doctrine entirely, and has even applied it with some regularity.
9 In Tsilhqot’in the court cast doubt on the entire doctrine as it relates to
reserve lands—a matter historically covered by the doctrine. Serious doubts
were raised in connection with the cases that had applied the doctrine in
recent years, including and in particular Sechelt.
It seems now that the B.C. Court of Appeal is not willing to let the doctrine
go quietly. In McCaleb v. Rose,10 the court was recently given an opportunity
to consider whether the decision of the court in Sechelt was implicitly
overruled by the Supreme Court of Canada in Tsilhqot’in. The answer from
the Court of Appeal was that Sechelt was not overturned by implication and
that more was required for the Supreme Court to overturn such a line of
McCaleb concerned a tenancy agreement of a lot in a trailer park located
on the Kamloops Indian Reserve. The respondent landlord held a certificate
of possession for the trailer park lands and was the sole shareholder and
director of the company that leased the lands from the federal government.
The appellant tenant breached a term of the lease and was given notice to
end the tenancy. The appellant did not vacate, and the landlord brought an