THE ADVOCATE 201
VOL. 76 PART 2 MARCH 2018
General)20 and Rice v. Agence du revenu du Québec.21 In Peter Ballantyne, the
Saskatchewan courts had to consider the application of the Limitations Act
of Saskatchewan to preclude causes of action in relation to reserve lands,
which were subject to a treaty.22 The Saskatchewan Court of Queen’s Bench
rejected the notion that the Supreme Court in Tsilhqot’in left any content in
interjurisdictional immunity in relation to reserve lands:
112 There was much correspondence from the parties to the court following
the release of Tsilhqot’in. The plaintiffs made much out of the distinction
that the lands held in Tsilhqot’in were under Aboriginal title and
the lands held in this case are reserve lands. They argue that it is not open
to this court to infer that Tsilhqot’in overrules such previous cases such as
Derrickson v. Derrickson, 1986 1 SCR 285, which expressly held that the
right of possession for land held under a reserve is at the core of s. 91(24)
and triggers interjurisdictional immunity.
113 I would respond to this by first referring the plaintiffs to paras.
135–138 of Tsilhqot’in wherein the court acknowledges that there is inconsistency
among prior cases on whether certain s. 35 rights fall under the
core of federal power. Such a statement surely acknowledges that there is
bound to be some previous cases which are at odds with the ruling.
114 Secondly, I would refer the plaintiffs to para. 150 wherein the
Supreme Court expressly states:
… I find that, consistent with the statements in Sparrow and Delgamuukw,
provincial regulation of general application will apply
to exercises of Aboriginal rights, including Aboriginal title land,
subject to the s. 35 infringement and justification framework.
This carefully calibrated test attempts to reconcile general legislation
with Aboriginal rights in a sensitive way as required by
s. 35 of the Constitution Act, 1982 and is fairer and more practical
from a policy perspective than the blanket inapplicability
imposed by the doctrine of interjurisdictional immunity.
In Delgamuukw v. British Columbia, 1997 3 SCR 1010, the court held that
Aboriginal title lands and lands set aside for Indian occupation, such as
reserves, are both “Lands reserved for the Indians” pursuant to s. 35 of the
Constitution Act. The court continued in Delgamuukw at para. 178:
… The core of Indianness encompasses the whole range of aboriginal
rights that are protected by s. 35(1). Those rights include
rights in relation to land; that part of the core derives from
s. 91(24)’s reference to “Lands reserved for the Indians”.
115 I conclude that the courts have not drawn a distinction between
Aboriginal title lands and Aboriginal reserve land when determining
whether these rights are protected under s. 35. Clearly, it would be an
error for me to do so now.
On appeal, the Saskatchewan Court of Appeal affirmed the decision of
the Court of Queen’s Bench, holding that the reasoning of the Supreme
Court of Canada in Tsilhqot’in and Grassy Narrows “disallowing application