202 THE ADVOCATE
VOL. 76 PART 2 MARCH 2018
of interjurisdictional immunity to Aboriginal rights appear to be equally
applicable to treaty rights”.23
The British Columbia Court of Appeal in McCaleb rejected these cases as
applicable to the issue before it because “although the activities in question
took place on reserves, the issue in each case was whether there had been
an infringement of an Aboriginal or treaty right. Neither case involved an
issue of division of powers pertaining to s. 91(24)”.24
In short, the Court of Appeal McCaleb was unwilling to let the doctrine of
interjurisdictional immunity in the context of reserve lands die on an implication.
If the Supreme Court of Canada wanted to cast away an entire line
of constitutional authorities, it had to do so directly and clearly. Sechelt was
and is still good law. The doctrine of interjurisdictional immunity, at least
in British Columbia, still had application, at least in relation to federally
defined and owned reserve lands.
It is now clear that the leftover issues from Tsilhqot’in will need resolution
from the Supreme Court of Canada. The court’s arguably unnecessary foray
into the division of powers question in that case has resulted in three appellate
courts attempting to read the tea leaves of that decision and determine
the remaining content (if any) of the doctrine of interjurisdictional immunity.
There are now seemingly two different answers to that question: one
from Saskatchewan and Quebec, which says there is no application to the
doctrine; and one from British Columbia, which says there still is, provided
no Aboriginal or treaty rights are claimed.
The Court of Appeal’s decision in McCaleb certainly takes a circumspect
approach to the reach of the decision in Tsilhqot’in. From the perspective of
stare decisis, it is encouraging to see that more is required to overrule a long
line of constitutional authorities that did, and still do, have content and
importance for the historical development of Aboriginal and settler communities.
Provinces, the federal government, band councils, business (both
Aboriginal and non-Aboriginal) and other stakeholders have all grown up
knowing that provincial laws in relation to the possession or management
of land do not apply to reserve lands as a result of the doctrine. In this way,
there is a comfort and attractiveness that may be found in the logic that if
the Supreme Court of Canada wants to rapidly and dramatically change the
law, it must do so clearly and give Canadian society the benefit of openly
saying it is doing so.
However, the reasoning in McCaleb is unsatisfying in at least one respect:
its partial reliance on the supposed distinction between reserve lands and
Aboriginal title or treaty lands. Courts have long held that lands set aside for
“Indians” by the federal government and Aboriginal title or treaty lands are