WHAT CHANGES DID GRASSY NARROWS FIRST NATION MAKE TO FEDERALISM AND OTHER DOCTRINES?

  • HW Roger Townshend
Keywords: Grassy Narrows First Nation, treaty rights, treaty interpretation, Aboriginal Law, interjurisdictional immunity, justified infringement, Tsilhqot'in Nation, division of powers, Constitution, provincial statutes, federalism, constitutional evolution

Abstract

The Grassy Narrows case was a challenge, based on the promises made in Treaty 3, to Ontario’s forest management scheme. The underlying concern was the impact of a logging licence on treaty hunting rights. The Supreme Court of Canada needed to consider treaty interpretation, the constitutional protection of treaty promises, and the constitutional law doctrine of interjurisdictional immunity, as well as the interactions among these concepts. In making its ruling, the Court established a new doctrine of constitutional evolution, which filled what was arguably a perplexing gap in the enforcement of treaty rights. The Court also narrowed, but, the author argues, did not abolish, the doctrine of interjurisdictional immunity in the Aboriginal law context. The author also argues that the Court did not change the principles of treaty interpretation, but did not apply them fully to the facts of the case. The author suggests that the doctrine of justified infringement in the context of treaty rights deserves another look, especially in the case of modern treaties.

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Published
2017-12-13
Section
Articles