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July 16, 2014
Adoption of the Charter of Rights and Freedoms in 1982 made treaty and aboriginal rights constitutional, though no one knew at the time what that meant. We are gradually finding out as the Supreme Court of Canada develops a new body of law.
Last week’s Grassy Narrows decision affirmed the status quo with respect to the honour of the Crown, fiduciary responsibility and the duty to consult. It also preserved the architecture of the Canadian Constitution, rejecting appellants’ contention that only Canada, not Ontario, could grant timber licences on land given to Ontario by Canada in 1912. Provincial control of public lands and natural resources is a cornerstone of the edifice erected at Confederation. It is startling that appellants would have chosen to challenge it. Let’s hope that the Supreme Court has batted their argument out of the park for good.
The preceding week’s Roger William decisionwas more innovative. Here, the Supreme Court recognized aboriginal title to a specific tract of land that had never been surrendered by treaty. The court had said in its 1997Delgamuukw decision that aboriginal title still existed in British Columbia because of the absence of treaties, but William was the first decision to recognize aboriginal title to a specific area.