Law and Public Policy

D02(a) - Indigenous Peoples and the Canadian Courts

Date: Jun 12 | Time: 10:15am to 11:45am | Location:

Chair/Président/Présidente : Kate Puddister (Univerity of Guelph)

Discussant/Commentateur/Commentatrice : Janique Dubois (University of Ottawa)

The Role of the Courts in Policing Indigenous Resistance in Canada: Minh Do (University of Guelph), Kate Puddister (University of Guelph)
Abstract: Indigenous peoples continue to resist colonial forces, including through non-routine, highly visible forms of direct actions taken outside of established political and legal processes (Borrows 2005, Ladner and Simpson 2010). For example, land defenders from Standing Rock, and the Wet’suwet’en and Gitxsan are challenging major pipeline projects in their respective lands. Scholars have critically examined how the state mobilizes police forces to quell Indigenous resistance (Crosby and Monaghan 2018), but the role of the judiciary is often overlooked. Courts can be called upon to issue injunctions, which compel a party to take or refrain from taking a particular action, potentially shaping how police forces engage with Indigenous resistance (Roach 2021). Courts are increasingly issuing injunctions in favour of private interests (Yellowhead Institute 2019), and yet an account of how courts evaluate various rights when Indigenous resistance is underway is underexplored. Our study examines how courts weigh competing rights when issuing injunctions by analyzing the decisions of the superior courts in the Canadian provinces of B.C. and Ontario in the last five years (2017-2022) to compare how courts treat Indigenous resistance with non-Indigenous protests in these jurisdictions. We then analyze the extent to which these injunctions shape police actions towards Indigenous land defenders and non-Indigenous protesters.

The Role of Trust and Relationship Building in Canadian Trial Courts: Indigenous Sentencing Policy and Street Level Bureaucracy: Emma Gill-Alderson (University of Toronto)
Abstract: I am a PhD Candidate in Political Science at the University of Toronto conducting dissertation research on judicial and Crown Attorney implementation of Indigenous sentencing principles in Ontario trial courts and how this influences patterns of diversion to Indigenous community justice programming. My proposed paper presents findings from my first case study: an Indigenous community justice program in a small Northern Ontarian city that works almost exclusively with one local court. Using a qualitative and interpretivist methodology, I look at the participation of court actors in the policy implementation mechanisms that translate written sentencing policy to policy outcomes. Using data from interviews and comparing them to written policy and guidelines surrounding Indigenous sentencing and community justice diversion, I explore the role of court actors as street-level bureaucrats who directly impact Indigenous sentencing policy outcomes at the granular level. I find that the strength of the relationship (defined using three measures: interpersonal trust building, institutional trust building, and institutionalized supports) between community programs and Crown offices has the most important and long-term impact on diversion practices. I argue that all three forms of relationship building need to be present in order to develop effective diversion practices that appropriately respond to Indigenous sentencing policy and guidelines. Strong relationships not only cause Crowns to divert more cases to community justice programs, but they also result in the development of more appropriate diversion practices that match a program’s available resources. These findings are particularly poignant given assumptions of impartiality in Canadian trial courts and the tendency of public policy research to assume written policy is implemented as intended by those who write it.

Of costs, courts, and co-operation: Explaining legislative behaviour with respect to Metis lands in Alberta and Saskatchewan (1930-1990): Christa Scholtz (McGill University)
Abstract: In both the 1930s and 1980s, Alberta passed legislation with respect to Métis lands, while Saskatchewan did not. What explains both Alberta’s legislative activism and Saskatchewan’s legislative stasis across time? Previous scholarship has pointed to robustness of Métis political mobilization to explain Depression-era policy choices, but this variable on its own cannot explain policy choices in the 1980s. In order to analyze these province’s legislative behaviour across time, I turn to a game-theoretic model of legislative supply. Legislative choices are endogenous to policy preferences, intergovernmental relations, and judicial uncertainty over legal jurisdictions. I then test the predictions of the model to the case of Métis land legislation. Using archival sources of cabinet deliberations in both provinces, I conclude that legislative choices with respect to the Métis were primarily driven by governments’ assessments of the economic cost to itself and other parties. Métis political mobilization is important to the degree that it can impose costs on governments. Interestingly, provinces’ beliefs about constitutional jurisdiction only partly constrain legislative behaviour. These findings challenge the judicial argument that jurisdictional clarity simplistically facilitates the supply of Metis land policies. Indeed, political contestation over jurisdictional boundaries is endogenous to policy costs. We see this in 1984, when Saskatchewan’s Devine government, unable to garner federal subsidization of provincial policy costs, supported the Métis National Council’s argument that the Métis fell under federal jurisdiction, while Alberta’s Lougheed government (initially) did not.

The Continuity and Discontinuity of Indigenous Rights in Canada: Neil Montgomery (University of Victoria)
Abstract: With the Constitution Act, 1982, two groups of rights were formally constitutionalized in Canada: first, those rights enumerated in the Charter of Rights and Freedoms and applying to all Canadians; second, those rights recognized in section 35 and applying to “Indian, Inuit, and Métis” peoples in Canada. While Aboriginal rights are formally protected from Charter challenge, the influence of the Charter on the Supreme Court’s Aboriginal rights jurisprudence has been significant. Through a critical analysis of the development of Aboriginal law since 1982, this paper argues that the influence of the Charter on Aboriginal law has resulted in a rights jurisprudence that is in fundamental tension with itself. As the Court has sought to marry an abstract approach to rights drawn from its Charter jurisprudence with an historical approach to rights more fitting to the domain of Aboriginal law, it has struggled to produce a satisfactorily coherent conception of the nature of constitutional rights in general. Without a generally coherent theory of constitutional rights, the Court risks undermining a key aspect of the rule of law. The paper concludes by suggesting that the recent but largely implicit tendency of members of the Court to interpret Charter rights from an historical perspective might provide a theoretical avenue through which such coherence could be established, requiring the courts to reverse rather than reject the relationship of influence between Charter and Aboriginal rights.