The Supreme Court has told us, on the one hand, that provinces have constitutional capacity to infringe Aboriginal rights if they can justify the infringement and, on the other hand, that Aboriginal and treaty rights lie within a core of exclusive federal authority protected altogether from provincial impairment by the constitutional doctrine of interjurisdictional immunity. In its 2010 jurisprudence, the Court had three opportunities to reflect on interjurisdictional immunity and perhaps to resolve this antinomy; two of those expressly involved provincial laws and Aboriginal interests. Yet at the end of 2010, we were no further ahead on it than we had ever been. All we knew for sure was that rumours of the death of interjurisdictional immunity were exaggerated and that the Court was divided, and seemed confused, about how and when to think about the core of exclusive federal authority over “Indians, and Lands reserved for the Indians”. This paper explicates these developments and seeks to encourage a broader, deeper discussion of the relationship between provincial authority and treaty and Aboriginal rights, with a view to clarifying the boundaries of that relationship, one way or the other.
"Dancing in the Dark: of Provinces and Section 35 Rights After 2010."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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