All That History

A historicist, if not quite an originalist, decision from the Supreme Court of Canada

Last week, the Supreme Court issued its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, holding that Métis and non-status Indians fall within the scope of Parliament’s legislative power over “Indians” provided for in section 91(24) of the Constitution Act, 1867. While this outcome may have significant consequences, what interests me most is the approach that Justice Abella’s opinion for a unanimous court took to constitutional interpretation. While I would hesitate to call this approach originalist, it is clearly historical, and is (almost) entirely free from the Court’s habitual paeans to “living tree” constitutionalism.

The only real question for the Court was whether the Métis were “Indians” within the meaning of section 91(24). The government conceded that non-status Indians were. “The prevailing view,” Justice Abella noted, “is that Métis are ‘Indians’ under s. 91(24).” [22] This view is consistent with the way that the term “Indians” has been used throughout Canadian history, beginning before Confederation:

Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Métis were considered “Indians” for pre-Confederation treaties such as the Robinson Treaties of 1850. Many post-Confederation statutes considered Métis to be “Indians.” [24]

Moreover, “the purpose of s. 91(24) in relation to the broader goals of Confederation” ― which was to ensure the federal government’s ability to maintain a good relationship with and control over the Aboriginal peoples, in particular those who might otherwise get in the way of its railway-building ― “also indicates that since 1867, ‘Indians’ meant all Aboriginal peoples, including Métis.” [25]

References to the use of the term “Indian” in pre-Confederation treaties and statutes enacted in the years immediately following Confederation, as well to the purposes that the head of power at issue served at Confederation, might be characteristic of originalist interpretation. However, Justice Abella then proceeds to examine the numerous instances in which governments both federal and provincial, as well as commissions of inquiry created by them, treated the Métis as included within the term “Indian,” over a period of time from 1894 to 1996 and beyond. This is no longer originalism, since the way in which the constitutional language was understood 30, or a fortiori 130 years after its enactment does not tell us much about either its original meaning or the intentions of its framers. If anything, this might justly be called living constitutionalism, were it not for the fact that this term is seldom used to describe the consistent attribution of the same meaning of a constitutional term. (I am not sure why that is the case, by the way.)

Justice Abella also noted that “while it does not define the scope of s. 91(24), it is worth noting that s. 35 of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution,” which suggests that reading section 91(24) as including the Métis makes for a more harmonious constitutional order overall. She pointed out, too, that other decisions of the Supreme Court suggest that groups other than “Indians” in a narrow sense ― notably the Inuit ― can be included in the scope of s. 91(24). It is worth observing that, as Justice Abella noted, one of these decisions ― Reference whether “Indians” includes “Eskimo”, [1939] S.C.R. 104  ― “[r]el[ied] on historical evidence to determine the meaning of ‘Indians’ in 1867.” [39]

There is one brief allusion to the “living tree” approach to constitutional interpretation which the Supreme Court usually claims to favour in Justice Abella’s reasons. Distinguishing Daniels from R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, Justice Abella quoted Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 at par. 30 for the proposition that “[t]hat case [Blais, that is] considered the interpretive question in relation to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities.” I do not think that the reference to “adaptation to new realities” does any work at all in Daniels. The balance of Justice Abella’s reasons shows that the understanding of section 91(24) has been consistent throughout its history.

Perhaps Daniels can be best understood as representing not any particular interpretive methodology, but the Supreme Court’s thoroughgoing if utterly unsystematic interpretive pluralism, of which Benjamin Oliphant and I speak in one of our recent papers. Historical, and even originalist arguments are an ineradicable part of this pluralism, but the court is not committed to them, and it can sometimes affect to dismiss them out of hand even as it uses them to great effect. Daniels is thus an important reminder that, to really understand the Court’s approach to constitutional interpretation, we must look carefully at what it does, and not just at what it says.

One thought on “All That History

  1. Pingback: The Real Problem of Judicial Arrogance | Double Aspect

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