Chapter 2  Jurisfiction and Other Settler-Colonial Legal Imaginaries

Background

In 2014, the Federal Court found that the Mikisew’s claim was valid; the changes to the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, and the Canadian Environmental Assessment Act provided “a sufficient potential risk to the fishing and trapping rights [. . .] so as to trigger the duty to consult” (Courtoreille 2014, para. 93). Importantly, the Supreme Court of Canada (SCC) found in Haida Nation v. British Columbia that actual harm need not be done in order to trigger the duty to consult but that the “potential existence” of harm was sufficient (2004, para. 35), and in 2014, Justice Hughes of the Federal Court found this to be the case for the Mikisew. Justice Hughes concluded mildly that “notice should have been given to the Misikew [sic] in respect of those provisions that reasonably might have been expected to possibly impact upon their ‘usual vocations’ together with an opportunity to make submissions” (Courtoreille 2014, para. 103) and that the relief given to the Mikisew should be declaratory. Hughes noted that the court must respect the separation of powers and also that anything more than a declaration at this point (i.e., an injunction) would present too many logistical and legal problems in respecting jurisdiction between the courts and parliament but that “a declaration to the effect that the Crown ought to have given the Misikew [sic] notice when each of the Bills were introduced into Parliament together with a reasonable opportunity to make submissions may have an effect on the future respecting continuing obligations to the Misikew [sic] under Treaty No. 8” (para. 109).

Two years later in Canada (Governor General in Council) v. Mikisew Cree First Nation (2016), the Federal Court of Appeal (FCA) found that Justice Hughes improperly conducted a judicial review of legislative action contrary to the Federal Courts Act (1985) and that, by subjecting legislation to judicial review, he failed to respect the doctrine of separation of powers and the principle of parliamentary privilege. While the Mikisew argued that ministers, when proposing legislation, acted as members of the executive, the FCA found that ministers, when making legislation, acted as parliamentarians and so were not subject to judicial review. Further, Justice Yves Montigny, writing for the court, claimed that Justice Hughes was not respectful enough of the boundary between courts and parliament. For Montigny and the FCA, imposing a legal duty to consult during the legislative stage “would not only be impractical and cumbersome and potentially grind the legislative process to a halt, but it would fetter ministers [sic] and other members of Parliament in their law-making capacity” (Canada 2016, para. 60). Yet in the very next paragraph, Montigny also claimed that “it is good politics to engage stakeholders such as Aboriginal groups on legislative initiatives which may affect them or regarding which they have a keen interest, before introducing legislation into Parliament” (para. 61). For the Federal Court of Appeal then, consultation on legislation may be good politics, but it is not good law.

In Mikisew Cree First Nation v. Canada (Governor General in Council) (2018), the SCC sided with the FCA against Justice Hughes and declared that the courts do not have jurisdiction for judicial review because “while Cabinet ministers are members of the executive, they participate in this process . . . not in an executive capacity, but in a legislative capacity” (Mikisew 2018, para. 113). In essence, parliamentary privilege and the separation of powers prevents courts from interfering in the legislative process. To grant the Mikisew their appeal would be to “empower plaintiffs to override parliamentary privilege by challenging the process by which legislation was formulated, introduced or enacted” (para. 124). Clearly, one of the most salient themes to emerge from the SCC case is the issue of jurisdiction.

On Travelling Crowns, or Where Is the King?

The FCA and SCC rely on the Federal Courts Act (1985) to say that Justice Hughes erred in his determination that parliamentarians drafting legislation could be subject to the duty to consult.2 The higher courts claim that, although the lawmakers in question are ministers (and as such are part of the cabinet, which is part of the executive or Crown, the body subject to the duty to consult), at the time of drafting, they function as parliamentarians, which makes their actions immune to judicial review.

Justice Hughes thoughtfully addressed these issues in the initial 2014 decision from the Federal Court. He claimed that, in accordance with the Federal Courts Act, no member of “the House of Commons, nor any committee or member of either house” would be subject to judicial review (Federal Courts Act 1985, sec. 2[2]); the Mikisew were not seeking judicial review of the content of the omnibus bills nor a decision made by a member of parliament, nor a minister to implement legislation (Courtoreille 2014, para. 22). Rather, “the Applicant is seeking to engage the process that Ministers of the Crown undertake before legislation has been drafted and presented to Parliament” (para. 22, emphasis mine). He goes on to do a careful reading of the legislative process as outlined in a guide published by the Canadian Privy Council Office in 2001 (submitted by the Mikisew First Nation), as well as oral arguments and cross-examination, to conclude that there is ample space to accommodate the duty to consult within the existing legislative process before a bill goes before parliament:

At the very least, a duty to consult arises during the Policy Development and Cabinet Approval of Policy stages of the law-making process in this case, and at the very least, the duty to consult could attach to all steps up to the review and sign off of the sponsoring Minister. This means that the duty to consult would arise before Cabinet provides notice to Parliament, and thus before the introduction of the Omnibus Bills into Parliament. (Courtoreille 2014, para. 36)3

Justice Hughes also notes the inherent tension between Canada’s commitment to a clear separation of powers on the one hand and a constitutional duty to consult in the name of the honor of the Crown, given force with section 35 of the Constitution Act (1982) on the other. At issue here is the slippery nature of the separation of powers when attempting to address Crown conduct that “has the potential to adversely affect an Aboriginal claim or right of which the Crown has actual or constructive knowledge” (Courtoreille 2014, para. 39). And indeed recent case law has allowed for judicial interventions in the name of the duty to consult, even during planning stages (Courtoreille 2014, paras. 41–43; Haida Nation 2004; Mikisew Cree 2005).4 Moreover, Justice Hughes argues that simple suggestions that court interference in the law-making process is detrimental to governing fails to recognize the laborious, multistep process of law-making in the first place (Courtoreille 2014, para. 62). In short, for Justice Hughes, “the steps that Cabinet Ministers undertake during the law-making process prior to introducing a bill into Parliament do indeed constitute Crown conduct that can give rise to the duty to consult” (Courtoreille 2014, para. 84). But this suggestion was rejected by the FCA and the Supreme Court; they insist, against Justice Hughes, that there is a clear separation between parliament and executive. However, the image of such absolutely autonomous spheres requires some fantastical leaps of its own.

The Supreme Court relies on a formulation from Walter Bagehot’s 1872 The English Constitution to conjure two metaphors to describe the relationship between the legislative and executive branches. In so doing, the court admits that “there is no doubt overlap between executive and legislative functions in Canada; Cabinet, for instance, is ‘a combining committee—a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state’” (Mikisew 2018, para. 33). But they then counter this by claiming that there is a clear distinction and that they do not believe “ministers act in an executive capacity when they develop legislation. The legislative development at issue was not conducted pursuant to any statutory authority; rather, it was an exercise of legislative powers derived from Part IV of the Constitution Act, 1867” (Mikisew 2018, para. 33). Although the court gives little detail on precisely what they mean here (and doesn’t explain the seeming contradiction that the Constitution Act is indeed statutory), they emphasize that ministers are acting as members of the House of Commons in developing legislation, duties granted under Part IV of the Constitution Act (1867).

But let me explore these two metaphors to their full extent in order to ask just what kind of a relationship between branches we are to infer. In the first instance, if the cabinet is a hyphen, it looks something like this, “legislature-executive,” where the cabinet is the unspoken presence connecting the two. Are we to assume, then, that if we add the third branch in the popularly imagined trinity of state power, “legislature-executive-judiciary,” that the hyphen infers another silent partner between the executive and the courts? If so, who or what is it? Is there yet another combining committee between the courts and the legislature?

In the second metaphor, the cabinet is a buckle. Does Bagehot, and by extension the SCC, mean a buckle on a shoe where legislators are the shoe, the cabinet is the buckle, and the executive is the foot it all stays fastened to? Or perhaps legislators are the foot (doing all the walking), the executive is the shoe that protects the legislators, and the cabinet (the buckle) is what keeps the shoe from sliding off? Or maybe Bagehot means a belt buckle, whereby legislators are one end of the buckle, and the executive is the other side. In this metaphor, perhaps the cabinet is the publicly viewable frontispiece that ties them together, while parliament and the executive constantly run seamlessly together around the back? In either metaphor, the court undoes their hard and fast claim that there is a distinct separation between legislature and the executive by using the metaphor of the cabinet as a combining committee.

Moreover, in the very next paragraph, the court claims that “the development of legislation by ministers is part of the law-making process, and this process is generally protected from judicial oversight” (Mikisew 2018, para. 34). Despite the striking use of the word generally, which introduces a very direct admission that there are exceptions to this supposedly hard and fast separation, the justices also concoct an image of law-making as pure and sacrosanct, immune to any type of regulation or interference. While lawmakers know that this process is rife with interjections, consultations, and even reviews by an unelected second chamber,5 it has also more recently been subject to court intervention. For example, in British Columbia Teachers’ Federation v. British Columbia (2016), the government was found to have failed to consult in good faith prior to the introduction of legislation.

The 2016 case between the British Columbia Teachers Federation and the province seems to introduce profound dilemmas about the separation of the branches asserted in Mikisew. In this remarkable case, the SCC relied wholly on the reasons given by the British Columbia Court of Appeal in 2015, choosing not to elaborate on the reasons for their decision whatsoever. Even more surprising was the fact that the majority of the SCC sided with the lone dissenting judge from the Court of Appeal, Justice Ian Donald. In the earlier case, Justice Donald, dissenting, argues that the province did not meaningfully consult with the teachers’ union and, as such, the legislation in question (Bill 22) is not constitutionally valid. Justice Donald, and in turn the SCC majority that agree with him, makes bold claims that there is a constitutional “right to a meaningful process that is not continually under threat of being rendered pointless” (British Columbia 2015, para. 285) and that “a Charter breach cannot always be seen within the four corners of legislation, but must sometimes be found to occur prior to the passage of the legislation, when the government failed to consult a union in good faith or give it an opportunity to bargain collectively” (para. 288). Although he is speaking in the context of the Charter right to “freedom of association” (sec. 2d) as it pertains to unions, it is not difficult to see how this might be relevant to the context of meaningful consultation with Indigenous communities pursuant to section 35 of the Constitution Act (1982). I return to the issue of meaningful consultation and its constitutional requirement below, but let me note that Justice Donald goes further to complicate the relation between branches when it comes to prelegislative consultation. Again, speaking in the context of labour relations, he states that prelegislative consultation is done by the executive, not the legislature. Moreover, he cites Justice Major in Wells v. Newfoundland, [1999] 3 S.C.R. 199, as he asks for a reality-check when it comes to the myth of the absolute separation of powers in Canada:

[Wells] said, “The Court should not be blind to the reality of Canadian governance that, except in certain rare cases, the executive frequently and de facto controls the legislature”: Wells at para. 54. The same acknowledgement of reality is required in this case. Thus, the unilateral imposition, alteration, or deletion of employment terms by the Legislature is, in most circumstances, the final step in an agenda of the executive branch; the same executive branch that both develops policy and has a constitutional obligation to consult or negotiate with collective representatives. (British Columbia 2015, para. 289)6

In this case, the Supreme Court refused to see the separation of powers as rigid and absolute, yet a clear distinction was drawn in Mikisew.

At issue in these cases is the discrepancy of when a minister becomes part of the executive—or, in other words, a dispute over where exactly the Crown lay. I suggest that a reading of the competing assertions of the Crown’s true resting place among these three Mikisew cases illuminates a well-worn theme of colonial jurisprudence: the mythological foundations of modern law, to borrow from Peter Fitzpatrick’s book title (1992). The take-away here is that the Crown is both everywhere and nowhere. The judges’ careful reasoning suggests that there is a reasoned science, a legal rationality, that can pinpoint exactly where the Crown lies (or at what precise point a parliamentarian becomes a minister, and hence becomes subject to the duty to consult). But this is a ruse, although not an intentional one.7

In what follows, I provide examples of where observers can see an alternative narrative in Mikisew—not of a rational legal order navigated adeptly by experts of law but rather a messy, contradictory settler-colonial legal system enacted by competing agents that are often at odds with one another. The upshot of this analysis is to show that, while the Mikisew decision may foster a continued allegiance to the myth of legal positivism, it is part of a long and global history of case law that reveals the tenuous claim of colonial societies’ legal power.

Parliamentary Versus Constitutional Sovereignty, or Choose Your Favourite Constitutional Principle

Even on strictly legal terms, Mikisew tells a confusing story of settler sovereignty. On the one hand, there is a strong claim among the SCC majority that judges cannot interfere in the legislative process (either to proscribe a duty to consult upon parliamentarians or to conduct a judicial review into the passing of the two omnibus bills in question) if parliamentary sovereignty is to be upheld. In this situation, parliamentary sovereignty reigns supreme, much like it does in UK law, subjugating all other legal considerations. On the other hand, there is also a narrative of constitutional supremacy adrift in this case, amplified by Abella and Martin. These insights draw attention to the principle of the “honour of the Crown,” given weight via section 35 of Canada’s Constitution. This unresolved tension between parliamentary and constitutional supremacy, a long-standing dilemma of Canadian constitutional law, gives insight into the conflicting claims of settler sovereignty.

Inherent in the concept of the honour of the Crown is the acknowledgement that there is an Indigenous claim to sovereignty that precedes Crown sovereignty (Mikisew 2018, para. 22). The principle is meant to promote negotiation outside of the courts (para. 22, citing Taku River Tlingit 2004, para. 24) and is considered to impose a “heavy obligation” on the Crown (para. 24, citing Manitoba Metis 2013, para. 68), even going so far as to be considered a “constitutional principle” (para. 24, citing Beckman v. Little Salmon 2010, para. 42). However, it carries no specific content: “It speaks to the way in which the Crown’s specific obligations must be fulfilled. These obligations vary depending on the circumstances” (para. 60, citing Manitoba Metis 2013, para. 73).

But there is debate about how foundational a role the honour of the Crown should play. In their reasoning, Abella and Martin cite earlier case law to say that the honour of the Crown should be “the first consideration in determining whether the legislation or action in question can be justified” (Mikisew 2018, para. 64). This seems to suggest that case law stemming from Sparrow and Haida has already deemed constitutional supremacy to be paramount to parliamentary sovereignty. Abella and Martin further claim that the process of reconciliation demands a practice of “ongoing consultation,” meaning that the “legislative sphere is not excluded from the honour of the Crown, which attaches to all exercises of sovereignty” (Mikisew 2018, para. 78). Amplifying the tension between parliamentary and constitutional sovereignty, they insist that case law has already decided that section 35 is to be understood as a limit on parliamentary sovereignty and that

it seems to me quite ironic that parliamentary sovereignty would now be used as a shield to prevent the Mikisew’s claim for consultation. With respect, such an approach reactivates the happily silenced spirit of St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.), where Aboriginal rights were “dependent upon the good will of the Sovereign” (p. 54). (Mikisew 2018, paras. 85–86)

Abella and Martin go even further: “I do not accept an approach that replaces an enforceable legal right to consultation, with a vague and unenforceable right to ‘honourable dealing.’ The duty to consult is not a suggestion to consult, it is a duty, just as the honour of the Crown is not a mere ‘incantation’ or aspirational goal (Haida Nation, at para. 16)” (Mikisew 2018, para. 84). This resounding criticism of the majority reasoning should not go unheard. More than showing a difference of opinion, Abella and Martin are pointing to the fickle arguments of the courts—in Sparrow, constitutional supremacy was argued to reign supreme, and in Mikisew, it is subjugated to parliamentary supremacy.

Johan van der Walt writes about the somewhat arbitrariness of legal decisions in his book Law and Sacrifice (2005). He argues that, because decisions have to be made, the best we can do is draw attention to the losers. In opposition to Supreme Court decisions that do the work of narrating how the winners won, he argues that we also need stories of the losers so that we render legible the very real possibility that the losers could come back and win the legal argument on another day. While there is much to be gleaned from van der Walt’s insights, this is not the case I am making here. More than rendering legible the losers, my project is to draw attention to the construction of the narrative of the winners to show how rife with contradictions the myth of legal rationality is; I want to disrupt a reading of it as well-reasoned and rational law. Taking cues from Said’s insights in Orientalism, Fitzpatrick argues that “occidental being is impelled in a progression away from aberrant origins. It is formed in the comprehensive denial of the ‘other’—in assertions of universal knowledge, imperious judgement and encompassing being” (1992, ix–x). This is what is happening in Mikisew (2018).

Narrating the supposedly solid ground of law for the SCC, Justice Karakatsanis claims that parliament reigns supreme—sort of:

Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. While the adoption of the Canadian Charter of Rights and Freedoms transformed the Canadian system of government “to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy” (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 72), democracy remains one of the unwritten principles of the Constitution (Secession Reference, at paras. 61–69). Recognizing that the elected legislature has specific consultation obligations may constrain it in pursuing its mandate and therefore undermine its ability to act as the voice of the electorate. (Mikisew 2018, para. 36)

In this fascinating paragraph, Karakatsanis makes an acrobatic effort to hold on to the mythological truth of parliamentary supremacy.8 I paraphrase: Although it is subject to constitutional authority, parliament can make or unmake any law it wishes. Moreover, democracy—given weight because it is an unwritten constitutional principle (!)—means that parliament shall be unconstrained so as to serve the people that elected it. This quixotic entanglement of constitutional and parliamentary commitments leaves much for a reader to ponder over but lays bare the non-place of any truth of the autonomy of parliamentary sovereignty (or constitutional sovereignty, for that matter).

Moreover, the justices pick and choose which unwritten constitutional principles they want to privilege; in this case, democracy is the winner, and nowhere do we hear a consideration of other unwritten principles, such as the protection of minorities (Secession) or the honour of the Crown (Little Salmon), both arguably relevant to the Mikisew case. Are we to assume, then, that there is an unspoken hierarchy to these unwritten principles? Or is it that the lionized electorate that the court imagines is always already non-Indigenous? At paragraph 42, the court admits that there are other relevant principles, including the honour of the Crown, but this admission does not destabilize the confidence of legal reasoning in support of parliamentary sovereignty.

Even other SCC members see the capricious reasoning in the majority decision. Justice Brown writes a scathing critique of Justice Karakatsanis:

My colleague would, however, go further, raising—and then leaving open—the possibility that legislation which does not infringe s.35 rights but may “adversely affect” them, might be found to be inconsistent with the honour of the Crown. (paras. 3 and 25). In so doing, however, she undercuts the same principles which have led her to conclude that imposing the duty to consult would be “inappropriate” in the circumstances of this case. Further, by raising the possibility (without, I note, having been asked to do so by any party to this appeal) that validly enacted and constitutionally compliant legislation which has not or could not be the subject of a successful s.35 infringement claim can nonetheless be declared by a court to be “not consistent with [the honour of the Crown,]” my colleague would throw this area of the law into significant uncertainty. Such uncertainty would have deleterious effects on Indigenous peoples, and indeed on all who rely upon the efficacy of validly enacted and constitutionally compliant laws. (Mikisew 2018, para. 104)

Here Brown criticizes Karakatsanis for not being severe enough in her insistence that this issue demands a clear separation of powers. He insists that the constitutional limits on the courts in this context (of legislative review) must be crystal clear both for the Mikisew and all future claimants. But where Brown sees confusion and pushes for clarity, I see confusion and argue that clarification is more obfuscation. The dilemma cannot be made clearer because it requires myth to hold its ground.

The Myth of Modern Law, or the Eternal Return of the Same

The fact that myth is required to ground the narrative of absolute sovereignty is not new to legal thinking. In his theory of the general will and its accompanying legal framework articulated in The Social Contract ([1762] 1997), Jean-Jacques Rousseau attempts to pinpoint how and where his imagined legislator sits. With great effort, he attempts to maintain a separation between his much-lionized autonomous sovereign will of the people and a lawmaker that would legislate on their behalf without influence, a distinction that he ultimately cannot hold. In the end, Rousseau invokes a theological spectre, “a superior intelligence,” as the only legislator capable of enacting the revolutionary form of government, controlled by the will of the people, that he envisions. In short, the task of this legislator “would take gods”:

In order to discover the rules of society best suited to nations, a superior intelligence beholding all the passions of men without experiencing any of them would be needed. This intelligence would have to be wholly unrelated to our nature, while knowing it through and through; its happiness would have to be independent of us, and yet ready to occupy itself with ours; and lastly, it would have, in the march of time, to look forward to a distant glory, and, working in one century, to be able to enjoy in the next. It would take gods to give men laws. ([1762] 1997, 60)

Fitzpatrick picks up on this passage of Rousseau in a 2003 article in the Leiden Journal of International Law titled “‘Gods Would Be Needed . . .’: American Empire and the Rule of (International) Law.” Fitzpatrick’s long-standing interest is the way in which occidental law denies its own theological impulses as it lays its claim to being objective, scientifically determined, and rational. In his germinal text The Mythology of Modern Law, he outlines how modern law garners its cloak of reasonability from its juxtaposition to an imagined “other”—through the figure of the Oriental, Indigenous, customary, and/or barbaric—law. In this work and others, he illustrates how legal thinkers like Rousseau and H. L. A. Hart make (theo)logical leaps in their attempts to draw out law’s sovereign authority; his lasting contribution is to always see how Western law simultaneously relies on and denies these inheritances. This is not to suggest that Fitzpatrick is a righteous secularist—far from it. His point is not to dismiss the theological or the irrational but rather to point to its perpetual presence in occidental law, even as it is denied. And yet, although Fitzpatrick made these insights in 1992, colonial law’s presumed authority continues to reign supreme.

More recently, John Borrows has taken up the problem with Western law’s stories about itself. In Recovering Canada: The Resurgence of Indigenous Law (2002), he demonstrates how case law, although lionized and vaunted as unique, is at its core narrative. He uses this insight to claim that Indigenous law, although often dismissed as simple storytelling, could easily be invoked, like case law, in Canadian courts alongside common and civil case law to adjudicate more justly, not only for Indigenous individuals and communities, but for settlers as well. For him, law is a story and should be treated as such. In a similar vein, Stewart Motha claims in Archiving Sovereignty that “authority needs a story” (2018, 20). Where Borrows claims that law is made up of stories, Motha claims that all law requires fiction. According to Motha, “In the absence of a foundation, law requires a fiction that grounds its authority. This fiction also allows us to tell a story of law as absolutely autonomous, as objective and removed from questions of theology and literature” (96–97). Both Borrows and Motha point to the myth of law’s rational, ordered autonomy, and yet this myth continues to hold much cultural sway. Indeed, the power of this myth continues to grant the Canadian settler-colonial government the state-backed authorization to retain control of Indigenous land, including all the benefits and resources that come with such ownership and the legal right to act as a paternalistic parent to Indigenous communities, holding the power to authorize funds and to infringe on rights and titles if deemed necessary.9 And this state-enforced system of positive law takes its form through the enactment of jurisdiction.10

Jurisdiction lays at the heart of the maintenance of this legal authority. Although commonly attributed to a geographical or territorial demarcation, the term etymologically descends from the root words juris and dictio and translates from the Latin into “speaking the law.” As Austin Sarat claims, jurisdiction “manifests law as performative through speech; it signifies not just a spatial demarcation of law’s reach but also a staging of authority to make pronouncements that present themselves as being ‘law’” (2013, 205). In this way, jurisdiction is more than space or territory; it is also its performative utterance. This “staging of authority” is what brings law into being and along with it, sovereignty.11 Thus, jurisdiction invents law much like the signature invents the “people” in Jacques Derrida’s work on constitutional authority. Here I substitute law and jurisdiction in Derrida’s illuminating paragraph on the paradoxical relationship between signature and signer: “[Law] does not exist as an entity, it does not exist, before this declaration [of jurisdiction], not as such. If [law] gives birth to itself . . . this can only hold in the act of [jurisdiction]. [Jurisdiction] invents the [law]” (1986, 10).

Thinking about jurisdiction as an utterance, as a performance that inaugurates, renders bare the very tenuousness of law. This is why Jean-Luc Nancy refers to it as “jurisfiction”: “The persona of the judge and his edictum are forged from the same fictitious gesture: right is said here of the case for which there can be no prior right, and which is the case of right” (Nancy 2003, 157).12 This is not to say that such jurisfictions do not have real-world consequences. Shiri Pasternak’s work with the Algonquin Nation at Barriere Lake shows that the state’s power to subjugate comes precisely from a complex network of jurisdictions oriented to maintaining settler-colonial control of Indigenous land and resources and “erasing Indigenous law” (2017, 17). Further, the SCC’s decision in Mikisew (2018) deploys a debate about jurisdictional boundaries (all under the assumption of ultimate jurisdiction) to retain sovereignty and prevent meaningful engagement with Indigenous communities on major legislative changes. And yet, dwelling on the concept of jurisdiction and its essence as an utterance, a staging of authority “makes visible a governing and productive instability in the law . . .” (Cormack 2009, 5). It is this instability that we must exacerbate at every opportunity and what I hope to have done in small part in this reading of Mikisew.

Conclusion

My point about the ultimate indeterminacy of the Crown’s precise location or the tension between parliamentary and constitutional supremacy should not be mistaken as a relativistic argument. In this case, and more generally in approaching legal issues of decolonization, there is a strong discourse that asserts that prelegislative consultation with Indigenous communities is too complicated (see, for example, Mikisew 2018, 16–17). I want to be clear that it is not. Justices Abella and Martin, echoing Justice Hughes from the Federal Court, offer several simple legal answers. They suggest that “notice to affected parties and the opportunity to make submissions are hardly foreign to the law-making process” (Mikisew 2018, para. 92). Further, they note that the federal government’s duty to consult during the law-making process is a “component of the Crown’s overarching obligation to deal honourably with Indigenous peoples when regulating their rights” (para. 67) and, as such, is not confined to a particular time or place. Rather, “the honour of the Crown is always at stake in its dealings with Indigenous peoples . . .” (para. 56). Moreover, such an obligation has a precedent in British Columbia Teachers’ Federation v. British Columbia (2016), and the court’s duty to ensure this obligation is upheld has been set out in Sparrow (para. 93), Haida Nation, Taku River, and Mikisew Cree (2005; Mikisew 2018, para. 67). Finally, it is also worth noting that a mere victory for the right to consultation in the prelegislative stage does not mean (1) that Indigenous communities do not retain the right to continue to challenge the same legislation after is has been passed13 nor (2) that Canada has fulfilled and exhausted its requirements owed to those communities.

In the process of writing this chapter, I learned the idiom “castles in the air,” which is meant to refer to an unrealistic approach to a project, or something that lacks a strong foundation. For example, if you have no money, yet you plan to make a big purchase (i.e., buy a new car), you may be someone who is building “castles in the air.” I was toying with the idea that Canadian law is like a “castle in the air,” but it isn’t in the air; its entire narrated existence as a well-ordered, rational, and therefore supreme law is built on an imagined, supposedly backward and customary, other. What I have tried to show here, in the footsteps of others, is how that narrative of superiority is created despite settler-colonial law’s own logical leaps. While much Indigenous resistance and refusal happens at a distance to and in spite of the settler-colonial state, more work needs to be done by Canada’s settler-colonial public—including legal practitioners and socio-legal scholars—to challenge the stories of Western legal superiority that animate our imaginations. We must make room for alternative narratives of justice and legal systems both within and without the contemporary settler-colonial state.

Notes

References

Case Law

Legislation