Excerpted From: Kent McNeil, Tsilhqot'in Nation and Interjurisdictional Immunity: When Are Judicial Decisions Involving Indigenous Claims Retroactive?, 56 U.B.C. Law Review 161 (September, 2023) (234 Footnotes) (Full Document)


KentMcNeilIn one sense, judicial decisions are always retroactive because they apply law to factual circumstances that arose in the past. In situations where common law judges need to articulate new law in relation to past circumstances, they still use this law to decide the case. They do not say, “because our courts haven't faced this legal issue before, it would be unfair to apply it retroactively to the facts of this case, but this will be the law from now on”. On this approach, many just claims would simply be dismissed because judges would lack the legal tools necessary to decide them. Instead, judges declare what the law is and then apply it retroactively to the facts. A classic example is the famous case of Donoghue v Stevenson, in which the House of Lords extended the law of negligence and imposed tort liability on a manufacturer of ginger beer after a consumer got sick from the presence of a snail in a bottle of the beverage.

Unlike in most court cases, when Indigenous parties go to court the factual basis for their claims often precedes the litigation by decades, if not centuries. This is partly due to the tests the courts have created for proof of Aboriginal rights. In R v Van der Peet, the Supreme Court of Canada decided that the Aboriginal rights (apart from Aboriginal title) of First Nations depend on proof of practices, customs, and traditions integral to distinctive Indigenous cultures prior to contact with Europeans. As this was the first time the Court provided a test for Aboriginal rights, this was newly-articulated law, and yet the Court has not hesitated to apply it retroactively to cases that, in Eastern Canada, depend on proof of Indigenous practices, customs, and traditions up to 400 years in the past. Once adequate evidence of this factual basis for these rights has been presented, the Court has used the law first articulated in Van der Peet in 1996 and found that the claimed rights existed prior to enactment of section 35 of the Constitution Act, 1982. Given that the evidence and hence the basis for these rights has to relate to the period prior to first contact with Europeans, they must have existed in some form and become cognizable by the common law at the time of British acquisition of sovereignty.

Where Aboriginal title is concerned in Canada, Indigenous claimants have to prove that they were in exclusive occupation of land--a factual matter the time of the British Crown's assertion of sovereignty, which varies across the country. In British Columbia, the Supreme Court accepted 1846 for this purpose. And yet the Court first articulated this test for Aboriginal title in 1997 in Delgamuukw v British Columbia. In 2014, the Court applied this test retroactively to 1846 in Tsilhqot'in Nation v British Columbia. Similarly, Native title in Australia depends on proof of Indigenous occupation of land in accordance with Indigenous law at the time the British Crown acquired sovereignty, which in the eastern half of the continent was in 1788, and yet this test for title was only established and applied in 1992 in Mabo v Queensland [No 2].

In this article, it will be argued that, while newly articulated law usually applies retroactively, as in the Indigenous rights cases just discussed, this is not always the case. In particular, while the application of Aboriginal title law in Tsilhqot'in Nation is retroactive, the Supreme Court's obiter comments on the non-application of the doctrine of interjurisdictional immunity to Aboriginal rights are not. Support for this argument will rely on distinguishing three classes of cases: (1) cases of first impression in which a legal issue arises for the first time; (2) cases in which a lower court decided a legal issue, which an appeal court later characterizes in a different case as bad law; and (3) cases in which a final court of appeal decided a legal issue and then changes its mind in a later case, overruling its own precedent, as happened regarding interjurisdictional immunity in Tsilhqot'in Nation.

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Judicial decisions can be either retroactive or prospective. When they decide rights and obligations as between the parties to the litigation, they obviously have to relate back to the time when the events or transactions giving rise to those inter-party rights and obligations took place. But they do not necessarily lay down the law prior to that time. This article has distinguished three kinds of court decisions. Decisions of first impression that involve declarations of the law in relation to a particular matter for the first time are usually not time limited in their retroactivity. Likewise, decisions that involve the overruling of a previous lower court decision typically are not time limited. In both of these contexts, the presumption of retroactivity applies. However, the third kind of decision, involving an overruling by the highest court of one of its own decisions--that is, a decision that amounts to a clear change in the law--is not necessarily retroactive.

The Supreme Court grappled with the issue of substantial judicial changes to the law in the Hislop and Albashir cases. In the absence of a clear indication of whether a decision is intended to be retroactive or prospective, the Court said judges should consider all the relevant factors, including reliance, fairness, and allocation of public resources. What they seem to have had in mind are changes resulting from the ratio decidendi of the overruling judgment. When the changes proposed are contained in obiter comments, one would not expect them to have retroactive effect. Instead, they would normally be regarded as instructions to lower courts on how cases should be decided going forward.

In this article, I have argued that Chief Justice McLachlin's obiter comments in Tsilhqot'in Nation and Grassy Narrows on the application of interjurisdictional immunity to Aboriginal and treaty rights are deeply problematic and should be revisited. In the meantime, no doubt lower courts will feel obliged to follow them. However, the substantial change in the law envisaged by the Chief Justice could be limited in its application by regarding it as prospective only. This would mean that Aboriginal and treaty rights claims arising before but tried after the Court's decision in Tsilhqot'in Nation would still be governed by interjurisdictional immunity.

Chief Justice McLachlin did not provide a clear indication of when the change in the law she envisaged would take effect, as the judges in Albashir said the Court should do when it overrules one of its earlier decisions. There are indications in her judgment that the change occurred when section 35(1) of the Constitution Act, 1982 became law, but for that to have happened the section would have had to amend the Constitution by removing the division-of-powers protection section 91(24) of the Constitution Act, 1867 had previously provided to Aboriginal and treaty rights. That cannot be right, as the purpose of section 35(1) was to provide those rights with more, not less, constitutional protection. Nor is it reasonable to think that her revision of the law is retroactive to 1867 when section 91(24) was included in the Constitution. Part of her explanation of why Morris “should no longer be followed” was that the Court's approach to interjurisdictional immunity has changed since Morris was decided in 2006. This too points to a prospective interpretation of her obiter comments on the application of interjurisdictional immunity to Aboriginal and treaty rights.

Emeritus Distinguished Research Professor, Osgoode Hall Law School, Toronto, Canada.