The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits’. Lord Sankey in Edwards v Canada (AG) [1930] A.C. 114, 136 (The Persons Case).
It would be difficult to underestimate the influence played by Lord Sankey’s declaration in the development by the Supreme Court of Canada (SCC) of a distinctively Canadian approach to constitutional interpretation.
With reference to relevant primary and secondary sources (as presented in class and in the reading materials), discuss Lord Sankey’s statement by addressing at least three of the following profiles from a) - e) of your choice:
a) definition of the core principles of the ‘Living Tree’ doctrine;
b) the relationship between the UK’s Judicial Committee of the Privy Council and the Supreme Court of Canada (SCC) and whether the SCC has been receptive to the ‘Living Tree’ doctrine;
c) advantages and disadvantages of applying the ‘Living Tree’ doctrine, as compared and contrasted to a more ‘Originalist’ approach to constitutional interpretation;
d) limits applicable to the ‘Living Tree’ doctrine;
e) examples of court decisions where the SCC has applied the ‘Living Tree’ doctrine.
REFERENCE
Canadian Constitutional Amending Procedures: 1867-1982i n American Journal of Comparative Law by Lederman, W. R. 1984
Constitutional Law, 5/e
Patrick J. Monahan, Byron Shaw, and Padraic Ryan
THE PROBLEM QUESTION:
- The Anishinaabeg have a long history of living on and using the land in the fictitious northern province of North Yukon. The extremely harsh climate and treacherous landscape in this part of Canada has meant that the Ashinaabeg have been the only people to occupy this land for at least three millennia.
The Ashinaabeg people are known for being large game hunters. Historically, they used North Yukon land to hunt for fur-bearing animals to supply the fur-trade. But today they use it to hunt Calingas, rare birds whose feathers are used to make trendy bags for largescale au couture fashion houses. While they do not have to kill the birds in order to pluck the feathers, frequently the stress of the process causes these birds to die while in captivity. The trade in Calinga feathers is very lucrative and the Ashinaabeg people claim that 10% of their tribe’s wealth can be attributed to the sale of the feathers to fashion houses. They have recently used this money to build a large cultural centre for their people, where they celebrate the spring harvest together and sing ancient songs passed down through the generations about how Ashinaabeg ancestors travelled to North Yukon thousands of years ago, and built strong, lasting roots in the land.
Imagine that recently, the Federal Government have identified the Calingas as an endangered species and have enacted a statute to protect them from going extinct.
The (Fictitious) Calinga Protection Act (2020) states:
Summary:
The Calinga are a rare and special species of bird that have been present in parts of Canada for thousands of years. For this reason, they have a special relationship to Canadian culture and identity. In its last report in 2019, Environment Canada declared the Calinga an endangered species, and indicated that, without any restrictions being implemented, Calingas are likely to go extinct in 3-5 years.
The purpose of this Act is to protect the Calinga bird from extinction for the preservation of Canadian environmental culture, and to ensure that future generations of Canadians can enjoy Canada’s environmental treasures, including the Calinga, for years to come.
General Prohibitions:
- (1) No person shall kill, harm, harass, capture or take for their own personal use the Calinga bird or any part thereof, or any member of the Calinga species.
(2) No person shall possess, collect, buy, sell or trade any member of the Calinga species or any part thereof.
Punishment: - (1) For any person found in contravention of any of the prohibitions listed in Section 26, a first offence will result in a $10,000 fine, and subsequent offences could result in fines up to $100,000 and/or a term of imprisonment not exceeding one month.
Turner is a member of the Ojibwa tribe of Ashinaabeg people, and lives in North Yukon. He was recently arrested for trying to sell Calinga feathers to a purse designer and charged with a violation of s.26(2) of the Calinga Protection Act (2020). Turner is wanting to challenge the constitutionality of the Act under which he has been charged and he is claiming that the prohibitions under Section 26 violate s.35 of the Constitution by limiting an Ashinaabeg Aboriginal right to hunt animals in North Yukon, and to engage in their commercial export. The Ojibwa tribe, to which Turner belongs, also feel. that they have grounds to make a claim for Aboriginal title over North Yukon. Respond to each of these claims.
Your response should include a discussion of the following:
- Does Turner have an Aboriginal right to engage in the selling of Calinga feathers?
- If so, has the Calinga Protection Act (2020?) unjustifiably infringed this right? (consider the relevant law here even if you do not believe that Turner has a constitutionally protected Aboriginal right to sell Calinga feathers).
- Can the Ojibwa people make a claim to title over North Yukon?