Understanding the Leave Decisions in the Wolastoqey Aboriginal Title and Gitxaala BCDRIPA Cases
Some Things These Supreme Court of Canada Leave Decisions Do and Don't Mean
On Thursday May 28, the Supreme Court of Canada refused a leave application in the Wolastoqey case (the Aboriginal title case from New Brunswick that I talked about before). On Thursday May 21, the Supreme Court of Canada had granted a leave application in the Gitxaala case (the BCDRIPA case that I talked about in a series starting here). Let’s talk about what these leave decisions mean.
In simple terms, the Supreme Court of Canada cannot hear every case that parties would like to appeal from the courts of appeal, nor should they. The Supreme Court of Canada is principally not a court of error correction - the courts of appeal need to serve much of that function. It is a final appellate court that can consider the most challenging legal questions and that does so in a focused way so that it can give them the attention they deserve. It grants leave to say that it will hear argument in a case, or it denies leave to say that it will not hear argument in that case.
A decision to grant or deny leave, then, is not a direct indication of whether the Court agrees with or doesn’t agree with the decision below. If a decision is highly problematic in the Court’s view, either in the result and/or in reasoning that will confuse others, that can certainly be a factor in granting leave. But whether the decision is right or not is just one factor, with public interest factors of whether it is in the public interest for the Court to hear a case at this particular point in time having a major role in these decisions.
The Court does not give reasons for its leave decisions (it does many hundreds in a year, and that would be an injudicious use of limited time that the judges have). As a result, in a given case, you do not know why they granted or denied leave. Deciding to hear argument does not mean they will reach a different outcome but may mean simply that they think they should give guidance from the highest judicial level on some of the legal issues involved. Deciding not to hear a case does not necessarily mean that they agree with the outcome and/or reasoning below but may mean that there are simply other factors leading them not to hear that case at the present time.
That said, the Court deciding not to hear a case probably means that they do not consider the outcome and reasoning below extraordinarily pernicious, or that would become a factor in deciding to hear it. So, a case from a court of appeal in one province does gain a little bit of extra persuasive weight by having had leave to appeal to the Supreme Court of Canada denied. But that is all. It is binding law in the province at issue, and it is persuasive in other provinces.
The outcome in the Wolastoqey case, then, is moderately positive for those hoping to see a change in the Cowichan result. But only moderately so. British Columbia’s courts could yet go a different path than the New Brunswick court did, and then the Supreme Court of Canada may have to look at everything again (with a split in appellate courts being a factor that can go into granting leave). The New Brunswick decision is not binding in British Columbia. Moreover, the New Brunswick decision says only that the outcome of Aboriginal title litigation cannot be a title declaration over privately owned lands, while it distinguishes the possibility of a “finding” of Aboriginal title that would otherwise have existed that gives rise to compensation. If British Columbia ends up having to compensate for all the private land in the province, there are still meaningful consequences ahead.
The decision to grant leave in the Gitxaala BCDRIPA case is interesting. Again, it does not suggest a particular outcome - the Court needs to consider all argument carefully. The Court’s readiness to hear the case suggests they see an importance in saying something about the implications of UNDRIP statutes and the position of UNDRIP in Canada. Given that there is a federal UNDRIP statute with significantly overlapping text with the BCDRIPA (and there is an NWTDRIPA that is meaningfully different, on which I am currently doing a research project), it is not surprising that the interpretation of such statutes would be of national interest. Indeed, BC might yet be amending its own statute before the case is heard, so the case might be even more significant at the national level than in BC itself, although there are many complex factors.
The Supreme Court of Canada’s leave decisions on two major Indigenous rights cases over this two-week period warrant attention and are important, but it is important to understand them carefully and not overstate their implications. Every justice at the Supreme Court of Canada will be looking carefully at all arguments submitted in these cases before reaching any view on an outcome. The implications of decisions on leave are just on what cases will be heard. It is significant that the intersection of Aboriginal title and private property won’t be discussed at the Supreme Court of Canada just yet, and it is significant that the interpretation of UNDRIP statutes will be. But there is much ahead with both of these stories, many things to keep watching, and much careful analysis to keep undertaking so that we approach all issues in thoughtful ways rather than just operating in a world of attention-grabbing headlines.