by Alex M. Cameron. Montreal: McGill-Queen’s University Press, 2009. 176pp. Cloth. CA $95.00/US $95.00. ISBN: 9780773535831. Paper. CA $29.95/US $29.95. ISBN: 9780773536104.Reviewed by James B. Kelly, Department of Political Science, Concordia University, Montreal. Email: james.kelly [at] concordia.ca.
pp.323-325
The vantage point of this author is particularly interesting, and as a result, it is not a traditional academic treatment of judicial review and liberal constitutionalism. Specifically, Alex M. Cameron is a lawyer with the Department of Justice in the Canadian province of Nova Scotia, who has dealt with important aboriginal rights cases resulting from the Supreme Court of Canada’s (SCC) 1999 decision in R. v. MARSHALL (No. 1). Although not a participant in MARSHALL (No. 1), Cameron became a committed critic of this decision, arguing that the judgment of Justice Binnie was deeply flawed, outcome-oriented, and representative of the worst characteristics of judicial review. In the opinion of Cameron, Justice Binnie ‘invented history’ by substituting his reading of Mi’Kmaq treaty claims with what these claims actually conferred on these aboriginal peoples in regard to hunting and fishing rights guaranteed under section 35(1) of the Constitution Act, 1982. This book is a scathing critique of the 1999 MARSHALL decision and the role played by Justice Binnie. In particular, Cameron argues that the SCC exceeded the appropriate role of the highest appellant court, as it overturned the factual basis of the case at the trial court level, accepted evidence not considered at the trial court level, which resulted in the SCC not reviewing a lower court decision, but allowing for a new case to be argued before it. Thus, MARSHALL 1999 was simply the vehicle in which the SCC, and Justice Binnie, travelled on route to an extreme case of judicial activism and outcome-oriented judicial review.
There are several valuable dimensions to this study. First, the author provides a very detailed discussion of the MARSHALL decision, Nova Scotia treaty relations with the Mi’Kmaq peoples, and attempts to provide an analysis of the later implications of this decision for indigenous-settler relations in modern day Nova Scotia. Secondly, it provides a much needed vantage point in the judicial politics scholarship, as it is written by a practioner and not a legal academic. As such, it provides insight into the professional constraints placed on those who will conduct future litigation in the context of previous rulings.
Despite these important benefits provided by this book, there are a number of fundamental flaws that significantly overshadow its value. Unfortunately, these are quite serious academic flaws that question the underlying critique presented by Cameron – that the SCC should simply [*324] apply the law, and further, should not engage in policy construction through its decisions. Although Cameron does not explicitly articulate it as such, these are the two issues driving his study: first, that the rejection of textualism by the SCC is the root of the MARSHALL policy quandary; and secondly, that significant policy distortion has occurred which undermines Nova Scotia’s ability to manage an important natural resource by negatively affecting aboriginal-settler relations.
The most serious academic flaw of this study is its limited discussion of section 35 of the Constitution Act, 1982. Indeed, much of Cameron’s critique of non-interpretivist judicial review is premised on the SCC not simply applying aboriginal rights authorized under section 35, but creating the meaning of these rights. This position can only be supported if there is a clear legislative intention surrounding section 35 when it was entrenched into the Canadian constitution in 1982. Section 35 is perhaps the most open-ended provision of the constitutional amendments agreed to in 1982, as it states that “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” without providing any guidance as to what they constitute. Recognizing the ambiguous nature of aboriginal rights, this provision, in section 35(1)(a) and (b), required the Prime Minister of Canada to convene a First Ministers Conference, with aboriginal participation, to clarify the meaning of section 35, which occurred in 1983. However, this conference ended in failure, leaving aboriginal rights undefined until the creation of a judicial test for recognizing existing aboriginal rights. Given the failed legislative context of section 35, is it fair to demand an adherence to interpretivism, which Cameron claims is the only appropriate approach to judicial review, because otherwise, the courts are exercising, as indicated by the study’s title, power without law?
Much of the academic validity of Cameron’s study rests on accepting his assumption that the SCC has created the meaning of section 35 by establishing the judicial approach to this right in R. v. SPARROW and R. v. VAN DER PEET. While it cannot be disputed that the SCC established the approach to discovering an existing aboriginal right, his assumption regarding judicial impropriety is only valid if divorced from the failed attempt by the framers of section 35 in 1982 to give this vaguely worded provision textual guidance for judicial application. More than this, it is the logical extension of Cameron’s approach to section 35 that is problematic – given the absence of textual meaning, the courts must, according to Cameron’s argument, refrain from the resolution of aboriginal rights claims until they are able to apply what the legislative intention of section 35, as decided by parliamentary actors in consultation with first nations, is. What this fails to take into account is the important incentives facing parliamentary actors in resource dependant economies, such as British Columbia, Nova Scotia, New Brunwick, not to define section 35 for judicial application. Further, this line of argument overlooks the important power imbalances that characterize the parliamentary-aboriginal relationship and the difficulty aboriginal peoples have experienced in reaching [*325] satisfactory resolution of their rights claims in the absence of judicial definition.
The treatment of section 35, therefore, is the ‘make or break’ point of this book for an outside reader – either you accept the validity of Cameron’s approach to section 35 and judicial review uncritically and discover the value of this insider’s account of the implications of MARSHALL for aboriginal rights in Nova Scotia and Cameron’s astute deconstruction of the Court’s opinion, or you do not, and the academic contribution of this study is severally compromised.
The second limiting feature of this study is the overstated policy impact of MARSHALL 1999 and its importance for future aboriginal rights cases. Cameron attempts to portray MARSHALL 1999 as widespread policy distortion, suggesting that it has rewritten the colonial history of Nova Scotia and framed future section 35 cases. The limitation with these suggestions is the failure to properly understand that aboriginal rights victories are not portable between aboriginal groups, as they are specific to the particular aboriginal nation in question. In this sense, section 35 is a unique rights provision, unlike judicial victories in other provisions, such as the Canadian Charter of Rights and Freedoms which does establish portable rights victories. For instance, the recognition of sexual orientation as an equality right in EGAN v. CANADA created a general right accessible to ‘everyone’ under section 15(1), whereas the victory in MARSHALL 1999 applied only to the Mi’Kmaq. Thus, the policy distortion suggested by Cameron in MARSHALL 1999 was contained by the group-specific context of section 35 rights, as only the Mi’Kmaq of Nova Scotia benefit from the suggested policy distortion caused by the SCC in the case.
Although I was unable to overcome the section 35 hurdle of Cameron’s work, I fully recognize that this may not be a difficult task for potential readers of this study. Not intended as a critique of judicial activism but legal reasoning of an important decision, Cameron’s study will surely be embraced by the critics of the SCC as an important contribution that further demonstrates the Court’s disregard for the boundaries of judicial review. While POWER WITHOUT LAW is not without merit, most notably the author’s attempt to engage in a constructive dialogue on MARSHALL 1999, it stumbles because of its limited treatment of section 35, which, I contend, is the linchpin of this study and its academic importance.
CASE REFERENCES:
EGAN v. CANADA , [1995] 2 S.C.R. 513.
R. v. MARSHALL (No. 1), [1999] 3 S.C.R. 456.
R. v. SPARROW , [1990] 1 S.C.R. 1075.
R. v. VAN DER PEET, [1996] 2 S.C.R. 507.
© Copyright 2011 by the author, James B. Kelly.
