Life Among the Ruins: Section 91(24) After Tsilhqot'in and Grassy Narrows

  • Kerry Wilkins Adjunct Professor, Faculty of Law, University of Toronto


In two landmark 2014 decisions — Tsilhqot’in and Grassy Narrows — the Supreme Court of Canada held that section 35 of the Constitution Act, 1982, is all that protects existing Aboriginal and treaty rights from federal or provincial infringement: that such rights derive no additional protection from the doctrine of interjurisdictional immunity. This article examines that conclusion by criticizing the reasoning offered in its support, pointing out its unacknowledged doctrinal implications, and inviting a broader conversation about how the law should address them.