Oct 6, 2025:
– Could amendments to the Crown Lands Act face constitutional challenges (Audio)
CBC Info AM “Bill 127, dubbed the Protecting Nova Scotians Act, is about to become law. Our legal columnist Wayne MacKay weighs in on the new law’s controversial amendments to the Crown Land Act, which may go against Mi’kmaq Treaty Rights.
Rough Transcript
CBC: Bill 127, the Protecting Nova Scotians Act is about to become law. It includes amendments to the Crown Land Act which will make it illegal to block or impede access to a logging road. Anyone who doesn’t comply with these new rules could face a fine of $50,000 or spend 6 months in jail.
Information Morning’s legal columnist says the new law could face constitutional challenges and may also go against Mi’kmaw me by treaty rights.
Wayne McKay is professor emeritus of constitutional law at Dalhousie’s Schulich School of Law and he’s in our studio.
Wayne good morning good to see you… it is already illegal to block a road so what does this amendment change?
WM: It really doesn’t change very much because you already cannot lock or impede lawful operations like logging or whatever it might be and if they do that you can go to a court and get an injunction and then have the police enforce it.
SS so the rules are already there. What it changes primarily is a much more severe penalty of up to $50,000 fine and up to six months in jail, both in the extreme case so it changes that and it also criminalizes the protest process.
CBC: and so how would that perhaps come in conflict with what is written in the treaties which protects indigenous peoples rights to be on the land for example, to hunt and gather?
WM: Well it does interfere with the right to hunt and gather and the kind of things that are happening there include gathering of traditional medicines and things for traditional medicines, logging itself to some extent, and perhaps most importantly of all, interferes with the Mi’gmaw traditional connection with the land and the land protectors who are encamped there trying to protect the resource for the future.
So I think there’s a number of ways in which it interferes with the Peace and Friendship treaties of the 1700s.
CBC: And what about the indigenous peoples right to self- governance – is that constitutionally protected because it’s enshrined in treaties?
WM: It’s partly because it’s enshrined in treaties, but also in section 35 itself there is a guarantee of aboriginal rights which could include and does include, in my view, self- government and that is also constitutionally protected.
And by not letting the land protectors and the Mi’kmaw generally be involved in these important decisions is interference with that right to self government.
So I think there’s a number of ways there that it also might violate section 35.
CBC: And are you partly referring to the lack of consultation around these changes to the Crown Lands Act because Mi’kmaw chiefs have spoken up and said they weren’t consulted about this?
WM: Well that that you’re quite right about that. That’s also been interpreted by the Supreme Court and other cases as part of the guarantee of indigenous rights in 35 is the duty to be consulted on these kind of things which did not happen here.
And when you have those kind of limitations on indigenous rights, then the standard of protecting or justifying that is a very high one, justification standard even higher than reasonable limits.
And unlike other cases, I don’t think the evidence is here on this one, compared to, for example, the forest, the limits on going into the woods to prevent forest fires, while a very big restriction, pretty clear justification for that not so much here.
CBC: Could non-indigenous people launch a charter challenge if they were fined under this act?
WM: I think they definitely could because this limits both free expression rights under 2B of the charter and freedom of assembly rights under 2C of the charter
And there are non Aboriginal people there such as environmental scientists, people like Bob Bancroft and so on and others, the Nature Nova Scotia that are protesting that there, and that is limiting their rights
And again the burden is on the government to then justify as a reasonable limit what those… why that has to happen.
Again I don’t think they have a particularly strong case for that, so I think there’s also quite a good charter challenge as well the reasonable limits arguments, a little easier to make than the justification one under aboriginal or indigenous rights.
But it’s still a tough burden to meet.
CBC: And that scenario, is the right that’s being transgressed possibly on which a court challenge would rest is freedom of expression for anyone who’s in the woods trying to say that they want this to stop or there to be limits on a logging operation?
WM: Absolutely, and in fact even broader than that I mean the bill was written very broadly and quite draconian in some ways and it would include a wide range of things, even if you were having a picnic and they decided that was interfering with the logging operations which it might but whatever that kind of thing.
So it’s limiting public access to do anything on Crown Lands really. So it’s a pretty broad limitation on both the expression and assembly.
CBC: The government is saying that this is really coming from what they’ve heard from conservation officers and is centred on safety, what do you make of that in the context of the constitutional issues and the charter issues?
WM: Well there’s a number of problems with that analysis.
First of all the umbrella safety concerns and health concerns and so on is kind of a mantra for limiting rights these days and has been used pretty frequently so you have to look at it very carefully.
But secondly, I think, you have to look at short term and long term in terms of safety; I think people themselves can decide whether they’re at risk and whether the forests are at risk – that may be a debate about long-term/short-term and… certainly a lot of environmentalists who are concerned about what’s happening, particularly clear cutting and the damage that comes with that.
So I think there’s quite a debate to be had which has not been had about whether these are good arguments and the legislation concentrates the power andin the discretion in the minister.
A and that too is that kind of an alarming thing .
CBC: does it surprise you at all, just briefly, that this has gotten this far, given that the government has legal advisors?
WM: Well it does actually to some extent surprise me.
There are arguments to be made about safety and economic interests in these kind of things but I guess where it breaks down in my opinion is not the labels are using but the evidence to substantiate the case.
I mean even on the economic interests and that’s largely what this is about, I think, is working with the private company who leases this and operates it for the people for a price of 5 million a year.
.
I might add to the Canadian to the Nova Scotia population that those economic interests are more short term and if the resource is damaged or not available to future generations then that’s not a good economic result.
So even their economic arguments seem to me are difficult to support.
CBC: Well we’ll see where it goes from here. Wayne, always great to hear your insight and thank you for being here... Wayne McKay is professor emeritus of constitutional law at Dalhousie Schulich School of Law.