Unprecedented volume and efficiency

While its usage rate dropped from the record-setting pace of R. v. Brunelle and the still-scorching Reference, the Court in Dickson dropped an impressive number of “frameworks” across a much longer set of reasons. 

• R. v. Brunelle: 30 “frameworks” in 130 paragraphs (23.1 frameworks/100¶)
• Reference re An Act respecting First Nations, Inuit and Métis children, youth and families: 17 “frameworks” in 137 paragraphs (12.4 frameworks/100¶)
• Dickson v. Vuntut Gwichin First Nation: 59 “frameworks” in 523 paragraphs (11.2  frameworks/100¶)

With this larger sample size, we can start to discern patterns in the Court’s use of “framework”. Like a good shot chart, this survey shows that not all “frameworks” are equal.

The reasons in Dickson reveal two types of “framework”:

• Legal (aka primary) frameworks, which are established by or described in legal instruments 
  • Statutes, such as the Indian Act (¶58), the UNDRIP Act (¶47), and Yukon First Nations Self-Government Act (¶91)
  • Constitutions and constitutional provisions, including Section 35 (¶133), the “Canadian constitutional framework”, which itself includes Section 35 (¶307, dissent), and “the legal framework of self‑government cultivated by the Vuntut Gwitchin since time immemorial,” aspects of which are reflected in the Vuntut Gwichin Constitution (¶13)
  • Treaties, namely the Umbrella Final Agreement (¶¶14, 15, 17, 472 (Rowe J)), but possibly including the VGFN Final Agreement and the VGFN Self-Government Agreement (¶12)
  • International instruments, such as UNDRIP (¶47)
• Analytical frameworks (Brunelle, 2024 SCC 3, ¶4) (aka secondary frameworks), which are developed by courts to understand and apply those legal instruments
  • The Eldridge framework for applying s. 32(1) of the Constitution Act, 1982
  • The new framework (the Dickson framework?) for applying s. 25 of the Constitution Act, 1982

At least in the context of indigenous peoples and aboriginal rights, the Court is openly preoccupied with structure, which is surprising given its recent insistence on the primacy of text. Specifically, the Court seems intent on reassuring us that there really is so much structure – or at least order – to this area of law. With so many frameworks in place, no one needs to worry about ambiguities, gaps, or even “Charter-free zones,” right? Everything is literally covered.

Of course, these statutes, constitutional provisions, treaties, and analyses aren’t actually “frameworks.” That is a metaphor used to convey the idea of order, structure, and certainty. A “framework” sounds technical, unobjectionable, maybe even neutral. Which, of course, means it is anything but.

Compare, for example, the Court’s recent references to “constitutional architecture” when discussing aspects of the Constitution Act, 1867 (e.g. the federal-provincial division of powers, or the separation of powers (Reference ¶57)) to its invocation of “constitutional fabric” when discussing Crown-indigenous relations (Nacho Nyak Dun, ¶1; Dickson, ¶171). The contrast implies very different roles (and possibilities) for provinces and indigenous peoples within Canada. 

Metaphors are not neutral. Especially the ones that are made to look neutral. We must scrutinize them to discern their subtle content: the values they embody, the possibilities they privilege. 

In this case, these “frameworks” aren’t simply sensible fortifications against disorder, which would be strange enough. In this context, and on closer examination, they are efforts to establish a particular kind of procedural order familiar from Canadian legal processes. 

Consider those provisions (ss. 9-17) of An Act respecting First Nations, Inuit and Métis children, youth and families which the Court claimed “establish a normative framework for the provision of culturally appropriate child and family services that applies across the country.” Those provisions set out principles by which the Act must be interpreted and administered, “primary considerations”, one “paramount consideration,” various factors for consideration, procedural rights of notice and participation, priorities for placement consistent with the various considerations, and so on. These are components of a bureaucratic process. They undoubtedly express important values, but they are all abstract elements of a process that other people will utilize at some point in the future, always subject to various forms of administrative discipline and judicial review. They promise to make fraught decisions about child and family services in a complicated colonial context more manageable and more just. 

The various “frameworks” invoked in Dickson make a similar – but much more significant – promise: to bureaucratize reconciliation. To turn a fraught political, even existential, conflict into a manageable and legalistic slog. A framework is always a framework for something not yet complete. The implicit message to non-indigenous peoples is: don’t worry about reconciliation, we have a process for that; you don’t need to worry about title to your cottage, you won’t need to make hard political choices, everything will be OK. The implicit message to indigenous peoples is: you may have to wait just a little longer for this process to run, but you’re used to waiting and we promise it will be fair. Just trust the process.