Aboriginal Rights The Test

Transcription

1 Aboriginal Rights The Test 1. Characterize the right based on the pleadings Types of Aboriginal Rights: A. FSC/Activity/Cultural Rights: Sparrow Drift Net Van der Peet Selling 10 Salmon Sappier/Gray Harvesting timber for domestic use B. Commercial Rights: Van der Peet - Commercial right to fish Gladstone - Commercial right to fish herring spawn on kelp Lax Kwa'alaams - Commercial right to fish all species (only used eulachon) C. Right to Self- Government: Pamajewon - Gambling - Self- Regulation of Gambling Activities Mitchell - International borders sovereign incompatibility Campbell - Nisga'a Treaty - "The right of aboriginal people to govern themselves [if not extinguished at 1982], cannot be extinguished but may be defined in a treaty." Haida - Reconciliation protocol - The most likely path to self- government is through consultation and negotiation. D. Title [Property Law]: St. Catherine s Milling AT from Royal Proc. Calder AT from historic occupation Marshall/Bernard - Claims all of Nova Scotia Delgamuukw Aboriginal title, 58,000 sq km of land Tsilhqot in Title claimed in interior of BC. E. Metis Rights: Powley Unlawful hunting of moose. Entitled to AR protection? F. Treaty rights (Justification) Badger Cree ATR to hunt food Marshall lbs. of eel Campbell BC gov t challenges Nisga a Treaty Little Salmon Duty to consult after the Nisga a Treaty? Conclude with the statement: Here the strongest aboriginal right being claimed is. The next step requires assessing the evidence to see if the right can be proved.

2 2. See if the evidence establishes: A) The existence of the pre contact practice, tradition or custom advanced in the pleadings to support the claimed right Courts must take into account the perspective of Aboriginal Peoples (VDP #1) Claims need to be adjudicated on a specific rather than a general basis (VDP #6) Must precisely identify the nature of the claim (VDP #2) i.e. Lax Kwa alaams: o Lamer: an aboriginal right to exchange fish for money or for other goods o o L Heureux Dube, dissent: right to sell, trade and barter fish for livelihood, support and sustenance McLachlin, dissent: commercial right, general right of using the resource, but limited to providing for sustenance needs B) That this practice is integral to the distinctive pre- contact society (VDP #3) Sappier It must be of independent significance to the aboriginal culture in which it exists (Sappier/ Lax Kwa alaams) Requires that a practice, custom or tradition be distinctive; it does not require that the practice be distinct (VDP #8) The influence of European culture will be relevant if it s demonstrated that the practice is only integral because of that influence (VDP #9) C) Consider continuity: does the claimed modern right have a reasonable degree of continuity with the integral pre contact practice? (VDP #4) Discusses where the line should be drawn there has to be allowance for logical evolution o Concern for proportionality: qualitative and quantitative o Evolution of the subject matter vs evolution of methods o The bone hook could be replaced by the steel hook, the bow can become the gun, and so on.. Hogg NOTE: If an Aboriginal right to trade commercially is found, the right should be delineated with regard to the objectives, which may justify infringement of aboriginal commercial rights (Gladstone) 3. Extinguishment Sparrow To be protected by s. 35 it must have existed at the time of enactment "The Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right." Onus is on the Crown to prove extinguishment CONCLUSION: The right is characterized as... Evidence supports that the activity was an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right and that it was not extinguished. 4. Infringement NOTE: Onus on the aboriginal party to show infringement. Aboriginal Plaintiff must prove there was a prima facie infringement on the Aboriginal Right. i.e. If it was infringed? Look to three factors (Sparrow) (Tsilhqot in) (Powley) Examine the intention and the effect of government action. Is the limitation unreasonable? Does the regulation impose undue hardship? (Court back off this language in Gladstone) Does the regulation deny to the holders of the right their preferred means of exercising that right? (Gladstone court said the burden for claimant was a low one and infringement results where the government attempts to regulate the activity in question)

3 5. Justification NOTE: Onus on the Crown to show justification of infringement. A. Is there a valid legislative objective? (Sparrow) Consider the underlying objective of the legislation Objectives must be compelling and substantial Sparrow mentions: conservation and resource management; prevention of exercise of s. 35 rights that would result in harm to the general populace or Aboriginal peoples themselves But rejects a public interest justification as too broad Gladstone there is no internal limit look to compelling and substantial objectives like (preserving regional and economic fairness) B. Has the honour of the Crown been upheld? (Sparrow) The honour of the Crown is at stake à the Crown has to be assessed in light of their special trust relationship with Aboriginal peoples (Guerin) (Manitoba Metis) There might be a valid legislative objective but the analysis does not stop there à how can it be implemented? Can the respective management and allocation decisions be justified? Complicated interconnected issues, conservation, management, allocation C. Regulations must be in line with the allocation of priority. Indicative list of questions: Has there been as little infringement as possible? In the case of expropriation has there been compensation? o Fair compensation ordinarily requires depending on nature and severity of the infringement (Delgamuukw) Has the Aboriginal group been consulted? NOTE: Priority Resource Allocation (Gladstone)(Kapp) Conservation Aboriginal Food fishing rights Commercial Fishing Sports Fisheries 6. Specific Rights A) Treaty Rights Historic: Does the treaty establish an aboriginal right? (Badger) A treaty represents an exchange of solemn promises between the Crown and the Indian nations The honour of the Crown is always at stake; the Crown must be assumed to intend to fulfill its promises. No appearance of "sharp dealing" will be sanctioned. Any ambiguities or doubtful expressions must be resolved in favour of the Indians and;' Any limitations restricting the rights of Indians under treaties must be narrowly construed. Marshall - Use of extrinsic evidence is available in interpreting treaties. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed. Modern Little Salmon The complete code position advocated by the territorial government is, with respect, misconceived. As the Court noted in Mikisew Cree: [t]he duty to consult is grounded in the honour of the

4 Crown.... The honour of the Crown exists as a source of obligation independently of treaties as well, of course (para. 51). Involves presuming the integrity of the honour of the Crown; that, in the absence of a different mechanism contained in the treaty which upholds the honour of the Crown, the duty to consult applies (Little Salmon) and the justification of any infringement of rights (Sparrow) B) Metis Rights Powley - (Van der Peet test modified) - who questions that make this different. Who is metis and when determining rights what is the timeline? Prove: Metis Membership o Self- Identify: "should not be of recent vintage...claims that are made belatedly in order to benefit from a s. 35 right will not satisfy the self- identification requirement." o Ancestral Connection: "require some proof that the claimant s ancestors belonged to the historic Métis community by birth, adoption, or other means..." o Accepted by the modern community: Membership (not conclusive), "The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community s identity and distinguish it from other groups." Prove: Practice was integral to the distinctive pre- control society. Pre- contact test is inadequate... "Prior to the time of effective European control" The pre- control Test pre- de facto sovereignty C) Right to Self Government Sources Inherent Sources: indigenous law; common law; int l law (self- determination) S.35 protection Statute (delegated public authority) e.g. Indian Act, First Nations Land Management Act Sometimes called self administration Negotiated Primary route to recognition Pamajewon (1996) VDP test applies to claims of self- government More work is done of the characterizing the right Apply Delgamuukw after Consultation and Accommodation 1. Is there a duty? (threshold or trigger) (Haida) The Crown has real or constructive knowledge of the potential existence of an aboriginal right. Rights in relation to which the duty applies (Rio Tinto) o Rights not yet proven at law or recognized through negotiation (Haida Nation) o Known or proven rights (Mikisew Cree) o To modern treatise (Little Salmon) The Crown contemplates conduct o Typical example: Government department issues a license or permit e.g.: for forestry or mining. o Always ask yourself who is the (final) decision- maker? With potential adverse effects or impact on the claim or right in question (causal connection) o Causal connection may be a very contested matter in court o Cannot address past impacts and infringements under this remedy o Not confined to decisions which have immediate impact, can extend to strategic higher level decisions 2. What is the content of the duty? And has that duty been met? 3. Go to Justification analysis to conclude.

5 Charter Analysis Does the Charter apply? Does the impugned law have the effect of limiting/infringing upon a guaranteed right or freedom? o Consider tests under implicated Charter rights o S 2 (a) (b), 15 (1), 15 (2), 7 If so, is that limit a reasonable one that is prescribed by law and can be demonstrably justified in a free and democratic society? o Oakes test S1 If not, what is the appropriate remedy? S Application of the Charter (Prigden) A) Who and what is Government? Charter applies to all actions: 1. Legislative enactments subject to charter scrutiny Federal and Provincial Includes subordinate legislation (regulations, and by- laws) 2. Government actors by nature i.e. by its nature, or in virtue of the degree of governmental control exercised over it, it can be characterized as government and all activities fall under Charter, regardless of whether private in nature (e.g., negotiation of contracts of employment). Straight government actors Municipalities - Godbout 3. Government actors by virtue of legislative control Colleges according to the level of governmental control, their actions may or may not be covered. Douglas College Adjudicator exercising delegated powers do not have power to make an order that would result in infringement of Charter. Charter applies to qualifying actions not internal matters etc. 4. Bodies exercising statutory authority (power of compulsion) (VGH) (Pridgen) Professional bodies, law society, universities when they enforce by- laws, Indian bands (interesting application issues) University in creation and enforcement of parking bylaws prohibition distribution of pamphlets (R v. Whatcott, 2002 SKQB 399) 5. Non- governmental bodies implementing government objectives subject to Charter scrutiny in the manner which is carries out objective Eldridge NOTE: Non- exhaustive categories, can overlap- consider and weigh respective factors. Eldrige Application of the Charter when the actor is not government proper? Entity might be governmental in nature Entity might be subject to the Charter in relation to particular activities that can be ascribed to government B) What are the territorial limits of the Charter s reach? General Rule: Charter does not apply outside Canada International law rule against extraterritorial application of domestic law Still applies to Canadian government action abroad: o Look at connecting factors o OK if no conflict with concurrent territorial jurisdiction o Other state consented to application of Charter o Canada cannot act in violation of its international human rights obligations

6 R v. Cook Detectives from Vancouver interviewed Cook in New Orleans and failed to provide with notification of right to counsel 10(b). Held the Charter applies on foreign territory when impugned act falls within 32(1) on jurisdictional basis of nationality of law enforcement engaged in government action and where application of Charter standards will not conflict with concurrent territorial jurisdiction of foreign state. R v. Hape: RCMP officers conducted search and seizure of Turks and Caicos Islands in course of investigation of money laundering of Canadian businessman, local authorities remained in charge. Held that Charter does not apply. When one state looks to another in help with criminal matters, it must respect the way in which the other state provides assistance. Canada (Justice) v. Khadr - Canadian officials interview Canadian citizen in Guantanamo bay, he sought to obtain disclosure for defence purpose of all relevant documents in possession of Crown. Although on foreign soil, International human rights exception- contrary to habeus corpus and violation of the Geneva Conventions. Amnesty International Canada v. Canada (National Defence) - Afghan detainees held by Canadian forces in Afghanistan- treatment did not safeguard against risk of torture and s.7 10 and 12 would be violated. Held that foreigners have no attachment to Canada or its laws and therefore charter does not apply. C) Does the Charter apply to the Common law? (Dolphin Delivery): Where private party "A" sues private party "B" relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply. (Hill) Explains what Charter Values are and how they are something that can be applied to modify the common law as applied to private disputes No governmental action private parties owe no constitutional duties but can argue that common law inconsistent with Charter values (RWSDU v Pepsi) Balance Charter values with principles that underlie the common law Party alleging inconsistency with Charter must prove it and also show it cannot be justified

7 2. Does the impugned law have the effect of limiting/infringing upon a guaranteed right or freedom? 2. Everyone has the following fundamental freedoms: (a) Freedom of conscience and religion; Test (Hutterian Bretheren, Big M Drug Mart) (1) The claimant sincerely believes in a belief or practice that has a nexus with religion; and (Syndicat Northcrest v Amselem) The practices protected by s.2a don t have to be part of an established belief system; they can even be unique to the claimant. They don t have to be perceived as obligatory by the claimant. Rather, it just has to be a sincere belief. (2) The impugned measure interferes with the claimant s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial. Section 1 Analysis (In the context of Section 2(A)): Generally in this area it will call for greater deference 1. Rational connection 2. Minimal impairment: a. The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned. (Majority in Wilson Colony) b. Reasonable accommodation not appropriate if it s a law that s being challenged (Wilson Colony) 3. Final balance/proportionality a. Only this step takes full account of the severity of the effects on individuals or groups. (Wilson Colony) b. Issue will be whether the claimant s still have a meaningful choice. (Wilson Colony) i. Found that they still have a meaningful choice because they can hire drivers, etc. c. If something is a privilege, rather than a right, the standard for justification is lower i. Counter: Eldridge a benefit must be provided in a non- discriminatory manner (raised by Abella in Wilson Colony) 2 (b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication Why protect freedom of expression? (Keegstra): Democracy/ participation in politics and community (instrumental) Truth (instrumental) Self- realization, autonomy (intrinsic) Test - Irwin Toy Does the conduct fall within protection of freedom of expression? Does the activity convey or attempt to convey a meaning? Limit: violence as a form of expression receives no protection Is the purpose or effect of government action to restrict freedom of expression? If yes, infringement has occurred Purpose: If restrictions are aimed at content or attempt to convey meaning to others, this step will be satisfied Effect: If restrictions aimed only at physical effects of the expressive conduct/ activity will not constitute violations of freedom of expression o Claimant must show that conduct promotes one of the 3 core values to establish infringement by presumably neutral rules

8 Public Place Montreal v Quebec Inc, 2005 If a place is public, one would expect constitutional protection on basic expression does NOT conflict with purposes of s. 2 (b) namely; democratic discourse; truth finding; self- fulfillment. Factors: The historical or actual function of the place; and Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression (other factors may be relevant) Positive Rights Analysis (Baier v Alberta) 1. Does the conduct fall within protection of freedom of expression? If so, is the claim for a positive entitlement to government action or to the right to be free from government interference? Negative claims (i.e. normal step 2 analysis). 2. Positive claims: Dunmore Factors (all 3 required for s. 2(b) violation) Specific Test Is the claim grounded in fundamental freedom of expression rather than access to a particular statutory regime? Has the claimant demonstrated that exclusion from a statutory regime has the effect of a substantial interference with s 2(b) freedom of expression, or has the purpose of infringing freedom of expression under s 2(b)? Is government responsible for the inability to exercise the fundamental freedom?

9 Equality Rights S. 15 (1) (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Equality is viewed through a substantive lens KAPP TEST 1) Does the test create a distinction based on one or more of the enumerated or analogous grounds? (Andrews) FORMALISTIC à looking at the individual right Established analogous grounds: (immutable characteristics - Corbiere) Citizenship (Andrews) Sexual orientation (Egan) Aboriginality Residence or off reserve band member status (Corbiere) A few failed arguments: Poverty (Banks, Boulter) Employment status/ occupation (Delisle, Health Services and support) 2) Does the distinction create a disadvantage by perpetuating prejudice or stereotype? SUBSTANTIVE à although equal treatment = unequal outcome, equity NOT equality! Comparator group analysis can be looked at here as part of the contextual analysis Withler The four factors from Law can be considered Prejudice: o Pre- existing disadvantage (Eldridge) o Ameliorative purpose or effect of the law on more disadvantaged groups o Nature and scope of the interest: more severe and localized the results of the law for those affected by it, more likely there is discrimination Reasonableness of the distinction and the legitimacy of the statutory purpose In Law the denial of benefits accurately correspond to the circumstance of a younger spouses ability to gain employment In Withler perfect correspondence b/w allocation of resources and the lines drawn between who get benefits is not required. Withler give more leeway to the government in how they choose to provide benefits Stereotype o Correspondence between the grounds of the claims and the actual needs capacities and circumstances

10 S. 15 (2) Ameliorative Programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 1) Look to step one in a regular S.15 (1) analysis. 2) A program does not violate s. 15 if the government can demonstrate that s. 15 (2) applies (Kapp) Program has an ameliorative or remedial purpose AND o Consider the purpose and not the effects o Gov t must show that there is a rational connection with designing the program to exclude certain groups and achieving its purpose o Nature of the program must not be punitive The program or policy targets a disadvantaged group identified by the enumerate or analogous grounds o Law cannot be a general, social based legislation Role of 15 (2) Which distinctions will be protected? Kapp Read with 15 (1) as supporting a full expressing of equality, rather than derogating from it Those that serve and are necessary to the ameliorative purpose. Cunningham To save or exempt otherwise discriminatory laws. Those that in a general sense serves or advances the object of the program

11 Life, Liberty and Security of Person (S. 7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Who is covered by S.7? Any person in Canada; i.e. includes foreign nationals Only natural persons; i.e. excludes corporations Excludes foetuses: Borowski What is the scope of life, liberty & security of person? Security of person: Morgentaler, Rodriguez, Chaoulli, Gosselin, Bedford Life: o Not much work; capital punished was abandoned pre- Charter o Engaged in PHS: prevented access to health services, thereby threatening Insite clients lives (and security of person) Liberty: o Minimally, freedom from restraint: BC Motor Vehicles Ref o Later cases confirm that liberty is broader, sphere of personal autonomy but does not extend to protect marginal lifestyle choices: Malmo Levine What is fundamental justice? Substantive: BC Motor Vehicles Reference; Wilson in Morgentaler Authorizes evaluation of what the decision, outcome or the prohibition/ limitation contained in a legislative provision Procedural: Morgentaler (Dickson s approach) Authorizes evaluation of how the decision was made Apply the Test: 1. Has life, liberty or security of person (or more than one of these) been deprived? What is the scope of each of these grounds? how do we understand them? 2. Has the deprivation been in accordance with Fundamental Justice? What is included in fundamental justice? How do we understand it, especially in relation to other concepts such as natural justice, due process? Is the deprivation in accordance with: o A legal principle o General societal consensus (RP would see it as a vital part of our societal notion of justice) o Is it sufficiently precise, not too vague (can it be identified with sufficient precision to yield a manageable standard) Deprivations cannot be: o Arbitrary: whether there is a direct connection b/w the purpose of the law and the impugned effect on the individual (rational connection) Bedford o Theoretical connection bw the limit and the legislative goal but a real connection on the facts (Chaohilli) o Overbroad: law that is so broad in cope that it includes some conduct that bears no relation to its purpose. Where there is no rational connection between the purposes of the law and some, but not all of its impacts. Bedford o Grossly disproportionate: the law s effect on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. It does not consider the beneficial effect of the law. Just the negative effect on the individual s rights. Bedford 3. Can it be justified under s. 1? How does S 1 analysis relate to S 7? S7 has an internal limit (the right in issue already authorizes governmental action that deprives a person) In general they will not be justifiable under S1 S7 claimant bears burden of proof

12 S1 Crown bear the burden of proof and in best position to present social science and expert evidence Section 1 - Oakes Test If so, is that limit a reasonable one that is prescribed by law and can be demonstrably justified in a free and democratic society? Two different contexts: Government is mediating b/w different groups ; Government is the singular antagonist of an individual whose rights has been infringed Before the analysis think about deference. (Dickson in Edwards Books, contrary to Wilson s Get it right approach ) More deference is given to the legislature when the law is: o Balancing competing rights: o Protecting vulnerable groups o Allocating scare resources o Conflicting social science evidence o Complex social issues Abella (Dissent) HB says because it involves state coercion so it is not appropriate to have a deferential approach 1) Objectives of the impugned measures must be pressing and substantial and of sufficient importance to warrant overriding a constitutionally protected right or freedom. Broad v Narrow classification of the objective o E.G. Andrew: if it s interpreted broadly then it could be seen as an objective to restrict entry into the legal profession to only those who are qualified; however if it is interpreted more narrowly it changed to restrict entry into the legal profession of Canadian citizens You can t have a shifting purpose over time (Big M) o Butler allows a shifting emphasis. The objective cannot be directly contradictory to a Charter right (Big M- Lord s Day) Cannot be ultra vires the enacting legislative body according to division of powers Budgetary matters? Are financial objectives pressing and substantial? Not normally as a single concern but. Newfoundland v NAPE 2) The means chosen to accomplish the objective must be proportional, which requires: Rational connection between the measures adopted and the objectives; o Law should be carefully designed to achieve the objective in question and should not be arbitrary, unfair or based on irrational considerations (Oakes) Minimal impairment that the measures impair the right or freedom in question as little as possible; o Is it reasonable o A zone of discretion within which different legislative choice in derogation of Charter right could be tolerated. (Hogg) Edward Brooks: met the minimum impairment requirement because it was reasonable and the legislature had made a satisfactory effort Ford: Quebec s prohibition of English on signs was too drastic a means to preserve French Hutterian Brethern: Abella in her dissent focuses on this stage That the deleterious effects on the individuals or groups whose rights are limited must be proportional to the objective and to the salutary effects of the measures ( final balance ) (This step was emphasized in Hutterian Brethern). Complex regulatory response to a social problem is challenged.

13 Remedies Section 24 of the Charter 24 (1) Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy, as the court considers appropriate and just in the circumstances 24 (2) Provides for the exclusion of evidence in certain circumstances 52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is to the extent of the inconsistency of no force and effect Remedies under s Declaration of invalidity (nullification) 2. Severance of constitutionally inconsistent provisions (and strike down) 3. Reading down (choosing the interpretation of the statute that is consistent with the constitution) 4. Reading in ( Reading in add words to the act to make it consistent with the constitution) 5. Temporary suspension of invalidity 6. Other remedies can be fashioned by courts Test for applying remedies Schachter v Canada - Reading in vs. Severance 1. Define the extent of the inconsistency 2. Decide what the appropriate remedy is (reading in or severance) a. Twin principles: Respect for the role of the legislature; Respect for the purposes of the Charter b. Factors: i. Remedial precision: court should not be reading in if it s going to take a complicated formula to read it (Schacter) o Vriend sexual orientation was a logical addition to the list ii. Interference with legislative objective (includes budgetary concerns) Minimal impact is ok if it is consistent with the legislative objective or if it would not substantial change the cost or nature of the legislative scheme (Hogg) o M v H reading in the definition of spouse to include same sex couples à not for courts to decided, a job of the legislature iii. Change in significance of the remaining portion iv. The significance of the remaining portion 3. Not formulaic e.g. note different articulation of these criteria in Vriend 4. Consider whether to suspend the declaration of invalidity a. This is decided on consideration relating to the effect of an immediate declaration on the public