Framework for Aboriginal Rights

Framework for Aboriginal Rights This test will apply in the context of Aboriginal rights, Aboriginal title and claims to Self-government. Note: there is a modified test if Metis rights are involved AND some additions for justifying in Ab title. Lax Kw alaams is the test for characterizing the right (and the blanks are filled in by Van der Peet). Sparrow is the test for infringement and justification of infringement. STEP ONE: What is the nature of the right? LAX LWA AALAMS 1. Characterize the right [be precise]. ***apply VDP???? Treaty Rights Activity/Cultural Rights [must distinguish which one it is] i. Food, social, ceremonial (internal limit) ii. Moderate livelihood (commercial right more than mere subsistence, but not accumulation of wealth) iii. Commercial rights (no limit- full commercial rights) Self-Government Title 2. See if the evidence establishes: The existence of pre-contact practice/tradition/custom and That this practice was integral to the distinctive pre-contact society i. Distinctive, but does not need to be distinct or exclusive to them (Sappier) 3. Consider continuity. Does the claimed modern right have a reasonable degree of continuity with the integral pre-contact practice? In other words, is the claimed modern right demonstrably connected to, and reasonably regarded as a continuation of, the pre-contract practice? Should take a generous though realistic approach (don t need to be exactly the same, but the essential elements of pre-contact practice should be present). Allow for logical evolution of methods. 4. If Aboriginal right to trade commercially is found, what objectives may justify infringement of Aboriginal commercial rights? This is a questionable point better dealt with by looking to step 3 of the Sparrow test Have the rights been infringed upon and if so, is the infringement justified? STEP TWO: did the right exist at 1982 (or was it extinguished pre-1982)? Sparrow: Crown s intention must be clear and plain if they are to extinguish an aboriginal right Crown has burden to prove never been done before (high burden)

STEP THREE: have the rights been infringed upon? If so, is the infringement justified? FSC (Sparrow); Commercial (Gladstone) The government owes a fiduciary duty to FN people, so any regulation that infringes or denies Aboriginal rights must be justified. Sparrow: 1. Is there a prima facie infringement of s 35(1)? To determine, look at: Is the limitation unreasonable? Does the regulation impose undue hardship? Does the regulation deny the holders of the right to use their preferred means of exercising the right? 2. Is there justification for the infringement? To determine, look at: **If Aboriginal title question, look at Note regarding title (Special title considerations Tsilhqot in: rational connection; minimal impairment; proportionality. Delgamuukw: look at duty to consult when justifying infringement.) General questions: Are the regulations in line with allocation of priority? (1: conservation; 2: Ab fishing rights for FSC purposes; 3: commercial/sports fishing) Has there been as little infringement as possible? If there was expropriation, was there compensation? Was the Aboriginal group consulted? Is there a valid legislative objective? Was the objective compelling and substantial? Be suspicious of the objective (look for shifts in objective); look at underlying objective Examples of compelling and substantial objectives : conservation and resource management; prevention of exercises of Ab rights that would harm people Public interest is too broad Has the honour of the Crown been upheld? Fiduciary duty/special trust? In line with allocation of priority? (Sparrow) 1. Conservation 2. Aboriginal Fishing Rights (FSC) 3. Commercial/Sports Fishing As little infringement as possible? If expropriation, compensation? Duty to consult? NOTE ON SELF-GOVERNMENT As we saw in Pamajewon, claims to self-government are considered the same as claims to other Aboriginal rights so are measured by same tests (Sparrow; Lax Kw alaams) NOTE ON ABORIGINAL TITLE

Tsilhqot in Gov t must act in a way that respects the fact that Aboriginal title is a group interest inherent in present and future generations so incursions on Ab title cannot be justified if they would substantially deprive future generations of benefit to the land To justify overriding Aboriginal title-holders wishes on the basis of broader public good, gov t must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown's fiduciary obligation to the group To infringe, there must be: **** A rational connection to the government s goal Minimal impairment (no impairment beyond what is necessary to achieve the goal) Proportionality of impact (adverse impacts on Aboriginal should not outweigh the expected benefits) Delgamuukw When considering if infringement is justified, see if the duty to consult has been met**** Still need to look at on a case-by-case basis and consider the other parts of the test, but these things can justify infringement of Aboriginal title o Development of agriculture, forestry, mining, hyrdro-electic power o General economic development of Interior of BC o Protection of environment or endangered species (and the building of infrastructure to support those aims) NOTE ON METIS RIGHTS **** Majority in Powley recognized that a pre-contact test may not be feasible for Metis customs/practices/traditions Test for Metis rights under s 35(1) is a modified version of Van der Peet 1. Right must be characterized 2. There must be identification of the historic and contemporary community 3. Verification of the claimant s membership in the community (by: self-identification; ancestral connection; community acceptance) 4. Identification of the relevant time frame [focus should be on time after Metis community arose, but before it came under effective control of the sovereign] 5. Then proceed to the extinguishment, infringement and justification steps from Sparrow.

Framework for Duty to Consult Generally speaking, the gov t is obligated under s 35 to consult and accommodate FN peoples about potential. Haida test (filled in by Rio Tinto). Even if Aboriginal title is proven and declared, the government can still develop land without consent (if duty is fulfilled). Usually only the Crown has the duty to consult. But the Crown can delegate some parts of its duty to 3 rd parties. Duty to consult is a different type of question than Aboriginal rights. In this, you are wanting judicial review to have a government decision quashed. Haida Nation v BC test: 2. Is there a duty to consult? a. Threshold (or trigger): the Crown has knowledge, real or constructive, of the potential existence of the Ab right or title and contemplates conduct that might adversely affect it i. Rio Tinto: breaks it down to 3 elements: 1. The Crown has real or constructive knowledge of potential existence of Ab right 2. The Crown contemplates conduct 3. With potentially adverse impact a. Rio Tinto: Must be new potential adverse effects [ex/ in Rio, they were making changes to pre-existing electricity purchase policies, so a duty was not found b/c there were no new potential adverse 3. What is the content of the duty? And has that duty been met? (Haida) a. It is a spectrum need to look at strength of the case and the seriousness of the potentially adverse impact b. Procedural aspects: i. This duty can be fulfilled through existing regulations in appropriate circumstances ii. At least need to give notice, but sometimes notice is not enough (hold meetings, share info, respond to concerns, etc) iii. Examples/ providing affected communities with notice; holding meetings; sharing info; responding to community concerns c. Substantive aspects: i. The idea of accommodation (where appropriate) ii. Consent is generally not required (but can be required in relation to strong rights claims, or proven rights or title) but generally just need to accommodate

iii. Examples/ adjustment to intended projects (ex/ moving where road goes); a change in policy (ex/ how many licenses to take resources are issued); compensation; deciding to cease project Framework for Charter Questions 1. Does the Charter apply? 2. Does the impugned law have the effect of limiting/infringing upon a guaranteed right or freedom? 3. If so, is that limit a reasonable one that is prescribed by law and can be demonstrably justified in a free and democratic society? (Oakes test) 4. If not, what is the appropriate remedy? 1. Does the Charter apply? Does the person have the right? Section 2: everyone (including corporations) [freedom of conscience and religion; freedom of expression] Section 7: every person including non-citizens (excluding corporations) [life, liberty and security] Section 15: every person (excluding corporations) [equality] Is the other party subject to the Charter? Section 32(1)(a) and (b): the government Godbout v Longeuil: includes municipalities Bodies that are governmental in nature [people with governmental control or governmental characteristics; delegated decision-makers] Douglas College; Greater Vancouver Transportation Authority: it is considered governmentally controlled if a statute indicates an actor is an agent of the government or statute gives them significant oversight/control Hospitals and universities (complex) Eldridge: hospital, delivery of medically necessary services, government McKinney: university, mandatory retirement, not government Staffman: hospital, mandatory retirement, not government Dolphin Delivery: does not apply to private disputes Territorial limits? General rule: does not apply outside of Canada Cook: can apply extra-territorially where the actor is within s 32 (gov t) and the application of the Charter does not interfere with jurisdiction of the foreign state

Hope: can apply where actor is within s 32 (gov t) and matter is within authority of Canadian gov t Usually irrelevant b/c Canada doesn t using have authority in foreign jurisdiction, but there are exceptions: Consent of foreign state to apply Charter There has been a violation of international obligation (human rights, etc) 2. Does the impugned law have the effect of limiting/infringing upon a guaranteed right or freedom? 2(a) freedom of conscience and religion 2(b) freedom of expression 15 equality 7 life, liberty, and security of the person Freedom of Religion (2a) Very big right relatively easy to show an infringement, so usually focuses on s 1 analysis Amselem test: An infringement of s 2(a) of the Charter will be made out where: 1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and 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. Person must prove infringement on balance of probabilities (SL v Commission) Big M: Lord s Day Act (purpose: religious) was struck down for forcing religion upon others Edwards: Ontario Business Holidays Act (purpose: secular); saved under Oakes (pressing & substantial day of rest for employees) Alberta v Hutterian Brethren: Photo license upheld; breached, but took deferential approach to s 1 and justified Amselem: religious structure may be built if claimant sincerely believes in it and it has nexus with religion TWU v BCCT: teaching program; Community Standards Act; violation of s 2(a) SL v Commission: Ethics and Religious Culture course refusal to exempt; discussed in neutral way, so failed step 2 Loyola: Catholic school wanted exemption from ERC; minister refused; court found violation Mouvement laique Quebecois: Catholic prayer at meeting violates freedom to religion (atheism) IF IT BREACHES, MOVE TO STEP 3 JUSTIFICATION UNDER S 1 Freedom of expression (2b) Test (Irwin)

1. Does the conduct fall within protection of freedom of expression (2b)? a. Anything (including physical acts) that convey ideas, opinions and feelings i. Acts of violence are never protected ii. Hate speech is limited [usually justified to override freedom in scenarios of hate speech] 2. Is the purpose or effect of government action to restrict freedom of expression? a. Restrictions can t be aimed at content but the restrictions can be aimed at the physical effects of the activity Butler: selling porn does fall under 2(b) but infringed save under s 1 b/c harm to women Irwin Toy: prohibition on advertising to those under 13 violates 2(b), but is justified. IF IT BREACHES, MOVE TO STEP 3 JUSTIFICATION UNDER S 1 Equality (15) S 15 (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. [there is the concept that allows analogous grounds to be added] [includes non-citizens] (2) allows affirmative action Kapp test for 15(1) 1. Does the law create a distinction based on 1+ enumerated or analogous grounds? Enumerated grounds: race; national/ethnic origin; colour; religion; sex; age; mental/physical disability Established analogous grounds: Citizenship (Andrews) Sexual orientation (Egan) Marital statute (Miron v Trudel) Aboriginal living on or off reserve and band member status (Corbiere) If the ground is not one of the above, you can try to make an argument that it is an analogous ground. General analogous grounds: Personal, immutable characteristics that cannot be changed at a reasonable cost to identity (Andrews; Corbiere) People with relative lack of political power; vulnerable to having interests overlook; discrete and insular minorities (Andrews) Failed analogous grounds: Poverty; employment status; occupation If it is an enumerated/analogous ground OR you can propose an analogous ground, then proceed to step 2. If you cannot propose anything, s 15 argument fails. 1(B). If it does create a distinction, consider whether the government may be able to make a section 15(2) argument (affirmative action)? 2. Does the distinction create a disadvantage by perpetuating prejudice/stereotyping?

Quebec v A: prejudice and stereotyping may help answer the question, but the claimant is not required to demonstrate that a discriminatory attitude exists, just need to show there is a discriminatory impact. Withler: perpetuating prejudice usually occurs when the law treats a historically disadvantaged group in a way that exacerbates the situation. Law: substantive inequality can be shown if the disadvantage imposed is based on a stereotype that does not correspond to the actual circumstances/characteristics of the claimant/claimant group [therefore, can apply even if no historical disadvantage] Look at: Factors from Law: o Is there pre-existing disadvantage, stereotyping, prejudice, or vulnerability? o Is there correspondence between ground(s) and the actual need, capacity, or circumstances of the claimant or others? o Does the impugned law have an ameliorative purpose or effects? o What is the nature and scope of the interested affected by the impugned law? Parties can bring a comparator analysis if it will help them. But SCC in 201 (Withler) de-emphasized the role of comparator groups. Said similar treatment is not the most relevant thing. o Comparator group: one that mirrors the characteristic of the claimant relevant to the benefit sought (Withler) o Parties can bring in a comparator analysis if it will help them Does the challenged law violate the norm of substantive equality in s 15(1) of the Charter? (Andrews substantive equality, not formal equality) **focus on the legislative goal, rather than the actual effect (Kapp) IF IT BREACHES, MOVE TO STEP 3 JUSTIFICATION UNDER S 1 Kapp test for 15(2): Step 1: A program does not violate s 15 if the government can demonstrate that: 1. The program has an ameliorative (affirmative action) or remedial purpose; and 2. The program targets a disadvantaged group identified by the enumerated or analogous grounds If the program doesn t satisfy the above requirements, need to move to step 2.

Step 2: Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? Look at: Factors from Law: o Is there pre-existing disadvantage, stereotyping, prejudice, or vulnerability? o Is there correspondence between ground(s) and the actual need, capacity, or circumstances of the claimant or others? o Does the impugned law have an ameliorative purpose or effects? o What is the nature and scope of the interested affected by the impugned law? Parties can bring a comparator analysis if it will help them. But SCC in 201 (Withler) de-emphasized the role of comparator groups. Said similar treatment is not the most relevant thing. o Comparator group: one that mirrors the characteristic of the claimant relevant to the benefit sought (Withler) o Parties can bring in a comparator analysis if it will help them Does the challenged law violate the norm of substantive equality in s 15(1) of the Charter? (Andrews substantive equality, not formal equality) Andrews: non-citizens denied access to BC Law Society; discrimination, not justified Law: Doesn t get survivor s pension until she turns 65 b/c she is only 30 when spouse dies; age distinctions in these scenarios are not discriminatory Kapp: Non-Ab fishers didn t get exclusive early fishing license like Ab did; program does not violate s 15 b/c it was addressing historical disadvantage of Ab (affirmative action) Withler: Death benefit pension plan; amount decreases 10% every year for those over 60/65; age discrimination is okay when we look at entire benefit plan IF IT BREACHES, MOVE TO STEP 3 JUSTIFICATION UNDER S 1 Life, liberty, security of the person (7) 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. 1. Has life, liberty, or security of person been deprived? a. Scope of each ground? i. Life: PHS: not allowing Insite threatened client s lives Carter: assisted suicide prohibition violates Chaoulli: excessive wait times for hip surgery caused unnecessary pain/stress violated life

ii. Liberty: Reference re BC MVA: minimally freedom from restraint Morgentaler: includes physical and psychological integrity Godbout: broad right to personal autonomy where individuals can make free choices Malmo-Levine iii. Security: Morgentaler: includes physical and psychological integrity Rodriguez: autonomy; bodily integrity Chaoulli: excessive wait times for hip surgery caused unnecessary pain/stress violated security Gosselin: there is no positive obligation on the state to ensure that each person enjoys life, liberty, or security of person. a. Example/ allowing homeless to sleep in park; environmental action; etc Bedford: bodily integrity; protecting vulnerable prostitutes from being forced underground Carter: assisted suicide prohibition violates 2. Has the deprivation been in accordance with fundamental justice? a. If the deprivation was done in accordance with FJ, it is ok b. **in general, violations of FJ are not justified under s 1 c. What is the purpose of the legislation in question? i. Bedford: don t use broad objectives d. Procedural: i. e. Is the deprivation in accordance with the basic tenets of the legal system? (substantive) i. Legal principle? ii. General societal consensus? iii. Sufficiently precise? f. Under these recognized principles of fundamental justice, deprivations cannot be: [not a closed list] i. Arbitrary (there is not a direct connection between the purpose of the law and effect on the individuals) ii. Grossly disproportionate (the law s effect on life, liberty, or security are so grossly disproportionate to the purpose that it cannot be supported) iii. Overbroad (law is so broad in scope that it would include conduct that has no relation to the purpose of the legislation) [doesn t mean lots of people could be overbroad if it affects 1 person for no purpose] IF IT BREACHES, MOVE TO STEP 3 JUSTIFICATION UNDER S 1 3. Is the infringement justified? Infringement can be justified under s 1. Charter guarantees rights and freedoms only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Oakes test (to determine if it is justified under s 1) 1. The objectives of the impugned measures must be pressing and substantial enough to warrant overriding a right/freedom. You can t have a shifting purpose (Big M). But Butler does allow a shift emphasis. The objective cannot be directly contradictory to a Charter right (Big M). Financial objectives are not usually pressing and substantial as a single concern 2. The means chosen to accomplish the objective must be proportional, which requires: a) rational connection between the measures adopted and the objectives; b) minimal impairment that the measures impair the right or freedom in question as little as possible; ***this is where deferential treatment may be given if applicable c) 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 Deferential treatment for minimal impairment step Irwin: greater defence to the legislative choice is appropriate when: The government has sought to balance competing rights To protect a socially vulnerable group To balance the interests of various social groups competing for scarce resources To address conflicting social science evidence about the cause of a social problem Forms of Deference: 1. Judicial deference to relevant findings of fact by legislature In other words, lowering the standard of proof that legislature must meet to justify section 2 rights 2. Judicial deference to legislature s accommodation of competing values or interests 3. Lowering of standard of justification under section 1 If the competing interest is significant, it may support restriction of a less valuable form of expression 2. What remedies are available for an unjustified breach of a Charter right? a. S 52(1): law inconsistent with Constitution is to the extent of the inconsistency, of no force or effect b. S 24(1): very broad ability of court to give any remedy c. Possible remedies: i. Nullification (declare it invalid) ii. Severance (sever just the inconsistent provisions) iii. Suspended declaration of invalidity iv. Reading in v. Reading down

vi. Exemption d. Schacter Framework to Determine Remedy 1. Define the extent of the inconsistency 2. Decide whether severance or reading in is appropriate Look at purposes of the legislation, purposes of the Charter Criteria: remedial precision; interference with legislative objective (includes budgetary concerns); change in significance of the remaining portion; the significance of the remaining portion 3. Consider whether to suspend the declaration of invalidity e. Vriend: reading in is not a huge deal, because the legislature can just re-legislate f. Schacter: severance is no more serious than reading in