Jurisdiction over Aboriginal Matters
Federal Power / Exclusive authority to extinguish abg. rightsIndian Act does not extinguish Indian title.
Provincial Power / Abg. right not extinguished by fee simple titles
- s.109 prov. hold land subject to special interest, which includes Indian interest
Prov. law can apply to Indians if
i) they do not single out Indians; or
ii) go to the core of Indianness (protected by interjurisdictional immunity)
- s.88 of Indian Act: Subject to any treaty or other Act of Parliament, all laws of general application in any province apply to Indians, except when the law is inconsistent with this act.
The Test:
1. What is the nature of the right being claimed?
- cannot be excessively general (Pamajewon: keeping a gambling house characterized as right to manage use of land)
2. Does the right go to the core of Indianness?
- integral to culture
- hunting -> yes (Dick)
- high stake gambling -> no (Pamajewon: was some gambling but not at modern scale -> suggests frozen right)
If “yes” -> law does not apply to Indians ex proprio vigore (of its own face)
3. Does Indian Act allow the legislation to apply to Indians?
- if it is a law of general application -> yes, referentially incorporated -> becomes fed.
- focused on intent of leg, not effect
Dick v. The Queen, 1985
Indian charged with killing a deer out of season contrary to provincial Wildlife Act. Held: leg. doesn’t apply to Indians ex proprio vigore because hunting goes to the core of Indianness. However, Wildlife Act is a law of general application (not intended to impair Indian status or capacity) and therefore referentially incorporated by Indian Act to act as fed. leg. and apply to Indians. Effect of leg. not relevant.
R v. Pamajewon
Indian convicted of keeping a common gambling house contrary to s.201 of Criminal Code. Held: Although Indians did gamble, it was not at 21st century scale, therefore gambling is not integral to culture.
History of Aboriginal Rights
- take into account abg. perspective, and the special evidentiary difficulties that exist (Van der Peet)
- fiduciary obligation to act in Indian interest. (Guerin – negotiate lease to golf course in Indian interest)
s.35(1) / “Existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed.”
- “existing” = not extinguished prior to 1982
- “recognized and affirmed” = Crown must exercise restraint when interfering with aboriginal rights. Must give sufficient reason for encroachment.
- generous, liberal interpretation (Sparrow)
Pre-Delgamuukw / Ste. Catherine Milling and Lumber
- aboriginal title is a) usufactuary (only for limited purposes, like a license); b) personal (cannot be sold except to the Crown); c) dependent on good will of the sovereign
Calder v. AG(BC)
- Title is justiciable (a legal right)
- rooted in pre-existing occupation
Guerin v. Queen
- title is sui generis
R v. Adams
- title is a distinct subset of abg right
Treaty Principles / - focused on consent: more consistent w/ constitutional values, protection of minorities, rule of law
- reserved rights: all land are reserved for abg as part of colonization until such time abg. surrender them to Crown
- beneficiaries of treaty: aboriginal ppl get promises from the Crown for education, land, fishing/hunting rights
- treaties are about the future: foundational agreements of nation building; creates certainty and division of power
- bridge legal systems: both common law and abg. law are recognized
Time Line
i) Abg to abg treaties (pre-European)
ii) Peace and friendship treaties (b/t abg. and Crown in Maritimes to end war, 1725-1800s)
iii) Numbered treaties (began in 1850, covered most of Canada)
iv) Modern Treaties (since 1975)
Framework for Aboriginal Rights
1. Proving right exists (onus on Abg. group) / A. Nature of Right
- sui generis (Guerin)
- source: Indian occupation prior to European settlement (Guerin)
- inalienable, except to Crown
- communal
- not restricted to traditional activities
- inherent limit: cannot be used in a manner irreconcilable with nature of attachment to land (Delamuukw)
B. Proof of Title
i) occupation prior to sovereignty
- based on abg. perspective
ii) continuity of occupation
- interruptions okay, just need substantial maintenance of connection
iii) exclusively
- could be shared / A. Exists
- right is extinguished if leg. show “clear and plain” intention to extinguish
- mere regulation/ implied intention/ policy not enough (Sparrow: regulation of fisheries does not extinguish rt)
- can be extinguished through agreements (i.e. treaties), NRTA, constitutional document
B. The right
- include common law rights
- interpreted in modern day form
i) identify the nature of the claim
ii) central and significant to the society’s distinct culture today (“made the society what it was”)
- must be an independent practice that is by itself significant (Van: exchange of fish only incidental to fishing)
- must be distinctive (distinguishing characteristic), but not necessarily distinct (unique)
iii) has continuity w/ practice pre-contact
- cannot be developed in response to European contact (Van: trading w/ HBC not proof)
- can have interruptions
iv) Relate to the particular abg. group –assessed on a case-by-case basis / A. Nature of Right
- justiciable (White and Bob)
- sui generis (Simon)
- signed by an independent ppl (Sioui)
B. Evidentiary Sources
- actual treaty may be the oral agreement (Marshall: treaty not translated to Indian language; unconscionable for Crown to ignore oral agreement)
- should examine extrinsic historical and cultural context even when there is no ambiguity
C. Test
- was the right contemplated at the time of treaty signing (Marshall II; Bernard)
- choose common intent that best reconciles both abg. and Crown interest (Marshall I)
- can be an implied right (Sundown: right for shelter is an incidental right to right of hunting)
- general right enjoyed by all others can still be subject to a treaty promise (Marshall)
2. Extinction by the Crown? (onus on Crown)
3. Right Infringed? (onus on Abg. Group)
A. Limitation unreasonable
B. Impose undue hardship
C. Prevent abg. group from exercising their right in their preferred means
4. Infringement Justified?
(onus on Crown)
A. Valid legislative objective / - agriculture/forestry/mining
- hydroelectric power
- economic development
- protection of environment or endangered species
- building of infrastructure
- settlement of foreign population / - conserving/managing a natural resource (Sparrows)
- prevent harm to public or aboriginal people (Sparrows)
- economic/regional fairness (Gladstone: need to limit commercial fishing by abg.)
- allocation of resources to non-aboriginal (Gladstone – other groups w/ historical reliance on fishery) / - treaties are subject to justifiable infringement (Badger)
B. Honour of the Crown preserved / i) exclusive
- process/substance allocation should reflect prior interest
- abg. participation in development
- conferral of fee simple/ lease/ license reflect abg. interest
- remove economic barriers for abg. participation
ii) right to choose use of the land
iii) consultation
iv) economic component (compensation) / - minimum impairment (effort to mitigate?)
- fair compensation/accommodation
- give priority to aboriginal
- abg. group consu lted
Calder v. AG (B.C.), 1973
Tribal Council brought action against BC government for giving away tenure to land. They sought a declaration that aboriginal title to certain lands in the province was never lawfully extinguished. Held: Aboriginal title existed at the time of Royal Proclamation of 1763. 3 judges: title has since been extinguished by the proclamation and ordinances. 3 judges: proclamation not explicit enough to extinguish title.
Guerin v. The Queen, 1984
Government made deal on behalf of Musqueam Indian band to lease land to golf club (near UBC). Actual terms of the lease were much less favourable than those agreed to by the band. Held: It is unconscionable for the Crown to ignore oral agreement with the band. Crown has to make up for the loss suffered. Indian title flows from pre-settlement occupation. It is sui generis. It is a burden on land although crown holds proprietary interest. Crown has fiduciary obligation to act in Indian interest and recognize Indian legal tradition as a source of law.
R v. Sparrow, 1990
Member of Musqueam Nation caught fishing contrary to Fisheries Act. Held: Taking salmon was an integral part of Musqueam culture. Sparrow was exercising an "inherent" Aboriginal right, that existed before the provincial legislation and that was guaranteed and protected by section 35 of the Constitution Act, 1982.
R v. Van der Peet, 1996
Member of Stolo Nation charged for selling salmon contrary to Fisheries Act. Held: exchange of fish not an integral part of culture. It’s only incidental to fishing. No regular trading system. Trade w/ Hudson’s Bay Company qualitatively different from trade prior to contact. Exploitation of fish not specialized which suggests trade not central part of culture. L’Heureux-Dube (dissent): It is not imperative for practices to exist prior to contact, or else Metis would have no right. McLachlin(dissent): Abg. right includes the right to be sustained from the land/waters. Integral-incidental test too broad and too categorical. It should not be an all or nothing test. Should adopt the empirical historic approach to look at what has been identified as abg. right in the past.
R v. Gladstone, 1996
Members of Heiltsuk Band charged for selling herring contrary to Fisheries Act. Held: commercial sale of herring spawn was a central, significant and defining feature of the culture; and that right has not been extinguished. However, right to commercial fishing is not inherently limited. Crown has valid leg. obj. to pursue regional and economic fairness and recognize other groups w/ historical reliance on fishery.
Delgamuukw v. BC, 1997
Gitxsan and Wet’suwet’en Nation claimed title to 133 individual territories in BC. Held: retrial. Described nature of aboriginal title and the three requirements for proof of title.
R v. Marshall
Abg. man charged for selling eels without a license. Treaty signed in 1760 for peace and friendship through trade. Set up 6 truckhouses. Held: Reasonable bystander test used to interpret intent. Cannot rely on written doc alone. Treaty implied right to hunt and fish for trade even though it was not expressly mentioned. But right is limited to trade for necessaries (described as “moderate livelihood”) not for economic gain.
R v. Sioui, 1990
Indians were not conquered in the Quebec War even though they fought on the side of the French and lost to Britain. Treaties signed were between an independent ppl with the Crown.
R v. Sundown, 1996
Indian band set up hunting cabins in provincial park. There was no explicit mention of right to erect shelter in the treaty. Held: Right for shelter is an incidental right to right of hunting, therefore it should be protected.
Charter
1. Does the Charter apply? (s.32 analysis)
2. Purpose and effect of challenged law
3. Interpret the asserted right in the Charter
4. Does the challenged law limit one of the rights (onus on party challenging)
5. Is the limit reasonable; i.e. demonstrably justifiable in a free and democratic society (onus on government)
Interpretation
- purposive approach (Hunter v. Southam)
- tools:
· general objective of the Charter
· language chosen to articulate right
· historical origin of the right (generous rather than legalistic approach)
· should not read internal limits in definition of rights (s.1 limits rights)
- interpretative provisions of the Charter
· s.27 Charter shall be interpreted in manner consistent with the preservation and enhancement of multicultural heritage of Canadians
· s.28 Rights are guaranteed equally to both male and female
- parliamentary/committee debates (Re Motor Vehicle Act)
· drafters’ intent not determinative
· product of a multiplicity of individuals
· minimal weight should be given to the passing legislative body
· rights are not frozen
Application of the Charter s.32
- only applies to government action
- does not apply to orders from the court (Dolphin Delivery: court ordered injunction against secondary picketing not subject to Charter scrutiny on violation of freedom of expression/association)
- does not apply to common law unless C/L is the basis for gov’t action
1. Controlled by government?
- university -> no, meant to have autonomy, academic freedom, self-governance. (McKinney: mandatory retirement at university)
- hospital -> no, (Stoffman) unless policy at issue was dictated by gov’t (Eldridge: Medicare service)
- colleges -> yes, board of governors fully staffed by ministerial appointments (Douglas College)
2. Exercising governmental functions
- municipalities -> yes. (Godbout: woman employed by municipality required to live in the city)
- person/organization exercising power under statute -> yes. (Slaight: adjudicator gave order under Canadian Labour Code)
Section 1
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
1. Prescribed by law / - must be accessible, intelligible and accountable to the public (notice given)- can be the necessary implication or application of a legislation/regulation or common law rule (Therens)
- low standard for what is law -> to give legislative policy choices / - not prescribed by law if law is too vague, based on:
· fair notice: if law is not based on a customary value, need to give actual notice
· limitation of law enforcement: conviction cannot automatically flow from the decision to prosecute
· international human rights
· scope of precision: provide framework, approximation
2. Justified infringement / Contextual Approach
- Edmonton Journal: freedom of expression has greater value in a political context than it does in the context of disclosure of details of a matrimonial dispute
- should show greater deference to legislative choice when gov’t sought to
a) balance competing rights/interests (Libman: freedom of expression v. political equality);
b) protect a socially vulnerable group (Irwin Toys: protection of children);
c) manage scarce resources; d) address conflicting social science evidence; e) regulate corporations (Irwin)
A. Pressing and Substantial Obj. / - shift in emphasis allowed (Butler)
- rarely laws would be struck down for this
- better health care (Chaulli) / - no shifting purpose (Big M: Lord’s Day Act no secular purpose)
- not when purpose of law contradicts rights or freedoms (Big M: compelling religious practice not a pressing obj.)
B. Proportionality
(on balance of probability) / Rational Connection
- chosen method advances purpose
- relate to law’s effectiveness and scope
Minimal impairment
- least drastic means
- evidence of equally-effective alternatives (Chaulli: other prov/countries have good pub. health care w/o same restriction on private health care)
- most cases turn on this point
Proportional Effect
- importance of the law’s objective must match with its effect on limiting freedom
as to the cause of a social problem (Irwin Toy)
Section 15 Equality [Purpose: prevent violation of human dignity and freedom (autonomy, self-determination, self-worth, integrity)]