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Aboriginal rights and Aboriginal governmental jurisdiction implement different rights based on a ground that would in other circumstances be a prohibited ground of discrimination.
Unsurprisingly, then, there have been claims that particular instances of policy in relation to
Aboriginal communities represent forms of dis'crimination prohibited under s. 15 of the Charter.
In my presentation, I will overview and comment on some recent cases in this area, including cases from lower courts in Saskatchewan that have gone in varying directions and that have, in some instances, gone in a different direction from cases in other provinces. In this brief note, I set out some of these cases and their context, and I try to sketch out some possible conclusions we might begin to draw-although many of these conclusions are that the law in this area will continue to develop in interesting ways!
These issues are of obvious interest in a province like Saskatchewan, with a substantial-and growing-Aboriginal population. They are also of interest in so far as they go to some of the very deepest questions of justice that arise in the context of a constitutional bill of rights. I hope thinking of these cases from different areas of the law together in this way will shed some interesting light on the issues at stake and on how lawyers can come to grips with some of the kinds of claims clients may want to advance on these issues.
Supreme Court of Canada Backdrop: Lovelace v. Ontario
One particular point of reference in thinking about this area is the Supreme Court of Canada's decision in 2000 in Lovelace v. Ontario.
1
This case concerned the allocation of proceeds from casino initiatives in Ontario (particularly from Casino Rama which opened on the reserve of the
Chippewas of Mnjukaning First Nation) and actually involved litigation between different
I
Lovelace v. Ontario, 2000 see
37
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Aboriginal groups over these proceeds. The proceeds of new casino initiatives were being directed toward Ontario First Nations bands registered under the Indian Act and not toward
Aboriginal Ontarians not registered under the Indian Act. The exclusion of Metis and non-status
Indians from the policy was upheld by the Ontario Court of Appeal based on s. 15(2) of the
Charter, the clause intended to allow for affirmative action policies, on the basis that the policy was permissibly targeted at the social and economic conditions of bands. The Supreme Court, following the Law v. Canada
2 approach to s. 15 held that the case could be addressed under s.
15(1), with a conclusion that the policy did not conflict with the purposes of s. 15(1) and did not engage the remedial purposes of equality rights (in particular, the policy did not demean the dignity of those not benefiting).3 The Court held that a policy directed toward empowering some
. Aboriginal communities was not discriminatory simply because it did not empower all
Aboriginal communities equally.4
This judgment from the Supreme Court, however, has left much room for continued argument of equality rights as against policies designed to recognize Aboriginal rights or to address circumstances of Aboriginal communities. The Law test for equality has done very little to promote clarity in equality rights jurisprudence. Its set of contextual factors leaves much room for argument on a case-by-case basis.
Sections 15 and 25 and Claims of a "Race-Based Fishery": R. v. Kapp
In R. v. Kapp,
5 the British Columbia Court of Appeal was confronted with a challenge by non-
Aboriginal fishers against the federal government's Aboriginal Fisheries Strategy. Under the related regulations, the federal Minister of Fisheries was empowered to issue communal
2
Law v.
Canada, [1999] 1 S.C.R. 497, 170 D.L.R. (4th) I.
The Law case orients s. 15 analysis in a particular way, requiring proof of (I) differential treatment, (2) based on enumerated or analogous grounds, and (3) having a purpose or effect that is discriminatory in the sense intended by s. 15, which the Court sees as oriented around the purpose of preventing violations of human dignity. Where different treatment does not impair human dignity, it will not violate s. 15. The Court suggests assessing effects on dignity through four contextual factors: (I) existence of pre-existing disadvantage; (2) relationship between the distinction and claimant's circumstances; (3) presence of ameliorative purposes or effects; (4) nature of the interest affected.
3
4
5
Lovelace v.
Ontatrio, supra note I at paras. 57-90
Ibid.
R.
v.
at paras. 90-92
Kapp (2006), 271 D.L.R. (4th) 70; leave to appeal to Supreme Court of Canada was granted on 14 December 2006. A current student of mine, Celeste Hutchinson, has written an excellent case comment on the judgment (currently seeking publication), and I have learned from discussions with her on the.case.
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Aboriginal fishing licenses, some of which allowed fishing for commercial purposes.
Non-Aboriginal fishers challenged what they saw as preferential access granted to Aboriginal fishers. A majority of the British Columbia Court of Appeal rejected this argument based on the
Law approach to s. 15(1), with Justice Low's lead judgment seeing the licenses as simply part of an overall regulatory scheme that did not constitute differential treatment of non-Aboriginal fishers.
6
One of the concurring judgments concluded that there was differential treatment based on enumerated grounds in s. 15(1) but that there was no actual disadvantage suffered by non-
Aboriginal fishers.
7
In the course of the judgment, some of the judges also commented on the implications of s. 25 of the Charter, the clause declaring that the Charter shall not abrogate or derogate from "any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada".
Justice Kirkpatrick, in particular, was enthusiastic to offer an analysis of s. 25, one in which she was ready to conclude that s. 25 "affords a complete answer to the appellant's s. 15 equality challenge".8 She was ready to dismiss s. 15 claims prior to Charter analysis if the remedy sought by Charter challenge derogated from an Aboriginal right or freedom.
9
The implications of this decision are not yet clear, and, indeed, are now subject to more definitive pronouncements from the Supreme Court of Canada when it hears the case.
lO
Needless to say, this case may fundamentally alter the backdrop for the interaction of s. 15 rights and Aboriginal rights.
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7
Ibid.
Ibid.
at paras. 81-82, Low lA.
at para. 109, MacKenzie lA.
9 g
10
Ibid.
Ibid.
at paras. 118-119.
at para. 138
At this writing, the hearing date has not yet been set.
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Section 15 Claims and Aboriginal Child Welfare: Re R.T.
In the meantime, other cases involving the interaction of s. 15 and Aboriginal policy issues have been making their way through the lower courts. To take one example in the Saskatchewan context, in Re R. T,
11
Justice Ryan-Froslie held unconstitutional an informal policy applied by the Saskatchewan government. This policy was that an Aboriginal child would not be placed for adoption without consent from the child's First Nation, something that was routinely being refused where adoption to a non-Aboriginal home was being considered, and thereby leaving many Aboriginal children in temporary arrangements rather than being placed for permanent adoption. Recognizing concerns about the history of Aboriginal child welfare policy, Justice
Ryan-Froslie nonetheless held that the policy in question was unconstitutional based on ss. 7 and
15 of the Charter given its effect of forcing certain Aboriginal children into perpetual foster care.
Even considering the Supreme Court's position in Lovelace v.
Ontario,12 Justice Ryan-Froslie also concluded that no ameliorative purpose in the law would lead to any conclusion otherwise under either s. 15(1) or s. 15(2).13
Section 15 Claims and Aboriginal Jurisdiction in the Tobacco Legislation Context
Another prominent encounter between s. 15 and Aboriginal policy has arisen in the tobacco legislation context, now litigated in at least three provinces, to somewhat differing effect in each.
In two of the cases, the issue has been a provincial government decision not to apply provincial tobacco legislation on reserves, in one case by policy and in the second by an actual exemption in the legislation, and in both cases seemingly because the provinces do not think they have jurisdiction to apply the legislation on reserves.
cJ
II
Re R.
T.
(2004), [2005] 248 D.L.R. (4th) 303, I C.N.L.R. 289 (Sask. Q.B. (Fam. Div.». For an excellent comment on the case written by a student at the College of Law, see: Emily Grier, "Aboriginal Children in Limbo: A Comment on Re R. T." (2005) 68
Sask. L. Rev. 435.
12
Lovelace v. Ontario. supra note I.
13
Re R.
T., supra note II at paras. 86-93.
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In Hotels Association ofSaskatchewan v. Saskatchewan,14 Justice Foley considered an action brought by the Hotels Association of Saskatchewan. This action alleged that the provincial government's application of the ban on smoking in bars and restaurants contained in the amended Tobacco Control Act l5 violated s. 15 in so far as the provincial government applied the
Act off reserve but not on reserve. The Saskatchewan litigation, however, did not end with a conclusion on this substantive question. Justice Foley dismissed the claim under Rule 173 on the basis that it disclosed no reasonable cause of action because the plaintiff corporation (the Hotels
Association) could not bring a s. 15 claim because s. 15 protects only "every individual"-a term which has been interpreted not to include corporations amongst those who can bring as. 15 challenge.
16
In R.
v. Jenkinson,
17 by contrast, motel proprietor Robert Jenkinson and his motel asserted as a defence to a charge under Manitoba's The Non-Smokers Health Protection Act l8 as. 15 argument that the legislation discriminated against non-Aboriginal Manitobans in that it contained a specifically enumerated exemption for businesses operating on reserves. Justice
Clearwater of the Manitoba Court of Queen's Bench applied the Law test and held that there was indeed a violation of s. 15 of the Charter in so far as the legislation differentiated on the basis of
"Aboriginality-residence" and harmed human dignity in impairing the ability of some relative to others to carryon lawful businesses.
19
The Manitoba government is appealing the decision, but in the meantime, it stands as a decision in which the courts have concluded that there was a s. 15 violation in the context of legislation that was designed to be consistent with provincial obligations vis-a-vis Aboriginal jurisdiction.
14
Hotels Association ofSaskatchewan v.
Saskatchewan.
(2005) 272 Sask. R. 257, 2005 SKQB 335.
15
16
S.S. 2001, c. T-14.1
The corporation in the case not been charged with an offence, which would have permitted it to assert a s. 15-based defence, but was simply bringing a constitutional challenge to the impugned section of the legislation.
17
R.
v.
Jenkinson, [2006] 10 W.W.R. 141,2006 MBQB 185. A current student at the College, Erin Lalonde, has written an excellent case comment on the decision; I thank her for permitting me to read that case comment which has helped me in thinking about the case.
18
C.C.S.M., c. N-92.
19 Jenkinson. supra note 17 at paras. 14, 19.
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In one other case arising in Ontario, Club Pro Adult Entertainment Inc. v. Ontario,2o plaintiffs sought damages from Ontario after their investments in designated smoking rooms were rendered wasted by the new Smoke-Free Ontario Act?1 trying to base their claim on an array of arguments. The Superior Court of Justice struck portions of their Charter claims on the basis that the corporations lacked standing in the absence of proceedings against them.2
2
The Court also concluded that there was no arguable s. 15 issue because the exemption for Aboriginal persons in the Ontario legislation was solely for Aboriginal individuals using tobacco for cultural and spiritual purposes and the legislation created no exemption for Aboriginal businesses as in the Manitoba legislation.
23
Implications
The cases I have mentioned provide a flavour of the kind of cases where there can be interactions between s. 15 and Aboriginal rights. They do not reveal any uniform approach by the courts at this stage. In the oral presentation, I will flesh out more of the implications. But here are some brief comments for those reading this paper to begin thinking about:
• Standing will in some contexts be an important consideration in whether a corporation affected by Aboriginal rights-related policy can even bring a claim. As seen in Hotels
Association ofSaskatchewan and the Ontario Club Pro case, the courts are ready to strike claims in this area if corporations do not have standing.
• Two different kinds of s. 15 claims vis-a-vis Aboriginal policy become apparent. In cases like Lovelace v. Ontario and R. T., we see applications of Aboriginal policy being challenged by other Aboriginal persons. In Kapp and in the tobacco-related litigation, we see applications of Aboriginal policy being challenged by non-Aboriginal persons. So, there are a complex array of possible claims that can emerge from various groups. (That said, Kapp, in the latter context, may have implications for future challenges by
20
2\
22
23
Club Pro Adult Entertainment Inc. v. Ontario, [2006] OJ. No. 5027.
Smoke-Free Ontario Act, S.O. 1994, c. 10.
Club Pro, supra note 20 at paras. 159-61.
Ibid.
at paras. 217-19.
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Aboriginal litigants in so far as it begins to offer further interpretation of s. 25, which may be very significant in the Aboriginal self-government context in future cases.)
• The application of the Law test to equality claims seems, in some respects, to lead to a somewhat case-by-case analysis that may make decisions relatively unpredictable.
• A government implementing a policy designed to have ameliorative effects in relation to
Aboriginal communities will be more successful in having this policy upheld if its relation to ameliorative objectives is clearer and if the costs of the policy are more diffused rather than imposed heavily on certain individuals. Thus, the policy in Lovelace could survive, where that in R. T could not, even though both had some ameliorative objectives behind them.
• Lack of clarity around the application of provincial laws to Aboriginal persons and communities may continue to lead to difficult questions like that which has arisen in the context of the tobacco-related litigation. A province would presumably be able to respond to an equality rights challenge to its non-application of law were it to be able to show definitively that it lacked jurisdiction in relation to certain applications of the law.
However, in the absence of clarity, a province makes a choice between seeking to apply a law in contexts where its application might be contested, not applying the law and then risking challenges arising from this non-application, or a route of purporting to have a law that applies but then, relatively quietly, not applying it in practice in contexts where its application might be challenged, thereby dodging much of the litigation potential. The last option seems undesirable from a rule of law perspective but may become the easiest route for provincial governments to follow.
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